As filed with the Securities and Exchange Commission on October 3, 2006
Registration No. 333-135082
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 3
to
FORM S-11
FOR REGISTRATION UNDER
THE SECURITIES ACT OF 1933
OF CERTAIN REAL ESTATE COMPANIES
DOUGLAS EMMETT, INC.
(Exact name of registrant as specified in its governing instruments)
808 Wilshire Boulevard, Suite 200
Santa Monica, California 90401
(310) 255-7700
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices)
William Kamer
Chief Financial Officer
808 Wilshire Boulevard, Suite 200
Santa Monica, California 90401
(310) 255-7700
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Gregg A. Noel, Esq.
Jennifer A. Bensch, Esq. Rand S. April, Esq. Skadden, Arps, Slate, Meagher & Flom LLP 300 South Grand Avenue, Suite 3400 Los Angeles, California 90071 Telephone: (213) 687-5000 |
Julian T. H. Kleindorfer, Esq.
Edward Sonnenschein, Jr., Esq. Martha B. Jordan, Esq. Latham & Watkins LLP 633 West Fifth Street, Suite 4000 Los Angeles, California 90071 Telephone: (213) 485-1234 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement of the same offering. o
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. o
CALCULATION OF REGISTRATION FEE
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Title of each class of securities to be registered
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Proposed maximum
aggregate offering price (1) |
Amount of
registration fee (2) |
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Common Stock, par value $0.01 per share | $1,328,250,000 | $142,122.75 | ||
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The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and we are not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED OCTOBER 3, 2006
PROSPECTUS
55,000,000 Shares
Common Stock
This is the initial public offering of shares of common stock of Douglas Emmett, Inc. All of the shares of our common stock offered by this prospectus are being sold by us. We intend to be taxed as a real estate investment trust, or REIT, for United States federal income tax purposes commencing with our taxable year ending December 31, 2006.
We expect the public offering price of our common stock to be between $19.00 and $21.00 per share. Prior to this offering, there has been no public market for our common stock. We intend to apply to have our common stock listed on the New York Stock Exchange under the symbol "DEI."
See "Risk Factors" beginning on page 23 of this prospectus for certain risks relevant to an investment in our common stock.
As described herein, concurrently with this offering, we will complete the formation transactions, pursuant to which we will acquire all of the interests in our historical operating companies and certain entities that own real estate, in exchange for cash, shares of our common stock and/or units in our operating partnership. We will use the net proceeds from this offering to pay a portion of the cash consideration due in the formation transactions. Approximately 23.6% of the consideration that we will pay in the formation transactions will be paid to certain of our affiliates, Dan A. Emmett, Christopher Anderson, Jordan Kaplan and Kenneth Panzer, who we refer to as our "predecessor principals," and four of our executive officers, William Kamer, Barbara J. Orr, Allan B. Golad and Michael J. Means. These affiliates will not receive any cash consideration in the formation transactions. Rather, in exchange for their interests in the pre-formation transaction entities, these affiliates will receive an aggregate of 13,954,112 shares of our common stock and 28,152,636 units in our operating partnership (which shares and units have an aggregate value of $842.1 million, based on an assumed offering price of $20.00 per share). These affiliates also will receive an estimated $5.8 million in cash in respect of a final operating distribution payable by the pre-formation transaction entities to all holders of interests in such entities in connection with the formation transactions.
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Per Share
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Total
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||||
---|---|---|---|---|---|---|
Public offering price | $ | $ | ||||
Underwriting discount | $ | $ | ||||
Proceeds to us (before expenses) | $ | $ |
We have granted the underwriters a 30-day option to purchase up to an additional 8,250,000 shares from us on the same terms and conditions as set forth above if the underwriters sell more than 55,000,000 shares of our common stock in this offering to cover over-allotments.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The underwriters expect to deliver the shares of common stock on or about , 2006.
Lehman Brothers | Merrill Lynch & Co. | Citigroup |
The date of this prospectus is , 2006
PROSPECTUS SUMMARY | 1 | ||
Douglas Emmett, Inc. | 1 | ||
Our Competitive Strengths | 2 | ||
Business and Growth Strategies | 4 | ||
Market Information | 5 | ||
Summary Risk Factors | 5 | ||
Our Portfolio Summary | 7 | ||
Structure and Formation of Our Company | 8 | ||
Consequences of this Offering, the Formation Transactions and the Financing Transactions | 11 | ||
Our Structure | 12 | ||
Benefits to Related Parties | 13 | ||
Restrictions on Transfer | 15 | ||
Restrictions on Ownership of Our Capital Stock | 15 | ||
Conflicts of Interest | 15 | ||
This Offering | 17 | ||
Dividend Policy | 17 | ||
Our Tax Status | 18 | ||
Summary Historical and Pro Forma Financial and Operating Data | 19 | ||
RISK FACTORS |
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23 |
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Risks Related to Our Properties and Our Business | 23 | ||
Risks Related to Our Organization and Structure | 32 | ||
Risks Related to This Offering | 37 | ||
Tax Risks Related to Ownership of REIT Shares | 39 | ||
FORWARD-LOOKING STATEMENTS |
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43 |
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USE OF PROCEEDS |
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44 |
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DIVIDEND POLICY |
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46 |
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CAPITALIZATION |
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51 |
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DILUTION |
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52 |
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SELECTED HISTORICAL FINANCIAL AND OPERATING DATA |
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53 |
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MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS |
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58 |
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Overview | 58 | ||
Factors That May Influence Our Operating Results | 65 | ||
Critical Accounting Policies | 66 | ||
Historical Results of Operations | 69 | ||
Liquidity and Capital Resources | 78 | ||
Off Balance Sheet Arrangements | 83 | ||
Interest Rate Risk | 83 | ||
Cash Flows | 84 | ||
Funds From Operations | 85 | ||
Inflation | 86 | ||
Newly Issued Accounting Standards | 86 | ||
Quantitative and Qualitative Disclosure About Market Risk | 87 | ||
ECONOMIC AND MARKET OVERVIEW |
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88 |
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Los Angeles Regional Economy | 88 | ||
Los Angeles County Office Market | 89 | ||
Los Angeles County Multifamily
Market |
93 | ||
Honolulu, Hawaii Economy | 95 | ||
BUSINESS AND PROPERTIES |
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99 |
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Overview | 99 | ||
History | 101 | ||
Our Competitive Strengths | 102 | ||
Business and Growth Strategies | 108 | ||
Existing Portfolio | 111 | ||
Douglas Emmett Submarkets Overview | 120 | ||
Regulation | 141 | ||
Insurance | 142 | ||
Competition | 142 | ||
Property Management Services | 143 | ||
Description of Certain Debt | 143 | ||
Employees | 145 | ||
Principal Executive Offices | 145 | ||
Legal Proceedings | 145 | ||
MANAGEMENT |
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146 |
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Directors and Executive Officers | 146 | ||
Board Committees | 148 | ||
Compensation of Directors | 149 | ||
Executive Officer Compensation | 149 | ||
Option Grants | 150 | ||
401(k) Plan | 151 | ||
2006 Omnibus Stock Incentive Plan | 151 | ||
Employment Agreements | 154 | ||
Indemnification Agreements | 160 | ||
Compensation Committee Interlocks and Insider Participation | 161 | ||
i
PRINCIPAL STOCKHOLDERS |
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162 |
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CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS |
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164 |
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Formation Transactions | 164 | ||
Acquisition of Certain Properties Prior to the Formation Transactions | 164 | ||
DERA Contribution | 165 | ||
Partnership Agreement | 165 | ||
Registration Rights | 165 | ||
Employment Agreements | 166 | ||
Indemnification of Officers and Directors | 166 | ||
Brentwood Court Loan | 166 | ||
Offering Expenses Loan | 166 | ||
Pre-Closing Cash Distributions | 166 | ||
Release of Owensmouth Guarantee | 167 | ||
Intercompany Transactions Among Historical Operating Companies | 167 | ||
Payments to Directors and Officers | 167 | ||
Other Real Estate Investments of Mr. Emmett | 168 | ||
Bonus Payments | 168 | ||
STRUCTURE AND FORMATION OF OUR COMPANY |
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169 |
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Our Operating Partnership | 169 | ||
Formation Transactions | 169 | ||
Consequences of this Offering, the Formation Transactions and the Financing Transactions | 174 | ||
Our Structure | 176 | ||
Benefits of the Formation Transactions and the Offering to Certain Parties | 177 | ||
Determination of Offering Price | 179 | ||
PRICING SENSITIVITY ANALYSIS |
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180 |
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POLICIES WITH RESPECT TO CERTAIN ACTIVITIES |
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183 |
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Investment Policies | 183 | ||
Dispositions | 184 | ||
Financing Policies | 184 | ||
Conflict of Interest Policies | 184 | ||
Policies With Respect To Other Activities | 185 | ||
Reporting Policies | 185 | ||
DESCRIPTION OF THE PARTNERSHIP AGREEMENT OF DOUGLAS EMMETT PROPERTIES, LP |
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186 |
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General | 186 | ||
Purposes, Business and Management | 186 | ||
Restrictions on General Partner's Authority | 187 | ||
Additional Limited Partners | 188 | ||
Ability to Engage in Other Businesses; Conflicts of Interest | 189 | ||
Distributions | 189 | ||
Borrowing by the Operating Partnership | 189 | ||
Reimbursement of Us; Transactions with Our Affiliates and Us | 189 | ||
Our Liability and that of the Limited Partners | 190 | ||
Exculpation and Indemnification of Us | 190 | ||
Sales of Assets | 191 | ||
Redemption Rights of Qualifying Parties | 191 | ||
Transfers and Withdrawals | 191 | ||
Restrictions on General Partner | 193 | ||
Restrictions on Mergers, Sales, Transfers and Other Significant Transactions Involving Us | 193 | ||
Amendment of the Partnership Agreement for the Operating Partnership | 193 | ||
Amendment by the General Partner Without the Consent of the Limited Partners | 193 | ||
Amendment with the Consent of the Limited Partners | 194 | ||
Procedures for Actions and Consents of Partners | 194 | ||
Dissolution | 194 | ||
DESCRIPTION OF SECURITIES |
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196 |
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General | 196 | ||
Common Stock | 196 | ||
Preferred Stock | 197 | ||
Power to Increase Authorized Stock and Issue Additional Shares of our Common Stock and Preferred Stock | 197 | ||
Restrictions on Transfer | 197 | ||
Transfer Agent and Registrar | 200 | ||
MATERIAL PROVISIONS OF MARYLAND LAW AND OF OUR CHARTER AND BYLAWS |
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201 |
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Our Board of Directors | 201 | ||
Removal of Directors | 201 | ||
Consideration of Non-Stockholder Constituencies | 201 | ||
Business Combinations | 201 | ||
Control Share Acquisitions | 202 | ||
ii
Subtitle 8 | 203 | ||
Interested Director and Officer Transactions | 203 | ||
Amendment to Our Charter | 204 | ||
Transactions Outside the Ordinary Course of Business | 204 | ||
Dissolution of Our Company | 204 | ||
Advance Notice of Director Nominations and New Business | 204 | ||
Anti-takeover Effect of Certain Provisions of Maryland Law and of Our Charter and Bylaws | 205 | ||
Indemnification and Limitation of Directors' and Officers' Liability | 205 | ||
Indemnification Agreements | 206 | ||
SHARES ELIGIBLE FOR FUTURE SALE |
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207 |
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General | 207 | ||
Rule 144 | 207 | ||
Redemption/Exchange Rights | 207 | ||
Registration Rights | 208 | ||
Omnibus Stock Incentive Plan | 208 | ||
Lock-up Agreements and Other Contractual Restrictions on Resale | 208 | ||
FEDERAL INCOME TAX CONSIDERATIONS |
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210 |
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Taxation of Douglas Emmett | 210 | ||
Tax Aspects of Investments in an Operating Partnership | 220 | ||
Taxation of Stockholders | 222 | ||
Other Tax Considerations | 226 | ||
ERISA CONSIDERATIONS |
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227 |
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UNDERWRITING |
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230 |
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Commissions and Expenses | 230 | ||
Option to Purchase Additional Shares | 230 | ||
Lock-Up Agreements | 231 | ||
Offering Price Determination | 232 | ||
Indemnification | 232 | ||
Directed Share Program | 232 | ||
Stabilization, Short Positions and Penalty Bids | 232 | ||
Electronic Distribution | 233 | ||
New York Stock Exchange | 233 | ||
Discretionary Sales | 234 | ||
Stamp Taxes | 234 | ||
Relationships | 234 | ||
European Economic Area | 234 | ||
United Kingdom | 234 | ||
LEGAL MATTERS |
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235 |
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EXPERTS |
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235 |
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WHERE YOU CAN FIND MORE INFORMATION |
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235 |
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INDEX TO FINANCIAL STATEMENTS |
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F-1 |
iii
You should rely only on the information contained in this document, in any free writing prospectus prepared by the Company in connection with this offering or to which we have referred you. We have not authorized anyone to provide you with information that is different. This document may only be used where it is legal to sell these securities. The information in this document may only be accurate on the date of this document.
We use market data and industry forecasts and projections throughout this prospectus. We have obtained substantially all of this information from market research prepared or used by Eastdil Secured, L.L.C., or Eastdil Secured, in the market study that it prepared for us in connection with this offering. Such information is included herein in reliance on Eastdil Secured's authority as an expert on such matters. See "Experts." The Eastdil Secured market study will be filed as an exhibit to the registration statement of which this prospectus forms a part. In addition, we have obtained certain market data and industry forecasts and projections from publicly available information and industry publications. These sources generally state that the information they provide has been obtained from sources believed to be reliable, but that the accuracy and completeness of the information are not guaranteed. The forecasts and projections are based on industry surveys and the preparers' experience in the industry and there is no assurance that any of the projected amounts will be achieved. We believe that the surveys and market research others have performed are reliable, but we have not independently verified this information.
As used in this prospectus, "fully diluted basis" assumes the exchange of all outstanding common operating partnership units in our limited partnership and all outstanding vested long-term incentive units for shares of our common stock on a one-for-one basis, and the exercise of all outstanding vested stock options (no additional options will vest within 60 days). In addition, "pro forma" or "on a pro forma basis" means that the information presented gives effect to this offering, as well as the formation transactions and the financing transactions (each as described herein), in each case as if such transactions had occurred on January 1, 2005 with respect to statement of operations data, and with respect to balance sheet data, as if such transactions had occurred on June 30, 2006. Additionally, the pro forma consolidated statements of operations are presented as if the acquisition of the Villas at Royal Kunia, consummated on March 1, 2006, along with the related financing, had occurred on January 1, 2005. As used in this prospectus, "competitive office space" means Class-A and Class-B multi-tenant office projects of 30,000 square feet and greater in size for Los Angeles County, excluding government, medical, and owner-user buildings, as defined by CB Richard Ellis. Except as otherwise specified, all references to ownership by our predecessor principals and executive officers of shares of our common stock or units in our operating partnership include beneficial ownership of such shares or units that may be attributed to such individuals by the rules of the Securities and Exchange Commission.
Until , 2006 (25 days after the date of this prospectus), all dealers effecting transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to a dealer's obligation to deliver a prospectus when acting as an underwriter and with respect to unsold allotments or subscriptions.
iv
You should read the following summary together with the more detailed information regarding our company, including under the caption "Risk Factors," as well as the financial information appearing elsewhere in this prospectus. Unless the context requires otherwise, references in this prospectus to "we," "our," "us" and "our company" refer to Douglas Emmett, Inc., a Maryland corporation, together with its consolidated subsidiaries after giving effect to the formation transactions described in this prospectus. Upon completion of this offering, our operations will be carried on through Douglas Emmett Properties, LP, a Delaware limited partnership, which we refer to in this prospectus as our operating partnership. Unless otherwise indicated, the information contained in this prospectus assumes that the underwriters' over-allotment option is not exercised and that the common stock to be sold in this offering is sold at $20.00 per share, the mid-point of the price range indicated on the cover page of this prospectus.
Douglas Emmett, Inc.
We are one of the largest owners and operators of high-quality office and multifamily properties in Los Angeles County, California and have a growing presence in Honolulu, Hawaii. Our presence in Los Angeles and Honolulu is the result of a consistent and focused strategy of identifying submarkets that are supply constrained, have high barriers to entry and exhibit strong economic characteristics such as population and job growth and a diverse economic base. In our office portfolio, we focus primarily on owning and acquiring a substantial share of top-tier office properties within these submarkets and which are located near high-end executive housing and key lifestyle amenities. In our multifamily portfolio, we focus primarily on owning and acquiring select properties at premier locations within these same submarkets. We believe our strategy generally allows us to achieve higher than market-average rents and occupancy levels, while also creating operating efficiencies.
As of June 30, 2006, our office portfolio consisted of 46 properties with approximately 11.6 million rentable square feet, and our multifamily portfolio consisted of nine properties with a total of 2,868 units. As of such date, our office portfolio was 93.1% leased, and our multifamily properties were 99.6% leased. Our office portfolio contributed approximately 84.7% of our annualized rent as of June 30, 2006, while our multifamily portfolio contributed approximately 15.3%. As of June 30, 2006, our Los Angeles County office and multifamily portfolio contributed approximately 90.8% of our annualized rent, and our Honolulu, Hawaii office and multifamily portfolio contributed approximately 9.2%.
Our properties are concentrated in nine premier Los Angeles County submarketsBrentwood, Olympic Corridor, Century City, Santa Monica, Beverly Hills, Westwood, Sherman Oaks/Encino, Warner Center/Woodland Hills and Burbankas well as in Honolulu, Hawaii. According to Eastdil Secured, most of our Los Angeles office portfolio and West Los Angeles multifamily properties could not be reproduced under current zoning and land-use regulations. Furthermore, given current market rents, construction costs and the lack of competitive development sites, Eastdil Secured estimates that our portfolio could not be replicated on a cost-competitive basis today.
Due to their superior locations and supply constraints in our submarkets, we believe that our existing properties are well positioned to provide continued cash flow growth and to continue to outperform our submarkets in terms of rental rates and occupancy. As of June 30, 2006, our average asking rents in our Los Angeles County office portfolio were at a 14.6% premium to our average in-place rents. Excluding the Warner Center/Woodland Hills submarket, where we acquired properties with significant vacancies in recent years, our occupancy rate was 96.1%, which reflects a 2.5 percentage point premium to that of our submarkets (including the Warner Center/Woodland Hills submarket, our occupancy rate reflects a 0.4 percentage point premium). In addition, in our West Los Angeles multifamily portfolio as of June 30, 2006, our weighted average asking rental rates were at a 32.4% premium to our average in-place rents, primarily as a result of historical rent control laws which now allow landlords to increase rents to market rates as tenants vacate.
1
Under the direction of our senior management team, our historical operating companies acquired and financed our existing portfolio, managed nine institutional funds and raised over $1.5 billion in equity capital primarily from university endowments, foundations, pension plans, banks, other institutional investors and high net worth individuals. Since the beginning of 1993, our senior management team has been responsible for the purchase of 55 properties, representing an aggregate investment of approximately $3.1 billion, or an average of approximately $230.0 million per year.
Our principal executive offices are located at 808 Wilshire Boulevard, Suite 200, Santa Monica, California 90401. Our telephone number is (310) 255-7700. Our website address is www.douglasemmett.com . The information on our website does not constitute a part of this prospectus. We intend to qualify as a REIT for federal income tax purposes commencing with our taxable year ending December 31, 2006.
Our Competitive Strengths
We believe that we distinguish ourselves from other owners and operators of office and multifamily properties through the following competitive strengths:
2
multifamily properties in West Los Angeles, consisting of 1,770 units, and two multifamily properties in Honolulu, Hawaii, consisting of 1,098 units. Four of our West Los Angeles properties are among the top quality multifamily communities in their market. The characteristics that make our submarkets attractive for office investment also provide the basis for our multifamily investment decisions in these same submarkets. As of June 30, 2006, our West Los Angeles multifamily properties had average asking rental rates of $2,477 per unit per month and were 99.5% leased, compared to average asking rental rates of $1,948 per unit per month and occupancy of 97.4% for the West Los Angeles multifamily market as a whole, for an asking rental rate premium of 27.1% and an occupancy premium of 2.1 percentage points.
submarkets, we have generally been able to increase the fixed annual rental rate increases in our leases from 3.0% per annum to 4.0% per annum for most of our leases signed since January 2006.
3
Business and Growth Strategies
Our primary business objective is to enhance stockholder value by increasing cash flow from operations. The strategies we intend to execute to achieve this goal include:
4
Market Information
We believe that the strength of the economies underlying our Los Angeles County, California and Honolulu, Hawaii submarkets provides a solid foundation for growth in rental and occupancy rates, and that the economic diversity and positive demographics of these submarkets will mitigate against downturns.
Los Angeles
According to Eastdil Secured, the Los Angeles region represents the second largest metropolitan economy in the nation, with a robust service sector, the nation's largest manufacturing base, and a leading presence in both the entertainment and defense industries. The Los Angeles region has prospered as a Pacific Rim transportation and distribution hub, with trade volume expected to surpass $330 billion in 2006. Los Angeles County represents the nation's second largest office market with a total inventory of approximately 368 million rentable square feet. Between 1995 and 2005, the Los Angeles region experienced a net gain of approximately 2.6 million residents, a 16.8% increase, outpacing the national average by 5.4 percentage points. Additionally, over this same period, total employment in the region grew by over 1.0 million jobs, a 17.7% increase, exceeding the national average by 3.1 percentage points.
Hawaii
Hawaii's economy is driven by a number of factors, including international trade and tourism from the mainland United States and Asia, the construction industry, financial services, and a significant U.S. military presence. Employment grew by 13.0% from 1995 to 2005, while population grew by 6.6% during the same period. In addition, as of June 30, 2006, Hawaii's unemployment rate averaged 3.1%, the third lowest in the nation. Hawaii's gross state product grew 7.8% and 6.5% in 2004 and 2005, respectively, and is expected to grow by 6.0% in 2006. The Honolulu CBD has the largest concentration of institutional quality office space in Hawaii, totaling over 5.1 million rentable square feet.
Summary Risk Factors
An investment in our common stock involves various risks, and prospective investors should carefully consider the matters discussed under "Risk Factors" prior to making an investment in our common stock. Such risks include, but are not limited to:
5
6
Our office and multifamily portfolio is located in nine premier Los Angeles County submarkets and Honolulu, Hawaii. The breakdown by submarket of our office and multifamily portfolio as of June 30, 2006 was as follows:
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Office
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Submarket
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Market
|
Number of
Properties |
Rentable
Square Feet (1) |
Percent
Leased (2) |
Annualized
Rent (3) |
Annualized
Rent Per Leased Square Foot (4) |
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Brentwood | West Los Angeles | 13 | 1,390,625 | 95.7 | % | $44,087,580 | $ | 34.18 | |||||||
Olympic Corridor | West Los Angeles | 4 | 922,405 | 90.0 | 21,956,484 | 27.36 | |||||||||
Century City | West Los Angeles | 2 | 866,039 | 93.0 | 25,992,540 | 32.85 | |||||||||
Santa Monica (5) | West Los Angeles | 7 | 860,159 | 99.2 | 35,963,820 | 43.20 | |||||||||
Beverly Hills | West Los Angeles | 4 | 571,869 | 97.8 | 20,224,728 | 37.37 | |||||||||
Westwood (6) | West Los Angeles | 2 | 396,728 | 95.2 | 11,552,748 | 32.76 | |||||||||
Sherman Oaks/Encino | San Fernando Valley | 9 | 2,878,769 | 97.4 | 72,728,976 | 27.37 | |||||||||
Warner Center/Woodland Hills (7) | San Fernando Valley | 2 | 2,567,814 | 84.1 | 53,301,516 | 26.23 | |||||||||
Burbank | Tri-Cities | 1 | 420,949 | 100.0 | 13,360,921 | 31.74 | |||||||||
Honolulu (8) | Honolulu | 2 | 678,940 | 90.2 | 16,734,948 | 30.12 | |||||||||
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Total/Weighted Average | 46 | 11,554,297 | 93.1 | % | $ | 315,904,261 | $ | 30.74 | |||||||
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Multifamily
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Submarket
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Market
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Number
of Properties |
Number
of Units |
Percent
Leased |
Annualized
Rent (9) |
Monthly
Rent Per Leased Unit |
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Brentwood | West Los Angeles | 5 | 950 | 99.5 | % | $21,673,245 | $ | 1,912 | ||||||
Santa Monica (10) | West Los Angeles | 2 | 820 | 99.6 | 17,886,817 | 1,824 | ||||||||
Honolulu | Honolulu | 2 | 1,098 | 99.6 | 17,533,030 | 1,336 | ||||||||
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Total/Weighted Average | 9 | 2,868 | 99.6 | % | $57,093,092 | $ | 1,666 | |||||||
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7
Structure and Formation of Our Company
Prior to completion of the formation transactions, our predecessor principals owned all of the outstanding interests in Douglas Emmett Realty Advisors, or DERA, Douglas Emmett and Company, or DECO, and P.L.E. Builders, Inc., or PLE, which we refer to as our historical operating companies. These entities provide asset management, property management, leasing, tenant improvement construction, acquisition, repositioning, redevelopment and financing services primarily to the properties owned, directly or indirectly, by the nine institutional funds and eight single-asset entities that we will acquire in the formation transactions. The institutional funds are owned by our predecessor principals, certain of their related parties and a number of unaffiliated private investors, consisting of endowments, foundations, pension plans, banks, other institutional investors and high net worth individuals. DERA is the general partner of each institutional fund. In addition, DERA is the general partner of three investment funds that own interests in certain of the institutional funds. Our predecessor principals, certain of our executive officers and unaffiliated third parties own the three investment funds. Our predecessor principals, together with their related parties, own a significant portion of the interests in the single-asset entities, and unaffiliated third parties own the remaining interests in the single-asset entities. Owners of the interests in the entities that we will acquire in the formation transactions, including our predecessor principals and certain of our executive officers, are referred to herein as the prior investors. Prior investors that will own units in our operating partnership or shares of our common stock following the consummation of the formation transactions are referred to in this prospectus as our continuing investors.
Prior to or concurrently with the completion of this offering, we will engage in formation transactions that are designed to:
We structured the formation transactions to minimize potential conflicts of interest. None of the predecessor principals or our executive officers elected to receive any cash in the formation transactions, and instead will receive only shares of our common stock and/or operating partnership units. They will, however, receive an estimated $5.8 million in cash in respect of a final distribution payable to all holders of interests in the pre-formation transaction entities in connection with the closing of the formation transactions. The predecessor principals also recently contributed an additional $60.0 million to DERA, the stock of which will be exchanged for shares of our common stock, valued at the initial public offering price to the public, in the formation transactions. In addition, we will not enter into any tax protection agreements in connection with the formation transactions.
Pursuant to the formation transactions, the following have occurred or will occur on or prior to the completion of this offering. All amounts are based on the mid-point of the range set forth on the cover page of this prospectus:
8
our predecessor principals elected to receive cash in the formation transactions. The formation transaction consideration does not include the pre-closing property distributions or the pre-closing operating company distributions described above, which are also payable at closing.
9
This requirement reflects our agreement with the prior investors that the proceeds from this offering should be used primarily to pay cash consideration in the formation transactions. In addition, the value of the total cash and equity consideration payable to prior investors must be at least $1.0 billion. Assuming an offering price based on the mid-point of the range of prices set forth on the cover page of this prospectus, we currently expect to pay to the prior investors $1.38 billion in cash and issue to the prior investors 50,512,427 operating partnership units and 58,617,573 shares of common stock in the aggregate in these merger and contribution transactions. The aggregate value of this consideration will be $3.57 billion. If the underwriters' over-allotment option is exercised in full, we expect to pay to the prior investors $1.55 billion in cash and issue to the prior investors 49,574,538 operating partnership units and 51,305,462 shares of common stock, with an aggregate consideration value of $3.57 billion. The aggregate consideration value does not include the pre-closing property distributions or the pre-closing operating company distributions described above.
10
Consequences of this Offering, the Formation Transactions and the Financing Transactions
The completion of this offering, the formation transactions and the financing transactions will have the following consequences. All amounts are based on the mid-point of the range set forth on the cover page of this prospectus:
The aggregate historical net tangible book value of the assets we will acquire in the formation transactions was approximately $478.0 million as of June 30, 2006. In exchange for these assets, we will assume or discharge $2.54 billion in indebtedness and preferred equity, and we will pay $1.38 billion in cash, and we will issue 50,512,427 operating partnership units and 58,617,573 shares of our common stock with a combined aggregate value for such cash, operating partnership units and common stock of $3.57 billion. If the underwriters' over-allotment option is exercised in full, we will assume or discharge $2.54 billion in indebtedness and preferred equity, and we will pay $1.55 billion in cash, and we will issue 49,574,538 operating partnership units and 51,305,462 shares of our common stock with a combined aggregate value for such cash, operating partnership units and common stock of $3.57 billion. The value of the operating partnership units and the common stock that we will issue for the assets to be acquired in the formation transactions will increase or decrease if our common stock price increases or decreases. The initial public offering price does not necessarily bear any relationship to the book value or the fair market value of our assets.
11
For an analysis of how this information would change if the share price in the offering is not equal to the mid-point of the range of prices set forth on the cover page of this prospectus, please refer to "Pricing Sensitivity Analysis" included elsewhere in this prospectus.
The following diagram depicts our ownership structure upon completion of this offering and the formation transactions, based on the mid-point of the range of prices set forth on the cover page of this prospectus. The diagram reflects outstanding vested LTIP units, but not stock options. (1)
12
Benefits to Related Parties
In connection with this offering, employment arrangements, the formation transactions and the financing transactions, our predecessor principals and certain of our executive officers will receive material benefits, including the following. All amounts are based on the mid-point of the range set forth on the cover page of this prospectus:
13
Continuing investors, including our predecessor principals, holding shares of our common stock or units in our operating partnership as a result of the formation transactions will have rights beginning 14 months after the completion of this offering:
We have not obtained any third-party appraisals of the properties and other assets to be acquired by us in connection with this offering or the formation transactions. The consideration to be given by us for our properties and other assets in the formation transactions may exceed the fair market value of these properties and assets. See "Risk FactorsRisks Related to Our Properties and Our BusinessThe price we will pay for the assets to be acquired by us in the formation transactions may exceed their aggregate fair market value."
14
For an analysis of how this information would change if the share price in the offering is not equal to the mid-point of the range of prices set forth on the cover page of this prospectus, please refer to "Pricing Sensitivity Analysis" included elsewhere in this prospectus.
Restrictions on Transfer
Under the agreement governing our operating partnership, holders of units in our operating partnership do not have redemption or exchange rights and may not otherwise transfer their units, except under certain limited circumstances, for a period of 14 months after consummation of this offering. In addition, the predecessor principals and our executive officers and directors have agreed with the underwriters, subject to certain exceptions, not to sell or otherwise transfer or encumber any shares of our common stock or securities convertible or exchangeable into common stock (including units in our operating partnership) owned by them at the completion of this offering or thereafter acquired by them for a period of 360 days after the completion of this offering. All other continuing investors have agreed with the underwriters, subject to certain exceptions, not to sell or otherwise transfer or encumber any such securities owned by them at the completion of this offering for a period of 180 days after the completion of this offering. Such transfer restrictions may be lifted with the consent of each of Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Citigroup Global Markets Inc.
Restrictions on Ownership of Our Capital Stock
Our charter documents generally prohibit any person from actually or constructively owning more than 5.0% of the outstanding shares of our common stock, subject to certain exceptions. Our charter documents, however, permit exceptions to be made for stockholders with the approval of our board of directors.
Conflicts of Interest
Following the completion of this offering, there will be conflicts of interest with respect to certain transactions between the holders of units in our operating partnership and our stockholders. In particular, the consummation of certain business combinations, the sale of any properties or a reduction of indebtedness could have adverse tax consequences to holders of units in our operating partnership, which would make those transactions less desirable to holders of such units. Our predecessor principals and certain of our executive officers will hold both operating partnership units and shares of our common stock upon completion of this offering and the formation transactions.
Our predecessor principals and certain of our executive officers have ownership interests in our historical operating companies, the institutional funds, the investment funds and/or the single-asset entities that we will acquire in the formation transactions upon completion of this offering. Pursuant to a representation, warranty and indemnity agreement that we have entered into with our predecessor principals as part of the formation transactions, our predecessor principals made limited representations and warranties to us regarding potential material adverse impacts on the entities and assets to be acquired by us in a formation transactions and agreed to indemnify us and our operating partnership for breaches of such representations and warranties. Such indemnification is limited, however, to $20.0 million in shares of our common stock and operating partnership units to be deposited into an escrow fund at closing of the formation transactions (or, if less, the fair market value of such shares and units) and is subject to a $1.0 million deductible. See "Risk FactorsWe may pursue less vigorous enforcement of terms of merger and other agreements because of conflicts of interest with certain of our officers." In addition, we expect that certain of our predecessor principals and executive officers will enter into employment agreements with us pursuant to which they will agree, among other things, not to engage in certain business activities in competition with us and pursuant to which they will devote substantially full-time attention to our affairs. See "ManagementEmployment Agreements."
15
We may choose not to enforce, or to enforce less vigorously, our rights under these agreements due to our ongoing relationship with our predecessor principals and our executive officers.
We did not conduct arm's-length negotiations with our predecessor principals with respect to all of the terms of the formation transactions. In the course of structuring the formation transactions, our predecessor principals had the ability to influence the type and level of benefits that they and our other officers will receive from us. In addition, we have not obtained any third-party appraisals of the properties and other assets to be acquired by us from the prior investors, including our predecessor principals and certain of our executive officers, in connection with the formation transactions. As a result, the price to be paid by us to the prior investors, including our predecessor principals and certain of our executive officers, for the acquisition of the assets in the formation transactions may exceed the fair market value of those assets.
We have adopted policies that are designed to eliminate or minimize certain potential conflicts of interest, and the limited partners of our operating partnership have agreed that in the event of a conflict in the fiduciary duties owed by us to our stockholders and, in our capacity as general partner of our operating partnership, to such limited partners, we are under no obligation to give priority to the interests of such limited partners. See "Policies with Respect to Certain ActivitiesConflict of Interest Policies" and "Description of the Partnership Agreement of Douglas Emmett Properties, LP."
16
Common stock offered by us | 55,000,000 shares | |
Common stock to be outstanding after this offering |
|
113,617,573 shares (1) |
Common stock and units in our operating partnership to be outstanding after this offering |
|
165,000,000 shares / units (2) |
Common stock and units in our operating partnership to be outstanding after this offering, assuming full exercise of the underwriters' over-allotment option |
|
165,000,000 shares / units (2)(3) |
Use of proceeds (3) |
|
We intend to use the net proceeds of this offering to pay a portion of the cash consideration to prior investors due in connection with the formation transactions. |
New York Stock Exchange symbol |
|
"DEI" |
Dividend Policy
We intend to pay cash dividends to holders of our common stock. We intend to pay a pro rata dividend with respect to the period commencing on the completion of this offering and ending December 31, 2006 based on $0.175 per share for a full quarter. On an annualized basis, this would be $0.70 per share, or an annual dividend rate of approximately 3.5%, based on the mid-point of the range set forth on the cover page of this prospectus. We intend to maintain our initial dividend rate for the twelve month period following completion of this offering unless actual results of operations, economic conditions or other factors differ materially from the assumptions used in our estimate. Dividends made by us will be authorized and determined by our board of directors in its sole discretion out of funds legally available therefor and will be dependent upon a number of factors, including restrictions under applicable law and the capital requirements of our company. We do not intend to reduce the expected dividend per share if the underwriters' over-allotment option is exercised.
17
Our Tax Status
We intend to be taxed as a REIT under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended, or the Code, commencing with our taxable year ending December 31, 2006. We believe that our organization and proposed method of operation will enable us to meet the requirements for qualification and taxation as a REIT for federal income tax purposes. To maintain REIT status, we must meet a number of organizational and operational requirements, including a requirement that we annually distribute at least 90% of our REIT taxable income to our stockholders. As a REIT, we generally will not be subject to federal income tax on REIT taxable income we currently distribute to our stockholders. If we fail to qualify as a REIT in any taxable year, we will be subject to federal income tax at regular corporate rates. Even if we qualify for taxation as a REIT, we may be subject to some federal, state and local taxes on our income or property. See "Federal Income Tax Considerations."
18
Summary Historical and Pro Forma Financial and Operating Data
The following table sets forth summary financial and operating data on (1) a pro forma basis for our company (which includes the historical operating companies, the institutional funds and the single-asset entities) and (2) an historical basis for our "predecessor." Our "predecessor" includes DERA, as the accounting acquirer, and the institutional funds, and excludes DECO, PLE and the single-asset entities. Our predecessor owned 42 office properties, the fee interest in two parcels of land that we lease to third parties under long-term ground leases and six multifamily properties as of June 30, 2006. DERA consolidated the institutional funds because it had control over major decisions, including decisions related to property sales or refinancings. We have not presented historical financial information for Douglas Emmett, Inc. because we have not had any corporate activity since our formation other than the issuance of shares of common stock in connection with the initial capitalization of our company and activity in connection with this offering, the formation transactions and the financing transactions, and because we believe that a discussion of the results of Douglas Emmett, Inc. would not be meaningful. In addition, we have not presented historical financial information for DECO, PLE or the single-asset entities because we believe that a discussion of the predecessor is more meaningful.
You should read the following summary financial and operating data in conjunction with "Management's Discussion and Analysis of Financial Condition and Results of Operation," our unaudited pro forma consolidated financial statements and related notes, the audited consolidated historical financial statements and related notes of our predecessor, and the other financial statements included elsewhere in this prospectus.
The summary historical consolidated financial and operating data as of and for the years ended December 31, 2003, 2004 and 2005 have been derived from the audited historical consolidated financial statements of our predecessor. The summary historical consolidated balance sheet information as of June 30, 2006 and the consolidated statements of operations data for the six months ended June 30, 2005 and 2006 have been derived from the unaudited consolidated financial statements of our predecessor. In the opinion of management, the summary unaudited historical consolidated financial information for the interim periods presented includes all adjustments (consisting of only normal recurring adjustments) necessary to present fairly the information set forth therein. Our results of operations for interim periods are not necessarily indicative of the results to be obtained for the full fiscal year.
Our summary unaudited pro forma consolidated financial and operating data have been derived from our unaudited pro forma consolidated financial statements included elsewhere in this prospectus and assume a share price in this offering at the mid-point of the range set forth on the cover page of this prospectus. Our unaudited pro forma consolidated financial and operating data as of and for the six months ended June 30, 2006 and for the year ended December 31, 2005 are derived from the audited and unaudited financial statements of our predecessor, DECO, PLE, and the single-asset entities included elsewhere in this prospectus and are presented as if the formation transactions, the financing transactions, this offering, the $60.0 million DERA contribution and the application of the net proceeds thereof, had all occurred on June 30, 2006 for the pro forma consolidated balance sheet and on January 1, 2005 for the pro forma consolidated statements of operations. Additionally the pro forma consolidated statements of operations are presented as if the acquisition of the Villas at Royal Kunia, consummated on March 1, 2006, along with the related financing, had occurred on January 1, 2005.
19
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Six Months Ended June 30,
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Year Ended December 31,
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Company
Pro Forma |
Historical
Predecessor |
Company
Pro Forma |
Historical Predecessor
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2006
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2006
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2005
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2005
|
2005
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2004
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2003
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|||||||||||
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(Unaudited)
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(Unaudited)
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(Unaudited)
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(Unaudited)
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|
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|||||||||||
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(In thousands) |
|||||||||||||||||
Statement of Operations Data: | ||||||||||||||||||
Revenues: | ||||||||||||||||||
Office rental: | ||||||||||||||||||
Rental revenue (1) | $175,792 | $150,519 | $144,200 | $338,150 | $297,551 | $249,402 | $246,369 | |||||||||||
Tenant recoveries | 9,101 | 8,903 | 6,599 | 14,979 | 14,632 | 9,439 | 9,386 | |||||||||||
Parking and other income | 20,470 | 20,031 | 18,648 | 37,123 | 36,383 | 27,797 | 27,557 | |||||||||||
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|
|
|
|
|
|
||||||||||||
Total office revenue | 205,363 | 179,453 | 169,447 | 390,252 | 348,566 | 286,638 | 283,312 | |||||||||||
Multifamily rental: |
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|
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|
|
|
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Rental revenue (2) | 30,198 | 25,900 | 21,360 | 61,015 | 43,942 | 32,787 | 31,070 | |||||||||||
Parking and other income | 944 | 824 | 560 | 1,909 | 1,280 | 1,006 | 924 | |||||||||||
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Total multifamily revenue | 31,142 | 26,724 | 21,920 | 62,924 | 45,222 | 33,793 | 31,994 | |||||||||||
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Total revenue | 236,505 | 206,177 | 191,367 | 453,176 | 393,788 | 320,431 | 315,306 | |||||||||||
Operating Expenses: |
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Office rental | 57,902 | 61,132 | 59,021 | 113,939 | 119,879 | 103,407 | 96,771 | |||||||||||
Multifamily rental | 8,427 | 8,696 | 7,315 | 16,312 | 15,347 | 13,219 | 11,765 | |||||||||||
General and administrative expenses | 7,354 | 3,136 | 3,193 | 14,997 | 6,457 | 5,646 | 5,195 | |||||||||||
Depreciation and amortization (3) | 98,714 | 53,616 | 57,672 | 221,720 | 113,170 | 91,306 | 92,559 | |||||||||||
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Total operating expenses | 172,397 | 126,580 | 127,201 | 366,968 | 254,853 | 213,578 | 206,290 | |||||||||||
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|
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Operating income | 64,108 | 79,597 | 64,166 | 86,208 | 138,935 | 106,853 | 109,016 | |||||||||||
Gain on investment in interest contracts, net |
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|
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59,967 |
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6,300 |
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|
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81,666 |
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37,629 |
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23,583 |
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Interest and other income | 1,715 | 2,548 | 746 | 544 | 2,264 | 1,463 | 514 | |||||||||||
Interest expense (4) | (85,399 | ) | (58,055 | ) | (52,356 | ) | (175,846 | ) | (115,674 | ) | (95,125 | ) | (94,783 | ) | ||||
Deficit recovery (distributions) from/(to) minority partners, net (5) | | 6,248 | (47,652 | ) | | (28,150 | ) | (57,942 | ) | | ||||||||
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Income (loss) before minority interest expense | (19,576 | ) | 90,305 | (28,796 | ) | (89,094 | ) | 79,041 | (7,122 | ) | 38,330 | |||||||
Minority Interest: |
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Minority interest expense in consolidated real estate partnerships | | (64,434 | ) | (8,843 | ) | | (79,756 | ) | (47,144 | ) | (30,944 | ) | ||||||
Minority interest in operating partnership | (6,096 | ) | (27,744 | ) | | | | |||||||||||
Preferred minority investor | | (8,050 | ) | (7,755 | ) | | (15,805 | ) | (2,499 | ) | | |||||||
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|
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Income (loss) from continuing operations | (13,480 | ) | 17,821 | (45,394 | ) | (61,350 | ) | (16,520 | ) | (56,765 | ) | 7,386 | ||||||
Income from discontinued operations, net of minority interest | | | | | | 174 | 239 | |||||||||||
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|
|
|
|
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||||||||||||
Net income / (loss) | $(13,480 | ) | $17,821 | $(45,394 | ) | $(61,350 | ) | $(16,520 | ) | $(56,591 | ) | $7,625 | ||||||
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20
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Six Months Ended June 30,
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Year Ended December 31,
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Company
Pro Forma |
Historical
Predecessor |
Company
Pro Forma |
Historical Predecessor
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2006
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2006
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2005
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2005
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2004
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2003
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||||||||||||||
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(Unaudited)
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(Unaudited)
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(Unaudited)
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||||||||||||||
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(In thousands except per share data) |
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Balance Sheet Data (at end of period): | ||||||||||||||||||||
Investment in real estate, net | $ | 5,864,616 | $ | 2,707,477 | | $ | 2,622,484 | $ | 2,398,980 | $ | 2,222,854 | |||||||||
Total assets | 6,084,744 | 3,056,568 | | 2,904,647 | 2,585,697 | 2,356,296 | ||||||||||||||
Secured notes payable | 2,781,000 | 2,305,500 | | 2,223,500 | 1,982,655 | 1,716,200 | ||||||||||||||
Total liabilities | 3,112,014 | 2,401,940 | | 2,313,922 | 2,069,473 | 1,842,971 | ||||||||||||||
Minority interests in real estate partnerships | | 741,694 | | 688,516 | 579,838 | 496,838 | ||||||||||||||
Minority interests in operating partnership | 925,738 | | | | | | ||||||||||||||
Stockholders' / owners' equity | 2,046,992 | (87,066 | ) | | (97,791 | ) | (63,614 | ) | 16,487 | |||||||||||
Total liabilities and stockholders' / owners' equity | 6,084,744 | 3,056,568 | | 2,904,647 | 2,585,697 | 2,356,296 | ||||||||||||||
Per Share Data: |
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Pro forma earnings (loss) per sharebasic and diluted | ||||||||||||||||||||
Pro forma weighted average common shares outstandingbasic and diluted | ||||||||||||||||||||
Other Data: |
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Cash flows from | ||||||||||||||||||||
Operating activities | 69,967 | 127,811 | 92,767 | 113,950 | ||||||||||||||||
Investing activities | (138,340 | ) | (231,157 | ) | (223,574 | ) | 2,163 | |||||||||||||
Financing activities | 60,593 | 103,768 | 167,817 | (116,322 | ) | |||||||||||||||
Funds from operations before minority interest (6) | $79,138 | $132,626 | ||||||||||||||||||
EBITDA before minority interest (7) | 164,537 | 308,472 | ||||||||||||||||||
Number of properties (at end of period) | 55 | 48 | 55 | 47 | 45 | 43 |
21
to maintain the operating performance of our properties, all of which have real economic effect and could materially impact our results from operations, the utility of FFO as a measure of our performance is limited. Other equity REITs may not calculate FFO in accordance with the NAREIT definition and, accordingly, our FFO may not be comparable to such other REITs' FFO. Accordingly, FFO should be considered only as a supplement to net income as a measure of our performance. FFO should not be used as a measure of our liquidity, nor is it indicative of funds available to fund our cash needs, including our ability to pay dividends. FFO should not be used as a supplement to or substitute for cash flow from operating activities computed in accordance with GAAP. The following table sets forth a reconciliation of our pro forma funds from operations before minority interests to net loss for the periods presented (in thousands):
|
Pro Forma
|
|||||||
---|---|---|---|---|---|---|---|---|
|
Six Months
Ended June 30, 2006 |
Year Ended
December 31, 2005 |
||||||
Net loss | $(13,480 | ) | $ | (61,350 | ) | |||
Adjustments: | ||||||||
Minority interest in operating partnership | (6,096 | ) | (27,744 | ) | ||||
Real estate depreciation and amortization | 98,714 | 221,720 | ||||||
|
|
|||||||
Funds from operations before minority interest (a) | $ | 79,138 | $ | 132,626 | ||||
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|
|
Pro Forma
|
|||||||
---|---|---|---|---|---|---|---|---|
|
Six Months
Ended June 30, 2006 |
Year Ended
December 31, 2005 |
||||||
Net loss | $(13,480 | ) | $ | (61,350 | ) | |||
Adjustments: | ||||||||
Interest expense | 85,399 | 175,846 | ||||||
Depreciation and amortization | 98,714 | 221,720 | ||||||
Minority interest in operating partnership | (6,096 | ) | (27,744 | ) | ||||
|
|
|||||||
EBITDA before minority interest (a) | $ | 164,537 | $ | 308,472 | ||||
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22
Investment in our common stock involves risks. In addition to other information contained in this prospectus, you should carefully consider the following factors before acquiring shares of common stock offered by this prospectus. The occurrence of any of the following risks might cause you to lose all or part of your investment. Some statements in this prospectus, including statements in the following risk factors, constitute forward-looking statements. Please refer to the section entitled "Forward-Looking Statements."
Risks Related to Our Properties and Our Business
All of our properties are located in Los Angeles County, California and Honolulu, Hawaii, and we are dependent on the Southern California and Honolulu economies and are susceptible to adverse local regulations and natural disasters in those areas.
Because all of our properties are concentrated in Los Angeles County, California and Honolulu, Hawaii, we are exposed to greater economic risks than if we owned a more geographically dispersed portfolio. Further, within Los Angeles County, our properties are concentrated in certain submarkets, exposing us to risks associated with those specific areas. We are susceptible to adverse developments in the Los Angeles County, Southern California and Honolulu economic and regulatory environment (such as business layoffs or downsizing, industry slowdowns, relocations of businesses, increases in real estate and other taxes, costs of complying with governmental regulations or increased regulation and other factors) as well as natural disasters that occur in these areas (such as earthquakes, floods and other events). In addition, the State of California is also regarded as more litigious and more highly regulated and taxed than many states, which may reduce demand for office space in California. Any adverse developments in the economy or real estate market in Los Angeles County, Southern California in general, or Honolulu, or any decrease in demand for office space resulting from the California or Honolulu regulatory or business environment, could adversely impact our financial condition, results of operations, cash flow, the per share trading price of our common stock and our ability to satisfy our debt service obligations and to pay dividends to you. We cannot assure you of the continued growth of the Los Angeles County, Southern California or Honolulu economies or of our future growth rate.
The price we will pay for the assets to be acquired by us in the formation transactions may exceed their aggregate fair market value.
We have not obtained any third-party appraisals of the properties and other assets to be acquired by us from certain of our affiliates and from unaffiliated third parties in connection with this offering or the formation transactions. The value of the cash, units in our operating partnership and shares of our common stock that we will pay or issue as consideration for the assets that we will acquire will increase or decrease if our common stock is priced above or below the mid-point of the range shown on the front cover of this prospectus. The initial public offering price of our common stock will be determined in consultation with the underwriters based on the history and prospects for the industry in which we compete, our financial information, the ability of our management and our business potential and earning prospects, the prevailing securities markets at the time of this offering, and the recent market prices of, and the demand for, publicly traded shares of generally comparable companies. The initial public offering price does not necessarily bear any relationship to the book value or the fair market value of such assets. As a result, the price to be paid by us to these affiliates and third parties for the acquisition of the assets in the formation transactions may exceed the fair market value of those assets. The aggregate historical combined net tangible book value of the assets to be acquired by us in the formation transactions was approximately $478.0 million as of June 30, 2006.
23
Our operating performance is subject to risks associated with the real estate industry.
Real estate investments are subject to various risks and fluctuations and cycles in value and demand, many of which are beyond our control. Certain events may decrease cash available for dividends, as well as the value of our properties. These events include, but are not limited to:
In addition, periods of economic slowdown or recession, rising interest rates or declining demand for real estate, or the public perception that any of these events may occur, could result in a general decline in rents or an increased incidence of defaults under existing leases. If we cannot operate our properties to meet our financial expectations, our financial condition, results of operations, cash flow, per share trading price of our common stock and ability to satisfy our debt service obligations and to pay dividends to you could be adversely affected. There can be no assurance that we can achieve our return objectives.
We will have a substantial amount of indebtedness outstanding following this offering, which may affect our ability to pay dividends, may expose us to interest rate fluctuation risk and may expose us to the risk of default under our debt obligations.
As of June 30, 2006, on a pro forma basis, our total consolidated indebtedness would have been approximately $2.75 billion, excluding loan premium, and we may incur significant additional debt for various purposes, including, without limitation, to fund future acquisition and development activities and operational needs. Upon completion of this offering, we expect to have an additional $250.0 million available for use under our senior secured revolving credit facility, assuming a pricing at the mid-point of the range set forth on the cover page of this prospectus. Our senior secured revolving credit facility will also contain an accordion feature that will allow us to increase the availability thereunder by $250.0 million upon specified circumstances.
24
Payments of principal and interest on borrowings may leave us with insufficient cash resources to operate our properties or to pay the distributions currently contemplated or necessary to maintain our REIT qualification. Our substantial outstanding indebtedness, and the limitations imposed on us by our debt agreements, could have significant other adverse consequences, including the following:
If any one of these events were to occur, our financial condition, results of operations, cash flow, per share trading price of our common stock and our ability to satisfy our debt service obligations and to pay dividends to you could be adversely affected. In addition, any foreclosure on our properties could create taxable income without accompanying cash proceeds, which could adversely affect our ability to meet the REIT distribution requirements imposed by the Code.
The actual rents we receive for the properties in our portfolio may be less than our asking rents, and we may experience lease roll down from time to time.
Throughout this prospectus, we make certain comparisons between our asking rents and our in-place rents, and between our asking rents and average asking rents in our submarkets. As a result of various factors, including competitive pricing pressure in our submarkets, adverse conditions in the Los Angeles County or Honolulu real estate market, a general economic downturn and the desirability of our properties compared to other properties in our submarkets, we may be unable to realize such asking rents across the properties in our portfolio. In addition, the degree of discrepancy between our asking rents and the actual rents we are able to obtain may vary both from property to property and among different leased spaces within a single property. If we are unable to obtain rental rates that are on average comparable to our asking rents across our portfolio, then our ability to generate cash flow growth will be negatively impacted. In addition, depending on asking rental rates at any given time as compared to expiring leases in our portfolio, from time to time rental rates for expiring leases may be higher than starting rental rates for new leases.
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Potential losses, including from adverse weather conditions, natural disasters and title claims, may not be covered by insurance.
Our business operations in Southern California and Honolulu, Hawaii are susceptible to, and could be significantly affected by, adverse weather conditions and natural disasters such as earthquakes, tsunamis, hurricanes, volcanoes, wind, floods, landslides and fires. These adverse weather conditions and natural disasters could cause significant damage to the properties in our portfolio, the risk of which is enhanced by the concentration of our properties' locations. Our insurance may not be adequate to cover business interruption or losses resulting from adverse weather or natural disasters. In addition, our insurance policies include substantial self insurance portions and significant deductibles and co-payments for such events, and recent hurricanes in the United States have affected the availability and price of such insurance. As a result, we may be required to incur significant costs in the event of adverse weather conditions and natural disasters. We may discontinue earthquake or any other insurance coverage on some or all of our properties in the future if the cost of premiums for any of these policies in our judgment exceeds the value of the coverage discounted for the risk of loss.
Furthermore, we do not carry insurance for certain losses, including, but not limited to, losses caused by certain environmental conditions, such as mold or asbestos, riots or war. In addition, our title insurance policies may not insure for the current aggregate market value of our portfolio, and we do not intend to increase our title insurance coverage as the market value of our portfolio increases. As a result, we may not have sufficient coverage against all losses that we may experience, including from adverse title claims.
If we experience a loss that is uninsured or which exceeds policy limits, we could incur significant costs, lose the capital invested in the damaged properties as well as the anticipated future cash flows from those properties. In addition, if the damaged properties are subject to recourse indebtedness, we would continue to be liable for the indebtedness, even if these properties were irreparably damaged.
In addition, many of our properties could not be rebuilt to their existing height or size at their existing location under current land-use laws and policies. In the event that we experience a substantial or comprehensive loss of one of our properties, we may not be able to rebuild such property to its existing specifications and otherwise may have to upgrade such property to meet current code requirements.
Terrorism and other factors affecting demand for our properties could harm our operating results.
The strength and profitability of our business depends on demand for and the value of our properties. Future terrorist attacks in the United States, such as the attacks that occurred in New York and Washington, D.C. on September 11, 2001, and other acts of terrorism or war may have a negative impact on our operations. Such terrorist attacks could have an adverse impact on our business even if they are not directed at our properties. In addition, the terrorist attacks of September 11, 2001 have substantially affected the availability and price of insurance coverage for certain types of damages or occurrences, and our insurance policies for terrorism include large deductibles and co-payments. The lack of sufficient insurance for these types of acts could expose us to significant losses and could have a negative impact on our operations.
We face intense competition, which may decrease or prevent increases of the occupancy and rental rates of our properties.
We compete with a number of developers, owners and operators of office and multifamily real estate, many of which own properties similar to ours in the same markets in which our properties are located. If our competitors offer space at rental rates below current market rates, or below the rental rates we currently charge our tenants, we may lose existing or potential tenants and we may be pressured to reduce our rental rates below those we currently charge or to offer more substantial rent abatements, tenant improvements, early termination rights or below-market renewal options in order to
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retain tenants when our tenants' leases expire. In that case, our financial condition, results of operations, cash flow, per share trading price of our common stock and ability to satisfy our debt service obligations and to pay dividends to you may be adversely affected.
In addition, all of our multifamily properties are located in developed areas that include a significant number of other multifamily properties, as well as single-family homes, condominiums and other residential properties. The number of competitive multifamily and other residential properties in a particular area could have a material adverse effect on our ability to lease units and on our rental rates.
We may be unable to renew leases or lease vacant space .
As of June 30, 2006, leases representing approximately 5.9% of the square footage of the properties in our office portfolio will expire in the remainder of 2006, and an additional approximately 6.9% of the square footage of the properties in our office portfolio was available for lease. In addition, as of June 30, 2006, approximately 0.4% of the units in our multifamily portfolio was available for lease, and substantially all of the leases in our multifamily portfolio are renewable on an annual basis at the tenant's option and, if not renewed or terminated, automatically convert to month-to-month. We cannot assure you that leases will be renewed or that our properties will be re-leased at rental rates equal to or above our existing rental rates or that substantial rent abatements, tenant improvements, early termination rights or below-market renewal options will not be offered to attract new tenants or retain existing tenants. Accordingly, portions of our office and multifamily properties may remain vacant for extended periods of time. In addition, some existing leases currently provide tenants with options to renew the terms of their leases at rates that are less than the current market rate or to terminate their leases prior to the expiration date thereof.
Furthermore, as part of our business strategy, we have focused and intend to continue to focus on securing smaller-sized companies as tenants for our office portfolios. Smaller tenants may present greater credit risks and be more susceptible to economic downturns than larger tenants, and may be more likely to cancel or elect not to renew their leases. In addition, we intend to actively pursue opportunities for what we believe to be well-located and high quality buildings that may be in a transitional phase due to current or impending vacancies. We cannot assure you that any such vacancies will be filled following a property acquisition, or that any new tenancies will be established at or above-market rates. If the rental rates for our properties decrease or other tenant incentives increase, our existing tenants do not renew their leases or we do not re-lease a significant portion of our available space, our financial condition, results of operations, cash flow, per share trading price of our common stock and our ability to satisfy our debt service obligations and to pay dividends to you would be adversely affected.
Real estate investments are generally illiquid.
The real estate investments made, and to be made, by us are relatively difficult to sell quickly. Return of capital and realization of gains, if any, from an investment generally will occur upon disposition or refinance of the underlying property. We may be unable to realize our investment objectives by sale, other disposition or refinance at attractive prices within any given period of time or may otherwise be unable to complete any exit strategy. In particular, these risks could arise from weakness in or even the lack of an established market for a property, changes in the financial condition or prospects of prospective purchasers, changes in national or international economic conditions, and changes in laws, regulations or fiscal policies of jurisdictions in which the property is located. Furthermore, the value of our Studio Plaza and One Westwood properties may be adversely affected by the contractual rights of first offer that exist with respect to such properties. We may give similar contractual rights in the future, which could affect the value of the subject property.
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Because we own real property, we are subject to extensive environmental regulation, which creates uncertainty regarding future environmental expenditures and liabilities.
Environmental laws regulate, and impose liability for, releases of hazardous or toxic substances into the environment. Under various provisions of these laws, an owner or operator of real estate is or may be liable for costs related to soil or groundwater contamination on, in, or migrating to or from its property. In addition, persons who arrange for the disposal or treatment of hazardous or toxic substances may be liable for the costs of cleaning up contamination at the disposal site. Such laws often impose liability regardless of whether the person knew of, or was responsible for, the presence of the hazardous or toxic substances that caused the contamination. The presence of, or contamination resulting from, any of these substances, or the failure to properly remediate them, may adversely affect our ability to sell or rent our property or to borrow using such property as collateral. In addition, persons exposed to hazardous or toxic substances may sue for personal injury damages. For example, some laws impose liability for release of or exposure to asbestos-containing materials, a substance known to be present in a number of our buildings. In other cases, some of our properties have been (or may have been) impacted by contamination from past operations or from off-site sources. As a result, in connection with our current or former ownership, operation, management and development of real properties, we may be potentially liable for investigation and cleanup costs, penalties, and damages under environmental laws.
Although most of our properties have been subjected to preliminary environmental assessments, known as Phase I assessments, by independent environmental consultants that identify certain liabilities, Phase I assessments are limited in scope, and may not include or identify all potential environmental liabilities or risks associated with the property. Unless required by applicable laws or regulations, we may not further investigate, remedy or ameliorate the liabilities disclosed in the Phase I assessments.
We cannot assure you that these or other environmental studies identified all potential environmental liabilities, or that we will not incur material environmental liabilities in the future. If we do incur material environmental liabilities in the future, we may face significant remediation costs, and we may find it difficult to sell any affected properties.
We may incur significant costs complying with laws, regulations and covenants that are applicable to our properties.
The properties in our portfolio are subject to various covenants and local laws and regulatory requirements, including permitting and licensing requirements. Local regulations, including municipal or local ordinances, zoning restrictions and restrictive covenants imposed by community developers may restrict our use of our properties and may require us to obtain approval from local officials or community standards organizations at any time with respect to our properties, including prior to acquiring a property or when undertaking renovations of any of our existing properties. Among other things, these restrictions may relate to fire and safety, seismic, asbestos-cleanup or hazardous material abatement requirements. There can be no assurance that existing regulatory policies will not adversely affect us or the timing or cost of any future acquisitions or renovations, or that additional regulations will not be adopted that increase such delays or result in additional costs. Our growth strategy may be affected by our ability to obtain permits, licenses and zoning relief. Our failure to obtain such permits, licenses and zoning relief could have a material adverse effect on our business, financial condition and results of operations.
In addition, federal and state laws and regulations, including laws such as the ADA, impose further restrictions on our operations. Under the ADA, all public accommodations must meet federal requirements related to access and use by disabled persons. Some of our properties may currently be in non-compliance with the ADA. If one or more of the properties in our portfolio is not in compliance with the ADA or any other regulatory requirements, we may be required to incur additional costs to bring the property into compliance and we might incur governmental fines. In addition, we do not
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know whether existing requirements will change or whether future requirements will require us to make significant unanticipated expenditures that will adversely impact our financial condition, results of operations, cash flow, the per share trading price of our common stock and our ability to satisfy our debt service obligations and to pay dividends to you.
Rent control or rent stabilization legislation and other regulatory restrictions may limit our ability to increase rents and pass through new or increased operating costs to our tenants.
Certain states and municipalities have adopted laws and regulations imposing restrictions on the timing or amount of rent increases or have imposed regulations relating to low- and moderate-income housing. Currently, neither California nor Hawaii have state mandated rent control, but various municipalities within Southern California, such as the City of Los Angeles and Santa Monica, have enacted rent control legislation. All but one of the properties in our Los Angeles County multifamily portfolio are affected by these laws and regulations. In addition, we have agreed to provide low- and moderate-income housing in many of the units in our Honolulu multifamily portfolio in exchange for certain tax benefits. We presently expect to continue operating and acquiring properties in areas that either are subject to these types of laws or regulations or where legislation with respect to such laws or regulations may be enacted in the future. Such laws, regulations and contracts limit our ability to charge market rents, increase rents, evict tenants or recover increases in our operating expenses and could make it more difficult for us to dispose of properties in certain circumstances. Similarly, compliance procedures associated with rent control statutes and low- and moderate-income housing regulations could have a negative impact on our operating costs, and any failure to comply with low- and moderate-income housing regulations could result in the loss of certain tax benefits and the forfeiture of rent payments. In addition, such low- and moderate-income housing regulations require us to rent a certain number of units at below-market rents, which has a negative impact on our ability to increase cash flow from our properties subject to such regulations. Furthermore, such regulations may negatively impact our ability to attract higher-paying tenants to such properties.
We may be unable to complete acquisitions that would grow our business, and even if consummated, we may fail to successfully integrate and operate acquired properties.
Our planned growth strategy includes the disciplined acquisition of properties as opportunities arise. Our ability to acquire properties on favorable terms and successfully integrate and operate them is subject to the following significant risks:
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If we cannot complete property acquisitions on favorable terms, or operate acquired properties to meet our goals or expectations, our financial condition, results of operations, cash flow, per share trading price of our common stock and ability to satisfy our debt service obligations and to pay dividends to you could be adversely affected.
We may be unable to successfully expand our operations into new markets.
If the opportunity arises, we may explore acquisitions of properties in new markets. Each of the risks applicable to our ability to acquire and successfully integrate and operate properties in our current markets are also applicable to our ability to acquire and successfully integrate and operate properties in new markets. In addition to these risks, we will not possess the same level of familiarity with the dynamics and market conditions of any new markets that we may enter, which could adversely affect our ability to expand into those markets. We may be unable to build a significant market share or achieve a desired return on our investments in new markets. If we are unsuccessful in expanding into new markets, it could adversely affect our financial condition, results of operations, cash flow, per share trading price of our common stock and ability to satisfy our debt service obligations and to pay dividends to you.
We are exposed to risks associated with property development.
We may engage in development and redevelopment activities with respect to certain of our properties. To the extent that we do so, we will be subject to certain risks, including, without limitation:
These risks could result in substantial unanticipated delays or expenses and, under certain circumstances, could prevent completion of development activities once undertaken, any of which could have an adverse effect on our financial condition, results of operations, cash flow, per share trading price of our common stock and ability to satisfy our debt service obligations and to pay dividends to you.
We are assuming liabilities in connection with the formation transactions, including unknown liabilities.
As part of the formation transactions, we will assume existing liabilities of our historical operating companies, the institutional funds, the investment funds and the single-asset entities, including, but not
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limited to, liabilities in connection with our properties, some of which may be unknown or unquantifiable at the time this offering is consummated. Unknown liabilities might include liabilities for cleanup or remediation of undisclosed environmental conditions, claims of tenants, vendors or other persons dealing with the entities prior to this offering, tax liabilities, and accrued but unpaid liabilities whether incurred in the ordinary course of business or otherwise. In connection with the formation transactions, we entered into a representation, warranty and indemnity agreement with our predecessor principals pursuant to which they made limited representations and warranties to us regarding potential material adverse impacts on the properties and entities to be acquired by us in the formation transactions and agreed to indemnify us with respect to claims for breaches of those representations and warranties brought by us within one year of the consummation of this offering. However, such indemnification is limited to $20.0 million in shares of our common stock and/or operating partnership units to be deposited into an escrow fund at the closing of the formation transactions (or, if less, the fair market value of such shares and units) and is subject to a $1.0 million deductible. Our predecessor principals are not required to add shares of our common stock or operating partnership units to the escrow in the event that the value of our common stock (and therefore, the units) decreases. Accordingly, such indemnification may not be sufficient to cover all liabilities assumed, and we are not entitled to indemnification from any other sources in connection with the formation transactions. In addition, because many liabilities, including tax liabilities, may not be identified within such period, we may have no recourse against our predecessor principals for these liabilities. See "Tax Risks Related to Ownership of REIT SharesWe and the operating partnership may inherit tax liabilities from the entities to be acquired in the formation transactions."
If we default on the leases to which some of our properties are subject, our business could be adversely affected.
Upon consummation of the formation transactions, we will have leasehold interests in certain of our properties. If we default under the terms of these leases, we may be liable for damages and could lose our leasehold interest in the property or our options to purchase the fee interest in such properties. If any of these events were to occur, our business and results of operations would be adversely affected.
The cash available for distribution to stockholders may not be sufficient to pay dividends at expected levels, nor can we assure you of our ability to make distributions in the future. We may use borrowed funds to make distributions.
Our expected annual distributions for the 12 months following the consummation of this offering of $0.70 per share are expected to be approximately 109.1% of estimated cash available for distribution. If cash available for distribution generated by our assets for such twelve month period is less than our estimate, or if such cash available for distribution decreases in future periods from expected levels, our ability to make the expected distributions could result in a decrease in the market price of our common stock. See "Dividend Policy."
All distributions will be made at the discretion of our board of directors and will depend on our earnings, our financial condition, maintenance of our REIT qualification and other factors as our board of directors may deem relevant from time to time. We may not be able to make distributions in the future. In addition, some of our distributions may include a return of capital. To the extent that we decide to make distributions in excess of our current and accumulated earnings and profits, such distributions would generally be considered a return of capital for federal income tax purposes to the extent of the holder's adjusted tax basis in their shares. A return of capital is not taxable, but it has the effect of reducing the holder's adjusted tax basis in its investment. To the extent that distributions exceed the adjusted tax basis of a holder's shares, they will be treated as gain from the sale or exchange of such stock. See "Federal Income Tax ConsiderationsTaxation of Stockholders." If we
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borrow to fund distributions, our future interest costs would increase, thereby reducing our earnings and cash available for distribution from what they otherwise would have been.
Our property taxes could increase due to property tax rate changes or reassessment, which would impact our cash flows.
Even if we qualify as a REIT for federal income tax purposes, we will be required to pay some state and local taxes on our properties. The real property taxes on our properties may increase as property tax rates change or as our properties are assessed or reassessed by taxing authorities. In particular, our portfolio of properties may be reassessed as a result of this offering. Therefore, the amount of property taxes we pay in the future may increase substantially from what we have paid in the past. If the property taxes we pay increase, our cash flow would be impacted, and our ability to pay expected dividends to our stockholders could be adversely affected.
Risks Related to Our Organization and Structure
We may pursue less vigorous enforcement of terms of merger and other agreements because of conflicts of interest with certain of our officers.
Our predecessor principals and certain of our executive officers have ownership interests in the other entities to be acquired in the formation transactions. Following the completion of this offering and the formation transactions, under the representation, warranty and indemnification agreement with our predecessor principals, we will be entitled to indemnification in the event of breaches of the limited representations and warranties made by our predecessor principals with respect to potential material adverse impacts on the entities and properties to be acquired by us. Such indemnification is limited and we are not entitled to any other indemnification in connection with the formation transactions. See "We are assuming liabilities in connection with the formation transaction, including unknown liabilities" above. In addition, we expect that certain members of our senior management team, including some of our predecessor principals, will enter into employment agreements with us pursuant to which they will agree, among other things, not to engage in certain business activities in competition with us and pursuant to which they will devote substantially full-time attention to our affairs. See "ManagementEmployment Agreements." We may choose not to enforce, or to enforce less vigorously, our rights under these agreements due to our ongoing relationship with our predecessor principals and our executive officers.
Our predecessor principals exercised significant influence with respect to the terms of the formation transactions.
We did not conduct arm's-length negotiations with our predecessor principals with respect to all of the terms of the formation transactions. In the course of structuring the formation transactions, our predecessor principals had the ability to influence the type and level of benefits that they and our other officers will receive from us. In addition, our predecessor principals had substantial pre-existing ownership interests in our historical operating companies, the institutional funds, the investment funds and the single-asset entities and will receive substantial economic benefits as a result of the formation transactions. The formation transaction documents provide that the individual allocations of the total formation transaction value to each prior investor will be determined by the provisions of the applicable partnership agreement or organizational document of the relevant institutional fund(s), investment fund(s) and/or single-asset entit(y/ies) relating to distributions of distributable net proceeds from sales of properties. Under these provisions, the amount allocated to our predecessor principals vis-a-vis the other prior investors increases as the total formation transaction value increases. Also, certain of our predecessor principals have assumed management and/or director positions with us, for which they will obtain certain other benefits such as employment agreements, stock option or LTIP unit grants and other compensation.
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Tax consequences to holders of operating partnership units upon a sale or refinancing of our properties may cause the interests of our senior management to differ from your own.
As a result of the unrealized built-in gain attributable to the contributed property at the time of contribution, some holders of operating partnership units, including our principals, may suffer different and more adverse tax consequences than holders of our common stock upon the sale or refinancing of the properties owned by our operating partnership, including disproportionately greater allocations of items of taxable income and gain upon a realization event. As those holders will not receive a correspondingly greater distribution of cash proceeds, they may have different objectives regarding the appropriate pricing, timing and other material terms of any sale or refinancing of certain properties, or whether to sell or refinance such properties at all.
Our senior management team will have significant influence over our affairs.
Upon completion of this offering, our senior management team will own approximately 9.8% of our outstanding common stock, or 23.7% on a fully diluted basis. As a result, our senior management team, to the extent they vote their shares in a similar manner, will have influence over our affairs and could exercise such influence in a manner that is not in the best interests of our other stockholders, including by attempting to delay, defer or prevent a change of control transaction that might otherwise be in the best interests of our stockholders. If our senior management team exercises their redemption rights with respect to their operating partnership units and we issue common stock in exchange therefor, our senior management team's influence over our affairs would increase substantially.
Our growth depends on external sources of capital which are outside of our control.
In order to maintain our qualification as a REIT, we are required under the Code to annually distribute at least 90% of our net taxable income, determined without regard to the dividends paid deduction and excluding any net capital gain. In addition, we will be subject to income tax at regular corporate rates to the extent that we distribute less than 100% of our net taxable income, including any net capital gains. Because of these distribution requirements, we may not be able to fund future capital needs, including any necessary acquisition financing, from operating cash flow. Consequently, we rely on third-party sources to fund our capital needs. We may not be able to obtain financing on favorable terms or at all. Any additional debt we incur will increase our leverage. Our access to third-party sources of capital depends, in part, on:
If we cannot obtain capital from third-party sources, we may not be able to acquire or develop properties when strategic opportunities exist, meet the capital and operating needs of our existing properties, satisfy our debt service obligations or pay dividends to you necessary to maintain our qualification as a REIT.
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Our charter, the partnership agreement of our operating partnership and Maryland law contain provisions that may delay or prevent a change of control transaction.
Our charter contains a 5.0% ownership limit. Our charter, subject to certain exceptions, authorizes our directors to take such actions as are necessary and desirable to limit any person to actual or constructive ownership of no more than 5.0% in value of the outstanding shares of our stock and no more than 5.0% of the value or number, whichever is more restrictive, of the outstanding shares of our common stock. Our board of directors, in its sole discretion, may exempt a proposed transferee from the ownership limit. However, our board of directors may not grant an exemption from the ownership limit to any proposed transferee whose ownership, direct or indirect, of more than 5.0% of the value or number of our outstanding shares of our common stock could jeopardize our status as a REIT. The ownership limit contained in our charter and the restrictions on ownership of our common stock may delay or prevent a transaction or a change of control that might involve a premium price for our common stock or otherwise be in the best interest of our stockholders. See "Description of SecuritiesRestrictions on Transfer."
Our board of directors may create and issue a class or series of preferred stock without stockholder approval. Our board of directors is empowered under our charter to amend our charter to increase or decrease the aggregate number of shares of our common stock or the number of shares of stock of any class or series that we have authority to issue, to designate and issue from time to time one or more classes or series of preferred stock and to classify or reclassify any unissued shares of our common stock or preferred stock without stockholder approval. Our board of directors may determine the relative rights, preferences and privileges of any class or series of preferred stock issued. As a result, we may issue series or classes of preferred stock with preferences, dividends, powers and rights, voting or otherwise, senior to the rights of holders of our common stock. The issuance of preferred stock could also have the effect of delaying or preventing a change of control transaction that might otherwise be in the best interests of our stockholders.
Certain provisions in the partnership agreement for our operating partnership may delay or prevent unsolicited acquisitions of us. Provisions in the partnership agreement for our operating partnership may delay or make more difficult unsolicited acquisitions of us or changes in our control. These provisions could discourage third parties from making proposals involving an unsolicited acquisition of us or change of our control, although some stockholders might consider such proposals, if made, desirable. These provisions include, among others:
Any potential change of control transaction may be further limited as a result of provisions of the partnership unit designation for the LTIP units, which require us to preserve the rights of LTIP unit holders and may restrict us from amending the partnership agreement for our operating partnership in a manner that would have an adverse effect on the rights of LTIP unit holders.
Certain provisions of Maryland law could inhibit changes in control. Certain provisions of the Maryland General Corporation Law, or MGCL, may have the effect of inhibiting a third party from making a proposal to acquire us or impeding a change of control under circumstances that otherwise
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could provide our stockholders with the opportunity to realize a premium over the then-prevailing market price of our common stock, including:
We have elected to opt out of these provisions of the MGCL, in the case of the business combination provisions of the MGCL, by resolution of our board of directors, and in the case of the control share provisions of the MGCL, pursuant to a provision in our bylaws. However, our board of directors may by resolution elect to repeal the foregoing opt-outs from the business combination provisions of the MGCL and we may, by amendment to our bylaws, opt in to the control share provisions of the MGCL in the future.
Our charter, bylaws, the partnership agreement for our operating partnership and Maryland law also contain other provisions that may delay, defer or prevent a transaction or a change of control that might involve a premium price for our common stock or otherwise be in the best interest of our stockholders. See "Material Provisions of Maryland Law and of Our Charter and BylawsRemoval of Directors," "Consideration of Non-Stockholder Constituencies," "Control Share Acquisitions," "Advance Notice of Director Nominations and New Business" and "Description of the Partnership Agreement of Douglas Emmett Properties, LP."
Under their employment agreements, certain of our executive officers will have the right to terminate their employment and receive severance if there is a change of control.
In connection with this offering, we are entering into employment agreements with Messrs. Kaplan, Panzer and Kamer. These employment agreements provide that each executive may terminate his employment under certain conditions, including after a change of control, and receive severance based on two or three times (depending on the officer) his annual total of salary, bonus and incentive compensation such as LTIP units, options or outperformance grants plus a "gross up" for any excise taxes under Section 280G of the Code. Because of the effects of averaging equity grants under the agreements, and assuming a constant number of fully diluted shares outstanding after the offering and no compensation or grants beyond that contractually committed, the aggregate severance payments for these executive officers (before any gross up) will decline from approximately $0.62 per fully diluted share in 2006 and 2007 to approximately $0.35 per fully diluted share in 2008 and to $0.27 per fully diluted share in 2009. In addition, these executive officers would not be restricted from competing with us after their departure. See "ManagementEmployment Agreements" for further details about the terms of these employment agreements.
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Our fiduciary duties as sole stockholder of the general partner of our operating partnership could create conflicts of interest.
After the consummation of this offering, we, as the sole stockholder of the general partner of our operating partnership, will have fiduciary duties to the other limited partners in the operating partnership, the discharge of which may conflict with the interests of our stockholders. The limited partners of our operating partnership have agreed that, in the event of a conflict in the fiduciary duties owed by us to our stockholders and, in our capacity as general partner of our operating partnership, to such limited partners, we are under no obligation to give priority to the interests of such limited partners. In addition, those persons holding operating partnership units will have the right to vote on certain amendments to the operating partnership agreement (which require approval by a majority in interest of the limited partners, including us) and individually to approve certain amendments that would adversely affect their rights. These voting rights may be exercised in a manner that conflicts with the interests of our stockholders. For example, we are unable to modify the rights of limited partners to receive distributions as set forth in the operating partnership agreement in a manner that adversely affects their rights without their consent, even though such modification might be in the best interest of our stockholders.
The loss of any member of our senior management or certain other key executives could significantly harm our business.
Our ability to maintain our competitive position is dependent to a large degree on the efforts and skills of our senior management team, including Dan A. Emmett, Jordan Kaplan, Kenneth M. Panzer and William Kamer. If we lose the services of any member of our senior management, our business may be significantly impaired. In addition, many of our senior executives have strong industry reputations, which aid us in identifying acquisition and borrowing opportunities, having such opportunities brought to us, and negotiating with tenants and sellers of properties. The loss of the services of these key personnel could materially and adversely affect our operations because of diminished relationships with lenders, existing and prospective tenants, property sellers and industry personnel.
We have no experience operating as a publicly traded REIT.
We have no experience operating as a publicly traded REIT. In addition, certain members of our board of directors and all but one of our executive officers have no experience in operating a publicly traded REIT. We cannot assure you that our past experience will be sufficient to successfully operate our company as a REIT or a publicly traded company, including the requirements to timely meet disclosure requirements and comply with the Sarbanes-Oxley Act of 2002. Failure to maintain REIT status would have an adverse effect on our financial condition, results of operations, cash flow, per share trading price of our common stock and ability to satisfy our debt service obligations and to pay dividends to you.
If we fail to establish and maintain an effective system of integrated internal controls, we may not be able to accurately report our financial results.
In the past, we have reported our results to the investors in the institutional funds on a fund-by-fund basis, and we have not separately reported audited results for DECO, PLE or the single-asset entities. We have generally maintained separate systems and procedures for each institutional fund, as well as our non-predecessor entities, which makes it more difficult for us to evaluate and integrate their systems and procedures on a reliable company-wide basis. In addition, we were not required to report our results on a GAAP basis. In connection with our operation as a public company, we will be required to report our operations on a consolidated basis under GAAP and, in some cases, on a property by property basis. We are in the process of implementing an internal audit function and
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modifying our company-wide systems and procedures in a number of areas to enable us to report on a consolidated basis under GAAP as we continue the process of integrating the financial reporting of our predecessor, DECO, PLE and the single-asset entities. If we fail to implement proper overall business controls, including as required to integrate our diverse predecessor and non-predecessor entities and support our growth, our results of operations could be harmed or we could fail to meet our reporting obligations.
Our board of directors may change significant corporate policies without stockholder approval.
Our investment, financing, borrowing and dividend policies and our policies with respect to all other activities, including growth, debt, capitalization and operations, will be determined by our board of directors. These policies may be amended or revised at any time and from time to time at the discretion of the board of directors without a vote of our stockholders. In addition, the board of directors may change our policies with respect to conflicts of interest provided that such changes are consistent with applicable legal requirements. A change in these policies could have an adverse effect on our financial condition, results of operations, cash flow, per share trading price of our common stock and ability to satisfy our debt service obligations and to pay dividends to you.
Compensation awards to our management may not be tied to or correspond with our improved financial results or share price.
The compensation committee of our board of directors is responsible for overseeing our compensation and employee benefit plans and practices, including our executive compensation plans and our incentive compensation and equity-based compensation plans. Our compensation committee has significant discretion in structuring compensation packages and may make compensation decisions based on any number of factors. As a result, compensation awards may not be tied to or correspond with improved financial results at our company or the share price of our common stock.
Risks Related to This Offering
The historical internal rates of return attributable to the institutional funds may not be indicative of our future results or an investment in our common stock.
We have presented in this prospectus under "Management's Discussion and Analysis of Financial Condition and Results of Operations" internal rate of return, or IRR, and average annual operating return information relating to the average historical performance of the institutional funds. When considering this information you should bear in mind that the historical results of the institutional funds may not be indicative of the future results that you should expect from us or any investment in our common stock. In particular, our results could vary significantly from the historical results due to the fact that:
37
Differences between the book value of the assets to be acquired in the formation transactions and the price paid for our common stock will result in an immediate and material dilution of the book value of our common stock.
As of June 30, 2006, the aggregate historical net tangible book value of the assets to be acquired by us in the formation transactions was approximately $478.0 million, or $4.38 per share of our common stock held by our continuing investors, assuming the exchange of units in our operating partnership for shares of our common stock on a one-for-one basis. As a result, the pro forma net tangible book value per share of our common stock after the consummation of this offering and the formation transactions will be less than the initial public offering price. The purchasers of our common stock offered hereby will experience immediate and substantial dilution of $3.09 per share in the pro forma net tangible book value per share of our common stock.
The number of shares of our common stock available for future sale, including by our affiliates and other continuing investors, could adversely affect the market price of our common stock, and future sales by us of shares of our common stock may be dilutive to existing stockholders.
Sales of substantial amounts of shares of our common stock in the public market, or upon exchange of units in our operating partnership or exercise of any options, or the perception that such sales might occur could adversely affect the market price of the shares of our common stock. The exchange of units in our operating partnership for common stock, the exercise of any stock options or the vesting of any restricted stock granted to certain directors, executive officers and other employees under our stock incentive plan, the issuance of our common stock or units in our operating partnership in connection with property, portfolio or business acquisitions and other issuances of our common stock or units in our operating partnership could have an adverse effect on the market price of the shares of our common stock. Also, continuing investors that will hold 58,617,573 shares of our outstanding common stock and 50,512,427 operating partnership units on a pro forma basis, assuming a per share price based on the mid-point of the range set forth on the cover page of this prospectus, are parties to agreements that provide for registration rights. The exercise of these registration rights could depress
38
the price of our common stock. In addition, continuing investors that will hold $633.4 million of our common stock and units in our operating partnership in the aggregate, assuming a per share price based on the mid-point of the range set forth on the cover page of this prospectus, elected to receive cash in the formation transactions rather than these shares or units. However, due to limits on available cash, these continuing investors will receive such common stock or operating partnership units in lieu thereof. The existence of this equity held by such continuing investors, as well as units in our operating partnership, options, or shares of our common stock reserved for issuance as restricted shares or upon exchange of units may adversely affect the terms upon which we may be able to obtain additional capital through the sale of equity securities. In addition, future sales by us of shares of our common stock may be dilutive to existing stockholders.
Increases in market interest rates may result in a decrease of the value of our common stock.
One of the factors that will influence the price of our common stock will be the dividend yield on our common stock (as a percentage of the price of our common stock) relative to market interest rates. Market interest rates have recently increased and may continue to do so. An increase in market interest rates may lead prospective purchasers of our common stock to expect a higher dividend yield and, if we are unable to pay such yield, the market price of our common stock could decrease.
The market price of our common stock could be adversely affected by our level of cash dividends.
The market value of the equity securities of a REIT is based primarily upon the market's perception of the REIT's growth potential and its current and potential future cash distributions, whether from operations, sales or refinancings, and is secondarily based upon the real estate market value of the underlying assets. For that reason, our common stock may trade at prices that are higher or lower than our net asset value per share. To the extent we retain operating cash flow for investment purposes, working capital reserves or other purposes, these retained funds, while increasing the value of our underlying assets, may not correspondingly increase the market price of our common stock. Our failure to meet the market's expectations with regard to future earnings and cash distributions likely would adversely affect the market price of our common stock.
There has been no public market for our common stock prior to this offering.
Prior to this offering, there has been no public market for our common stock, and there can be no assurance that an active trading market will develop or be sustained or that shares of our common stock will be resold at or above the initial public offering price. The initial public offering price of our common stock has been determined by agreement among us and the underwriters, but there can be no assurance that our common stock will not trade below the initial public offering price following the completion of this offering. See "Underwriting." The market value of our common stock could be substantially affected by general market conditions, including the extent to which a secondary market develops for our common stock following the completion of this offering, the extent of institutional investor interest in us, the general reputation of REITs and the attractiveness of their equity securities in comparison to other equity securities (including securities issued by other real estate-based companies), our financial performance and general stock and bond market conditions.
Tax Risks Related to Ownership of REIT Shares
Our failure to qualify as a REIT would result in higher taxes and reduce cash available for dividends.
We intend to operate in a manner so as to qualify as a REIT for federal income tax purposes. Although we do not intend to request a ruling from the Internal Revenue Service, or IRS, as to our REIT status, we expect to receive an opinion of Skadden, Arps, Slate, Meagher & Flom LLP, or
39
Skadden Arps, with respect to our qualification as a REIT. Stockholders should be aware, however, that opinions of counsel are not binding on the IRS or any court. The opinion of Skadden Arps will, if issued, represent only the view of our counsel based on our counsel's review and analysis of existing law and on certain representations as to factual matters and covenants made by us, including representations relating to the values of our assets, the sources of our income, and the nature, construction, character and intended use of our properties. The opinion of Skadden Arps will, if issued, be expressed as of the date issued, and will not cover subsequent periods. Opinions of counsel impose no obligation to advise us or the holders of our common stock of any subsequent change in the matters stated, represented or assumed, or of any subsequent change in applicable law.
Furthermore, both the validity of the tax opinions and our continued qualification as a REIT depend on our satisfaction of certain asset, income, organizational, distribution, stockholder ownership and other requirements on a continuing basis, the results of which will not be monitored by tax counsel. Our ability to satisfy the asset tests depends upon our analysis of the characterization and fair market values of our assets, some of which are not susceptible to a precise determination, and for which we will not obtain independent appraisals. Our compliance with the REIT income and quarterly asset requirements also depends upon our ability to successfully manage the composition of our income and assets on an ongoing basis.
If we were to fail to qualify as a REIT in any taxable year, we would be subject to federal income tax, including any applicable alternative minimum tax, on our taxable income at regular corporate rates, and distributions to stockholders would not be deductible by us in computing our taxable income. Any such corporate tax liability could be substantial and would reduce the amount of cash available for distribution to our stockholders, which in turn could have an adverse impact on the value of, and trading prices for, our common stock. Unless entitled to relief under certain Code provisions, we also would be disqualified from taxation as a REIT for the four taxable years following the year during which we ceased to qualify as a REIT. In addition, if we fail to qualify as a REIT, we will not be required to make distributions to stockholders, and all distributions to stockholders will be subject to tax as dividend income to the extent of our current and accumulated earnings and profits. As a result of all these factors, our failure to qualify as a REIT also could impair our ability to expand our business and raise capital, and would adversely affect the value of our common stock. See "Federal Income Tax Considerations" for a discussion of material federal income tax consequences relating to us and our common stock.
Dividends payable by REITs generally do not qualify for the reduced tax rates.
Tax legislation enacted in 2003 and 2006 reduces the maximum tax rate for dividends payable to individuals from 38.6% to 15.0% through 2010. Dividends payable by REITs, however, are generally not eligible for the reduced rates. Although this legislation does not adversely affect the taxation of REITs or dividends paid by REITs, the more favorable rates applicable to regular corporate dividends could cause investors who are individuals to perceive investments in REITs to be relatively less attractive than investments in the stocks of non-REIT corporations that pay dividends, which could adversely affect the value of the stock of REITs, including our common stock.
In addition, the relative attractiveness of real estate in general may be adversely affected by the favorable tax treatment given to corporate dividends, which could affect the value of our real estate assets negatively.
REIT distribution requirements could adversely affect our liquidity.
We generally must distribute annually at least 90% of our net taxable income, excluding any net capital gain, in order to qualify as a REIT. In addition, we will be subject to corporate income tax to the extent that we distribute less than 100% of our net taxable income including any net capital gain.
40
We intend to make distributions to our stockholders to comply with the requirements of the Code for REITs and to minimize or eliminate our corporate income tax obligation. However, differences between the recognition of taxable income and the actual receipt of cash could require us to sell assets or borrow funds on a short-term or long-term basis to meet the distribution requirements of the Code. Certain types of assets generate substantial mismatches between taxable income and available cash. Such assets include rental real estate that has been financed through financing structures which require some or all of available cash flows to be used to service borrowings. As a result, the requirement to distribute a substantial portion of our taxable income could cause us to: (1) sell assets in adverse market conditions, (2) borrow on unfavorable terms or (3) distribute amounts that would otherwise be invested in future acquisitions, capital expenditures or repayment of debt, in order to comply with REIT requirements. Further, amounts distributed will not be available to fund our operations. We also will be subject to a 4% nondeductible excise tax on the amount, if any, by which distributions paid by us in any calendar year are less than sum of 85% of our ordinary income, 95% of our capital gain net income and 100% of our undistributed income from prior years.
We and the operating partnership may inherit tax liabilities from the entities to be acquired in the formation transactions.
Pursuant to the formation transactions, we will acquire all of the assets and liabilities, including any tax liabilities, of DERA, DECO and other entities, including a REIT, and the operating partnership will acquire all of the assets and liabilities, including any tax liabilities, of the institutional funds, PLE, the investment funds and the single-asset entities. If the other acquired entity that is a REIT failed to qualify as a REIT, or if DERA, DECO or PLE failed to qualify as an S corporation, we could assume a material federal income tax liability in connection with the mergers. In addition, to qualify as a real estate investment trust, under these circumstances we would be required to distribute any earnings and profits acquired from the acquired REIT, DERA or DECO prior to the close of the taxable year in which the mergers occur. Similarly, if any of the institutional funds, the investment funds or the single-asset entities failed to qualify as a partnership for federal income tax purposes, the operating partnership could assume a material federal income tax liability in connection with the mergers. No rulings from the IRS will be requested and no opinions of counsel will be rendered regarding the federal income tax treatment of any of the entities to be acquired in the formation transactions. Accordingly, no assurance can be given that DERA, DECO and PLE have qualified as S corporations, that the acquired REIT has qualified as a REIT or that the institutional funds, the investment funds or the single-asset entities have qualified as partnerships for federal income tax purposes, or that these entities do not have any other tax liabilities.
We intend to take the position that each of the mergers of DERA and DECO and the acquired REIT qualify as a tax-free reorganization under the Code. If any of these mergers does not so qualify, the merger would be treated as a taxable asset sale in which DERA, DECO or the acquired REIT, as applicable, would be required to recognize taxable gain. In such a case, if DERA or DECO did not qualify as S corporations or the acquired REIT did not qualify as a REIT, then we could assume a material income tax liability in connection with the applicable merger. No rulings from the IRS will be requested and no opinions of counsel will be rendered regarding the federal income tax treatment of the acquisition of the acquired REIT or the mergers of DERA or DECO. Accordingly, no assurance can be given that such mergers will be treated as tax-free reorganizations.
In connection with the formation transactions, we and the operating partnership will receive representations and warranties that, except as would not have a material adverse effect, the institutional funds, the investment funds, the single-asset entities, the acquired REIT, DERA, DECO and PLE have each paid all taxes due and payable. Although the occurrence of the events described above may constitute a breach of such representations and warranties, in the absence of fraud, recourse will be limited to the $20.0 million (or, if less, the fair market value) in our shares of common stock and/or
41
operating partnership units to be deposited by our predecessor principals into the escrow fund at closing for a one-year period and subject to a $1.0 million deductible. As a result, if a breach occurs, but such breach is discovered more than one year after the closing of the formation transaction or exceeds the amount held in escrow, we and/or the operating partnership will not have an effective remedy.
We may have carryover tax basis on our assets as a result of the formation transactions.
Although we expect that the contribution of interests to us by certain participants in the formation transactions were fully taxable transactions, thereby resulting in a fair market value tax basis for such assets, no assurance can be given that the IRS would not attempt to recharacterize this part of the formation transactions as a tax-deferred exchange transaction. If the IRS were successful, we would generally take a carryover tax basis in such assets that is lower than the respective fair market values of such assets. This position would give rise to lower depreciation deductions that would have the effect of (1) increasing the distribution requirement imposed on us, and (2) decreasing the extent to which our distributions are treated as tax free "return of capital" distributions. Consequently, if the IRS were successful in such an assertion, it could, among other things, adversely affect our ability to satisfy the REIT distribution requirement.
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We make forward-looking statements in this prospectus. In particular, statements pertaining to our capital resources, portfolio performance, dividend policy and results of operations contain forward-looking statements. Likewise, our pro forma financial statements and all our statements regarding anticipated growth in our funds from operations and anticipated market conditions, demographics and results of operations are forward-looking statements. Any statement contained in this prospectus that is not a statement of historical fact may be considered a forward-looking statement. Without limiting the generality of the foregoing, in some cases you can identify forward-looking statements by terminology such as "believes," "expects," "may," "will," "should," "seeks," "approximately," "intends," "plans," "estimates" or "anticipates" or the negative of these words and phrases or similar words or phrases. You can also identify forward-looking statements by discussions of strategy, plans or intentions. You should not rely on forward-looking statements as predictions of future events. Forward-looking statements involve numerous risks and uncertainties that could significantly affect anticipated results in the future and, accordingly, such results may differ materially from those expressed in any forward-looking statement made by us. These risks and uncertainties include, but are not limited to:
For a more detailed discussion of these and other risks, please read carefully the information under the caption "Risk Factors." You should not place undue reliance on any forward-looking statements, which are based only on information currently available to us. We undertake no obligation to publicly release any revisions to such forward-looking statements to reflect events or circumstances after the date of this prospectus, except as required by applicable law.
43
We estimate we will receive gross proceeds from this offering of $1.10 billion, or approximately $1.27 billion if the underwriters' over-allotment option is exercised in full. After deducting the underwriting discount and estimated expenses of this offering, we expect to receive net proceeds from this offering of approximately $1.03 billion, or approximately $1.18 billion if the underwriters' over-allotment option is exercised in full.
We will contribute the net proceeds of this offering to our operating partnership. In addition:
See "Management's Discussion and Analysis of Financial Condition and Results of OperationsLiquidity and Capital Resources," "Structure and Formation of Our CompanyFormation Transactions" and "Business and PropertiesDescription of Certain Debt" for a description of the refinancing transactions and the senior secured revolving credit facility. Our operating partnership will subsequently use the net proceeds received from us, the net proceeds from the financing transactions, the $60.0 million DERA contribution and cash on hand as set forth in the table below. See our unaudited pro forma consolidated financial statements and related notes contained elsewhere in this prospectus.
The table below assumes that this offering, the formation transactions and the financing transactions had been consummated, and all payments by us set forth below had occurred, on June 30, 2006. Cash on hand and exact payment amounts will differ from estimates due to amortization of principal, accrual of additional prepayment fees, amounts due pursuant to the pre-closing property distributions, and incurrence of additional transaction expenses. This table identifies sources of funds arising from the refinancing transactions and this offering with specific uses for the convenience of the
44
reader; however, sources of funds from this offering and the refinancing transactions may be commingled and have not been earmarked for particular purposes.
Sources (in thousands)
|
|
Uses (in thousands)
|
|
||||||
---|---|---|---|---|---|---|---|---|---|
Gross proceeds of this offering | $ | 1,100,000 | Cash consideration pursuant to formation transactions | $ | 1,032,354 | ||||
Underwriters' discount and other costs (1) | 67,646 | ||||||||
|
|
||||||||
Subtotal | $ | 1,100,000 | Subtotal | $ | 1,100,000 | ||||
|
|
||||||||
Gross proceeds from the modified term loan | $ | 545,000 | Cash consideration pursuant to formation transactions | $ | 202,319 | ||||
Retire existing debt: | |||||||||
Variable rate debt of the single asset
entities |
50,921 | ||||||||
The Trillium | 100,500 | ||||||||
Redemption of preferred minority interests | 184,000 | ||||||||
Redemption premium cost | 2,830 | ||||||||
Refinancing fees | 4,430 | ||||||||
|
|
||||||||
Subtotal | $ | 545,000 | Subtotal | $ | 545,000 | ||||
|
|
||||||||
Cash on hand | $ | 90,000 | Cash consideration pursuant to formation | ||||||
Cash contributed to DERA by predecessor | transactions (2) | $ | 150,000 | ||||||
principals | 60,000 | ||||||||
|
|||||||||
Subtotal | $ | 150,000 | |||||||
|
|
||||||||
Total sources | $ | 1,795,000 | Total uses | $ | 1,795,000 | ||||
|
|
If the underwriters exercise their overallotment option in full, we will use cash in the amount of the additional gross proceeds to increase the cash payments to the prior investors in the formation transactions and thereby to correspondingly reduce the equity consideration payable to such investors.
As set forth in the table above, in connection with the financing transactions, we expect to repay approximately $151.4 million of outstanding indebtedness, including accrued interest, with a weighted average interest rate of 4.9% and a weighted average maturity of 2.0 years as of June 30, 2006.
The aggregate historical net tangible book value of the assets to be acquired by us in the formation transactions was approximately $478.0 million as of June 30, 2006. Based on the mid-point of the range set forth on the cover page of this prospectus, we will assume or discharge $2.54 billion in indebtedness and preferred equity, and we will pay consideration in the formation transactions with an aggregate value of $3.57 billion (consisting of cash, shares of our common stock and operating partnership units) in exchange for these assets. The initial public offering price of our common stock does not necessarily bear any relationship to the book value or the fair market value of these assets, but instead will be determined in consultation with the underwriters. Among the factors to be considered in determining that initial public offering price are the history and prospects for the industry in which we compete, our financial information, the ability of our management and our business potential and earning prospects, the prevailing securities markets at the time of this offering, and the recent market prices of, and the demand for, publicly traded shares of generally comparable companies. We have not obtained any third-party appraisals of the assets to be acquired in connection with this offering or the formation transactions. As a result, the consideration to be given by us for the assets to be acquired by us in the formation transactions may exceed their fair market value.
For an analysis of how this information would change if the share price in the offering is not equal to the mid-point of the range of prices set forth on the cover page of this prospectus, please refer to "Pricing Sensitivity Analysis" included elsewhere in this prospectus.
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We intend to pay regular quarterly dividends to holders of our common stock. We intend to pay a pro rata initial dividend with respect to the period commencing on the completion of this offering and ending December 31, 2006, based on $0.175 per share for a full quarter. On an annualized basis, this would be $0.70 per share, or an annual distribution rate of approximately 3.5% based on a price per share equal to the mid-point of the range of prices set forth on the cover page of this prospectus. We estimate that this initial annual distribution rate will represent approximately 109.1% of estimated cash available for distribution for the 12 months ending June 30, 2007. Our intended initial annual distribution rate has been established based on our estimate of cash available for distribution for the 12 months ending June 30, 2007, which we have calculated based on adjustments to our pro forma income before minority interests for the year ended December 31, 2005. This estimate was based on our predecessor's historical operating results and does not take into account any growth. In estimating our cash available for distribution for the 12 months ending June 30, 2007, we have made certain assumptions as reflected in the table and footnotes below.
Our estimate of cash available for distribution does not include the effect of any changes in our working capital resulting from changes in our working capital accounts. Our estimate also does not reflect the amount of cash estimated to be used for investing activities, such as acquisitions, other than a provision for recurring capital expenditures, and amounts estimated for leasing commissions and tenant improvements for renewing space. It also does not reflect the amount of cash estimated to be used for financing activities. Any such investing and/or financing activities may have a material effect on our estimate of cash available for distribution. Because we have made the assumptions set forth above in estimating cash available for distribution, we do not intend this estimate to be a projection or forecast of our actual results of operations or our liquidity, and have estimated cash available for distribution for the sole purpose of determining the amount of our initial annual distribution rate. Our estimate of cash available for distribution should not be considered as an alternative to cash flow from operating activities (computed in accordance with GAAP) or as an indicator of our liquidity or our ability to pay dividends or make other distributions. In addition, the methodology upon which we made the adjustments described below is not necessarily intended to be a basis for determining future dividends or other distributions.
We currently intend to maintain our initial distribution rate for the 12-month period following completion of this offering unless actual results of operations, economic conditions or other factors differ materially from the assumptions used in our estimate. Dividends and other distributions made by us will be authorized and determined by our board of directors in its sole discretion out of funds legally available therefor and will be dependent upon a number of factors, including maintaining our status as a REIT, restrictions under applicable law and our credit agreements and other factors described below. We believe that our estimate of cash available for distribution constitutes a reasonable basis for setting the initial distribution rate; however, we cannot assure you that the estimate will prove accurate, and actual distributions may therefore be significantly different from the expected distributions. Our dividend policy may require us to borrow under our unsecured credit facility to pay dividends.
We anticipate that, at least initially, our distributions will exceed our then current and then accumulated earnings and profits as determined for federal income tax purposes due to the write-off of prepayment fees that we expect to pay and non-cash expenses, primarily depreciation and amortization charges that we expect to incur, in connection with the formation transactions and this offering. Therefore, a portion of these distributions may represent a return of capital for federal income tax purposes. Distributions in excess of our current and accumulated earnings and profits will not be taxable to a stockholder under current federal income tax law to the extent those distributions do not exceed the stockholder's adjusted tax basis in his or her common stock. Instead, such distributions will reduce the adjusted tax basis of the common stock. In that case, the gain (or loss) recognized on the sale of that common stock or upon our liquidation will be increased (or decreased) accordingly. To the
46
extent those distributions exceed a stockholder's adjusted tax basis in his or her common stock, they will be treated as a gain from the sale or exchange of such stock. We expect to pay our first dividend in 2007, which will include a payment with respect to the period commencing on the completion of this offering and ending December 31, 2006. Such dividends relating to the taxable year ending December 31, 2006 may be treated as paid by us and received by the stockholder on December 31, 2006. We expect that 100% of our estimated initial dividend will represent a return of capital for the tax period ending December 31, 2006. The percentage of our stockholder distributions (if any) that exceeds our current and accumulated earnings and profits may vary substantially from year to year. For a more complete discussion of the tax treatment of distributions to holders of our common stock, see "Federal Income Tax ConsiderationsTaxation of Stockholders."
We cannot assure you that our estimated dividends will be made or sustained or that our board of directors will not change our dividend policy in the future. Any dividends or other distributions we pay in the future will depend upon our actual results of operations, economic conditions, debt service requirements and other factors that could differ materially from our current expectations. Our actual results of operations will be affected by a number of factors, including the revenue we receive from our properties, our operating expenses, interest expense, the ability of our tenants to meet their obligations and unanticipated expenditures. For more information regarding risk factors that could materially adversely affect our actual results of operations, please see "Risk Factors."
Federal income tax law requires that a REIT distribute annually at least 90% of its net taxable income excluding net capital gains, and that it pay tax at regular corporate rates to the extent that it annually distributes less than 100% of its REIT taxable income including capital gains. For more information, please see "Federal Income Tax Considerations." We anticipate that our estimated cash available for distribution will exceed the annual distribution requirements applicable to REITs. However, under some circumstances, we may be required to pay distributions in excess of cash available for distribution in order to meet these distribution requirements and we may need to borrow funds to make some distributions.
The following table describes our pro forma income for the year ended December 31, 2005, and the adjustments we have made thereto in order to estimate our initial cash available for distribution for the 12 months ending June 30, 2007 (amounts in thousands except share data, per share data, square footage data, units and percentages):
|
|
||||
---|---|---|---|---|---|
Pro forma income available to our common shareholders for the twelve months ended December 31, 2005 | $ | (61,350 | ) | ||
Less: Pro forma income available to our common shareholders for the six months ended June 30, 2005 | 34,472 | ||||
Add: Pro forma income available to our common shareholders for the six months ended June 30, 2006 | (13,480 | ) | |||
|
|||||
Pro forma income available to our common shareholders for the twelve months ended June 30, 2006 | $ | (40,358 | ) | ||
Add: Pro forma minority interest for the twelve months ended June 30, 2006 | (18,251 | ) | |||
Pro forma income before minority interest for the twelve months ended June 30, 2006 |
|
$ |
(58,609 |
) |
|
Add: Pro forma real estate depreciation and amortization | 202,534 | ||||
Add: Net increases in contractual rent income in our office portfolio (1) | 44,793 | ||||
Less: Net decreases in contractual rent income due to lease expirations in our office portfolio, assuming no renewals (2) | (26,687 | ) | |||
Less: Net effects of straight line rents and fair market value adjustments to tenant leases (3) | (58,490 | ) | |||
Add: Non-cash compensation expense (4) | 1,500 | ||||
Add: Non-cash interest expense (5) | 35,985 | ||||
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Estimated cash flow from operating activities for the twelve months ending June 30, 2007 |
|
$ |
141,026 |
|
|
Estimated cash flows used in investing activities: | |||||
Less: Estimated annual provision for recurring tenant improvement and leasing commissions (6) (7) | (31,824 | ) | |||
Less: Estimated annual provision for recurring capital expendituresoffice (7) (8) | (2,542 | ) | |||
Less: Estimated annual provision for recurring capital expendituresmultifamily (7) (9) | (734 | ) | |||
|
|||||
Total estimated cash flows used in investing activities | (35,100 | ) | |||
|
|||||
Estimated cash flows used in financing activities | | ||||
Estimated cash available for distribution for the twelve months ending June 30, 2007 |
|
$ |
105,926 |
|
|
|
|||||
Our share of estimated cash available for distribution (10) | 72,940 | ||||
Minority interests' share of estimated cash available for distribution | 32,986 | ||||
Total estimated initial annual distributions to stockholders |
|
$ |
79,559 |
|
|
Estimated initial annual distributions per share (11) | $ | 0.70 | |||
Payout ratio based on our share of estimated cash available for distribution (12) | 109.1 | % |
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multiplied by the number of net rentable square feet of leased space for which leases expire in our portfolio during the twelve months ended June 30, 2007.
|
Year Ended
December 31, |
|
|
||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Six Months
Ended June 30, 2006 |
Weighted
Average 2003 June 30, 2006 |
|||||||||||||
|
2003
|
2004
|
2005
|
||||||||||||
Average tenant improvement costs and leasing commissions per square foot | $ | 23.11 | $ | 33.01 | $ | 21.75 | $ | 18.06 | $ | 25.56 | |||||
Square feet for which leases expire during the twelve months ending June 30, 2007 | 1,245,085 | ||||||||||||||
|
|||||||||||||||
Total estimated tenant improvement and leasing commissions for the twelve months ending June 30, 2007 (in thousands) | $ | 31,824 |
|
Year Ended
December 31, |
|
|
||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Six Months
Ended June 30, 2006 |
Weighted
Average 2003 June 30, 2006 |
|||||||||||||
|
2003
|
2004
|
2005
|
||||||||||||
Recurring capital expenditures (excluding tenant improvements and leasing commissions) per square foot | $ | .21 | $ | .17 | $ | .23 | $ | .18 | $ | .22 | |||||
Total rentable square feet | 11,554,297 | ||||||||||||||
|
|
|
|
|
|||||||||||
Total estimated recurring capital expendituresoffice properties (in thousands) | $ | 2,542 |
|
Year Ended
December 31, |
|
|
||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Six Months
Ended June 30, 2006 |
Weighted
Average 2003 June 30, 2006 |
|||||||||||||
|
2003
|
2004
|
2005
|
||||||||||||
Recurring capital expenditures per unit | $ | 82 | $ | 277 | $ | 183 | $ | 354 | $ | 256 | |||||
Total units | 2,868 | ||||||||||||||
|
|
|
|
|
|||||||||||
Total estimated recurring capital expendituresmultifamily properties (in thousands) | $ | 734 |
49
50
The following table sets forth the historical consolidated capitalization of our predecessor as of June 30, 2006 and our pro forma consolidated capitalization as of June 30, 2006, giving effect to the formation transactions, the financing transactions and this offering, including the use of the net proceeds as set forth in "Use of Proceeds." You should read this table in conjunction with "Use of Proceeds," "Selected Consolidated Financial and Operating Data," "Management's Discussion and Analysis of Financial Condition and Results of OperationsLiquidity and Capital Resources," our unaudited pro forma consolidated financial statements and related notes, the consolidated financial statements and notes thereto of our predecessor and the other financial statements appearing elsewhere in this prospectus.
|
As of June 30, 2006
|
||||||||
---|---|---|---|---|---|---|---|---|---|
|
Predecessor
Historical |
Company
Pro Forma |
|||||||
|
(In thousands
except per share amounts) |
||||||||
Debt: | |||||||||
Secured notes payable (1) (2) | $ | 2,305,500 | $ | 2,781,000 | |||||
Minority interests in real estate partnerships | 741,694 | | |||||||
Minority interest in our operating partnership | | 925,738 | |||||||
Stockholders' equity (deficit): | |||||||||
Common stock and additional paid in capital | | 2,046,992 | |||||||
Retained earnings (deficit) | (27,066 | ) | | ||||||
Notes receivable from stockholders (3) | (60,000 | ) | | ||||||
|
|
||||||||
Total stockholders' equity (deficit) | (87,066 | ) | 2,046,992 | ||||||
|
|
||||||||
Total capitalization | $ | 2,960,128 | $ | 5,753,730 | |||||
|
|
51
Purchasers of our common stock offered in this prospectus will experience an immediate and substantial dilution of the net tangible book value of our common stock from the initial public offering price. At June 30, 2006, we had a net tangible book value of approximately $478.0 million, or $4.38 per share of our common stock held by continuing investors, assuming the exchange of units in our operating partnership into shares of our common stock on a one-for-one basis. After giving effect to the sale of the shares of our common stock offered hereby, including the use of proceeds as described under "Use of Proceeds," and the formation transactions, the financing transactions, the deduction of underwriting discounts and commissions, and estimated offering and formation transaction expenses, the pro forma net tangible book value at June 30, 2006 attributable to common stockholders, including the effects of the grant of options and LTIP units to key employees, would have been $2.79 billion, or $16.91 per share of our common stock. This amount represents an immediate increase in net tangible book value of $21.29 per share to continuing investors and an immediate dilution in pro forma net tangible book value of $3.09 per share from the assumed public offering price of $20.00 per share of our common stock to new public investors. See "Risk FactorsRisks Related to This OfferingDifferences between the book value of the assets to be acquired in the formation transactions and the price paid for our common stock will result in an immediate and material dilution of the book value of our common stock." The following table illustrates this per share dilution:
Assumed initial public offering price per share | $ | 20.00 | ||||
Net tangible book value per share before the formation and refinancing transactions and this offering (1) | (4.38 | ) | ||||
Net increase in pro forma net tangible book value per share attributable to the formation and refinancing transactions and this offering | 21.29 | |||||
|
||||||
Pro forma net tangible book value per share after the formation and refinancing transactions and this offering (2) | 16.91 | |||||
|
||||||
Dilution in pro forma net tangible book value per share to new investors (3) | $ | 3.09 | ||||
|
For an analysis of how this information would change if the share price in the offering is not equal to the mid-point of the range of prices set forth on the cover page of this prospectus, please refer to "Pricing Sensitivity Analysis" included elsewhere in this prospectus.
52
SELECTED HISTORICAL FINANCIAL AND OPERATING DATA
The following table sets forth selected historical financial and operating data on (1) a pro forma basis for our company (which includes the historical operating companies, the institutional funds and the single-asset entities) and (2) a historical basis for our "predecessor." Our "predecessor" includes DERA, as the accounting acquirer, and the institutional funds, and excludes DECO, PLE and the single-asset entities. Our predecessor owned 42 office properties, the fee interest in two parcels of land that we lease to third parties under long-term ground leases and six multifamily properties as of June 30, 2006. DERA consolidated the institutional funds because it had control over major decisions, including decisions related to property sales or refinancings. We have not presented historical financial information for Douglas Emmett, Inc. because we have not had any corporate activity since our formation other than the issuance of shares of common stock in connection with the initial capitalization of our company and activity in connection with this offering, the formation transactions and the financing transactions, and because we believe that a discussion of the results of Douglas Emmett, Inc. would not be meaningful. In addition, we have not presented historical financial information for DECO, PLE or the single-asset entities because we believe that a discussion of the predecessor is more meaningful.
You should read the following selected financial and operating data in conjunction with "Management's Discussion and Analysis of Financial Condition and Results of Operations" and the audited consolidated historical financial statements and related notes of our predecessor.
The selected historical consolidated financial and operating data as of and for the years ended December 31, 2003, 2004 and 2005 have been derived from the audited historical consolidated financial statements of our predecessor. The selected historical consolidated financial and operating data as of and for the years ended December 31, 2001 and 2002, the selected historical consolidated balance sheet information as of June 30, 2006 and the consolidated statements of operations data for the six months ended June 30, 2005 and 2006 have been derived from the unaudited consolidated financial statements of our predecessor. In the opinion of management, the selected unaudited historical consolidated financial information for the interim periods presented includes all adjustments (consisting of only normal recurring adjustments) necessary to present fairly the information set forth therein. Our results of operations for interim periods are not necessarily indicative of the results to be obtained for the full fiscal year.
Our selected unaudited pro forma consolidated financial and operating data have been derived from our unaudited pro forma consolidated financial statements included elsewhere in this prospectus and assume a share price in this offering at the mid-point of the range set forth on the cover page of this prospectus. Our unaudited pro forma consolidated financial and operating data as of and for the six months ended June 30, 2006 and for the year ended December 31, 2005 are derived from the audited and unaudited financial statements of our predecessor, DECO, PLE, and the single-asset entities included elsewhere in this prospectus and are presented as if the formation transactions, the financing transactions, this offering, the $60.0 million DERA contribution and the application of the net proceeds thereof, had all occurred on June 30, 2006 for the pro forma consolidated balance sheet and on January 1, 2005 for the pro forma consolidated statements of operations. Additionally the pro forma consolidated statements of operations are presented as if the acquisition of the Villas at Royal Kunia, consummated on March 1, 2006, along with the related financing, had occurred on January 1, 2005.
53
|
Six Months Ended June 30,
|
Year Ended December 31,
|
||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Company
Pro Forma |
Historical Predecessor
|
Company
Pro Forma |
Historical Predecessor
|
||||||||||||||||||
|
2006
|
2006
|
2005
|
2005
|
2005
|
2004
|
2003
|
2002
|
2001
|
|||||||||||||
|
(Unaudited)
|
(Unaudited)
|
(Unaudited)
|
(Unaudited)
|
|
|
|
(Unaudited)
|
(Unaudited)
|
|||||||||||||
|
(In thousands)
|
|||||||||||||||||||||
Statement of Operations Data: | ||||||||||||||||||||||
Revenues: | ||||||||||||||||||||||
Office rental: | ||||||||||||||||||||||
Rental revenue (1) | $175,792 | $150,519 | $144,200 | $338,150 | $297,551 | $249,402 | $246,369 | $215,825 | $176,496 | |||||||||||||
Tenant recoveries | 9,101 | 8,903 | 6,599 | 14,979 | 14,632 | 9,439 | 9,386 | 7,789 | 5,312 | |||||||||||||
Parking and other income | 20,470 | 20,031 | 18,648 | 37,123 | 36,383 | 27,797 | 27,557 | 21,413 | 21,605 | |||||||||||||
|
|
|
|
|
|
|
|
|
||||||||||||||
Total office revenue | 205,363 | 179,453 | 169,447 | 390,252 | 348,566 | 286,638 | 283,312 | 245,027 | 203,413 | |||||||||||||
Multifamily rental: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||
Rental revenue (2) | 30,198 | 25,900 | 21,360 | 61,015 | 43,942 | 32,787 | 31,070 | 31,960 | 28,581 | |||||||||||||
Parking and other income | 944 | 824 | 560 | 1,909 | 1,280 | 1,006 | 924 | 762 | 638 | |||||||||||||
|
|
|
|
|
|
|
|
|
||||||||||||||
Total multifamily revenue | 31,142 | 26,724 | 21,920 | 62,924 | 45,222 | 33,793 | 31,994 | 32,722 | 29,219 | |||||||||||||
|
|
|
|
|
|
|
|
|
||||||||||||||
Total revenue | 236,505 | 206,177 | 191,367 | 453,176 | 393,788 | 320,431 | 315,306 | 277,749 | 232,632 | |||||||||||||
Operating Expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||
Office rental | 57,902 | 61,132 | 59,021 | 113,939 | 119,879 | 103,407 | 96,771 | 83,450 | 67,192 | |||||||||||||
Multifamily rental | 8,427 | 8,696 | 7,315 | 16,312 | 15,347 | 13,219 | 11,765 | 11,685 | 11,070 | |||||||||||||
General and administrative expenses | 7,354 | 3,136 | 3,193 | 14,997 | 6,457 | 5,646 | 5,195 | 3,877 | 3,591 | |||||||||||||
Depreciation and amortization (3) | 98,714 | 53,616 | 57,672 | 221,720 | 113,170 | 91,306 | 92,559 | 76,753 | 57,524 | |||||||||||||
|
|
|
|
|
|
|
|
|
||||||||||||||
Total operating expenses | 172,397 | 126,580 | 127,021 | 366,968 | 254,853 | 213,578 | 206,290 | 175,765 | 139,377 | |||||||||||||
|
|
|
|
|
|
|
|
|
||||||||||||||
Operating income | 64,108 | 79,597 | 64,166 | 86,208 | 138,935 | 106,853 | 109,016 | 101,984 | 93,255 | |||||||||||||
Gain (loss) on investment in interest contracts, net |
|
|
|
59,967 |
|
6,300 |
|
|
|
81,666 |
|
37,629 |
|
23,583 |
|
(47,644 |
) |
(17,133 |
) |
|||
Interest and other income | 1,715 | 2,548 | 746 | 544 | 2,264 | 1,463 | 514 | 2,294 | 1,764 | |||||||||||||
Interest expense (4) | (85,399 | ) | (58,055 | ) | (52,356 | ) | (175,846 | ) | (115,674 | ) | (95,125 | ) | (94,783 | ) | (81,121 | ) | (73,712 | ) | ||||
Deficit recovery (distributions) from/(to) minority partners, net (5) | | 6,248 | (47,652 | ) | | (28,150 | ) | (57,942 | ) | | | | ||||||||||
|
|
|
|
|
|
|
|
|
||||||||||||||
Income (loss) before minority interest expense | (19,576 | ) | 90,305 | (28,796 | ) | (89,094 | ) | 79,041 | (7,122 | ) | 38,330 | (24,487 | ) | 4,174 | ||||||||
Minority Interest: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||
Minority interest expense in consolidated real estate partnerships | | (64,434 | ) | (8,843 | ) | | (79,756 | ) | (47,144 | ) | (30,944 | ) | 29,889 | 1,846 | ||||||||
Minority interest in operating partnership | (6,096 | ) | | | (27,744 | ) | | | | | | |||||||||||
Preferred minority investor | | (8,050 | ) | (7,755 | ) | | (15,805 | ) | (2,499 | ) | | | | |||||||||
|
|
|
|
|
|
|
|
|
||||||||||||||
Income (loss) from continuing operations | (13,480 | ) | 17,821 | (45,394 | ) | (61,350 | ) | (16,520 | ) | (56,765 | ) | 7,386 | 5,402 | 6,020 | ||||||||
Income from discontinued operations, net of minority interest | | | | | | 174 | 239 | 11,470 | 474 | |||||||||||||
|
|
|
|
|
|
|
|
|
||||||||||||||
Net income / (loss) | $(13,480 | ) | $17,821 | $(45,394 | ) | $(61,350 | ) | $(16,520 | ) | $(56,591 | ) | $7,625 | $16,872 | $6,494 | ||||||||
|
|
|
|
|
|
|
|
|
54
|
Six Months Ended June 30,
|
Year Ended December 31,
|
|||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Company
Pro Forma |
Historical
Predecessor |
Company
Pro Forma |
Historical Predecessor
|
|||||||||||||||||||||
|
2006
|
2006
|
2005
|
2005
|
2004
|
2003
|
2002
|
2001
|
|||||||||||||||||
|
(Unaudited)
|
(Unaudited)
|
(Unaudited)
|
|
|
|
(Unaudited)
|
(Unaudited)
|
|||||||||||||||||
|
(In thousands, except per share data) |
||||||||||||||||||||||||
Balance Sheet Data (at end of period): | |||||||||||||||||||||||||
Investment in real estate, net | $ | 5,864,616 | $ | 2,707,477 | | $ | 2,622,484 | $ | 2,398,980 | $ | 2,222,854 | $ | 2,293,636 | $ | 2,082,191 | ||||||||||
Total assets | 6,084,744 | 3,056,568 | | 2,904,647 | 2,585,697 | 2,356,296 | 2,415,429 | 2,168,433 | |||||||||||||||||
Secured notes payable | 2,781,000 | 2,305,500 | | 2,223,500 | 1,982,655 | 1,716,200 | 1,577,188 | 1,390,758 | |||||||||||||||||
Total liabilities | 3,112,014 | 2,401,940 | | 2,313,922 | 2,069,473 | 1,842,971 | 1,689,934 | 1,459,183 | |||||||||||||||||
Minority interests in real estate partnerships | | 741,694 | | 688,516 | 579,838 | 496,838 | 708,444 | 695,423 | |||||||||||||||||
Minority interests in operating partnership | 925,738 | | | | | | | | |||||||||||||||||
Stockholders' / owners' equity | 2,046,992 | (87,066 | ) | | (97,791 | ) | (63,614 | ) | 16,487 | 17,051 | 13,827 | ||||||||||||||
Total liabilities and stockholders' / owners' equity | 6,084,744 | 3,056,568 | | 2,904,647 | 2,585,697 | 2,356,296 | 2,415,429 | 2,168,433 | |||||||||||||||||
Per Share Data: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
Pro forma earnings (loss) per sharebasic and diluted | |||||||||||||||||||||||||
Pro forma weighted average common shares outstandingbasic and diluted | |||||||||||||||||||||||||
Other Data: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
Cash flows from | |||||||||||||||||||||||||
Operating activities | 69,967 | 127,811 | 92,767 | 113,950 | |||||||||||||||||||||
Investing activities | (138,340 | ) | (231,157 | ) | (223,574 | ) | 2,163 | ||||||||||||||||||
Financing activities | 60,593 | 103,768 | 167,817 | (116,322 | ) | ||||||||||||||||||||
Funds from operations before minority interest (6) | $79,138 | $132,626 | |||||||||||||||||||||||
EBITDA before minority interest (7) | 164,537 | 308,472 | |||||||||||||||||||||||
Number of properties (at end of period) | 55 | 48 | 55 | 47 | 45 | 43 | 46 | 46 |
55
deferred financing costs) and after adjustments for unconsolidated partnerships and joint ventures. Management uses FFO as a supplemental performance measure because, in excluding real estate depreciation and amortization and gains and losses from property dispositions, it provides a performance measure that, when compared year over year, captures trends in occupancy rates, rental rates and operating costs. We also believe that, as a widely recognized measure of the performance of REITs, FFO will be used by investors as a basis to compare our operating performance with that of other REITs. However, because FFO excludes depreciation and amortization and captures neither the changes in the value of our properties that results from use or market conditions nor the level of capital expenditures and leasing commissions necessary to maintain the operating performance of our properties, all of which have real economic effect and could materially impact our results from operations, the utility of FFO as a measure of our performance is limited. Other equity REITs may not calculate FFO in accordance with the NAREIT definition and, accordingly, our FFO may not be comparable to such other REITs' FFO. Accordingly, FFO should be considered only as a supplement to net income as a measure of our performance. FFO should not be used as a measure of our liquidity, nor is it indicative of funds available to fund our cash needs, including our ability to pay dividends. FFO should not be used as a supplement to or substitute for cash flow from operating activities computed in accordance with GAAP. The following table sets forth a reconciliation of our pro forma funds from operations before minority interests to net loss for the periods presented (in thousands):
|
|
Pro Forma |
|
|||||
---|---|---|---|---|---|---|---|---|
|
Six Months
Ended June 30, 2006 |
Year Ended
December 31, 2005 |
||||||
Net loss | $(13,480 | ) | $ | (61,350 | ) | |||
Adjustments: | ||||||||
Minority interest in operating partnership | (6,096 | ) | (27,744 | ) | ||||
Real estate depreciation and amortization | 98,714 | 221,720 | ||||||
|
|
|||||||
Funds from operations before minority interest (a) | $ | 79,138 | $ | 132,626 | ||||
|
|
56
|
Pro Forma
|
|||||||
---|---|---|---|---|---|---|---|---|
|
Six Months
Ended June 30, 2006 |
Year Ended
December 31, 2005 |
||||||
Net loss | $(13,480 | ) | $ | (61,350 | ) | |||
Adjustments: | ||||||||
Interest expense | 85,399 | 175,846 | ||||||
Depreciation and amortization | 98,714 | 221,720 | ||||||
Minority interest in operating partnership | (6,096 | ) | (27,744 | ) | ||||
|
|
|||||||
EBITDA before minority interest (a) | $ | 164,537 | $ | 308,472 | ||||
|
|
57
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with "Selected Consolidated Financial Data," "Structure and Formation of Our Company," our pro forma consolidated financial statements and related notes and the historical consolidated financial statements and related notes of our "predecessor," included elsewhere in this prospectus. Our "predecessor" includes Douglas Emmett Realty Advisors, Inc., or DERA, as the accounting acquirer, and its consolidated subsidiaries, nine California real estate limited partnerships that own, directly or indirectly, office and multifamily properties and fee interests in land subject to ground leases. We refer to these nine limited partnerships as the "institutional funds." In the formation transactions described below, we will acquire our predecessor, as well as Douglas, Emmett and Company, or DECO, P.L.E. Builders, Inc., or PLE, and seven California limited partnerships and one California limited liability company, which we refer to collectively as the "single-asset entities." Each single-asset entity owns, directly or indirectly, one multifamily or office property (or, in one case, a fee interest in land subject to a ground lease). As used in this section, unless the context otherwise requires, "we," "us," "our" and "our company" mean our predecessor for the periods presented and Douglas Emmett, Inc. and its consolidated subsidiaries upon consummation of this offering and the formation transactions.
Overview
Our Company. Douglas Emmett, Inc. is a Maryland corporation formed on June 28, 2005 to continue and expand the operations of DERA, DECO and PLE and their predecessor entities, which we refer to as our historical operating companies. We are engaged in acquiring, owning, managing, repositioning and redeveloping real estate consisting primarily of office (including ancillary retail space) and multifamily properties located in Los Angeles County, California and Honolulu, Hawaii. For all periods presented, DERA was the general partner of, and had responsibility for the asset management of, our predecessor. As of each of December 31, 2005 and June 30, 2006, our predecessor owned 42 office properties and the fee interest in two parcels of land that we lease to third parties under long-term ground leases, and as of December 31, 2005 and June 30, 2006, our predecessor owned five and six multifamily properties, respectively. As of each of December 31, 2005 and June 30, 2006, the single-asset entities owned four office properties, three multifamily properties and the fee interest in one parcel of land that we lease to third parties under long-term ground leases, and for all periods presented were under the common management of DECO. DECO provides property management and leasing services to all of the properties to be acquired in the formation transactions, and PLE provides construction services in connection with improvements to tenant suites and common areas in the properties.
Douglas Emmett, Inc. has not had any corporate activity since its formation, other than the issuance of 100 shares of its common stock to two of our predecessor principals in connection with the initial capitalization of the company and activities in preparation for this offering and the formation transactions. Accordingly, we believe that a discussion of the results of Douglas Emmett, Inc. would not be meaningful, and we have therefore set forth below a discussion regarding the historical operations of our predecessor only. Our predecessor does not include DECO, PLE or the single-asset entities, collectively the "non-predecessor entities." For periods after consummation of this offering, our operations will include their operations. We have not included a separate discussion of the financial condition and results of operations of DECO, PLE or the single-asset entities because we believe that a discussion of our predecessor is more meaningful for investors. However, we have included elsewhere in this prospectus: (1) financial statements of DECO as of December 31, 2004 and 2005 and June 30, 2006, for the years ended December 31, 2003, 2004 and 2005, and for the six months ended June 30, 2005 and 2006; and (2) combined statements of revenues and certain expenses of the single-asset entities for the years ended December 31, 2003, 2004 and 2005 and for the six months ended June 30, 2005 and 2006. Given the size of PLE's operation, we have not included separate financial statements
58
as we do not believe that PLE's historical financial information is meaningful to an understanding of our operations.
Acquisitions, Dispositions and Repositionings. The following sets forth the acquisition, disposition and repositioning activity for our predecessor for the periods presented. There were no such activities at the non-predecessor entities during these periods.
Office Property Acquisitions
Multifamily Property Acquisitions
Dispositions
The properties disposed of in 2003 were included in discontinued operations for the year ended December 31, 2003, and the property disposed of in 2004 was included in discontinued operations for each of the years ended December 31, 2003 and 2004 and, therefore, such properties did not impact the results of continuing operations for all comparable periods.
Repositionings. A property is generally selected for repositioning at the time we purchase it. We often strategically purchase properties with large vacancies or expected near-term lease roll-over and use our well-developed knowledge of the property and submarket to determine the optimal use and tenant mix. Generally, a repositioning consists of a range of improvements to a property. A repositioning may involve a complete structural renovation of a building to significantly upgrade the character of the property, or it may involve targeted remodeling of common areas and tenant spaces to make the property more attractive to certain identified tenants. Although each repositioning effort is unique and determined based on the property, tenants and overall trends in the general market and specific submarket, each repositioning has resulted in a period of varying degrees of depressed rental revenue and occupancy levels for the affected property, which impacts our results and, accordingly, comparisons of our performance from period to period. The repositioning process generally occurs in stages over the course of months or even years. During the periods presented, we had a number of
59
on-going repositioning efforts on six of our office properties representing 14 buildings and approximately 4.2 million rentable square feet, which we refer to below as the repositioning properties. The repositioning properties exclude properties acquired during the periods presented that are undergoing repositioning efforts, as these properties are discussed within the context of acquisitions.
Significant Financing Transactions
Historical. In December 2004, we refinanced $218.0 million of indebtedness, secured by four multifamily properties, at floating interest rates of Discount Mortgage-Backed Securities, or DMBS, plus 0.45% and 0.63%, with $293.0 million of indebtedness, secured by the same properties, at a floating interest rate of DMBS plus 0.60%, in order to increase the principal amount and extend the maturities on the loans from 2008 to 2011. In June 2005, we entered into swap transactions to fix the interest rate on these loans at 4.70%. In the discussion below, we refer to this transaction as the "December 2004 refinancing." In August 2005, we refinanced approximately $1.70 billion of indebtedness, secured by 40 office properties, at a weighted-average interest rate (after giving effect to related interest rate contracts and assuming London Interbank Offered Rate, or LIBOR, of 3.87% as of August 2005) of approximately 5.09% with $1.76 billion of term indebtedness, secured by 30 office properties, at an interest rate (after giving effect to related interest rate contracts) of approximately 4.93%. The purpose of this transaction was to lower the interest rate spread on the applicable loans, unencumber ten of the properties that had previously been securing the debt, and extend the maturity of the existing debt from between 2006 and 2009 to 2012. In the discussion below, we refer to this transaction as the "August 2005 refinancing."
Concurrent with this Offering. We have entered into agreements to amend our existing $1.76 billion secured term loan with Eurohypo AG and Barclays Capital to increase the principal amount of the term loan by $545.0 million at the same interest rate of LIBOR plus 0.85% and on substantially the same terms, but with additional properties securing the loan. We expect to use the entire $545.0 million in connection with this offering, the formation transactions and the financing transactions. We refer to this contemplated refinancing as our "modified term loan." The closing of the modified term loan is contingent on satisfaction of customary conditions and the consummation of this offering. We have also entered into an agreement with Bank of America, N.A. and Banc of America Securities LLC to provide a senior secured revolving credit facility allowing borrowings of up to $250.0 million (or $500.0 million pursuant to an accordion feature), which we expect to be undrawn at the completion of this offering, assuming an offering price at the mid-point of the range set forth on the cover page of this prospectus. On a pro forma basis as of June 30, 2006, we would have had total indebtedness of $2.75 billion, excluding loan premium, and our ratio of debt to total market capitalization would have been 45.5%, assuming an offering price at the mid-point of the range set forth on the cover page of this prospectus. Our total market capitalization is defined as the sum of the market value of our outstanding common stock, plus the aggregate value of outstanding operating partnership units not owned by us, including vested LTIP units, plus the book value of our total consolidated indebtedness, excluding loan premium. For additional information regarding the modified term loan and the senior secured revolving credit facility, please refer to "Liquidity and Capital Resources" below and "Business and PropertiesDescription of Certain Debt."
Formation Transactions. Concurrently with this offering, we will complete the formation transactions, pursuant to which we will acquire, through a series of merger and contribution transactions, all of the interests in our predecessor and the non-predecessor entities. As a result of the formation transactions, we will acquire a total of 55 properties (42 office properties and six multifamily properties from our predecessor, and four office properties and three multifamily properties from the single-asset entities) as well as certain fee interests in three parcels of land subject to ground leases and the other assets and operations of our predecessor and the non-predecessor entities. To acquire the interests in these entities from the holders thereof, or the "prior investors," we will issue to the prior
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investors an aggregate of 58,617,573 shares of our common stock and 50,512,427 units in our operating partnership with an aggregate value of $2.18 billion, assuming an offering price at the mid-point of the range set forth on the cover page of this prospectus, and we will pay to the prior investors $1.38 billion in cash, which would be provided from the net proceeds of this offering, the financing transactions and cash on hand, including the $60.0 million capital contribution made by our predecessor principals in March 2006 to DERA. In the formation transactions, the predecessor principals will receive shares of our common stock valued at the price to the public in this offering for their DERA stock.
If the underwriters' over-allotment option is exercised in full, we will use the additional gross proceeds of $165.0 million (assuming an offering price at the mid-point of the range set forth on the cover page of this prospectus) to increase the cash consideration payable to the prior investors, and to correspondingly reduce the equity consideration payable to them. In such case, the prior investors would receive an aggregate of 51,305,462 shares of our common stock and 49,574,538 units in our operating partnership with an aggregate value of $2.02 billion, assuming an offering price at the mid-point of the range set forth on the cover page of this prospectus, and we would pay them $1.55 billion in cash. As a result, our outstanding shares of common stock on a fully diluted basis would not change. The additional underwriters' commissions of $8.7 million would be financed with borrowings on our senior secured revolving credit facility.
Because DERA is the accounting acquiror, any interests contributed by or purchased from DERA in the formation transactions will be recorded at historical cost. The acquisition of interests other than those directly owned by DERA in the formation transactions will be accounted for as an acquisition under the purchase method of accounting in accordance with SFAS No. 141, Business Combinations and recorded at the estimated fair value of acquired assets and assumed liabilities corresponding to their ownership interests. The fair values of tangible assets acquired are determined on an as-if-vacant basis. The as-if-vacant fair value will be allocated to land, building, tenant improvements and the value of in-place leases based on our own market knowledge and published market data, including current rental rates, expected downtime to lease up vacant space, tenant improvement construction costs, leasing commissions and recent sales on a per square foot basis for comparable properties in our sub-markets. The estimated fair value of acquired in-place at-market leases are the costs we would have incurred to lease the property to the occupancy level of the property at the date of acquisition. Such estimates include the fair value of leasing commissions and legal costs that would be incurred to lease this property to this occupancy level. Additionally, we evaluate the time period over which such occupancy level would be achieved and include an estimate of the net operating costs (primarily real estate taxes, insurance and utilities) incurred during the lease-up period, which generally ranges up to 8-12 months. Above-market and below-market in-place lease values are recorded as an asset or liability based on the present value (using an interest rate which reflects the risks associated with the leases acquired) of the difference between the contractual amounts to be paid pursuant to the in-place leases and our estimate of fair market lease rates for the corresponding in-place leases, measured over a period equal to the remaining non-cancelable term of the lease for office property leases and our estimate of the remaining life of the tenancy for multifamily property tenants. The fair value of the variable rate debt assumed was determined using current market interest rates for comparable debt financings.
Upon consummation of this offering and the formation transactions, we expect our operations to be carried on through Douglas Emmett Properties, LP, our operating partnership, which we formed on July 25, 2005. Consummation of the formation transactions will enable us to consolidate our asset management, property management, leasing, tenant improvement construction, acquisition and financing businesses into our operating partnership; consolidate the ownership of our property portfolio under our operating partnership; facilitate this offering; and qualify as a real estate investment trust for federal income tax purposes commencing with the taxable year ending December 31, 2006. As a result, we expect to be a fully integrated, self-administered and self-managed real estate company with approximately 400 employees providing substantial in-house expertise in asset management, property
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management, leasing, tenant improvement construction, acquisitions, repositioning, redevelopment and financing.
Revenue Base. We operate our business in two segments: office and multifamily. Historically, the office segment has represented a substantial majority of our overall business. Although our multifamily segment has grown recently with the purchases of Moanalua Hillside Apartments in January 2005 and Villas at Royal Kunia in March 2006, we expect that our office segment will remain larger than our multifamily segment. For the years ended December 31, 2003, 2004 and 2005 and the six months ended June 30, 2006, the office segment contributed 89.9%, 89.5%, 88.5% and 87.0%, respectively, of our predecessor's total revenue, while the multifamily segment contributed 10.1%, 10.5%, 11.5% and 13.0%, respectively, of such revenue. As of December 31, 2003 and 2004, our predecessor owned 39 and 41 office properties, respectively, and four multifamily properties. As of December 31, 2005 and June 30, 2006, our predecessor owned 42 office properties, and as of December 31, 2005 and June 30, 2006, they owned five and six multifamily properties, respectively. As of June 30, 2006 these office properties were approximately 93.0% leased at an average annualized rent per leased square foot of $30.44, and these multifamily properties were approximately 99.6% leased at an average monthly rent per leased unit of $1,677. Upon consummation of this offering and the formation transactions, we will acquire from our predecessor and the non-predecessor entities an aggregate of 46 office properties and nine multifamily properties, as well as the fee interests in three parcels of land subject to ground leases, in one of which we will own a one-sixth undivided tenancy-in-common interest. All of these properties are located in Los Angeles County, California and Honolulu, Hawaii. Our portfolio will contain a total of approximately 11.6 million office rentable square feet and 2,868 multifamily units.
Leases
Office Leases. Historically, our predecessor primarily leased office properties to tenants on a full service gross or triple net lease basis, and we expect to continue to do so in the future. A full service gross lease has a base year expense stop, whereby the tenant pays a stated amount of expenses as part of the rent payment, while future increases (above the base year stop) in property operating expenses are billed to the tenant based on such tenant's proportionate square footage in the property. The increased property operating expenses billed are reflected in operating expense and amounts recovered from tenants are reflected as tenant recoveries in the statements of income. In a triple net lease, the tenant is responsible for all property taxes and operating expenses. As such, the base rent payment does not include any operating expense, but rather all such expenses are billed to the tenant. The full amount of the expenses for this lease type is reflected in operating expenses, and the reimbursement is reflected in tenant recoveries. Our tenants in Los Angeles County, California predominantly have full service gross leases, and our tenants in Honolulu, Hawaii predominantly have triple net leases.
Multifamily Leases. Our multifamily leases generally have a one-year term that automatically transfers to month-to-month upon expiration of the term. Tenants normally pay a base rental amount, usually quoted in terms of a monthly rate for the respective unit.
Deficit Distributions to Minority Partners. Deficit distributions to minority partners are recorded as an expense in the statements of operations of our predecessor. When the institutional funds made cash distributions to their limited partners unaffiliated with DERA in excess of the carrying amount of such limited partners' interests, a charge equal to the amount of such excess distributions was recorded as deficit distributions to minority partners, even though there was no effect or cost relating to our operations. We do not expect to make cash distributions in excess of the carrying amount of the minority interests in the operating partnership after completion of this offering and the formation transactions.
Interest Rate Contracts. Any change in fair value of interest rate contracts of our predecessor was recorded as a gain or loss in the statement of operations because such contracts did not qualify as
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effective hedges under SFAS No. 133, Accounting for Derivative Instruments and Hedging Activities (SFAS 133, as amended by SFAS 138). As discussed in more detail below under "Liquidity and Capital ResourcesInterest Rate Risk." In conjunction with this offering, we intend to enter into a series of interest rate swaps that effectively offset any future changes in the fair value of all of our existing interest rate contracts. These new interest rate contracts will also not qualify for hedge accounting under SFAS 133. Our existing interest rate contracts resulted in an asset with a fair value of $137.5 million and a liability with a fair value of $11.6 million as of June 30, 2006. These offsetting interest rate contracts will result in these values being "locked-in" on the offering date. We will collect over the remaining life of these interest rate contracts an amount equal to the net fair value recorded.
We also intend to enter into a new series of interest rate swap contracts that will effectively hedge our variable rate debt from future changes in interest rates. Unlike the interest rate contracts described above, we expect the new interest rate contracts to qualify for cash flow hedge accounting treatment under SFAS 133, and as such, all future changes in fair value of the new interest rate contracts for periods after this offering will be recognized in other comprehensive income until the hedged item is recognized in earnings. Any ineffective portion of the new interest rate contracts' change in fair value is immediately recognized in earnings.
Historical Investment Performance of the Institutional Funds
DERA has been the general partner and asset manager of each of the nine institutional funds throughout their history. Our historical operating companies have been responsible for all acquisition, disposition, asset management, property management, leasing, and development/redevelopment activities for the institutional funds. The activities of the institutional funds have comprised all of the investment activity of DERA since its inception.
The table below presents the internal rate of return, or IRR, and the average annual operating return of each of the institutional funds since its respective date of inception. The calculations of IRR reflect the distribution of consideration in the formation transactions based on per share or unit amounts of $20.00, the mid-point of the range set forth on the cover page of this prospectus, and the other assumptions and methodologies set forth in the footnotes to the table.
When considering the data in the table below, you should consider that the historical results of the institutional funds may not be indicative of the future results that you should expect from an investment in our common stock. In particular, our results could vary significantly from the historical results due to the fact that:
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Other factors that may cause future results to be materially lower than the returns previously achieved by the institutional funds include the additional risks, uncertainties and other factors that are described elsewhere in this prospectus, including under "Risk Factors." In assessing the significance of the IRR for any particular fund, it is important to note that higher IRRs are generally more readily achieved over shorter periods, which therefore tend not to be representative of longer term investment performance of a particular institutional fund.
The following table sets forth a summary of contributions, distributions, consideration received in the formation transactions and internal rates of return of the nine institutional funds:
Fund
|
Inception
Date (1) |
Aggregate Net
Contributions (2) (3) |
Aggregate Net
Distributions (2) (4) |
Value of
Consideration in Formation Transactions (5) |
Average Annual Operating Return
(6)
|
Internal
Rate of Return (7) |
|||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Douglas Emmett Realty Fund | Feb 1994 | $ | 88,800,000 | $ | 211,282,459 | 207,742,259 | 12.72 | % | 20.44 | % | |||||
Douglas Emmett Realty Fund No. 2 | Sept 1994 | 21,212,121 | 49,609,741 | 49,589,772 | 12.93 | % | 21.36 | % | |||||||
Douglas Emmett Realty Fund 1995 | Feb 1996 | 186,449,990 | 368,083,536 | 305,665,549 | 12.86 | % | 21.98 | % | |||||||
Douglas Emmett Realty Fund 1996 | May 1997 | 190,485,001 | 307,339,006 | 354,097,126 | 10.44 | % | 23.90 | % | |||||||
Douglas Emmett Realty Fund 1997 | July 1998 | 246,030,003 | 235,313,003 | 591,248,323 | 7.91 | % | 20.37 | % | |||||||
Douglas Emmett Realty Fund 1998 | Aug 1999 | 144,527,986 | 97,560,753 | 456,245,924 | 6.42 | % | 23.90 | % | |||||||
Douglas Emmett Realty Fund 2000 | June 2001 | 263,956,878 | 52,756,002 | 816,001,694 | 5.62 | % | 32.11 | % | |||||||
Douglas Emmett Realty Fund 2002 | July 2004 | 152,080,988 | 6,025,006 | 307,237,467 | 3.82 | % | 43.93 | % | |||||||
Douglas Emmett Realty Fund 2005 | Feb 2006 | 43,000,000 | | 80,745,790 | 4.95 | % | 157.32 | % |
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attributable to the interest of the general partner. If in a single month both capital contributions are made by partners and cash distributions are made to partners, then Aggregate Net Distributions only includes the net amount, if any, by which aggregate cash distributions exceed aggregate capital contributions.
Factors That May Influence Our Operating Results
Business and Strategy. We expect to continue our strategy of growth through proactive asset and property management at existing properties and through selective acquisitions, repositioning and redevelopment. Our core strategy has been to own and operate office and multifamily properties within submarkets that are supply constrained, have high barriers to entry, exhibit strong economic characteristics and offer proximity to high-end executive housing and key lifestyle amenities. We often acquire properties with significant vacancies upon acquisition that we believe we can manage and lease in a manner that will increase their cash flow. In addition, we intend to continue to redevelop and reposition properties to increase rental and occupancy rates at these properties.
Since 2003, we experienced increasing occupancy rates in our Los Angeles County office properties, which we believe was due in part to the general economic recovery that took place after the relative economic slowdown that began in late 2000. We also saw rental rate growth, which typically follows occupancy growth, beginning in 2005. In addition, we have generally experienced fairly stable occupancy rates at our multifamily properties in recent years, and we began to see rental rate growth in 2005, as a result of higher demand. We expect these trends to continue in the near term as a result of continuing positive factors affecting our markets, growth of the local economy and the lease-up of our repositioning properties.
We expect to continue to acquire properties subject to existing mortgage financing and other indebtedness or to incur indebtedness in connection with acquiring or refinancing these properties. Historically, we have financed our properties with floating rate debt, where possible, hedged with interest rate swaps or caps, where appropriate, since we value the flexibility that this borrowing strategy affords. Debt service on such indebtedness will have a priority over any dividends with respect to our common stock.
Rental Revenue. We receive income primarily from rental revenue from our office and multifamily properties and parking garages at those properties. The amount of rental revenue generated by the properties in our portfolio depends principally on our ability to maintain the occupancy rates of currently leased space and to lease currently available space and space available from lease
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terminations. The properties that will comprise our initial portfolio upon completion of this offering and the formation transactions were approximately 93.1% leased for our office properties and approximately 99.6% leased for our multifamily properties. The amount of rental revenue generated by us also depends on our ability to maintain or increase rental rates at our properties. Future economic downturns or regional downturns affecting our submarkets that impair our ability to renew or re-lease space and the ability of our tenants to fulfill their lease commitments, as in the case of tenant bankruptcies, could adversely affect our ability to maintain or increase rental rates at our properties. Negative trends in one or more of these factors could adversely affect our rental revenue in future periods.
Scheduled Lease Expirations. Our ability to re-lease space subject to expiring leases will impact our results of operations and is affected by economic and competitive conditions in our markets as well as the desirability of our individual properties. As of June 30, 2006, in addition to approximately 800,923 rentable square feet of currently available space in our office properties that will comprise our initial portfolio, leases representing approximately 5.9% and 11.1% of the rentable square footage of such portfolio are scheduled to expire during the six months ending December 31, 2006 and the twelve months ending December 31, 2007, respectively. The leases scheduled to expire in the six months ending December 31, 2006 and the twelve months ending December 31, 2007 represent approximately 6.8% and 13.0%, respectively, of the total annualized rent for our initial portfolio.
Conditions in Our Markets. The properties in our portfolio are located in either Los Angeles County, California or Honolulu, Hawaii. Positive or negative changes in economic or other conditions, adverse weather conditions and natural disasters in these markets may impact our overall performance.
Operating Expenses. Our operating expenses generally consist of utilities, property and ad valorem taxes, insurance and site maintenance costs. Increases in these expenses over tenants' base years are generally passed on to tenants in our Los Angeles County office properties and are generally paid in full by tenants in our Hawaii office properties, as well as rental expenses on the two ground leases and the Harbor Court lease where we are the lessee. As a public company, we estimate our annual general and administrative expenses will increase by $6 million to $8 million initially due to increased legal, insurance, accounting and other expenses related to corporate governance, SEC reporting and other compliance matters, compared to our predecessor's operations. In addition, properties in our portfolio may be reassessed after the consummation of this offering. Therefore, the amount of property taxes we pay in the future may increase substantially from what we have paid in the past. Given the uncertainty of the amounts involved, we have not included any property tax increase in our pro forma financial statements.
Critical Accounting Policies
Our discussion and analysis of the historical financial condition and results of operations of our predecessor are based upon their consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States, or GAAP. The preparation of these financial statements in conformity with GAAP requires management to make estimates and assumptions in certain circumstances that affect the reported amounts of assets and liabilities at the date of the financial statements and the reported amount of revenues and expenses in the reporting period. Actual amounts may differ from these estimates and assumptions. We have provided a summary of our significant accounting policies in note 2 to the consolidated financial statements of our predecessor included elsewhere in this prospectus. We have summarized below those accounting policies that require material subjective or complex judgments and that have the most significant impact on our financial conditions and results of operations. We evaluate these estimates on an ongoing basis, based upon information currently available and on various assumptions that we believe are reasonable as of the date hereof. In addition, other companies in similar businesses may use
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different estimation policies and methodologies, which may impact the comparability of our results of operations and financial conditions to those of other companies.
Consolidation of Limited Partnerships. In March 2005, the Emerging Issues Task Force (EITF) of the Financial Accounting Standards Board (FASB) reached a consensus on Issue No. 04-05, Investor's Accounting for an Investment in a Limited Partnership When the Investor Is the Sole General Partner and the Limited Partners Have Certain Rights . EITF 04-5 clarifies certain aspects of Statement of Position 78-9, Accounting for Investments in Real Estate Ventures , and provides guidance on determining whether a sole general partner in a limited partnership should consolidate its investment in a limited partnership. DERA is the sole general partner of the institutional funds and the limited partners of the institutional funds do not have substantive "kick-out" or participation rights as defined by EITF 04-5. DERA early adopted the guidance of EITF 04-5 and has consolidated the institutional funds retrospectively.
The accompanying consolidated financial statements represent the historical financial statements of our predecessor, which include the accounts of DERA and the institutional funds. All significant intercompany balances and transactions have been eliminated in the consolidated financial statements.
Investment in Real Estate. Acquisitions of properties and other business combinations subsequent to June 30, 2001, the effective date of SFAS No. 141, Business Combinations , are accounted for utilizing the purchase method and, accordingly, the results of operations of acquired properties are included in our results of operations from the respective dates of acquisition. Estimates of future cash flows and other valuation techniques are used to allocate the purchase price of acquired property between land, buildings and improvements, equipment and identifiable intangible assets and liabilities such as amounts related to in-place at-market leases, acquired above- and below-market leases and tenant relationships. Initial valuations are subject to change until such information is finalized no later than 12 months from the acquisition date. Each of these estimates requires a great deal of judgment, and some of the estimates involve complex calculations. These allocation assessments have a direct impact on our results of operations because if we were to allocate more value to land there would be no depreciation with respect to such amount. If we were to allocate more value to the buildings as opposed to allocating to the value of tenant leases, this amount would be recognized as an expense over a much longer period of time, since the amounts allocated to buildings are depreciated over the estimated lives of the buildings whereas amounts allocated to tenant leases are amortized over the terms of the leases.
The fair values of tangible assets are determined on an "as-if-vacant" basis. The "as-if-vacant" fair value is allocated to land, where applicable, buildings, tenant improvements and equipment based on comparable sales and other relevant information obtained in connection with the acquisition of the property.
The estimated fair value of acquired in-place at-market leases are the costs we would have incurred to lease the property to the occupancy level of the property at the date of acquisition. Such estimate includes the fair value of leasing commissions and legal costs that would be incurred to lease the property to this occupancy level. Additionally, we evaluate the time period over which such occupancy level would be achieved and include an estimate of the net operating costs (primarily real estate taxes, insurance and utilities) incurred during the lease-up period, which generally ranges up to 8-12 months.
Above-market and below-market in-place lease values are recorded as an asset or liability based on the present value (using an interest rate which reflects the risks associated with the leases acquired) of the difference between the contractual amounts to be paid pursuant to the in-place leases and our estimate of fair market lease rates for the corresponding in-place leases, measured over a period equal to the remaining noncancelable term of the lease.
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Expenditures for repairs and maintenance are expensed to operations as incurred. Significant betterments are capitalized. When assets are sold or retired, their costs and related accumulated depreciation are removed from the accounts with the resulting gains or losses reflected in net income or loss for the period.
The values allocated to land, buildings, site improvements, tenant improvements, and in-place leases are depreciated on a straight-line basis using an estimated life of 40 years for buildings, 15 years for site improvements, and the respective lease term for tenant improvements and in-place leases. The values of above- and below-market leases are amortized over the life of the related lease and recorded as either an increase (for below-market leases) or a decrease (for above-market leases) to rental income. The amortization of acquired in-place leases is recorded as an adjustment to depreciation and amortization in the consolidated statements of operations. If a lease were to be terminated prior to its stated expiration, all unamortized amounts relating to that lease would be written off. Interest, insurance and property tax costs incurred during the period of construction of real estate facilities are capitalized.
Impairment of Long-Lived Assets. We assess whether there has been impairment in the value of our long-lived assets whenever events or changes in circumstances indicate the carrying amount of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount to the undiscounted future cash flows expected to be generated by the asset. We consider factors such as future operating income, trends and prospects, as well as the effects of leasing demand, competition and other factors. If our evaluation indicates that we may be unable to recover the carrying value of a real estate investment, an impairment loss is recorded to the extent that the carrying value exceeds the estimated fair value of the property. These losses have a direct impact on our net income because recording an impairment loss results in an immediate negative adjustment to net income. Assets to be disposed of are reported at the lower of the carrying amount or fair value, less costs to sell. The evaluation of anticipated cash flows is highly subjective and is based in part on assumptions regarding future occupancy, rental rates and capital requirements that could differ materially from actual results in future periods. If our strategy changes or market conditions otherwise dictate an earlier sale date, an impairment loss may be recognized and such loss could be material.
Revenue Recognition. Revenue and gain is recognized in accordance with Staff Accounting Bulletin No. 104 of the Securities and Exchange Commission, Revenue Recognition in Financial Statements (SAB 104), as amended. SAB 104 requires that four basic criteria must be met before revenue can be recognized: persuasive evidence of an arrangement exists; the delivery has occurred or services rendered; the fee is fixed and determinable; and collectibility is reasonably assured. All leases are classified as operating leases. For all lease terms exceeding one year, rental income is recognized on a straight-line basis over the terms of the leases. Deferred rent receivables represent rental revenue recognized on a straight-line basis in excess of billed rents. Reimbursements from tenants for real estate taxes and other recoverable operating expenses are recognized as revenues in the period the applicable costs are incurred. In addition, we record a capital asset for leasehold improvements constructed by us that are reimbursed by tenants, with the offsetting side of this accounting entry recorded to deferred revenue which is included in accounts payable, accrued expenses and tenant security deposits. The deferred revenue is amortized as additional rental revenue over the life of the related lease.
Rental revenue from month-to-month leases or leases with no scheduled rent increases or other adjustments are recognized on a monthly basis when earned.
Recoveries from tenants for real estate taxes, common area maintenance and other recoverable costs are recognized in the period that the expenses are incurred. Lease termination fees, which are included in rental income in the accompanying consolidated statements of operations, are recognized when the related leases are canceled and we have no continuing obligation to provide services to such former tenants.
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We recognize gains on sales of real estate pursuant to the provisions of SFAS No. 66, Accounting for Sales of Real Estate (SFAS No. 66). The specific timing of a sale is measured against various criteria in SFAS No. 66 related to the terms of the transaction and any continuing involvement in the form of management or financial assistance associated with the property. If the sales criteria are not met, we defer gain recognition and account for the continued operations of the property by applying the finance, installment or cost recovery method.
Monitoring of Rents and Other Receivables. We maintain an allowance for estimated losses that may result from the inability of tenants to make required payments. If a tenant fails to make contractual payments beyond any allowance, we may recognize bad debt expense in future periods equal to the amount of unpaid rent and deferred rent. We generally do not require collateral or other security from our tenants, other than security deposits or letters of credit. If our estimates of collectibility differ from the cash received, the timing and amount of our reported revenue could be impacted.
Financial Instruments. The estimated fair values of financial instruments are determined using available market information and appropriate valuation methods. Considerable judgment is necessary to interpret market data and develop estimated fair values. The use of different market assumptions or estimation methods may have a material effect on the estimated fair value amounts. Accordingly, estimated fair values are not necessarily indicative of the amounts that could be realized in current market exchanges.
Interest Rate Agreements. We manage our interest rate risk associated with borrowings by obtaining interest rate swap and interest rate cap contracts. No other derivative instruments are used.
In June 1998, the FASB issued SFAS No. 133. The statement requires us to recognize all derivatives on the balance sheet at fair value. Derivatives that are not hedges must be adjusted to fair value and the changes in fair value must be reflected as income or expense. If the derivative is a hedge, depending on the nature of the hedge, changes in the fair value of derivatives are either offset against the change in fair value of the hedged assets, liabilities, or firm commitments through earnings or recognized in other comprehensive income, which is a component of our stockholders' equity account. The ineffective portion of a derivative's change in fair value is immediately recognized in earnings. Our investments in interest rate swap and interest rate cap contracts do not qualify as effective hedges, and as such, the changes in such contracts' fair market values are being recorded in earnings.
Historical Results of Operations
Comparison of six months ended June 30, 2006 to six months ended June 30, 2005
Our results of operations for the six months ended June 30, 2006 compared to the same period in 2005 were significantly affected by our repositioning and acquisition activities in both years. As a consequence, our results are not comparable from period to period due to the varying timing of acquisitions and lease up or increased vacancy resulting from repositioning activities. Therefore, in our discussion below, we have noted the results of our "Same Properties Portfolio" and our "Repositioning and Acquisition Properties" where relevant. We expect our repositioning efforts to continue to impact our current and future operating results. For example, our Warner Center Towers, Trillium and Bishop Place properties were 88.5%, 71.6% and 88.4% leased, respectively, as of June 30, 2006. Upon completion of our repositioning efforts at these properties, we expect that we will be able to significantly increase their occupancy.
In our office portfolio, our Repositioning and Acquisition Properties include the results of Santa Monica Square, Warner Center Towers, 9601 Wilshire, Sherman Oaks Galleria, 1901 Avenue of the Stars, Studio Plaza, The Trillium, Beverly Hills Medical Center, Bishop Place and Harbor Court for both periods presented. As of June 30, 2006, the Repositioning and Acquisition properties represented 49.7% of our total office portfolio, based on rentable square feet. In addition, we acquired two
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properties, Moanalua Hillside Apartments in January 2005 and Royal Kunia in March 2006, in our multifamily portfolio. As of June 30, 2006, our multifamily acquisitions represented 40.1% of the total units in our multifamily portfolio. Our Same Properties Portfolio includes all properties other than our Repositioning and Acquisition Properties and our multifamily acquisitions. During the periods presented, we had no multifamily repositioning properties.
Revenue
Total Revenue. Total revenue consists of office revenue and multifamily revenue. Total revenues increased by $14.8 million, or 7.7%, to $206.2 million for the six months ended June 30, 2006 compared to $191.4 million for the six months ended June 30, 2005.
Office Revenue
Total Office Revenue. Total office revenue consists of rent, tenant recoveries and parking and other income. Total office portfolio revenue increased by $10.0 million, or 5.9%, to $179.5 million for the six months ended June 30, 2006 compared to $169.5 million for the six months ended June 30, 2005. Office revenue for the Same Properties Portfolio increased $3.1 million, or 3.3%, to $96.0 million for the six months ended June 30, 2006 compared to $92.9 million for the six months ended June 30, 2005. Office revenue for the Repositioning and Acquisition Properties increased $6.9 million, or 9.0%, to $83.4 million for the six months ended June 30, 2006 compared to $76.5 million for the six months ended June 30, 2005.
Rent. Rent includes rental revenues from our office properties, percentage rent on the retail space contained within office properties, and lease termination income. Total office portfolio rent increased by $6.3 million, or 4.4%, to $150.5 million for the six months ended June 30, 2006 compared to $144.2 million for the six months ended June 30, 2005, primarily due to increases in rents from our Same Properties Portfolio. Office rent for the Same Properties Portfolio increased $2.3 million, or 2.8%, to $82.6 million for the six months ended June 30, 2006 compared to $80.3 million for the six months ended June 30, 2005. The increase in the office Same Properties Portfolio was primarily due to gains in occupancy and rental rates charged to tenants. Excluding straight-line rents, the amortization of above-and below-market rents, lease termination income and other non-recurring items, our Same Properties Portfolio rents increased $3.1 million, or 3.9%, to $80.5 million for the six months ended June 30, 2006 compared to $77.4 million for the six months ended June 30, 2005. Office rent for our Repositioning and Acquisition Properties increased $4.1 million, or 6.4%, to $68.0 million for the six months ended June 30, 2006 compared to $63.9 million for the six months ended June 30, 2005. The increase was primarily due to occupancy gains.
Tenant Recoveries. Total office portfolio tenant recoveries increased by $2.3 million, or 34.9%, to $8.9 million for the six months ended June 30, 2006 compared to $6.6 million for the six months ended June 30, 2005. Tenant reimbursements at the Repositioning and Acquisition Properties increased $2.0 million, or 40.6%, to $6.8 million for the six months ended June 30, 2006 compared to $4.8 million for the six months ended June 30, 2005. Office tenant recoveries for the office Same Properties Portfolio increased $0.3 million, or 19.4%, to $2.1 million for the six months ended June 30, 2006 compared to the $1.8 million for six months ended June 30, 2005, primarily due to gains in occupancy and recoveries related to increases in operating expenses discussed below.
Parking and Other Income. Total office portfolio parking and other income increased by $1.4 million, or 7.4%, to $20.0 million for the six months ended June 30, 2006 compared to $18.6 million for the six months ended June 30, 2005. Office parking and other income for the Repositioning and Acquisition Properties increased $0.9 million, or 11.2%, to $8.7 million for the six months ended June 30, 2006 compared to $7.8 million for the six months ended June 30, 2005. Office parking and other income for the Same Properties Portfolio increased $0.5 million, or 4.7%, to
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$11.3 million for the six months ended June 30, 2006 compared to $10.8 million for the six months ended June 30, 2005. This increase was primarily due to gains in occupancy.
Multifamily Revenue
Total Multifamily Revenue. Total multifamily revenue consists of rent and parking and other income. Total multifamily portfolio revenue increased by $4.8 million, or 21.9%, to $26.7 million for the six months ended June 30, 2006 compared to $21.9 million for the six months ended June 30, 2005, primarily due to our multifamily acquisitions. Multifamily revenue for these acquisitions increased $3.3 million, or 79.0%, to $7.5 million for the six months ended June 30, 2006 compared to $4.2 million for the six months ended June 30, 2005. Multifamily revenue for the Same Properties Portfolio increased $1.5 million, or 8.4%, to $19.2 million for the six months ended June 30, 2006 compared to $17.7 million for the six months ended June 30, 2005.
Rent. Total multifamily portfolio rent increased by $4.5 million, or 21.3%, to $25.9 million for the six months ended June 30, 2006 compared to $21.4 million for the six months ended June 30, 2005, primarily due to the timing of our multifamily acquisitions during each period presented. Multifamily rent for these acquisitions increased $3.1 million, or 77.6%, to $7.2 million for the six months ended June 30, 2006 compared to $4.0 million for the six months ended June 30, 2005 primarily due to the timing of our multifamily acquisitions. Multifamily rent for the Same Properties Portfolio increased $1.4 million, or 8.1%, to $18.7 million for the six months ended June 30, 2006 compared to $17.3 million for the six months ended June 30, 2005. As of June 30, 2006, 355 units, or approximately 43% of our Santa Monica multifamily units, are under leases signed prior to a 1999 change in California Law that allows landlords to reset rents to market rates when a tenant moves out. Approximately $0.4 million of the multifamily Same Properties Portfolio increase was due to the rollover to market rents of 53 of these rent-controlled units, or "Pre-1999 Units," since January 1, 2005. The remainder of the increase was primarily due to increases in rents charged to other tenants.
Parking and Other Income. Total multifamily portfolio parking and other income increased by $0.2 million, or 47.1%, to $0.8 million for the six months ended June 30, 2006 compared to $0.6 million for the six months ended June 30, 2005, primarily due to our multifamily acquisitions.
Operating Expenses
Total Operating Expenses. Total operating expenses consist of office and multifamily rental expense as well as general and administrative expenses and depreciation and amortization. Total operating expenses decreased by $0.6 million, or 0.5%, to $126.6 million for the six months ended June 30, 2006 compared to $127.2 million for the six months ended June 30, 2005.
Office Rental. Total portfolio office rental expense increased by $2.1 million, or 3.6%, to $61.1 million for the six months ended June 30, 2006 compared to $59.0 million for the six months ended June 30, 2005, primarily due to increases in the Same Properties Portfolio. Office rental expense for the Same Properties Portfolio increased $1.9 million, or 6.3%, to $31.9 million for the six months ended June 30, 2006 compared to $30.0 million for the six months ended June 30, 2005, primarily due to increases in contractual expenses including janitorial and security costs, higher utility costs due to increases in rates and warmer than normal weather in 2006.
Multifamily Rental. Total multifamily portfolio rental expense increased by $1.4 million, or 18.9%, to $8.7 million for the six months ended June 30, 2006 compared to $7.3 million for the six months ended June 30, 2005, primarily due to our multifamily acquisitions. Multifamily rental expense for these acquisitions increased $0.8 million, or 56.0%, to $2.1 million for the six months ended June 30, 2006 compared to $1.3 million for the six months ended June 30, 2005. Rental expense for the multifamily Same Properties Portfolio increased $0.6 million, or 10.4%, to $6.6 million for the six months ended
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June 30, 2006 compared to $6.0 million for the six months ended June 30, 2005, primarily due to higher utility costs due to increases in utility rates and warmer than normal weather in 2006.
General and Administrative. General and administrative expenses for the six months ended June 30, 2006 were comparable to the six months ended June 30, 2005. We expect future general and administrative expenses to be higher as we increase staffing and set up the infrastructure necessary to operate as a public company.
Depreciation and Amortization. Depreciation and amortization expense decreased $4.1 million, or 7.0%, to $53.6 million for the six months ended June 30, 2006 compared to $57.7 million for the six months ended June 30, 2005. The decrease was primarily due to a decrease in amortization related to the values of in-place leases of our Moanalua Hillside Apartments acquired in January 2005, which expired primarily in 2005. This decrease was partially offset by depreciation related to our Royal Kunia acquisition in March 2006.
Non-Operating Income and Expenses
Gain on Investments in Interest Rate Contracts, Net. Gain on investments in interest rate contracts, net increased $53.7 million, or 851.9%, to $60.0 million for the six months ended June 30, 2006 compared to $6.3 million for the six months ended June 30, 2005. The increase was primarily due to increases in the value of interest rate swap contracts caused by increases in interest rates and an increase in the notional amount of interest rate swaps outstanding to $2.21 billion as of June 30, 2006 from $1.66 billion as of June 30, 2005 as part of the August 2005 and December 2004 refinancings.
Interest and Other Income. Interest and other income increased $1.8 million, or 241.6%, to $2.5 million for the six months ended June 30, 2006 compared to $0.7 million for the six months ended June 30, 2005. The increase was primarily due to an increase in average cash balances and higher short-term interest rates during for the six months period ended June 30, 2006 compared to the period ended June 30, 2005.
Interest Expense. Interest expense increased $5.7 million, or 10.9%, to $58.1 million for the six months ended June 30, 2006 compared to $52.4 million for the six months ended June 30, 2005. Approximately $1.6 million of the increase related to the purchase of one multifamily property in March 2006, which was financed with $82.0 million in debt at an effective interest rate (after taking into account the effect of the interest rate swap contract) of 5.62%. The remaining increase was primarily due to an increase in the effective interest rates over the 2005 comparable period.
Deficit Recovery (Distributions) from/(to) Minority Partners, Net. Deficit recovery (distributions) from/(to) minority partners, net was a $6.2 million recovery for the six months ended June 30, 2006 compared to a net $47.7 million distribution for the six months ended June 30, 2005. The increase was primarily due to a distribution in the first six months of 2005 related to a preferred investor contribution that did not occur in the first six months of 2006. Additionally, in the first six months of 2006, net income exceeded distributions to the limited partners, resulting in the reversal of a portion of the deficit distribution expense incurred in prior periods.
Minority Interest
Minority interest increased $55.9 million, or 336.7%, to $72.5 million for the six months ended June 30, 2006 compared to $16.6 million for the six months ended June 30, 2005. The increase was primarily due to an increase in net income before deficit distributions and increased capital contributions from minority investors.
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Comparison of year ended December 31, 2005 to year ended December 31, 2004
Our results of operations for the year ended December 31, 2005 compared to the same period in 2004 were significantly affected by our repositioning and acquisition activities in both years. As a consequence, our results are not comparable from period to period. Therefore, in our discussion below, we have noted the results of our "Same Properties Portfolio" and our "Repositioning and Acquisition Properties" where relevant.
In our office portfolio, our Repositioning and Acquisition Properties include the results of Santa Monica Square, Warner Center Towers, 9601 Wilshire, Sherman Oaks Galleria, 1901 Avenue of the Stars, Studio Plaza, Beverly Hills Medical Center, Harbor Court, Bishop Place and The Trillium for both periods presented. As of December 31, 2005, the Repositioning and Acquisition properties represented 49.7% of our total office portfolio, based on rentable square feet. In addition, we acquired one property, Moanalua Hillside Apartments, in our multifamily portfolio. As of December 31, 2005, our multifamily acquisition represented 29.8% of the total units in our multifamily portfolio. Our Same Properties Portfolio includes all properties other than our Repositioning and Acquisition Properties and our multifamily acquisition. During the period presented, we had no multifamily repositioning properties.
Revenue
Total Revenue. Total revenues increased by $73.4 million, or 22.9%, to $393.8 million for the year ended December 31, 2005 compared to $320.4 million for the year ended December 31, 2004.
Office Revenue
Total Office Revenue. Total office portfolio revenue increased by $62.0 million, or 21.6%, to $348.6 million for the year ended December 31, 2005 compared to $286.6 million for the year ended December 31, 2004, primarily due to the Repositioning and Acquisition Properties. Office revenue for the Repositioning and Acquisition Properties increased $56.0 million, or 54.6%, to $158.5 million for the twelve months ended December 31, 2005 compared to $102.5 million for the twelve months ended December 31, 2004. Office revenue for the Same Properties Portfolio increased $6.0 million, or 3.3%, to $190.1 million for the twelve months ended December 31, 2005 compared to $184.1 million for the twelve months ended December 31, 2004.
Rent. Total office portfolio rent increased by $48.1 million, or 19.3%, to $297.5 million for the year ended December 31, 2005 compared to $249.4 million for the year ended December 31, 2004, primarily due to the Repositioning and Acquisition Properties. Office rent for the Repositioning and Acquisition Properties increased $43.2 million, or 48.3% to $132.5 million for the twelve months ended December 31, 2005 compared to $89.3 million for the twelve months ended December 31, 2004. Office rent for the Same Properties Portfolio increased $5.0 million, or 3.1%, to $165.1 million for the twelve months ended December 31, 2005 compared to $160.1 million for the twelve months ended December 31, 2004. This increase was primarily due to increases in occupancy and rental rates charged to tenants which were partially offset by a $1.7 million decrease in lease termination income. Excluding straight-line rents, the amortization of above- and below-market rents, lease termination income and other non-recurring items, our Same Properties Portfolio rents increased $5.0 million, or 3.2%, to $158.6 million for the twelve months ended December 31, 2005 compared to $153.6 million for the twelve months ended December 31, 2004.
Tenant Recoveries. Total office portfolio tenant recoveries increased by $5.2 million, or 55.0%, to $14.6 million for the year ended December 31, 2005 compared to $9.4 million for the year ended December 31, 2004, primarily due to the Repositioning and Acquisition Properties partially offset by the Same Properties Portfolio. Office tenant recoveries for the Repositioning and Acquisition Properties increased $5.7 million, or 113.8%, to $10.6 million for the twelve months ended
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December 31, 2005 compared to $4.9 million for the twelve months ended December 31, 2004. Office tenant recoveries for the Same Properties Portfolio decreased $0.5 million, or 10.5%, to $4.0 million for the twelve months ended December 31, 2005 compared to $4.5 million for the twelve months ended December 31, 2004. This decrease was primarily due to resetting of base year expense stops related to leases signed in 2005.
Parking and Other Income. Total office portfolio parking and other income increased by $8.6 million, or 30.9%, to $36.4 million for the year ended December 31, 2005 compared to $27.8 million for the year ended December 31, 2004, primarily due to the Repositioning and Acquisition Properties. Office parking and other income for the Repositioning and Acquisition Properties increased $7.1 million, or 86.2%, to $15.4 million for the twelve months ended December 31, 2005 compared to $8.3 million for the twelve months ended December 31, 2004. Office parking and other income for the Same Properties Portfolio increased $1.5 million, or 7.6%, to $21.0 million for the twelve months ended December 31, 2005 compared to $19.5 million for the twelve months ended December 31, 2004. The increase was primarily due to gains in occupancy.
Multifamily Revenue
Total Multifamily Revenue. Total multifamily portfolio revenue increased by $11.4 million, or 33.8%, to $45.2 million for the year ended December 31, 2005 compared to $33.8 million for the year ended December 31, 2004, primarily due to an $8.9 million increase resulting from the acquisition of Moanalua Hillside Apartments in January 2005. Multifamily revenue for the Same Properties Portfolio increased $2.5 million, or 7.3%, to $36.3 million for the twelve months ended December 31, 2005 compared to $33.8 million for the twelve months ended December 31, 2004.
Rent. Total multifamily portfolio rent increased by $11.1 million, or 34.0%, to $43.9 million for the year ended December 31, 2005 compared to $32.8 million for the year ended December 31, 2004, primarily due to an $8.6 million increase resulting from the acquisition referenced above. Multifamily rent for the Same Properties Portfolio increased $2.5 million, or 7.8%, to $35.3 million for the twelve months ended December 31, 2005 compared to $32.8 million for the twelve months ended December 31, 2004. Approximately $0.9 million of this increase was due to the rollover to market rents of 90 Pre-1999 Units since January 1, 2004. The remainder of the increase was primarily due to increases in rents charged to other tenants.
Parking and Other Income. Total multifamily portfolio parking and other income increased by $0.3 million, or 27.2%, to $1.3 million for the year ended December 31, 2005 compared to $1.0 million for the year ended December 31, 2004, primarily due to a $0.4 million increase resulting from the acquisition referenced above. Multifamily parking and other income for the Same Properties Portfolio decreased $0.1 million, or 9.1%, to $0.9 million for the twelve months ended December 31, 2005 compared to $1.0 million for the twelve months ended December 31, 2004.
Operating Expenses
Total Operating Expenses. Total operating expenses increased by $41.3 million, or 19.3%, to $254.9 million for the year ended December 31, 2005 compared to $213.6 million for the year ended December 31, 2004.
Office Rental. Total portfolio office rental expense increased by $16.5 million, or 15.9%, to $119.9 million for the year ended December 31, 2005 compared to $103.4 million for the year ended December 31, 2004, primarily due to the Repositioning and Acquisition Properties. Office rental expenses for the Repositioning and Acquisition Properties increased $16.0 million, or 38.7%, to $57.3 million for the twelve months ended December 31, 2005 compared to $41.3 million for the twelve months ended December 31, 2004. Office rental expenses for the Same Properties Portfolio increased
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$0.5 million, or 0.8%, to $62.6 million for the twelve months ended December 31, 2005 compared to $62.1 million for the twelve months ended December 31, 2004.
Multifamily Rental. Total multifamily portfolio rental expense increased by $2.1 million, or 16.1%, to $15.3 million for the year ended December 31, 2005 compared to $13.2 million for the year ended December 31, 2004, primarily due to the $2.9 million increase resulting from the acquisition of Moanalua Hillside Apartments partially offset by a decrease in the Same Properties Portfolio. Multifamily rental expense for the Same Properties Portfolio decreased $0.8 million, or 5.8%, to $12.4 million for the twelve months ended December 31, 2005 compared to $13.2 million for the twelve months ended 2004. This decrease was primarily due to a $1.1 million litigation settlement recorded in 2004.
General and Administrative. General and administrative expenses increased $0.9 million, or 14.4%, to $6.5 million for the year ended December 31, 2005 compared to $5.6 million for the year ended December 31, 2004. The increase was primarily due to increases in personnel costs related to annual merit increases.
Depreciation and Amortization. Depreciation and amortization expense increased $21.9 million, or 23.9%, to $113.2 million for the year ended December 31, 2005 compared to $91.3 million for the year ended December 31, 2004. The increase was due to the acquisition of three office properties in late 2004 and the acquisition of one office property and one multifamily property in early 2005.
Non-Operating Income and Expenses
Gain on Investments in Interest Rate Contracts, Net. Gain on investments in interest rate contracts, net increased $44.1 million, or 117.0%, to $81.7 million for the year ended December 31, 2005 compared to $37.6 million for the year ended December 31, 2004. The increase was primarily due to increases in the value of interest rate swap contracts caused by increases in interest rates and an increase in the notional amount of interest rate swaps outstanding from $1.51 billion as of December 31, 2004 to $2.12 billion as of December 31, 2005 as part of the August 2005 and December 2004 refinancings.
Interest and Other Income. Interest and other income increased $0.8 million, or 54.8%, to $2.3 million for the year ended December 31, 2005 compared to $1.5 million for the year ended December 31, 2004. The increase was primarily due to an increase in average cash balances and higher short-term interest rates during 2005 as compared to 2004.
Interest Expense. Interest expense increased $20.6 million, or 21.6%, to $115.7 million for the year ended December 31, 2005 compared to $95.1 million for the year ended December 31, 2004. The increase was partially due to $9.8 million in accelerated loan fee amortization from the write-off of deferred loan costs as part of the August 2005 refinancing and $12.4 million from the acquisition of three office properties in late 2004 and one office and one multifamily property in January 2005 offset by $2.9 million in defeasance and prepayment penalties incurred in 2004, but not in 2005.
Deficit Distributions to Minority Partners, Net. Deficit distributions to minority partners, net decreased to $28.2 million for the year ended December 31, 2005 compared to $57.9 million for the year ended December 31, 2004. The decrease was due to net income exceeding distributions to the limited partners in three of the institutional funds, resulting in the reversal of a portion of the deficit distribution expense incurred in prior periods.
Minority Interest
Minority interest increased $46.0 million, or 92.5%, to $95.6 million for the year ended December 31, 2005 compared to $49.6 million for the year ended December 31, 2004. The increase was
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primarily due to an increase in net income before deficit distributions and increased capital contributions from minority investors.
Comparison of year ended December 31, 2004 to year ended December 31, 2003
Our results of operations for the year ended December 31, 2004 compared to the same period in 2003 were significantly affected by our repositioning and acquisition activities in both years. As a consequence, our results are not comparable from period to period. Therefore, in our discussion below, we have noted the results of our "Same Properties Portfolio" and our "Repositioning and Acquisition Properties" where relevant.
In our office portfolio, our Repositioning and Acquisition Properties include the results of Santa Monica Square, Warner Center Towers, 9601 Wilshire, Sherman Oaks Galleria, 1901 Avenue of the Stars, Studio Plaza, Beverly Hills Medical Center, Harbor Court and Bishop Place. As of December 31, 2004, the Repositioning and Acquisition properties represented 46.6% of our total office portfolio, based on rentable square feet. We had no respositionings or acquisitions in our multifamily portfolio during this period. Therefore, the multifamily discussion below is on a same-store basis.
Revenue
Total Revenue. Total revenues increased by $5.1 million, or 1.6%, to $320.4 million for the year ended December 31, 2004 compared to $315.3 million for the year ended December 31, 2003.
Office Revenue
Total Office Revenue. Total office portfolio revenue increased by $3.3 million, or 1.2%, to $286.6 million for the year ended December 31, 2004 compared to $283.3 million for the year ended December 31, 2003, primarily due to the Same Properties Portfolio, partially offset by the Repositioning and Acquisition Properties. Office revenue for the Same Properties Portfolio increased $5.4 million, or 3.0%, to $184.1 million for the twelve months ended December 31, 2004 compared to $178.7 million for the twelve months ended December 31, 2003. Office revenue for the Repositioning and Acquisition Properties decreased $2.1 million, or 2.0%, to $102.5 million for the twelve months ended December 31, 2003 compared to $104.6 million for the twelve months ended December 31, 2003.
Rent. Total office portfolio rent increased by $3.0 million, or 1.2%, to $249.4 million for the year ended December 31, 2004 compared to $246.4 million for the year ended December 31, 2003, primarily due to the increases at the Same Properties Portfolio, partially offset by the Repositioning and Acquisition Properties. Office rent for the Repositioning and Acquisition Properties decreased $3.0 million, or 3.3%, to $89.3 million for the twelve months ended December 31, 2004 compared to $92.3 million for the twelve months ended December 31, 2003. This decrease was primarily due to vacancies attributable to our repositioning efforts. Office rent for the Same Properties Portfolio increased $6.0 million, or 3.9%, to $160.1 million for the twelve months ended December 31, 2004 compared to $154.1 million for the twelve months ended December 31, 2003. This increase was primarily due to increases in occupancy, a $1.8 million increase in straight-line rent and a $1.0 million increase in lease termination income. Excluding straight-line rents, the amortization of above- and below-market rents, lease termination income and other non-recurring items, our Same Properties Portfolio rents increased $3.3 million, or 2.2%, to $153.6 million for the twelve months ended December 31, 2004 compared to $150.3 million for the twelve months ended December 31, 2003.
Tenant Recoveries. Total office portfolio tenant recoveries of $9.4 million for the year ended December 31, 2004 was comparable to $9.4 million for the year ended December 31, 2003.
Parking and Other Income. Total office portfolio parking and other income increased by $0.2 million, or 0.9%, to $27.8 million for the year ended December 31, 2004 compared to
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$27.6 million for the year ended December 31, 2003 primarily due to the Repositioning and Acquisiton Properties. Office parking and other income for the Repositioning and Acquisition Properties increased $0.2 million, or 2.4%, to $8.3 million for the twelve months ended December 31, 2004 compared to $8.1 million for the twelve months ended December 31, 2003.
Multifamily Revenue
Total Multifamily Revenue. Total multifamily portfolio revenue increased by $1.8 million, or 5.6%, to $33.8 million for the year ended December 31, 2004 compared to $32.0 million for the year ended December 31, 2003.
Rent. Total multifamily portfolio rent increased by $1.7 million, or 5.5%, to $32.8 million for the year ended December 31, 2004 compared to $31.1 million for the year ended December 31, 2003. Approximately $0.8 million of this increase was due to rollover to market rents of 85 Pre-1999 Units since January 1, 2003, and the remainder of the increase was primarily due to increases in rents charged to tenants.
Parking and Other Income. Total multifamily portfolio parking and other income increased by $0.1 million, or 8.9%, to $1.0 million for the year ended December 31, 2004 compared to $0.9 million for the year ended December 31, 2003, primarily due to increased parking rental rates.
Operating Expenses
Total Operating Expenses. Total operating expenses increased by $7.3 million, or 3.5%, to $213.6 million for the year ended December 31, 2004 compared to $206.3 million for the year ended December 31, 2003.
Office Rental. Total portfolio office rental expense increased by $6.6 million, or 6.9%, to $103.4 million for the year ended December 31, 2004 compared to $96.8 million for the year ended December 31, 2003, primarily due to the Repositioning and Acquisition Properties. Office rental expense for the Repositioning and Acquisition Properties increased $6.3 million, or 18.1%, to $41.3 million for the twelve months ended December 31, 2004 compared to $35.0 million for the twelve months ended December 31, 2003. Office rental expenses for the Same Properties Portfolio increased approximately $0.3 million, or 0.5%, to $62.1 million for the twelve months ended December 31, 2004 compared to $61.8 million for the twelve months ended December 31, 2003.
Multifamily Rental. Total multifamily portfolio rental expense increased by $1.4 million, or 12.4%, to $13.2 million for the year ended December 31, 2004 compared to $11.8 million for the year ended December 31, 2003, due primarily to a $1.1 million litigation settlement recorded in 2004.
General and Administrative. General and administrative expenses increased $0.4 million, or 8.7%, to $5.6 million for the year ended December 31, 2004 compared to $5.2 million for the year ended December 31, 2003. The increase was primarily due to increases in personnel costs related to annual merit increases.
Depreciation and Amortization. Depreciation and amortization expense decreased $1.3 million, or 1.4%, to $91.3 million for the year ended December 31, 2004 compared to $92.6 million for the year ended December 31, 2003. The decrease was primarily due to a decrease in intangibles amortization at our Warner Center property related to accelerated depreciation and amortization in 2003 on tenant improvements for early tenant expirations and renewals, primarily offset by acquisitions in late 2004.
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Non-Operating Income and Expenses
Gain on Investments in Interest Rate Contracts, Net. Gain on investments in interest rate contracts, net increased $14.0 million, or 59.6%, to $37.6 million for the year ended December 31, 2004 compared to $23.6 million for the year ended December 31, 2004. The increase was primarily due to increases in the value of interest rate swap contracts caused by increases in interest rates, offset by a slight decrease in the notional amount of interest rate swap contacts outstanding from $1.60 billion as of December 31, 2003 to $1.51 billion as of December 31, 2004.
Interest and Other Income. Interest and other income increased $1.0 million, or 184.6%, to $1.5 million for the year ended December 31, 2004 compared to $0.5 million for the year ended December 31, 2003. The increase was primarily due to higher average interest-earning cash balances in 2004 and slightly higher short-term interest rates.
Interest Expense. Interest expense increased $0.3 million, or 0.4%, to $95.1 million for the year ended December 31, 2004 compared to $94.8 million for the year ended December 31, 2003. The increase relates to $0.7 million increase from defeasance costs and prepayment penalties on the extinguishment of debt in 2004 versus 2003, and $0.4 million in interest expense relating to the financing of three office properties purchased in late 2004, partially offset by a decrease in the effective interest rates, after taking into account the effect of the interest rate contracts on hedged floating rate borrowings and the interest rates on our floating rate borrowings.
Deficit Distributions to Minority Partners, Net. Deficit distributions to minority partners were $57.9 million for the year ended December 31, 2004 compared to zero for the year ended December 31, 2003. The 2004 distributions related to preferred equity proceeds in excess of retained earnings that were allocated to minority partners.
Minority Interest
Minority interest increased $18.7 million, or 60.4%, to $49.6 million for the year ended December 31, 2004 compared to $30.9 million for the year ended December 31, 2003. The increase was primarily due to increased capital contributions from minority investors.
Liquidity and Capital Resources
Analysis of Liquidity and Capital Resources
On a pro forma basis as of June 30, 2006, we would have had total indebtedness of $2.75 billion, excluding loan premium, or approximately 45.5% of our total market capitalization. Other than as described below in connection with the expected refinancing transaction, upon consummation of this offering and the formation transactions, we will retain substantially all of the debt encumbering the properties in our portfolio as originated by the institutional funds and the single-asset entities. On a pro forma basis as of June 30, 2006, 80.2% of our consolidated indebtedness (excluding the loan premium) would have been effectively fixed rate.
In connection with the completion of this offering and the formation transactions, we have entered into agreements with Eurohypo AG and Barclays Capital to amend our existing $1.76 billion secured financing to increase the amount of the term loans by $545.0 million at the existing interest rate of LIBOR plus 0.85%. We refer to this as our "modified term loan." The closing of the modified term loan is contingent on satisfaction of customary conditions and the consummation of this offering. We expect to borrow the full amount of the increase at the closing of this offering. We expect to use the proceeds from the modified term loan, together with the net proceeds of this offering, cash on hand and the $60.0 million DERA contribution, to pay $1.38 billion in cash to prior investors in the formation transactions, assuming this offering prices at the mid-point of the range set forth on the
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cover page of this prospectus, to redeem preferred stock at two of the institutional funds, including payment of associated premiums, of $186.8 million, to pay the pre-closing property distributions estimated to be $25.0 million, to repay certain variable rate debt totaling approximately $50.9 million and to pay $21.4 million in fees and expenses. In addition, shortly after this offering we expect to repay the outstanding $100.5 million loan secured by our property, the Trillium, which matures in January 2007. We may prepay the Trillium loan beginning in October 2006 without penalty. The modified term loan will be secured by 34 of our office properties and the fee interest in one parcel of land subject to a ground lease and will contain representations, warranties, covenants, other agreements and events of default substantially similar to the existing loan. We do not currently expect to hedge the additional borrowing under the modified term loan. We expect that the Trillium property will be unencumbered upon repayment of the Trillium loan.
In addition, we have entered into an agreement with Bank of America, N.A. and Banc of America Securities LLC to provide a $250.0 million senior secured revolving credit facility, with an accordion feature that would allow us to increase the availability thereunder by $250.0 million to $500.0 million, under specified circumstances. We expect the senior secured revolving credit facility to be undrawn at the closing of this offering, assuming a price in this offering at the mid-point of the range set forth on the cover page of this prospectus. We intend to use this new senior secured revolving credit facility for general corporate purposes, including to fund acquisitions, redevelopment and repositioning opportunities, to provide funds for tenant improvements and capital expenditures, and to provide working capital. We do not currently have any specific agreements or commitments to consummate any acquisitions. The senior secured revolving credit facility will be secured by nine office properties. In addition, the senior secured revolving credit facility will contain representations, warranties, covenants, other agreements and events of default customary for agreements of this type with comparable companies. The closing of the senior secured revolving credit facility will be contingent on the consummation of this offering and the satisfaction of customary conditions. The Trillium property and our four other unencumbered properties may be added as security for the senior secured revolving credit facility in the future, if and when additional capacity is added under the accordion feature of this facility.
For more information regarding the modified term loan and our senior secured revolving credit facility, see "Business and PropertiesDescription of Certain Debt."
During 2003, 2004 and 2005 our distributions to minority interests exceeded our cash flow from operations. We funded those excess distributions from proceeds related to our debt refinancing activities, contributions from our preferred minority investor and proceeds from assets sales. Debt refinancing activity contributed $94.5 million of proceeds to the distributions in 2004. Such debt will remain outstanding upon the closing of this offering as part of our $2.75 billion (excluding the loan premium) of outstanding indebtedness. Please refer to "Consolidated Indebtedness to be Outstanding After this Offering and Giving Effect to the Financing Transactions" for additional information regarding our outstanding indebtedness upon completion of this offering and "Structure and Formation of Our CompanyFormation Transactions" for additional information regarding the redemption of the preferred interest in connection with the consummation of this offering and the formation transactions.
We have historically financed our operations, acquisitions and development through the use of short-term acquisition lines of credit and replaced those lines with long-term secured floating rate mortgage debt. To mitigate the impact of fluctuations in short-term interest rates that would impact our cash flow from operations, we generally enter into interest rate swap or interest rate cap agreements.
The nature of our business, and the requirements imposed by REIT rules that we distribute a substantial majority of our income on an annual basis, will cause us to have substantial liquidity needs over both the short term and the long term. We expect that our short-term liquidity needs will consist primarily of funds necessary to pay operating expenses associated with our properties, interest expense
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and scheduled principal payments on our debt, expected dividends to our stockholders required to maintain our REIT status (including distributions to persons who hold units in our operating partnership), recurring capital expenditures, ground lease payments and payments under the Harbor Court lease. When we lease space to new office tenants, or renew leases for existing office tenants, we also incur expenditures for tenant improvements and leasing commissions. For the years ended December 31, 2003 through 2005 and the six months ended June 30, 2006, the weighted average annual tenant improvements for our office portfolio were $17.40 per square foot of leased space and their leasing commission costs were $8.16 per square foot of leased space.
The total costs of tenant improvements and leasing commissions during a particular period are impacted by the number of tenants that renew their lease upon expiration, the amount of vacant space we expect to lease and overall real estate fundamentals at the time leases are negotiated. Based on the approximately 1,250,000 rentable square feet of office space subject to leases that will expire during the twelve months ending June 30, 2007 and the factors described above, we expect the recurring costs of tenant improvements and leasing commissions to be approximately $26.0 million during the twelve months ending June 30, 2007. These costs do not include the non-recurring leasing costs related to our repositioning efforts at Warner Center Towers, Trillium and Bishop Place that were underwritten at the time these assets were acquired.
For the years ended December 31, 2003 through 2005 and the six months ended June 30, 2006, the weighted average annual cost of recurring capital expenditures for our office portfolio (not including tenant improvements and commissions) was approximately $0.22 per square foot. We consider recurring capital expenditures to consist of capital expenditures that are not related to a repositioning effort for an existing property or to capital improvements that were underwritten at the time of acquisition, regardless of the recurrence frequency of the project. Although we have no commitments to do so, we currently are considering several large projects within our office portfolio during the twelve months ending June 30, 2007, including waterproofing, building curtain walls and elevator modernization projects whose recurrence cycles are between fifteen and twenty years. In the event we undertake a number of these projects during this time, we expect our recurring capital expenditures to increase from our predecessor's weighted average annual cost of $0.22 per square foot to approximately $0.50 per square foot for the twelve months ending June 30, 2007.
We expect our repositioning efforts at Warner Center Towers to require approximately $6.4 million of capital expenditures over the next 12 to 24 months, at the Trillium to require approximately $6.7 million of capital expenditures over the next 12 to 24 months, and at Bishop Place to require approximately $1.2 million of capital expenditures over the next 12 months. For a description of our repositioning efforts at these properties, see "Business and PropertiesBusiness and Growth Strategies."
For the years ended December 31, 2003 through 2005 and the six months ended June 30, 2006, recurring capital expenditures weighted average costs for our multifamily portfolio were approximately $256 per unit. Our historical recurring capital expenditures for our multifamily properties have traditionally been low because we expense, rather than characterize as recurring capital expenditures, our make ready costs associated with the turnover of units. Based on the projects that we plan to undertake during the twelve months ending June 30, 2007, we expect our weighted average annual recurring capital expenditures to increase to approximately $400 per unit for the twelve months ending June 30, 2007.
We typically characterize as non-recurring capital expenditures the significant renovation costs associated with the turnover of rent-controlled units in Santa Monica that have not been renovated in over 20 years. Therefore, our non-recurring capital expenditures will vary significantly from year to year depending on the number of rent-controlled units turning over and discretionary projects undertaken.
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We expect non-recurring capital expenditures from the turnover of these rent controlled units will be approximately $0.5 million for the twelve months ending June 30, 2007.
We expect to meet our short-term liquidity requirements generally through cash provided by operations and, if necessary, by drawing upon our senior secured revolving credit facility that we expect to be in place at the consummation of this offering. We anticipate that cash provided by operations and borrowings under our expected senior secured revolving credit facility will be sufficient to meet our liquidity requirements for at least the next 12 months.
Our long-term liquidity needs consist primarily of funds necessary to pay for acquisitions, redevelopment and repositioning of properties, non-recurring capital expenditures, and repayment of indebtedness at maturity. We do not expect that we will have sufficient funds on hand to cover all of these long-term cash requirements. We will seek to satisfy these needs through cash flow from operations, long-term secured and unsecured indebtedness, including our amended term loan and our senior secured revolving credit facility, the issuance of debt and equity securities, including units in our operating partnership, property dispositions and joint venture transactions.
Commitments
The following table sets forth our principal obligations and commitments, excluding periodic interest payments, on a pro forma basis as of June 30, 2006 that will be outstanding after this offering:
|
Payment due by period (in thousands)
|
||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Contractual Obligations
|
Total
|
Less than
1 year |
1-2
years |
3-4
years |
More than
5 years |
||||||||||
Long-term debt obligations | $ | 2,750,000 | $ | | $ | | $ | | $ | 2,750,000 | |||||
Minimum lease payments | 143,557 | 1,675 | 6,566 | 6,841 | 128,475 | ||||||||||
Purchase commitments related to capital expenditures associated with tenant improvements and repositioning and other purchase obligations | 7,948 | 7,948 | | | | ||||||||||
|
|
|
|
|
|||||||||||
Total | $ | 2,901,505 | $ | 9,623 | $ | 6,566 | $ | 6,841 | $ | 2,878,475 | |||||
|
|
|
|
|
On a pro forma basis as of June 30, 2006, we would have had long-term indebtedness outstanding of $2.75 billion, excluding loan premium. We expect our senior secured revolving credit facility to be undrawn at the closing of this offering, assuming a price per share in this offering at the mid-point of the range set forth on the cover page of this prospectus.
As of June 30, 2006, we pay $0.6 million per annum for the ground lease on Bishop Place through February 28, 2009, and $0.7 million per annum through February 28, 2019; thereafter, payments are determined by mutual agreement through December 31, 2086. We pay $1.3 million per annum for the ground lease on One Westwood through May 7, 2083. Rent may be increased annually based upon economic criteria defined in the lease agreement. We have the right to purchase the leased land for an amount equal to its fair market value in the 12 months subsequent to May 8, 2008. In addition, as of June 30, 2006, we had leased the office and other commercial portions of the Harbor Court condominium project. We pay $1.4 million per annum (net of abatement) for the lease on Harbor Court through May 26, 2014 and $2.0 million per annum from May 31, 2014 through May 26, 2024. After May 26, 2024, future rent increases occur every ten years based on market rates until expiration on May 26, 2074. We have the option to purchase the fee interest in the office and other commercial portions of Harbor Court by assuming the debt of $27.5 million at any time prior to May 31, 2014.
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Consolidated Indebtedness to be Outstanding After this Offering and Giving Effect to the Financing Transactions
On a pro forma basis as of June 30, 2006, we would have had total consolidated indebtedness outstanding of $2.75 billion, excluding loan premium, secured by 34 of our properties, or approximately 45.5% of our total market capitalization. In addition, 80.2% of our consolidated indebtedness would have been effectively fixed rate on a pro forma basis as of June 30, 2006. The weighted average interest rate on our consolidated indebtedness would have been 5.20% (based on the 30-day LIBOR rate at June 30, 2006 of 5.48% and after giving effect to our interest rate contracts). No scheduled loan principal payments will be due on this indebtedness from the estimated consummation date of this offering through June 30, 2007. On a pro forma basis as of June 30, 2006, we would have had $545.0 million, or 19.8%, of our outstanding long-term debt (excluding the loan premium) exposed to fluctuations in short term interest rates. We expect that our senior secured revolving credit facility will be undrawn at the closing of this offering, assuming a price per share in this offering at the mid-point of the range set forth on the cover page of this prospectus.
The following table sets forth certain information with respect to the indebtedness outstanding as of June 30, 2006 on a pro forma basis.
Loan
|
Principal
Balance |
Fixed/Floating
Rate |
Effective
Annual Interest Rate (1) |
Maturity
Date |
Swap
Maturity Date |
|||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|
|
(Dollars in thousands)
|
|||||||||||
Variable Rate Swapped to Fixed Rate | ||||||||||||
Modified Term Loan (2) (3) | $ | 1,755,000 | LIBOR + 0.85 | % | 4.92 | % | 09/01/12 |
08/01/10-
08/01/12 |
||||
Barrington Plaza, Pacific Plaza | 153,000 | DMBS (4) + 0.60 | 4.70 | 12/22/11 | 08/01/11 | |||||||
555 Barrington, The Shores | 140,000 | DMBS + 0.60 | 4.70 | 12/22/11 | 08/01/11 | |||||||
Moanalua Hillside Apartments | 75,000 | DMBS + 0.76 | 4.86 | 02/01/15 | 08/01/11 | |||||||
Villas at Royal Kunia | 82,000 | LIBOR + 0.62 | 5.62 | 02/01/16 | 03/01/12 | |||||||
|
||||||||||||
Subtotal | $ | 2,205,000 | ||||||||||
Variable Rate | ||||||||||||
Modified Term Loan (2) | 545,000 | LIBOR + 0.85 | 6.33 | % | 09/01/12 | N/A | ||||||
Subtotal | 2,750,000 | |||||||||||
Loan Premium (5) | 31,000 | |||||||||||
|
||||||||||||
Total | $ | 2,781,000 | ||||||||||
|
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Off Balance Sheet Arrangements
At June 30, 2006, we did not have any off-balance sheet arrangements.
Interest Rate Risk
In June 1998, the FASB issued SFAS No. 133 Accounting for Derivative Instruments and Hedging Activities (SFAS No. 133, as amended by SFAS No. 138). The statement requires us to recognize all derivatives on the balance sheet at fair value. Derivatives that are not hedges must be adjusted to fair value and the changes in fair value must be reflected as income or expense. If the derivative is a hedge, depending on the nature of the hedge, changes in the fair value of derivatives are either offset against the change in fair value of the hedged assets, liabilities, or firm commitments through earnings or recognized in other comprehensive income, which is a component of stockholders equity. The ineffective portion of a derivative's change in fair value is immediately recognized in earnings. Our existing investments in interest rate swap and interest rate cap contracts do not qualify as effective hedges, and as such, the changes in such contracts' fair market values are being recorded in earnings. For the six months ended June 30, 2006 and 2005, our predecessor recognized gains relating to the fair market value change of their interest rate contracts of $60.0 million and $6.3 million. For the years ended December 31, 2005, 2004 and 2003, our predecessor recognized gains relating to the fair market value change of our interest rate contracts of $81.7 million, $37.6 million and $23.6 million, and made payments related to the termination of certain interest rate contracts of $1.3 million, $7.7 million and $0.1 million, respectively.
In conjunction with this offering, we intend to enter into a series of interest rate swaps that effectively offset any future changes in fair value of all of our existing interest rate contracts. We expect that these new interest rate contracts, as well as our existing contracts, will not qualify as effective hedges under SFAS No. 133, and therefore will not qualify for hedge accounting. Although these new interest rate contracts are intended to offset any future changes in fair value of our existing interest rate contracts, and are thus not expected to be recorded in earnings, the $126.0 million net fair value of our existing interest rate contracts will be recorded in other assets and will be reduced by the cash flow difference between the existing interest rate contracts and the offsetting interest rate contracts over the remaining life of the contracts.
Concurrently with this offering, we intend to enter into a new series of interest rate swaps and interest rate cap contracts that will be substantially similar to our existing interest rate contracts. The new interest rate contracts are intended to replace our existing interest rate contracts as a hedge on our floating rate debt exposure. Unlike our existing interest rate contracts, we expect the new interest rate contracts to qualify for cash flow hedge accounting treatment under SFAS No. 133, and as such, all future changes in fair value of the new interest rate contracts will be recognized in other comprehensive income, which is a component of our equity account. Any ineffective portion of the new interest rate contracts' change in fair value is immediately recognized in earnings.
In connection with this offering and the formation transactions, we have marked to market $1.76 billion of assumed variable rate debt swapped to fixed rate related to our office properties. Based on changes in loan-to-value ratios on these loans and general market credit spread compression, the market rate on all of our assumed loans secured by office properties is LIBOR plus 0.50% versus the currently stated rate of LIBOR plus 0.85%. Based on the decrease in the interest rate spread, the market value of our assumed debt increased from $1.76 billion to $1.79 billion, representing a mark-to-market adjustment of $31.0 million. This mark-to-market adjustment will be amortized over the remaining term of each loan as a decrease in interest expense, using the effective interest method.
As of June 30, 2006, we had $2.21 billion of debt subject to interest rate contracts with a $126.0 million net fair value.
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Cash Flows
Comparison of six months ended June 30, 2006 to six months ended June 30, 2005
Cash and cash equivalents were $100.5 million and $66.4 million, respectively, at June 30, 2006 and 2005.
Net cash provided by operating activities increased $9.8 million to $70.0 million for the six months ended June 30, 2006 compared to $60.2 million for the six months ended June 30, 2005. The increase was primarily due to a $2.9 million increase from the change in operating assets and liabilities. The remainder of the increase was due to the contribution from the acquisition of one multifamily property in March 2006 and improved operations at our office Same Store Portfolio and the repositioning properties.
Net cash used in investing activities decreased $54.7 million to $138.3 million for the six months ended June 30, 2006 compared to $193.0 million for the six months ended June 30, 2005. The decrease was due to a $56.0 million decrease in the cash used to acquire properties.
Net cash provided by financing activities decreased $30.8 million to $60.6 million for the six months ended June 30, 2006 compared to $91.4 million for the six months ended June 30, 2005. The decrease was due to a $5.6 million decrease in net borrowings and a $25.2 million net distribution to minority interests and stockholders.
Comparison of year ended December 31, 2005 to year ended December 31, 2004
Cash and cash equivalents were $108.3 million and $107.9 million, respectively, at December 31, 2005 and 2004.
Net cash provided by operating activities increased $35.0 million to $127.8 million for the year ended December 31, 2005 compared to $92.8 million for the year ended December 31, 2004. The increase was primarily due to the increased operating income from the acquisition of three office properties in late 2004 and one office and one multifamily property in January 2005, as well as increased operating income from the repositioning properties, offset by a $1.6 million decrease from the change in operating assets and liabilities.
Net cash used in investing activities increased $7.6 million to $231.2 million for the year ended December 31, 2005 compared to $223.6 million used in investing activities for the year ended December 31, 2004. During the year ended December 31, 2004, we acquired three properties, while during the year ended December 31, 2005, we acquired two properties, one of which included the assumption of $100.5 million of indebtedness. As a result, the amount of net cash used for acquisitions during 2005 decreased by $2.0 million over 2004. In addition, net cash used in investing activities decreased by $39.1 million as a result of having no property dispositions in 2005, offset by a decrease in capital expenditures from the repositioning properties.
Net cash provided by financing activities decreased $64.0 million to $103.8 million for the year ended December 31, 2005 compared to $167.8 million for the year ended December 31, 2004. The decrease was primarily due to a net decrease in borrowings, offset by lower net distributions.
Comparison of year ended December 31, 2004 to year ended December 31, 2003
Cash and cash equivalents were $107.9 million and $70.9 million, respectively, at December 31, 2004 and 2003.
Net cash provided by operating activities decreased $21.2 million to $92.8 million for the year ended December 31, 2004 compared to $114.0 million for the year ended December 31, 2003. The decrease was primarily due to a $17.0 million decrease in the change in operating assets and liabilities
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as well as the impact of a decrease in operating income from the repositioning properties, partially offset by the increased operating income from the acquisition of three office properties in late 2004.
Net cash used in investing activities decreased $225.8 million to $223.6 million used in investing activities for the year ended December 31, 2004 compared to $2.2 million provided by investing activities for the year ended December 31, 2003. The decrease was primarily due to the expenditure of $173.5 million to acquire three properties during the year ended December 31, 2004. The remainder of the decrease was the result of a $27.2 million decrease in net cash received from property dispositions as compared to the prior year period and an increase in capital expenditures on repositioning properties.
Net cash provided by financing activities increased $284.1 million to $167.8 million for the year ended December 31, 2004 compared to $116.3 million used in financing activities for the year ended December 31, 2003. The increase was primarily due to a $78.6 million net increase in borrowings and an increase in net contributions by minority interest partners.
Funds From Operations
We calculate funds from operations before minority interest, or FFO, in accordance with the standards established by the National Association of Real Estate Investment Trusts, or NAREIT. FFO represents net income (loss) (computed in accordance with GAAP), excluding gains (or losses) from sales of depreciable operating property, real estate related depreciation and amortization (excluding amortization of deferred financing costs) and after adjustments for unconsolidated partnerships and joint ventures.
Management uses FFO as a supplemental performance measure because, in excluding real estate related depreciation and amortization and gains and losses from property dispositions, it provides a performance measure that, when compared year over year, captures trends in occupancy rates, rental rates and operating costs. We also believe that, as a widely recognized measure of the performance of REITs, FFO will be used by investors as a basis to compare our operating performance with that of other REITs.
However, because FFO excludes depreciation and amortization and captures neither the changes in the value of our properties that result from use or market conditions nor the level of capital expenditures and leasing commissions necessary to maintain the operating performance of our properties, all of which have real economic effects and could materially impact our results from operations, the utility of FFO as a measure of our performance is limited. Other equity REITs may not calculate FFO in accordance with the NAREIT definition as we do, and, accordingly, our FFO may not be comparable to such other REITs' FFO. Accordingly, FFO should be considered only as a supplement to net income as a measure of our performance. FFO should not be used as a measure of our liquidity, nor is it indicative of funds available to fund our cash needs, including our ability to pay dividends. FFO also should not be used as a supplement to or substitute for cash flow from operating activities computed in accordance with GAAP.
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The following table sets forth a reconciliation of our pro forma funds from operations before minority interest for the periods presented to net loss, the nearest GAAP equivalent (in thousands):
|
|
Pro Forma |
|
|||||
---|---|---|---|---|---|---|---|---|
|
Six Months
Ended June 30, 2006 |
Year Ended
December 31, 2005 |
||||||
Net loss | $ | (13,480 | ) | $ | (61,350 | ) | ||
Adjustments: | ||||||||
Minority interest in operating partnership | (6,096 | ) | (27,744 | ) | ||||
Real estate depreciation and amortization | 98,714 | 221,720 | ||||||
|
|
|||||||
Funds from operations before minority interest (1) | $ | 79,138 | $ | 132,626 | ||||
|
|
Inflation
Substantially all of our office leases provide for separate real estate tax and operating expense escalations. In addition, most of the leases provide for fixed rent increases. We believe that inflationary increases may be at least partially offset by the contractual rent increases and expense escalations described above. Our multifamily properties are subject to one year leases. We believe this provides added flexibility to pass the impact of higher inflation on to tenants. However, six of our multifamily properties are subject to some form of rent regulation limiting annual increases in rents on existing tenants to amounts determined by local municipalities. Although new tenancies in our rent-regulated multifamily properties pay market rents upon occupancy, limits on rent increases may limit our ability to pass on the impact of higher inflation. We do not believe that inflation has had a material impact on our historical financial position or results of operations.
Newly Issued Accounting Standards
In May 2005, the FASB issued Statement of Financial Accounting Standards (SFAS) No. 154, Accounting Changes and Error CorrectionsA Replacement of APB Opinion No. 20 and FASB Statement No. 3 (SFAS 154). This new standard replaces APB Opinion No. 20, Accounting Changes, and FASB Statement No. 3, Reporting Accounting Changes in Interim Financial Statements. Among other changes, SFAS 154 requires that a voluntary change in accounting principle be applied retrospectively with all prior period financial statements presented on the new accounting principle, unless it is impracticable to do so. SFAS 154 also provides that a change in method of depreciating or amortizing a long-lived nonfinancial asset be accounted for as a change in estimate (prospectively) that was effected by a change in accounting principle, and that correction of errors in previously issued financial statements should be termed a "restatement." SFAS 154 is now effective for accounting changes and correction of errors, however, we had no such items during the current quarter.
On December 16, 2004, the FASB issued SFAS No. 123 (Revised 2004), Share-Based Payment (SFAS 123R). SFAS 123R requires that compensation cost relating to share-based payment transactions be recognized in financial statements and measured based on the fair value of the equity or liability instruments issued. The adoption of SFAS 123R on January 1, 2006 did not impact our consolidated financial statements in 2006.
In March 2005, the FASB issued Interpretation No. 47, Accounting for Conditional Asset Retirement Obligationsan interpretation of FASB Statement No. 143 (FIN 47). FIN 47 clarifies that the term
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"conditional asset retirement obligation" as used in SFAS No. 143, Accounting for Asset Retirement Obligations , represents a legal obligation to perform an asset retirement activity in which the timing and/or method of settlement is conditional on a future event that may or may not be within a company's control. Under this standard, a liability for a conditional asset retirement obligation must be recorded if the fair value of the obligation can be reasonably estimated. FIN 47 is effective for fiscal years ending after December 15, 2005. Environmental site assessments and investigations have identified 15 properties in our portfolio containing asbestos. If these properties undergo major renovations or are demolished, certain environmental regulations are in place, which specify the manner in which the asbestos must be handled and disposed. As of June 30, 2006, the obligations to remove the asbestos from these properties have indeterminable settlement dates, and therefore, we are unable to reasonably estimate the fair value of the conditional asset retirement obligation.
Quantitative and Qualitative Disclosure About Market Risk
Our future income, cash flows and fair values relevant to financial instruments are dependent upon prevalent market interest rates. Market risk refers to the risk of loss from adverse changes in market prices and interest rates. As more fully described in the interest rate risk section, we use derivative financial instruments to manage, or hedge, interest rate risks related to our borrowings. In conjunction with this offering, we intend to enter into two new series of interest rate swap and interest rate cap contracts. The first series will effectively offset all future changes in fair value from our existing interest rate swap and interest rate cap contracts, and the second series will effectively replace the existing interest rate contracts and qualify for hedge accounting under SFAS 133. We only enter into contracts with major financial institutions based on their credit rating and other factors.
Upon completion of this offering, we expect to enter into interest rate swap agreements for approximately $2.21 billion of our variable rate debt. As a result, on a pro forma basis as of June 30, 2006, approximately 80.2% of our total indebtedness (excluding the loan premium) would have been subject to fixed interest rates.
If, after consideration of the interest rate swaps and interest rate cap contracts described above, LIBOR were to increase by 10%, or approximately 50 basis points, the increase in interest expense on the unhedged variable rate debt would decrease future earnings and cash flows by approximately $2.7 million annually. If LIBOR were to decrease by 10%, or approximately 50 basis points, the decrease in interest expense on the unhedged variable rate debt would be approximately $2.7 million annually.
Interest risk amounts were determined by considering the impact of hypothetical interest rates on our financial instruments. These analyses do not consider the effect of any change in overall economic activity that could occur in that environment. Further, in the event of a change of that magnitude, we may take actions to further mitigate our exposure to the change. However, due to the uncertainty of the specific actions that would be taken and their possible effects, these analyses assume no changes in our financial structure.
As of June 30, 2006, on a pro forma basis, our total outstanding debt was approximately $2.75 billion, excluding loan premiums, which was comprised of $545.0 million of variable rate secured mortgage loans and $2.21 billion of variable rate secured mortgage loans swapped to fixed rates. As of June 30, 2006, the fair value of our pro forma variable rate secured mortgage loans that have been swapped to fixed rates was approximately $2.24 billion.
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Unless otherwise indicated, all information contained in this Economic and Market Overview section is derived from the market study prepared by Eastdil Secured.
Los Angeles Regional Economy
Los Angeles is a leading international gateway city with a large, dynamic and diverse economy. It is widely recognized as the most important financial, trade and cultural center in the western United States. The Los Angeles region is comprised of five major counties totaling over 35,000 square miles. These counties include Los Angeles County (4,752 square miles), Orange County (948 square miles), Riverside County (7,304 square miles), San Bernardino County (20,106 square miles) and Ventura County (2,208 square miles). As of December 31, 2005, the Los Angeles region had the largest metropolitan economy in California, the second largest metropolitan economy in the nation and accounted for more jobs than any U.S. region other than the New York metropolitan area. If the five-county Los Angeles region were viewed as an independent economy it would have ranked as the world's fifteenth largest, with $755 billion in annual gross domestic product. In addition, if the Los Angeles region were a separate state, it would have had the fourth largest population in the United States, with approximately 17.7 million residents, as of December 31, 2005.
The Los Angeles region has a diverse economic base that is driven by a robust service sector, including hospitality and leisure, health care, administrative and financial, legal and other professional services. The Los Angeles region is also the nation's largest metropolitan area for manufacturing, including apparel and textiles, machinery and equipment, minerals and metals and transportation equipment. Other leading industries affecting economic growth include trade and motion picture production. Additionally, recent increases in federal defense spending have contributed to a rebound in the aerospace industry. The Los Angeles region is home to the headquarters for many large corporations, including The Walt Disney Co., Occidental Petroleum Corp., Northrop Grumman Corp., Health Net, Inc., Mattel, Inc., KB Home, Amgen Inc. and Hilton Hotels Corp. In addition, Los Angeles County is widely recognized as the worldwide center of the entertainment industry.
The Los Angeles region is a major transportation and distribution hub for the southwest United States. The Los Angeles region is served by four major airports, including Los Angeles International Airport, which is the fifth-busiest airport in the world, serving over 75 major airlines and 61 million passengers annually. The Los Angeles region has two major seaports: the Port of Los Angeles and the Port of Long Beach. Combined, these ports are the largest in North America, ranking first in tonnage and dollar volume. The Port of Los Angeles ranks as the eighth busiest container port in the world. The Los Angeles Economic Development Council, or LAEDC, forecasts that the total value of two-way international trade passing through the Los Angeles customs district will increase by 12.2% in 2006 over 2005 to $330.9 billion, dominated by trade with China and Japan. Two major redevelopment projects are currently underway to enlarge both the Los Angeles and Long Beach ports, at total costs of $1.1 billion and $1.3 billion, respectively. The fifteen railroads that serve Southern California and link the region to the rest of the United States and Canada carry approximately eight billion tons of manufactured goods to and from the Los Angeles five-county region annually. The Los Angeles regional freeway system is recognized as one of the largest and most-utilized freeway systems in the world, comprising over 900 miles of interstate and state roadways for commuters and commerce.
Between 1995 and 2005, the five-county Los Angeles region experienced a gain of approximately 2.6 million residents, or a 16.8% total increase and a 1.6% compounded annual growth rate. The region's population is projected to increase by an additional 1.5% to 18.2 million residents in 2006. During the period from 1995 to 2005, total employment in the five-county Los Angeles region posted a net gain of over 1.0 million jobs, or a 17.7% total increase and a 1.6% compounded annual growth rate, and is projected to increase by 1.3% to 7.1 million jobs in 2006. These statistics compare favorably
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to the nation as a whole, with the Los Angeles region outpacing the national average between 1995 and 2005 by 5.4% in population growth and by 3.1% in job growth.
Los Angeles Five-County Area
Total Population |
Los Angeles Five-County Area
Total Non-Farm Employment |
|
Source: Los Angeles Economic Development Council. |
|
|
Of the five counties in the Los Angeles region, Los Angeles County has the largest economy. As of December 31, 2005, Los Angeles County had an annual gross domestic product of $424 billion, making it the world's seventeenth largest economy. The largest industry sectors in Los Angeles County, based on employment statistics, are business, financial and professional management services, tourism, entertainment, including motion picture and television production, technology, bio-medical and international trade.
Los Angeles County Office Market
Overview
Los Angeles County is the second largest market for office space in the United States and has a total inventory of approximately 368 million rentable square feet of office space. The Los Angeles County office market is comprised of seven distinct markets which attract different types of tenants and investors. These markets are West Los Angeles, Downtown Los Angeles, South Bay, San Fernando Valley, Tri-Cities, the Hollywood/Wilshire Corridors and the San Gabriel Valley.
The Los Angeles County office market is unique among gateway cities because the premier office markets are located outside of the downtown office market. Proximity to one's residence is an important consideration in locating a business because of limited access to convenient public transportation in most areas of Los Angeles County. Therefore, the most desirable office markets and submarkets in Los Angeles County have grown in proximity to high-end executive housing, providing executives and other business decision-makers with shorter and more convenient commutes to and from their workplace. These markets are characteristically supply constrained and offer a high level of lifestyle amenities. As a result, these markets have commanded premium rents and higher occupancies compared to other markets in Los Angeles County. Our portfolio of Class-A office properties is concentrated in the West Los Angeles, San Fernando Valley and Tri-Cities markets. The table below illustrates the inventory of competitive office space, asking rates and occupancy levels for our markets, the other Los Angeles County office markets and Los Angeles County as a whole as of June 30, 2006.
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Los Angeles County Office Markets
(As of June 30, 2006)
Market
|
Rentable
Square Feet |
Percent
of Total |
Asking Rents
|
Occupancy
|
|||||||
---|---|---|---|---|---|---|---|---|---|---|---|
Douglas Emmett Markets | |||||||||||
West Los Angeles | 43,183,281 | 24.2 | % | $ | 36.00 | 93.1 | % | ||||
San Fernando Valley | 22,291,618 | 12.5 | 26.76 | 92.8 | |||||||
Tri-Cities | 24,768,349 | 13.9 | 30.24 | 93.6 | |||||||
|
|
|
|
||||||||
Total/Weighted AverageDouglas Emmett Markets (1) | 90,243,248 | 50.6 | % | $ | 32.14 | 93.2 | % | ||||
Non-Douglas Emmett Markets |
|
|
|
|
|
|
|
|
|
|
|
Downtown Los Angeles | 30,960,102 | 17.3 | % | $ | 30.12 | 86.3 | % | ||||
South Bay | 27,108,214 | 15.2 | 22.44 | 84.1 | |||||||
Hollywood/Wilshire | 17,194,280 | 9.6 | 25.68 | 90.7 | |||||||
San Gabriel Valley | 12,981,596 | 7.3 | 24.96 | 95.2 | |||||||
|
|
|
|
||||||||
Total/Weighted AverageNon-Douglas Emmett Markets (1) | 88,244,192 | 49.4 | % | $ | 26.14 | 87.8 | % | ||||
|
|
|
|
||||||||
Total/Weighted AverageLos Angeles County Office Market (1) | 178,487,440 | 100.0 | % | $ | 29.17 | 90.5 | % | ||||
|
|
|
|
Source: CB Richard Ellis.
Beginning in the mid-1990s and through 2000, significant economic growth in the United States contributed to robust corporate expansion, which resulted in increased occupancy rates and strong growth in office rental rates. However, by the end of 2000, a slowing economy resulted in a general weakening of office markets across the country. While the Los Angeles County office market experienced declines in occupancy between 2000 and 2002 and declines in rental rates between 2001 and 2004, the diverse economic base of the Los Angeles region helped to mitigate the significant rental rate and occupancy fluctuations that certain other U.S. cities such as New York and San Francisco were experiencing. Beginning in 2003, occupancy rates in Los Angeles County began to recover and, as of June 30, 2006, Los Angeles County reported an average occupancy rate of 90.5%, the highest rate in over 10 years. Los Angeles County rental rates began to recover in 2005, and as of June 30, 2006, overall annual asking rental rates reached $29.17 per square foot, the highest average rate achieved in over 10 years. In addition, according to Torto Wheaton Research, Class-A office rents in Los Angeles County are expected to grow 5.5% in 2006 with a five-year, 2006-2010 forecasted annual rental growth of 5.2%.
Douglas Emmett Office Submarkets
In addition to its seven major markets, the Los Angeles County office market is further defined by 59 distinct office submarkets located within the seven major markets according to CB Richard Ellis. These submarkets differ widely in terms of their desirability, tenant base, rental and occupancy rates and barriers to new construction and supply. Within our three Los Angeles County office markets of West Los Angeles, San Fernando Valley and Tri-Cities, we have chosen to focus on what we believe are nine of the premier office submarkets in these markets and in Los Angeles County as a whole. Six of these submarkets, Brentwood, Olympic Corridor, Century City, Santa Monica, Beverly Hills and Westwood, are located in the West Los Angeles market. Two of these submarkets, Sherman Oaks/Encino and Warner Center/Woodland Hills, are located in the San Fernando Valley market, and one, Burbank, is located in the Tri-Cities market. We have invested in these submarkets due to their high
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level of lifestyle amenities and proximity to high-end executive housing, features that have contributed to these submarkets historically achieving premium rents and higher occupancy levels than the other Los Angeles County office submarkets, as well as the Los Angeles County office market as a whole. The chart below illustrates a comparison of the historical rental rates and occupancy levels of Class-A office space in our submarkets, the other Los Angeles County submarkets and the Los Angeles County office market as a whole.
Historical Rental Rates & OccupancyClass-A Office
Douglas Emmett Submarkets vs. Los Angeles County vs. Non-Douglas Emmett Submarkets
(1)
Source: Costar Office Reports.
The decline in occupancies in our submarkets from 2000 to 2003 was the result of a combination of factors. A large amount of previously entitled office space was delivered to the market between 2000 and 2001. The combined impact of this new construction with the slowing of the technology sector and the general economic downturn that affected Los Angeles County as a whole from 2000 to 2003 led to a decrease in office space absorption as well as increasing vacancies in our submarkets during this same time period. Occupancy levels in our submarkets began to recover in 2004 and on average have significantly outperformed the Los Angeles County office market as a whole since then, with occupancy increasing from 83.4% in 2003 to 91.5% in 2005, or 8.1 percentage points, compared to the Los Angeles County market which increased from 83.6% to 88.9%, or 5.3 percentage points, and compared to the submarkets in which we do not have a presence, which increased from only 83.7% to 87.4%, or 3.7 percentage points. Rental rates in our submarkets began to recover in 2005, with annual rental rates increasing from $31.76 per square foot in 2004 to $34.04 per square foot in 2005, or an increase of 7.2%, compared to Los Angeles County, which increased from $26.53 per square foot to $27.71 per square foot, or an increase of 4.4%, and compared to the submarkets in which we do not have a presence, which increased from $24.23 per square foot to $25.36 per square foot, or an increase of 4.7%. Eastdil Secured projects average Class-A office rental rate growth of approximately 10.0% per year for 2006 and 2007 across our nine Los Angeles County submarkets with a projected five year growth rate average of 6.9% from 2006 to 2010.
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We believe that, within each of our submarkets, we generally own top quality office buildings in terms of their locations, occupancy levels and rental rate premiums. The table below summarizes the West Los Angeles, San Fernando Valley and Tri-Cities office markets as of June 30, 2006, and sets forth the rentable square feet, asking rents and occupancy levels in each of our nine submarkets within these three markets. As of June 30, 2006, the weighted average asking rental rates in our Los Angeles County office portfolio ($35.28 per square foot) were at an 11.8% premium to the weighted average asking rental rates in our Los Angeles County submarkets ($31.56 per square foot). Excluding the Warner Center/Woodland Hills submarket, where we acquired properties with significant vacancies in recent years, our occupancy rate was 96.1%, which reflects a 2.5 percentage point premium to our submarkets (including the Warner Center/Woodland Hills submarket, our occupancy rate reflects a 0.4 percentage point premium).
|
Rentable
Square Feet |
Asking Rents
|
Occupancy
(1)
|
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Market/Submarket
|
Douglas
Emmett Portfolio |
Douglas
Emmett Portfolio |
Submarket
|
Douglas
Emmett Portfolio |
Submarket
|
|||||||||
West Los Angeles | ||||||||||||||
Brentwood | 1,390,625 | $ | 36.03 | $ | 33.72 | 95.7 | % | 92.8 | % | |||||
Olympic Corridor | 922,405 | 29.81 | 28.92 | 90.0 | 90.8 | |||||||||
Century City | 866,039 | 35.30 | 35.16 | 93.0 | 89.3 | |||||||||
Santa Monica | 860,159 | 59.11 | 41.76 | 99.2 | 94.8 | |||||||||
Beverly Hills | 571,869 | 47.75 | 37.20 | 97.8 | 94.8 | |||||||||
Westwood | 396,728 | 34.80 | 41.28 | 95.2 | 92.7 | |||||||||
|
|
|
|
|
||||||||||
Total Douglas Emmett Submarkets (2) | 5,007,825 | $ | 39.96 | $ | 35.46 | 95.0 | % | 92.4 | % | |||||
Non-Douglas Emmett Submarkets | | | $ | 31.10 | | 94.8 | % | |||||||
San Fernando Valley |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sherman Oaks/Encino | 2,878,769 | $ | 33.11 | $ | 27.79 | 97.4 | % | 95.3 | % | |||||
Warner Center/Woodland Hills | 2,567,814 | 28.28 | 27.96 | 84.1 | 90.4 | |||||||||
|
|
|
|
|
||||||||||
Total Douglas Emmett Submarkets (2) | 5,446,583 | $ | 30.83 | $ | 27.87 | 91.1 | % | 93.0 | % | |||||
Non-Douglas Emmett Submarkets | | | $ | 25.90 | | 92.9 | % | |||||||
Tri-Cities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Burbank | 420,949 | $ | 37.20 | $ | 32.76 | 100.0 | % | 95.2 | % | |||||
|
|
|
|
|
||||||||||
Total Douglas Emmett Submarkets (2) |
|
420,949 |
|
$ |
37.20 |
|
$ |
32.76 |
|
100.0 |
% |
95.2 |
% |
|
Non-Douglas Emmett Submarkets | | | $ | 29.54 | | 93.1 | % | |||||||
Total/Weighted Average Douglas Emmett Submarkets (2) |
|
10,875,357 |
|
$ |
35.28 |
|
$ |
31.56 |
|
93.2 |
% |
92.8 |
% |
|
Total/Weighted Average Non-Douglas Emmett Submarkets (3) | | | $ | 29.02 | | 93.5 | % | |||||||
|
|
|
|
|
||||||||||
Total/Weighted Average Los Angeles County | 10,875,357 | $ | 35.28 | $ | 29.56 | 93.2 | % | 93.4 | % | |||||
|
|
|
|
|
Source: CB Richard Ellis (other than Douglas Emmett data).
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Each of our submarkets is generally characterized by supply constraints that are the result of down-zoning, economic constraints, restrictive planning commission practices and homeowner groups who are opposed to new development, all of which have created high barriers to the development of new office space. Proposition U, which was approved in 1986, decreased the development capacity of the City of Los Angeles by approximately 50% and affects the Brentwood, Olympic Corridor, Sherman Oaks/Encino and Westwood submarkets. Under the existing specific plans governing development within the Century City and Burbank submarkets, future development is extremely limited. The City of Santa Monica adopted a series of plans in the mid-1980s that imposed stringent limits on development in the downtown area where all of our Santa Monica properties are located, and Beverly Hills limits development through a discretionary approval process for virtually all new building.
Over the past five years, new supply growth in our nine Los Angeles County office submarkets has been limited, with a total of approximately 3.1 million square feet of new additions from 2001 to 2005. This represents an average increase in Class-A inventory of only 1.1% per year across these submarkets. Of the 3.1 million total square feet delivered over the five-year period, approximately 60% of the total was concentrated in the Burbank and Century City submarkets. While approximately 1.3 million square feet of new space was delivered in Santa Monica over the period from 1999 to 2004, the space was primarily located in the eastern area of the city, outside of the downtown Santa Monica market where our properties are located, and was the result of previous development entitlements granted in the 1980s. Additionally, over this time period, there were no new significant office deliveries in our Westwood, Brentwood and Sherman Oaks/Encino submarkets. Within our Los Angeles County submarkets, the following net new supply of office space is expected over a three-year span from 2006 to 2008: 194,000 square feet planned in our Santa Monica submarket; two buildings totaling approximately 500,000 square feet planned in our Warner Center/Woodland Hills submarket; and one new building in our Century City submarket totaling 780,000 square feet of which 300,000 square feet has been pre-leased. In addition, in our Burbank submarket, where we own one building that is currently 100% leased to a single tenant through 2019, 180,000 square feet of new office space was completed in 2006, and an additional 1.1 million square feet is planned and 370,000 square feet is proposed over the three-year span from 2006 to 2008. Assuming all current planned and proposed construction in our submarkets is completed by 2008, this pipeline represents an average increase in Class-A inventory of approximately 1.9% per year across our submarkets. Excluding our Burbank submarket, this increase would be approximately 1.1% per year. No other significant office space is currently under construction, planned to begin construction or proposed during this period in our other submarkets.
Los Angeles County Multifamily Market
The Los Angeles County multifamily market is one of the strongest in the United States. Limited new construction of multifamily buildings and continued regional economic expansion and job growth have contributed to the overall strength of the Los Angeles County multifamily market, helping place Los Angeles County as the third most expensive multifamily market in the nation. Furthermore, high housing prices in Los Angeles County have contributed to the demand for multifamily units. From 1995 to 2005, household income growth in Los Angeles County averaged 3.9% annually while single family home prices increased 11.4% annually over this period.
Our Los Angeles multifamily properties are located in the Santa Monica and Brentwood submarkets of West Los Angeles. The West Los Angeles multifamily market is characterized by its coastal proximity, convenient access to the West Los Angeles office market and high level of lifestyle amenities. These submarkets also generally boast an affluent and highly educated population that is attracted to the better air quality and more temperate climate in these submarkets, as compared to the rest of Los Angeles County. Consequently, the West Los Angeles market has achieved premium rents and higher occupancy levels as compared to other Los Angeles County multifamily markets.
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Multifamily rents in West Los Angeles are the highest in Los Angeles County with an average rental rate of $1,948 per unit per month compared to an average of $1,456 per unit per month for Los Angeles County as a whole, as of June 30, 2006.
As the chart below illustrates, the Los Angeles County multifamily market has significantly outpaced the national average over the past six years in terms of rental rate premiums and growth, as well as in occupancy levels. Furthermore, the West Los Angeles multifamily market has enjoyed similar occupancy levels as Los Angeles County as a whole, while achieving a consistent premium in rental rates with an average premium in rental rates of 50.7% from 2000 to 2005.
Historical Multifamily Rental Rates and Occupancy
West Los Angeles vs. Los Angeles County vs. United States
(1)
Source: M/PF Research.
A strong flow of in-migration coupled with limited new housing supply has resulted in a significant imbalance between housing supply and demand in Los Angeles County. According to the LAEDC, from 2000 to 2005, the Los Angeles County population increased by over 700,000 new residents while only 128,000 new residential building permits were issued. The density of current development, zoning and other municipal restrictions and the natural geographic land constraints are factors that severely limit new multifamily development in the West Los Angeles multifamily market where our multifamily buildings are located.
Historical new multifamily completions in Los Angeles County have been very limited, with approximately 21,000 units, or a 0.3% average increase in available supply, completed from 2000 to 2005. During the same period, the rate of new supply of multifamily units in West Los Angeles has been consistent with Los Angeles County as a whole, with only approximately 3,260 new multifamily units completed, or a 0.4% average increase in available supply. In West Los Angeles, approximately 3,900 new multifamily units are proposed, planned or under construction between 2006 and 2008, the majority of which are located outside of our targeted West Los Angeles multifamily submarkets. Over this time period, there is no new supply projected in our Brentwood submarket and there are approximately 900 multifamily units either proposed, planned or under construction in Santa Monica. The new supply in Santa Monica is generally comprised of projects that are smaller in size and farther from the beach as compared to our two Santa Monica multifamily buildings. We expect this space will be absorbed by the significant rental demand in this highly desirable rental submarket.
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We believe that the supply constraints and positive demographics discussed above result in rental rate and occupancy premiums for the West Los Angeles market and provide significant potential for sustained increases in rental rates. As shown by the table below, as of June 30, 2006 the average asking rents for the West Los Angeles market are the highest in Los Angeles County. Furthermore, given the superior locations and quality of our properties, our buildings command significant rental rate and occupancy premiums to both Los Angeles County as a whole and the West Los Angeles market in which they are located.
|
Asking Rents (per unit/month)
|
Occupancy
|
||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|
Market/Portfolio
|
Douglas Emmett
Portfolio |
Market
|
Douglas Emmett
Portfolio |
Market
|
||||||||
Douglas Emmett Markets | ||||||||||||
West Los Angeles | $ | 2,477 | $ | 1,948 | 99.5 | % | 97.4 | % | ||||
Non-Douglas Emmett Markets |
|
|
|
|
|
|
|
|
|
|
|
|
Hollywood | | $ | 1,491 | | 97.8 | % | ||||||
Tri-Cities | | 1,534 | | 97.1 | ||||||||
South Bay Cities | | 1,577 | | 97.4 | ||||||||
Downtown Los Angeles | | 1,483 | | 98.2 | ||||||||
San Fernando Valley | | 1,426 | | 97.8 | ||||||||
Santa Clarita Valley | | 1,386 | | 94.9 | ||||||||
Long Beach | | 1,350 | | 96.3 | ||||||||
San Gabriel Valley | | 1,221 | | 97.5 | ||||||||
East Los Angeles | | 1,146 | | 97.9 | ||||||||
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|
|
|
|||||||||
Average Douglas Emmett Markets | $ | 2,477 | $ | 1,948 | 99.5 | % | 97.4 | % | ||||
Average Non-Douglas Emmett Markets | | 1,402 | | 97.2 | ||||||||
|
|
|
|
|||||||||
Average Los Angeles County | $ | 2,477 | $ | 1,456 | 99.5 | % | 97.2 | % | ||||
|
|
|
|
Source: M/PF Reports (other than Douglas Emmett data).
Honolulu, Hawaii Economy
The State of Hawaii is located in the mid-Pacific Ocean approximately 2,400 miles from the west coast of the mainland United States. The eight major islands of Hawaii are, in order from Northwest to Southeast, Niihau, Kauai, Oahu, Molokai, Lanai, Kahoolawe, Maui, and the Island of Hawaii. The Island of Oahu, also known as the City and County of Honolulu, is the most populous, with approximately 70% of Hawaii's population of 1.28 million people as of June 30, 2006, and 70.3% of Hawaii's civilian workforce. The downtown area of Honolulu, Hawaii's capital city, is located at the southeast section of Oahu and represents the political, economic, and cultural center of Hawaii as well as a center of international trade and travel for the United States and Asia. In addition to Hawaii's tourism and construction industries and a strong military presence, the Hawaiian Islands derive a significant portion of their employment from the health care, finance, and trade industries.
Population growth in both Oahu and Hawaii has been steady from 1995 to 2005 with aggregate increases of 2.7% and 6.6%, respectively. Job growth in Oahu and Hawaii from 1995 to 2005 has been 8.6% and 13.0%, respectively. Hawaii's unemployment rate averaged 3.1% in the second quarter of 2006, the third lowest in the nation.
Total economic output for Hawaii has shown consistent growth since 1985. According to the State of Hawaii Department of Business, Economic Development and Tourism, or DBEDT, Hawaii's economy performed well in the first quarter of 2006 with the outlook remaining positive for the balance of the year. The DBEDT projects growth in Hawaii's gross state product of 6.0% in 2006,
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following robust growth rates of 6.5% and 7.8% in 2005 and 2004, respectively. According to the U.S. Bureau of Economic Analysis, Hawaiian personal income has more than doubled on a nominal basis since 1985 and according to DBEDT statistics, personal income grew 6.8% and 5.9% in 2004 and 2005, respectively.
Honolulu Office Market
The metropolitan Honolulu office market consisted of approximately 11.6 million rentable square feet as of June 30, 2006. As of such date, the Honolulu CBD contained over 5.1 million rentable square feet totaling approximately 44% of total Honolulu inventory. We own two office properties in the Honolulu CBD. The combination of Class-A office inventory, amenity base and concentration of federal, state and local government centers in the Honolulu CBD has attracted corporate and service sector tenants including law firms, healthcare companies, and financial service and accounting firms that provide services throughout the Hawaiian Islands and/or require proximity to the various state and local government agencies in the central business district.
The Honolulu CBD office market has experienced significant growth in both occupancy and rental rates as a result of strong demographic trends and limited new supply. As of June 30, 2006, the average asking rental rate in the Honolulu CBD was $30.18 per square foot compared to $29.28 per square foot at year end 2005 and the average occupancy level was 92.2% compared to 90.2% at year end 2005. From 2003 to 2005, asking rental rates for office properties in the Honolulu CBD grew 10.2% while occupancy levels increased 0.6 percentage points.
Historical Rental Rates & Occupancy
Honolulu CBD
Source: CB Richard Ellis.
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As the table below illustrates, as of June 30, 2006, the average annual asking rent and occupancy rate for our office buildings was $30.78 and 90.2%, respectively, compared to $30.18 and 92.2% for the Honolulu CBD as a whole.
Market
|
Rentable Square Feet
|
Asking Rents
|
Occupancy
(1)
|
|||||
---|---|---|---|---|---|---|---|---|
Honolulu CBD | 5,140,907 | $ | 30.18 | 92.2 | % | |||
Douglas Emmett Portfolio | 678,940 | $ | 30.78 | 90.2 | % |
Source: CB Richard Ellis (other than Douglas Emmett data).
With current rental rates well below a level that would support new construction, new supply in the Honolulu CBD is expected to be extremely limited in the near term. When rental rates return to levels that can support new construction, developers will be faced with a limited number of fringe development sites on the perimeter of the core Honolulu CBD. There is no new significant office capacity projected to become available in the near term.
Honolulu Multifamily Market
Multifamily units in Oahu are scattered among an inventory that is mainly comprised of single family rental properties, individually owned condominium and multifamily complexes and a small number of institutionally owned multifamily properties. Rental demand is driven not only by residents of Oahu but also by visitors to the island seeking short term rentals. We own two institutional quality multifamily properties in Honolulu: Moanalua Hillside Apartments, which consists of 696 rental units, and the Villas at Royal Kunia, which consists of 402 rental units.
As the chart below illustrates, the Honolulu multifamily market has shown improvement in both rental rates and occupancy levels over the past six years. Average rental rates have grown from $1,150 per unit per month in 2000 to $1,264 per unit per month in 2005, representing a 9.9% increase or an average compounded annual growth rate of 1.9%. Additionally, occupancy levels have risen from 92.9% in 2001 to 94.6% in 2005.
Historical Rental Rates & Occupancy
Honolulu County
Source: Property & Portfolio Research.
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In recent years, the number of multifamily, condominium and single family units for rent in Honolulu has decreased. The shrinking supply of rental units in the market can be attributed to a number of factors including significant growth in housing prices, the conversion of multifamily properties to for-sale condominium units and the sale of previously rented single family homes and condominium units to owner-occupants. Additionally, the high land values and the high cost of new construction in Hawaii makes the development of new multifamily rental units in the Honolulu market economically prohibitive.
We believe that job growth, a strong housing market and rising interest rates will continue to generate strong demand for multifamily units in the Honolulu market. Furthermore, these positive fundamentals combined with a lack of significant new supply should support increases in rental rates and cause already high occupancy rates to increase further over the near term. As the table below illustrates, as of June 30, 2006, the average monthly asking rent per unit and occupancy rate for our two Honolulu multifamily properties was $1,547 (excluding the income-restricted units in our portfolio) and 99.6%, respectively, compared to $1,283 and 95.2% for the Honolulu multifamily market as a whole. As of June 30, 2006, the average rental rate on our low and moderate income units was $1,227 per unit.
Market
|
Asking Rents
(per unit/month) (1) |
Occupancy
|
||||
---|---|---|---|---|---|---|
Honolulu | $ | 1,283 | 95.2 | % | ||
Douglas Emmett Portfolio | $ | 1,547 | 99.6 | % |
Source: Property & Portfolio Research (other than Douglas Emmett data).
(1) Excludes income-restricted units.
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Unless otherwise indicated, all information contained in this Business and Properties section concerning the Los Angeles and Hawaii economies and the Los Angeles and Honolulu office and multifamily markets is derived from the market study prepared by Eastdil Secured.
Overview
We are one of the largest owners and operators of high-quality office and multifamily properties in Los Angeles County, California and have a growing presence in Honolulu, Hawaii. Our presence in Los Angeles and Honolulu is the result of a consistent and focused strategy of identifying submarkets that are supply constrained, have high barriers to entry and exhibit strong economic characteristics such as population and job growth and a diverse economic base. In our office portfolio, we focus primarily on owning and acquiring a substantial share of top-tier office properties within these submarkets and which are located near high-end executive housing and key lifestyle amenities. In our multifamily portfolio, we focus primarily on owning and acquiring select properties at premier locations within these same submarkets. We believe our strategy generally allows us to achieve higher than market-average rents and occupancy levels, while also creating operating efficiencies.
As of June 30, 2006, our office portfolio consisted of 46 properties with approximately 11.6 million rentable square feet, and our multifamily portfolio consisted of nine properties with a total of 2,868 units. As of this date, our office portfolio was 93.1% leased to 1,681 tenants, and our multifamily properties were 99.6% leased. Our office portfolio contributed approximately 84.7% of our annualized rent as of June 30, 2006, while our multifamily portfolio contributed approximately 15.3%. As of June 30, 2006, our Los Angeles County office and multifamily portfolio contributed approximately 90.8% of our annualized rent, and our Honolulu, Hawaii office and multifamily portfolio contributed approximately 9.2%.
Most of our office properties are located in superior locations in premier Los Angeles County submarkets which benefit from supply constraints and generally enjoy higher rents and lower vacancy rates than other Los Angeles County office submarkets. Additionally, we expect that our West Los Angeles multifamily properties will provide significant growth opportunities due to their superior locations, supply constraints in our submarkets and the potential for rent increases as rent-controlled units are re-leased at market levels. We believe that the Honolulu market provides many of the same positive characteristics as our submarkets in Los Angeles County. As a result of the attractive locations and characteristics of our properties and the value added by our in-house marketing, leasing, property management and construction capabilities, we believe that our existing properties are well positioned to provide continued cash flow growth and to continue to outperform our markets in terms of rental rates and occupancy. As of June 30, 2006, our average asking rents in our Los Angeles County office portfolio were at a 14.6% premium to our average in-place rents. Excluding the Warner Center/Woodland Hills submarket, where we acquired properties with significant vacancies in recent years, our occupancy rate was 96.1%, which reflects a 2.5 percentage point premium to that of our submarkets (including the Warner Center/Woodland Hills submarket, our occupancy rate reflects a 0.4 percentage point premium). In addition, as of June 30, 2006, in our multifamily portfolio our weighted average asking rental rates were at a 32.4% premium to our average in-place rents, primarily as a result of historical rent control laws which now allow landlords to increase rents to market rates as tenants vacate.
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Our office and multifamily portfolio is located in nine premier Los Angeles County submarkets and Honolulu, Hawaii. As of June 30, 2006, the breakdown by submarket of our office and multifamily portfolio was as follows:
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|
Office
|
|||||||||||||
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Submarket
|
Market
|
Number of
Properties |
Rentable
Square Feet (1) |
Percent
Leased (2) |
Annualized
Rent (3) |
Annualized
Rent Per Leased Square Foot (4) |
|||||||||
Brentwood | West Los Angeles | 13 | 1,390,625 | 95.7 | % | $44,087,580 | $ | 34.18 | |||||||
Olympic Corridor | West Los Angeles | 4 | 922,405 | 90.0 | 21,956,484 | 27.36 | |||||||||
Century City | West Los Angeles | 2 | 866,039 | 93.0 | 25,992,540 | 32.85 | |||||||||
Santa Monica (5) | West Los Angeles | 7 | 860,159 | 99.2 | 35,963,820 | 43.20 | |||||||||
Beverly Hills | West Los Angeles | 4 | 571,869 | 97.8 | 20,224,728 | 37.37 | |||||||||
Westwood (6) | West Los Angeles | 2 | 396,728 | 95.2 | 11,552,748 | 32.76 | |||||||||
Sherman Oaks/Encino | San Fernando Valley | 9 | 2,878,769 | 97.4 | 72,728,976 | 27.37 | |||||||||
Warner Center/Woodland Hills (7) | San Fernando Valley | 2 | 2,567,814 | 84.1 | 53,301,516 | 26.23 | |||||||||
Burbank | Tri-Cities | 1 | 420,949 | 100.0 | 13,360,921 | 31.74 | |||||||||
Honolulu (8) | Honolulu | 2 | 678,940 | 90.2 | 16,734,948 | 30.12 | |||||||||
|
|
|
|
|
|||||||||||
Total/Weighted Average | 46 | 11,554,297 | 93.1 | % | $ | 315,904,261 | $ | 30.74 | |||||||
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|
|
|
|
|
|
Multifamily
|
||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Submarket
|
Market
|
Number
of Properties |
Number
of Units |
Percent
Leased |
Annualized
Rent (9) |
Monthly
Rent Per Leased Unit |
||||||||
Brentwood | West Los Angeles | 5 | 950 | 99.5 | % | $21,673,245 | $ | 1,912 | ||||||
Santa Monica (10) | West Los Angeles | 2 | 820 | 99.6 | 17,886,817 | 1,824 | ||||||||
Honolulu | Honolulu | 2 | 1,098 | 99.6 | 17,533,030 | 1,336 | ||||||||
|
|
|
|
|
||||||||||
Total/Weighted Average | 9 | 2,868 | 99.6 | % | $57,093,092 | $ | 1,666 | |||||||
|
|
|
|
|
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We are a full-service real estate company with substantial expertise in asset management, property management, leasing, tenant improvement construction, acquisitions, repositioning, redevelopment and financing. Our senior management has been in the commercial real estate industry for an average of approximately 21 years, and has worked at Douglas Emmett or its related entities for an average of over 15 years, focusing primarily on our core markets. As of June 30, 2006, we had approximately 400 employees. Our central operations are located at our corporate headquarters in Santa Monica, California. As a result of our established infrastructure, we believe that we have the capability to increase the number of properties we own and manage without significant proportionate increases in overhead costs. We intend to qualify as a REIT for federal income tax purposes for the taxable year ending December 31, 2006.
History
Overview
We were formed to continue and expand the operations of DERA, DECO and PLE and their predecessors formed by Dan A. Emmett and partners from 1971 to 1991, which we refer to collectively as our historical operating companies. These companies have been acquiring, investing in, managing, leasing and developing real estate since their inception. While the early focus of our historical operating companies was on multifamily properties, over 20 years ago they expanded their activities to include acquisition and management of office properties and complementary retail space. Our predecessor principals, Dan A. Emmett, Chris Anderson, Jordan Kaplan and Kenneth M. Panzer, have been working together since the mid-1980s and in 1991 acquired the interests in DECO not already owned by them. Today, DECO's primary function is to provide property management and leasing services to our portfolio. DERA was formed in 1991 by our predecessor principals, commenced operation in 1993 and has been the primary vehicle through which we have acquired the substantial majority of our portfolio. DERA has served as the operating partner for each of the nine institutional funds to be acquired by us in the formation transactions since their respective dates of inception. PLE was founded by our predecessor principals in 1991 and commenced operations shortly thereafter. PLE has acted in the capacity of general contractor for tenant improvement projects, seismic retrofits, and common-area renovations for our properties.
Through the growth and development of our historical operating companies, we believe that we have established a superior acquisition, financing, leasing, property management and development platform and infrastructure. Since 1993, we have successfully expanded into the nine Los Angeles County submarkets in which we currently operate as well as more recently into the Honolulu, Hawaii market. Since that time, we have conducted all of our own management, leasing, and development activities, with few exceptions. Under the direction of our predecessor principals and our senior management team, our historical operating companies acquired and financed our existing portfolio, managed the nine institutional funds and raised over $1.5 billion in equity capital primarily from university endowments, foundations, pension plans, banks, other institutional investors and high net worth individuals.
DERA has been the general partner and asset manager of each of the nine institutional funds throughout their history. Our historical operating companies have been responsible for all acquisition, disposition, asset management, property management, leasing, and development/redevelopment activities for the institutional funds. The activities of the institutional funds have comprised all of the investment activity of DERA since its inception.
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Our Competitive Strengths
We believe that we distinguish ourselves from other owners and operators of office and multifamily properties through the following competitive strengths:
Los Angeles County Office Rents and Occupancy
(As of June 30, 2006)
|
Douglas Emmett
Submarkets (1) |
Non-Douglas
Emmett Submarkets (2) |
Difference
|
|||||
---|---|---|---|---|---|---|---|---|
Asking Rents | $ | 31.56 | $ | 29.02 | $2.54 | |||
Occupancy | 92.8 | % | 93.5 | % | (0.7) percentage points |
Source: CB Richard Ellis.
We believe that we have not only selected premier submarkets within Los Angeles County, but have also aggressively sought and acquired premier assets within each of our submarkets. We seek to acquire properties that will command premium rental rates and maintain higher occupancy levels than other properties in our submarkets. As shown in the table below, as of June 30, 2006, the weighted average asking rental rates for competitive office space in our Los Angeles County office portfolio were at an 11.8% premium to the weighted average asking rental rates for competitive office space in our Los Angeles County submarkets. Excluding the Warner Center/Woodland Hills submarket, where we acquired properties with significant vacancies in recent years, our occupancy rate was 96.1%, which occupancy rate reflects a 2.5 percentage point premium to our submarkets (including the Warner Center/Woodland Hills submarket, our occupancy rate reflects a 0.4 percentage point premium).
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Douglas Emmett and Los Angeles County
Office Rents and Occupancy
(As of June 30, 2006)
|
Douglas Emmett
Portfolio |
Douglas Emmett
Submarkets |
Difference
|
|||||
---|---|---|---|---|---|---|---|---|
Asking Rents | $ | 35.28 | $ | 31.56 | $3.73 | |||
Occupancy (1) | 93.2 | % | 92.8 | % | 0.4 percentage points | |||
Occupancy Excluding Warner Center/Woodland Hills Submarket (1) | 96.1 | % | 93.5 | % | 2.5 percentage points |
Source: CB Richard Ellis (other than Douglas Emmett data).
The table below illustrates the average asking rental rates and occupancy rates of our two office properties in Honolulu, Hawaii as compared to the Honolulu CBD as a whole, as of June 30, 2006.
Douglas Emmett and Honolulu CBD
Office Rents and Occupancy
(As of June 30, 2006)
|
Douglas Emmett
Portfolio |
Honolulu
CBD |
Difference
|
|||||
---|---|---|---|---|---|---|---|---|
Asking Rents (1) | $ | 30.78 | $ | 30.18 | $0.60 | |||
Occupancy (2) | 90.2 | % | 92.2 | % | (2.0) percentage points |
Source: CB Richard Ellis (other than Douglas Emmett data).
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Douglas Emmett Submarket Office Concentration
(As of June 30, 2006)
Submarket
|
Douglas Emmett
Rentable Square Feet (1) |
Submarket
Rentable Square Feet (2) |
Douglas Emmett
Market Share |
||||
---|---|---|---|---|---|---|---|
Brentwood | 1,390,625 | 3,331,731 | 41.7 | % | |||
Olympic Corridor | 922,405 | 2,327,630 | 39.6 | ||||
Century City | 866,039 | 9,574,342 | 9.0 | ||||
Santa Monica | 860,159 | 7,619,589 | 11.3 | ||||
Beverly Hills | 571,869 | 6,503,630 | 8.8 | ||||
Westwood | 396,728 | 3,365,978 | 11.8 | ||||
Sherman Oaks/Encino | 2,878,769 | 5,721,621 | 50.3 | ||||
Warner Center/Woodland Hills | 2,567,814 | 6,392,299 | 40.2 | ||||
Burbank | 420,949 | 5,744,318 | 7.3 | ||||
|
|
|
|||||
Subtotal/Weighted Average Los Angeles County | 10,875,357 | 50,581,138 | 21.5 | % | |||
Honolulu CBD | 678,940 | 5,140,907 | 13.2 | ||||
|
|
|
|||||
Total | 11,554,297 | 55,722,045 | 20.7 | % | |||
|
|
|
Source: CB Richard Ellis (other than Douglas Emmett data).
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$2,477 per unit per month and were 99.5% leased, compared to average asking rental rates of $1,948 per unit per month and occupancy of 97.4% for the West Los Angeles multifamily market as a whole, for an asking rental rate premium of 27.1% and an occupancy premium of 2.1 percentage points.
Los Angeles County Multifamily Rent and Occupancy
(As of June 30, 2006)
|
Douglas Emmett
Portfolio |
West Los Angeles
Market |
Los Angeles
County |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
Asking Rents (per unit/month) | $ | 2,477 | $ | 1,948 | $ | 1,456 | ||||
Occupancy | 99.5 | % | 97.4 | % | 97.2 | % |
Source: M/PF Research (other than Douglas Emmett data).
The table below illustrates the average asking rental rates and occupancy levels of our two multifamily properties in Honolulu, Hawaii as compared to Honolulu as a whole, as of June 30, 2006.
Honolulu Multifamily Rent and Occupancy
(As of June 30, 2006)
|
Douglas Emmett
Portfolio |
Honolulu
|
|||||
---|---|---|---|---|---|---|---|
Asking Rents (per unit/month) | $ | 1,547 | (1) | $ | 1,283 | ||
Occupancy | 99.6 | % | 95.2 | % |
Source: Property & Portfolio Research (other than Douglas Emmett data).
(1) Excludes the income-restricted units in our portfolio.
The high barriers to entry in our markets translate into significant embedded rent growth when comparing existing contractual rents to current market asking rents within both our office and multifamily portfolios. As of June 30, 2006, 5.6% and 10.7% of our Los Angeles County office portfolio are subject to re-lease in 2006 and 2007, respectively. As shown in the table below, the average current asking rents in our Los Angeles County office portfolio represented a 14.6% premium to our average in-place rents, and the average current asking rents in our West Los Angeles multifamily portfolio represented a 32.4% premium to our average in-place rents due largely to rent control laws, which now allow landlords to increase rents to market rates as tenants vacate.
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Los Angeles County Office and Multifamily Rents
(As of June 30, 2006)
|
Douglas Emmett
Portfolio Asking Rents |
Douglas Emmett
Submarkets Asking Rents |
Douglas Emmett
In-Place Rents |
Douglas Emmett
Asking vs. In-Place Rents |
||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|
Office | $ | 35.28 | $ | 31.56 | (1) | $ | 30.78 | 14.6 | % | |||
Multifamily (per unit/month) (2) | $ | 2,477 | $ | 1,948 | $ | 1,871 | 32.4 | % | ||||
Multifamily, excluding rent-controlled units (per unit/month) | $ | 2,477 | $ | | $ | 2,110 | 17.4 | % |
Source: CB Richard Ellis and M/PF Research (other than Douglas Emmett data).
Additionally, we believe that we have an opportunity to experience significant rental revenue growth in our Los Angeles County multifamily portfolio as units affected by rent control restrictions are re-leased at market rates, as permitted under Santa Monica and Los Angeles rent control laws. As of June 30, 2006, 355 units, or approximately 43% of our Santa Monica multifamily units, were under leases signed prior to a 1999 change in California state law that allows landlords to reset rents in rent-controlled units to market rates when a tenant moves out. These units had an average discount to our asking rents of $2,145 per unit. Over the past three years, an average of 35 of these rent-controlled units in our portfolio rolled over to market rents each year. Accordingly, we believe that we will realize significant future rent growth as we re-tenant these properties at market rates over time. Once re-leased to a new tenant at market rates, such units remain subject to rent control, and future rent increases remain limited by local rent control laws to annual increases.
As shown in the table below, as of June 30, 2006, the average current asking rents in our Honolulu office portfolio represented a 2.2% premium to our average in-place rents, and the average current asking rents in our Honolulu multifamily portfolio represented a 4.0% premium to our average in-place rents, excluding income-restricted units.
Honolulu Office and Multifamily Rents
(As of June 30, 2006)
|
Douglas Emmett
Portfolio Asking Rents |
Honolulu
Asking Rents |
Douglas Emmett
In-Place Rents |
Douglas Emmett
Asking vs. In-Place Rents |
||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|
Office (1) | $ | 30.78 | $ | 30.18 | $ | 30.12 | 2.2 | % | ||||
Multifamily (per unit/month) | $ | 1,547 | (2) | $ | 1,283 | $ | 1,488 | (2) | 4.0 | % |
Source: CB Richard Ellis and Portfolio & Property Research (other than Douglas Emmett data).
We also believe that we are well positioned to achieve internal growth through lease-up of existing vacant space in our portfolio. For example, our Warner Center Towers, Trillium and Bishop Place properties were 88.5%, 71.6% and 88.4% leased, respectively as of June 30, 2006.
106
Upon completion of our repositioning efforts at these properties, we expect that we will be able to significantly increase their occupancy. These properties represent approximately 26.3% of our office portfolio, based on rentable square feet.
We also have embedded rental revenue growth in our existing leases. Our leases have typically contained fixed annual rental rate increases of an average of 3.0%. According to Eastdil Secured, Class-A office rents in our Los Angeles County submarkets are expected to grow 10.0% in each of 2006 and 2007, with a five-year forecasted annual rental growth from 2006 to 2010 of 6.9%. With improving economic conditions in our submarkets, we have been able to increase these contractual escalations with our recent leasing activity to 4.0% for most of our leases signed since January 1, 2006.
predecessor principals to one of our historical operating companies, the stock of which will be exchanged for common stock in the formation transactions at the initial public offering price.
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Business and Growth Strategies
Our primary business objective is to enhance stockholder value by increasing cash flow from operations. The strategies we intend to execute to achieve this goal include:
Sherman Oaks Galleria
In 1997, in an off-market transaction, we acquired the Sherman Oaks Galleria, which at the time was an underutilized and obsolete regional mall and office tower located in the Sherman Oaks/Encino submarket, for $51.0 million. Thereafter, we began a significant redevelopment and repositioning of the property, which was completed in 2002. As a result of our redevelopment, we believe this project now reflects the highest and best use for this site. During the course of this redevelopment, we demolished a large portion of the mall and built a four-story structure containing lifestyle amenity retail uses as well as a new retail promenade. The balance of the mall space was converted to office space, and we also reconstructed an office building on the site. Additionally, the existing office tower was renovated to provide a new lobby with direct access to the retail promenade. As a result of this redevelopment, we transformed the property into a one million square foot, integrated mixed-use project, primarily consisting of office space enhanced by a high level of retail amenities. We believe that the redeveloped Sherman Oaks Galleria supports and enhances the value of our other eight office properties in the Sherman Oaks/Encino submarket. At the time we acquired the Sherman Oaks Galleria in 1997, it had an occupancy of 78.3% and an average rental rate of $14.65 per square foot, which was significantly below then-market asking rental rates of $23.13 per square foot. At the time, market occupancy was 85.4%. As of June 30, 2006, Sherman Oaks Galleria's occupancy was 99.7%, and the
108
average rental rate was $29.14 per square foot. Market rental rates for this submarket were $27.79 per square foot and market occupancy was 95.3% as of June 30, 2006.
9601 Wilshire
In December 2001, in an off-market transaction, we acquired ownership of both the fee estate (subject to a ground lease) in, and the leasehold mortgage covering, 9601 Wilshire Boulevard, which is located in the Beverly Hills submarket, for a total consideration of $71.0 million. Concurrently with our acquisition of the fee estate, we entered into a management and other agreements with the ground lease tenant pursuant to which we gained control of the property. At that time, the ground floor of the building was dominated by a large obsolete bank branch space which, although leased, was entirely vacant with the lease nearing expiration. We re-leased this space to a high-end health club operator and restaurant and leased much of the balance of the ground floor to other upscale retail tenants. The major office tenant in the building was a law firm which had been in the building for many years and was utilizing only a small portion of its space and was paying below-market rent. We negotiated the recapture of the office premises, completed a major lobby renovation and re-leased the space to multiple small tenant users and a prominent entertainment agency. In January, 2006, we obtained title to the tenant position under the ground lease, and we now own title to all of the ownership interests in the property. This marked the completion of our repositioning process for the project. Through our repositioning efforts, we have created a property with the tenant mix and amenities that is most appropriate for the "Golden Triangle" area of Beverly Hills. As of December 31, 2001, occupancy at 9601 Wilshire was 96.0% (and, due to the nearing bank branch lease expiration, occupancy was anticipated to drop to approximately 70% within several months), and the average rental rate was $29.75 per square foot. Then-market occupancy was 87.6% and then-market rental rates were $35.81 per square foot in the Beverly Hills submarket. As of June 30, 2006, occupancy at 9601 Wilshire was 96.8% and the average rental rate was $37.19 per square foot. As of June 30, 2006, the market rental rates in Beverly Hills were $37.20 per square foot and market occupancy was 94.8%.
Harbor Court
In August 2004, we acquired the leasehold interest in the Harbor Court office project for $27.0 million. In December 2004, we assisted our local Honolulu partner in acquiring the fee interest in the Harbor Court office project from the City and County Honolulu. In connection with this transaction, we negotiated a ten-year, $27.5 million fixed-price purchase option (equal to the amount of debt on the property) for the fee interest and reduced our annual leasehold rent by $93,994. We repositioned this property by converting some full-tenant floors to multi-tenant use, which is more consistent with tenant demands in the Honolulu CBD. When we acquired Harbor Court, the building occupancy was approximately 68% and the average rental rate was $25.68 per square foot. Then-market rental rates were $27.78 per square foot and then-market occupancy was 87.8%. As of June 30, 2006, the building occupancy was 94.6% and the average rental rate was $29.68 per square foot. As of June 30, 2006, the market rental rates in the Honolulu CBD were $30.18 per square foot and market occupancy was 92.2%.
Other Repositioning Projects
We are currently in the process of completing the repositioning of Warner Center Towers, the Trillium and Bishop Place. Our repositioning of Warner Center Towers consists of lobby renovations, conversions of some full-tenant floors to multi-tenant use and external aesthetic improvements including signage and a branding campaign to position this property as the premier office towers within the Woodland Hills submarket of the San Fernando Valley. Our repositioning of the Trillium consists of conversions of full-tenant floors to multi-tenant use, elevator renovations, lobby and common area improvements and parking structure upgrades.
109
Our repositioning plan is designed to upgrade this property to a standard consistent with our Warner Center Towers within the Woodland Hills submarket. Our repositioning of Bishop Place is mostly complete and has focused primarily on converting some full tenant floors to multi-tenant use and a marketing campaign to more appropriately position this property with the tenant demands of the Honolulu CBD. Additionally, we have completed extensive redevelopment projects at our three largest West Los Angeles multifamily properties, Barrington Plaza, The Shores and Pacific Plaza, and have completed additional development projects at several properties, including a multi-story garage and retail structure adjacent to our 100 Wilshire Boulevard office property located in Santa Monica and a new retail building adjacent to our Valley Office Plaza building located in Sherman Oaks.
110
Existing Portfolio
Our existing portfolio is located in the Brentwood, Olympic Corridor, Century City, Beverly Hills, Santa Monica, Westwood, Sherman Oaks/Encino, Warner Center/Woodland Hills and Burbank submarkets of Los Angeles County, California, and in Honolulu, Hawaii. Presented below is an overview of our existing portfolio as of June 30, 2006:
Office Properties
|
Number of
Buildings |
Percent
Ownership |
Year Built/
Renovated |
Rentable Square
Feet (1) |
Percent
Leased (2) |
||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
West Los Angeles | |||||||||||||
Brentwood | |||||||||||||
Landmark II | 2 | 100 | % | 1989 | 412,944 | 93.8 | % | ||||||
12400 Wilshire | 1 | 100 | 1985 | 235,808 | 93.3 | ||||||||
Gateway Los Angeles | 1 | 100 | 1987 | 147,815 | 97.7 | ||||||||
11777 San Vicente | 1 | 100 | 1974/1998 | 96,872 | 97.1 | ||||||||
Brentwood Executive Plaza | 1 | 100 | 1983/1996 | 89,660 | 98.3 | ||||||||
Brentwood Medical Plaza | 1 | 100 | 1975/2002 | 84,334 | 100.0 | ||||||||
Coral Plaza | 1 | 100 | 1981 | 71,801 | 100.0 | ||||||||
Brentwood/Saltair | 1 | 100 | 1986 | 57,344 | 92.0 | ||||||||
Saltair/San Vicente | 1 | 100 | 1964/1992 | 54,244 | 96.2 | ||||||||
Brentwood San Vicente Medical | 1 | 100 | 1957-1988/1989 | 46,466 | 100.0 | ||||||||
San Vicente Plaza | 1 | 100 | 1985 | 34,546 | 100.0 | ||||||||
Barrington Plaza Commercial | 1 | 100 | 1963 | 33,580 | 96.4 | ||||||||
Brentwood Court | 1 | 100 | 1985 | 25,211 | 91.4 | ||||||||
|
|
|
|||||||||||
Subtotal/Weighted Average | 14 | 1,390,625 | 95.7 | % | |||||||||
Olympic Corridor |
|
|
|
|
|
|
|
|
|
|
|
||
Westside Towers | 2 | 100 | 1985 | 411,078 | 88.3 | ||||||||
Executive Tower | 1 | 100 | 1989 | 240,331 | 87.8 | ||||||||
Olympic Center | 1 | 100 | 1985/1996 | 160,094 | 97.4 | ||||||||
Bundy/Olympic | 1 | 100 | 1991 | 110,902 | 90.2 | ||||||||
|
|
|
|||||||||||
Subtotal/Weighted Average | 5 | 922,405 | 90.0 | % | |||||||||
Century City |
|
|
|
|
|
|
|
|
|
|
|
||
1901 Avenue of the Stars | 1 | 100 | 1968/2001 | 492,139 | 93.1 | ||||||||
Century Park Plaza | 1 | 100 | 1972/1987 | 373,900 | 92.8 | ||||||||
|
|
|
|||||||||||
Subtotal/Weighted Average | 2 | 866,039 | 93.0 | % | |||||||||
Santa Monica |
|
|
|
|
|
|
|
|
|
|
|
||
100 Wilshire | 2 | 100 | 1968/2002 | 256,968 | 99.4 | ||||||||
First Federal Square | 1 | 100 | 1981/2000 | 221,181 | 100.0 | ||||||||
Palisades Promenade | 1 | 100 | 1990 | 98,606 | 100.0 | ||||||||
Second Street Plaza | 1 | 100 | 1991 | 80,835 | 100.0 | ||||||||
Santa Monica Square | 1 | 100 | 1983/2004 | 77,375 | 100.0 | ||||||||
Lincoln/Wilshire | 1 | 100 | 1996 | 76,758 | 92.7 | ||||||||
Verona | 1 | 100 | 1991 | 48,436 | 100.0 | ||||||||
|
|
|
|||||||||||
Subtotal/Weighted Average | 8 | 860,159 | 99.2 | % | |||||||||
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Beverly Hills |
|
|
|
|
|
|
|
|
|
|
|
||
9601 Wilshire | 1 | 100 | % | 1962/2004 | 301,849 | 96.8 | % | ||||||
Beverly Hills Medical Center | 1 | 100 | 1964/2004 | 104,462 | 100.0 | ||||||||
Village on Canon | 1 | 100 | 1989/1995 | 101,004 | 96.8 | ||||||||
Camden Medical Arts | 1 | 100 | 1972/1992 | 64,554 | 100.0 | ||||||||
|
|
|
|||||||||||
Subtotal/Weighted Average | 4 | 571,869 | 97.8 | % | |||||||||
Westwood |
|
|
|
|
|
|
|
|
|
|
|
||
One Westwood (3)(4) | 1 | 100 | 1987/2004 | 201,921 | 96.6 | ||||||||
Westwood Place | 1 | 100 | 1987 | 194,807 | 93.8 | ||||||||
|
|
|
|||||||||||
Subtotal/Weighted Average | 2 | 396,728 | 95.2 | % | |||||||||
San Fernando Valley |
|
|
|
|
|
|
|
|
|
|
|
||
Sherman Oaks/Encino |
|
|
|
|
|
|
|
|
|
|
|
||
Sherman Oaks Galleria | 3 | 100 | 1981/2002 | 1,002,561 | 99.7 | ||||||||
Encino Terrace | 1 | 100 | 1986 | 418,344 | 94.7 | ||||||||
Valley Executive Tower | 1 | 100 | 1984 | 387,840 | 95.2 | ||||||||
Encino Gateway | 1 | 100 | 1975/1998 | 288,203 | 94.9 | ||||||||
Valley Office Plaza | 3 | 100 | 1966/2002 | 197,740 | 99.0 | ||||||||
Encino Plaza | 1 | 100 | 1971/1992 | 192,502 | 100.0 | ||||||||
Tower at Sherman Oaks | 1 | 100 | 1967/1991 | 164,310 | 96.6 | ||||||||
MB Plaza | 1 | 100 | 1971/1996 | 163,774 | 96.6 | ||||||||
Columbus Center | 1 | 100 | 1987 | 63,495 | 94.0 | ||||||||
|
|
|
|||||||||||
Subtotal/Weighted Average | 13 | 2,878,769 | 97.4 | % | |||||||||
Warner Center/Woodland Hills |
|
|
|
|
|
|
|
|
|
|
|
||
Warner Center Towers (5) | 7 | 100 | 1982-1993/2004 | 1,907,163 | 88.5 | ||||||||
The Trillium | 4 | 100 | 1988 | 660,651 | 71.6 | ||||||||
|
|
|
|||||||||||
Subtotal/Weighted Average | 11 | 2,567,814 | 84.1 | % | |||||||||
Tri-Cities |
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|
|
|
|
|
|
|
|
|
||
Burbank |
|
|
|
|
|
|
|
|
|
|
|
||
Studio Plaza (6) | 1 | 100 | 1988/2004 | 420,949 | 100.0 | ||||||||
|
|
|
|||||||||||
Subtotal/Weighted Average | 1 | 420,949 | 100.0 | % | |||||||||
Honolulu |
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|
|
|
|
|
|
|
|
|
|
||
Bishop Place (7) | 2 | 100 | 1992 | 472,172 | 88.4 | ||||||||
Harbor Court (8) | 1 | 100 | 1994 | 206,768 | 94.6 | ||||||||
|
|
|
|||||||||||
Subtotal/Weighted Average | 3 | 678,940 | 90.2 | % | |||||||||
|
|
|
|||||||||||
Portfolio Total/Weighted Average | 63 | 11,554,297 | 93.1 | % | |||||||||
|
|
|
112
refusal to acquire the interest. If the landlord decides to sell its interest in the leased premises at any time during the term of the lease, we have the right of first refusal to acquire the landlord's interest.
Multifamily Properties
|
Number of
Buildings |
Percent
Ownership |
Year Built/
Renovated |
Number of
Units |
Percent
Leased |
||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
West Los Angeles | |||||||||||||
Brentwood | |||||||||||||
Barrington Plaza | 3 | 100 | % | 1963/1998 | 712 | 99.7 | % | ||||||
555 Barrington | 1 | 100 | 1989 | 111 | 98.2 | ||||||||
Barrington Kiowa | 1 | 100 | 1974/1989 | 55 | 100.0 | ||||||||
Barry | 1 | 100 | 1973/1989 | 53 | 98.1 | ||||||||
Kiowa | 1 | 100 | 1972/1989 | 19 | 100.0 | ||||||||
|
|
|
|||||||||||
Subtotal/Weighted Average | 7 | 950 | 99.5 | % | |||||||||
Santa Monica |
|
|
|
|
|
|
|
|
|
|
|
||
The Shores (1) | 2 | 100 | 1965-1967/2002 | 532 | 100.0 | ||||||||
Pacific Plaza (2) | 1 | 100 | 1963/1998 | 288 | 99.0 | ||||||||
|
|
|
|||||||||||
Subtotal/Weighted Average | 3 | 820 | 99.6 | % | |||||||||
Honolulu |
|
|
|
|
|
|
|
|
|
|
|
||
Moanalua Hillside Apartments | 25 | 100 | 1968/2004 | 696 | 99.4 | ||||||||
Villas at Royal Kunia | 65 | 100 | 1990-1994 | 402 | 100.0 | ||||||||
|
|
|
|||||||||||
Subtotal/Weighted Average | 90 | 1,098 | 99.6 | % | |||||||||
|
|
|
|||||||||||
Portfolio Total/Weighted Average |
|
100 |
|
|
|
|
|
2,868 |
|
99.6 |
% |
||
|
|
|
113
Tenant Diversification
Our office portfolio is currently leased to more than 1,600 tenants in a variety of industries, including entertainment, real estate, technology, legal and financial services. Our two largest tenants represent 6.6% and 1.5% of our annualized base rent, respectively.
The following table sets forth information regarding the 10 largest tenants in our office portfolio based on annualized rent as of June 30, 2006:
Tenant
|
Number of
Leases |
Number of
Properties |
Lease
Expiration (1) |
Total Leased
Square Feet |
Percent of Rentable
Square Feet |
Annualized
Rent (2) |
Percent of
Annualized Rent |
||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Time Warner | 5 | 5 | 20062019 | 655,426 | 5.7 | % | $ | 20,970,253 | 6.6 | % | |||||||
AIG SunAmerica | 1 | 1 | 2013 | 169,739 | 1.5 | 4,849,548 | 1.5 | ||||||||||
Blue Shield of California | 1 | 1 | 2009 | 135,106 | 1.2 | 3,939,696 | 1.2 | ||||||||||
Metrocities Mortgage, LLC | 4 | 2 | 20102015 | 138,040 | 1.2 | 3,720,768 | 1.2 | ||||||||||
Rubin Postaer & Associates | 1 | 1 | 2007 | 80,766 | 0.7 | 3,628,848 | 1.1 | ||||||||||
The Endeavor Agency, LLC | 1 | 1 | 2019 | 86,535 | 0.7 | 3,409,044 | 1.1 | ||||||||||
Pacific Theatres Exhibition Corp (3) | 1 | 1 | 2016 | 88,300 | 0.8 | 3,130,236 | 1.0 | ||||||||||
First Federal Bank | 1 | 1 | 2008 | 80,388 | 0.7 | 2,829,756 | 0.9 | ||||||||||
Bryan Cave, LLP | 1 | 1 | 2016 | 65,169 | 0.6 | 2,617,992 | 0.8 | ||||||||||
Health Net, Inc. | 1 | 1 | 2014 | 115,488 | 1.0 | 2,608,704 | 0.8 | ||||||||||
|
|
|
|
|
|
||||||||||||
Total | 17 | 15 | 1,614,957 | 14.1 | % | $ | 51,704,845 | 16.2 | % | ||||||||
|
|
|
|
|
|
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Industry Diversification
The following table sets forth information relating to tenant diversification by industry in our office portfolio based on annualized rent as of June 30, 2006:
Industry
|
Number of
Leases |
Leases as a
Percent of Total |
Rentable Square
Feet (1) |
Square Feet
as a Percent of Total |
Annualized
Rent (2) |
Annualized
Rent as a Percent of Total |
||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Available | | | 800,923 | 6.9 | % | | | |||||||
Financial Services | 294 | 16.5 | % | 1,751,614 | 15.2 | $55,549,944 | 17.5 | % | ||||||
Legal | 291 | 16.4 | 1,574,323 | 13.6 | 49,419,648 | 15.6 | ||||||||
Entertainment | 100 | 5.6 | 1,172,443 | 10.1 | 36,838,825 | 11.7 | ||||||||
Real Estate | 164 | 9.2 | 944,670 | 8.2 | 29,862,276 | 9.5 | ||||||||
Health Services | 263 | 14.8 | 888,019 | 7.7 | 27,607,644 | 8.7 | ||||||||
Other | 225 | 12.7 | 867,828 | 7.5 | 25,978,884 | 8.2 | ||||||||
Insurance | 70 | 3.9 | 898,871 | 7.8 | 24,618,708 | 7.8 | ||||||||
Retail | 139 | 7.8 | 727,021 | 6.3 | 21,346,116 | 6.8 | ||||||||
Accounting | 108 | 6.1 | 693,961 | 6.0 | 20,717,100 | 6.6 | ||||||||
Advertising | 57 | 3.2 | 404,704 | 3.5 | 13,868,148 | 4.4 | ||||||||
Technology | 67 | 3.8 | 352,160 | 3.0 | 10,096,968 | 3.2 | ||||||||
Signed leases not commenced | | | 318,849 | 2.8 | | | ||||||||
BOMA Adjustment (3) | | | 92,137 | 0.8 | | | ||||||||
Building Management Use | | | 66,774 | 0.6 | | | ||||||||
|
|
|
|
|
|
|||||||||
Total/Weighted Average | 1,778 | 100.0 | % | 11,554,297 | 100.0 | % | $ | 315,904,261 | 100.0 | % | ||||
|
|
|
|
|
|
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Lease Distribution
The following table sets forth information relating to the distribution of leases in our office portfolio, based on rentable square feet leased as of June 30, 2006:
Square Feet Under Lease
|
Number
of Leases |
Leases as a
Percent of Total |
Rentable Square
Feet (1) |
Square Feet
as a Percent of Total |
Annualized
Rent (2) |
Annualized
Rent as a Percent of Total |
||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Available | | | 800,923 | 6.9 | % | | | |||||||
2,500 or less | 891 | 50.1 | % | 1,197,123 | 10.4 | $37,296,780 | 11.8 | % | ||||||
2,501-10,000 | 656 | 36.9 | 3,178,631 | 27.5 | 96,567,348 | 30.6 | ||||||||
10,001-20,000 | 151 | 8.5 | 2,082,170 | 18.0 | 64,265,556 | 20.3 | ||||||||
20,001-40,000 | 51 | 2.9 | 1,369,103 | 11.8 | 41,440,836 | 13.1 | ||||||||
40,001-100,000 | 24 | 1.3 | 1,457,303 | 12.6 | 47,165,352 | 15.0 | ||||||||
Greater than 100,000 | 5 | 0.3 | 991,284 | 8.6 | 29,168,389 | 9.2 | ||||||||
Signed leases not commenced | | | 318,849 | 2.8 | | | ||||||||
BOMA Adjustment (3) | | | 92,137 | 0.8 | | | ||||||||
Building Management Use | | | 66,774 | 0.6 | | | ||||||||
|
|
|
|
|
|
|||||||||
Portfolio Total/Weighted Average | 1,778 | 100.0 | % | 11,554,297 | 100.0 | % | $ | 315,904,261 | 100.0 | % | ||||
|
|
|
|
|
|
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Lease Expirations
The following table sets forth a summary schedule of lease expirations for leases in place as of June 30, 2006, plus available space, for each of the ten full and partial calendar years beginning June 30, 2006 and thereafter in our office portfolio. Unless otherwise stated in the footnotes, the information set forth in the table assumes that tenants exercise no renewal options and no early termination rights.
Year of Lease Expiration
|
Number of
Leases Expiring |
Rentable
Square Feet (1) |
Expiring
Square Feet as a Percent of Total |
Annualized
Rent (2) |
Annualized
Rent as a Percent of Total |
Annualized
Rent Per Leased Square Foot (3) |
Annualized
Rent Per Leased Square Foot at Expiration (4) |
||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Available | | 800,923 | 6.9 | % | | | | | |||||||||
2006 | 201 | 685,025 | 5.9 | $ | 21,540,144 | 6.8 | % | $ | 31.44 | $ | 31.49 | ||||||
2007 | 330 | 1,280,612 | 11.1 | 41,083,620 | 13.0 | 32.08 | 33.05 | ||||||||||
2008 | 360 | 1,559,097 | 13.5 | 46,946,460 | 14.9 | 30.11 | 31.52 | ||||||||||
2009 | 301 | 1,414,228 | 12.2 | 42,808,896 | 13.5 | 30.27 | 32.25 | ||||||||||
2010 | 244 | 1,356,777 | 11.7 | 43,524,924 | 13.8 | 32.08 | 35.59 | ||||||||||
2011 | 153 | 979,629 | 8.5 | 30,206,280 | 9.6 | 30.83 | 35.56 | ||||||||||
2012 | 65 | 515,855 | 4.5 | 15,100,680 | 4.8 | 29.27 | 34.65 | ||||||||||
2013 | 43 | 617,562 | 5.3 | 18,709,500 | 5.9 | 30.30 | 35.79 | ||||||||||
2014 | 29 | 376,311 | 3.3 | 10,137,576 | 3.2 | 26.94 | 33.50 | ||||||||||
2015 | 26 | 298,157 | 2.6 | 8,487,816 | 2.7 | 28.47 | 35.57 | ||||||||||
Thereafter | 26 | 1,192,361 | 10.3 | 37,358,365 | 11.8 | 31.33 | 39.75 | ||||||||||
Signed leases not commenced | | 318,849 | 2.8 | | | | | ||||||||||
BOMA Adjustment (5) | | 92,137 | 0.8 | | | | | ||||||||||
Building Management Use | | 66,774 | 0.6 | | | | | ||||||||||
|
|
|
|
|
|
|
|||||||||||
Portfolio Total/Weighted Average | 1,778 | 11,554,297 | 100.0 | % | $ | 315,904,261 | 100.0 | % | $ | 30.74 | $ | 34.29 | |||||
|
|
|
|
|
|
|
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Historical Tenant Improvements and Leasing Commissions
The following table sets forth certain historical information regarding tenant improvement and leasing commission costs for tenants at the properties in our office portfolio through June 30, 2006:
|
Year Ended December 31,
|
|
Weighted
Average 2003 to June 30, 2006 |
||||||||
---|---|---|---|---|---|---|---|---|---|---|---|
|
Six Months
Ended June 30, 2006 |
||||||||||
|
2003
|
2004
(1)
|
2005
(2)
|
||||||||
Renewals (3) | |||||||||||
Number of leases | 187 | 249 | 253 | 145 | 238 | ||||||
Square Feet | 747,053 | 1,553,804 | 1,151,775 | 496,580 | 1,128,346 | ||||||
Tenant improvement costs per square foot (4) | $9.30 | $22.02 | $12.48 | $7.68 | $15.03 | ||||||
Leasing commission costs per square foot (4) | 7.19 | 8.96 | 7.59 | 6.83 | 7.96 | ||||||
Total tenant improvement and leasing commission costs per square foot (4) | 16.49 | 30.98 | 20.07 | 14.51 | 22.99 | ||||||
New leases (5) |
|
|
|
|
|
|
|
|
|
|
|
Number of leases | 152 | 184 | 215 | 107 | 188 | ||||||
Square Feet | 638,121 | 816,852 | 849,038 | 389,348 | 769,531 | ||||||
Tenant improvement costs per square foot (4) | $22.39 | $27.37 | $16.27 | $14.89 | $20.89 | ||||||
Leasing commission costs per square foot (4) | 8.47 | 9.49 | 7.77 | 7.69 | 8.45 | ||||||
Total tenant improvement and leasing commission costs per square foot (4) | 30.86 | 36.86 | 24.04 | 22.58 | 29.33 | ||||||
Total |
|
|
|
|
|
|
|
|
|
|
|
Number of leases | 339 | 433 | 468 | 252 | 426 | ||||||
Square Feet | 1,385,174 | 2,370,656 | 2,000,813 | 885,928 | 1,897,877 | ||||||
Tenant improvement costs per square foot (4) | $15.33 | $23.86 | $14.09 | $10.85 | $17.40 | ||||||
Leasing commission costs per square foot (4) | 7.78 | 9.14 | 7.67 | 7.21 | 8.16 | ||||||
Total tenant improvement and leasing commission costs per square foot (4) (6) | 23.11 | 33.01 | 21.75 | 18.06 | 25.56 |
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Historical Capital Expenditures
The following table sets forth certain information regarding historical recurring capital expenditures at the properties in our office portfolio through June 30, 2006.
|
Office
|
|||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Year Ended December 31,
|
|
Weighted
Average 2003 to June 30, 2006 |
|||||||||||
|
Six Months
Ended June 30, 2006 |
|||||||||||||
|
2003
|
2004
(1)
(2)
|
2005
(2)
(3)
|
|||||||||||
Recurring capital expenditures | $ | 2,152,794 | $ | 1,811,982 | $ | 2,604,883 | $ | 2,061,115 | ||||||
Total square feet | 10,110,166 | 10,893,568 | 11,554,216 | 11,554,297 | ||||||||||
Recurring capital expenditure per square foot | $0.21 | $0.17 | $0.23 | $0.18 | $0.22 |
The following table sets forth certain information regarding historical recurring capital expenditures at the properties in our multifamily portfolio through June 30, 2006.
|
Multifamily
|
|||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Year Ended December 31,
|
|
Weighted
Average 2003 to June 30, 2006 |
|||||||||||
|
Six Months
Ended June 30, 2006 (3) |
|||||||||||||
|
2003
|
2004
|
2005
(1)
(2)
|
|||||||||||
Recurring capital expenditure | $ | 145,470 | $ | 490,516 | $ | 451,393 | $ | 1,015,675 | ||||||
Total Units | 1,770 | 1,770 | 2,466 | 2,868 | ||||||||||
Recurring capital expenditure per unit | $82 | $277 | $183 | $354 | $256 |
Our multifamily portfolio contains a large number of units that, due to Santa Monica rent control laws, have had only insignificant rent increases since 1979. Historically, when a tenant has vacated one of these units, we have spent between $15,000 and $30,000 per unit, depending on apartment size, to bring the unit up to our standards. We have characterized these expenditures as non-recurring capital expenditures. As of June 30, 2006, there were 355 of these units in our portfolio. Our make-ready costs associated with the turnover of our other units are expensed and not included in recurring capital expenditures.
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Douglas Emmett Submarkets Overview
In Los Angeles County, our properties are located in what we believe are the most desirable markets and submarkets. Our portfolio of Class-A office properties is located in the West Los Angeles, San Fernando Valley and Tri-Cities markets. We have chosen to focus on nine of the premier office submarkets in these markets. Six of these submarkets, Brentwood, Olympic Corridor, Century City, Santa Monica, Beverly Hills and Westwood, are located in the West Los Angeles market. Two of these submarkets, Sherman Oaks/Encino and Warner Center/Woodland Hills, are located in the San Fernando Valley market, and one, Burbank, is located in the Tri-Cities market. Our Los Angeles County multifamily properties are located in the Santa Monica and Brentwood submarkets of West Los Angeles. Our submarkets are characterized by close proximity to high-end executive housing, constrained supply and a high level of lifestyle amenities. As a result, these submarkets consistently command premium rents and higher occupancies compared to other submarkets in Los Angeles County.
The following map shows the relative locations of the West Los Angeles, San Fernando Valley and Tri-Cities markets in Los Angeles County as well as the location of the nine submarkets within these markets in which our Los Angeles County office and multifamily properties are located.
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Similarly, Honolulu offers an attractive combination of high-quality office properties, a rich amenity base and a robust housing market. We own two office buildings in the Honolulu CBD and two institutional quality multifamily properties in Honolulu.
The following map shows the island of Oahu where our Honolulu office and multifamily properties are located as well as a detail of the Honolulu CBD in which our two office properties are located.
Brentwood
The Brentwood submarket consists of 3,331,731 square feet of competitive office space. We own thirteen Class-A office properties comprising 1,390,625 rentable square feet in Brentwood, representing 14.0% of our office portfolio's total annualized rent. As of June 30, 2006, ancillary retail use accounted for 6.0% of the annualized rent of our Brentwood office portfolio. We also own five multifamily properties in Brentwood containing a total of 950 rental units. The Brentwood submarket consists of two primary segments: the San Vicente corridor, which is a pedestrian friendly area largely comprised of low- and mid-rise buildings in one of the premier restaurant and retail districts in the City of Los Angeles, as reflected by the retail tenants in our office portfolio in this submarket, and the Wilshire
121
corridor, which is characterized by variety of mid- and high-rise buildings located on Wilshire Boulevard west of its intersection with San Vicente Boulevard. The San Vicente corridor is characterized by numerous small tenancies, prominently featuring medical, legal, entertainment and accounting professionals. We own approximately 41.7% of the competitive office space in the Brentwood market. As of June 30, 2006, our Brentwood office properties were 95.7% leased and had an average rental rate of $34.18 per square foot.
Strict zoning restrictions including Proposition U, very influential neighborhood groups and specific, stringent design standards create significant barriers to new real estate development of all kinds, but especially competitive office development. The height limit along San Vicente Boulevard is now only three stories, and on most of Wilshire Boulevard it is now between three stories and six stories. There have been no new Class-A office building deliveries in Brentwood over the past 10 years.
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As shown in the chart below, over the last ten years, occupancy and rental rates in our Brentwood submarket have moved in line with and maintained their premium to the broader Los Angeles County market as a whole. Due largely to the economic recovery that began in 2003, occupancy rates in this submarket have been growing steadily from a low of 87.8% in 2002 to approximately 94.0% in 2005, representing an increase of 6.2 percentage points. Rental rates reached a five-year low in 2004 and began to recover significantly in 2005, increasing from $30.72 per square foot in 2004 to $34.03 per square foot in 2005, representing an increase of 10.8%.
Historical Rental Rates & OccupancyClass-A Office
Brentwood vs. Los Angeles County
Source: CoStar Office Reports.
The outlook for the Brentwood office submarket remains strong in terms of supply, with no new office deliveries projected in Brentwood for 2006 through 2008. We believe that the combination of low vacancy rates and the absence of new supply will provide us with the opportunity to significantly increase rental rates in the foreseeable future.
Our five multifamily properties in the Brentwood submarket are all located in the premier multifamily area from Wilshire Boulevard north to Sunset Boulevard. All but one of these properties are subject to rent control regulations. These properties contain a total of 950 units and operate at virtually full occupancy in a very supply constrained market. Few undeveloped lots remain in this submarket, and it is generally possible to build new multifamily properties only by replacing existing buildings. No new multifamily projects are under construction or planned or proposed for 2006 through 2008, with all new development activity in condominiums. As of June 30, 2006, our asking rents for our
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Brentwood multifamily properties were $2,081 per unit versus our in-place rents of $1,912 per unit, representing a premium of 8.9%.
Brentwood Multifamily Properties
|
Number of
Buildings |
Percent
Ownership |
Year Built/
Renovated |
Number of
Units |
Percent
Leased |
||||||
---|---|---|---|---|---|---|---|---|---|---|---|
Barrington Plaza | 3 | 100 | % | 1963/1998 | 712 | 99.7% | |||||
555 Barrington | 1 | 100 | 1989 | 111 | 98.2 | ||||||
Barrington Kiowa | 1 | 100 | 1974/1989 | 55 | 100.0 | ||||||
Barry | 1 | 100 | 1973/1989 | 53 | 98.1 | ||||||
Kiowa | 1 | 100 | 1972/1989 | 19 | 100.0 | ||||||
|
|
|
|||||||||
Total/Weighted Average | 7 | 950 | 99.5% | ||||||||
|
|
|
|||||||||
Annualized Rent (1) |
|
|
|
|
|
|
|
|
|
$ |
21,673,245 |
Monthly Rent Per Leased Unit | $1,912 |
Olympic Corridor
The Olympic Corridor submarket consists of 2,327,630 square feet of competitive office space. We own four Class-A office properties comprising 922,405 rentable square feet in the Olympic Corridor submarket, representing 7.0% of our portfolio's total annualized rent. Olympic Boulevard is a main east-west artery developed and named in connection with the 1932 Olympics in Los Angeles, running from Santa Monica to downtown Los Angeles. The Olympic Corridor has developed into a major office hub that offers relative affordability as compared to the more expensive Santa Monica and Brentwood markets. It has proximate access to both major West Los Angeles freeways, the San Diego (405) and the Santa Monica (10), and major local surface streets, while still being easily accessible to major West Los Angeles executive housing areas such as Malibu, Santa Monica, Pacific Palisades, Brentwood and Westwood. Buildings in this market have attracted a diverse, high-quality tenant base, including law firms, financial service firms and prominent companies in the entertainment, technology and media sectors. The market features an array of amenities, including restaurants, neighborhood-serving retail establishments and several fitness centers. We have developed a significant presence in the Olympic Corridor and own four of the highest quality buildings in this submarket representing approximately 39.6% of the competitive office space in this submarket. As of June 30, 2006, our Olympic Corridor office properties were 90.0% leased and had an average rental rate of $27.36 per square foot.
124
As a result of stringent limits on development imposed under Proposition U in 1986, new deliveries have been limited to approximately 150,000 square feet of Class-A office building deliveries in the Olympic Corridor submarket over the past 10 years, all of which were delivered in 2002. The Olympic Corridor submarket was impacted by the same general economic downturn that affected both the nation and the Los Angeles County economy as a whole during the period from 2000 to 2003. The Olympic Corridor submarket began a sustained recovery in occupancy rates beginning in 2003 followed by a recovery in rental rates beginning in 2005. Occupancy rates in this submarket increased from 82.8% in 2002 to approximately 92.8% in 2005, while rental rates increased from approximately $26.25 per square foot in 2004 to $27.93 per square foot in 2005, representing an increase of 6.4%.
Historical Rental Rates & OccupancyClass-A Office
Olympic Corridor vs. Los Angeles County
Source: CoStar Office Reports.
The outlook for the Olympic Corridor office market remains strong in terms of supply, with no new office deliveries projected in the Olympic Corridor for 2006 through 2008. We believe that the combination of low vacancy rates and the absence of new supply will provide us with the opportunity to significantly increase rental rates in the foreseeable future.
Century City
The Century City submarket consists of 9,574,342 square feet of competitive office space. We own two Class-A office buildings comprising 866,039 rentable square feet in the Century City submarket, representing 8.2% of our office portfolio's total annualized rent. The Century City market is a high-density, master-planned development located immediately southwest of Beverly Hills. It is the largest of the West Los Angeles office submarkets and has a high concentration of larger law and financial service firms as key components of its tenancy. Originally developed from the back lot of 20th Century Fox Studios, Century City remains the headquarters for 20th Century Fox and a hub of the entertainment industry. Our two office buildings in Century City comprise approximately 9.0% of the
125
competitive office space in this submarket. As of June 30, 2006, our Century City office properties were 93.0% leased and had an average rental rate of $32.85 per square foot.
Century City is effectively fully developed, with proposed new development taking the form of redevelopment of previously developed sites. There was only one new Class-A office building delivery in Century City over the past 10 years, which totaled approximately 775,000 square feet and was completed in 2003. Occupancy rates in Century City peaked in 2000 and declined from 2000 to 2003, largely as a result of the downturn in the general economy and the technology industry, which also negatively impacted the law and financial services firms that serviced the technology sector. The increase in new supply was exacerbated by the trend at the time for firms located in Century City to relocate their back-office functions to offices in other, less expensive markets. Occupancy rates in this submarket have recovered since 2003, increasing from 80.0% to approximately 86.6% in 2005, as the general economy recovered and vacant space was absorbed through leasing activity in this submarket. Despite the decline in occupancy, rental rates remained relatively flat since 2002, with rental rates in this submarket preserving a consistent premium to Los Angeles County rental rates generally. Rental rate growth in Century City has been hindered by existing vacancy in the submarket, certain corporate merger and acquisition transactions that relocated some large tenants out of the submarket and on-going road and infrastructure construction on Santa Monica Boulevard, a main east-west artery servicing the Century City submarket. The completion of the Santa Monica Boulevard improvements expected later in 2006 will enhance access between Century City and the San Diego (405) freeway.
126
Historical Rental Rates & OccupancyClass-A Office
Century City vs. Los Angeles County
Source: CoStar Office Reports.
While our outlook for the Century City office market remains positive over the long term, near term fundamentals may be impacted by 780,000 square feet of new office space that is projected for delivery in 2006, of which 300,000 square feet has been pre-leased. We do not expect this additional capacity to negatively impact our performance in Century City, since we have limited our near-term lease expirations in this submarket to 9.2% and 5.7% of our leases in this submarket for 2006 and 2007, respectively, as of June 30, 2006. However, giving effect to leases that were not commenced as of June 30, 2006, our 2006 lease expirations would have been only 1.3% as of June 30, 2006. There are no remaining entitlements under the current Century City specific plan and no further new office deliveries projected in Century City from 2006 through 2008.
Santa Monica
The Santa Monica submarket consists of 7,619,589 square feet of competitive office space. We own seven Class-A office properties comprising 860,159 rentable square feet in the City of Santa Monica, representing 11.4% of our office portfolio's total annualized rent. We also own two multifamily properties in Santa Monica containing a total of 820 rental units. Santa Monica is located near the executive housing areas of Brentwood, Pacific Palisades and Malibu and is adjacent to the Pacific Ocean, public beaches and extensive restaurant and retail amenities. All seven properties are located in downtown Santa Monica, a distinct section of the submarket that commands the highest average asking rents of any office market in Los Angeles County. We own approximately 11.3% of the competitive office space in this submarket; however, our share of the competitive office space in the downtown Santa Monica market, where according to Eastdil Secured, asking rents are approximately 17% higher
127
than in eastern Santa Monica, is approximately 45%. As of June 30, 2006, our Santa Monica office properties were 99.2% leased and had an average rental rate of $43.20 per square foot.
Santa Monica Office Properties
|
Number of
Buildings |
Percent
Ownership |
Year Built/
Renovated |
Rentable
Square Feet (1) |
Percent
Leased (2) |
||||||
---|---|---|---|---|---|---|---|---|---|---|---|
100 Wilshire | 2 | 100 | % | 1968/2002 | 256,968 | 99.4% | |||||
First Federal Square | 1 | 100 | 1981/2000 | 221,181 | 100.0 | ||||||
Palisades Promenade | 1 | 100 | 1990 | 98,606 | 100.0 | ||||||
Second Street Plaza | 1 | 100 | 1991 | 80,835 | 100.0 | ||||||
Santa Monica Square | 1 | 100 | 1983/2004 | 77,375 | 100.0 | ||||||
Lincoln/Wilshire | 1 | 100 | 1996 | 76,758 | 92.7 | ||||||
Verona | 1 | 100 | 1991 | 48,436 | 100.0 | ||||||
|
|
|
|||||||||
Total/Weighted Average | 8 | 860,159 | 99.2% | ||||||||
|
|
|
|||||||||
Annualized Rent (3) | $ | 35,963,820 | |||||||||
Annualized Rent Per Leased Square Foot (4) | $43.20 |
The fundamentals of the Santa Monica submarket are supported by stringent limits on development. Development entitlements that were granted in the late 1980s and that had a 10-year expiration allowed for the construction of approximately 1.2 million square feet of new Class-A office space that was completed between 1999 and 2000 and primarily located in a less desirable eastern part of the city. These deliveries, combined with the slowing of the technology sector at the time, negatively affected occupancy rates in Santa Monica through 2003 and rental rates through 2004. The Santa Monica market began a sustained recovery in occupancy rates beginning in 2004, followed by a significant recovery in rental rates beginning in 2005. Occupancy rates in this submarket increased from 80.3% in 2003 to approximately 93.0% in 2005 while rental rates increased from approximately $33.85 per square foot in 2004 to $38.80 per square foot in 2005, representing an increase of approximately 14.6%.
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Historical Rental Rates & OccupancyClass-A Office
Santa Monica vs. Los Angeles County
Source: CoStar Office Reports.
The outlook for the Santa Monica office market remains strong in terms of limited projected deliveries of new office space. There are no remaining specific plan projects left in Santa Monica for new office construction projects. Only 194,000 square feet of new office deliveries in the Santa Monica submarket, or 2.5% of current inventory, are projected for 2006 through 2008. This development represents the completion of a previously entitled office and media campus also located in eastern Santa Monica. We believe that the combination of low vacancy rates and limited projected supply will provide us with the opportunity to significantly increase rental rates in the foreseeable future.
Our Santa Monica holdings also include The Shores and Pacific Plaza, two luxury multifamily properties in Santa Monica that contain a total of 820 rental units in close proximity to the beach, most of which offer an ocean view. Santa Monica adopted rent control regulations in 1979 that permitted only minimal annual rent increases for rent controlled units and did not allow units to be re-leased at market rates upon vacancy. In 1999, the State of California passed a law permitting vacant units to be re-leased at market rents. In 2003, Santa Monica passed an ordinance that amended the rent control regulations to permit owners to charge market rents where a tenant was not using the rent-controlled unit as a primary residence. Approximately half of our 820 units in the Santa Monica submarket are at substantially below market rates, having received only minimal annual rental increases since at least 1979. We have averaged a roll-over of approximately 35 such units per year over the period from 2000 to 2005. At such time we are able to re-lease the units at current market rates, but are then limited in the amount by which we can increase rental rates during each tenant's occupancy.
There is minimal vacancy in the Santa Monica multifamily submarket and there are approximately 900 multifamily units either proposed, planned or under construction in Santa Monica between 2006 and 2008. This new supply is generally comprised of projects that are smaller in size and farther from the beach as compared to our two Santa Monica multifamily buildings. We expect this space will be absorbed by the significant rental demand in this highly desirable rental submarket.
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As of June 30, 2006, our current average in-place rent for our Santa Monica multifamily properties is $1,824 per unit, and our current average asking rent is $2,936 per unit, representing a premium of 60.9%.
Santa Monica Multifamily Properties
|
Number of
Buildings |
Percent
Ownership |
Year Built/
Renovated |
Number
of Units |
Percent
Leased |
||||||
---|---|---|---|---|---|---|---|---|---|---|---|
The Shores | 2 | 100 | % | 1965-1967/2002 | 532 | 100.0% | |||||
Pacific Plaza | 1 | 100 | 1963/1998 | 288 | 99.0 | ||||||
|
|
|
|||||||||
Total/Weighted Average | 3 | 820 | 99.6% | ||||||||
|
|
|
|||||||||
Annualized Rent (1) | $ | 17,886,817 | |||||||||
Monthly Rent Per Leased Unit | $1,824 |
Beverly Hills
The Beverly Hills submarket consists of 6,503,630 square feet of competitive office space. We own four Class-A office buildings comprising 571,869 rentable square feet in the Beverly Hills submarket, representing 6.4% of our office portfolio's total annualized rent. One of the best known and most affluent cities in the United States, Beverly Hills is a separately incorporated city situated in West Los Angeles. A highly compact city at 5.7 square miles, Beverly Hills is a truly infill real estate market, with a majority of its area developed in mixed-use, pedestrian friendly patterns that are characterized by smaller, older structures and highly dispersed ownership. This is particularly true of the neighborhood within Beverly Hills that is commonly referred to as the Golden Triangle, bordered by Santa Monica Boulevard to the north, Wilshire Boulevard to the south and Crescent Drive to the east. Three of our four Beverly Hills buildings are located in the Golden Triangle, which is considered the commercial core of Beverly Hills and contains the Rodeo Drive shopping district. We own approximately 8.8% of the competitive office space in this submarket. As of June 30, 2006, our Beverly Hills office properties were 97.8% leased and had an average rental rate of $37.37 per square foot.
Beverly Hills Office Properties
|
Number of
Buildings |
Percent
Ownership |
Year Built/
Renovated |
Rentable
Square Feet (1) |
Percent
Leased (2) |
||||||
---|---|---|---|---|---|---|---|---|---|---|---|
9601 Wilshire | 1 | 100 | % | 1962/2004 | 301,849 | 96.8% | |||||
Beverly Hills Medical Center | 1 | 100 | 1964/2004 | 104,462 | 100.0 | ||||||
Village on Canon | 1 | 100 | 1989/1995 | 101,004 | 96.8 | ||||||
Camden Medical Arts | 1 | 100 | 1972/1992 | 64,554 | 100.0 | ||||||
|
|
|
|||||||||
Total/Weighted Average | 4 | 571,869 | 97.8% | ||||||||
|
|
|
|||||||||
Annualized Rent (3) | $ | 20,224,728 | |||||||||
Annualized Rent Per Leased Square Foot (4) | $37.37 |
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Due to restrictive height and floor area limits, extremely strict municipal oversight of the development process, community opposition to new development, and the difficulty of acquiring redevelopment sites in Beverly Hills, little new office development has occurred in recent years or is contemplated in the near term. The only new Class-A office building deliveries in Beverly Hills over the past 10 years were three projects, totaling approximately 320,000 square feet that were delivered between 2000 and 2003. Performance in this submarket has generally tracked that of the Los Angeles County market as a whole, although the Beverly Hills submarket maintained consistent occupancy and rental rate premiums to the broader Los Angeles County market. Occupancy rates in this submarket began to recover in 2003, increasing from 85.0% in 2002 to approximately 92.8% in 2005 while rental rates have increased from $34.00 per square foot in 2003 to $35.33 per square foot in 2005, representing an increase of 3.9%.
Historical Rental Rates & OccupancyClass-A Office
Beverly Hills vs. Los Angeles County
Source: CoStar Office Reports.
The outlook for the Beverly Hills office market remains strong in terms of supply, with no new office deliveries projected in the Beverly Hills submarket for 2006 through 2008. We believe that the combination of low vacancy rates and the absence of new supply will provide us with the opportunity to significantly increase rental rates in the foreseeable future.
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Westwood
The Westwood submarket consists of 3,365,978 square feet of competitive office space. We own two Class-A office buildings comprising 396,728 rentable square feet in Westwood, representing 3.7% of our office portfolio's total annualized rent. The Westwood office submarket is concentrated on Wilshire Boulevard immediately east of the San Diego (405) freeway and west of the city of Beverly Hills, directly south of the University of California, Los Angeles, or UCLA, campus. The Westwood submarket is dominated by high-rise buildings that range from 10 to 24 stories, with typical floor sizes of 15,000 to 20,000 square feet. Due to its central West Los Angeles location, Westwood attracts a broad array of tenants in the legal, accounting, financial services, entertainment, construction and other industries. Westwood's office properties are located close to executive housing in Westwood, Bel Air, Brentwood and Beverly Hills, as well as to a high percentage of the City of Los Angeles' premier high-rise condominium residences which are concentrated along Wilshire Boulevard in Westwood. Additionally, the Westwood area is very pedestrian friendly, with ample retail, dining and entertainment amenities in the immediately adjacent Westwood Village neighborhood. We own two of the highest quality buildings in Westwood, representing approximately 11.8% of the competitive office space in this market. As of June 30, 2006, our Westwood office properties were 95.2% leased and had an average rental rate of $32.76 per square foot.
Westwood Office Properties
|
Number of
Buildings |
Percent
Ownership |
Year Built/
Renovated |
Rentable
Square Feet (1) |
Percent
Leased (2) |
||||||
---|---|---|---|---|---|---|---|---|---|---|---|
One Westwood (3) | 1 | 100 | % | 1987/2004 | 201,921 | 96.6% | |||||
Westwood Place | 1 | 100 | 1987 | 194,807 | 93.8 | ||||||
|
|
|
|||||||||
Total/Weighted Average | 2 | 396,728 | 95.2% | ||||||||
|
|
|
|||||||||
Annualized Rent (4) | $ | 11,552,748 | |||||||||
Annualized Rent Per Leased Square Foot (5) | $32.76 |
As a result of stringent limits on development imposed under Proposition U in 1986, there have been no new Class-A office building deliveries in Westwood over the past 10 years. The Westwood submarket was impacted by the downturn in the general economy and technology sector that affected the Los Angeles County economy as a whole during the period from 2000 to 2003. These conditions negatively impacted occupancy in the Westwood submarket through 2002 and rental rates through 2004. The Westwood submarket began a sustained recovery in occupancy rates beginning in 2003 followed by a strong recovery in rental rates beginning in 2005. Occupancy rates in this submarket increased from 81.9% in 2002 to approximately 91.2% in 2005, while rental rates increased from approximately $31.47
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per square foot in 2004 to $33.43 per square foot in 2005, representing an increase of approximately 6.2%.
Historical Rental Rates & OccupancyClass-A Office
Westwood vs. Los Angeles County
Source: CoStar Office Reports.
The outlook for the Westwood office market remains strong in terms of supply, with no new office deliveries projected in the Westwood submarket for 2006 through 2008. We believe that the combination of low vacancy rates and the absence of new supply will provide us with the opportunity to significantly increase rental rates in the foreseeable future.
Sherman Oaks/Encino
The Sherman Oaks/Encino submarket consists of 5,721,621 square feet of office space. We own nine Class-A office properties comprising 2,878,769 rentable square feet in the Sherman Oaks/Encino submarket, representing 23.0% of our office portfolio's total annualized rent. The core of the Sherman Oaks/Encino submarket runs east-west along Ventura Boulevard, which serves as the primary commercial corridor through the central San Fernando Valley. In addition to its role as a local commercial center, this submarket also benefits from its central location between the entertainment hubs in Burbank and West Los Angeles. The Sherman Oaks/Encino submarket is characterized by numerous smaller tenancies from the legal, accounting and medical professions. This submarket is home to location-sensitive residents who desire to have their offices in the immediate vicinity of their residences. The Sherman Oaks/Encino submarket has direct access to regional transportation arteries via the San Diego (405) and Ventura (101) freeways. The hub of this market is the intersection of Ventura Boulevard and Sepulveda Boulevard, the two main surface arteries in the area. We own properties on three of the four corners of this intersection, including the largest property in the market, our recently redeveloped Sherman Oaks Galleria. Our nine office properties in Sherman Oaks/Encino submarket comprise approximately 50.3% of the competitive office space in this submarket. As of
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June 30, 2006, our Sherman Oaks/Encino properties were 97.4% leased and had an average rental rate of $27.37 per square foot.
As a result of stringent limits on development imposed under Proposition U in 1986 and active homeowners' associations, there have been no new Class-A office building deliveries in Sherman Oaks/Encino over the past 10 years with the exception of our Sherman Oaks Galleria redevelopment project completed in 2002. During the period from 1999 to 2001, the decrease in occupancy in this submarket was driven by the major redevelopment of our Sherman Oaks Galleria property, which represented approximately 12.3% of this submarket at the time, and the general downturn in the economy which affected the Los Angeles County market as a whole. Occupancy rates began to recover in 2002 as the Sherman Oaks Galleria property underwent lease-up and approached stabilization in 2003. Occupancy rates in this submarket have been growing steadily from 87.2% in 2001 to approximately 95.7% in 2005. Despite the additional new supply and the general economic downturn, rental rates in the Sherman Oaks/Encino submarket remained relatively stable from 2001 through 2004. Rental rates began to recover in 2005, increasing from $24.85 per square foot in 2004 to $27.29 per square foot in 2005, representing an increase of 9.8%. As demonstrated in the chart below, the Sherman Oaks/Encino submarket has remained relatively stable over time, with rental rates trending in line with the Los Angeles County market as a whole and occupancy rates significantly outperforming the Los Angeles County market as a whole.
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Historical Rental Rates & OccupancyClass-A Office
Sherman Oaks/Encino vs. Los Angeles County
Source: CoStar Office Reports.
The outlook for the Sherman Oaks/Encino office market remains strong in terms of supply, with no new office deliveries projected in the Sherman Oaks/Encino submarket for 2006 through 2008. We believe that the combination of low vacancy rates and the absence of new supply will provide us with the opportunity to significantly increase rental rates in the foreseeable future.
Warner Center/Woodland Hills
The Warner Center/Woodland Hills submarket consists of 6,392,299 square feet of competitive office space. We own two Class-A office complexes totaling 2,567,814 rentable square feet in the Warner Center/Woodland Hills submarket, consisting of the five high-rise towers of the Warner Center Towers office development and the Trillium office development, representing 16.9% of our office portfolio's total annualized rent. We also own the fee interest in two parcels in this submarket that are subject to long-term ground leases. Warner Center is a master-planned development in the western San Fernando Valley situated on the site of the former Warner Ranch and developed under a specific plan approved by the City of Los Angeles. Amenities in this area are numerous, including the Topanga Plaza regional mall and the dining and entertainment-oriented Promenade. The Warner Center/Woodlands Hills office submarket is a regional financial center with numerous tenants in the financial, accounting and legal services industries. In recent years, the submarket has matured into a more varied tenant mix, including significant tenancies in the healthcare and insurance industries. The submarket also benefits from its proximity to the growing and affluent population of the western San Fernando Valley and the adjacent Conejo Valley that extends into Ventura County. We own approximately 40.2% of the competitive office space in this submarket. As of June 30, 2006, our Warner Center/Woodland Hills office properties were 84.1% leased and had an average rental rate of $26.23 per square foot.
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Consistent with our strategy, we purchased our Warner Center Towers property when a number of its large tenants were expected to vacate over the course of the following 18 months.
The specific plan has placed strict limits on new development in this submarket. The primary new Class-A office building project delivered in Warner Center/Woodland Hills over the past 10 years was a multi-phase office campus development entitled for 1.3 million square feet, of which approximately 800,000 square feet was built between 2000 and 2005, and of which 500,000 square feet remains to be built. Primarily as a result of this new office supply and the general economic downturn that affected Los Angeles County as a whole, occupancy rates declined in 2001 and remained relatively flat until 2003. Occupancy rates in this submarket have increased dramatically from 81.8% in 2003 to 88.3% in 2005. Over the same period, rental rates have increased from approximately $25.81 per square foot in 2003 to $28.06 per square foot in 2005, representing an increase of approximately 8.7%.
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Historical Rental Rate & OccupancyClass-A Office
Warner Center/Woodland Hills vs. Los Angeles County
Source: CoStar Office Reports.
Approximately 500,000 square feet of new previously entitled office space is projected for delivery in the Warner Center/Woodland Hills submarket, or 7.7% of current inventory, between 2006 through 2008. However, the outlook for the Warner Center/Woodland Hills office market remains positive because the high development fees mandated by the specific plan in this submarket have made it expensive to build new office space, and community group opposition to development is further limiting prospects for additional office construction.
Burbank
The Burbank submarket consists of 5,744,318 square feet of competitive office space. Studio Plaza, a Class-A office building and currently our only Burbank holding, is located in the Media District, Burbank's main business corridor, and contains 420,949 rentable square feet, representing 4.2% of our office portfolio's total annualized rent. Located within the Tri-Cities market, which includes Glendale and Pasadena, Burbank has historically been the rental rate and occupancy leader within the Tri-Cities' office market due to its large entertainment employment base and central location between Downtown Los Angeles and the San Fernando Valley. The Burbank submarket is a headquarters for the entertainment industry, with The Walt Disney Company, Time Warner and NBC Universal based in and around the district. On a combined basis, these studios control over 400 acres of land and provide a significant demand base for office space. Our Studio Plaza property in Burbank is adjacent to the Warner Bros. studio lot and comprises approximately 7.3% of the competitive office space in this
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submarket. As of June 30, 2006, our Studio Plaza property was 100% leased to Time Warner with a lease term expiring in September 2019 and had an average rental rate of $31.74 per square foot.
A significant supply of new Class-A office space, consisting of 877,000 square feet, or approximately 15% of the total Burbank submarket, was delivered between 2000 and 2002. This new supply caused a sharp downturn in occupancy rates in the Burbank submarket from 2000, although rates began to recover in 2003 as a result of the general economic recovery and the rapid absorption of the additional supply in this submarket, with occupancy rates increasing from 82.0% in 2003 to approximately 93.6% in 2005. Rental rates dipped only slightly in 2002 and have recovered significantly since then, increasing from approximately $27.84 per square foot in 2003 to $31.38 per square foot in 2005, representing an increase of approximately 12.7%.
Historical Rental Rates & OccupancyClass-A Office
Burbank vs. Los Angeles County
Source: CoStar Office Reports.
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The outlook for the Burbank office market remains strong despite significant new deliveries expected in the near term. Approximately 180,000 square feet of new office space was completed in 2006, and an additional 1.1 million square feet of new office space is planned and 370,000 square feet is proposed in Burbank, or 24.7% of current inventory, between 2006 and 2008. Notwithstanding the new supply, the entertainment tenants in the Burbank submarket historically have shown a consistent ability to absorb additional new office space. We do not expect to be impacted by this increase in supply because our Studio Plaza property is 100% leased to a single tenant, Time Warner, through 2019, subject to the tenant's right to terminate the lease in September 2012 and September 2016 upon payment of certain termination fees.
Honolulu, Hawaii
The Honolulu CBD office market consists of 5,140,907 square feet and is Hawaii's largest office market. We own two Class-A office properties totaling 678,940 square feet of rentable area in the Honolulu CBD, representing 5.3% of our office portfolio's total annualized rent. The market's combination of Class-A inventory, amenity base, and concentration of federal, state and local government centers has attracted Hawaii's largest corporate and service sector tenants, including a significant number of legal and financial service tenants. We have developed a significant presence in the Honolulu office market and own two of the highest quality buildings representing approximately 13.2% of the office space in the Honolulu CBD and approximately 16.2% of the Class-A office space in the Honolulu CBD. As of June 30, 2006, our Honolulu CBD office properties were 90.2% leased and had an average rental rate of $30.12 per square foot. As a result of significant job growth over the last three years, occupancy rates in the Honolulu CBD have remained consistently high, and rental rates have increased significantly from $26.58 per square foot in 2003 to $29.28 per square foot in 2005, representing an increase of 10.2%. Current average asking rental rates are well below a level that would support new construction, and therefore the forecast for new supply is extremely limited in the near-term, with no new projects currently under construction. The outlook for the Honolulu CBD office market remains strong in terms of supply, with limited projected deliveries of new space.
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Historical Rental Rate & Occupancy
Honolulu CBD
Source: CB Richard Ellis.
We also own two institutional quality multifamily assets, Moanalua Hillside Apartments and the Villas at Royal Kunia, with a combined 1,098 units. Our two multifamily properties are among the largest in the Honolulu multifamily market, which has declined in number of rental units in recent years due to a number of factors including significant growth in housing prices, the conversion of multifamily properties to for-sale condominium units and the sale of previously rented single family homes and condominium units to owner-occupants. Since our acquisition of these properties, they have operated effectively at full occupancy. As a result of such tight occupancy levels, we have experienced average market rental rate increases from $1,240 per unit in 2005 to $1,446 per unit in 2006, or an increase of approximately 16.6%, at Moanalua Hillside Apartments. Approximately 12.4% of the units in our Honolulu multifamily portfolio are subject to low income housing regulations and 27.1% are subject to moderate income regulations, which effectively limit our rental rates on these units. As of June 30, 2006, the average asking rental rate on our low and moderate income units was $1,227 per unit. In addition, rental rate increases on such units are limited to annual adjustments determined by the Department of Housing and Urban Development. We have the option of terminating our obligation to provide income-restricted units at the Villas at Royal Kunia annually in June of each year and at Moanalua Hillside Apartments in September 2017.
In consideration for our obligation to provide moderate income units at the Villas at Royal Kunia, we receive full property tax and general excise tax exemptions. Commencing in June 2017, the City and County of Honolulu will have the discretion to terminate these tax exemptions along with our obligation to provide income-restricted units. In consideration for our obligation to provide low and moderate income units at Moanalua Hillside Apartments, we receive a full property tax exemption and an exemption from general excise tax on the income restricted units. These exemptions, along with our obligation to provide income-restricted units may be terminated at Moanalua Hillside Apartments in September 2017.
The construction of new residential units in Honolulu is dominated by condominium development and, additionally, the high land values and the high cost of new construction in Hawaii makes the development of new multifamily rental units in the Honolulu market economically prohibitive. As a
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result, we expect that future supply of large multifamily projects in Honolulu will continue to be limited.
Honolulu Multifamily Properties
|
Number of
Buildings |
Percent
Ownership |
Year Built/
Renovated |
Number of
Units |
Percent
Leased |
||||||
---|---|---|---|---|---|---|---|---|---|---|---|
Moanalua Hillside Apartments | 25 | 100 | % | 1968/2004 | 696 | 99.4% | |||||
Villas at Royal Kunia | 65 | 100 | 1990-1994 | 402 | 100.0% | ||||||
|
|
|
|||||||||
Total/Weighted Average | 90 | 1,098 | 99.6% | ||||||||
|
|
|
|||||||||
Annualized Rent (1) |
|
|
|
|
|
|
|
|
|
$ |
17,533,030 |
Monthly Rent Per Leased Unit | $1,336 |
After the closing of this offering, we expect to continue to work with our business partner in Hawaii, who had previously assisted us with our Honolulu acquisitions.
Regulation
General
Our properties are subject to various covenants, laws, ordinances and regulations, including regulations relating to common areas and fire and safety requirements. We believe that each of the existing properties has the necessary permits and approvals to operate its business.
Americans With Disabilities Act
Our properties must comply with Title III of the ADA to the extent that such properties are "public accommodations" as defined by the ADA. Under the ADA, all public accommodations must meet federal requirements related to access and use by disabled persons. The ADA may require removal of structural barriers to access by persons with disabilities in certain public areas of our properties where such removal is readily achievable. Although we believe that the properties in our portfolio in the aggregate substantially comply with present requirements of the ADA, we have not conducted a comprehensive audit or investigation of all of our properties to determine our compliance, and we are aware that some particular properties may currently be in non-compliance with the ADA. Noncompliance with the ADA could result in the incurrence of additional costs to attain compliance. The obligation to make readily achievable accommodations is an ongoing one, and we will continue to assess our properties and to make alterations as appropriate in this respect.
Environmental Matters
Environmental laws regulate, and impose liability for, releases of hazardous or toxic substances into the environment. Under various of these laws, an owner or operator of real estate is or may be liable for costs related to soil or groundwater contamination on, in, or migrating to or from its property. In addition, persons who arrange for the disposal or treatment of hazardous or toxic substances may be liable for the costs of cleaning up contamination at the disposal site. Such laws often impose liability regardless of whether the person knew of, or was responsible for, the presence of the hazardous or toxic substances that caused the contamination. The presence of, or contamination resulting from, any of these substances, or the failure to properly remediate them, may adversely affect our ability to sell or rent our property or to borrow using such property as collateral. In addition, persons exposed to hazardous or toxic substances may sue for personal injury damages. For example, some laws impose liability for release or exposure to asbestos-containing materials, a substance known to be present in a number of our buildings. In other cases, some of our properties have been (or may have been) affected by contamination from past operations or from off-site sources. As a result, in
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connection with our current or former ownership, operation, management and development of real properties, we may be potentially liable for investigation and cleanup costs, penalties, and damages under environmental laws.
Although most of our properties have been subjected to Phase I assessments, they are limited in scope, and may not include or identify all potential environmental liabilities or risks associated with the property. Unless required by applicable laws or regulations, we may not further investigate, remedy or ameliorate the liabilities disclosed in the Phase I assessments.
Rent Control
The City of Los Angeles and Santa Monica have enacted rent control legislation, and portions of the Honolulu multifamily market are subject to low- and moderate-income housing regulations. Such laws and regulations limit our ability to increase rents, evict tenants or recover increases in our operating expenses and could make it more difficult for us to dispose of properties in certain circumstances. In addition, any failure to comply with low- and moderate-income housing regulations could result in the loss of certain tax benefits and the forfeiture of rent payments. Although under current California law we are able to increase rents to market rates once a tenant vacates a rent-controlled unit, any subsequent increases in rental rates will remain limited by Los Angeles and Santa Monica rent control regulations.
Insurance
We carry comprehensive liability, fire, extended coverage, business interruption and rental loss insurance covering all of the properties in our portfolio under a blanket insurance policy. We believe the policy specifications and insured limits are appropriate and adequate given the relative risk of loss, the cost of the coverage and industry practice; however, our insurance coverage may not be sufficient to fully cover our losses. We do not carry insurance for certain losses, including, but not limited to, losses caused by riots or war. Some of our policies, like those covering losses due to terrorism, earthquakes and floods, are insured subject to limitations involving substantial self insurance portions and significant deductibles and co-payments for such events. In addition, most of our properties are located in Southern California, an area subject to an increased risk of earthquakes. While we presently carry earthquake insurance on our properties, the amount of our earthquake insurance coverage may not be sufficient to fully cover losses from earthquakes. We may reduce or discontinue earthquake, terrorism or other insurance on some or all of our properties in the future if the cost of premiums for any of these policies exceeds, in our judgment, the value of the coverage discounted for the risk of loss. Also, if destroyed, we may not be able to rebuild certain of our properties due to current zoning and land use regulations. In addition, our title insurance policies may not insure for the current aggregate market value of our portfolio, and we do not intend to increase our title insurance coverage as the market value of our portfolio increases. See "Risk FactorsRisks Related to Our Properties and Our BusinessPotential losses may not be covered by insurance."
Competition
We compete with a number of developers, owners and operators of office and commercial real estate, many of which own properties similar to ours in the same markets in which our properties are located. If our competitors offer space at rental rates below current market rates, or below the rental rates we currently charge our tenants, we may lose potential tenants and we may be pressured to reduce our rental rates below those we currently charge or to offer more substantial rent abatements, tenant improvements, early termination rights or below-market renewal options in order to retain tenants when our tenants' leases expire. In that case, our financial condition, results of operations, cash flow, per share trading price of our common stock and ability to satisfy our debt service obligations and to pay dividends to you may be adversely affected.
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In addition, all of our multifamily properties are located in developed areas that include a number of other multifamily properties, as well as single-family homes, condominiums and other residential properties. The number of competitive multifamily and other residential properties in a particular area could have a material adverse effect on our ability to lease units and on our rental rates.
Property Management Services
Our historical operating companies provide all property management and investment advisory services for our Los Angeles County properties. For a discussion of amounts paid to our historical operating companies for such services, see "Certain Relationships and Related TransactionsIntercompany Transactions Among Historical Operating Companies."
In connection with our Honolulu properties, we have entered into agreements with various unaffiliated parties to perform certain property management services. Under these agreements, we are obligated to pay certain fees, calculated as a portion of gross rental receipts or on a flat monthly fee basis, as well as certain specified fees and reimbursable expenses.
Description of Certain Debt
The following is a summary of the material provisions of the agreements evidencing certain of our material debt to be in effect upon the closing of this offering. The following is only a summary and it does not include all of the provisions of such debt, copies of which will be filed as exhibits to our registration statement filed in connection with this offering and are available as set forth under "Where You Can Find More Information."
Modified Term Loan
In connection with this offering and the formation transactions, we have entered into agreements with Eurohypo AG and Barclays Capital to amend our existing $1.76 billion secured financing to increase the term loans under our existing secured financing by $545.0 million upon completion of this offering. The closing of the modified term loan is contingent on satisfaction of certain customary conditions and the consummation of this offering. The lenders under the amended term loan have not placed any conditions on the offering, including as to the amount or use of proceeds. We expect that none of the lenders under the modified term loan or any of their affiliates will have an interest in the formation transactions beyond the proposed financing.
Maturity and Interest The loan agreements provide that the modified term loan will have a maturity of September 1, 2012, subject to the existence of no default and the payment of a fee on the fifth and sixth anniversary of August 25, 2005, and bear interest, at our option, at a rate per annum equal to the 30, 60, 90, 180 or, if available from all lenders, 360 day London Interbank Offered Rate, or LIBOR, plus 85 basis points. If LIBOR is unavailable, then the interest rate will be calculated based on the federal funds rate plus 110 basis points. In the event that our debt service coverage ratio is less than 1.15:1.00, cash flow will be retained for additional collateral.
Security The modified term loan is made to seven separate borrower subsdiaries and will be secured by the following properties and combined in seven separate cross collateralized pools: Studio Plaza, Gateway Los Angeles, Bundy/Olympic, Brentwood Executive Plaza, Palisades Promenade, 12400 Wilshire, First Federal Square, 11777 San Vicente, Landmark II, Sherman Oaks Galleria, Second Street Plaza, Olympic Center, MB Plaza, Valley Office Plaza, Coral Plaza, Westside Towers, Valley Executive Tower, Encino Terrace, Westwood Place, Century Park Plaza, Lincoln/Wilshire, 100 Wilshire, Encino Gateway, Encino Plaza, 1901 Avenue of the Stars, Columbus Center, Warner Center Towers, Beverly Hills Medical Center, Harbor Court, Bishop Place, Brentwood Court, Brentwood Medical Plaza, Brentwood San Vicente Medical, San Vicente Plaza, and Owensmouth.
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Prepayment The loan agreements allow for loans to be prepaid, subject to LIBOR and hedge breakage fees, and permit the release of properties securing such loans upon prepayment. As a condition to releasing property, the minimum debt service coverage ratio for the remaining properties in the applicable collateral pool must be at least 1.35:1.00.
Events of Default The loan agreements contain customary events of default, including defaults in the payment of principal or interest, defaults in the compliance with the covenants contained in the documents evidencing the modified term loan, cross defaults to other material debt of each applicable borrower subsidiary and bankruptcy or other insolvency events.
Senior Secured Revolving Credit Facility
In connection with this offering and the formation transactions, we have entered into an agreement with Bank of America, N.A. and Banc of America Securities LLC to provide a $250.0 million senior secured revolving credit facility, which we expect will be in place and undrawn at the closing of this offering, assuming a pricing in this offering at the mid-point of the range set forth on the cover page of this prospectus. The senior secured revolving credit facility will contain an accordion feature that would allow us to increase the availability thereunder by $250.0 million, to $500.0 million, under specified circumstances. We plan to use funds available under the senior secured revolving credit facility to finance our working capital needs. We expect that none of the lenders under the senior secured revolving credit facility or any of their affiliates will have an interest in the formation transactions beyond the proposed financing.
Maturity, Interest and Fees The term sheet provides that the senior secured revolving credit facility will have a term of three years and bear interest, at our option, at a rate per annum equal to LIBOR plus 0.7% if the outstanding amount under the senior secured revolving credit facility is less than or equal to $175.0 million (plus 45% of the value of any properties added to the borrowing base in the future), or LIBOR plus 0.8% if the outstanding amount under the senior secured revolving credit facility is greater than $175.0 million (plus 45% of the value of any properties added to the borrowing base in the future). We may select LIBOR interest rate periods of 30, 60, 90 or 180 days. If LIBOR is unavailable, then the senior secured revolving credit facility will bear interest at the federal funds rate plus 0.25% plus either 0.7% or 0.8%, based on the amount outstanding as described above. In addition to paying interest on outstanding principal, we will be required to pay a commitment fee to the lenders under the senior secured revolving credit facility in respect of the average unused amount of the facility during each calendar quarter at a rate of 0.15% per annum.
We have the option to extend the initial term of the senior secured revolving credit facility by two, one-year extensions, subject to certain conditions, including no existing default; full compliance with all the terms, conditions and covenants of the agreement governing the senior secured revolving credit facility; a minimum debt service condition; and payment of an extension fee equal to 0.1% of the facility amount.
Security The senior secured credit facility will be secured by the following properties: Village on Canon, Camden Medical Arts, Saltair/San Vicente, Verona, Tower at Sherman Oaks, One Westwood, Brentwood/Saltair, 9601 Wilshire and Santa Monica Square.
Prepayment The senior secured revolving credit facility will be freely prepayable in whole or in part at any time without penalty, subject to LIBOR breakage fees.
Events of Default We expect that the senior secured revolving credit facility will contain customary events of default, including defaults in the payment of principal or interest, defaults in the compliance with the covenants contained in the documents evidencing the credit facility, cross defaults to other material debt and bankruptcy or other insolvency events.
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Employees
As of June 1, 2006, our predecessor employed approximately 400 persons. We believe that our relationships with our employees are good.
Principal Executive Offices
We own the building in which our headquarters is located at 808 Wilshire Boulevard, Santa Monica, California. We believe that our current facilities are adequate for our present and future operations, although we may add regional offices or relocate our headquarters, depending upon our future development projects.
Legal Proceedings
From time to time, we are party to various lawsuits, claims and other legal proceedings that arise in the ordinary course of our business. We are not currently a party, as plaintiff or defendant, to any legal proceedings which, individually or in the aggregate, would be expected to have a material effect on our business, financial condition or results of operation if determined adversely to us.
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Directors and Executive Officers
Upon consummation of this offering, we anticipate that our board of directors will consist of between seven and nine members, including a majority of directors who are "independent directors" within the meaning of the listing standards of the New York Stock Exchange, or NYSE. Pursuant to our charter, each of our directors is elected by our stockholders to serve until the next annual meeting of our stockholders and until their successors are duly elected and qualify. See "Material Provisions of Maryland Law and of Our Charter and BylawsOur Board of Directors." The first annual meeting of our stockholders after this offering will be held in 2007. Subject to rights pursuant to any employment agreements, officers serve at the pleasure of our board of directors.
The following table sets forth certain information concerning our directors and executive officers as of the consummation of this offering:
Name
|
Age
|
Position
|
||
---|---|---|---|---|
Dan A. Emmett | 66 | Director, Chairman of the Board | ||
Jordan L. Kaplan | 45 | Director, Chief Executive Officer, President | ||
Kenneth M. Panzer | 46 | Director, Chief Operating Officer | ||
William Kamer | 55 | Chief Financial Officer | ||
Andres Gavinet | 38 | Executive Vice President of Finance | ||
Barbara J. Orr | 59 | Chief Accounting Officer | ||
Allan B. Golad | 51 | Senior Vice President, Property Management | ||
Michael J. Means | 45 | Senior Vice President, Commercial Leasing | ||
Leslie E. Bider | 55 | Director nominee | ||
Victor J. Coleman | 44 | Director nominee | ||
Ghebre Selassie Mehreteab | 57 | Director nominee | ||
Thomas E. O'Hern | 51 | Director nominee | ||
Dr. Andrea L. Rich | 62 | Director nominee | ||
William Wilson III | 70 | Director nominee |
The following is a biographical summary of the experience of our directors, director nominees, and executive officers.
Dan A. Emmett. Mr. Emmett will serve as the Chairman of our board of directors. Mr. Emmett co-founded the predecessor to DECO in 1971. In 1991, Mr. Emmett co-founded DERA and PLE. Mr. Emmett has been primarily responsible for investor relations since 1991. Mr. Emmett received his bachelor's degree from Stanford University in 1961 and his J.D. from Harvard University in 1964.
Jordan L. Kaplan. Mr. Kaplan will serve as our Chief Executive Officer, President and a member of our board of directors. Mr. Kaplan joined DECO in 1986, co-founded DERA and PLE in 1991, and has served as the Chief Financial Officer and Director of the Capital Markets Division for all of our operating companies since 1991. Since founding DERA, Mr. Kaplan has been responsible for all capital markets transactions including all acquisitions, dispositions, and financings. Mr. Kaplan received his bachelor's degree from the University of California, Santa Barbara in 1983 and his M.B.A. from the University of California, Los Angeles in 1986.
Kenneth M. Panzer. Mr. Panzer will serve as our Chief Operating Officer and a member of our board of directors. Mr. Panzer joined DECO in 1984, co-founded DERA and PLE in 1991, and has served as the Chief Operating Officer of all of our operating companies since 1991. Since founding DERA, Mr. Panzer has been responsible for all company operations including all leasing, property management, construction, and development activities. Mr. Panzer received his bachelor's degree from Penn State University in 1982.
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William Kamer. Mr. Kamer will serve as our Chief Financial Officer. Mr. Kamer joined DECO in 2000 and has served as Senior Vice President in our Capital Markets Division for all our operating companies since that time. In this capacity, Mr. Kamer has overseen all financing activities. In addition, Mr. Kamer has served as General Counsel since 2000. Prior to joining DECO, Mr. Kamer was an attorney for 22 years focusing exclusively on real estate and real estate finance matters. He was a partner at the law firm of Cox, Castle & Nicholson LLP from 1986 through 1999. Mr. Kamer received his bachelor's degree from Vassar College in 1973, his master's degree in city and regional planning from Harvard University in 1978, and his J.D. from Boston University in 1978.
Andres R. Gavinet. Mr. Gavinet will serve as our Executive Vice President of Finance. Mr. Gavinet joined DECO in 2006. Prior to joining DECO, Mr. Gavinet served as Treasurer and Chief Accounting Officer for Arden Realty, a public REIT specializing in Southern California office real estate, from 1999 until it went private May 1, 2006, at which time he became its Chief Financial Officer. Mr. Gavinet is a Certified Public Accountant who worked for Ernst & Young LLP from 1993 through 1998 focusing on real estate companies. Mr. Gavinet received his bachelor's degree from California State University, Northridge in 1993.
Barbara J. Orr. Ms. Orr will serve as our Chief Accounting Officer. Ms. Orr joined an affiliate of DECO in 1988 and joined DECO in 1998. Ms. Orr has served as the Chief Accounting Officer for all of our operating companies since joining DECO in 1998. Ms. Orr received her bachelor's degree from California State University, East Bay in 1979 and became a Certified Public Accountant in 1981.
Allan B. Golad. Mr. Golad will serve as our Senior Vice President in charge of Property Management. Mr. Golad joined DECO in 1988 and has served as the Director of Property Management since 1990. Mr. Golad serves on the board of directors for the Building Owners and Managers Association, or BOMA, and is on BOMA's executive committee. Prior to joining DECO, Mr. Golad was a senior acquisitions officer with Chase Manhattan Bank and Glendale Federal Bank. Mr. Golad received his bachelor's degree from Claremont McKenna College in 1977.
Michael J. Means. Mr. Means will serve as our Senior Vice President in charge of Commercial Leasing. Mr. Means joined DECO in 1998 and has served as the Director of Commercial Leasing since 2000. Prior to that time he was a senior officer in our Design and Construction Department. Prior to joining DECO, Mr. Means was a corporate real estate officer at the Walt Disney Company and Health Net. Mr. Means received his bachelor's degree from the University of California, Los Angeles in 1983.
Leslie E. Bider. Mr. Bider will serve as a member of our board of directors. Mr. Bider served as Chairman/Chief Executive Officer of Warner Chappell Music, Inc., a music publishing company, from 1987 to 2005. Prior to that Mr. Bider served as Chief Financial Officer and Chief Operating Officer of Warner Bros. Music, and as a principal in an accounting firm specializing in the entertainment industry. Mr. Bider is currently executive in residence at Elevation Partners. Mr. Bider served as a director of Arden Realty until its sale in the Spring of 2006. He is currently a member of the board of directors of OSI Systems, Inc. Mr. Bider also serves on the board of numerous civic organizations and has been the recipient of prestigious civic and music industry awards. Mr. Bider lives in Beverly Hills, California, and holds a bachelor's degree in accounting from the University of Southern California and a master's degree from the Wharton School.
Victor J. Coleman. Mr. Coleman will serve as a member of our board of directors. Mr. Coleman is the founder and managing director of Hudson Capital, LLC, a real estate investment firm in Los Angeles and he is a partner in a number of other investment companies. Mr. Coleman was a co-founder, President, and Chief Operating Officer of Arden Realty, Inc., a public REIT specializing in Southern California office real estate, from 1990 until its sale in the spring of 2006. Mr. Coleman served as a member of the board of directors of Arden Realty from 1996 to 2006. Mr. Coleman lives in
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Los Angeles and holds a bachelor's degree from the University of California, Berkeley and an M.B.A. from Golden Gate University.
Ghebre Selassie Mehreteab. Mr. Mehreteab will serve as a member of our board of directors. Mr. Mehreteab has served as Chief Executive Officer of the NHP Foundation since its inception in 1989. The NHP Foundation is a non-profit corporation based in Washington, D.C. which owns and operates affordable multifamily housing in many cities across the United States. Previously Mr. Mehreteab was vice president of the National Corporation for Housing Partnerships and a program officer at the Ford Foundation. Mr. Mehreteab is a board member of the National Housing Conference and a member of the Council on Foreign Relations. Mr. Mehreteab is a native of Eritrea, lives in Washington, D.C. and New York City, and received his bachelor's degree from Haverford College.
Thomas E. O'Hern. Mr. O'Hern will serve as a member of our board of directors. Mr. O'Hern is Executive Vice President, Chief Financial Officer, and Treasurer of Macerich Company, a public REIT specializing in retail real estate. Prior to joining Macerich in 1993, Mr. O'Hern served as chief financial officer of several commercial real estate companies. Mr. O'Hern is a Certified Public Accountant who worked for Arthur Andersen & Co. from 1978 through 1984. Mr. O'Hern is a member of the board of directors of Linux Progeny, a private software company, and a trustee for Little Company of Mary Hospital Foundation. Mr. O'Hern lives in the Los Angeles area and holds a bachelor's degree from California Polytechnic University, San Luis Obispo.
Dr. Andrea L. Rich. Dr. Rich will serve as a member of our board of directors. Dr. Rich retired from the Los Angeles Museum of Art in 2005 where she served for ten years as President and Chief Executive Officer. During the second half of her career at the Museum, she also served as the Wallis Annenberg Director. Prior to her tenure at the Los Angeles Museum of Art, Dr. Rich had a long academic and administrative career at UCLA, culminating in her service as Executive Vice Chancellor and Chief Operating Officer from 1991 to 1995. Dr. Rich serves as a director of Mattel Corporation and the Private Bank of California. Dr. Rich lives in Los Angeles and earned her bachelor's degree, master's degree, and Ph.D. from UCLA.
William Wilson III. Mr. Wilson will serve as a member of our board of directors. Mr. Wilson is currently Managing Partner of Wilson Meany Sullivan, LLC, a real estate investment, development, and management firm in San Francisco. Mr. Wilson was founder of William Wilson and Associates, which merged with Cornerstone Properties, Inc., a public REIT specializing in office properties. Mr. Wilson served as Chairman of Cornerstone until it was acquired by Equity Office Properties Trust in 2000 and served on the Board of Equity Office Properties until 2004. Mr. Wilson is active in numerous civic organizations including service on the boards of the California Academy of Science, Lawrenceville School and the Presidio Trust. Mr. Wilson lives in the San Francisco Bay Area and earned his bachelor's degree in engineering from Stanford University.
Our board of directors will appoint an audit committee, a compensation committee, and a nominating and corporate governance committee effective upon consummation of this offering. Under our bylaws, the composition of each committee must comply with the listing requirements and other rules and regulations of the NYSE, as amended or modified from time to time. Each of these committees will have three directors and will be comprised exclusively of independent directors. Our bylaws define independent director by reference to the rules and regulations of the NYSE, which require that an independent director have no material relationship with us that may interfere with the exercise of his or her independence from management.
Audit Committee. The audit committee will select, on behalf of our board of directors, an independent public accounting firm to be engaged to audit our financial statements, discuss with the
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independent auditors their independence, review and discuss the audited financial statements with the independent auditors and management, and recommend to our board of directors whether the audited financial statements should be included in our Annual Reports on Form 10-K to be filed with the SEC. Thomas E. O'Hern will be the chairperson of our audit committee and the other members of our audit committee will be Leslie E. Bider and Ghebre Selassie Mehreteab.
Compensation Committee. The compensation committee will review and approve, on behalf of our board of directors, the annual salaries and other compensation of our executive officers and individual stock, stock option and other equity incentive grants. The compensation committee will also provide assistance and recommendations with respect to our compensation policies and practices and will assist with the administration of our compensation plans. Victor J. Coleman will be the chairman of our compensation committee and the other members of our compensation committee will be Dr. Andrea L. Rich and Leslie E. Bider.
Nominating and Corporate Governance Committee. The nominating and corporate governance committee will assist our board of directors in fulfilling its responsibilities by identifying and approving individuals qualified to serve as members of our board of directors, selecting director nominees for our annual meetings of stockholders, evaluating the performance of our board of directors, developing and recommending to our board of directors corporate governance guidelines and providing oversight with respect to corporate governance and ethical conduct. Dr. Andrea L. Rich will be the chairman of our nominating and corporate governance committee and the other members of our nominating and corporate governance committee will be Victor J. Coleman and William Wilson III.
Our board of directors may from time to time establish certain other committees to facilitate the management of our company.
Directors who are employees of our company or our subsidiaries will not receive compensation for their services as directors. We intend to pay our non-employee directors an annual fee of $50,000, to be paid in LTIP units or, at the election of the director, up to one-half of such amount may be paid quarterly in cash. The LTIP units will be awarded at the beginning of each calendar year and will vest on a quarterly basis over a one-year period. Any non-employee director who also serves as chairman of our audit committee will receive an additional annual fee of $15,000, and any non-employee director who also serves as chairman of our compensation committee, nominating and corporate governance committee or other board committee will receive an additional annual fee of $10,000. Such additional fees will be paid in cash on a quarterly basis. We will also pay non-employee board members a cash fee of $1,500 for each meeting of our board of directors attended and a cash fee of $1,000 for each committee meeting attended. We also intend to promptly reimburse all directors for reasonable expenses incurred to attend meetings of our board of directors or committees.
In addition, upon initial election to our board of directors, each of our non-employee directors will receive an initial one-time grant of 7,500 LTIP units that will vest ratably over a three-year period.
Executive Officer Compensation
We intend to enter into employment agreements with certain of our executive officers which will become effective upon the consummation of this offering. We expect that such employment agreements will provide for salary, bonus and other benefits, including severance upon a termination of employment under certain circumstances. See "Employment Agreements." The following table sets forth the annualized base salary and other compensation that would have been paid in 2006 to our Chief Executive Officer and our four other most highly compensated executive officers, who we refer to collectively as our "named executive officers," had these employment agreements been in effect for all of 2006.
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|
2006 Annualized Compensation
|
Long Term Compensation
|
|
|||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
|
|
|
Awards
|
Payouts
|
|
||||||||||||
Name and
Principal Position |
Salary($)
(1)
|
Bonus($)
(1)
(2)
|
Other Annual
Compensation (1) (3) |
Restricted
Stock Award(s)($) (4) |
Securities
Underlying Options(#) (4) |
LTIP
Payouts($) |
All Other
Compensation (5) |
|||||||||||
Dan A. Emmett,
Chairman of the Board |
$ | 100,000 | (6) | $ | 20,000 | 30,000 | 177,778 | | $ | 3,000 | ||||||||
Jordan L. Kaplan, Chief Executive Officer and President |
|
$ |
950,000 |
|
$ |
1,900,000 |
|
|
|
|
420,000 |
|
2,488,889 |
|
|
|
$ |
3,000 |
Kenneth M. Panzer, Chief Operating Officer |
|
$ |
950,000 |
|
$ |
1,900,000 |
|
|
|
|
420,000 |
|
2,488,889 |
|
|
|
$ |
3,000 |
William Kamer, Chief Financial Offier |
|
$ |
575,000 |
|
$ |
690,000 |
|
|
|
|
101,500 |
|
386,667 |
|
|
|
$ |
3,000 |
Andres Gavinet, Executive Vice President of Finance |
|
$ |
300,000 |
|
$ |
360,000 |
|
|
|
|
15,000 |
|
44,444 |
|
|
|
$ |
3,000 |
Option Grants
The following table sets forth information regarding stock options we will grant effective upon consummation of this offering to our named executive officers. Potential realizable values are net of exercise price, before taxes, and are based on the assumption that our common stock appreciates at the annual rate shown, compounded annually, from the date of grant until the expiration of the ten-year
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term. These numbers are calculated based on SEC requirements and do not reflect our projection or estimate of future stock price growth.
We intend to assume and maintain sponsorship of the retirement savings plan under Section 401(k) of the Code that currently covers the eligible employees of our predecessors. The plan allows eligible employees to defer, within prescribed limits, up to 15% of their compensation on a pre-tax basis through contributions to the plan. Our employees will be eligible to participate in the plan if they meet certain requirements, including a minimum period of credited service. Any matching and discretionary company contributions permitted under the terms of the plan may be subject to certain vesting requirements.
2006 Omnibus Stock Incentive Plan
The Douglas Emmett, Inc. 2006 Omnibus Stock Incentive Plan, our stock incentive plan, will be adopted by our board of directors and approved by our stockholders prior to the consummation of this offering. The stock incentive plan permits us to make grants of "incentive stock options, non-qualified stock options, stock appreciation rights, deferred stock awards, restricted stock awards, dividend equivalent rights and other stock-based awards" within the meaning of Section 422 of the Code, or any combination of the foregoing. We have initially reserved 16,500,000 shares of our common stock for the issuance of awards under our stock incentive plan. The number of shares reserved under our stock incentive plan is also subject to adjustment in the event of a stock split, stock dividend or other change
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in our capitalization. Generally, shares that are forfeited or canceled from awards under our stock incentive plan also will be available for future awards.
Our stock incentive plan is administered by the compensation committee of our board of directors. The compensation committee may interpret the stock incentive plan and may make all determinations necessary or desirable for the administration of the stock incentive plan and has full power and authority to select the participants to whom awards will be granted, to make any combination of awards to participants, to accelerate the exercisability or vesting of any award and to determine the specific terms and conditions of each award, subject to the provisions of our stock incentive plan. All full-time and part-time officers, employees, directors and other key persons (including consultants and prospective employees) are eligible to participate in our stock incentive plan.
We may issue incentive stock options or non-qualified stock options under the stock incentive plan. The incentive stock options granted under the stock incentive plan are intended to qualify as incentive stock options. The exercise price of stock options awarded under our stock incentive plan may not be less than 100% of the fair market value of our common stock on the date of the option grant. The compensation committee will determine at what time or times each option may be exercised (provided that in no event may it exceed ten years from the date of grant) and the period of time, if any, after retirement, death, disability or other termination of employment during which options may be exercised.
Stock appreciation rights may be granted under our stock incentive plan. Stock appreciation rights allow the participant to receive the appreciation in the fair market value of our common stock between the exercise date and the date of grant in the form of shares of our common stock. The exercise price of stock appreciation rights awarded under our stock incentive plan may not be less than 100% of the fair market value of our common stock on the date of grant. The compensation committee determines the terms of stock appreciation rights, including when such rights become exercisable and the period of time, if any, after retirement, death, disability or other termination of employment during which stock appreciation rights may be granted.
Restricted stock and deferred stock awards may also be granted under our stock incentive plan. Restricted stock awards are shares of our common stock that vest in accordance with terms and conditions established by the compensation committee. The compensation committee may impose whatever conditions to vesting it determines to be appropriate, including attainment of performance goals. Shares of restricted stock that do not satisfy the vesting conditions are subject to our right of repurchase or forfeiture. Deferred stock awards are stock units entitling the participant to receive shares of stock paid out on a deferred basis and subject to such restrictions and conditions as the compensation committee shall determine. The compensation committee may impose whatever conditions to vesting it determines to be appropriate, including attainment of performance goals. Deferred stock awards that do not satisfy the vesting conditions are subject to forfeiture.
Dividend equivalent rights may also be granted under our stock incentive plan. These rights entitle the participant to receive credits for dividends that would be paid if the participant had held specified shares of our common stock. Dividend equivalent rights may be granted as a component of another award or as a freestanding award.
Other stock-based awards under our stock incentive plan will include awards that are valued in whole or in part by reference to shares of our common stock, including convertible preferred stock, convertible debentures and other convertible or exchangeable securities, partnership interests in a subsidiary or our operating partnership, awards valued by reference to book value, fair value or performance of a subsidiary, and any class of profits interest or limited liability company membership interest. We expect to make certain awards in the form of long-term incentive units, or "LTIP units." LTIP units will be issued pursuant to a separate series of units of limited partnership interests in our operating partnership. LTIP units, which can be granted either as free-standing awards or in tandem
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with other awards under our stock incentive plan, will be valued by reference to the value of our common stock, and will be subject to such conditions and restrictions as the compensation committee may determine, including continued employment or service, computation of financial metrics and/or achievement of pre-established performance goals and objectives. If applicable conditions and/or restrictions are not attained, participants would forfeit their LTIP units. LTIP unit awards, whether vested or unvested, may entitle the participant to receive, currently or on a deferred or contingent basis, dividends or dividend equivalent payments with respect to the number of shares of our common stock underlying the LTIP unit award or other distributions from the operating partnership, and the compensation committee may provide that such amounts (if any) shall be deemed to have been reinvested in additional shares of our common stock or LTIP units.
LTIP units will be structured as "profits interests" for federal income tax purposes, and we do not expect the grant, vesting or conversion of LTIP units to produce a tax deduction for us. As profits interests, LTIP units initially will not have full parity, on a per unit basis, with the operating partnership's common units with respect to liquidating distributions. Upon the occurrence of specified events, LTIP units can over time achieve full parity with common units and therefore accrete to an economic value for the participant equivalent to common units. If such parity is achieved, LTIP units may be converted, subject to the satisfaction of applicable vesting conditions, on a one-for-one basis into common units, which in turn are redeemable by the holder for shares of our common stock on a one-for-one basis or for the cash value of such shares, at our election. However, there are circumstances under which LTIP units will not achieve parity with common units, and until such parity is reached, the value that a participant could realize for a given number of LTIP units will be less than the value of an equal number of shares of our common stock and may be zero. Ordinarily, we anticipate that each LTIP unit awarded will be equivalent to an award of one share of common stock reserved under our stock incentive plan, thereby reducing the number of shares of common stock available for other equity awards on a one-for-one basis. However, the compensation committee has the authority under the plan to determine the number of shares of common stock underlying an award of LTIP units in light of all applicable circumstances, including performance-based vesting conditions, operating partnership "capital account allocations," to the extent set forth in the partnership agreement for the operating partnership, Code, or Treasury Regulations, value accretion factors and conversion ratios.
Upon consummation of this offering, we will cause the operating partnership to issue an aggregate of 1,044,000 LTIP units to our chairman, executive officers and our other key employees. LTIP units granted to Messrs. Emmett, Kaplan and Panzer will be fully vested upon grant, while LTIP units granted to our other executive officers and key employees will vest as to 25% of the amount of grant on each of December 21, 2007, 2008, 2009 and 2010. In addition, upon consummation of this offering, we will issue options to purchase an aggregate of 5,742,221 shares of our common stock to our chairman, executive officers and our other key employees. Options granted to Messrs. Emmett, Kaplan and Panzer will be fully vested upon grant, while options granted to our other executive officers and key employees will vest as to 25% of the number of shares subject to such option on each of December 21, 2007, 2008, 2009 and 2010.
Upon initial election to our board, each of our non-employee directors will receive an initial one-time grant of 7,500 LTIP units that will vest ratably over a three-year period.
Unless the compensation committee provides otherwise, our stock incentive plan does not generally allow for the transfer of awards, and only the participant may exercise an award during his or her lifetime. In the event of a change-in-control of the company, our board of directors and the board of directors of the surviving or acquiring entity shall, as to outstanding awards under our stock incentive plan, make appropriate provision for the continuation or assumption of such awards and may provide for the acceleration of vesting with respect to existing awards.
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The terms of the stock incentive plan provide that we may amend, suspend or terminate the stock incentive plan at any time, but stockholder approval of any such action will be obtained if required to comply with applicable law. Further, no action may be taken that adversely affects any rights under outstanding awards without the holder's consent. The stock incentive plan will terminate on the tenth anniversary of the date on which stockholder approval was received.
We intend to file with the SEC a Registration Statement on Form S-8 covering the shares of our common stock issuable under the stock incentive plan.
Kaplan Employment Agreement
We and our operating partnership will enter into an employment agreement with Mr. Kaplan, pursuant to which Mr. Kaplan will serve as our President and Chief Executive Officer. The term of Mr. Kaplan's employment agreement ends December 31, 2010. Commencing January 1, 2011 and on each January 1 st thereafter it will automatically be extended by one year unless either party provides written notice that it does not wish to extend the term at least 60 days prior to the end of the then term.
Mr. Kaplan is entitled to a base salary of $950,000, subject to at least annual review and adjustment by the compensation committee of our board of directors, in its sole discretion. Mr. Kaplan is also entitled to an annual bonus of up to 200% of base salary based upon meeting certain reasonable criteria to be reasonably established by the compensation committee of the board of directors in consultation with Mr. Kaplan. Upon consummation of this offering, Mr. Kaplan will receive a fully vested option to purchase 2,488,889 shares of our common stock pursuant to our 2006 Omnibus Stock Incentive Plan (the "Plan") and related award agreements for an exercise price equal to the initial price to the public in this offering. Mr. Kaplan will also receive 420,000 LTIP units granted pursuant to the Plan. In addition to participation in our pension and welfare plans, Mr. Kaplan is entitled to use of and payment of all related expenses for an automobile, reimbursement of tax and financial services fees, a personal umbrella insurance policy and family health insurance. Mr. Kaplan is entitled to 25 days of paid time off annually.
Mr. Kaplan's employment may be terminated for any reason, at any time, but 30-days' prior notice shall be provided where such termination is by us without "Cause" or by Mr. Kaplan for "Good Reason." "Cause" is defined in Mr. Kaplan's employment agreement to mean (i) any act or omission by Mr. Kaplan which constitutes intentional misconduct or a willful violation of law; (ii) an act of fraud, conversion, misappropriation or embezzlement by Mr. Kaplan or conviction of, indictment for (or its procedural equivalent) or entering a guilty plea or plea of no contest with respect to a felony, the equivalent thereof or any crime involving any moral turpitude with respect to which imprisonment is a common punishment; or (iii) any other failure (other than any failure resulting from incapacity due to physical or mental illness) by Mr. Kaplan to perform his material and reasonable duties and responsibilities as an employee, director or consultant of the Company or any Subsidiary which continues for ten days following written notice from the Company or any Subsidiary (except in the case of a willful failure to perform his duties or a willful breach, which shall require no notice). For purposes of the definition of "Cause," no act, or failure to act, on Mr. Kaplan's part shall be considered "willful" unless Mr. Kaplan acted, or failed to act, in bad faith or without reasonable belief that his act or failure to act was in the best interest of the Company or any subsidiary. According to Mr. Kaplan's employment agreement, "Good Reason" is present where Mr. Kaplan gives notice to the board of directors of his voluntary resignation (a) within 120 days after the occurrence of any of the following, without Mr. Kaplan's written consent: (i) the failure of the Company to pay, or cause to be paid, Mr. Kaplan's base salary or annual bonus when due, subject to a ten day cure period by the Company (except in the case of a willful failure which shall require no notice); (ii) diminution in
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Mr. Kaplan's status, including title, position, duties, authority or responsibility (including Mr. Kaplan ceasing to be a member of the board of directors other than as a result of a voluntary resignation), subject to a 30 day cure period by the Company (except in the case of a willful breach, which shall require no notice); (iii) relocation of the Company's executive offices to a location outside of the West Side of Los Angeles; or (iv) the failure of the Company to obtain the express written assumption of Mr. Kaplan's employment agreement by a successor in interest to substantially all of the business operations of the Company (unless the agreement is assumed by operation of law); or (b) within 18 months after the occurrence of a change of control.
If we terminate Mr. Kaplan's employment without Cause or if Mr. Kaplan terminates his employment for Good Reason, and provided he delivers to us (and does not revoke) a release of all claims and complies with the provisions of his employment agreement concerning the use and ownership of intellectual property, non-solicitation of employees and consultants of the Company, and non-disclosure of confidential information, Mr. Kaplan will receive as severance benefits (a) compensation equal to three times the average of his total compensation over the last three full calendar years ending prior to the termination date, including (i) his base salary, (ii) his annual bonus, and (iii) the value (based on the Black-Scholes value in the case of options and the value of the underlying grants in the case of LTIP awards or outperformance plans) of any equity or other compensation plans granted or awarded to Mr. Kaplan; and (b) continued coverage under our medical and dental plans for himself and his eligible dependants for a three-year period following his termination. If there are less than three full calendar years, the average shall be based on (i) 2006 (including compensation paid by the Company's predecessor) and (ii) any other fully completed years prior to the date of Mr. Kaplan's termination. Mr. Kaplan will also receive base salary through the date of termination, payment for all unpaid, but accrued and unused personal time off through the date of termination, earned but unpaid annual bonus for any previously completed fiscal year, reimbursement for any properly incurred unreimbursed business expenses and any existing rights to indemnification for prior acts through the date of termination. Any rights to LTIP awards, options and other compensation programs and employee benefits shall be determined in accordance with their terms of grant.
Any payments made to Mr. Kaplan as a result of a change of control of the Company will be grossed-up as necessary to adjust for the imposition of excise taxes under Section 280G of the Code. Mr. Kaplan's employment agreement also contains confidentiality and non-solicitation provisions effective through the term of the agreement and for a period of two years (confidentiality) and one year (non-solicitation) thereafter.
Mr. Kaplan's employment agreement provides that upon his termination for Cause or without Good Reason, he will be entitled to base salary through the date of termination, payment for all unpaid, but accrued and unused personal time off through the date of termination, earned but unpaid annual bonus for any previously completed fiscal year, reimbursement for any properly incurred unreimbursed business expenses and any existing rights to indemnification for prior acts through the date of termination. Any rights to LTIP awards, options or other compensation programs and employee benefits shall be determined in accordance with their terms of grant. Upon Mr. Kaplan's death or disability, he (or his estate) shall be entitled to the above-noted benefits, plus continued medical benefits for Mr. Kaplan and his eligible dependents for a period of twelve months plus a pro-rated portion of his annual bonus that he otherwise would have been paid based upon actual performance for such fiscal year and the percentage of the fiscal year that elapsed through the date of his termination of employment.
Mr. Kaplan's employment agreement also contains a non-competition provision that applies during the term of the agreement, and under which Mr. Kaplan covenants that he will not: (i) for his own account engage in any business that invests in or deals with large and mid-size office buildings and multifamily properties in Los Angeles County and Hawaii (larger than 50,000 square feet for office properties and 50 units for apartment buildings); (ii) enter the employ of, or render any consulting or
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any other services to, any such entities that so compete, directly or indirectly, with any business carried on by the Company or any of our subsidiaries; or (iii) become interested in any such competing entity in any capacity, including, without limitation, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; provided, however, that Mr. Kaplan may own, directly or indirectly, solely as a passive investment, 5% or less of any class of securities of any entity traded on any national securities exchange and any assets acquired in compliance with the requirements of the aforementioned non-competition provisions.
Panzer Employment Agreement
We and our operating partnership will enter into an employment agreement with Mr. Panzer, pursuant to which Mr. Panzer will serve as our Chief Operating Officer. The term of Mr. Panzer's employment agreement ends December 31, 2010. Commencing January 1, 2011 and on each January 1 st thereafter will automatically be extended by one year unless either party provides written notice that it does not wish to extend the term at least 60 days prior to the end of the then term.
Mr. Panzer is entitled to a base salary of $950,000, subject to at least annual review and adjustment by the compensation committee of our board of directors, in its sole discretion. Mr. Panzer is also entitled to an annual bonus of up to 200% of base salary based upon meeting certain reasonable criteria to be reasonably established by the compensation committee of the board of directors in consultation with Mr. Panzer. Upon consummation of this offering, Mr. Panzer will receive a fully vested option to purchase 2,488,889 shares of our common stock pursuant to the Plan and related award agreements for an exercise price equal to the initial price to the public in this offering. Mr. Panzer will also receive 420,000 LTIP units granted pursuant to the Plan. In addition to participation in our pension and welfare plans, Mr. Panzer is entitled to use of and payment of all related expenses for an automobile, reimbursement of tax and financial services fees, a personal umbrella insurance policy and family health insurance. Mr. Panzer is entitled to 25 days of paid time off annually.
Mr. Panzer's employment may be terminated for any reason, at any time, but 30-days' prior notice shall be provided where such termination is by us without "Cause" or by Mr. Panzer for "Good Reason." "Cause" is defined in Mr. Panzer's employment agreement to mean (i) any act or omission by Mr. Panzer which constitutes intentional misconduct or a willful violation of law; (ii) an act of fraud, conversion, misappropriation or embezzlement by Mr. Panzer or conviction of, indictment for (or its procedural equivalent) or entering a guilty plea or plea of no contest with respect to a felony, the equivalent thereof or any crime involving any moral turpitude with respect to which imprisonment is a common punishment; or (iii) any other failure (other than any failure resulting from incapacity due to physical or mental illness) by Mr. Panzer to perform his material and reasonable duties and responsibilities as an employee, director or consultant of the Company or any Subsidiary which continues for ten days following written notice from the Company or any Subsidiary (except in the case of a willful failure to perform his duties or a willful breach, which shall require no notice). For purposes of the definition of "Cause," no act, or failure to act, on Mr. Panzer's part shall be considered "willful" unless Mr. Panzer acted, or failed to act, in bad faith or without reasonable belief that his act or failure to act was in the best interest of the Company or any subsidiary. According to Mr. Panzer's employment agreement, "Good Reason" is present where Mr. Panzer gives notice to the board of directors of his voluntary resignation (a) within 120 days after the occurrence of any of the following, without Mr. Panzer's written consent: (i) the failure of the Company to pay, or cause to be paid, Mr. Panzer's base salary or annual bonus when due, subject to a ten day cure period by the Company (except in the case of a willful failure which shall require no notice); (ii) diminution in Mr. Panzer's status, including title, position, duties, authority or responsibility (including Mr. Panzer ceasing to be a member of the board of directors other than as a result of a voluntary resignation), subject to a 30 day cure period by the Company (except in the case of a willful breach, which shall require no notice);
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(iii) relocation of the Company's executive offices to a location outside of the West Side of Los Angeles; or (iv) the failure of the Company to obtain the express written assumption of Mr. Panzer's employment agreement by a successor in interest to substantially all of the business operations of the Company (unless the agreement is assumed by operation of law); or (b) within 18 months after the occurrence of a change of control.
If we terminate Mr. Panzer's employment without Cause or if Mr. Panzer terminates his employment for Good Reason, and provided he delivers to us (and does not revoke) a release of all claims and complies with the provisions of his employment agreement concerning the use and ownership of intellectual property, non-solicitation of employees and consultants of the Company, and non-disclosure of confidential information, Mr. Panzer will receive as severance benefits (a) compensation equal to three times the average of his total compensation over the last three full calendar years ending prior to the termination date, including (i) his base salary, (ii) his annual bonus, and (iii) the value (based on the Black-Scholes value in the case of options and the value of the underlying grants in the case of LTIP awards or outperformance plans) of any equity or other compensation plans granted or awarded to Mr. Panzer; and (b) continued coverage under our medical and dental plans for himself and his eligible dependants for a three-year period following his termination. If there are less than three full calendar years, the average shall be based on (i) 2006 (including compensation paid by the Company's predecessor) and (ii) any other fully completed years prior to the date of Mr. Panzer's termination. Mr. Panzer will also receive base salary through the date of termination, payment for all unpaid, but accrued and unused personal time off through the date of termination, earned but unpaid annual bonus for any previously completed fiscal year, reimbursement for any properly incurred unreimbursed business expenses and any existing rights to indemnification for prior acts through the date of termination. Any rights to LTIP awards, options and other compensation programs and employee benefits shall be determined in accordance with their terms of grant.
Any payments made to Mr. Panzer as a result of a change of control of the Company will be grossed-up as necessary to adjust for the imposition of excise taxes under Section 280G of the Code. Mr. Panzer's employment agreement also contains confidentiality and non-solicitation provisions effective through the term of the agreement and for a period of two years (confidentiality) and one year (non-solicitation) thereafter.
Mr. Panzer's employment agreement provides that upon his termination for Cause or without Good Reason, he will be entitled to base salary through the date of termination, payment for all unpaid, but accrued and unused personal time off through the date of termination, earned but unpaid annual bonus for any previously completed fiscal year, reimbursement for any properly incurred unreimbursed business expenses and any existing rights to indemnification for prior acts through the date of termination. Any rights to LTIP awards, options or other compensation programs and employee benefits shall be determined in accordance with their terms of grant. Upon Mr. Panzer's death or disability, he (or his estate) shall be entitled to the above-noted benefits, plus continued medical benefits for Mr. Panzer and his eligible dependents for a period of twelve months plus a pro-rated portion of his annual bonus that he otherwise would have been paid based upon actual performance for such fiscal year and the percentage of the fiscal year that elapsed through the date of his termination of employment.
Mr. Panzer's employment agreement also contains a non-competition provision that applies during the term of the agreement, and under which Mr. Panzer covenants that he will not: (i) for his own account engage in any business that invests in or deals with large and mid-size office buildings and multifamily properties in Los Angeles County and Hawaii (larger than 50,000 square feet for office properties and 50 units for apartment buildings); (ii) enter the employ of, or render any consulting or any other services to, any such entities that so compete, directly or indirectly, with any business carried on by the Company or any of our subsidiaries; or (iii) become interested in any such competing entity in any capacity, including, without limitation, as an individual, partner, shareholder, officer, director,
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principal, agent, trustee or consultant; provided, however, that Mr. Panzer may own, directly or indirectly, solely as a passive investment, 5% or less of any class of securities of any entity traded on any national securities exchange and any assets acquired in compliance with the requirements of the aforementioned non-competition provisions.
Kamer Employment Agreement
We and our operating partnership will enter into an employment agreement with Mr. Kamer, pursuant to which Mr. Kamer will serve as our Chief Financial Officer. The term of Mr. Kamer's employment agreement ends December 31, 2010. Commencing January 1, 2011 and on each January 1 st thereafter it will automatically be extended by one year unless either party provides written notice that it does not wish to extend the term at least 60 days prior to the end of the then term.
Mr. Kamer is entitled to a base salary of $575,000, subject to at least annual review and adjustment by the compensation committee of our board of directors, in its sole discretion. Mr. Kamer is also entitled to an annual bonus of up to 120% of base salary based upon meeting certain reasonable criteria to be reasonably established by the compensation committee of the board of directors in consultation with Mr. Kamer. Upon consummation of this offering, Mr. Kamer will receive a non-qualified stock option to purchase 386,667 shares of our common stock pursuant to the Plan and related award agreements for an exercise price equal to the initial price to the public in this offering. Such option will vest in four equal annual installments on each anniversary of December 31, 2006 pursuant to the Plan and the related award agreements. Mr. Kamer will also receive 101,500 LTIP units granted pursuant to the Plan. In addition to participation in our pension and welfare plans, Mr. Kamer is entitled to reimbursement for automobile and family health insurance costs. Mr. Kamer is entitled to 25 days of paid time off annually.
Mr. Kamer's employment may be terminated for any reason, at any time, but 30-days' prior notice shall be provided where such termination is by us without "Cause" or by Mr. Kamer for "Good Reason." "Cause" is defined in Mr. Kamer's employment agreement to mean (i) any act or omission by Mr. Kamer which constitutes intentional misconduct or a willful violation of law; (ii) an act of fraud, conversion, misappropriation or embezzlement by Mr. Kamer or conviction of, indictment for (or its procedural equivalent) or entering a guilty plea or plea of no contest with respect to a felony, the equivalent thereof or any crime involving any moral turpitude with respect to which imprisonment is a common punishment; or (iii) any other failure (other than any failure resulting from incapacity due to physical or mental illness) by Mr. Kamer to perform his material and reasonable duties and responsibilities as an employee, director or consultant of the Company or any Subsidiary which continues for ten days following written notice from the Company or any Subsidiary (except in the case of a willful failure to perform his duties or a willful breach, which shall require no notice). For purposes of the definition of "Cause," no act, or failure to act, on Mr. Kamer's part shall be considered "willful" unless Mr. Kamer acted, or failed to act, in bad faith or without reasonable belief that his act or failure to act was in the best interest of the Company or any subsidiary. According to Mr. Kamer's employment agreement, "Good Reason" is present where Mr. Kamer gives notice to the board of directors of his voluntary resignation (a) within 120 days after the occurrence of any of the following, without Mr. Kamer's written consent: (i) the failure of the Company to pay, or cause to be paid, Mr. Kamer's base salary or annual bonus when due, subject to a ten day cure period by the Company (except in the case of a willful failure which shall require no notice); (ii) diminution in Mr. Kamer's status, including title, position, duties, authority or responsibility, subject to a 30 day cure period by the Company (except in the case of a willful breach, which shall require no notice); (iii) relocation of the Company's executive offices to a location outside of the West Side of Los Angeles; or (iv) the failure of the Company to obtain the express written assumption of Mr. Kamer's employment agreement by a successor in interest to substantially all of the business operations of the
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Company (unless the agreement is assumed by operation of law); or (b) within 18 months after the occurrence of a change of control.
If we terminate Mr. Kamer's employment without Cause or if Mr. Kamer terminates his employment for Good Reason, and provided he delivers to us (and does not revoke) a release of all claims and complies with the provisions of his employment agreement concerning the use and ownership of intellectual property, non-solicitation of employees and consultants of the Company, and non-disclosure of confidential information, Mr. Kamer will receive as severance benefits (a) compensation equal to two times the average of his total compensation over the last three full calendar years ending prior to the termination date, including (i) his base salary, (ii) his annual bonus, and (iii) the value (based on the Black-Scholes value in the case of options and the value of the underlying grants in the case of LTIP awards or outperformance plans) of any equity or other compensation plans granted or awarded to Mr. Kamer; and (b) continued coverage under our medical and dental plans for himself and his eligible dependants for a three-year period following his termination. If there are less than three full calendar years, the average shall be based on (i) 2006 (including compensation paid by the Company's predecessor) and (ii) any other fully completed years prior to the date of Mr. Kamer's termination. Mr. Kamer will also receive base salary through the date of termination, payment for all unpaid, but accrued and unused personal time off through the date of termination, earned but unpaid annual bonus for any previously completed fiscal year, reimbursement for any properly incurred unreimbursed business expenses and any existing rights to indemnification for prior acts through the date of termination. Any rights to LTIP awards, options and other compensation programs and employee benefits shall be determined in accordance with their terms of grant.
Any payments made to Mr. Kamer as a result of a change of control of the Company will be grossed-up as necessary to adjust for the imposition of excise taxes under Section 280G of the Code. Mr. Kamer's employment agreement also contains confidentiality and non-solicitation provisions effective through the term of the agreement and for a period of two years (confidentiality) and one year (non-solicitation) thereafter.
Mr. Kamer's employment agreement provides that upon his termination for Cause or without Good Reason, he will be entitled to base salary through the date of termination, payment for all unpaid, but accrued and unused personal time off through the date of termination, earned but unpaid annual bonus for any previously completed fiscal year, reimbursement for any properly incurred unreimbursed business expenses and any existing rights to indemnification for prior acts through the date of termination. Any rights to LTIP awards, options or other compensation programs and employee benefits shall be determined in accordance with their terms of grant. Upon Mr. Kamer's death or disability, he (or his estate) shall be entitled to the above-noted benefits, plus continued medical benefits for Mr. Kamer and his eligible dependents for a period of twelve months plus a pro-rated portion of his annual bonus that he otherwise would have been paid based upon actual performance for such fiscal year and the percentage of the fiscal year that elapsed through the date of his termination of employment.
Mr. Kamer's employment agreement also contains a non-competition provision that applies during the term of the agreement, and under which Mr. Kamer covenants that he will not: (i) for his own account engage in any business that invests in or deals with large and mid-size office buildings and multifamily properties in Los Angeles County and Hawaii (larger than 50,000 square feet for office properties and 50 units for apartment buildings); (ii) enter the employ of, or render any consulting or any other services to, any such entities that so compete, directly or indirectly, with any business carried on by the Company or any of our subsidiaries; or (iii) become interested in any such competing entity in any capacity, including, without limitation, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; provided, however, that Mr. Kamer may own, directly or indirectly, solely as a passive investment, 5% or less of any class of securities of any entity traded on
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any national securities exchange and any assets acquired in compliance with the requirements of the aforementioned non-competition provisions.
Gavinet Employment Letter
On June 7, 2006, we entered into a letter agreement with Mr. Gavinet, pursuant to which Mr. Gavinet will serve as our Executive Vice President of Finance. Mr. Gavinet's employment commenced on July 1, 2006. Mr. Gavinet is entitled to a base salary of $300,000 plus a discretionary annual bonus of up to 120% of his base salary based upon meeting certain corporate and individual performance targets. In addition, Mr. Gavinet is entitled to health and benefit coverage, participation in our 401(k) plan and a car allowance. Upon consummation of this offering, we expect Mr. Gavinet will receive a grant of 15,000 LTIP units and a non-qualified stock option to purchase 44,444 shares of our common stock with an exercise price equal to the initial price to the public in this offering. Such option will vest in four equal annual installments on each anniversary of December 31, 2006 pursuant to the Plan and related award agreements. In the event of a change of control, any unvested portion of the option will fully vest.
We intend to enter into indemnification agreements with our directors and executive officers that obligate us to indemnify them to the maximum extent permitted by Maryland law. The indemnification agreements provide that:
If a director or executive officer is a party or is threatened to be made a party to any proceeding, other than a proceeding by or in the right of our company, by reason of such director's or executive officer's status as a director, officer or employee of our company, we must indemnify such director or executive officer for all expenses and liabilities actually and reasonably incurred by him or her, or on his or her behalf, unless it has been established that:
If a director or executive officer is a party or is threatened to be made a party to any proceeding by or in the right of our company to procure a judgment in our company's favor by reason of such director's or executive officer's status as a director, officer, or employee of our company, we must indemnify such director or executive officer for all expenses and liabilities actually and reasonably incurred by him or her, or on his or her behalf, unless it has been established that:
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Upon application of a director or executive officer of our company to a court of appropriate jurisdiction, the court may order indemnification of such director or executive officer if:
Notwithstanding, and without limiting, any other provisions of the agreements, if a director or executive officer is a party or is threatened to be made a party to any proceeding by reason of such director's or executive officer's status as a director, officer or employee of our company, and such director or executive officer is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such proceeding, we must indemnify such director or executive officer for all expenses actually and reasonably incurred by him or her, or on his or her behalf, in connection with each successfully resolved claim, issue or matter, including any claim, issue or matter in such a proceeding that is terminated by dismissal, with or without prejudice.
In addition, the indemnification agreements will require us to advance reasonable expenses incurred by the indemnitee within ten days of the receipt by us of a statement from the indemnitee requesting the advance, provided the statement evidences the expenses and is accompanied by:
The indemnification agreements will also provide for procedures for the determination of entitlement to indemnification, including requiring such determination be made by independent counsel after a change of control of us.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to trustees, officers or persons controlling our company pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and is therefore unenforceable.
Compensation Committee Interlocks and Insider Participation
No member of the compensation committee is a current or former officer or employee of us or any of our subsidiaries. None of our executive officers serves as a member of the board of directors or compensation committee of any company that has one or more of its executive officers serving as a member of our board of directors or compensation committee.
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The following table sets forth the beneficial ownership of shares of our common stock and shares of common stock into which units are exchangeable (without giving effect to the 14-month restriction on exchange applicable to units) immediately following the consummation of this offering and the formation transactions for:
Beneficial ownership is determined in accordance with the rules of the SEC. In computing the number of shares beneficially owned by a person and the percentage ownership of that person, shares of common stock subject to options held by that person that are exercisable as of June 30, 2006, or will become exercisable within 60 days thereafter, are deemed outstanding, while such shares are not deemed outstanding for purposes of computing percentage ownership of any other person. Each person named in the table has sole voting and investment power with respect to all of the shares of our common stock shown as beneficially owned by such person, except as otherwise set forth in the notes to the table. Unless otherwise indicated, the address of each person named in the table is c/o Douglas Emmett, Inc., 808 Wilshire Boulevard, Suite 200, Santa Monica, California 90401.
Name of Beneficial Owner
|
Number of Shares
and Units Beneficially Owned |
Percent of
All Shares (1) |
Percent of
All Shares and Units (2) |
||||
---|---|---|---|---|---|---|---|
Dan A. Emmett (3) | 19,233,067 | 15.1 | % | 11.6 | % | ||
Kenneth M. Panzer (4) | 10,549,822 | 8.7 | 6.3 | ||||
Jordan Kaplan (5) | 10,484,566 | 8.6 | 6.3 | ||||
William Kamer (6) | 40,749 | * | * | ||||
Andres Gavinet | | * | * | ||||
Leslie E. Bider | | * | * | ||||
Victor J. Coleman | | * | * | ||||
Ghebre Selassie Mehreteab | | * | * | ||||
Thomas E. O'Hern | | * | * | ||||
Dr. Andrea L. Rich | | * | * | ||||
William Wilson III | | * | * | ||||
Yale University (7) | 11,845,329 | 10.4 | 7.0 | ||||
All directors, director nominees and executive officers as a group (14 persons) | 40,372,164 | 28.3 | % | 23.7 | % |
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CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Formation Transactions
We were formed on June 28, 2005 by two of our predecessor principals, each of whom may be considered one of our promoters. Our predecessor principals, certain of their related parties and certain of our executive officers are subject to merger and contribution agreements entered into with us and our operating partnership in connection with the formation transactions, pursuant to which they will exchange their direct or indirect interests in our historical operating companies, the institutional funds, the investment funds and the single-asset entities for shares of our common stock and/or units in our operating partnership. In addition, as holders of interests in our historical operating companies, the institutional funds and the single-asset entities, they will receive their appropriate share of the pre-closing property distributions and the pre-closing operating company distributions pursuant to the applicable formation transaction documents.
In addition, in connection with the formation transactions, Messrs. Emmett, Anderson, Kaplan and Panzer entered into a Representation, Warranty and Indemnity Agreement with us, pursuant to which they made limited representations and warranties to us regarding potential material adverse impacts on the entities and assets to be acquired by us in a formation transactions and agreed to indemnify us and our operating partnership for breaches of such representations and warranties for one year after the consummation of this offering and the formation transactions. Such indemnification is limited to $20.0 million in shares of our common stock and operating partnership units to be deposited into an escrow fund at closing of the formation transactions (or, if less, the fair market value of such shares and units) and is subject to a $1.0 million deductible.
For more detailed information regarding the terms of the formation transactions, including the benefits to related parties, please refer to "Structure and Formation of Our CompanyFormation Transactions."
Acquisition of Certain Properties Prior to the Formation Transactions
Through various transactions during the two years prior to this offering and the formation transactions, certain of the institutional funds acquired four of the properties to be acquired by us in the formation transactionsVillas at Royal Kunia, Moanalua Hillside Apartments, Trillium and Bishop Place.
Villas at Royal Kunia. On March 1, 2006, Douglas Emmett Realty Fund 2005, or DERF 2005, acquired the Villas at Royal Kunia from an unaffiliated third party for a purchase price of $114.0 million.
Moanalua Hillside Apartments. On January 14, 2005, DERF 2005 acquired Moanalua Hillside Apartments from an unaffiliated third party for a purchase price of $108.5 million.
Trillium. On January 6, 2005, Douglas Emmett Realty Fund 2002, or DERF 2002, acquired the Trillium from an unaffiliated third party for a purchase price of $162.0 million.
Bishop Place. On November 30, 2004, DERF 2002 acquired Bishop Place from an unaffiliated third party for a purchase price of $114.5 million.
DERA is the general partner of each of DERF 2002 and DERF 2005, and our predecessor principals are the sole stockholders of DERA. Each of our predecessor principals held interests, directly or indirectly, in DERF 2002 and DERF 2005 prior to the formation transactions and will receive their pro rata portion of the aggregate formation transaction consideration to be received by all holders of interests in DERF 2002 and DERF 2005. See "Structure and Formation of our Company"
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for additional information regarding the formation transactions and the benefits to related parties in connection therewith.
DERA Contribution
On March 15, 2006, Messrs. Emmett, Anderson, Kaplan and Panzer contributed $24.0 million, $12.0 million, $12.0 million and $12.0 million, respectively, or an aggregate of $60.0 million to DERA in the form of promissory notes. A portion of this amount may be used to fund capital commitments to the institutional fund formed in 2005 if and to the extent any capital calls are made by such fund prior to consummation of this offering pursuant to the applicable partnership agreement. On or prior to the closing of this offering, Messrs. Emmett, Anderson, Kaplan and Panzer expect to use a combination of their own cash or borrowings from a third-party financial institution to repay the promissory notes. Such loan is expected to be secured by shares of our common stock or operating partnership units that Messrs. Emmett, Anderson, Kaplan and Panzer will receive in the formation transactions. The full amount of the $60.0 million, whether retained by DERA or contributed to the 2005 institutional fund pursuant to a capital call, has the net effect of increasing the value of DERA by such amount, thereby resulting in an additional $60.0 million of common stock being exchanged for DERA in the formation transactions, based on the initial offering price to the public in this offering. Accordingly, the $60.0 million, less any amount that has been contributed to the 2005 institutional fund prior to the closing of this offering, will be acquired by us in the formation transactions pursuant to the DERA merger. Any of such amount that has been contributed to the 2005 institutional fund for asset acquisitions or other purposes will be acquired by us in the formation transactions in such form pursuant to the merger of the 2005 institutional fund.
The predecessor principals made the $60.0 million DERA contribution in part to facilitate acquisitions prior to this offering if appropriate opportunities arose, as well as to allow the predecessor principals to receive more shares of our common stock in the formation transactions.
Partnership Agreement
Concurrently with the completion of this offering, we will enter into the partnership agreement with the various persons receiving operating partnership units in the formation transactions, including certain of our predecessor principals, three of whom are directors and executive officers of our company, and certain other executive officers of our company. As a result, such persons will become limited partners of our operating partnership. See "Description of the Partnership Agreement of Douglas Emmett Properties, LP."
Pursuant to the partnership agreement, limited partners of our operating partnership will have rights beginning 14 months after the completion of this offering, to cause our operating partnership to redeem each of their units for cash equal to the then-current market value of one share of our common stock, or, at our election, to exchange their units for shares of our common stock on a one-for-one basis.
Registration Rights
We have entered into a registration rights agreement with the various persons receiving shares of our common stock and/or operating partnership units in the formation transactions, including our predecessor principals and certain of our executive officers. Under the registration rights agreement, subject to certain limitations, commencing not later than 14 months after the date of the this offering, we will file one or more registration statements covering the resale of the shares of our common stock issued in the formation transactions and the resale of the shares of our common stock issued or issuable, at our option, in exchange for operating partnership units issued in the formation transactions. We may, at our option, satisfy our obligation to prepare and file a resale registration statement with
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respect to shares of our common stock issuable upon exchange of operating partnership units received in the formation transactions by filing a registration statement providing for the issuance by us to the holders of such operating partnership units of shares of our common stock registered under the Securities Act in lieu of our operating partnership's obligation to pay cash for such operating partnership units. We have agreed to pay all of the expenses relating to a registration of such securities.
Under certain circumstances, we are required to undertake an underwritten offering under a resale registration statement filed by us as described above upon the written request of holders including the predecessor principals of at least 5% in the aggregate of the securities subject to the registration rights agreement, provided that we are not obligated to effect more than two underwritten offerings. See "Shares Eligible for Future SaleRegistration Rights."
Employment Agreements
We intend to enter into employment agreements with Messrs. Kaplan, Panzer and Kamer that will become effective upon the consummation of this offering. These agreements will provide for salary, bonuses and other benefits, including among other things, severance benefits upon a termination of employment under certain circumstances. See "ManagementEmployment Agreements."
Indemnification of Officers and Directors
We intend to enter into indemnification agreements with each of our executive officers and directors as described in "ManagementIndemnification Agreements." Please refer to that section for more detailed information regarding these agreements.
Brentwood Court Loan
Mr. Emmett loaned an aggregate of $550,000 to one of the single-asset entities, Brentwood Court, in 1998. The current maturity of the loan is January 1, 2008, and the loan pays interest at an annual rate equal to the Bank of America prime rate. For the years ended December 31, 2004 and 2005, Mr. Emmett received $23,921 and $12,245, respectively, in interest payments, and $103,159 and $165,000, respectively, in principal payments on this loan. In connection with the financing transactions, we will pay off the outstanding principal amount and accrued interest, which as of June 30, 2006 totaled approximately $281,841 and $2,162, respectively.
Offering Expenses Loan
As of June 30, 2006, the entities to be acquired by us in the formation transactions had advanced $7.1 million to us to fund costs of this offering and the formation transactions, which have been capitalized on our balance sheet and will be charged against the offering proceeds upon completion of this offering. See note M to our pro forma consolidated financial statements, included elsewhere in the prospectus.
Pre-Closing Cash Distributions
Pursuant to the formation transaction documents for the acquisition of our historical operating companies, Messrs. Emmett, Anderson, Kaplan and Panzer, as the sole stockholders of those entities, will receive, on or prior to the closing of such acquisitions by us, an assignment of each such company's right, title and interest in its cash (other than the $60.0 million DERA contribution) and its other current assets in excess of its current liabilities (excluding accrued employee benefits and future lease obligations). In the event that the current liabilities of DERA, DECO and PLE exceed current assets, our predecessor principals will make a contribution in the amount of the difference. We currently expect our predecessor principals to receive total distributions of $0.5 million in respect of such assets. We refer to these final operating distributions as the "pre-closing operating company distributions."
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Pursuant to the formation transaction documents relating to the acquisition of the institutional funds and the single-asset entities, our predecessor principals and certain of our executive officers, as indirect holders of the general partnership interests and/or direct holders of limited partnership interests in the institutional funds, and/or as holders of interests in the single-asset entities, as applicable, will receive, concurrently with the closing of this offering, their proportionate share of such entity's distribution to its equity holders of its good faith estimate of net operating income, less a capital expense allowance, for the period commencing on July 1, 2005 and ending on the closing date. The value of this distribution is expected to be approximately $2,582,224, $919,969, $872,564 and $884,652, respectively, to each of Messrs. Emmett, Anderson, Kaplan and Panzer, and approximately $2,932, $1,466, $2,029 and $1,466, respectively, to each of Mr. Kamer, Ms. Orr, Mr. Golad and Mr. Means. We refer to these final operating distributions as the "pre-closing property distributions."
Release of Owensmouth Guarantee
In connection with the refinancing of land owned by one of the single-asset entities, Mr. Emmett provided to the lender for the related financing a $3.0 million limited personal guarantee that takes effect in the event that LIBOR rises above 6.5%. As part of the financing transactions, all outstanding indebtedness secured by this property and guaranteed by Mr. Emmett will be repaid.
Intercompany Transactions Among Historical Operating Companies
During the year ended December 31, 2005 and for the six months ended June 30, 2006, the following transactions occurred among our historical operating companies, each of which is owned by our predecessor principals, and the institutional funds:
In addition, the institutional funds pay DECO property management fees based on percentages of the rental cash receipts collected by the properties. In 2005, the institutional funds expensed $9.0 million in fees and had $600,000 in accrued and unpaid property management fees, and for the six months ended June 30, 2006, the institutional funds expensed $4.7 million in fees and had $823,000 in accrued and unpaid property management fees. DECO also provides maintenance and management services to the single-asset entities. During 2005 and for the six months ended June 30, 2006, DECO was reimbursed $592,000 and $316,000, respectively, by the single-asset entities for such services.
Please refer to notes 10 and 11 to the consolidated financial statements of our predecessor for the year ended December 31, 2005 and the six months ended June 30, 2006, respectively, included elsewhere in this prospectus.
Payments to Directors and Officers
During the year ended December 31, 2005 and the six months ended June 30, 2006, Messrs. Emmett, Kaplan and Panzer received distributions in respect of their interests in DERA, DECO, PLE, the institutional funds, the investment funds and/or the single-asset entities. In addition, certain of our directors and executive officers also received employment compensation from DERA,
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DECO and/or PLE. For the year ended December 31, 2005, the value of these distributions and compensation was $12.5 million, $6.0 million and $6.1 million, respectively, to each of Messrs. Emmett, Kaplan and Panzer, and $875,000, $341,496, $308,717 and $321,495, respectively, to each of Mr. Kamer, Ms. Orr, Mr. Golad and Mr. Means. For the six months ended June 30, 2006, the value of these distributions and compensation was $6.5 million, $3.3 million and $3.3 million, respectively, to each of Messrs. Emmett, Kaplan and Panzer, and $287,502, $125,000, $127,078 and $125,000, respectively, to each of Mr. Kamer, Ms. Orr, Mr. Golad and Mr. Means.
Other Real Estate Investments of Mr. Emmett
In addition to the interests in the properties to be acquired by us in the formation transactions, Mr. Emmett also owns interests in three additional multifamily properties consisting of a total of 32 units. We will not acquire any interests in any of these properties in the formation transactions, nor have an option to purchase any of them as of the close of this offering. Mr. Emmett and entities controlled by him will retain their investment in these properties. Mr. Emmett may devote time to matters related to these other properties.
Bonus Payments
Prior to the consummation of this offering, DERA, DECO and PLE intend to pay cash bonuses in an aggregate amount of approximately $13.5 million to our employees. Mr. Kamer, Ms. Orr, Mr. Golad and Mr. Means will each receive $2,500,000, $1,500,000, $1,500,000 and $1,000,000, respectively, of this amount.
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STRUCTURE AND FORMATION OF OUR COMPANY
Our Operating Partnership
Following the consummation of this offering and the formation transactions, substantially all of our assets will be held, directly or indirectly, by, and our operations run through, our operating partnership. We will contribute the net proceeds from this offering to our operating partnership in exchange for units therein. Our interest in our operating partnership will entitle us to share in cash distributions from, and in the profits and losses of, our operating partnership in proportion to our percentage ownership. As the sole stockholder of the general partner of our operating partnership, we will generally have the exclusive power under the partnership agreement to manage and conduct its business, subject to certain limited approval and voting rights of the other limited partners described more fully below in "Description of the Partnership Agreement of Douglas Emmett Properties, LP." Our board of directors will manage the affairs of our company by directing the affairs of our operating partnership.
Beginning on or after the date which is 14 months after the consummation of this offering, limited partners of our operating partnership have the right to require our operating partnership to redeem part or all of their units for cash, or, at our election, shares of our common stock, based upon the fair market value of an equivalent number of shares of our common stock at the time of the redemption, subject to the ownership limits set forth in our charter and described under the section entitled "Description of SecuritiesRestrictions on Transfer." With each redemption of units, we will increase our percentage ownership interest in our operating partnership and our share of our operating partnership's cash distributions and profits and losses. See "Description of the Partnership Agreement of Douglas Emmett Properties, LP."
Formation Transactions
Prior to completion of the formation transactions, our predecessor principals owned all of the outstanding interests in our historical operating companies. These entities provide asset management, property management, leasing, tenant improvement construction, acquisition, repositioning, redevelopment and financing services primarily to the properties owned, directly or indirectly, by the nine institutional funds and eight single-asset entities that we will acquire in the formation transactions. The institutional funds are owned by our predecessor principals, certain of their related parties and a number of unaffiliated private investors, consisting of endowments, foundations, pension plans, banks, other institutional investors and high net worth individuals. DERA is the general partner of each institutional fund. In addition, DERA is the general partner of three investment funds that own interests in certain of the institutional funds. Our predecessor principals, certain of our executive officers and unaffiliated third parties own the three investment funds. Our predecessor principals, together with their related parties, own a significant portion of the interests in the single-asset entities, and unaffiliated third parties own the remaining interests in the single-asset entities.
Prior to or concurrently with the completion of this offering, we will engage in formation transactions that are designed to:
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We structured the formation transactions to minimize potential conflicts of interest. None of the predecessor principals or our executive officers elected to receive any cash in the formation transactions, and instead will receive only shares of our common stock and/or operating partnership units. They will, however, receive $5.8 million in respect of a final operating distribution payable to all holders of interests in the pre-formation transaction entities concurrently with the closing of the formation transactions. The predecessor principals also recently contributed an additional $60.0 million to DERA, the stock of which will be exchanged for shares of our common stock, valued at the initial public offering price to the public, in the formation transactions. In addition, we will not enter into any tax protection agreements in connection with the formation transactions.
Pursuant to the formation transactions, the following have occurred or will occur on or prior to the completion of this offering. All amounts are based on the mid-point of the range set forth on the cover page of this prospectus:
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13,954,112 units in our operating partnership. Our predecessor principals recently contributed an aggregate of $60.0 million to DERA, a portion of which may be used to fund capital commitments for one of the institutional funds. The $60.0 million has the net effect of increasing the value of DERA by such amount, thereby resulting in an additional $60.0 million of our common stock being exchanged for DERA in the formation transactions. Such shares will be valued at the initial offering price to the public of our common stock. In addition, our predecessor principals have entered into a contribution agreement, dated as of June 15, 2006, with our operating partnership with respect to their interests in PLE, pursuant to which they will contribute their shares in such predecessor operating company in exchange for an aggregate of 90,402 units in the operating partnership.
institutional funds, investments funds and single-asset entities pursuant to merger or contribution transactions. In addition, we will redeem the preferred minority interests in two of the institutional funds for cash. Our operating partnership has also entered into a contribution agreement with the holder of minority interests in subsidiaries of certain institutional funds, pursuant to which such minority interests will be contributed to our operating partnership. In such transactions, each limited partner that is an accredited investor will receive, pursuant to its prior irrevocable election (or, in the absence of an election, pursuant to the default provisions in the applicable transaction document), cash and/or units of our operating partnership or shares of our common stock for its interests in the applicable entities. Holders that are not accredited investors will receive cash whether or not they made a different election. Holders that are accredited investors and that do not make an election will receive only common stock. Pursuant to the contribution agreement, holders that are accredited investors and that elected to receive common stock for all or a part of their interests will contribute such interests directly to us for shares of our common stock. The general partnership interest in each of the institutional funds and the investment funds will remain issued and outstanding, and no consideration will be delivered therefor, as such interest will be acquired by us in the DERA merger described above.
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and the value of the total consideration payable to prior investors must be at least $1.0 billion. Assuming an offering price based on the mid-point of the range set forth on the cover page of this prospectus, we currently expect to pay to the prior investors $1.38 billion in cash and issue to the prior investors 50,512,427 operating partnership units and 58,617,573 shares of common stock in the aggregate in these merger and contribution transactions. The aggregate value of this consideration will be $3.57 billion. If the underwriters' over-allotment option is exercised in full, we expect to pay to the prior investors $1.55 billion in cash and issue to the prior investors 49,574,538 operating partnership units and 51,305,462 shares of common stock, with an aggregate consideration value of $3.57 billion. The aggregate consideration value does not include the pre-closing property distributions or the pre-closing operating company distributions described above.
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outstanding, excluding loan premium, upon consummation of this offering, the formation transactions and the financing transactions.
Pricing Sensitivity
Assuming an offering price at the mid-point of the range of prices set forth on the cover page of this prospectus, the cash required to consummate the formation transactions will be $1.38 billion, which would be provided as follows:
The cash required to consummate the formation transactions differs slightly from the amount set forth in our pro forma financial statements by $2.3 million. Our pro forma financial statements assume cash on hand of $150 million and our cash required to consummate the formation transactions is $147.7 million based on our current estimated cash on hand.
If we do not price at the mid-point of the range of prices set forth on the cover page of this prospectus, the aggregate of the number of shares of our common stock and of the number of operating partnership units issued to the prior investors in the formation transactions would not change, but the cash consideration required would change as would the value of the aggregate consideration paid. In addition, there would be a slight change in the number of shares of common stock versus the number of operating partnership units issued to the prior investors. See "Pricing
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Sensitivity Analysis" for additional information. The following table sets forth the cash payments to prior investors, the sources of cash and the aggregate value of the consideration paid to the prior investors in the formation transactions at the low-, mid- and high-points of the range of prices set forth on the cover page of this prospectus. If this offering prices at the high end of the range, we expect to draw on our senior secured revolving credit facility for the additional cash required.
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Price Per Share in this Offering (in millions)
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19.00
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20.00
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21.00
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Cash payments to prior investors | $ | 1,314.4 | $ | 1,383.6 | $ | 1,452.8 | |||
Expected cash from this offering | 981.5 | 1,033.6 | 1,085.7 | ||||||
Expected cash on hand | 147.7 | 147.7 | 147.7 | ||||||
Expected cash from financing activities | 202.3 | 202.3 | 202.3 | ||||||
Borrowing from senior secured line of credit | | | 17.1 | ||||||
Additional cash on hand after offering and formation transactions | 17.1 | | | ||||||
Aggregate value of total consideration paid to prior investors | $ | 3,387.9 | $ | 3,566.2 | $ | 3,744.5 |
If the underwriters' over-allotment option is exercised in full, we will use the additional gross proceeds to increase the cash payments to the prior investors in the formation transactions and to correspondingly reduce the equity consideration payable. As a result, the prior investors would receive an aggregate of 51,782,106, 51,305,462 or 50,870,187 shares of our common stock and 49,097,894, 49,574,538 or 50,009,813 operating partnership units with aggregate values of $1.92 billion, $2.02 billion and $2.12 billion at the low-, mid- and high-points of the range of prices set forth on the cover page of this prospectus, and cash of $1.47 billion, $1.55 billion and $1.63 billion at the low-, mid- and high-points of the range of prices set forth on the cover page of this prospectus. For additional information on how a change in price from the mid-point affects information in this prospectus, please refer to "Pricing Sensitivity Analysis."
Consequences of this Offering, the Formation Transactions and the Financing Transactions
The completion of this offering, the formation transactions and the financing transactions will have the following consequences. All amounts are based on the mid-point of the range set forth on the cover page of this prospectus:
over-allotment option is exercised in full, the continuing investors, including our predecessor principals and our executive officers, will own 44.8% of our outstanding common stock, or 62.8% on a fully diluted basis.
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The aggregate historical net tangible book value of the assets we will acquire in the formation transactions was approximately $478.0 million as of June 30, 2006. In exchange for these assets, we will pay $1.38 billion in cash, and we will issue 50,512,427 operating partnership units and 58,617,573 shares of our common stock with a combined aggregate value for such cash, operating partnership units and common stock of $3.57 billion, based on the mid-point of the range set forth on the cover page of this prospectus. If the underwriters' over-allotment option is exercised in full, we will pay $1.55 billion in cash, and we will issue 49,574,538 operating partnership units and 51,305,462 shares of our common stock with a combined aggregate value for such cash, operating partnership units and common stock of $3.57 billion, based upon the mid-point of the range set forth on the cover page of this prospectus. The initial public offering price does not necessarily bear any relationship to the book value or the fair market value of our assets.
Pricing Sensitivity
If we do not price at the mid-point of the range of prices set forth on the cover page of this prospectus, the aggregate number of shares of our common stock and operating partnership units issued to the continuing investors in the formation transactions would not change, but the number of shares of common stock versus operating partnership units would change, as would the aggregate value of the consideration paid to prior investors in the formation transactions. In addition, our total consolidated indebtedness would increase at the high-point of the range and would remain the same at the low- and mid-points of the range. The following table sets forth the percentage ownership of our common stock and our common stock and operating partnership units on an aggregate basis by the continuing investors, our total outstanding indebtedness and the aggregate value of the consideration paid to the prior investors in the formation transactions at the low-, mid- and high-points of the range of prices set forth on the cover page of this prospectus. If this offering prices at the high end of the range, we expect to draw on our senior secured revolving credit facility for the additional cash required.
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Price Per Share in this Offering (in millions)
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19.00
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20.00
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21.00
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Ownership of common stock by continuing investors | 51.8 | % | 51.6 | % | 51.4 | % | ||||
Ownership of common stock and operating partnership units by continuing investors | 66.5 | % | 66.5 | % | 66.5 | % | ||||
Total consolidated indebtedness, excluding the loan premium | $ | 2,750.0 | $ | 2,750.0 | $ | 2,767.1 | ||||
Aggregate value of consideration paid to prior investors | $ | 3,387.9 | $ | 3,566.2 | $ | 3,744.5 |
If the underwriters' over-allotment option is exercised in full, we will use the additional gross proceeds to increase the cash payments to the prior investors in the formation transactions and to correspondingly reduce the equity consideration payable. As a result, the prior investors would receive an aggregate of 51,782,106, 51,305,462 or 50,870,187 shares of our common stock and 49,097,894, 49,574,538 or 50,009,813 operating partnership units, representing 45.0% and 29.8%, 44.8% and 30.0%, or 44.6% and 30.4% of the common stock and operating partnership units, respectively, at the low-, mid- and high-points of the range of prices set forth on the cover page of this prospectus, and aggregate formation transaction consideration value of $3.39 billion, $3.57 billion and $3.74 billion at the low-, mid- and high-points of the range of prices set forth on the cover page of this prospectus. For additional information on how a change in price from the mid-point affects information in this prospectus, please refer to "Pricing Sensitivity Analysis."
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The following diagram depicts our ownership structure upon completion of this offering and the formation transactions, assuming an initial public offering price equal to the mid-point of the range set forth on the cover page of this prospectus. The diagram reflects outstanding vested LTIP units, but not stock options. (1) For a discussion of how a change in price from the mid-point affects the information below, please refer to "Pricing Sensitivity Analysis."
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Benefits of the Formation Transactions and the Offering to Certain Parties
In connection with this offering, employment arrangements, the formation transactions and the financing transactions, our predecessor principals and certain of our executive officers will receive material benefits, including the following. Amounts below are based on the mid-point of the range set forth on the cover page of this prospectus. The initial public offering price does not necessarily bear any relationship to our book value or the fair market value of the assets to be acquired.
represented by 2,801,467 shares, 4,839,466 units, 420,000 vested LTIP units and 2,488,889 vested stock options.
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Continuing investors, including our predecessor principals, holding shares of our common stock or units in our operating partnership as a result of the formation transactions will have rights beginning 14 months after the completion of this offering:
Pricing Sensitivity
If we do not price at the mid-point of the range of prices set forth on the cover page of this prospectus, the aggregate number of shares of our common stock and operating partnership units issued to related parties will change, but a change in price will not result in any cash consideration being paid to any of the related parties in the formation transactions. The number and value of the operating partnership units and shares of common stock that we will issue in the formation transactions to our predecessor principals will increase or decrease, respectively, as the offering price increases or decreases, however, the aggregate number of all shares of common stock and limited partnership units issued to continuing investors as a group will not change. Please refer to "Pricing Sensitivity Analysis" for additional information. The following table sets forth the aggregate number of shares of our
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common stock and operating partnership units that will be owned by our predecessor principals upon consummation of this offering and the formation transactions.
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Price Per Share
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$19.00
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$20.00
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$21.00
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Mr. Emmett | 18,882,497 | 19,025,289 | 19,156,372 | |||
Mr. Kaplan | 7,503,192 | 7,575,677 | 7,642,093 | |||
Mr. Panzer | 7,568,361 | 7,640,933 | 7,707,428 | |||
Mr. Anderson | 7,692,533 | 7,760,140 | 7,822,144 |
Any exercise of the underwriters' over-allotment option will not affect the number of shares of our common stock and operating partnership units issued to our predecessor principals and our executive officers. For additional information on how a change in price from the mid-point affects information in this prospectus, please refer to "Pricing Sensitivity Analysis."
Determination of Offering Price
Prior to this offering, there has been no public market for our common stock. The initial public offering price will be negotiated between the representatives of the underwriters and us. In determining the initial public offering price of our common stock, the representatives of the underwriters will consider the history and prospects for the industry in which we compete, our financial information, the ability of our management and our business potential and earning prospects, the prevailing securities markets at the time of this offering, and the recent market prices of, and the demand for, publicly traded shares of generally comparable companies. The initial public offering price does not necessarily bear any relationship to the book value of our assets or the assets to be acquired in the formation transactions, our financial condition or any other established criteria of value and may not be indicative of the market price for our common stock after this offering. We have not obtained any third-party appraisals of the properties and other assets to be acquired by us in connection with this offering or the formation transactions. The consideration to be given by us for our properties and other assets in the formation transactions may exceed the fair market value of these properties and assets. See "Risk FactorsRisks Related to Our Properties and Our BusinessThe price we will pay for the assets to be acquired in the formation transactions may exceed their aggregate fair market value."
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Throughout this prospectus, we provide certain information on the assumption that we price our shares at the mid-point of the range of prices set forth on the cover page of this prospectus. However, certain of this information will be affected if the actual price per share in this offering is different from that mid-point. The following are examples of how the information set forth in this prospectus is affected by a change in the offering price from the mid-point of the range of prices set forth on the cover page of this prospectus (assuming that the underwriters' over-allotment option is not exercised):
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Any decrease in the actual offering price from that mid-point will have an equal but opposite impact. The following table sets forth certain of this information at low-, mid- and high-points of the range of prices set forth on the cover page of this prospectus:
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Price per Share ($ in millions)
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$19.00
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$20.00
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$21.00
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Offering | |||||||||||
Shares (in thousands) | 55,000 | 55,000 | 55,000 | ||||||||
Gross proceeds from offering | $ | 1,045 | $ | 1,100 | $ | 1,155 | |||||
Estimated net proceeds from offering | $ | 982 | $ | 1,034 | $ | 1,086 | |||||
Formation Transaction Consideration |
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Shares of common stock to be issued (in thousands) | 59,084 | 58,618 | 58,192 | ||||||||
Operating partnership units to be issued (in thousands) | 50,046 | 50,512 | 50,938 | ||||||||
Value of equity to be issued | $ | 2,073 | $ | 2,183 | $ | 2,292 | |||||
Cash payment to prior investors | $ | 1,315 | $ | 1,384 | $ | 1,453 | |||||
Value of aggregate consideration required for formation transactions | $ | 3,388 | $ | 3,566 | $ | 3,745 | |||||
Cash Sources (Requirements) |
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Estimated cash on hand(1) | $ | 148 | $ | 148 | $ | 148 | |||||
Net proceeds of this offering | $ | 982 | $ | 1,034 | $ | 1,086 | |||||
Net proceeds from financing transactions | $ | 202 | $ | 202 | $ | 202 | |||||
Borrowing from senior secured revolving credit facility | $ | | $ | | $ | 17 | |||||
Cash required for formation transactions | $ | 1,315 | $ | 1,384 | $ | 1,453 | |||||
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Additional cash on hand after offering and formation transactions | $ | 17 | $ | | $ | | |||||
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Pro Forma Debt |
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Pro forma debt (excluding loan premium) | $ | 2,750 | $ | 2,750 | $ | 2,767 | |||||
Pro forma debt to total market capitalization (excluding loan premium) | 46.6 | % | 45.5 | % | 44.4 | % | |||||
Equity Ownership Percentages after Offering (Fully Diluted) |
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Percentage owned by public | 32.3 | % | 32.3 | % | 32.3 | % | |||||
Percentage owned by continuing investors other than principals and executive officers(2) | 39.6 | 39.4 | 39.2 | ||||||||
Percentage owned by principals and executive officers(3) | 28.1 | 28.3 | 28.5 | ||||||||
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100.0 | % | 100.0 | % | 100.0 | % | ||||||
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If the underwriters' over-allotment option is exercised in full:
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The exercise of the underwriters' over-allotment option will not affect the aggregate value of the consideration issued in the formation transactions, the aggregate combined number of shares of common stock and operating partnership units that our predecessor principals and executive officers will own or the total amount of our outstanding indebtedness.
In addition, an offering price above or below the mid-point of the range of prices set forth on the cover page of this prospectus will affect our pro forma consolidated financial statements, as described under "Notes to Unaudited Pro Forma Financial StatementsPricing Sensitivity Analysis."
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POLICIES WITH RESPECT TO CERTAIN ACTIVITIES
The following is a discussion of certain of our investment, financing and other policies. These policies have been determined by our board of directors and, in general, may be amended or revised from time to time by our board of directors without a vote of our stockholders.
Investment Policies
Investment in Real Estate or Interests in Real Estate
Our investment objectives are to provide quarterly cash dividends and achieve long-term capital appreciation through increases in the value of our company. We have not established a specific policy regarding the relative priority of these investment objectives. For a discussion of the properties and our acquisition and other strategic objectives, see "Business and Properties."
We expect to pursue our investment objectives primarily through the ownership, directly or indirectly, by our operating partnership of the properties to be acquired by us in the formation transactions. We currently intend to invest primarily in office and multifamily properties, including potential acquisitions of existing improved properties or properties in need of redevelopment. Future investment or development activities will not be limited to any geographic area, product type or to a specified percentage of our assets. While we may diversify in terms of property locations, size and market or submarket, we do not have any limit on the amount or percentage of our assets that may be invested in any one property or any one geographic area. We intend to engage in such future investment or development activities in a manner that is consistent with the maintenance of our status as a REIT for federal income tax purposes. In addition, we may purchase or lease income-producing commercial and other types of properties for long-term investment, expand and improve the properties we presently own or other acquired properties, or sell such properties, in whole or in part, when circumstances warrant.
We may also participate with third parties in property ownership, through joint ventures or other types of co-ownership. We also may acquire real estate or interests in real estate in exchange for the issuance of common stock, units, preferred stock or options to purchase stock.
Equity investments in acquired properties may be subject to existing mortgage financing and other indebtedness or to new indebtedness which may be incurred in connection with acquiring or refinancing these investments. Debt service on such financing or indebtedness will have a priority over any dividends with respect to our common stock. Investments are also subject to our policy not to be treated as an investment company under the Investment Company Act of 1940, as amended, or the 1940 Act.
Investments in Real Estate Mortgages
Our current portfolio consists primarily of, and our business objectives emphasize, equity investments in office and multifamily real estate. Although we do not presently intend to invest in mortgages or deeds of trust, other than in a manner that is ancillary to an equity investment, we may elect, in our discretion, to invest in mortgages and other types of real estate interests, including, without limitation, participating or convertible mortgages; provided , in each case, that such investment is consistent with our qualification as a REIT. Investments in real estate mortgages run the risk that one or more borrowers may default under certain mortgages and that the collateral securing certain mortgages may not be sufficient to enable us to recoup our full investment.
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Securities of or Interests in Persons Primarily Engaged in Real Estate Activities and Other Issuers
Subject to the percentage of ownership limitations and gross income tests necessary for REIT qualification, we may invest in securities of other REITs, other entities engaged in real estate activities or securities of other issuers, including for the purpose of exercising control over such entities.
Investment in Other Securities
Other than as described above, we do not intend to invest in any additional securities such as bonds, preferred stocks or common stock.
Dispositions
We do not currently intend to dispose of any of our properties, although we reserve the right to do so if, based upon management's periodic review of our portfolio, our board of directors determines that such action would be in the best interest of our stockholders. In addition, we may elect to enter into joint ventures or other types of co-ownership with respect to properties that we already own, either in connection with acquiring interests in other properties (as discussed above in "Investment in Real Estate or Interests in Real Estate") or from investors to raise equity capital. Certain directors and executive officers who hold units may have their decision as to the desirability of a proposed disposition influenced by the tax consequences to them resulting from the disposition of a certain property. See "Risk FactorsRisks Related to Our Organization and StructureTax consequences to holders of operating partnership units upon a sale or refinancing of our properties may cause the interests of our senior management to differ from your own."
Financing Policies
Our board of directors has adopted a policy of limiting our indebtedness to approximately 65% of our total market capitalization at the time of incurrence. Our total market capitalization is defined as the sum of the market value of our outstanding common stock, plus the aggregate value of outstanding operating partnership units not owned by us, including vested LTIP units, plus the book value of our total consolidated indebtedness, excluding loan premium. Since this ratio is based, in part, upon market values of equity, it will fluctuate with changes in the price of our common stock. We believe, however, that this ratio provides an appropriate indication of leverage for a company whose assets are primarily real estate. We expect that our ratio of debt to total market capitalization upon consummation of this offering will be approximately 45.5%.
Our charter and bylaws do not limit the amount or percentage of indebtedness that we may incur. Our board of directors may from time to time modify our debt policy in light of then-current economic conditions, relative costs of debt and equity capital, market values of our properties, general conditions in the market for debt and equity securities, fluctuations in the market price of our common stock, growth and acquisition opportunities and other factors. Accordingly, our board of directors may increase or decrease our ratio of debt to total market capitalization beyond the limits described above. If these policies were changed, we could become more highly leveraged, resulting in an increased risk of default on our obligations and a related increase in debt service requirements that could adversely affect our financial condition and results of operations and our ability to pay dividends to our stockholders.
Conflict of Interest Policies
Sale or Refinancing of Properties. Upon the sale or refinancing of certain of the properties to be acquired by us in the formation transactions, some holders of operating partnership units, including our predecessor principals, may suffer different and more adverse tax consequences than holders of our common stock. Consequently, holders of operating partnership unit may have differing objectives
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regarding the appropriate pricing and timing of any such sale or repayment of indebtedness. We will have the exclusive authority under the partnership agreement, as the sole stockholder of the general partner of our operating partnership, to determine whether, when, and on what terms to sell a property or when to refinance or repay indebtedness, any such decision would require the approval of our board of directors. See "Description of the Partnership Agreement of Douglas Emmett Properties, LP."
Certain of our directors and executive officers may be subject to certain conflicts of interest in fulfilling their responsibilities to us. We have adopted certain policies that are designed to eliminate or minimize certain potential conflicts of interest. In addition, our board of directors is subject to certain provisions of Maryland law, which are also designed to eliminate or minimize conflicts. See "Material Provisions of Maryland Law and of our Charter and BylawsInterested Director and Officer Transactions" and "Material Provisions of Maryland Law and of our Charter and BylawsBusiness Opportunities."
Policies With Respect To Other Activities
We have authority to offer common stock, units, preferred stock, options to purchase stock or other securities in exchange for property, repurchase or otherwise acquire our common stock or other securities in the open market or otherwise, and we may engage in such activities in the future. As described in "Description of the Partnership Agreement of Douglas Emmett Properties, LP," we expect, but are not obligated, to issue common stock to holders of units upon exercise of their redemption rights. Except in connection with the formation transactions or pursuant to our stock incentive plan, we have not issued common stock, units or any other securities in exchange for property or any other purpose, although, as discussed above in "Investment in Real Estate or Interests in Real Estate," we may elect to do so. After the consummation of the formation transactions, our board of directors has no present intention of causing us to repurchase any common stock, although we may do so in the future. We may issue preferred stock from time to time, in one or more series, as authorized by our board of directors without the need for stockholder approval. See "Description of SecuritiesPreferred Stock." We have not engaged in trading, underwriting or agency distribution or sale of securities of other issuers other than our operating partnership and do not intend to do so. At all times, we intend to make investments in such a manner as to qualify as a REIT, unless because of circumstances or changes in the Code, or the Treasury regulations, our board of directors determines that it is no longer in our best interest to qualify as a REIT. We have not made any loans to third parties, although we may make loans to third parties, including, without limitation, to joint ventures in which we participate. We intend to make investments in such a way that we will not be treated as an investment company under the 1940 Act.
Reporting Policies
We intend to make available to our stockholders our annual reports, including our audited financial statements. After this offering, we will become subject to the information reporting requirements of the Securities Exchange Act of 1934, as amended, or the Exchange Act. Pursuant to those requirements, we will be required to file annual and periodic reports, proxy statements and other information, including audited financial statements, with the SEC.
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DESCRIPTION OF THE
PARTNERSHIP AGREEMENT OF DOUGLAS EMMETT PROPERTIES, LP
A summary of the material provisions of the Agreement of Limited Partnership of Douglas Emmett Properties, LP, which we refer to as the partnership agreement, is set forth below. The following description does not purport to be complete and is subject to and qualified in its entirety by reference to applicable provisions of the Delaware Revised Uniform Limited Partnership Act and the partnership agreement for the operating partnership. We have filed a copy of the partnership agreement as an exhibit to the registration statement of which this prospectus is a part.
General
Upon completion of the formation transactions, substantially all of our assets will be held by, and substantially all of our operations will be conducted through, the operating partnership, either directly or through subsidiaries. We are the sole stockholder of the general partner of the operating partnership. The general partner is a Delaware limited liability company and owns a 1% general partnership interest in the operating partnership. We are also a limited partner of the operating partnership, and we own, either directly or through subsidiaries including the general partner, 68.9% of the outstanding interests in the operating partnership through our ownership of operating partnership units, assuming an offering price at the mid-point of the range set forth on the cover page of this prospectus.
Units are also held by persons who contributed interests in properties and/or other assets to the operating partnership. All holders of units in the operating partnership (including the general partner in its capacity as such and us in our capacity as a limited partner) are entitled to share in cash distributions from, and in the profits and losses of, the operating partnership in proportion to their respective percentage interests in the operating partnership. The units in the operating partnership will not be listed on any exchange or quoted on any national market system.
Provisions in the partnership agreement may delay or make more difficult unsolicited acquisitions of us or changes in our control. These provisions could discourage third parties from making proposals involving an unsolicited acquisition of us or change of our control, although some stockholders might consider such proposals, if made, desirable. Such provisions also make it more difficult for third parties to alter the management structure of the operating partnership without the concurrence of our board of directors. These provisions include, among others:
Purposes, Business and Management
The purpose of the operating partnership includes the conduct of any business that may be conducted lawfully by a limited partnership formed under the Delaware Revised Uniform Limited Partnership Act, except that the partnership agreement for the operating partnership requires the business of the operating partnership to be conducted in such a manner that will permit us to be classified as a REIT under Sections 856 through 860 of the Code. Subject to the foregoing limitation, the operating partnership may enter into partnerships, joint ventures or similar arrangements and may
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own interests in any other entity. The general partner shall cause the operating partnership not to take, or to refrain from taking, any action that, in its judgment, in its sole and absolute discretion:
unless, in any such case, such action described in the bullet points above is specifically consented to by us.
In general, our board of directors will manage the affairs of the operating partnership by directing our affairs, in our capacity as the sole stockholder of the general partner of the operating partnership.
Except as otherwise expressly provided in the partnership agreement or as delegated or provided to an additional partner by the general partner or any successor general partner pursuant to the partnership agreement, all management powers over the business and affairs of the operating partnership are exclusively vested in the general partner. No limited partner or any other person to whom one or more partnership units have been transferred may, in its capacity as a limited partner, take part in the operations, management or control of the operating partnership's business, transact any business in the operating partnership's name or have the power to sign documents for or otherwise bind the operating partnership. The general partner may not be removed by the limited partners with or without cause, except with the general partner's consent. In addition to the powers granted to the general partner under applicable law or that are granted to the general partner under any other provision of the partnership agreement, the general partner, subject to the other provisions of the partnership agreement, has full power and authority to do all things deemed necessary or desirable by the general partner to conduct the business of the operating partnership, to exercise all powers of the operating partnership and to effectuate the purposes of the operating partnership. The operating partnership may incur debt or enter into other similar credit, guarantee, financing or refinancing arrangements for any purpose, including, without limitation, in connection with any acquisition of properties, upon such terms as the general partnership determines to be appropriate. With limited exceptions, the general partner is authorized to execute, deliver and perform agreements and transactions on behalf of the operating partnership without any further act, approval or vote of the limited partners.
Restrictions on General Partner's Authority
The general partner may not take any action in contravention of the partnership agreement. The general partner may not, without the prior consent of the limited partners (including us), undertake, on behalf of the operating partnership, any of the following actions or enter into any transaction that would have the effect of such actions:
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The general partner generally may not withdraw as general partner from the operating partnership nor transfer all of its interest in the operating partnership without the consent of a majority in interest of the limited partners (including us), subject to the exceptions discussed in "Transfers and WithdrawalsRestrictions on General Partner."
In addition, the general partner may not amend the partnership agreement for the operating partnership or take any action on behalf of the operating partnership, without the prior consent of each limited partner adversely affected by such amendment or action, if such amendment or action would:
Additional Limited Partners
The general partner is authorized to admit additional limited partners to the operating partnership from time to time, on terms and conditions and for such capital contributions as may be established in its sole and absolute discretion. The net capital contribution need not be equal for all limited partners. No person may be admitted as an additional limited partner without the general partner's consent, which consent may be given or withheld in its sole and absolute discretion.
No action or consent by the limited partners is required in connection with the admission of any additional limited partner. The general partner is expressly authorized to cause the operating partnership to issue additional units:
Subject to Delaware law, any additional units may be issued in one or more classes, or one or more series of any of such classes, with such designations, preferences and relative, participating, optional or other special rights, powers and duties (including, without limitation, rights, powers and duties that may be senior or otherwise entitled to preference over existing units) as the general partner shall determine, in its sole and absolute discretion without the approval of any limited partner or any other person. Without limiting the generality of the foregoing, the general partner has authority to specify:
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Ability to Engage in Other Businesses; Conflicts of Interest
We may not conduct any business other than in connection with the ownership, acquisition and disposition of partnership interests, the management of the business of the operating partnership, our operation as a reporting company with a class or classes of securities registered under the Exchange Act, our operations as a REIT, the offering, sale, syndication, private placement or public offering of stock, bonds, securities or other interests, financing or refinancing of any type related to the operating partnership or its assets or activities, and such activities as are incidental to those activities discussed above. We may, however, in our sole and absolute discretion, from time to time hold or acquire assets in our own name or otherwise other than through the operating partnership so long as we take commercially reasonable measures to insure that the economic benefits and burdens of such property are otherwise vested in the operating partnership.
Distributions
Subject to the terms of any partnership unit designation, the general partner shall cause the operating partnership to distribute quarterly, or on a more or less frequent basis as we determine, all, or such portion as we may in our sole and absolute discretion determine, of Available Cash (as such term is defined in the partnership agreement for the operating partnership) generated by the operating partnership during such quarter to the partners and limited partners:
To the extent we own properties outside the operating partnership, any income we receive in connection with the activities from those properties will result in a recalculation of distributions from the operating partnership such that we and the limited partners would each receive the same distributions that we and they would have received had we contributed such properties to the operating partnership.
Borrowing by the Operating Partnership
The general partner is authorized to cause the operating partnership to borrow money and to issue and guarantee debt as it deems necessary for the conduct of the activities of the operating partnership. Such debt may be secured, among other things, by mortgages, deeds of trust, liens or encumbrances on properties of the operating partnership.
Reimbursement of Us; Transactions with Our Affiliates and Us
Our subsidiary does not receive any compensation for its services as the general partner of the operating partnership. We, as a limited partner in the operating partnership, have the same right to allocations and distributions as other partners and limited partners. In addition, the operating
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partnership will reimburse us for all expenses incurred by us in connection with the operating partnership's business, including expenses relating to the ownership of interests in and management and operation of, or for the benefit of, the operating partnership, compensation of officers and employees, including, without limitation, payments under our future compensation plans that may provide for stock units, or phantom stock, pursuant to which our employees will receive payments based upon dividends on or the value of our common shares, director or manager fees and expenses and all costs and expenses that we incur in connection with our being a public company, including costs of filings with the SEC, reports and other distributions to our stockholders. The operating partnership will reimburse us for all expenses incurred by us relating to any other offering of capital stock, including any underwriting discounts or commissions in such case based on the percentage of the net proceeds from such issuance contributed to or otherwise made available to the operating partnership.
Except as expressly permitted by the partnership agreement for the operating partnership, we and our affiliates may not engage in any transactions with the operating partnership except on terms that are fair and reasonable and no less favorable to the operating partnership than would be obtained from an unaffiliated third party.
Our Liability and that of the Limited Partners
We, as the sole stockholder of the general partner of the operating partnership, are ultimately liable for all general recourse obligations of the operating partnership to the extent not paid by the operating partnership. We are not liable for the nonrecourse obligations of the operating partnership.
The limited partners are not required to make additional contributions to the operating partnership. Assuming that a limited partner does not take part in the control of the business of the operating partnership, the liability of the limited partner for obligations of the operating partnership under the partnership agreement for the operating partnership and the Delaware Revised Uniform Limited Partnership Act is limited, subject to limited exceptions, generally to the loss of the limited partner's investment in the operating partnership represented by such limited partner's units. The operating partnership will operate in a manner we deem reasonable, necessary and appropriate to preserve the limited liability of the limited partners.
Exculpation and Indemnification of Us
The partnership agreement for the operating partnership generally provides that we, as sole stockholder of the general partner, the general partner, and any of our respective directors or officers will incur no liability to the operating partnership, or any limited partner or assignee, for losses sustained or liabilities incurred or benefits not derived as a result of errors in judgment, mistakes of law or of any act or omission if we, the general partner or such officer or director acted in good faith. In addition, we, as sole stockholder of the general partner, and the general partner are not responsible for any misconduct or negligence on the part of our agents, provided we appointed such agents in good faith. We, as sole stockholder of the general partner, and the general partner may consult with legal counsel, accountants, appraisers, management consultants, investment bankers and other consultants and advisors, and any action we take or omit to take in reliance upon the opinion of such persons, as to matters which we, as sole stockholder of the general partner, and the general partner reasonably believe to be within their professional or expert competence, shall be conclusively presumed to have been done or omitted in good faith and in accordance with such opinion.
The partnership agreement for the operating partnership also provides for the indemnification, to the fullest extent permitted by law, of us, as sole stockholder of the general partner, of the general partner, of our directors and officers, and of such other persons as the general partner may from time to time designate against any and all losses, claims, damages, liabilities, joint or several, expenses, judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits
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or proceedings in which such person may be involved that relate to the operations of the operating partnership, provided that such person will not be indemnified for (i) any act or omission of such person that was material to the matter giving rise to the action and either was committed in bad faith or was the result of active and deliberate dishonesty, (ii) in the case of any criminal proceeding, any act or omission that such person had reason to believe was unlawful, or (iii) any transaction for which such person received an improper personal benefit in violation or breach of any provision of the partnership agreement for the operating partnership.
Sales of Assets
Under the partnership agreement for the operating partnership, the general partner generally has the exclusive authority to sell all or substantially all of the assets of the operating partnership. However, in connection with the acquisition of properties from persons to whom the general partner issued units as part of the purchase price, in order to preserve such persons' tax deferral, the general partner may contractually agree, in general, not to sell or otherwise transfer the properties for a specified period of time, or in some instances, not to sell or otherwise transfer the properties without compensating the sellers of the properties for their loss of the tax deferral. No tax indemnification is being provided with respect to the sale of property by any participant in the formation transactions.
Redemption Rights of Qualifying Parties
After fourteen months of becoming a holder of units, each limited partner (other than us) and some assignees have the right, subject to the terms and conditions set forth in the partnership agreement for the operating partnership, to require the operating partnership to redeem all or a portion of the units held by such party in exchange for a cash amount equal to the value of our common shares, as determined in accordance with the partnership agreement for the operating partnership. The operating partnership's obligation to effect a redemption, however, will not arise or be binding against the operating partnership unless and until we decline or fail to exercise our prior and independent right to purchase such units for common shares, pursuant to the partnership agreement for the operating partnership.
On or before the close of business on the fifth business day after a limited partner gives us a notice of redemption, we may, in our sole and absolute discretion but subject to the restrictions on the ownership of our stock imposed under our Articles of Incorporation and the transfer restrictions and other limitations set forth in our Articles of Incorporation, acquire some or all of the tendered units from the tendering party in exchange for common shares, based on an exchange ratio of one common share for each unit, subject to adjustment as provided in the partnership agreement for the operating partnership. The partnership agreement for the operating partnership does not obligate us or any general partner to register, qualify or list any common shares issued in exchange for units with the SEC, with any state securities commissioner, department or agency, or with any stock exchange. Common shares issued in exchange for units pursuant to the partnership agreement for the operating partnership may contain legends regarding restrictions under the Securities Act and applicable state securities laws as we in good faith determine to be necessary or advisable in order to ensure compliance with securities laws.
Transfers and Withdrawals
Restrictions on Transfer
The partnership agreement for the operating partnership restricts the transferability of units. Any transfer or purported transfer of a unit not made in accordance with the partnership agreement for the operating partnership will not be valid. Until the expiration of fourteen months from the date on which
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a limited partner acquired units, such limited partner generally may not transfer all or any portion of its units to any transferee.
After the expiration of fourteen months from the date on which a limited partner acquired units, such limited partner has the right to transfer all or any portion of its units to any person that is an "accredited investor," subject to the satisfaction of conditions specified in the partnership agreement for the operating partnership, including our right of first refusal. For purposes of this transfer restriction, "accredited investor" shall have the meaning set forth in Rule 501 promulgated under the Securities Act. It is a condition to any transfer that the transferee assumes by operation of law or express agreement all of the obligations of the transferor limited partner under the partnership agreement for the operating partnership with respect to such units, and no such transfer will relieve the transferor limited partner of its obligations under the partnership agreement for the operating partnership without our approval, in our sole and absolute discretion. This transfer restriction does not apply to a statutory merger or consolidation pursuant to which all obligations and liabilities of the limited partner are assumed by a successor corporation by operation of law.
In connection with any transfer of partnership interests or units, we will have the right to receive an opinion of counsel reasonably satisfactory to us to the effect that the proposed transfer may be effected without registration under the Securities Act, and will not otherwise violate any federal or state securities laws or regulations applicable to the operating partnership or the partnership interests or units transferred.
No transfer by a limited partner of its units, including any redemption or any acquisition of partnership interests or units by us or by the operating partnership, may be made to any person if:
In addition, we have a right of first refusal with respect to any proposed transfers by other limited partners, exercisable within ten business days of notice of the transfer and a description of the proposed consideration to be paid for the operating partnership units.
Substituted Limited Partners
No limited partner will have the right to substitute a transferee as a limited partner in its place. A transferee of the interest of a limited partner may be admitted as a substituted limited partner only with our consent, which consent may be given or withheld in our sole and absolute discretion. If we in our sole and absolute discretion, do not consent to the admission of any permitted transferee as a substituted limited partner, such transferee will be considered an assignee for purposes of the partnership agreement for the operating partnership. An assignee will be entitled to all the rights of an assignee of a limited partnership interest under the Delaware Revised Uniform Limited Partnership Act, including the right to receive distributions from the operating partnership and the share of net income, net losses and other items of income, gain, loss, deduction and credit of the operating partnership attributable to the units assigned to such transferee and the rights to transfer the units provided in the partnership agreement for the operating partnership, but will not be deemed to be a holder of units for any other purpose under the partnership agreement for the operating partnership, and will not be entitled to effect a consent or vote with respect to such units on any matter presented to the limited partners for approval. The right to consent or vote, to the extent provided in the partnership agreement for the operating partnership or under the Delaware Revised Uniform Limited Partnership Act, will fully remain with the transferor limited partner.
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Restrictions on General Partner
The general partner may not transfer any of its general partner interest (other than to us or our affiliates) or withdraw from managing the operating partnership unless:
Restrictions on Mergers, Sales, Transfers and Other Significant Transactions Involving Us
We may merge, consolidate or otherwise combine our assets with another entity, or sell all or substantially all of our assets, or reclassify, recapitalize or change the terms of our outstanding common equity interests without the consent of a majority in interest of the other limited partners, so long as:
Amendment of the Partnership Agreement for the Operating Partnership
Amendments to the partnership agreement for the operating partnership may be proposed only by the general partner or by limited partners holding 25% percent or more of the partnership interests held by limited partners (excluding us). Following such proposal, the general partner will submit to the partners and limited partners any proposed amendment that, pursuant to the terms of the partnership agreement, requires the consent of the general partner and a majority in interest of the limited partners holding units entitled to vote at the meeting. The general partner will seek the written consent of the partners and limited partners, if applicable, on the proposed amendment or will call a meeting to vote on the proposed amendment and to transact any other business that it may deem appropriate.
Amendment by the General Partner Without the Consent of the Limited Partners
The general partner has the power, without the consent of the limited partners, to amend the partnership agreement for the operating partnership as may be required to facilitate or implement any of the following purposes:
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other provisions of the partnership agreement for the operating partnership, or make other changes with respect to matters arising under the partnership agreement for the operating partnership that will not be inconsistent with law or with the provisions of the partnership agreement for the operating partnership;
Amendment with the Consent of the Limited Partners
The general partner may amend the partnership agreement for the operating partnership only with the consent of the limited partners in certain circumstances. See "Restrictions on General Partner's Authority."
Procedures for Actions and Consents of Partners
Meetings of the partners may be called only by the general partner. Notice of any such meeting will be given to all partners not less than seven days nor more than 60 days prior to the date of such meeting. Partners may vote in person or by proxy at such meeting. Each meeting of partners will be conducted by the general partner or such other person as it may appoint pursuant to such rules for the conduct of the meeting as it or such other person deems appropriate in its sole and absolute discretion. Whenever the vote or consent of partners is permitted or required under the partnership agreement for the operating partnership, such vote or consent may be given at a meeting of partners or may be given by written consent. Any action required or permitted to be taken at a meeting of the partners may be taken without a meeting if a written consent setting forth the action so taken is signed by partners holding a majority of outstanding partnership interests (or such other percentage as is expressly required by the partnership agreement for the operating partnership for the action in question).
Dissolution
The operating partnership will dissolve, and its affairs will be wound up, upon the first to occur of any of the following:
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Upon dissolution we, the general partner, or, in the event that there is no remaining general partner, a liquidator will proceed to liquidate the assets of the operating partnership and apply the proceeds from such liquidation in the order of priority set forth in the partnership agreement for the operating partnership.
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The following summary of the terms of the stock of our company does not purport to be complete and is subject to and qualified in its entirety by reference to our charter and bylaws, copies of which are filed as exhibits to the registration statement of which this prospectus forms a part. See "Where You Can Find More Information."
Our charter provides that we may issue up to 750,000,000 shares of common stock, $0.01 par value per share, and 200,000,000 shares of preferred stock, $0.01 par value per share. Our charter authorizes our board of directors to amend our charter to increase or decrease the aggregate number of authorized shares or the number of authorized shares of any class or series without stockholder approval. Upon completion of this offering, 113,617,575 shares of our common stock and no shares of preferred stock will be issued and outstanding. Under Maryland law, stockholders generally are not liable for the corporation's debts or obligations.
All shares of our common stock offered hereby will be duly authorized, fully paid and nonassessable upon issuance as provided herein. Subject to the preferential rights of any other class or series of stock and to the provisions of the charter regarding the restrictions on transfer of stock, holders of shares of our common stock are entitled to receive dividends on such stock if, as and when authorized by our board of directors out of assets legally available therefor and declared by us and to share ratably in the assets of our company legally available for distribution to our stockholders in the event of our liquidation, dissolution or winding up after payment of or adequate provision for all known debts and liabilities of our company.
Subject to the provisions of our charter regarding the restrictions on transfer of stock and except as may otherwise be specified in the terms of any class or series of common stock, each outstanding share of our common stock entitles the holder to one vote on all matters submitted to a vote of stockholders, including the election of directors and, except as provided with respect to any other class or series of stock, the holders of such shares will possess the exclusive voting power. There is no cumulative voting in the election of our board of directors, which means that the holders of a majority of the outstanding shares of our common stock can elect all of the directors then standing for election and the holders of the remaining shares will not be able to elect any directors.
Holders of shares of our common stock have no preference, conversion, exchange, sinking fund, redemption or appraisal rights and have no preemptive rights to subscribe for any securities of our company. Subject to the provisions of the charter regarding the restrictions on transfer of stock, shares of our common stock will have equal dividend, liquidation and other rights.
Under the MGCL, a Maryland corporation generally cannot dissolve, amend its charter, merge, sell all or substantially all of its assets, engage in a share exchange or engage in similar transactions outside the ordinary course of business unless approved by the affirmative vote of stockholders holding at least two-thirds of the shares entitled to vote on the matter unless a lesser percentage (but not less than a majority of all of the votes entitled to be cast on the matter) is set forth in the corporation's charter. Our charter provides for approval by the affirmative vote of stockholders holding two-thirds of all of the votes entitled to be cast on the matter in these situations, including the sale of all or substantially all of our assets and our subsidiaries' assets taken as a whole, except that amendments to our charter (other than any amendment to the provisions regarding director removal and the vote for extraordinary transactions) may be approved by the affirmative vote of stockholders holding a majority of the votes entitled to be cast on the amendment.
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Our charter authorizes our board of directors to reclassify any unissued shares of our common stock into other classes or series of classes of stock and to establish the number of shares in each class or series and to set the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption for each such class or series.
Our charter authorizes our board of directors to classify any unissued shares of preferred stock and to reclassify any previously classified but unissued shares of any series. Prior to issuance of shares of each series, our board of directors is required by the MGCL and our charter to set, subject to the provisions of our charter regarding the restrictions on transfer of stock, the terms, preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications and terms or conditions of redemption for each such series. Thus, our board of directors could authorize the issuance of shares of preferred stock with terms and conditions which could have the effect of delaying, deferring or preventing a transaction or a change of control of our company that might involve a premium price for holders of our common stock or otherwise be in their best interest. As of the date hereof, no shares of preferred stock are outstanding and we have no present plans to issue any preferred stock.
Power to Increase Authorized Stock and Issue Additional Shares of our Common Stock and Preferred Stock
We believe that the power of our board of directors to increase the number of authorized shares of stock, issue additional authorized but unissued shares of our common stock or preferred stock and to classify or reclassify unissued shares of our common stock or preferred stock and thereafter to cause us to issue such classified or reclassified shares of stock will provide us with increased flexibility in structuring possible future financings and acquisitions and in meeting other needs which might arise. Shares of additional classes or series of stock, as well as of common stock, will be available for issuance without further action by our stockholders, unless stockholder consent is required by applicable law or the rules of any stock exchange or automated quotation system on which our securities may be listed or traded. Although our board of directors does not intend to do so, it could authorize us to issue a class or series that could, depending upon the terms of the particular class or series, delay, defer or prevent a transaction or a change of control of our company that might involve a premium price for our stockholders or otherwise be in their best interest.
In order for us to qualify as a REIT under the Code, our stock must be beneficially owned by 100 or more persons during at least 335 days of a taxable year of 12 months (other than the first year for which an election to be a REIT has been made) or during a proportionate part of a shorter taxable year. Also, not more than 50% of the value of the outstanding shares of stock may be owned, directly or indirectly, by five or fewer individuals (as defined in the Code to include certain entities such as qualified pension plans) during the last half of a taxable year (other than the first year for which an election to be a REIT has been made).
Our charter contains restrictions on the ownership and transfer of our stock. The relevant sections of our charter provide that, subject to the exceptions described below, no person or entity may beneficially own, or be deemed to own by virtue of the applicable constructive ownership provisions of the Code, more than 5.0% in value of the aggregate of our outstanding shares of stock or more than 5.0% of the outstanding shares of our common stock. We refer to this restriction as the "ownership limit." A person or entity that becomes subject to the ownership limit by virtue of a violative transfer that results in a transfer to a trust, as set forth below, is referred to as a "purported beneficial
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transferee" if, had the violative transfer been effective, the person or entity would have been a record owner and beneficial owner or solely a beneficial owner of our stock, or is referred to as a "purported record transferee" if, had the violative transfer been effective, the person or entity would have been solely a record owner of our stock.
The constructive ownership rules under the Code are complex and may cause stock owned actually or constructively by a group of related individuals and/or entities to be owned constructively by one individual or entity. As a result, the acquisition of less than 5.0% in value of our outstanding stock or less than 5.0% of the value or number of our common stock (or the acquisition of an interest in an entity that owns, actually or constructively, our stock) by an individual or entity, could, nevertheless cause that individual or entity, or another individual or entity, to own constructively in excess of 5.0% in value of our outstanding stock or 5.0% of the value or number of our outstanding common stock and thereby subject such stock to the applicable ownership limit.
Our board of directors may, in its sole discretion, waive the ownership limit with respect to a particular stockholder if it determines, based on representations and undertakings it may obtain from the stockholder that:
As a condition of such waiver, our board of directors may also require an opinion of counsel or IRS ruling satisfactory to our board of directors with respect to preserving our REIT status. Our board of directors intends to waive the ownership limit for each of Messrs. Emmett, Kaplan and Panzer, permitting them each to own up to 13.0% of the value or number of shares of our outstanding common stock.
In connection with the waiver of the ownership limit or at any other time, our board of directors may decrease the ownership limit for all other persons and entities; provided, however, that the decreased ownership limit will not be effective for any person or entity whose percentage ownership in our stock is in excess of such decreased ownership limit until such time as such person or entity's percentage of our stock equals or falls below the decreased ownership limit, but any further acquisition of our stock in excess of such percentage ownership of our stock will be in violation of the ownership limit. Additionally, the new ownership limit may not allow five or fewer stockholders to beneficially own more than 49.9% in value of our outstanding stock.
Our charter provisions further prohibit:
Any person who acquires or attempts or intends to acquire beneficial or constructive ownership of shares of our stock that will or may violate any of the foregoing restrictions on transferability and ownership will be required to give notice immediately to us and provide us with such other information
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as we may request in order to determine the effect of such transfer on our status as a REIT. The foregoing provisions on transferability and ownership will not apply if our board of directors determines that it is no longer in our best interests to attempt to qualify, or to continue to qualify, as a REIT.
Pursuant to our charter, if any purported transfer of our stock or any other event would otherwise result in any person violating the ownership limit or such other limit as established by our board of directors or would result in our being "closely held" under Section 856(h) of the Code or otherwise failing to qualify as a REIT, then that number of shares in excess of the ownership limit or causing us to be "closely held" or otherwise to fail to qualify as a REIT (rounded up to the nearest whole) will be automatically transferred to, and held by, a trust for the exclusive benefit of one or more charitable organizations selected by us. The automatic transfer will be effective as of the close of business on the business day prior to the date of the violative transfer or other event that results in a transfer to the trust. Any dividend or other distribution paid to the purported record transferee, prior to our discovery that the shares had been automatically transferred to a trust as described above, must be repaid to the trustee upon demand for distribution to the beneficiary of the trust. If the transfer to the trust as described above is not automatically effective, for any reason, to prevent violation of the applicable ownership limit or our being "closely held" or otherwise failing to qualify as a REIT, then our charter provides that the transfer of the excess shares will be void. If any transfer would result in shares of our stock being beneficially owned by fewer than 100 persons, then any such purported transfer will be void and of no force or effect.
Shares of our stock transferred to the trustee are deemed to be offered for sale to us or our designee at a price per share equal to the lesser of (i) the price paid by the purported record transferee for the shares (or, if the event which resulted in the transfer to the trust did not involve a purchase of such shares of our stock at market price, the last reported sales price reported on the New York Stock Exchange on the trading day immediately preceding the day of the event which resulted in the transfer of such shares of our stock to the trust) and (ii) the market price on the date we accept, or our designee accepts, such offer. We have the right to accept such offer until the trustee has sold the shares of our stock held in the trust pursuant to the clauses discussed below. Upon a sale to us, the interest of the charitable beneficiary in the shares sold terminates and the trustee must distribute the net proceeds of the sale to the purported record transferee and any dividends or other distributions held by the trustee with respect to such stock will be paid to the charitable beneficiary.
If we do not buy the shares, the trustee must, within 20 days of receiving notice from us of the transfer of shares to the trust, sell the shares to a person or entity designated by the trustee who could own the shares without violating the ownership limits or as otherwise permitted by our board of directors. After that, the trustee must distribute to the purported record transferee an amount equal to the lesser of (i) the price paid by the purported record transferee or owner for the shares (or, if the event which resulted in the transfer to the trust did not involve a purchase of such shares at market price, the last reported sales price reported on the New York Stock Exchange on the trading day immediately preceding the relevant date) and (ii) the sales proceeds (net of commissions and other expenses of sale) received by the trust for the shares. Any net sales proceeds in excess of the amount payable to the purported record transferee will be immediately paid to the charitable beneficiary, together with any dividends or other distributions thereon. In addition, if prior to discovery by us that shares of our stock have been transferred to a trust, such shares of stock are sold by a purported record transferee, then such shares shall be deemed to have been sold on behalf of the trust and to the extent that the purported record transferee received an amount for or in respect of such shares that exceeds the amount that such purported record transferee was entitled to receive, such excess amount shall be paid to the trustee upon demand. The purported beneficial transferee or purported record transferee has no rights in the shares held by the trustee.
The trustee shall be designated by us and shall be unaffiliated with us and with any purported record transferee or purported beneficial transferee. Prior to the sale of any shares by the trust, the
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trustee will receive, in trust for the beneficiary, all dividends and other distributions paid by us with respect to the shares, and may also exercise all voting rights with respect to the shares.
Subject to Maryland law, effective as of the date that the shares have been transferred to the trust, the trustee shall have the authority, at the trustee's sole discretion:
However, if we have already taken irreversible corporate action, then the trustee may not rescind and recast the vote.
In addition, if our board of directors or other permitted designees determine in good faith that a proposed transfer would violate the restrictions on ownership and transfer of our stock set forth in our charter, our board of directors or other permitted designees will take such action as it deems or they deem advisable to refuse to give effect to or to prevent such transfer, including, but not limited to, causing the company to redeem shares of common stock or preferred stock, refusing to give effect to the transfer on our books or instituting proceedings to enjoin the transfer.
Any beneficial owner or constructive owner of shares of our common stock and any person or entity (including the stockholder of record) who is holding shares of our common stock for a beneficial owner must, on request, provide us with a completed questionnaire containing the information regarding their ownership of such shares, as set forth in the applicable Treasury regulations. In addition, any person or entity that is a beneficial owner or constructive owner of shares of our common stock and any person or entity (including the stockholder of record) who is holding shares of our common stock for a beneficial owner or constructive owner shall, on request, be required to disclose to us in writing such information as we may request in order to determine the effect, if any, of such stockholder's actual and constructive ownership of shares of our common stock on our status as a REIT and to ensure compliance with the ownership limit, or as otherwise permitted by our board of directors.
All certificates representing shares of our common stock bear a legend referring to the restrictions described above.
These ownership limits could delay, defer or prevent a transaction or a change of control of our company that might involve a premium price for our common stock or otherwise be in the best interest of our stockholders.
The transfer agent and registrar for our common stock is Computershare Investor Services.
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MATERIAL PROVISIONS OF MARYLAND LAW AND OF OUR CHARTER AND BYLAWS
The following summary of certain provisions of Maryland law and of our charter and bylaws does not purport to be complete and is subject to and qualified in its entirety by reference to Maryland law and to our charter and bylaws, copies of which are filed as exhibits to the registration statement of which this prospectus forms a part. See "Where You Can Find More Information."
Our bylaws provide that the number of directors of our company may be established by our board of directors but may not be fewer than the minimum number permitted under the MGCL nor more than 15. Except as may be provided by our board of directors in setting the terms of any class or series of stock, any vacancy may be filled only by a vote of a majority of the remaining directors, even if the remaining directors do not constitute a quorum. Any director elected to fill a vacancy shall serve for the remainder of the full term of the directorship in which the vacancy occurred and until a successor is elected and qualifies.
Pursuant to our charter, each of our directors is elected by our stockholders to serve until the next annual meeting and until their successors are duly elected and qualify. Holders of shares of our common stock will have no right to cumulative voting in the election of directors. Consequently, at each annual meeting of stockholders, the holders of a majority of the shares of our common stock will be able to elect all of our directors.
Our charter provides that a director may be removed only for cause (as defined in our charter) and only by the affirmative vote of at least two-thirds of the votes entitled to be cast generally in the election of directors. This provision, when coupled with the exclusive power of our board of directors to fill vacant directorships, precludes stockholders from removing incumbent directors and filling the vacancies created by such removal with their own nominees, except upon the existence of cause for removal and a substantial affirmative vote.
Consideration of Non-Stockholder Constituencies
Our charter provides that in considering a potential acquisition of control of our company, our board of directors may consider the potential effect of the acquisition on (i) our stockholders, employees, suppliers and creditors and (ii) the communities in which our offices or other establishments are located. Inclusion of this provision does not create an inference concerning factors that may be considered by our board regarding a potential acquisition of control but could, depending on the circumstances, delay, defer or prevent a transaction or change of control of our company that might involve a premium price for our stockholders or otherwise be in their best interest.
Under the MGCL, certain "business combinations" (including a merger, consolidation, share exchange or, in certain circumstances, an asset transfer or issuance or reclassification of equity securities) between a Maryland corporation and an interested stockholder (defined as any person who beneficially owns 10% or more of the voting power of the corporation's shares or an affiliate of the corporation who, at any time within the two-year period prior to the date in question, was the beneficial owner of 10% or more of the voting power of the then-outstanding voting stock of the corporation), or an affiliate of an interested stockholder are prohibited for five years after the most recent date on which the interested stockholder becomes an interested stockholder. A person is not an interested stockholder under the statute if the board of directors approved in advance the transaction
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by which the person otherwise would have become an interested stockholder. Our board of directors may provide that its approval is subject to compliance with any terms and conditions determined by it.
Any such business combination entered into after the five-year prohibition must be recommended by the board of directors of such corporation and approved by the affirmative vote of at least (a) 80% of the votes entitled to be cast by holders of outstanding shares of voting stock of the corporation and (b) two-thirds of the votes entitled to be cast by holders of voting stock of the corporation other than shares held by the interested stockholder with whom (or with whose affiliate) the business combination is to be effected, unless, among other conditions, the corporation's common stockholders receive a minimum price (as defined in the MGCL) for their shares and the consideration is received in cash or in the same form as previously paid by the interested stockholder for its shares.
These provisions of the MGCL do not apply, however, to business combinations that are approved or exempted by a board of directors prior to the time that the interested stockholder becomes an interested stockholder. Our board of directors has elected to opt-out from the business combination provisions of the MGCL; however, our board of directors may elect to opt-in to such provisions at any time.
The MGCL provides that "control shares" of a Maryland corporation acquired in a "control share acquisition" have no voting rights except to the extent approved at a special meeting by the affirmative vote of two-thirds of the votes entitled to be cast on the matter, excluding shares of stock in a corporation in respect of which any of the following persons is entitled to exercise or direct the exercise of the voting power of shares of stock of the corporation in the election of directors: (i) a person who makes or proposes to make a control share acquisition, (ii) an officer of the corporation or (iii) an employee of the corporation who is also a director of the corporation. "Control shares" are voting shares of stock which, if aggregated with all other such shares of stock previously acquired by the acquiror or in respect of which the acquiror is able to exercise or direct the exercise of voting power (except solely by virtue of a revocable proxy), would entitle the acquiror to exercise voting power in electing directors within one of the following ranges of voting power: (i) one-tenth or more but less than one-third, (ii) one-third or more but less than a majority, or (iii) a majority or more of all voting power. Control shares do not include shares the acquiring person is then entitled to vote as a result of having previously obtained stockholder approval. A "control share acquisition" means the acquisition of control shares, subject to certain exceptions.
A person who has made or proposes to make a control share acquisition, upon satisfaction of certain conditions (including an undertaking to pay expenses), may compel our board of directors to call a special meeting of stockholders to be held within 50 days of demand to consider the voting rights of the shares. If no request for a meeting is made, the corporation may itself present the question at any stockholders meeting.
If voting rights are not approved at the meeting or if the acquiring person does not deliver an acquiring person statement as required by the statute, then, subject to certain conditions and limitations, the corporation may redeem any or all of the control shares (except those for which voting rights have previously been approved) for fair value determined, without regard to the absence of voting rights for the control shares, as of the date of the last control share acquisition by the acquiror or of any meeting of stockholders at which the voting rights of such shares are considered and not approved. If voting rights for control shares are approved at a stockholders meeting and the acquiror becomes entitled to vote a majority of the shares entitled to vote, all other stockholders may exercise appraisal rights. The fair value of the shares as determined for purposes of such appraisal rights may not be less than the highest price per share paid by the acquiror in the control share acquisition.
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The control share acquisition statute does not apply (a) to shares acquired in a merger, consolidation or share exchange if the corporation is a party to the transaction or (b) to acquisitions approved or exempted by the charter or bylaws of the corporation.
Our bylaws contain a provision exempting from the control share acquisition statute any and all acquisitions by any person of our common stock. However, the board of directors can, at any time, elect to have these provisions of the MGCL apply to our company by amending our bylaws. There can be no assurance that such provision will not be amended or eliminated at any time in the future.
Title 3, Subtitle 8 of the MGCL permits a Maryland corporation with a class of equity securities registered under the Securities Exchange Act of 1934 and at least three independent directors to elect to be subject, by provision in its charter or bylaws or a resolution of its board of directors and notwithstanding any contrary provision in the charter or bylaws, to any of (1) a classified board, (2) a two-thirds vote requirement for removing a director, (3) a requirement that the number of directors be fixed only by vote of the directors, (4) a requirement that a vacancy on the board be filled only by the remaining directors and for the remainder of the full term of the class of directors in which the vacancy occurred, or (5) a majority requirement for the calling of a special meeting of stockholders. Pursuant to Subtitle 8, we have elected to provide that vacancies on our board may be filled only by the remaining directors and for the remainder of the full term of the directorship in which the vacancy occurred. Through provisions in our charter and bylaws unrelated to Subtitle 8, we already require a two-thirds vote for the removal of any director from the board, vest in the board the exclusive power to fix the number of directorships and require, unless called by the chairman of our board, our president, our chief executive officer or the board, the request of holders of a majority of outstanding shares to call a special meeting.
Interested Director and Officer Transactions
Pursuant to the MGCL, a contract or other transaction between us and a director or between us and any other corporation or other entity in which any of our directors is a director or has a material financial interest is not void or voidable solely on the grounds of such common directorship or interest, the presence of such director at the meeting at which the contract or transaction is authorized, approved or ratified or the counting of the director's vote in favor thereof, if:
Furthermore, under Delaware law (where our operating partnership is formed), we, as general partner, have a fiduciary duty to our operating partnership and, consequently, such transactions also are subject to the duties of care and loyalty that we, as general partner, owe to limited partners in our operating partnership (to the extent such duties have not been eliminated pursuant to the terms of the partnership agreement). We will adopt a policy which requires that all contracts and transactions between us, our operating partnership or any of our subsidiaries, on the one hand, and any of our directors or executive officers or any entity in which such director or executive officer is a director or
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has a material financial interest, on the other hand, must be approved by the affirmative vote of a majority of the disinterested directors, even if less than a quorum. Where appropriate in the judgment of the disinterested directors, our board of directors may obtain a fairness opinion or engage independent counsel to represent the interests of non-affiliated security holders, although our board of directors will have no obligation to do so.
Our charter, other than its provisions on removal of directors and the vote required for extraordinary transctions, may be amended only if such amendment is declared advisable by our board of directors and approved by the affirmative vote of the holders of not less than a majority of all of the votes entitled to be cast on the matter. The provisions of our charter relating to the removal of directors and the vote required for extraordinary transactions may be amended only if such amendment is declared advisable by our board of directors and approved by the affirmative vote of the holders of not less than two-thirds of all of the votes entitled to be cast on the matter.
Transactions Outside the Ordinary Course of Business
We may not merge with or into another company, sell all or substantially all of our assets (including our assets and our subsidiaries' assets taken as a whole), engage in a share exchange or engage in similar transactions outside the ordinary course of business unless declared advisable by our board of directors and approved by the affirmative vote of the holders of not less than two-thirds of all of the votes entitled to be cast on the matter.
The dissolution of our company must be declared advisable by a majority of our entire board of directors and approved by the affirmative vote of the holders of not less than two-thirds of all of the votes entitled to be cast on the matter.
Advance Notice of Director Nominations and New Business
Our bylaws provide that:
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Anti-takeover Effect of Certain Provisions of Maryland Law and of Our Charter and Bylaws
The provisions of our charter relating to the removal of directors, consideration of non-stockholder constituencies in a potential acquisition of control and the restriction or transfer of our stock and the advance notice provisions of the bylaws could delay, defer or prevent a transaction or a change of control of our company that might involve a premium price for holders of our common stock or otherwise be in their best interest. Likewise, if our company's board of directors were to opt in to the business combination provisions of the MGCL, the classified board provision of Subtitle 8 or if the provision in the bylaws opting out of the control share acquisition provisions of the MGCL were rescinded, these provisions of the MGCL could have similar anti-takeover effects.
Indemnification and Limitation of Directors' and Officers' Liability
The MGCL permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from actual receipt of an improper benefit or profit in money, property or services or active and deliberate dishonesty established by a final judgment as being material to the cause of action. Our charter contains such a provision which eliminates such liability to the maximum extent permitted by Maryland law.
Our charter authorizes us, to the maximum extent that Maryland law in effect from time to time permits, to obligate us to indemnify any present or former director or officer or any individual who, while a director or officer of our company and at our request, serves or has served another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or other enterprise as a director, officer, partner or trustee, from and against any claim or liability to which that individual may become subject or which that individual may incur by reason of his or her service in any such capacity and to pay or reimburse his or her reasonable expenses in advance of final disposition of a proceeding. Our bylaws obligate us, to the fullest extent permitted by Maryland law in effect from time to time, to indemnify and, without requiring a preliminary determination of the ultimate entitlement to indemnification, pay or reimburse reasonable expenses in advance of final disposition of a proceeding to:
Our charter and bylaws also permit us to indemnify and advance expenses to any person who served a predecessor of ours in any of the capacities described above and to any employee or agent of our company or a predecessor of our company.
The MGCL requires a corporation (unless its charter provides otherwise, which our charter does not) to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made or threatened to be made a party by reason of his or her service in that capacity. The MGCL permits a corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be
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made or are threatened to be made a party by reason of their service in those or other capacities unless it is established that:
However, under the MGCL, a Maryland corporation may not indemnify for an adverse judgment in a suit by or in the right of the corporation or for a judgment of liability on the basis that personal benefit was improperly received, unless in either case a court orders indemnification and then only for expenses.
In addition, the MGCL permits a corporation to advance reasonable expenses to a director or officer upon the corporation's receipt of:
The partnership agreement provides that we, as general partner, and our officers and directors are indemnified to the fullest extent permitted by Delaware law. See "Description of the Partnership Agreement of Douglas Emmett Properties, LPIndemnification and Limitation of Liability."
Insofar as the foregoing provisions permit indemnification of directors, officers or persons controlling us for liability arising under the Securities Act, we have been informed that in the opinion of the SEC, this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
We have entered into an indemnification agreement with each of our executive officers and directors as described in "ManagementIndemnification Agreements."
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SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of this offering, based upon an offering price at the mid-point of the range set forth on the cover page of this prospectus, we expect to have outstanding 113,617,573 shares of our common stock, including if the underwriters' over-allotment option is exercised in full. In addition, a total of 67,012,427 shares of our common stock are reserved for issuance upon exchange of operating partnership units, exercise of stock options and exchange of LTIP units issued under our stock incentive plan.
Of these shares, the 55,000,000 shares sold in this offering (63,250,000 shares if underwriters' over-allotment option is exercised in full) will be freely transferable without restriction or further registration under the Securities Act, subject to the limitations on ownership set forth in our charter, except for any shares held by our "affiliates," as that term is defined by Rule 144 under the Securities Act. The remaining 58,617,573 shares issued in the formation transactions (51,305,462 if the underwriters' over-allotment option is exercised in full), plus other shares issued to our officers, directors and employees, plus any shares purchased by affiliates in this offering plus the shares of our common stock owned upon redemption or exchange of units will be "restricted shares" as defined in Rule 144 and may not be sold unless registered under the Securities Act or sold in accordance with any exemption from registration, including Rule 144.
Prior to this offering, there has been no public market for our common stock. Trading of our common stock on the New York Stock Exchange is expected to commence immediately following the completion of this offering. No prediction can be made as to the effect, if any, that future sales of shares, or the availability of shares for future sale, will have on the market price prevailing from time to time. Sales of substantial amounts of our common stock (including shares issued upon the exchange of units or the exercise of stock options), or the perception that such sales occur, could adversely affect prevailing market prices of our common stock. See "Risk FactorsRisks Related to this OfferingThere has been no public market for our common stock prior to this offering" and "Description of the Partnership Agreement of Douglas Emmett Properties, LPTransferability of Interests."
In general, under Rule 144 as currently in effect, beginning 90 days after the date of this prospectus, a person who has beneficially owned restricted shares of our common stock for at least one year would be entitled to sell, within any three month period, that number of shares that does not exceed the greater of:
Sales under Rule 144 are also subject to manner of sale provisions, notice requirements and the availability of current public information about us.
In connection with the formation transactions, our operating partnership will issue an aggregate of 50,512,427 units to the continuing investors (49,574,538 if the underwriters' over-allotment option is exercised in full). Beginning on or after the date which is 14 months after the consummation of this
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offering, limited partners of our operating partnership have the right to require our operating partnership to redeem part or all of their units for cash, or, at our election, shares of our common stock, based upon the fair market value of an equivalent number of shares of our common stock at the time of the redemption, subject to the ownership limits set forth in our charter and described under the section entitled "Description of SecuritiesRestrictions on Transfer." See "Description of the Partnership Agreement of Douglas Emmett Properties, LP."
We have granted those persons who will receive common stock and operating partnership units in the formation transactions certain registration rights with respect to such shares of common stock and any shares of our common stock that may be acquired by them in connection with the redemption of the operating partnership units in accordance with the partnership agreement. These registration rights require us to seek to register all such shares of our common stock effective as of that date which is 14 months following completion of this offering. We will bear expenses incident to our registration requirements under the registration rights, except that such expenses shall not include any underwriting fees, discounts or commissions or any out-of-pocket expenses of the persons exercising the redemption/exchange rights or transfer taxes, if any, relating to such shares. Under certain circumstances, we are required to undertake an underwritten offering under a resale registration statement filed by us as described above upon the written request of holders including the predecessor principals of at least 5% in the aggregate of the securities subject to the registration rights agreement, provided that we are not obligated to effect more than two underwritten offerings.
We intend to adopt our 2006 Omnibus Stock Incentive Plan prior to the consummation of this offering. The stock incentive plan provides for the grant of incentive awards to all full-time and part-time officers, employees, directors and other key persons (including consultants and prospective employees). We intend to issue 5,742,221 stock options and 1,044,000 LTIP units to officers, directors and key employees immediately prior to the consummation of this offering, and intend to reserve an additional 9,713,779 shares of our common stock for issuance under our stock incentive plan.
We anticipate that we will file a registration statement with respect to the shares of our common stock issuable under our 2006 Omnibus Stock Incentive Plan following the consummation of this offering. Shares of our common stock covered by this registration statement, including shares of our common stock issuable upon the exercise of options or restricted shares of our common stock, will be eligible for transfer or resale without restriction under the Securities Act unless held by affiliates.
Lock-up Agreements and Other Contractual Restrictions on Resale
In addition to the limits placed on the sale of shares of our common stock by operation of Rule 144 and other provisions of the Securities Act, we, the predecessor principals and our other directors and executive officers and each of the other continuing investors have agreed with the underwriters that, subject to certain limited exceptions, without the prior written consent of each of Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Citigroup Global Markets Inc., we and they will not directly or indirectly, (1) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of common stock (including, without limitation, shares of common stock that may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and shares of common stock that may be issued upon exercise of any options or warrants) or securities convertible into or exercisable or exchangeable for common stock, (including operating partnership units), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in
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part, any of the economic consequences of ownership of the common stock, (3) make any demand for or exercise any right or file or cause to be filed a registration statement with respect to the registration of any shares of common stock or securities convertible, exercisable or exchangeable into common stock or any of our other securities, or (4) publicly disclose the intention to do any of the foregoing for a period of 360 days after the date of this prospectus, in the case of the predecessor principals and our other directors and executive officers, and 180 days after the date of this prospectus, in the case of the other continuing investors. These lock-up agreements are subject to exceptions, including dispositions by gift, will or intestacy; transfers to immediate family members or entities wholly owned by or for the benefit of a continuing investor, its affiliates or members of its immediate family; dispositions to a corporation that is owned by a continuing investor and its affiliates alone or with other continuing investors; distributions to partners, members or stockholders of a continuing investor; and dispositions to charitable organizations. For continuing investors other than the predecessor principals and any director or executive officer, the foregoing restrictions will not apply to shares of our common stock that are purchased in the open market.
The 360-day and 180-day restricted periods described in the preceding paragraph will be extended, subject to certain exceptions, if:
in which case the restrictions described in the preceding paragraph will continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or material event.
Individuals who purchase shares in the directed share program will be subject to a 180-day lockup period from the date of this prospectus on the same basis as described above for continuing investors other than the predecessor principals, including, if applicable, the extension period. The predecessor principals are subject to a 360-day lockup.
Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Citigroup Global Markets Inc., in their sole discretion, may release the common stock and other securities subject to the lock-up agreements described above in whole or in part at any time with or without notice. When determining whether or not to release common stock and other securities from lock-up agreements, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Citigroup Global Markets Inc. will consider, among other factors, the holder's reasons for requesting the release, the number of shares of common stock and other securities for which the release is being requested and market conditions at the time.
At the conclusion of the 360- or 180-day periods referenced above, common stock issued upon the subsequent exchange of operating partnership units may be sold by the predecessor principals and our other directors and executive officers, or the other continuing investors, as applicable, in the public market once registered pursuant to the registration rights described above.
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FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the material federal income tax consequences relating to the acquisition, holding, and disposition of our stock. For purposes of this section under the heading "Federal Income Tax Considerations," references to "Douglas Emmett," "we," "our," and "us" mean only Douglas Emmett Inc., and not its subsidiaries, except as otherwise indicated. This summary is based upon the Code, the regulations promulgated by the U.S. Treasury Department, rulings and other administrative pronouncements issued by the IRS, and judicial decisions, all as currently in effect, and all of which are subject to differing interpretations or to change, possibly with retroactive effect. No assurance can be given that the IRS would not assert, or that a court would not sustain, a position contrary to any of the tax consequences described below. No advance ruling has been or will be sought from the IRS regarding any matter discussed herein. This summary also assumes that we and our subsidiaries and affiliated entities will operate in accordance with our applicable organizational documents or partnership agreements. This discussion is for your general information only and is not tax advice. It does not purport to address all aspects of federal income taxation that may be relevant to you in light of your particular investment circumstances, or if you are a type of investor subject to special tax rules, such as:
This summary assumes that you will hold our stock as a capital asset, which generally means as property held for investment.
The federal income tax treatment of holders of our stock depends in some instances on determinations of fact and interpretations of complex provisions of federal income tax law for which no clear precedent or authority may be available. In addition, the tax consequences of holding our stock to any particular stockholder will depend on the stockholder's particular tax circumstances. You are urged to consult your tax advisor regarding the specific tax consequences (including the federal, state, local, and foreign tax consequences) to you in light of your particular investment or tax circumstances of acquiring, holding, exchanging, or otherwise disposing of our stock.
We intend to elect to be taxed as a REIT commencing with our taxable year ended December 31, 2006. We believe that we were organized and have operated in such a manner as to qualify for taxation as a REIT, and intend to continue to operate in such a manner.
The law firm of Skadden Arps has acted as our special tax counsel in connection with our election to be taxed as a REIT. We expect to receive an opinion of Skadden Arps to the effect that we are
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organized in conformity with the requirements for qualification and taxation as a REIT under the Code, and that our proposed method of operation will enable us to meet the requirements for qualification and taxation as a REIT. It must be emphasized that the opinion of Skadden Arps will, if issued, be based on various assumptions relating to our organization and operation, and is conditioned upon representations and covenants made by our management regarding our organization, assets, and the past, present, and future conduct of our business operations. While we intend to operate so that we will qualify as a REIT, given the highly complex nature of the rules governing REITs, the ongoing importance of factual determinations, and the possibility of future changes in our circumstances, no assurance can be given by Skadden Arps or us that we will so qualify for any particular year. The opinion of Skadden Arps, a copy of which will be filed as an exhibit to the registration statement of which this prospectus is a part, will be expressed as of the date issued, and will not cover subsequent periods. Opinions of counsel impose no obligation to advise us or the holders of our stock of any subsequent change in the matters stated, represented or assumed, or of any subsequent change in the applicable law. You should be aware that opinions of counsel are not binding on the IRS, and no assurance can be given that the IRS will not challenge the conclusions set forth in such opinions.
Qualification and taxation as a REIT depends on our ability to meet, on a continuing basis, through actual operating results, asset ownership, distribution levels, and diversity of stock ownership, various qualification requirements imposed on REITs by the Code, compliance with which will not be reviewed by tax counsel. In addition, our compliance with the REIT income and quarterly asset requirements also depends upon our ability to successfully manage the composition of our income and assets on an ongoing basis, which may not be reviewed by tax counsel. Our ability to qualify as a REIT also requires that we satisfy certain asset tests, some of which depend upon the fair market values of assets directly or indirectly owned by us. Such values may not be susceptible to a precise determination. Accordingly, no assurance can be given that the actual results of our operations for any taxable year satisfy such requirements for qualification and taxation as a REIT.
Taxation of REITs in General
As indicated above, qualification and taxation as a REIT depends upon our ability to meet, on a continuing basis, various qualification requirements imposed upon REITs by the Code. The material qualification requirements are summarized below under "Requirements for QualificationGeneral." While we intend to operate so that we qualify as a REIT, no assurance can be given that the IRS will not challenge our qualification, or that we will be able to operate in accordance with the REIT requirements in the future. See "Failure to Qualify."
Provided that we qualify as a REIT, we will generally be entitled to a deduction for dividends that we pay and therefore will not be subject to federal corporate income tax on our net income that is currently distributed to our stockholders. This deduction for dividends paid substantially eliminates the "double taxation" of corporate income (i.e., taxation at both the corporate and stockholder levels) that generally results from an investment in a corporation. Thus, income generated by a REIT and distributed to its stockholders generally is taxed only at the stockholder level upon the distribution of that income.
The Jobs and Growth Tax Relief Reconciliation Act of 2003 (the "2003 Act") and the Tax Increase Prevention and Reconciliation Act of 2005 reduced the rate at which individual stockholders are taxed on corporate dividends from a maximum of 38.6% (as ordinary income) to a maximum of 15% (the same as long-term capital gains) for the 2003 through 2010 tax years. With limited exceptions, however, dividends received by stockholders from us, or from other entities that are taxed as REITs, are generally not eligible for the reduced rates, and will continue to be taxed at rates applicable to ordinary income, which will be as high as 35% through 2010. See "Taxation of StockholdersTaxation of Taxable Domestic StockholdersDistributions."
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Net operating losses, foreign tax credits and other tax attributes of a REIT generally do not pass through to the stockholders of the REIT, subject to special rules for certain items such as capital gains recognized by REITs. See "Taxation of Stockholders."
If we qualify as a REIT, we will nonetheless be subject to federal tax in the following circumstances:
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In addition, we and our subsidiaries may be subject to a variety of taxes, including payroll taxes and state, local, and foreign income, property, and other taxes on their assets and operations. We could also be subject to tax in situations and on transactions not presently contemplated.
Requirements for QualificationGeneral
The Code defines a REIT as a corporation, trust or association:
The Code provides that conditions (1) through (4) must be met during the entire taxable year, and that condition (5) must be met during at least 335 days of a taxable year of 12 months, or during a proportionate part of a shorter taxable year. Conditions (5) and (6) do not apply until after the first taxable year for which an election is made to be taxable as a REIT. Our amended and restated certificate of incorporation provides restrictions regarding transfers of its shares, which are intended to assist us in satisfying the share ownership requirements described in conditions (5) and (6) above.
To monitor compliance with the share ownership requirements, we are generally required to maintain records regarding the actual ownership of our shares. To do so, we must demand written statements each year from the record holders of significant percentages of our stock in which the record holders are to disclose the actual owners of the shares, i.e., the persons required to include in gross income the dividends paid by us. A list of those persons failing or refusing to comply with this demand must be maintained as part of our records. Failure to comply with these record keeping requirements could subject us to monetary penalties. A stockholder that fails or refuses to comply with
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the demand is required by Treasury regulations to submit a statement with its tax return disclosing the actual ownership of the shares and other information.
In addition, a corporation generally may not elect to become a REIT unless its taxable year is the calendar year. We satisfy this requirement.
The Code provides relief from violations of the REIT gross income requirements, as described below under "Income Tests," in cases where a violation is due to reasonable cause and not willful neglect, and other requirements are met, including the payment of a penalty tax that is based upon the magnitude of the violation. In addition, certain provisions of the Code extend similar relief in the case of certain violations of the REIT asset requirements (see "Asset Tests" below) and other REIT requirements, generally provided that the violation is due to reasonable cause and not willful neglect, and other conditions are met, including the payment of a penalty tax. If we fail to satisfy any of the various REIT requirements, there can be no assurance that these relief provisions would be available to enable us to maintain our qualification as a REIT, and, if available, the amount of any resultant penalty tax could be substantial.
Effect of Subsidiary Entities
Ownership of Partnership Interests. In the case of a REIT that is a partner in a partnership, such as our operating partnership, Treasury regulations provide that the REIT is deemed to own its proportionate share of the partnership's assets (subject to special rules relating to the 10% asset test described below), and to earn its proportionate share of the partnership's income for purposes of the asset and gross income tests applicable to REITs as described below. Similarly, the assets and gross income of the partnership are deemed to retain the same character in the hands of the REIT. Thus, our proportionate share of the assets, liabilities, and items of income in the operating partnership will be treated as our assets, liabilities, and items of income for purposes of applying the REIT requirements described below. A summary of certain rules governing the federal income taxation of partnerships and their partners is provided below in "Tax Aspects of Investments in an Operating Partnership."
Disregarded Subsidiaries. If a REIT owns a corporate subsidiary that is a "qualified REIT subsidiary," that subsidiary is generally disregarded for federal income tax purposes, and all assets, liabilities, and items of income, deduction, and credit of the subsidiary are treated as assets, liabilities, and items of income, deduction, and credit of the REIT itself, including for purposes of the gross income and asset tests applicable to REITs as summarized below. A qualified REIT subsidiary is any corporation, other than a "taxable REIT subsidiary" as described below, that is wholly owned by a REIT, or by one or more disregarded subsidiaries of the REIT, or by a combination of the two. Other entities that are wholly owned by a REIT, including single member limited liability companies, are also generally disregarded as separate entities for federal income tax purposes, including for purposes of the REIT income and asset tests. Disregarded subsidiaries, along with partnerships in which we hold an equity interest, are sometimes referred to herein as "pass-through subsidiaries."
In the event that a disregarded subsidiary of ours ceases to be wholly ownedfor example, if any equity interest in the subsidiary is acquired by a person other than us or another disregarded subsidiary of oursthe subsidiary's separate existence would no longer be disregarded for federal income tax purposes. Instead, it would have multiple owners and would be treated as either a partnership or a taxable corporation. Such an event could, depending on the circumstances, adversely affect our ability to satisfy the various asset and gross income requirements applicable to REITs, including the requirement that REITs generally may not own, directly or indirectly, more than 10% of the securities of another corporation. See "Asset Tests" and "Income Tests."
Taxable Subsidiaries. REIT, in general, may jointly elect with subsidiary corporations, whether or not wholly owned, to treat the subsidiary corporation as a taxable REIT subsidiary ("TRS") of the
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REIT. The separate existence of a TRS or other taxable corporation, unlike a disregarded subsidiary as discussed above, is not ignored for federal income tax purposes. Accordingly, such an entity would generally be subject to corporate income tax on its earnings, which may reduce the cash flow generated by us and our subsidiaries in the aggregate, and our ability to make distributions to our stockholders.
A parent REIT is not treated as holding the assets of a taxable subsidiary corporation or as receiving any income that the subsidiary earns. Rather, the stock issued by the subsidiary is an asset in the hands of the parent REIT, and the REIT recognizes as income, the dividends, if any, that it receives from the subsidiary. This treatment can affect the income and asset test calculations that apply to the REIT, as described below. A TRS may be used by the parent REIT to indirectly undertake activities that the REIT rules might otherwise preclude the parent REIT from doing directly or through pass-through subsidiaries (for example, activities that give rise to certain categories of income such as management fees or foreign currency gains). We will initially have one TRS, P.L.E. Builders, Inc.
Income Tests
In order to maintain our qualification as a REIT, we annually must satisfy two gross income requirements. First, at least 75% of our gross income for each taxable year, excluding gross income from sales of inventory or dealer property in "prohibited transactions," must be derived from investments relating to real property or mortgages on real property, including "rents from real property," dividends received from other REITs, interest income derived from mortgage loans secured by real property, and gains from the sale of real estate assets, as well as income from some kinds of temporary investments. Second, at least 95% of our gross income in each taxable year, excluding gross income from prohibited transactions or income from certain hedging transactions, must be derived from some combination of such income from investments in real property (i.e., income that qualifies under the 75% income test described above), as well as other dividends, interest, and gain from the sale or disposition of stock or securities, which need not have any relation to real property.
Rents received by us will qualify as "rents from real property" in satisfying the gross income requirements described above, only if several conditions, including the following, are met. If rent is partly attributable to personal property leased in connection with a lease of real property, the portion of the total rent that is attributable to the personal property will not qualify as "rents from real property" unless it constitutes 15% or less of the total rent received under the lease. We have reviewed our properties and have determined that rents attributable to personal property do not exceed 15% of the total rent with respect to any particular lease. There can be no assurance, however, that the IRS will not assert that rent attributable to personal property with respect to a particular lease is greater than 15% of the total rent with respect to such lease. If the amount of any such non-qualifying income, together with other non-qualifying income, exceeds 5% of our gross income, we may fail to qualify as a REIT. Moreover, for rents received to qualify as "rents from real property," the REIT generally must not furnish or render services to the tenants of such property, other than through an "independent contractor" from which the REIT derives no revenues and certain other requirements are satisfied. We and our affiliates are permitted, however, to perform services that are "usually or customarily rendered" in connection with the rental of space for occupancy only and are not otherwise considered rendered to the occupant of the property. In addition, we and our affiliates may directly or indirectly provide non-customary services to tenants of our properties without disqualifying all of the rent from the property if the payment for such services does not exceed 1% of the total gross income from the property. For purposes of this test, the income received from such non-customary services is deemed to be at least 150% of the direct cost of providing the services. Furthermore, we are generally permitted to provide services to tenants or others through a TRS without disqualifying the rental income received from tenants for purposes of the REIT income requirements. In addition, we generally may not, and will not, charge rent that is based in whole or in part on the income or profits of any person, except for rents that are based on a percentage of the tenant's gross receipts or sales. Also, rental income will
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qualify as rents from real property only to the extent that we do not directly or constructively hold a 10% or greater interest, as measured by vote or value, in the tenant's equity. We believe that substantially all or our gross income will be rents from real property.
We may indirectly receive distributions from TRSs or other corporations that are not REITs or qualified REIT subsidiaries. These distributions will be classified as dividend income to the extent of the earnings and profits of the distributing corporation. Such distributions will generally constitute qualifying income for purposes of the 95% gross income test, but not under the 75% gross income test. Any dividends received by us from a REIT will be qualifying income in our hands for purposes of both the 95% and 75% income tests.
Any income or gain we or our pass-through subsidiaries derive from instruments that hedge certain risks, such as the risk of changes in interest rates, will not be treated as gross income for purposes of the 95% gross income test, and therefore will be exempt from this test, provided that specified requirements are met, but generally will constitute non-qualifying income for purposes of the 75% gross income test. Such requirements include that the instrument hedges risks associated with indebtedness issued or to be issued by us or our pass-through subsidiaries incurred to acquire or carry "real estate assets" (as described below under "Asset Tests"), and that the instrument is properly identified as a hedge, along with the risk that it hedges, within prescribed time periods.
If we fail to satisfy one or both of the 75% or 95% gross income tests for any taxable year, we may still qualify as a REIT for the year if we are entitled to relief under applicable provisions of the Code. These relief provisions will be generally available if: (i) our failure to meet these tests was due to reasonable cause and not due to willful neglect, and (ii) following our identification of the failure to meet the 75% or 95% gross income test for any taxable year, we file a schedule with the IRS setting forth each item of our gross income for purposes of the 75% or 95% gross income test for such taxable year in accordance with Treasury regulations to be issued. It is not possible to state whether we would be entitled to the benefit of these relief provisions in all circumstances. If these relief provisions are inapplicable to a particular set of circumstances involving us, we will not qualify as a REIT. As discussed above under "Taxation of REITs in General," even where these relief provisions apply and we retain our REIT status, a tax would be imposed based upon the amount by which we fail to satisfy the particular gross income test.
Asset Tests
We, at the close of each calendar quarter, must also satisfy four tests relating to the nature of our assets. First, at least 75% of the value of our total assets must be represented by some combination of "real estate assets," cash, cash items, U.S. government securities, and, under some circumstances, stock or debt instruments purchased with new capital. For this purpose, the term "real estate assets" includes interests in real property, such as land, buildings, leasehold interests in real property, stock of other corporations that qualify as REITs, and some kinds of mortgage-backed securities and mortgage loans. Securities that do not qualify for purposes of this 75% test are subject to the additional asset tests described below, while securities that do qualify for purposes of the 75% asset test are generally not subject to the additional asset tests.
Second, the value of any one issuer's securities owned by us may not exceed 5% of the value of our total assets.
Third, we may not own more than 10% of any one issuer's outstanding securities, as measured by either voting power or value. The 5% and 10% asset tests do not apply to securities of TRSs and qualified REIT subsidiaries, and the 10% value test does not apply to "straight debt" having specified characteristics and to certain other securities described below. Solely for the purposes of the 10% value test, the determination of our interest in the assets of a partnership or limited liability company in which we own an interest will be based on our proportionate interest in any securities issued by the
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partnership or limited liability company, excluding for this purpose certain securities described in the Code.
Fourth, the aggregate value of all securities of TRSs held by a REIT may not exceed 20% of the value of the REIT's total assets.
Notwithstanding the general rule, as noted above, that for purposes of the REIT income and asset tests, a REIT is treated as owning its share of the underlying assets of a subsidiary partnership, if a REIT holds indebtedness issued by a partnership, the indebtedness will be subject to, and may cause a violation of, the asset tests, unless it is a qualifying mortgage asset, satisfies the rules for "straight debt," satisfies other conditions described below, or is sufficiently small so as not to otherwise cause an asset test violation. Similarly, although stock of another REIT is a qualifying asset for purposes of the REIT asset tests, non-mortgage debt held by us that is issued by another REIT may not so qualify.
Certain relief provisions are available to REITs to satisfy the asset requirements, or to maintain REIT qualification notwithstanding certain violations of the asset and other requirements. One such provision allows a REIT which fails one or more of the asset requirements (other than de minimis violations of the 5% and 10% asset tests as described below) to nevertheless maintain its REIT qualification if (a) it provides the IRS with a description of each asset causing the failure, (b) the failure is due to reasonable cause and not willful neglect, (c) the REIT pays a tax equal to the greater of (i) $50,000 per failure, and (ii) the product of the net income generated by the assets that caused the failure multiplied by the highest applicable corporate tax rate (currently 35%), and (d) the REIT either disposes of the assets causing the failure within 6 months after the last day of the quarter in which it identifies the failure, or otherwise satisfies the relevant asset tests within that time frame.
In the case of de minimis violations of the 10% and 5% asset tests, a REIT may maintain its qualification if (a) the value of the assets causing the violation do not exceed the lesser of 1% of the REIT's total assets, and $10,000,000, and (b) the REIT either disposes of the assets causing the failure within 6 months after the last day of the quarter in which it identifies the failure, or the relevant tests are otherwise satisfied within that time frame.
Certain securities will not cause a violation of the 10% value test described above. Such securities include instruments that constitute "straight debt," which includes securities having certain contingency features. A security will not qualify as "straight debt" where a REIT (or a controlled taxable REIT subsidiary of the REIT) owns other securities of the issuer of that security which do not qualify as straight debt, unless the value of those other securities constitute, in the aggregate, 1% or less of the total value of that issuer's outstanding securities. In addition to straight debt, certain other securities will not violate the 10% value test. Such securities include (a) any loan made to an individual or an estate, (b) certain rental agreements in which one or more payments are to be made in subsequent years (other than agreements between a REIT and certain persons related to the REIT), (c) any obligation to pay rents from real property, (d) securities issued by governmental entities that are not dependent in whole or in part on the profits of (or payments made by) a non-governmental entity, (e) any security issued by another REIT, and (f) any debt instrument issued by a partnership if the partnership's income is of a nature that it would satisfy the 75% gross income test described above under "Income Tests." In applying the 10% value test, a debt security issued by a partnership to a REIT is not taken into account to the extent, if any, of the REIT's proportionate equity interest in that partnership.
We believe that our holdings of assets comply, and will continue to comply, with the foregoing REIT asset requirements, and we intend to monitor compliance on an ongoing basis. No independent appraisals have been obtained, however, to support our conclusions as to the value of our total assets, or the value of any particular security or securities. We do not intend to seek an IRS ruling as to the classification of our properties for purposes of the REIT asset tests. Accordingly, there can be no assurance that the IRS will not contend that our assets or our interest in other securities cause a violation of the REIT asset requirements.
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If we should fail to satisfy the asset tests at the end of a calendar quarter, such a failure would not cause us to lose our REIT status if we (1) satisfied the asset tests at the close of the preceding calendar quarter and (2) the discrepancy between the value of our assets and the asset test requirements was not wholly or partly caused by an acquisition of non-qualifying assets, but instead arose from changes in the market value of our assets. If the condition described in (2) were not satisfied, we still could avoid disqualification by eliminating any discrepancy within 30 days after the close of the calendar quarter in which it arose or by making use of relief provisions described below.
Annual Distribution Requirements
In order to qualify as a REIT, we are required to distribute dividends, other than capital gain dividends, to our stockholders in an amount at least equal to:
(i) 90% of our "REIT taxable income" (computed without regard to our deduction for dividends paid and net capital gains); and
(ii) 90% of the net income, if any, (after tax) from foreclosure property (as described below); minus
Distributions must be paid in the taxable year to which they relate, or in the following taxable year if they are declared in October, November, or December of the taxable year, are payable to stockholders of record on a specified date in any such month, and are actually paid before the end of January of the following year. Such distributions are treated as both paid by us and received by each stockholder on December 31 of the year in which they are declared. In addition, a distribution for a taxable year may be declared before we timely file our tax return for the year and if paid with or before the first regular dividend payment after such declaration, provided such payment is made during the twelve month period following the close of such taxable year. In order for distributions to be counted for this purpose, and to give rise to a tax deduction by us, they must not be "preferential dividends." A dividend is not a preferential dividend if it is pro rata among all outstanding shares of stock within a particular class, and is in accordance with the preferences among different classes of stock as set forth in our organizational documents.
To the extent that we distribute at least 90%, but less than 100%, of our "REIT taxable income," as adjusted, we will be subject to tax at ordinary corporate tax rates on the retained portion. We may elect to retain, rather than distribute, our net long-term capital gains and pay tax on such gains. In this case, we could elect to have our stockholders include their proportionate share of such undistributed long-term capital gains in income, and to receive a corresponding credit for their share of the tax paid by us. Stockholders of ours would then increase the adjusted basis of their Douglas Emmett stock by the difference between the designated amounts included in their long-term capital gains and the tax deemed paid with respect to their shares. To the extent that a REIT has available net operating losses carried forward from prior tax years, such losses may reduce the amount of distributions that it must make in order to comply with the REIT distribution requirements. Such losses, however, will generally not affect the character, in the hands of stockholders, of any distributions that are actually made by the REIT, which are generally taxable to stockholders to the extent that the REIT has current or accumulated earnings and profits. See "Taxation of StockholdersTaxation of Taxable Domestic StockholdersDistributions."
If we should fail to distribute during each calendar year at least the sum of (1) 85% of our REIT ordinary income for such year, (2) 95% of our REIT capital gain net income for such year, and (3) any undistributed taxable income from prior periods, we would be subject to a 4% excise tax on the excess of such required distribution over the sum of (a) the amounts actually distributed and (b) the amounts
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of income retained on which we have paid corporate income tax. We intend to make timely distributions so that we are not subject to the 4% excise tax.
It is possible that we, from time to time, may not have sufficient cash to meet the distribution requirements due to timing differences between (1) the actual receipt of cash, including receipt of distributions from our subsidiaries, and (2) our inclusion of items in income for federal income tax purposes. Other sources of non-cash taxable income include real estate and securities that are financed through securitization structures, which require some or all of available cash flows to be used to service borrowings, loans held by us as assets that are issued at a discount and require the accrual of taxable economic interest in advance of its receipt in cash, loans on which the borrower is permitted to defer cash payments of interest, and distressed loans on which we may be required to accrue taxable interest income even though the borrower is unable to make current servicing payments in cash. In the event that such timing differences occur, in order to meet the distribution requirements, it might be necessary to arrange for short-term, or possibly long-term, borrowings, or to pay dividends in the form of taxable in-kind distributions of property.
We may be able to rectify a failure to meet the distribution requirements for a year by paying "deficiency dividends" to stockholders in a later year, which may be included in our deduction for dividends paid for the earlier year. In this case, we may be able to avoid losing our REIT status or being taxed on amounts distributed as deficiency dividends. However, we will be required to pay interest and a penalty based on the amount of any deduction taken for deficiency dividends.
Failure to Qualify
Specified cure provisions are available to us in the event we discover a violation of a provision of the Code that would result in our failure to qualify as a REIT. Except with respect to violations of the REIT income tests and asset tests (for which the cure provisions are described above), and provided the violation is due to reasonable cause and not due to willful neglect, these cure provisions generally impose a $50,000 penalty for each violation in lieu of a loss of REIT status. If we fail to qualify for taxation as a REIT in any taxable year, and the relief provisions of the Code do not apply, we would be subject to tax, including any applicable alternative minimum tax, on our taxable income at regular corporate rates. Distributions to stockholders in any year in which we are not a REIT would not be deductible by us, nor would they be required to be made. In this situation, to the extent of current and accumulated earnings and profits, all distributions to stockholders that are individuals will generally be taxable at a rate of 15% (through 2010), and, subject to limitations of the Code, corporate distributees may be eligible for the dividends received deduction. Unless we are entitled to relief under specific statutory provisions, we would also be disqualified from re-electing to be taxed as a REIT for the four taxable years following the year during which qualification was lost. It is not possible to state whether, in all circumstances, we would be entitled to this statutory relief.
Prohibited Transactions
Net income derived from a prohibited transaction is subject to a 100% tax. The term "prohibited transaction" generally includes a sale or other disposition of property (other than foreclosure property) that is held primarily for sale to customers in the ordinary course of a trade or business. We intend to conduct our operations so that no asset owned by us or our pass-through subsidiaries will be held for sale to customers, and that a sale of any such asset will not be in the ordinary course of our business. Whether property is held "primarily for sale to customers in the ordinary course of a trade or business" depends, however, on the particular facts and circumstances. No assurance can be given that any property we sell will not be treated as property held for sale to customers, or that we can comply with certain safe-harbor provisions of the Code that would prevent the imposition of the 100% excise tax. The 100% tax does not apply to gains from the sale of property that is held through a taxable REIT
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subsidiary or other taxable corporation, although such income will be subject to tax in the hands of that corporation at regular corporate tax rates.
Hedging Transactions
We and our subsidiaries from time to time enter into hedging transactions with respect to interest rate exposure on one or more of our assets or liabilities. Any such hedging transactions could take a variety of forms, including the use of derivative instruments such as interest rate swap contracts, interest rate cap or floor contracts, futures or forward contracts, and options. Any income from such instruments, or gain from the disposition of such instruments, would not be qualifying income for purposes of the REIT 75% gross income test.
Income of a REIT, including income from a pass-through subsidiary, arising from "clearly identified" hedging transactions that are entered into to manage the risk of interest rate or price changes or currency fluctuations with respect to borrowings, including gain from the disposition of such hedging transactions, to the extent the hedging transactions hedge indebtedness incurred, or to be incurred, by the REIT to acquire or carry real estate assets, are not treated as gross income for purposes of the 95% REIT income test, and, are therefore exempt from such test. In general, for a hedging transaction to be "clearly identified," (a) it must be identified as a hedging transaction before the end of the day on which it is acquired or entered into, and (b) the items or risks being hedged must be identified "substantially contemporaneously" with entering into the hedging transaction (generally, not more than 35 days after entering into the hedging transaction). To the extent that we hedge with other types of financial instruments or in other situations (for example, hedges against fluctuations in the value of foreign currencies), the resultant income will be treated as income that does not qualify under the 95% or 75% income tests unless certain technical requirements are met.
We intend to structure any hedging transactions in a manner that does not jeopardize our status as a REIT. We may conduct some or all of our hedging activities (including hedging activities relating to currency risk) through a TRS or other corporate entity, the income from which may be subject to federal income tax, rather than participating in the arrangements directly or through pass-through subsidiaries. No assurance can be given, however, that our hedging activities will not give rise to income that would adversely affect our ability to satisfy the REIT qualification requirements.
Tax Aspects of Investments in an Operating Partnership
General
We will hold substantially all of our real estate assets through a single "operating partnership" that holds pass-through subsidiaries. In general, an entity classified as a partnership (or a disregarded entity) for federal income tax purposes is a "pass-through" entity that is not subject to federal income tax. Rather, partners or members are allocated their proportionate shares of the items of income, gain, loss, deduction, and credit of the entity, and are potentially subject to tax on these items, without regard to whether the partners or members receive a distribution from the entity. Thus, we would include in our income our proportionate share of these income items for purposes of the various REIT income tests and in the computation of our REIT taxable income. Moreover, for purposes of the REIT asset tests, we would include our proportionate share of the assets held by the operating partnership. Consequently, to the extent that we hold an equity interest in an operating partnership, the partnership's assets and operations may affect our ability to qualify as a REIT.
Entity Classification
Our investment in our operating partnership involves special tax considerations, including the possibility of a challenge by the IRS of the tax status of such partnership. If the IRS were to successfully treat an operating partnership as an association, as opposed to a partnership, for federal
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income tax purposes, the operating partnership would be taxable as a corporation and therefore could be subject to an entity-level tax on its income. In such a situation, the character of our assets and items of our gross income would change and could preclude us from satisfying the REIT asset tests or the gross income tests as discussed in "Taxation of Douglas EmmettAsset Tests" and "Income Tests," and in turn could prevent us from qualifying as a REIT unless we are eligible for relief from the violation pursuant to relief provisions described above. See "Taxation of Douglas EmmettFailure to Qualify," above, for a discussion of the effect of our failure to meet these tests for a taxable year, and of the relief provisions. In addition, any change in the status of an operating partnership for tax purposes could be treated as a taxable event, in which case we could have taxable income that is subject to the REIT distribution requirements without receiving any cash.
Tax Allocations with Respect to Partnership Properties
Under the Code and the Treasury regulations, income, gain, loss, and deduction attributable to appreciated or depreciated property that is contributed to a partnership in exchange for an interest in the partnership must be allocated for tax purposes in a manner such that the contributing partner is charged with, or benefits from, the unrealized gain or unrealized loss associated with the property at the time of the contribution. The amount of the unrealized gain or unrealized loss is generally equal to the difference between the fair market value of the contributed property at the time of contribution, and the adjusted tax basis of such property at the time of contribution (a "book-tax difference"). Such allocations are solely for federal income tax purposes and do not affect the book capital accounts or other economic or legal arrangements among the partners. These rules may apply to a contribution of property by us to an operating partnership. To the extent that the operating partnership acquires appreciated (or depreciated) properties by way of capital contributions from its partners, allocations would need to be made in a manner consistent with these requirements. Where a partner contributes cash to a partnership at a time at which the partnership holds appreciated (or depreciated) property, the Treasury regulations provide for a similar allocation of these items to the other ( i.e. non-contributing) partners. These rules may apply to the contribution by us to the operating partnership of the cash proceeds received in offerings of our stock. As a result, partners, including us, could be allocated greater or lesser amounts of depreciation and taxable income in respect of the partnership's properties than would be the case if all of the partnership's assets (including any contributed assets) had a tax basis equal to their fair market values at the time of any contributions to that partnership. This could cause us to recognize taxable income in excess of cash flow from the partnership, which might adversely affect our ability to comply with the REIT distribution requirements discussed above.
Sale of Properties
Our share of any gain realized by our operating partnership or any other subsidiary partnership on the sale of any property held as inventory or primarily for sale to customers in the ordinary course of business will be treated as income from a prohibited transaction that is subject to a 100% excise tax. See "Taxation of REITs in General" and "Prohibited Transactions." Under existing law, whether property is held as inventory or primarily for sale to customers in the ordinary course of a trade or business depends upon all of the facts and circumstances of the particular transaction. Our operating partnership and our other subsidiary partnerships generally intend to hold their interests in properties for investment with a view to long-term appreciation, to engage in the business of acquiring, developing, owning, operating, financing and leasing the properties, and to make occasional sales of the properties, including peripheral land, as are consistent with our investment objectives.
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Taxation of Stockholders
Taxation of Taxable Domestic Stockholders
Distributions. Provided that we qualify as a REIT, distributions made to our taxable domestic stockholders out of current or accumulated earnings and profits, and not designated as capital gain dividends, will generally be taken into account by them as ordinary income and will not be eligible for the dividends received deduction for corporations. With limited exceptions, dividends received from REITs are not eligible for taxation at the preferential income tax rates (15% maximum federal rate through 2010) for qualified dividends received by individuals from taxable C corporations. Stockholders that are individuals, however, are taxed at the preferential rates on dividends designated by and received from REITs to the extent that the dividends are attributable to (1) income retained by the REIT in the prior taxable year on which the REIT was subject to corporate level income tax (less the amount of tax), (2) dividends received by the REIT from TRSs or other taxable C corporations, or (3) income in the prior taxable year from the sales of "built-in gain" property acquired by the REIT from C corporations in carryover basis transactions (less the amount of corporate tax on such income).
Distributions from us that are designated as capital gain dividends will generally be taxed to stockholders as long-term capital gains, to the extent that they do not exceed our actual net capital gain for the taxable year, without regard to the period for which the stockholder has held its stock. A similar treatment will apply to long-term capital gains retained by us, to the extent that we elect the application of provisions of the Code that treat stockholders of a REIT as having received, for federal income tax purposes, undistributed capital gains of the REIT, while passing through to stockholders a corresponding credit for taxes paid by the REIT on such retained capital gains. Corporate stockholders may be required to treat up to 20% of some capital gain dividends as ordinary income. Long-term capital gains are generally taxable at maximum federal rates of 15% (through 2010) in the case of stockholders who are individuals, and 35% in the case of stockholders that are corporations. Capital gains attributable to the sale of depreciable real property held for more than 12 months are subject to a 25% maximum federal income tax rate for taxpayers who are individuals, to the extent of previously claimed depreciation deductions.
In determining the extent to which a distribution constitutes a dividend for tax purposes, our earnings and profits generally will be allocated first to distributions with respect to preferred stock, none of which is currently issued and outstanding, and then to common stock. If we have net capital gains and designate some or all of our distributions as capital gain dividends to that extent, the capital gain dividends will be allocated among different classes of stock in proportion to the allocation of earnings and profits as described above.
Distributions in excess of current and accumulated earnings and profits will not be taxable to a stockholder to the extent that they do not exceed the adjusted basis of the stockholder's shares in respect of which the distributions were made, but rather, will reduce the adjusted basis of these shares. To the extent that such distributions exceed the adjusted basis of a stockholder's shares, they will be included in income as long-term capital gain, or short-term capital gain if the shares have been held for one year or less. In addition, any dividend we declare in October, November, or December of any year and payable to a stockholder of record on a specified date in any such month will be treated as both paid by Douglas Emmett and received by the stockholder on December 31 of such year, provided that the dividend is actually paid by us before the end of January of the following calendar year.
Dispositions of Douglas Emmett Stock. In general, a domestic stockholder will realize gain or loss upon the sale, redemption, or other taxable disposition of our stock in an amount equal to the difference between the sum of the fair market value of any property received and the amount of cash received in such disposition, and the stockholder's adjusted tax basis in the stock at the time of the disposition. In general, a stockholder's tax basis will equal the stockholder's acquisition cost, increased by the excess of net capital gains deemed distributed to the stockholder (discussed above), less tax
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deemed paid on it, and reduced by returns of capital. In general, capital gains recognized by individuals upon the sale or disposition of shares of our stock will be subject to a maximum federal income tax rate of 15% (through 2010) if our stock is held for more than 12 months, and will be taxed at ordinary income rates (of up to 35% through 2010) if our stock is held for 12 months or less. Gains recognized by stockholders that are corporations are subject to federal income tax at a maximum rate of 35%, whether or not classified as long-term capital gains. Capital losses recognized by a stockholder upon the disposition of our stock held for more than one year at the time of disposition will be considered long-term capital losses, and are generally available only to offset capital gain income of the stockholder but not ordinary income (except in the case of individuals, who may offset up to $3,000 of ordinary income each year). In addition, any loss upon a sale or exchange of shares of our stock by a stockholder who has held the shares for six months or less, after applying holding period rules, will be treated as a long-term capital loss to the extent of distributions received from us that are required to be treated by the stockholder as long-term capital gain.
If an investor recognizes a loss upon a subsequent disposition of our stock in an amount that exceeds a prescribed threshold, it is possible that the provisions of recently adopted Treasury regulations involving "reportable transactions" could apply, with a resulting requirement to separately disclose the loss generating transaction to the IRS. While these regulations are directed towards "tax shelters," they are written quite broadly and apply to transactions that would not typically be considered tax shelters. In addition significant penalties are imposed by the Code for failure to comply with these requirements. You should consult your tax advisor concerning any possible disclosure obligation with respect to the receipt or disposition of our stock, or transactions that might be undertaken directly or indirectly by us. Moreover, you should be aware that we and other participants in the transactions involving us (including their advisors) might be subject to disclosure or other requirements pursuant to these regulations.
Passive Activity Losses and Investment Interest Limitations. Distributions made by us and gain arising from the sale or exchange by a domestic stockholder of our stock will not be treated as passive activity income. As a result, stockholders will not be able to apply any "passive losses" against income or gain relating to our stock. Distributions made by us, to the extent they do not constitute return of capital, generally will be treated as investment income for purposes of computing the investment interest limitation.
Taxation of Foreign Stockholders
The following is a summary of certain federal income and estate tax consequences of the ownership and disposition of our stock applicable to non-U.S. holders of our stock. A "non-U.S. holder" is any person other than:
The discussion is based on current law and is for general information only. It addresses only selected, and not all, aspects of federal income and estate taxation.
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Ordinary Dividends. The portion of dividends received by non-U.S. holders payable out of our earnings and profits which are not attributable to our capital gains and which are not effectively connected with a U.S. trade or business of the non-U.S. holder will be subject to U.S. withholding tax at the rate of 30%, unless reduced by an income tax treaty.
In general, non-U.S. holders will not be considered to be engaged in a U.S. trade or business solely as a result of their ownership of our stock. In cases where the dividend income from a non-U.S. holder's investment in our stock is, or is treated as, effectively connected with the non-U.S. holder's conduct of a U.S. trade or business, the non-U.S. holder generally will be subject to U.S. tax at graduated rates, in the same manner as domestic stockholders are taxed with respect to such dividends, such income must generally be reported on a U.S. income tax return filed by or on behalf of the non-U.S. holder, and the income may also be subject to the 30% branch profits tax in the case of a non-U.S. holder that is a corporation.
Non-Dividend Distributions. Unless our stock constitutes a U.S. real property interest (a "USRPI"), distributions by us which are not dividends out of our earnings and profits will not be subject to U.S. income tax. If it cannot be determined at the time at which a distribution is made whether or not the distribution will exceed current and accumulated earnings and profits, the distribution will be subject to withholding at the rate applicable to dividends. However, the non-U.S. holder may seek a refund from the IRS of any amounts withheld if it is subsequently determined that the distribution was, in fact, in excess of our current and accumulated earnings and profits. If our stock constitutes a USRPI, as described below, distributions by us in excess of the sum of our earnings and profits plus the stockholder's basis in its Douglas Emmett stock will be treated as gain from the sale or exchange of such stock and be taxed under the Foreign Investment in Real Property Tax Act of 1980 ("FIRPTA") at the rate of tax, including any applicable capital gains rates, that would apply to a domestic stockholder of the same type (for example, an individual or a corporation, as the case may be). The collection of the tax will be enforced by a refundable withholding at a rate of 10% of the amount by which the distribution exceeds the stockholder's share of our earnings and profits.
Capital Gain Dividends. Under FIRPTA, a distribution made by us to a non-U.S. holder, to the extent attributable to gains from dispositions of USRPIs held by us directly, lower-tier REITs, or through pass-through subsidiaries ("USRPI capital gains"), will, except as discussed below, be considered effectively connected with a U.S. trade or business of the non-U.S. holder and will be subject to U.S. income tax at the rates applicable to U.S. individuals or corporations, without regard to whether the distribution is designated as a capital gain dividend. In addition, we will be required to withhold tax equal to 35% of the amount of dividends to the extent the dividends constitute USRPI capital gains. Distributions subject to FIRPTA may also be subject to a 30% branch profits tax in the hands of a non-U.S. holder that is a corporation. A distribution is not a USRPI capital gain if we held the underlying asset solely as a creditor. Capital gain dividends received by a non-U.S. holder from a REIT attributable to dispositions by that REIT of assets other than USRPIs are generally not subject to U.S. income or withholding tax.
A capital gain dividend by us that would otherwise have been treated as a USRPI capital gain will not be so treated or be subject to FIRPTA, will generally not be treated as income that is effectively connected with a U.S. trade or business, and will instead be treated the same as an ordinary dividend from us (see "Taxation of Foreign StockholdersOrdinary Dividends"), provided that (1) the capital gain dividend is received with respect to a class of stock that is regularly traded on an established securities market located in the United States, and (2) the recipient non-U.S. holder does not own more than 5% of that class of stock at any time during the one-year period ending on the date on which the capital gain dividend is received.
Dispositions of Douglas Emmett Stock. Unless our stock constitutes a USRPI, a sale of the stock by a non-U.S. holder generally will not be subject to U.S. taxation under FIRPTA. The stock will be
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treated as a USRPI if 50% or more of our assets throughout a prescribed testing period consist of interests in real property located within the United States, excluding, for this purpose, interests in real property solely in a capacity as a creditor. Even if the foregoing test is met, our stock nonetheless will not constitute a USRPI if we are a "domestically controlled qualified investment entity." A domestically controlled qualified investment entity includes a REIT in which, at all times during a specified testing period, less than 50% in value of its shares is held directly or indirectly by non-U.S. holders. We believe that we are, and we expect to continue to be, a domestically controlled qualified investment entity and, therefore, the sale of our stock by a non-U.S. holder should not be subject to taxation under FIRPTA. Because our stock is publicly traded, however, no assurance can be given that we will be a domestically controlled qualified investment entity.
In the event that we do not constitute a domestically controlled qualified investment entity, a non-U.S. holder's sale of stock nonetheless will generally not be subject to tax under FIRPTA as a sale of a USRPI, provided that (1) the stock owned is of a class that is "regularly traded," as defined by applicable Treasury regulations, on an established securities market, and (2) the selling non-U.S. holder held 5% or less of our outstanding stock of that class at all times during a specified testing period.
If gain on the sale of our stock were subject to taxation under FIRPTA, the non-U.S. holder would be subject to the same treatment as a U.S. stockholder with respect to such gain, subject to applicable alternative minimum tax and a special alternative minimum tax in the case of non-resident alien individuals, and the purchaser of the stock could be required to withhold 10% of the purchase price and remit such amount to the IRS.
Gain from the sale of our stock that would not otherwise be subject to FIRPTA will nonetheless be taxable in the United States to a non-U.S. holder in two cases: (1) if the non-U.S. holder's investment in our stock is effectively connected with a U.S. trade or business conducted by such non-U.S. holder, the non-U.S. holder will be subject to the same treatment as a U.S. stockholder with respect to such gain, or (2) if the non-U.S. holder is a nonresident alien individual who was present in the United States for 183 days or more during the taxable year and has a "tax home" in the United States, the nonresident alien individual will be subject to a 30% tax on the individual's capital gain. In addition, even if we are a domestically controlled qualified investment entity, upon disposition of our stock (subject to the 5% exception applicable to "regularly traded" stock described above), a non-U.S. holder may be treated as having gain from the sale or exchange of a USRPI if the non-U.S. holder (1) disposes of our common stock within a 30-day period preceding the ex-dividend date of a distribution, any portion of which, but for the disposition, would have been treated as gain from the sale or exchange of a USRPI and (2) acquires, or enters into a contract or option to acquire, other shares of our common stock within 30 days after such ex-dividend date.
Estate Tax. Douglas Emmett stock owned or treated as owned by an individual who is not a citizen or resident (as specially defined for federal estate tax purposes) of the United States at the time of death will be includable in the individual's gross estate for federal estate tax purposes, unless an applicable estate tax treaty provides otherwise, and may therefore be subject to federal estate tax.
Taxation of Tax-Exempt Stockholders
Tax-exempt entities, including qualified employee pension and profit sharing trusts and individual retirement accounts, generally are exempt from federal income taxation. However, they are subject to taxation on their unrelated business taxable income ("UBTI"). Provided that (1) a tax-exempt stockholder has not held our stock as "debt financed property" within the meaning of the Code (i.e. where the acquisition or holding of the property is financed through a borrowing by the tax-exempt stockholder), and (2) our stock is not otherwise used in an unrelated trade or business, distributions from us and income from the sale of our stock should not give rise to UBTI to a tax-exempt stockholder.
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Tax-exempt stockholders that are social clubs, voluntary employee benefit associations, supplemental unemployment benefit trusts, and qualified group legal services plans exempt from federal income taxation under sections 501(c)(7), (c)(9), (c)(17) and (c)(20) of the Code, respectively, are subject to different UBTI rules, which generally will require them to characterize distributions from us as UBTI.
In certain circumstances, a pension trust that owns more than 10% of our stock could be required to treat a percentage of the dividends from us as UBTI, if we are a "pension-held REIT." We will not be a pension-held REIT unless either (1) one pension trust owns more than 25% of the value of our stock, or (2) a group of pension trusts, each individually holding more than 10% of the value of our stock, collectively owns more than 50% of such stock. Certain restrictions on ownership and transfer of our stock should generally prevent a tax-exempt entity from owning more than 10% of the value of our stock, or our becoming a pension-held REIT.
Tax-exempt stockholders are urged to consult their tax advisors regarding the federal, state, local and foreign tax consequences of owning our stock.
Other Tax Considerations
Legislative or Other Actions Affecting REITs
The rules dealing with federal income taxation are constantly under review by persons involved in the legislative process and by the IRS and the U.S. Treasury Department. No assurance can be given as to whether, or in what form, any proposals affecting REITs or their stockholders will be enacted. Changes to the federal tax laws and interpretations thereof could adversely affect an investment in our stock.
State, Local and Foreign Taxes
We and our subsidiaries and stockholders may be subject to state, local or foreign taxation in various jurisdictions, including those in which it or they transact business, own property or reside. We own properties located in a number of jurisdictions, and may be required to file tax returns in some or all of those jurisdictions. The state, local or foreign tax treatment of us and our stockholders may not conform to the federal income tax treatment discussed above. We will pay foreign property taxes, and dispositions of foreign property or operations involving, or investments in, foreign property may give rise to foreign income or other tax liability in amounts that could be substantial. Any foreign taxes incurred by us do not pass through to stockholders as a credit against their federal income tax liability. Prospective investors should consult their tax advisors regarding the application and effect of state, local and foreign income and other tax laws on an investment in stock or other securities of ours.
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The Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and the Code impose certain restrictions on (a) employee benefit plans (as defined in Section 3(3) of ERISA), (b) plans described in section 4975(e)(1) of the Code, including individual retirement accounts or Keogh plans, (c) any entities whose underlying assets include plan assets by reason of a plan's investment in such entities (each a "Plan") and (d) persons who have certain specified relationships to such Plans ("Parties-in-Interest" under ERISA and "Disqualified Persons" under the Code). Moreover, based on the reasoning of the United States Supreme Court in John Hancock Life Ins. Co. v. Harris Trust and Sav. Bank, 510 U.S. 86 (1993), an insurance company's general account may be deemed to include assets of the Plans investing in the general account ( e.g. , through the purchase of an annuity contract), and the insurance company might be treated as a Party-in-Interest with respect to a Plan by virtue of such investment. ERISA also imposes certain duties on persons who are fiduciaries of Plans subject to ERISA and prohibits certain transactions between such a Plan and Parties-in-Interest or Disqualified Persons with respect to such Plans.
The United States Department of Labor (the "DOL") has issued a regulation (29 C.F.R. § 2510.3-101) concerning the definition of what constitutes the assets of a Plan (the "Plan Asset Regulations"). These regulations provide that, as a general rule, the underlying assets and properties of corporations, partnerships, trusts and certain other entities in which a Plan purchases an "equity interest" will be deemed for purposes of ERISA to be assets of the investing Plan unless certain exceptions apply. The Plan Asset Regulations define an "equity interest" as any interest in an entity other than an instrument that is treated as indebtedness under applicable local law and which has no substantial equity features. The shares of our common stock offered hereby, or REIT Shares, should be treated as "equity interests" for purposes of the Plan Asset Regulations.
The Plan Asset Regulations provide exceptions to the look-through rule for equity interests in some types of entities, including any entity which qualifies as either a "real estate operating company" or a "venture capital operating company." Under the Plan Asset Regulations, a "real estate operating company" is defined as an entity which on testing dates has at least 50% of its assets, other than short-term investments pending long-term commitment or distribution to investors, valued at cost:
According to those same regulations, a "venture capital operating company" is defined as an entity that on testing dates has at least 50% of its assets, other than short-term investments pending long-term commitment or distribution to investors, valued at cost invested in one or more operating companies with respect to which the entity has management rights; and that, in the ordinary course of its business, actually exercises its management rights with respect to one or more of the operating companies in which it invests.
Another exception under the Plan Asset Regulations applies to "publicly offered securities," which are defines as securities that are:
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after the end of the fiscal year of the issuer during which this offering of these securities to the public occurred.
Whether a security is considered "freely transferable" depends on the facts and circumstances of each case. Under the Plan Asset Regulations, if the security is part of an offering in which the minimum investment is $10,000 or less, then any restriction on or prohibition against any transfer or assignment of the security for the purposes of preventing a termination or reclassification of the entity for federal or state tax purposes or which would violate any state or federal statute, regulation, court order, judicial decree, or rule of law will not ordinarily prevent the security from being considered freely transferable. Additionally, limitations or restrictions on the transfer or assignment of a security that are created or imposed by persons other than the issuer of the security or persons acting for or on behalf of the issuer will ordinarily not prevent the security from being considered freely transferable.
A class of securities is considered "widely held" if it is a class of securities that is owned by 100 or more investors independent of the issuer and of one another. A security will not fail to be "widely held" because the number of independent investors falls below 100 subsequent to the initial public offering as a result of events beyond the issuer's control.
We expect that the REIT Shares will meet the criteria of the publicly offered securities exception to the look-through rule. First, the REIT Shares should be considered to be freely transferable, as the minimum investment will be less than $10,000 and the only restrictions upon transfer of the REIT Shares are those generally permitted under the Plan Asset Regulations, those required under federal tax laws to maintain the REIT's status as a REIT, resale restrictions under applicable federal securities laws with respect to securities not purchased pursuant to a registered public offering and those owned by officers, directors and other affiliates, and voluntary restrictions agreed to by a selling stockholder regarding volume limitations.
Second, we expect (although we cannot confirm) that the REIT Shares will be held by 100 or more investors and that at least 100 or more of these investors will be independent of the REIT and of one another.
Third, the shares of the REIT's common stock will be part of an offering of securities to the public pursuant to an effective registration statement under the Securities Act and the common stock will be registered under the Exchange Act.
If, however, none of the exceptions under the Plan Asset Regulations were applicable to the REIT and the REIT were deemed to hold Plan assets subject to ERISA or Section 4975 of the Code, such Plan assets would include an undivided interest in the assets held in the REIT. In such event, such assets and the persons providing services with respect to such assets would be subject to the fiduciary responsibility provisions of Title I of ERISA and the prohibited transaction provisions of ERISA and Section 4975 of the Code.
In addition, if the assets held in the REIT were treated as Plan assets, certain of the activities of the REIT could be deemed to constitute a transaction prohibited under Title I of ERISA or Section 4975 of the Code ( e.g. , the extension of credit between a Plan and a Party in Interest or Disqualified Person). Such transactions may, however, be subject to a statutory or administrative exemptions such as Prohibited Transaction Class Exemption ("PTCE") 84-14, which exempts certain transactions effected on behalf of a Plan by a "qualified professional asset manager."
Each Plan fiduciary should consult with its counsel with respect to the potential applicability of ERISA and the Code to such investment or similar rules that may apply to Plans not subject to ERISA or Code Section 4975, such as governmental plans, church plans or plans maintained outside of the United States. Each Plan fiduciary should also determine on its own whether any exceptions or exemptions are applicable (including the publicly offered securities exception) and whether all conditions of any such exceptions or exemptions have been satisfied.
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Moreover, each Plan fiduciary should determine whether, under the general fiduciary standards of investment prudence and diversification, participation in the formation transactions is appropriate for the Plan, taking into account the overall investment policy of the Plan and the composition of the Plan's investment portfolio.
This Statement is in no respect a representation that any of the transactions contemplated herein meet all relevant legal requirements with respect to investments by Plans generally or that any such transaction is appropriate for any particular Plan.
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Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Citigroup Global Markets Inc. are acting as joint book-running managers and representatives of the underwriters. Under the terms of an underwriting agreement, which will be filed as an exhibit to the registration statement, each of the underwriters named below has severally agreed to purchase from us the respective number of shares of common stock shown opposite its name below:
Underwriter
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Number of
Shares |
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Lehman Brothers Inc. | |||
Merrill Lynch, Pierce, Fenner & Smith
Incorporated |
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Citigroup Global Markets Inc. | |||
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Total | |||
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The underwriting agreement provides that the underwriters' obligation to purchase shares of common stock depends on the satisfaction of the conditions contained in the underwriting agreement including:
The following table summarizes the underwriting discounts and commissions we will pay to the underwriters. These amounts are shown assuming both no exercise and full exercise of the underwriters' option to purchase additional shares. The underwriting fee is the difference between the initial price to the public and the amount the underwriters pay to us for the shares.
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No Exercise
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Full Exercise
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Per Share | ||||
Total |
The representatives of the underwriters have advised us that the underwriters propose to offer the shares of common stock directly to the public at the public offering price on the cover page of this prospectus and to selected dealers, which may include the underwriters, at such offering price less a selling concession not in excess of $ per share. The underwriters may allow, and the selected dealers may re-allow, a discount from the concession not in excess of $ per share to other dealers. After this offering, the representatives may change the offering price and other selling terms.
The expenses of this offering that are payable by us are estimated to be $ (excluding underwriting discounts and commissions).
Option to Purchase Additional Shares
We have granted the underwriters an option exercisable for 30 days after the date of this prospectus, to purchase, from time to time, in whole or in part, up to an aggregate of 8,250,000 shares
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at the public offering price less underwriting discounts and commissions. This option may be exercised if the underwriters sell more than 55,000,000 shares in connection with this offering. To the extent that this option is exercised, each underwriter will be obligated, subject to certain conditions, to purchase its pro rata portion of these additional shares based on the underwriter's underwriting commitment in this offering as indicated in the table at the beginning of this Underwriting Section.
We, all of the predecessor principals and our other directors and executive officers and each of the other continuing investors have agreed with the underwriters that, subject to certain limited exceptions, without the prior written consent of each of Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Citigroup Global Markets Inc., we and they will not directly or indirectly, (1) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of common stock (including, without limitation, shares of common stock that may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and shares of common stock that may be issued upon exercise of any options or warrants) or securities convertible into or exercisable or exchangeable for common stock, (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic consequences of ownership of the common stock, (3) make any demand for or exercise any right or file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of common stock or securities convertible, exercisable or exchangeable into common stock or any of our other securities, or (4) publicly disclose the intention to do any of the foregoing for a period of 360 days after the date of this prospectus, in the case of the predecessor principals and our other directors and executive officers, and 180 days after the date of this prospectus, in the case of the other continuing investors. These lock-up agreements are subject to exceptions, including dispositions by gift, will or intestacy; transfers to immediate family members or entities wholly owned by or for the benefit of a continuing investor, its affiliates or members of its immediate family; dispositions to a corporation that is owned by a continuing investor and its affiliates alone or with other continuing investors; distributions to partners, members or stockholders of a continuing investor; and dispositions to charitable organizations. For continuing investors other than the predecessor principals and any director or executive officer, the foregoing restrictions will not apply to shares of our common stock that are purchased in the open market.
The 360-day and 180-day restricted periods described in the preceding paragraph will be extended if:
in which case the restrictions described in the preceding paragraph will continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or material event.
Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Citigroup Global Markets Inc., in their sole discretion, may release the common stock and other securities subject to the lock-up agreements described above in whole or in part at any time with or without notice. When determining whether or not to release common stock and other securities from lock-up agreements, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Citigroup Global Markets Inc., will consider, among other factors, the holder's reasons for requesting the release, the
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number of shares of common stock and other securities for which the release is being requested and market conditions at the time.
Prior to this offering, there has been no public market for our common stock. The initial public offering price will be negotiated between the representatives and us. In determining the initial public offering price of our common stock, the representatives will consider:
We have agreed to indemnify the underwriters against certain liabilities, including liabilities under the Securities Act and liabilities incurred in connection with the directed share program referred to below, and to contribute to payments that the underwriters may be required to make for these liabilities.
At our request up to 5% of the offering has been reserved for sale at the initial public offering price to persons who are directors, officers or employees, business associates or other person through a directed share program. The number of shares of common stock available for sale to the general public will be reduced by the number of directed shares purchased by participants in the program. Any directed shares not purchased will be offered by the underwriters to the general public on the same basis as all other shares of common stock offered. Individuals who purchase shares in the directed share program will be subject to a 180-day lockup period from the date of this prospectus on the same basis as described above for continuing investors other than the predecessor principals, including, if applicable, the extension period. The predecessor principals are subject to a 360-day lockup.
Stabilization, Short Positions and Penalty Bids
The representatives of the underwriters may engage in stabilizing transactions, short sales and purchases to cover positions created by short sales, and penalty bids or purchases for the purpose of pegging, fixing or maintaining the price of the common stock, in accordance with Regulation M under the Securities Exchange Act of 1934:
232
their option to purchase additional shares. The underwriters may close out any short position by either exercising their option to purchase additional shares and/or purchasing shares in the open market. In determining the source of shares to close out the short position, the underwriters will consider, among other things, the price of shares available for purchase in the open market as compared to the price at which they may purchase shares through their option to purchase additional shares. A naked short position is more likely to be created if the underwriters are concerned that there could be downward pressure on the price of the shares in the open market after pricing that could adversely affect investors who purchase in this offering.
These stabilizing transactions, syndicate covering transactions and penalty bids may have the effect of raising or maintaining the market price of our common stock or preventing or retarding a decline in the market price of the common stock. As a result, the price of the common stock may be higher than the price that might otherwise exist in the open market. These transactions may be effected on the New York Stock Exchange or otherwise and, if commenced, may be discontinued at any time.
Neither we nor any of the underwriters make any representation or prediction as to the direction or magnitude of any effect that the transactions described above may have on the price of the common stock. In addition, neither we nor any of the underwriters make any representation that the representatives will engage in these stabilizing transactions or that any transaction, once commenced, will not be discontinued without notice.
A prospectus in electronic format may be made available on the Internet sites or through other online services maintained by one or more of the underwriters and/or selling group members participating in this offering, or by their affiliates. In those cases, prospective investors may view offering terms online and, depending upon the particular underwriter or selling group member, prospective investors may be allowed to place orders online. The underwriters may agree with us to allocate a specific number of shares for sale to online brokerage account holders. Any such allocation for online distributions will be made by the representatives on the same basis as other allocations.
Other than the prospectus in electronic format, the information on any underwriter's or selling group member's web site and any information contained in any other web site maintained by an underwriter or selling group member is not part of the prospectus or the registration statement of which this prospectus forms a part, has not been approved and/or endorsed by us or any underwriter or selling group member in its capacity as underwriter or selling group member and should not be relied upon by investors.
We have applied to list our shares of common stock for quotation on the New York Stock Exchange under the symbol "DEI." The underwriters have undertaken to sell the shares of common stock in this offering to a minimum of 2,000 beneficial owners in round lots of 100 or more units to meet the New York Stock Exchange distribution requirements for trading.
233
The underwriters have informed us that they do not intend to confirm sales to discretionary accounts that exceed 5% of the total number of shares offered by them.
If you purchase shares of common stock offered in this prospectus, you may be required to pay stamp taxes and other charges under the laws and practices of the country of purchase, in addition to the offering price listed on the cover page of this prospectus.
The underwriters may in the future perform investment banking and advisory services for us from time to time for which they may in the future receive customary fees and expenses. The underwriters may, from time to time, engage in transactions with or perform services for us in the ordinary course of their business.
In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a Relevant Member State), each underwriter has represented and agreed that, with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the Relevant Implementation Date), it has not made and will not make an offer of shares to the public in that Relevant Member State prior to the publication of a prospectus in relation to the shares which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of shares to the public in that Relevant Member State at any time:
For the purposes of this provision, the expression an "offer of shares to the public" in relation to any shares in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the shares to be offered so as to enable an investor to decide to purchase or subscribe the shares, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression Prospectus Directive means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
Each underwriter has represented and agreed that:
234
not offered or sold and will not offer or sell the shares other than to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or as agent) for the purposes of their businesses or who it is reasonable to expect will acquire, hold, manage or dispose of investments (as principal or agent) for the purposes of their businesses where the issue of the shares would otherwise constitute a contravention of Section 19 of the FSMA by the issuer;
Certain legal matters will be passed upon for us by Skadden, Arps, Slate, Meagher & Flom LLP, Los Angeles, California and for the underwriters by Latham & Watkins LLP, Los Angeles, California. Hogan & Hartson LLP acted as special counsel to us on certain matters. Venable LLP, Baltimore, Maryland, has issued an opinion to us regarding certain matters of Maryland law, including the validity of the common stock offered hereby.
Ernst & Young LLP, independent registered public accounting firm, has audited (i) the balance sheet of Douglas Emmett, Inc. at June 30, 2006 as set forth in their report, (ii) the consolidated financial statements and schedule of Douglas Emmett Realty Advisors, Inc. and Subsidiaries at December 31, 2005 and 2004, and for each of the three years in the period ended December 31, 2005, as set forth in their report, (iii) the financial statements of Douglas, Emmett and Company at December 31, 2005 and 2004, and for each of the three years in the period ended December 31, 2005, as set forth in their report and (iv) the statements of revenues and certain expenses of the Douglas Emmett Single Asset Entities for each of the three years in the period ended December 31, 2005, as set forth in their report. We have included each of the foregoing financial statements in the prospectus and elsewhere in the registration statement in reliance on Ernst & Young LLP's report, given on their authority as experts in accounting and auditing.
The Eastdil Secured market studies, which will be filed as an exhibit to this registration statement, were prepared for us by Eastdil Secured. Information relating to the Los Angeles and Hawaii metropolitan area economies and the markets within Los Angeles County set forth in "Prospectus SummaryMarket Information," "Economic and Market Overview" and "Business and Properties" is derived from, and is subject to the qualifications and assumptions in, the Eastdil Secured market studies and is included in reliance on Eastdil Secured's authority as an expert on such matters.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-11, including exhibits, schedules and amendments filed with this registration statement, under the Securities Act with respect to the shares of our common stock to be sold in this offering. This prospectus does not contain all of the information set forth in the registration statement and exhibits and schedules to the registration statement. For further information with respect to our company and the shares of our common stock to be sold in this offering, reference is made to the registration statement, including the exhibits to the registration statement. Statements contained in this prospectus as to the contents of any contract or
235
other document referred to in this prospectus are not necessarily complete and, where that contract is an exhibit to the registration statement, each statement is qualified in all respects by the exhibit to which the reference relates. Copies of the registration statement, including the exhibits and schedules to the registration statement, may be examined without charge at the public reference room of the Securities and Exchange Commission, 100 F Street, N.E., Washington, DC 20549. Information about the operation of the public reference room may be obtained by calling the Securities and Exchange Commission at 1-800-SEC-0300. Copies of all or a portion of the registration statement can be obtained from the public reference room of the SEC upon payment of prescribed fees. Our SEC filings, including our registration statement, are also available to you on the SEC Web site, www.sec.gov.
236
Douglas Emmett, Inc. and Subsidiaries: | ||||
Unaudited Pro Forma Consolidated Financial Information: |
|
|
||
Pro Forma Consolidated Balance Sheet as of June 30, 2006 | F-6 | |||
Pro Forma Consolidated Statement of Operations for the six months ended June 30, 2006 | F-7 | |||
Pro Forma Consolidated Statement of Operations for the year ended December 31, 2005 | F-8 | |||
Notes to Unaudited Pro Forma Consolidated Financial Statements | F-9 | |||
Historical Financial Information: |
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|
||
Report of Independent Registered Public Accounting Firm | F-25 | |||
Consolidated Balance Sheet as of June 30, 2006 | F-26 | |||
Notes to Consolidated Balance Sheet as of June 30, 2006 | F-27 | |||
Douglas Emmett Realty Advisors, Inc.: |
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Consolidated Balance Sheets as of June 30, 2006 (unaudited) and December 31, 2005 |
|
F-29 |
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Consolidated Statements of Operations for the six months ended June 30, 2006 and 2005 (unaudited) | F-30 | |||
Consolidated Statements of Stockholders' Equity (Deficit) for the six months ended June 30, 2006 (unaudited) | F-31 | |||
Consolidated Statements of Cash Flows for the six months ended June 30, 2006 and 2005 (unaudited) | F-32 | |||
Notes to Consolidated Financial Statements | F-33 | |||
Report of Independent Registered Public Accounting Firm |
|
F-47 |
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Consolidated Balance Sheets as of December 31, 2005 and 2004 | F-48 | |||
Consolidated Statements of Operations for the years ended December 31, 2005, 2004 and 2003 | F-49 | |||
Consolidated Statements of Stockholders' Equity (Deficit) for the years ended December 31, 2005, 2004 and 2003 | F-50 | |||
Consolidated Statements of Cash Flows for the years ended December 31, 2005, 2004 and 2003 | F-51 | |||
Notes to Consolidated Financial Statements | F-52 | |||
Schedule III | F-71 | |||
Douglas, Emmett and Company: |
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||
Balance Sheets as of June 30, 2006 (unaudited) and December 31, 2005 |
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F-73 |
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Statements of Income for the six months ended June 30, 2006 and 2005 (unaudited) | F-74 | |||
Statements of Cash Flows for the six months ended June 30, 2006 and 2005 (unaudited) | F-75 | |||
Notes to Financial Statements | F-76 | |||
Report of Independent Registered Public Accounting Firm |
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F-80 |
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Balance Sheets as of December 31, 2005 and December 31, 2004 | F-81 | |||
Statements of Income for the years ended December 31, 2005, 2004 and 2003 | F-82 | |||
Statements of Stockholders' Equity for the years ended December 31, 2005, 2004 and 2003 | F-83 | |||
Statements of Cash Flows for the years ended December 31, 2005, 2004 and 2003 | F-84 | |||
Notes to Financial Statements | F-85 | |||
F-1
Douglas Emmett Single Asset Entities: |
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Combined Statements of Revenues and Certain Expenses for the six months ended June 30, 2006 and 2005 (unaudited) |
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F-89 |
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Report of Independent Registered Public Accounting Firm |
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F-93 |
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Combined Statements of Revenues and Certain Expenses for the years ended December 31, 2005, 2004 and 2003 | F-94 | |||
Notes to Combined Statements of Revenues and Certain Expenses | F-95 |
F-2
Douglas Emmett, Inc. and Subsidiaries
Pro Forma Consolidated Financial Statements
(Unaudited)
The unaudited pro forma consolidated financial statements of Douglas Emmett, Inc. (together with its consolidated subsidiaries, the "Company", "we", "our" or "us") as of and for the six months ended June 30, 2006 and for the year ended December 31, 2005 are derived from the financial statements of: (1) the Company, (2) Douglas Emmett Realty Advisors, Inc. ("DERA") and its consolidated subsidiaries which consist of nine California limited partnerships, referred to as the institutional funds, and their subsidiaries (collectively, the "Predecessor"), (3) Douglas, Emmett and Company ("DECO"), (4) P.L.E. Builders, Inc. ("PLE") and (5) seven California partnerships and one California limited liability company, collectively referred to as the single-asset entities ("SAEs"), and are presented as if this offering (including the application of the net proceeds therefrom as set forth under "Use of Proceeds"), the formation transactions, the financing transactions (each as described below) and the contribution of $60.0 million to DERA by our predecessor principals had occurred on June 30, 2006 for the pro forma consolidated balance sheet and on January 1, 2005 for the pro forma consolidated statements of operations. The acquisition of the Villas at Royal Kunia ("Royal Kunia") occurred on March 1, 2006 and the pro forma consolidated statements of operations are presented as if the acquisition and related financing had each occurred on January 1, 2005. The Predecessor also acquired a multifamily property and an office property in early January 2005. These properties and the results of their operations have been included in the Predecessor's financial statements since the date of their acquisition; however, we have not adjusted the pro forma consolidated statements of operations to reflect the financial results of these acquisitions from January 1, 2005 to their respective closing dates in early January 2005, as we believe that the impact of these adjustments would not be meaningful.
Our pro forma consolidated financial statements are presented for informational purposes only and should be read in conjunction with the historical financial statements and related notes thereto included elsewhere in this prospectus. The adjustments to our pro forma consolidated financial statements are based on available information and assumptions that we consider reasonable. Our pro forma consolidated financial statements do not purport to (1) represent our financial position that would have actually occurred had this offering, the formation transactions or the financing transactions occurred on June 30, 2006, (2) represent the results of our operations that would have actually occurred had this offering, the formation transactions, the financing transactions or the acquisition of Royal Kunia occurred on January 1, 2005, and (3) project our financial position or results of operations as of any future date or for any future period, as applicable.
We were formed as a Maryland corporation on June 28, 2005 to continue and expand the operations of DERA, DECO, PLE and their predecessors. Douglas Emmett Properties, LP, our operating partnership, was formed as a Delaware limited partnership on July 25, 2005. Douglas Emmett Management, Inc., a wholly-owned subsidiary that we formed as a Delaware limited liability company under the name Douglas Emmett, LLC on July 25, 2005 and will convert to a corporation prior to this offering, owns the general partnership interest in our operating partnership, while we own all of the outstanding limited partnership interests therein prior to the formation transactions. Upon completion of the offering and the formation transactions, we expect our operations to be carried on through our operating partnership. At such time, the Company, as a limited partner of, and as sole stockholder of the general partner of, the operating partnership, will own, directly or indirectly, 68.9% of the operating partnership and will have control of the operating partnership, as determined under EITF 04-5, Investor's Accounting for an Investment in a Limited Partnership When the Investor is the Sole General Partner and the Limited Partner has Certain Rights . Accordingly, the Company will consolidate the assets, liabilities and results of operations of the operating partnership. Upon completion of this offering, assuming a price per share in this offering equal to the mid-point of the range set forth on the
F-3
cover page of this prospectus, Dan Emmett, Christopher Anderson, Jordan Kaplan and Kenneth Panzer, the principals of DERA, DECO and PLE (collectively referred to as "the predecessor principals"), will own, directly or indirectly, approximately 17.0% of the operating partnership as limited partners, and approximately 12.3% of the Company's outstanding common stock.
Pursuant to the formation transactions, we will acquire DERA, DECO and PLE through a series of merger and contribution transactions in exchange for shares of our common stock and units in our operating partnership. DERA is also the general partner of the institutional funds and three investment funds that own interests in certain of the institutional funds. We will acquire the institutional funds, the investment funds and the SAEs through a series of merger and contribution transactions. In these acquisitions, all investors in these entities will receive as consideration, pursuant to irrevocable elections made by them prior to the filing of the registration statement of which this prospectus forms a part, cash and/or operating partnership units or shares of our common stock. Our operating partnership will also acquire outstanding minority interests in certain subsidiaries of the institutional funds through a contribution transaction whereby the holder of the minority interests will receive operating partnership units. Upon completion of this offering, we will redeem outstanding preferred minority interests in two of the institutional funds for cash. These transactions will all be made upon completion of this offering.
Upon completion of this offering, we also will amend our existing $1.76 billion secured financing by increasing the amount of the term loan by $545.0 million, the proceeds from which we expect to use, together with cash on hand, $60.0 million contributed to DERA by the predecessor principals and the net proceeds from this offering to pay the cash consideration in the formation transactions, to pay the pre-closing property distributions, to redeem preferred minority interests, to repay certain variable rate debt and to pay related fees and expenses. Upon completion of this offering, the formation transactions, and the financing transactions, assuming an offering at the mid-point of the range of prices set forth on the cover page of this prospectus, we expect our total outstanding indebtedness to increase by approximately $210 million to $2.75 billion, excluding the loan premium of $31.0 million.
Any interests in the pre-formation transaction entities contributed by or purchased from DERA in the formation transactions will be recorded at historical cost, as DERA is the accounting acquirer. The contribution or acquisition of all interests other than those directly owned by DERA will be accounted for as an acquisition under the purchase method of accounting in accordance with SFAS No. 141, Business Combinations ("SFAS 141") and recorded at the estimated fair value of acquired assets and assumed liabilities corresponding to their ownership interests. The fair values of tangible assets acquired are determined on an "as-if-vacant" basis. The "as-if-vacant" fair value is allocated to land, building and tenant improvements based on relevant information obtained in connection with the acquisition of these interests. The estimated fair value of acquired in-place at-market leases are the costs we would have incurred to lease the property to the occupancy level of the property at the date of acquisition. Such estimates include the fair value of leasing commissions and legal costs that would be incurred to lease this property to this occupancy level. Additionally, we evaluate the time period over which such occupancy level would be achieved and include an estimate of the net operating costs (primarily real estate taxes, insurance and utilities) incurred during the lease-up period, which generally ranges up to 8-12 months. Above-market and below-market in-place lease values are recorded as an asset or liability based on the present value (using an interest rate which reflects the risks associated with the leases acquired) of the difference between the contractual amounts to be paid pursuant to the in-place leases and our estimate of fair market lease rates for the corresponding in-place leases, measured over a period equal to the remaining non-cancelable term of the lease for office property leases and our estimate of the remaining life of the tenancy of multifamily property tenants. The fair
F-4
value of the variable rate debt assumed was determined using current market interest rates for comparable debt financings.
For an analysis of how a change in the price per share in this offering from the mid-point of the range set forth on the cover page of this prospectus affects the pro forma financial information, see "Pricing Sensitivity Analysis" below.
F-5
Douglas Emmett, Inc. and Subsidiaries
Pro Forma Consolidated Balance Sheet
June 30, 2006
(Unaudited and in thousands)
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Acquisitions and Contributions
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Company
Pro Forma Before Offering and Financing Transactions |
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Use of Proceeds
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Douglas
Emmett, Inc and Subsidiaries |
Predecessor
|
Acquisition of
Predecessor Minority Interests |
Acquisition of
Single Asset Entities |
Acquisition
of DECO & PLE |
Proceeds
From Offering |
Financing and Other Equity
Transactions |
Debt and
Preferred Repayments |
Formation
Transaction Consideration |
Other
Pro Forma Adjustments |
Company
Pro Forma |
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(A)
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(B)
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(C)
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(D)
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(E)
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(F)
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(G)
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(G)
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(I)
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Assets | ||||||||||||||||||||||||||||||||||||||
Investment in real estate, net | $ | | $ | 2,707,477 | $ | 2,926,193 | $ | 230,946 | $ | | $ | 5,864,616 | $ | | $ | | $ | | $ | | $ | | $ | 5,864,616 | ||||||||||||||
Cash and cash equivalents | 2 | 100,502 | | 2,918 | | 103,422 | 1,032,354 | 540,570 | (338,251 | ) | (1,032,354 | ) | | 13,422 | ||||||||||||||||||||||||
60,000 | (H) | | (202,319 | )(G) | ||||||||||||||||||||||||||||||||||
(150,000 | ) | | ||||||||||||||||||||||||||||||||||||
Tenant recievables | | 4,830 | | 35 | 2,104 | 6,969 | (2,104 | )(K) | 4,865 | |||||||||||||||||||||||||||||
Deferred rent receivables | | 66,406 | (65,818 | ) | | | 588 | (268 | )(K) | 320 | ||||||||||||||||||||||||||||
Interest rate contracts | | 137,547 | | | | 137,547 | 137,547 | |||||||||||||||||||||||||||||||
Other assets | 7,104 | 39,806 | 23,406 | 1,155 | 2,287 | 73,758 | (7,104 | ) | 4,430 | (7,110 | )(L) | 63,974 | ||||||||||||||||||||||||||
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Total assets | $ | 7,106 | $ | 3,056,568 | $ | 2,883,781 | $ | 235,054 | $ | 4,391 | $ | 6,186,900 | $ | 1,025,250 | $ | 605,000 | $ | (338,251 | ) | $ | (1,384,673 | ) | $ | (9,482 | ) | $ | 6,084,744 | |||||||||||
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Liabilities | ||||||||||||||||||||||||||||||||||||||
Secured notes payable | | $ | 2,305,500 | $ | 31,000 | $ | 50,921 | $ | | $ | 2,387,421 | $ | | $ | 545,000 | (151,421 | ) | $ | | $ | | $ | 2,781,000 | |||||||||||||||
Due to a Related Party | 7,110 | | 7,110 | | | | (7,110 | )(L) | | |||||||||||||||||||||||||||||
Accounts payable, accrued expenses and tenant security deposits | | 84,848 | 230,707 | 2,881 | 3,358 | 321,794 | | | (2,104 | )(K) | 319,422 | |||||||||||||||||||||||||||
(268 | )(K) | |||||||||||||||||||||||||||||||||||||
Interest rate contracts | | 11,592 | | | | 11,592 | | | 11,592 | |||||||||||||||||||||||||||||
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Total liabilities | $ | 7,110 | $ | 2,401,940 | $ | 261,707 | $ | 53,802 | $ | 3,358 | $ | 2,727,917 | $ | | $ | 545,000 | $ | (151,421 | ) | $ | | $ | (9,482 | ) | $ | 3,112,014 | ||||||||||||
Preferred minority interest in consolidated real estate partnerships | 184,000 | 184,000 | (184,000 | ) | | |||||||||||||||||||||||||||||||||
Minority interest and other non-controlling interest in real estate partnerships | | 557,694 | 2,622,074 | 181,252 | 1,033 | 3,362,053 | | (1,032,354 | ) | | ||||||||||||||||||||||||||||
| (202,319 | )(G) | ||||||||||||||||||||||||||||||||||||
(150,000 | ) | |||||||||||||||||||||||||||||||||||||
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(1,977,380 | )(J) | |||||||||||||||||||||||||||||||||||||
Minority interests in operating partnership | | | | | | | 925,738 | (J) | | 925,738 | ||||||||||||||||||||||||||||
Stockholders' equity (deficit) | ||||||||||||||||||||||||||||||||||||||
Owners' equity / (deficit) | | (27,066 | ) | | | | (27,066 | ) | | (2,830 | ) | 29,896 | (M) | | ||||||||||||||||||||||||
Notes receivable from stockholders | (60,000 | ) | (60,000 | ) | 60,000 | (H) | | |||||||||||||||||||||||||||||||
Common stock and additional paid in capital | (4 | ) | | | | | (4 | ) | 1,032,354 | 1,051,642 | (J) | (29,896 | )(M) | 2,046,992 | ||||||||||||||||||||||||
(7,104 | ) | |||||||||||||||||||||||||||||||||||||
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Total stockholders' equity (deficit) | $ | (4 | ) | $ | (87,066 | ) | $ | | $ | | $ | | $ | (87,070 | ) | $ | 1,025,250 | $ | 60,000 | $ | (2,830 | ) | $ | 1,051,642 | $ | | $ | 2,046,992 | ||||||||||
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Total liabilities and owners' deficit/stockholders' equity | $ | 7,106 | $ | 3,056,568 | $ | 2,883,781 | $ | 235,054 | $ | 4,391 | $ | 6,186,900 | $ | 1,025,250 | $ | 605,000 | $ | (338,251 | ) | $ | (1,384,673 | ) | $ | (9,482 | ) | $ | 6,084,744 | |||||||||||
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See accompanying notes
F-6
Douglas Emmett, Inc. and Subsidiaries
Pro Forma Consolidated Statement of Operations
For the Six Months Ended June 30, 2006
(Unaudited and in thousands, except per share amounts)
|
Predecessor
|
Acquisition of
Predecessor Minority Interests |
Acquisition of
DECO & PLE |
Acquisition of
Single Asset Entities |
Acquisition of
The Villas at Royal Kunia |
Financing
Transactions |
Other
Pro Forma Adjustments |
Company
Pro Forma |
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(AA)
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(BB)
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(CC)
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(DD)
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(EE)
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(FF)
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Revenues: | |||||||||||||||||||||||||||
Office rental: | |||||||||||||||||||||||||||
Rental revenues | $ | 150,519 | $ | 21,250 | $ | | $ | 4,023 | $ | | $ | | $ | | $ | 175,792 | |||||||||||
Tenant recoveries | 8,903 | | | 198 | | | | 9,101 | |||||||||||||||||||
Parking and other income | 20,031 | | | 439 | | | | 20,470 | |||||||||||||||||||
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Total office revenue | 179,453 | 21,250 | | 4,660 | | | | 205,363 | |||||||||||||||||||
Multifamily rental: |
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Rental revenues | 25,900 | 2,115 | | 1,121 | 1,062 | | | 30,198 | |||||||||||||||||||
Parking and other income | 824 | | | 19 | 101 | | | 944 | |||||||||||||||||||
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|
||||||||||||||||||||
Total multifamily revenue | 26,724 | 2,115 | | 1,140 | 1,163 | | | 31,142 | |||||||||||||||||||
|
|
|
|
|
|
|
|
||||||||||||||||||||
Total revenues | 206,177 | 23,365 | | 5,800 | 1,163 | | | 236,505 | |||||||||||||||||||
Operating Expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
Office rental | 61,132 | | | 825 | | | (4,055 | )(CC) | 57,902 | ||||||||||||||||||
Multifamily rental | 8,696 | | | 181 | 336 | | (786 | )(CC) | 8,427 | ||||||||||||||||||
General and administrative | 3,136 | | 2,908 | 560 | | | 750 | (GG) | 7,354 | ||||||||||||||||||
Depreciation and amortization | 53,616 | 41,897 | | 2,850 | 351 | | | 98,714 | |||||||||||||||||||
|
|
|
|
|
|
|
|
||||||||||||||||||||
Total operating expenses | 126,580 | 41,897 | 2,908 | 4,416 | 687 | | (4,091 | ) | 172,397 | ||||||||||||||||||
Operating income |
|
|
79,597 |
|
|
(18,532 |
) |
|
(2,908 |
) |
|
1,384 |
|
|
476 |
|
|
|
|
|
4,091 |
|
|
64,108 |
|
||
Gain on interest rate contracts, net |
|
|
59,967 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(59,967 |
)(FF) |
|
|
|
||
Interest and other income | 2,548 | | 67 | | | | (900 | )(HH) | 1,715 | ||||||||||||||||||
Interest expense | (58,055 | ) | 1,313 | | (1,504 | ) | (790 | ) | (26,363 | ) | | (85,399 | ) | ||||||||||||||
Deficit recovery (distributions) from/to minority partners, net | 6,248 | | | | | | (6,248 | )(II) | | ||||||||||||||||||
|
|
|
|
|
|
|
|
||||||||||||||||||||
Income (loss) before minority interest expense |
|
|
90,305 |
|
|
(17,219 |
) |
|
(2,841 |
) |
|
(120 |
) |
|
(314 |
) |
|
(26,363 |
) |
|
(63,024 |
) |
|
(19,576 |
) |
||
Minority Interests: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
Minority interest in consolidated real estate partnerships | 64,434 | | | | | | (64,434 | )(JJ) | | ||||||||||||||||||
Minority interest in operating partnerships | (6,096 | ) | (6,096 | ) | |||||||||||||||||||||||
Preferred minority investor | 8,050 | | | | | (8,050 | ) | | |||||||||||||||||||
|
|
|
|
|
|
|
|
||||||||||||||||||||
Net income (loss) | $ | 17,821 | $ | (17,219 | ) | $ | (2,841 | ) | $ | (120 | ) | $ | (314 | ) | $ | (18,313 | ) | $ | 7,506 | $ | (13,480 | ) | |||||
|
|
|
|
|
|
|
|
||||||||||||||||||||
Pro Forma earnings per sharebasic and diluted |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(0.12 |
)(KK) |
||
|
|||||||||||||||||||||||||||
Pro Forma weighted average common shares outstandingbasic and diluted |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
113,617,573 |
|
||
|
See accompanying notes
F-7
Douglas Emmett, Inc. and Subsidiaries
Pro Forma Consolidated Statement of Operations
For the Year Ended December 31, 2005
(Unaudited and in thousands, except per share amounts)
|
Predecessor
|
Acquisition of
Predecessor Minority Interests |
Acquisition of
DECO & PLE |
Acquisition of
Single Asset Entities |
Acquisition of
The Villas at Royal Kunia |
Financing
Transactions |
Other
Pro Forma Adjustments |
Company
Pro Forma |
|||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
(AA)
|
(BB)
|
(CC)
|
(DD)
|
(EE)
|
(FF)
|
|
|
|||||||||||||||||||
Revenues: | |||||||||||||||||||||||||||
Office rental: | |||||||||||||||||||||||||||
Rental revenues | $ | 297,551 | $ | 33,329 | $ | | $ | 7,270 | $ | | $ | | $ | | $ | 338,150 | |||||||||||
Tenant recoveries | 14,632 | | | 347 | | | | 14,979 | |||||||||||||||||||
Parking and other income | 36,383 | | | 740 | | | | 37,123 | |||||||||||||||||||
|
|
|
|
|
|
|
|
||||||||||||||||||||
Total office revenue | 348,566 | 33,329 | | 8,357 | | | | 390,252 | |||||||||||||||||||
Multifamily rental: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
Rental revenues | 43,942 | 8,224 | | 2,217 | 6,632 | | | 61,015 | |||||||||||||||||||
Parking and other income | 1,280 | | | 26 | 603 | | | 1,909 | |||||||||||||||||||
|
|
|
|
|
|
|
|
||||||||||||||||||||
Total multifamily revenue | 45,222 | 8,224 | | 2,243 | 7,235 | | | 62,924 | |||||||||||||||||||
|
|
|
|
|
|
|
|
||||||||||||||||||||
Total revenues | 393,788 | 41,553 | | 10,600 | 7,235 | | | 453,176 | |||||||||||||||||||
Operating Expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
Office rental | 119,879 | | | 1,839 | | | (7,779 | )(CC) | 113,939 | ||||||||||||||||||
Multifamily rental | 15,347 | | | 299 | 2,018 | | (1,352 | )(CC) | 16,312 | ||||||||||||||||||
General and administrative expenses | 6,457 | | 6,135 | 905 | | | 1,500 | (GG) | 14,997 | ||||||||||||||||||
Depreciation and amortization | 113,170 | 97,101 | | 6,428 | 5,021 | | | 221,720 | |||||||||||||||||||
|
|
|
|
|
|
|
|
||||||||||||||||||||
Total operating expenses | 254,853 | 97,101 | 6,135 | 9,471 | 7,039 | | (7,631 | ) | 366,968 | ||||||||||||||||||
Operating income |
|
|
138,935 |
|
|
(55,548 |
) |
|
(6,135 |
) |
|
1,129 |
|
|
196 |
|
|
|
|
|
7,631 |
|
|
86,208 |
|
||
Gain on interest rate contracts, net |
|
|
81,666 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(81,666 |
)(FF) |
|
|
|
||
Interest and other income | 2,264 | | 80 | | | | (1,800 | )(HH) | 544 | ||||||||||||||||||
Interest expense | (115,674 | ) | 2,572 | | (2,397 | ) | (4,741 | ) | (55,606 | ) |
|
(175,846 | ) | ||||||||||||||
Deficit recovery (distributions) from/to minority partners, net | (28,150 | ) | | | | | | 28,150 | (II) | | |||||||||||||||||
|
|
|
|
|
|
|
|
||||||||||||||||||||
Income (loss) before minority interest expense | 79,041 | (52,976 | ) | (6,055 | ) | (1,268 | ) | (4,545 | ) | (55,606 | ) | (47,685 | ) | (89,094 | ) | ||||||||||||
Minority Interests: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
Minority interest in consolidated real estate partnerships | 79,756 | | | | | | (79,756 | )(JJ) | | ||||||||||||||||||
Minority interest in operating partnerships | (27,744 | ) | (27,744 | ) | |||||||||||||||||||||||
Preferred minority investor | 15,805 | | | | | (15,805 | ) | | | ||||||||||||||||||
|
|
|
|
|
|
|
|
||||||||||||||||||||
Net income (loss) | $ | (16,520 | ) | $ | (52,976 | ) | $ | (6,055 | ) | $ | (1,268 | ) | $ | (4,545 | ) | $ | (39,801 | ) | $ | 59,815 | $ | (61,350 | ) | ||||
|
|
|
|
|
|
|
|
||||||||||||||||||||
Pro Forma earnings per sharebasic and diluted |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(0.54 |
)(KK) |
||
|
|||||||||||||||||||||||||||
Pro Forma weighted average common shares outstandingbasic and diluted |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
113,617,573 |
|
||
|
See accompanying notes
F-8
Douglas Emmett, Inc. and Subsidiaries
Notes to Pro Forma Consolidated Financial Statements
(Unaudited and in thousands, except per share amounts)
1. Adjustments to the Pro Forma Consolidated Balance Sheet
The adjustments to the pro forma consolidated balance sheet as of June 30, 2006 are as follows:
F-9
from all prior investors other than DERA will be accounted for as an acquisition of minority interests under the purchase method of accounting in accordance with SFAS 141 and recorded at the estimated fair value of acquired assets and assumed liabilities. See note (I) below for a summary of total consideration paid in connection with the formation transactions.
Consideration paid to purchase investors' interests | $ | 3,179,768 | ||
Less: historical cost of minority interests | (557,694 | ) | ||
|
||||
Pro forma net equity adjustment | $ | 2,622,074 | ||
|
The following pro forma adjustments are necessary to reflect the initial allocation of purchase price. The allocation of purchase price shown below is based on the Company's preliminary estimates and is subject to change based on the final determination of the fair value of assets and liabilities acquired.
Land | $ | 243,612 | ||
Building and equipment | 2,011,328 | |||
Tenant improvements and other in-place lease assets | 116,571 | |||
Accumulated depreciation | 554,682 | |||
|
||||
Investment in real estate, net | $ | 2,926,193 | ||
Deferred rent receivable | (65,818 | ) | ||
Above-market tenant leases | 37,236 | |||
Deferred financing costs | (13,830 | ) | ||
|
||||
Adjustment to total assets | $ | 2,883,781 | ||
Secured notes payable | 31,000 | |||
Below-market tenant leases | 230,707 | |||
|
||||
Adjustment to total liabilities | $ | 261,707 | ||
|
||||
Net purchase price adjustment | $ | 2,622,074 | ||
|
F-10
subject to change based on the final determination of the fair value of assets and liabilities acquired.
Land | $ | 49,174 | |
Building and equipment | 175,098 | ||
Tenant improvements and other in-place lease value | 6,674 | ||
|
|||
Investment in real estate, net | $ | 230,946 | |
Cash and cash equivalents | 2,918 | ||
Tenant receivables | 35 | ||
Other assets | 1,155 | ||
|
|||
Adjustment to total assets | $ | 235,054 | |
Secured notes payable | 50,921 | ||
Accounts payable, accrued expenses and security deposits | 2,881 | ||
|
|||
Adjustment to total liabilities | $ | 53,802 | |
|
|||
Consideration paid to purchase SAEs | $ | 181,252 | |
|
The following pro forma adjustments are necessary to reflect the initial allocation of purchase price. The allocation of purchase price shown below is based on the Company's
F-11
preliminary estimates and is subject to change based on the final determination of the fair value of assets and liabilities acquired.
Other receivables (1) | 2,104 | ||
Prepaid expenses and other assets (2) | 2,237 | ||
Property and equipment, net | 50 | ||
|
|||
Adjustment to total assets | $ | 4,391 | |
|
|||
Accounts payable |
|
|
3,089 |
Deferred rent liability (1) | 269 | ||
|
|||
Adjustments to total liabilities | $ | 3,358 | |
|
|||
Consideration paid to acquire DECO and PLE | $ | 1,033 | |
|
Gross proceeds from offering | $ | 1,100,000 | |||
Less costs of this offering: |
|
|
|
|
|
Underwriters' discount and commissions, financial advisory fees and other costs (1) | (67,646 | ) | |||
|
|||||
Net proceeds from offering | $ | 1,032,354 | |||
|
|||||
Common stock and additional paid in capital | $ | 1,032,354 | |||
|
F-12
$1,760,000 secured financing to increase the term loan by $545,000 at the existing rate of LIBOR plus 0.85%, referred to as our "modified term loan". We expect to use the full amount of the increase upon consummation of this offering. We expect to use the proceeds from the modified term loan, together with cash on hand and net proceeds from this offering, to pay the cash consideration in the formation transaction, repay certain variable rate debt, redeem preferred minority interests, pay the pre-closing property distributions and pay related fees and expenses. See also note (I) below. We have also entered into an agreement with Bank of America, N.A. and Banc of America Securities, LLC to provide a $250.0 million (or $500.0 million pursuant to an accordian feature) senior secured revolving credit facility, which we expect will be in place and undrawn at the closing of this offering, assuming a price per share in this offering at the mid-point of the range of prices set forth on the cover page of this prospectus.
For purposes of this presentation, the proceeds from the modified term loan have been applied to (1) pay $4,430 in financing fees, which includes $1,750 in fees associated with the senior secured revolving credit facility (2) pay down certain variable rate debt of the SAEs totaling $50,921 (see note (D) above) (3) redeem outstanding preferred minority interests in two of the institutional funds totaling $184,000, (4) pay $2,830 in related premiums and other costs, and (5) pay cash to prior investors in the formation transactions totaling $202,319, assuming an offering price at the mid-point of the range set forth on the cover page of this prospectus. In addition, shortly after this offering we expect to repay the
F-13
$100,500 loan secured by our property, The Trillium, which matures in January 2007. We may prepay the Trillium loan beginning in October 2006 without penalty.
Debt Repayment
|
Principal
|
||||
---|---|---|---|---|---|
Modified Term Loan | $ | 545,000 | |||
Loan fees and costs | (4,430 | ) | |||
|
|||||
Net proceeds | $ | 540,570 | |||
Repayments | |||||
Brentwood Court | $ | (4,511 | ) | ||
Brentwood Plaza | (11,599 | ) | |||
Brentwood-San Vicente Medical, Ltd. | (7,599 | ) | |||
San Vicente Plaza | (6,599 | ) | |||
Owensmouth / Warner LLC | (15,000 | ) | |||
Barrington Kiowa Properties | (2,110 | ) | |||
Barry Properties, Ltd. | (2,468 | ) | |||
Kiowa Properties, Ltd. | (1,035 | ) | |||
The Trillium | (100,500 | ) | |||
|
|||||
Total debt repayments | $ | (151,421 | ) | ||
Redemption of preferred minority interests | (184,000 | ) | |||
Premiums and other costs | (2,830 | ) | |||
|
|||||
Total debt repayments and redemption | $ | (338,251 | ) | ||
|
|||||
Net proceeds paid to prior investors | $ | 202,319 | |||
|
F-14
the net proceeds received by us from this offering, together with borrowings in the financing transactions (see note (G) above), and existing cash to pay the cash consideration in connection with the formation transactions, as well as to repay certain variable rate debt, redeem preferred minority interest and pay related fees and expenses. The operating partnership units and shares of common stock that will be issued in the formation transactions have a combined book value of $2.2 billion, assuming a price per share in this offering equal to the mid-point of the range set forth on the cover page of this prospectus (see note (J) for details).
|
Acquisition of
Predecessor Minority Interests |
Acquisition of
Single Asset Entities |
Acquisition of
DECO and PLE |
Total
Consideration |
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Total consideration due in formation transactions | $ | 3,179,768 | $ | 181,252 | $ | 1,033 | $ | 3,362,053 | |||||||
|
|
|
|
||||||||||||
Formation Transation Consideration |
|
|
|
|
|
|
|
|
|
|
|
|
|||
Net offering proceeds | $ | 1,032,354 | |||||||||||||
Financing transactions | 202,319 | ||||||||||||||
Existing cash | 150,000 | ||||||||||||||
|
|||||||||||||||
Total cash consideration | $ | 1,384,673 | |||||||||||||
Total operating partnership units | 925,738 | ||||||||||||||
Total common shares | 1,051,642 | ||||||||||||||
|
|||||||||||||||
Total consideration paid in formation transactions | $ | 3,362,053 | |||||||||||||
|
See also notes (C), (D) and (E) above for details pertaining to the acquisition of the Predecessor minority interests, the SAEs, DECO and PLE.
F-15
2. Adjustments to the Pro Forma Consolidated Statements of Operations
The adjustments to the pro forma statements of operations for the six months ended June 30, 2006 and year ended December 31, 2005 are as follows:
F-16
year and is therefore not included in rental revenue for the six months ended June 30, 2006.
|
For The Six Months Ended
June 30, 2006 |
For The Year Ended
December 31, 2005 |
||||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
DECO
|
PLE
|
Adjustments
|
DECO-PLE
Combined |
DECO
|
PLE
|
Adjustments
|
DECO-PLE
Combined |
||||||||||||||||||
Service Revenues: | ||||||||||||||||||||||||||
Real estate commissions | $ | 3,982 | $ | | $ | (3,982 | ) (1) | $ | | $ | 5,872 | $ | | $ | (5,872 | ) (1) | $ | | ||||||||
Property management fees | 4,841 | | (4,841 | ) (2) | | 9,131 | | (9,131 | ) (2) | | ||||||||||||||||
Service contract fees |
10,069
|
8,461
|
(8,461
(10,069 |
)
(3)
) (4) |
|
20,166
|
18,837
|
(18,837
(20,166 |
)
(3)
) (4) |
|
||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||
Total service revenues | 18,892 | 8,461 | $ | | 35,169 | 18,837 | $ | | ||||||||||||||||||
Costs of Services: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Salaries, wages, benefits and other direct costs | ||||||||||||||||||||||||||
Reimburseable expenses | 10,069 | $ | | (10,069 | ) (4) | $ | | 20,166 | $ | | (20,166 | ) (4) | $ | | ||||||||||||
Unreimburseable expenses | 1,959 | 7,600 | (7,600 | ) (3) | 1,869 | 3,857 | 15,912 | (15,912 | ) (3) | 3,677 | ||||||||||||||||
(90 | ) (5) | (180 | ) (5) | |||||||||||||||||||||||
Selling, general and administrative expenses | 737 | 658 | (356 | ) (5) | 1,039 | 1,541 | 1,631 | (714 | ) (5) | 2,458 | ||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||
Total expenses | 12,765 | 8,258 | 2,908 | 25,564 | 17,543 | 6,135 | ||||||||||||||||||||
Interest and other income |
|
|
30 |
|
|
37 |
|
|
|
|
|
67 |
|
|
30 |
|
|
50 |
|
|
|
|
|
80 |
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Net income (loss) | $ | 6,157 | $ | 240 | $ | (2,841 | ) | $ | 9,635 | $ | 1,344 | $ | (6,055 | ) | ||||||||||||
|
|
|
|
|
|
F-17
amortization of intangibles as a result of these purchase accounting adjustments. Depreciation and amortization amounts were determined based on management's evaluation of the estimated useful lives of the properties and intangibles. In utilizing these useful lives for determining the pro forma adjustments, management considered the length of time the property had been in existence, the maintenance history as well as anticipated future maintenance, and any contractual stipulations that might limit the useful life. Depreciation and amortization expense for the year ended December 31, 2005 includes approximately $497 of in-place lease value related to our multifamily assets which amortizes over a period of less than one year and is therefore not included in depreciation and amortization for the six months ended June 30, 2006.
|
For The Six Months Ended
June 30, 2006 |
For The Year Ended
December 31, 2005 |
|||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Single
Asset Entities |
Acquisition of
SAEs |
Adjusted
SAE |
Single
Asset Entities |
Acquisition of
SAEs |
Adjusted
SAE |
|||||||||||||||
Revenues: | |||||||||||||||||||||
Office rental: | |||||||||||||||||||||
Rental revenues | $ | 3,837 | $ | 186 | $ | 4,023 | $ | 7,328 | $ | (58 | ) | $ | 7,270 | ||||||||
Tenant recoveries | 198 | 198 | 347 | 347 | |||||||||||||||||
Parking and other income | 439 | 439 | 740 | 740 | |||||||||||||||||
|
|
|
|
|
|
||||||||||||||||
Total office revenue | 4,474 | 186 | 4,660 | 8,415 | (58 | ) | 8,357 | ||||||||||||||
Multifamily rental: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
Rental revenues | 1,121 | | 1,121 | 2,165 | 52 | 2,217 | |||||||||||||||
Parking and other income | 19 | 19 | 26 | 26 | |||||||||||||||||
|
|
|
|
|
|
||||||||||||||||
Total multifamily revenue | 1,140 | | 1,140 | 2,191 | 52 | 2,243 | |||||||||||||||
|
|
|
|
|
|
||||||||||||||||
Total revenues | 5,614 | 186 | 5,800 | 10,606 | (6 | ) | 10,600 | ||||||||||||||
Operating Expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
Office rental | 825 | 825 | 1,839 | 1,839 | |||||||||||||||||
Multifamily rental | 181 | 181 | 299 | 299 | |||||||||||||||||
General and administrative expenses | 560 | 560 | 905 | 905 | |||||||||||||||||
Interest expense | 1,504 | 1,504 | 2,397 | 2,397 | |||||||||||||||||
Depreciation and amortization | 258 | 2,592 | 2,850 | 681 | 5,747 | 6,428 | |||||||||||||||
|
|
|
|
|
|
||||||||||||||||
Total operating expenses | 3,328 | 2,592 | 5,920 | 6,121 | 5,747 | 11,868 | |||||||||||||||
|
|
|
|
|
|
||||||||||||||||
Net income (loss) | $ | 2,286 | $ | (2,406 | ) | $ | (120 | ) | $ | 4,485 | $ | (5,753 | ) | $ | (1,268 | ) | |||||
|
|
|
|
|
|
F-18
amortization of intangibles as a result of these purchase accounting adjustments. Depreciation and amortization amount were determined based on management's evaluation of the estimated useful lives of the properties and intangibles. In utilizing these useful lives for determining the pro forma adjustments, management considered the length of time the property had been in existence, the maintenance history as well as anticipated future maintenance, and any contractual stipulations that might limit the useful life. Depreciation and amortization expense for the year ended December 31, 2005 includes approximately $2.9 million of in-place lease value which amortizes over a period of less than one year and is therefore not included in depreciation and amortization for the six months ended June 30, 2006. The pro forma depreciation and amortization adjustment for the six months ended June 30, 2006 represents estimated depreciation pertaining to the period January 1, 2006 through March 1, 2006, the date on which the property was acquired. Depreciation pertaining to the period March 2, 2006 through June 30, 2006 is included in the predecessor's depreciation and amortization. The pro forma adjustments are as follows:
|
For the Six Months Ended
June 30, 2006 (1) |
For the Year Ended
December 31, 2005 |
||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Combined
Historical Revenues and Certain Expenses |
Adjustments
Resulting From Purchasing the Property |
Pro Forma
Adjustments |
Combined
Historical Revenues and Certain Expenses |
Adjustments
Resulting From Purchasing the Property |
Pro Forma
Adjustments |
||||||||||||||
Revenues: | ||||||||||||||||||||
Rental revenues | $ | 1,062 | $ | 1,062 | $ | 6,375 | $ | 257 | $ | 6,632 | ||||||||||
Other income | 101 | 101 | 603 | 603 | ||||||||||||||||
|
|
|
|
|
|
|||||||||||||||
Total revenues | 1,163 | 1,163 | 6,978 | 257 | 7,235 | |||||||||||||||
Operating Expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Multifamily rental | 336 | 336 | 2,018 | 2,018 | ||||||||||||||||
Property taxes | | | | | ||||||||||||||||
Insurance | | | | | ||||||||||||||||
Depreciation and amortization | | 351 | (2) | 351 | | 5,021 | (2) | 5,021 | ||||||||||||
Other | | | | | ||||||||||||||||
Interest expense | 790 | 790 | 4,741 | 4,741 | ||||||||||||||||
|
|
|
|
|
|
|||||||||||||||
Total operating expenses | 336 | 1,141 | 1,477 | 2,018 | 9,762 | 11,780 | ||||||||||||||
|
|
|
|
|
|
|||||||||||||||
Net Income (loss) | $ | 827 | $ | (1,141 | ) | $ | (314 | ) | $ | 4,960 | $ | (9,505 | ) | $ | (4,545 | ) | ||||
|
|
|
|
|
|
F-19
|
|
|
|
Interest Expense
|
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Properties
|
Principal
Balance |
Stated
Interest Rate |
Effective
Interest Rate (1) |
Six Months
Ended June 30, 2006 |
Year Ended
December 31, 2005 |
||||||||||
Variable Rate Swapped to Fixed Rate | |||||||||||||||
Modified term loan (2) (3) | $ | 1,755,000 | LIBOR + 0.85 | % | 4.92 | % | $ | 43,564 | $ | 85,056 | |||||
Barrington Plaza, Pacific Plaza | 153,000 | DMBS + 0.60 | 4.70 | 3,510 | 6,163 | ||||||||||
555 Barrington, The Shores | 140,000 | DMBS + 0.60 | 4.70 | 3,212 | 5,553 | ||||||||||
Moanalua | 75,000 | DMBS + 0.60 | 4.86 | 1,788 | 3,381 | ||||||||||
Royal Kunia | 82,000 | LIBOR + 0.62 | 5.62 | 2,352 | 4,741 | ||||||||||
|
|
|
|||||||||||||
Subtotal | $ | 2,205,000 | 54,426 | 104,894 | |||||||||||
Variable Rate | |||||||||||||||
Modified term loan (2)(4) | 545,000 | LIBOR + 0.85 | 6.33 | 17,251 | 34,502 | ||||||||||
Loan premium (5) | 31,000 | (2,067 | ) | (3,953 | ) | ||||||||||
|
|
|
|||||||||||||
Subtotal | $ | 2,781,000 | $ | 69,610 | $ | 135,443 | |||||||||
Amortization of loan costs |
|
|
|
|
|
|
|
|
|
511 |
|
|
10,846 |
|
|
Impact of interest rate swap transactions | 15,278 | 29,557 | |||||||||||||
|
|
|
|||||||||||||
Pro Forma Totals | $ | 2,781,000 | $ | 85,399 | $ | 175,846 | |||||||||
|
|||||||||||||||
Historical interest expense for Predecessor, Single Asset Entities, Royal Kunia and Other Pro Forma Adjustments | 59,036 | 120,240 | |||||||||||||
|
|
||||||||||||||
Pro Forma Adjustment | $ | 26,363 | $ | 55,606 | |||||||||||
|
|
F-20
F-21
vested stock options. This expense will be reflected as a one-time expense in the first period following the formation transactions. Therefore, the one-time charge has been excluded from the unaudited pro forma consolidated statements of operations.
|
Six Months
Ended June 30, 2006 |
Year Ended
December 31, 2005 |
||||
---|---|---|---|---|---|---|
Long-term incentive units | $ | 585 | $ | 1,170 | ||
Stock options | 165 | 330 | ||||
|
|
|||||
$ | 750 | $ | 1,500 | |||
|
|
We expect to incur additional general and administrative expense as a result of becoming a public company, including but not limited to incremental salaries, board of directors fees and expenses, director's and officer's insurance, Sarbanes-Oxley compliance costs, and incremental audit and tax fees. We estimate that these costs could result in incremental general and administrative expenses of $6,000 to $8,000 per year. As we have not yet entered into contracts with third parties to provide these services, we have not included these expenses in the accompanying pro forma consolidated statements of operations.
F-22
Pricing Sensitivity Analysis
The unaudited pro forma financial information gives effect to this offering and the formation transactions as if the price in this offering were $20.00 per share, the mid-point of the range set forth on the cover page of this prospectus. Because the value of the interests being acquired in the formation transactions is determined by the offering price, if the price per share in this offering increases, the value of the pre-formation transaction interests to be acquired by us would also increase. The portion of these interests that are held by persons and entities other than DERA will be accounted for in the formation transactions as an acquisition under the purchase method of accounting. In accordance with SFAS 141, substantially all of this additional value would be allocated on our balance sheet to the value of our buildings, which, in turn, would result in increased depreciation and amortization expenses in future periods. Additionally, because the value of pre-formation transaction interests increases with the offering price, if our offering price is above the mid-point of the range, the amount of cash required to acquire these interests from prior investors who have elected to receive cash in the formation transactions would also increase. To fund this increased cash consideration, we would be required to borrow additional funds, which would result in increased interest expense in future periods. With limited exceptions described below, a decrease in the offering price would have the converse of each of these effects.
Pro Forma Balance Sheet
Investment in real estate at cost, net increases by approximately $171.5 million for each $1.00 per share increase in the actual offering price from the mid-point because of the higher purchase price and related purchase accounting allocations for the formation transactions. Any decrease in the actual offering price from the mid-point will have an equal but opposite effect.
Cash and cash equivalents remains constant for a $1.00 per share increase in the actual offering price because the additional cash consideration being paid in the formation transactions will be funded by additional borrowings under our revolving credit facility. Conversely, a decrease in the actual offering price by $1.00 will increase cash and cash equivalents by $17.1 million because less cash is needed to pay the consideration in the formation transactions.
Secured notes payable remains constant for an offering price below the mid-point but increases as the offering price increases because we will need additional funds to pay the increased cash consideration required in the formation transactions. An increase of $1.00 per share in this offering from the mid-point increases secured notes payable by $17.1 million.
F-23
Minority interests in operating partnership increases by $48.1 million for each $1.00 per share increase in the actual offering price from the mid-point primarily because the value of the operating partnership units issued in the formation transactions and pursuant to employee benefit plans, as well as the value of the pre-formation transaction interests to be acquired by us in the formation transactions, increase as the offering price increases, as described above. Any decrease in the actual offering price from the mid-point will have an equal but opposite effect.
Common stock and additional paid-in capital increases by $106.3 million for each $1.00 per share increase in the actual offering price from the mid-point primarily because the value of the common stock issued in the formation transactions, as well as the value of the pre-formation transaction interests to be acquired by us in the formation transactions, increase as the offering price increases, as described above, and because the value of the common stock issued in the offering, and the proceeds we receive for those shares, also increases with the offering price. Any decrease in the actual offering price from the mid-point will have an equal but opposite effect.
Pro Forma Income Statement
Depreciation and amortization increases for each $1.00 per share increase in the actual offering price from the mid-point because of the higher purchase price and related increase in the value of our buildings as a result of the purchase accounting adjustments described above. Such increase is $4.2 million and $2.1 million for the year ended December 31, 2005 and the six months ended June 30, 2006, respectively. Any decrease in the actual offering price from the mid-point will have an equal but opposite effect.
Interest and other income remains constant for the year ended December 31, 2005 and for the six months ended June 30, 2006 for a $1.00 per share increase in the actual offering price because the additional cash needed to acquire pre-formation transaction interests will be borrowed from our revolving credit facility. However, because we will need less cash to acquire pre-formation transaction interests if the offering price decreases, interest and other income increases by $0.5 million for the year ended December 31, 2005 and by $0.3 million for the six months ended June 30, 2006 for a $1.00 per share decrease in the actual offering price.
Interest expense increases by $1.0 million for the year ended December 31, 2005 and by $0.5 million for the six months ended June 30, 2006 for a $1.00 per share increase in the actual offering price from the mid-point because of the increase in debt required to fund the additional cash consideration in the formation transactions as discussed above. Interest expense will remain constant if the actual offering price decreases because we will not require any borrowings at the mid-point of the range of prices set forth on the cover page of this prospectus.
Net income (loss) decreases by $3.6 million for the year ended December 31, 2005 and by $1.8 million for the six months ended June 30, 2006 for each $1.00 per share increase in the actual offering price from the mid-point as a result of all of the factors described above. Net income (loss) increases by $3.5 million for the year ended December 31, 2005 and by $1.6 million for the six months ended June 30, 2006 for each $1.00 per share decrease in the actual offering price from the mid-point also as a result of all of the factors described above.
F-24
Report of Independent Registered Public Accounting Firm
The
Stockholders of
Douglas Emmett, Inc. and Subsidiaries
We have audited the accompanying consolidated balance sheet of Douglas Emmett, Inc. and Subsidiaries as of June 30, 2006. This consolidated balance sheet is the responsibility of the Company's management. Our responsibility is to express an opinion on this balance sheet based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the balance sheet is free of material misstatement. We were not engaged to perform an audit of the Company's internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the balance sheet, assessing the accounting principles used and significant estimates made by management, and evaluating the overall balance sheet presentation. We believe that our audit of the June 30, 2006 balance sheet provides a reasonable basis for our opinion.
In our opinion, the balance sheet referred to above presents fairly, in all material respects, the consolidated financial position of Douglas Emmett, Inc. and Subsidiaries at June 30, 2006, in conformity with U.S. generally accepted accounting principles.
/s/ ERNST & YOUNG LLP
Los Angeles, California
July 31, 2006
F-25
Douglas Emmett, Inc. and Subsidiaries
Consolidated Balance Sheet
(In thousands, except share data)
|
June 30,
2006 |
||||
---|---|---|---|---|---|
Assets | |||||
Cash | $ | 2 | |||
Prepaid offering costs | 7,104 | ||||
|
|||||
Total assets | $ | 7,106 | |||
|
|||||
Liabilities and stockholders' equity (deficit) |
|
|
|
|
|
Due to related parties | $ | 7,110 | |||
Stockholders' equity (deficit) |
|
|
|
|
|
Common stock$0.01 par value; 1,000 shares authorized and 100 shares outstanding | | ||||
Additional paid-in capital | | ||||
Accumulated deficit | (4 | ) | |||
|
|||||
Total stockholders' equity (deficit) | (4 | ) | |||
|
|||||
Total liabilities and stockholders' equity (deficit) | $ | 7,106 | |||
|
See accompanying notes.
F-26
Douglas Emmett, Inc. and Subsidiaries
Notes to Consolidated Balance Sheet
June 30, 2006
1. Organization and Description of Business
Douglas Emmett, Inc. (the Company or the REIT) was incorporated in Maryland on June 28, 2005. The Company has not had any corporate activity since its formation, other than the issuance of 100 shares of its common stock to two of Douglas Emmett Realty Advisors, Inc.'s (DERA) principals. The Company is the majority owner of Douglas Emmett Properties, L.P. (the Operating Partnership) which was formed on July 25, 2005. Douglas Emmett Management, Inc. (the GP), which was formed as a Delaware limited liability company on July 25, 2005 is a wholly owned subsidiary of the Company and is the sole general partner of the Operating Partnership. The Company, the Operating Partnership, and the GP were formed to continue to operate and expand the businesses of DERA. DERA, our predecessor, is engaged in the business of owning, managing, leasing, acquiring, and developing real estate, consisting primarily of office properties, including complementary retail space. Its portfolio presently consists of approximately 46 office properties, nine multifamily properties, and two parcel of land, located in Los Angeles County California and Honolulu, Hawaii.
The Company has filed a Registration Statement on Form S-11 with the Securities and Exchange Commission with respect to a proposed initial public offering (the Offering) of common stock. As discussed below, the Company intends to operate as a real estate investment trust or REIT. Concurrent with the Offering of the common stock of the REIT, which is expected to be completed in 2006, the REIT, the Operating Partnership, together with the partners and stockholders of the affiliated partnerships and corporations of DERA and other parties which hold direct or indirect interests in the properties (collectively, the Participants), will engage in certain formation transactions (the Formation Transactions). The Participants will elect to take either stock in the REIT, limited partnership units in the Operating Partnership and/or cash pursuant to the Formation Transactions. The Formation Transactions are designed to (i) consolidate our asset management, property management, leasing, tenant improvement construction, acquisition, repositioning, redevelopment and financing businesses into our Operating Partnership; (ii) consolidate the ownership of our property portfolio under our Operating Partnership; (iii) facilitate this offering; (iv) enable the REIT to qualify as a REIT for federal income tax purposes commencing with the taxable year ending December 31, 2006; (v) defer the recognition of taxable gain by certain continuing investors; and (vi) enable prior investors to obtain liquidity for their investments.
The operations of the Company will be carried on primarily through the Operating Partnership. The Company is the sole stockholder of the GP which in turn is the sole general partner of the Operating Partnership. It is the intent of the Company to elect the status of and qualify as a REIT under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended. The Company after the completion of the formation transactions will be fully integrated, self-administered, and self-managed.
2. Significant Accounting Policies
Principles of Consolidation
The consolidated balance sheet includes the accounts of the Company, the Operating Partnership and the GP. All significant intercompany balances and transactions have been eliminated.
F-27
Income Taxes
As a REIT, the Company will be permitted to deduct distributions paid to its stockholders, eliminating the federal taxation of income represented by such distributions at the Company level. REITs are subject to a number of organizational and operational requirements. If the Company fails to qualify as a REIT in any taxable year, the Company will be subject to federal income tax (including any applicable alternative minimum tax) on its taxable income at regular corporate tax rates.
Offering Costs
In connection with the Offering, affiliates have or will incur legal, accounting, and related costs, which will be reimbursed by the Company upon the consummation of the Offering. Such costs will be deducted from the gross proceeds of the Offering.
Use of Estimates
The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make certain estimates and assumptions that affect the reported amounts in the consolidated balance sheet and accompanying notes. Actual results could differ from those estimates.
F-28
Douglas Emmett Realty Advisors, Inc.
Consolidated Balance Sheets
(In thousands, except for share data)
|
June 30,
2006 |
December 31,
2005 |
|||||||
---|---|---|---|---|---|---|---|---|---|
|
(Unaudited)
|
|
|||||||
Assets | |||||||||
Investment in real estate | $ | 2,707,477 | $ | 2,622,484 | |||||
Cash and cash equivalents | 100,502 | 108,282 | |||||||
Tenant receivables | 4,830 | 3,658 | |||||||
Deferred rents receivable | 66,406 | 62,145 | |||||||
Interest rate contracts | 137,547 | 71,992 | |||||||
Other assets | 39,806 | 36,086 | |||||||
|
|
||||||||
Total assets | $ | 3,056,568 | $ | 2,904,647 | |||||
|
|
||||||||
Liabilities | |||||||||
Secured notes payable | $ | 2,305,500 | $ | 2,223,500 | |||||
Accounts payable, accrued expenses and tenant security deposits | 84,848 | 84,418 | |||||||
Interest rate contracts | 11,592 | 6,004 | |||||||
|
|
||||||||
Total liabilities |
|
|
2,401,940 |
|
|
2,313,922 |
|
||
Preferred minority interest in consolidated real estate partnerships |
|
|
184,000 |
|
|
184,000 |
|
||
Minority interest in consolidated real estate partnerships | 557,694 | 504,516 | |||||||
Stockholders' equity (deficit) |
|
|
|
|
|
|
|
||
Common stock$0 par value; 10,000 shares authorized and 65 shares outstanding | | | |||||||
Additional paid-in capital | | | |||||||
Retained earnings (deficit) | (27,066 | ) | (97,791 | ) | |||||
Notes receivable from stockholders | (60,000 | ) | | ||||||
|
|
||||||||
Total stockholders' equity (deficit) | (87,066 | ) | (97,791 | ) | |||||
|
|
||||||||
Total liabilities and stockholders' equity (deficit) | $ | 3,056,568 | $ | 2,904,647 | |||||
|
|
See accompanying notes.
F-29
Douglas Emmett Realty Advisors, Inc.
Consolidated Statements of Operations
(Unaudited and in thousands, except for share data)
|
Six Months Ended
June 30, |
||||||||
---|---|---|---|---|---|---|---|---|---|
|
2006
|
2005
|
|||||||
Revenues: | |||||||||
Office rental: | |||||||||
Rental revenues | $ | 150,519 | $ | 144,200 | |||||
Tenant recoveries | 8,903 | 6,599 | |||||||
Parking and other income | 20,031 | 18,648 | |||||||
|
|
||||||||
Total office revenue | 179,453 | 169,447 | |||||||
Multifamily rental: |
|
|
|
|
|
|
|
||
Rental revenues | 25,900 | 21,360 | |||||||
Parking and other income | 824 | 560 | |||||||
|
|
||||||||
Total multifamily revenue | 26,724 | 21,920 | |||||||
|
|
||||||||
Total revenues | 206,177 | 191,367 | |||||||
Operating Expenses: |
|
|
|
|
|
|
|
||
Office rental | 61,132 | 59,021 | |||||||
Multifamily rental | 8,696 | 7,315 | |||||||
General and administrative expenses | 3,136 | 3,193 | |||||||
Depreciation and amortization | 53,616 | 57,672 | |||||||
|
|
||||||||
Total operating expenses | 126,580 | 127,201 | |||||||
|
|
||||||||
Operating income |
|
|
79,597 |
|
|
64,166 |
|
||
Gain on investments in interest rate contracts, net |
|
|
59,967 |
|
|
6,300 |
|
||
Interest and other income | 2,548 | 746 | |||||||
Interest expense | (58,055 | ) | (52,356 | ) | |||||
Deficit recovery (distributions) from/(to) minority partners, net | 6,248 | (47,652 | ) | ||||||
|
|
||||||||
Income (loss) before minority interest | 90,305 | (28,796 | ) | ||||||
Minority interest: |
|
|
|
|
|
|
|
||
Minority interest in consolidated real estate partnerships | (64,434 | ) | (8,843 | ) | |||||
Preferred minority investor | (8,050 | ) | (7,755 | ) | |||||
|
|
||||||||
Net income (loss) | $ | 17,821 | $ | (45,394 | ) | ||||
|
|
||||||||
Net income (loss) per common share | $ | 274 | $ | (698 | ) | ||||
|
|
||||||||
Weighted average shares of common stock outstanding | 65 | 65 | |||||||
|
|
See accompanying notes.
F-30
Douglas Emmett Realty Advisors, Inc.
Consolidated Statements of Stockholders' Equity (Deficit)
Six Months Ended June 30, 2006
(Unaudited and in thousands, except
for share data)
|
Number of
Common Shares |
Additional
Paid-in Capital |
Common
Stock |
Retained
Earnings (Deficit) |
Notes Receivable
from Stockholders |
Total
|
|||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Balance at January 1, 2006 | 65 | $ | | $ | | $ | (97,791 | ) | $ | | $ | (97,791 | ) | ||||||
Net income | | | | 17,821 | | 17,821 | |||||||||||||
Contributions | | | | 60,000 | (60,000 | ) | | ||||||||||||
Distributions | | | | (7,096 | ) | | (7,096 | ) | |||||||||||
|
|
|
|
|
|
||||||||||||||
Balance at June 30, 2006 | 65 | $ | | $ | | $ | (27,066 | ) | $ | (60,000 | ) | $ | (87,066 | ) | |||||
|
|
|
|
|
|
See accompanying notes.
F-31
Douglas Emmett Realty Advisors, Inc.
Consolidated Statements of Cash Flows
(Unaudited and in thousands)
|
Six Months Ended
June 30, |
||||||||
---|---|---|---|---|---|---|---|---|---|
|
2006
|
2005
|
|||||||
Operating activities: | |||||||||
Net income (loss) | $ | 17,821 | $ | (45,394 | ) | ||||
Adjustments to reconcile net income (loss) to net cash provided by operating activities: | |||||||||
Minority interests in consolidated real estate partnerships | 72,484 | 16,598 | |||||||
Deficit (recovery) distributions (from)/to minority partners | (6,248 | ) | 47,652 | ||||||
Depreciation and amortization | 53,616 | 57,672 | |||||||
Net accretion of above (below) market leases | (932 | ) | (921 | ) | |||||
Amortization of loan costs and fees | 1,679 | 2,308 | |||||||
Gain on interest rate swap contracts | (59,967 | ) | (6,300 | ) | |||||
Changes in operating assets and liabilities: | |||||||||
Tenant receivables | (1,172 | ) | 2,395 | ||||||
Deferred rent | (4,261 | ) | (6,160 | ) | |||||
Other assets | (4,069 | ) | (1,851 | ) | |||||
Accounts payable, accrued expenses and tenant security deposits | 1,016 | (5,799 | ) | ||||||
|
|
||||||||
Net cash provided by operating activities | 69,967 | 60,200 | |||||||
|
|
||||||||
Investing activities: | |||||||||
Acquisition of and additions to properties | (138,340 | ) | (193,024 | ) | |||||
|
|
||||||||
Net cash used in investing activities | (138,340 | ) | (193,024 | ) | |||||
|
|
||||||||
Financing activities: | |||||||||
Proceeds from borrowings | 82,000 | 98,963 | |||||||
Repayments of borrowings | | (20,000 | ) | ||||||
Proceeds from affiliate borrowing | | 23,500 | |||||||
Repayments of affiliate borrowing | | (15,000 | ) | ||||||
Deferred loan costs | (1,253 | ) | (1,095 | ) | |||||
Contributions by minority interests | 33,264 | 141,570 | |||||||
Distributions to minority interests | (46,322 | ) | (122,506 | ) | |||||
Distributions to stockholders | (7,096 | ) | (14,041 | ) | |||||
|
|
||||||||
Net cash provided by financing activities | 60,593 | 91,391 | |||||||
|
|
||||||||
Net decrease in cash and cash equivalents | (7,780 | ) | (41,433 | ) | |||||
Cash and cash equivalents at beginning of the period | 108,282 | 107,860 | |||||||
|
|
||||||||
Cash and cash equivalents at end of the period | $ | 100,502 | $ | 66,427 | |||||
|
|
||||||||
Supplemental disclosure of non-cash financing information: | |||||||||
Notes receivable from stockholders | (60,000 | ) | | ||||||
Contribution of notes receivable from stockholders | 60,000 | | |||||||
|
|
See accompanying notes for additional non-cash investing and financing information.
F-32
Douglas Emmett Realty Advisors, Inc.
Notes to Consolidated Financial Statements
June 30, 2006
(Unaudited and in thousands)
1. Organization and Description of Business
Douglas Emmett Realty Advisors, Inc. (DERA) and subsidiaries consists of Douglas Emmett Realty Advisors, Inc., a California S-Corporation, and nine California real estate limited partnerships (the Real Estate Entities) (collectively, the Company) and their operations as described in Note 2. The Company is engaged in the business of acquiring, owning, and developing real estate, consisting primarily of office and multifamily properties located in Los Angeles County, California and Honolulu, Hawaii. During all periods presented in the accompanying consolidated financial statements, the Company consists of DERA and the Real Estate Entities that own the properties that will be contributed through the formation transactions as discussed in the Company's December 31, 2005 financial statements. DERA has and continues to have responsibility for the asset management of such entities.
2. Summary of Significant Accounting Policies
Basis of Presentation
In March 2005, the Emerging Issues Task Force (EITF) of the Financial Accounting Standards Board (FASB) reached a consensus on Issue No. 04-5, Investor's Accounting for an Investment in a Limited Partnership When the Investor Is the Sole General Partner and the Limited Partners Have Certain Rights . EITF 04-5 clarifies certain aspects of Statement of Positions 78-9 Accounting for Investments in Real Estate Ventures , and provides guidance on determining whether a sole general partner in a limited partnership should consolidate its investment in a limited partnership. DERA is the sole general partner of the Real Estate Entities and the limited partners of the Real Estate Entities do not have substantive "kick-out" or participation rights as defined by EITF 04-5. DERA early adopted the guidance of EITF 04-5 and has consolidated the Real Estate Entities retrospectively.
The accompanying consolidated financial statements represent the historical financial statements of the Company. They include the accounts of DERA and the Real Estate Entities. All significant intercompany balances and transactions have been eliminated in the consolidated financial statements.
Unaudited Interim Financial Information
The accompanying interim unaudited financial statements have been prepared by the Company's management pursuant to the rules and regulations of the Securities and Exchange Commission. Certain information and footnote disclosure normally included in the financial statements prepared in accordance with accounting principals generally accepted in the United States may have been condensed or omitted pursuant to such rules and regulations, although management believes that the disclosures are adequate to make the presentation not misleading. The unaudited financial statements as of June 30, 2006 and for the six months ended June 30, 2006 and 2005 include, in the opinion of management, all adjustments, consisting of normal recurring adjustments, necessary to present fairly the financial information set forth therein. The results of operations for the interim period ended June 30, 2006 are not necessarily indicative of the results that may be expected for the year ended December 31, 2006. The interim financial statements should be read in conjunction with the Company's audited financial statements for the year ended December 31, 2005 and notes thereto.
F-33
Use of Estimates
The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make certain estimates and assumptions that affect the reported amounts in the consolidated financial statements and accompanying notes. Actual results could differ from those estimates.
Segment Information
Statement of Financial Accounting Standards (SFAS) No. 131, Disclosures about Segments of an Enterprise and Related Information , established standards for disclosure about operating segments and related disclosures about products and services, geographic areas and major customers. Segment information is prepared on the same basis that the Company's management reviews information for operational decision making purposes. The Company currently operates two business segments: the acquisition, redevelopment, ownership and management of office real estate and the acquisition, redevelopment, ownership and management of multifamily real estate.
The products for the office segment include primarily rental of office space and other tenant services including parking and storage space rental. The products for the multifamily segment include rental of apartments and other tenant services including parking and storage space rental.
Investment in Real Estate
Acquisitions of properties subsequent to June 30, 2001, the effective date of SFAS No. 141, Business Combinations , are accounted for utilizing the purchase method and accordingly, the results of operations of acquired properties are included in our results of operations from the respective dates of acquisition. Estimates of future cash flows and other valuation techniques are used to allocate the purchase price of acquired property between land, buildings and improvements, equipment and identifiable intangible assets and liabilities such as amounts related to in-place at-market leases, acquired above-market ground leases, acquired above and below-market leases and tenant relationships. Initial valuations are subject to change until such information is finalized, but no later than 12 months from the acquisition date.
F-34
The net above and below market tenant and ground lease liability is summarized as follows:
|
June 30,
2006 |
December 31,
2005 |
|||||
---|---|---|---|---|---|---|---|
Above-market tenant leases (1) | $ | 11,018 | $ | 11,018 | |||
Below-market tenant leases (2) | (15,011 | ) | (14,748 | ) | |||
Above-market ground leases (3) | (18,977 | ) | (18,977 | ) | |||
|
|
||||||
Subtotal | (22,970 | ) | (22,707 | ) | |||
Accumulated net accretion | 2,333 | 1,403 | |||||
|
|
||||||
Above and below-market leases, net | $ | (20,637 | ) | $ | (21,304 | ) | |
|
|
Impairment of Long-Lived Assets
The Company assesses whether there has been impairment in the value of its long-lived assets whenever events or changes in circumstances indicate the carrying amount of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount to the undiscounted future cash flows expected to be generated by the asset. If the current carrying value exceeds the estimated undiscounted cash flows, an impairment loss is recorded equal to the difference between the asset's current carrying value and its value based on the discounted estimated future cash flows. Assets to be disposed of are reported at the lower of the carrying amount or fair value, less costs to sell. Based upon such periodic assessments, no indications of impairment were identified during the six months ended June 30, 2006 and 2005.
Interest Rate Agreements
The Company manages its interest rate risk associated with borrowings by obtaining interest rate swap and interest rate cap contracts. No other derivative instruments are used.
In June 1998, the Financial Accounting Standards Board (FASB) issued SFAS No. 133 Accounting for Derivative Instruments and Hedging Activities (SFAS No. 133, as amended by SFAS No. 138). The statement requires the Company to recognize all derivatives on the balance sheet at fair value. Derivatives that are not hedges must be adjusted to fair value and the changes in fair value must be reflected as income or expense. If the derivative is a hedge, depending on the nature of the hedge, changes in the fair value of derivatives are either offset against the change in fair value of the hedged assets, liabilities, or firm commitments through earnings or recognized in other comprehensive income, a component of stockholders' equity (deficit) until the hedged item is recognized in earnings. The ineffective portion of a derivative's change in fair value is immediately recognized in earnings. The
F-35
Company's investments in interest rate swap and interest rate cap contracts do not qualify as effective hedges, and as such, the changes in such contracts' fair market values are being recorded in earnings.
For the six months ended June 30, 2006 and 2005, the Company recognized gains relating to the change in fair market value of its interest rate contracts of $59,967 and $6,300, respectively.
Income Taxes
Douglas Emmett Realty Advisors is an S-Corporation and the Real Estate Entities are limited partnerships. Under applicable federal and state income tax rules, the allocated share of net income or loss from the limited partnerships and S-Corporation is reportable in the income tax returns of the respective partners and stockholders. Accordingly, no income tax provision is included in the accompanying consolidated financial statements other than the 1.5% tax due on taxable income of S-Corporations in the State of California.
3. Investment in Real Estate
Investment in real estate consists of the following:
|
June 30,
2006 |
December 31,
2005 |
|||||
---|---|---|---|---|---|---|---|
Land | $ | 487,803 | $ | 444,894 | |||
Buildings | 2,399,425 | 2,324,536 | |||||
Tenant improvements and leasing costs | 379,990 | 359,312 | |||||
|
|
||||||
Investment in real estate | 3,267,218 | 3,128,742 | |||||
Less accumulated depreciation | (559,741 | ) | (506,258 | ) | |||
|
|
||||||
Net investment in real estate | $ | 2,707,477 | $ | 2,622,484 | |||
|
|
In March 2006, the Company acquired from unrelated parties a multifamily property in Honolulu, Hawaii. The aggregate acquisition costs of this property approximated $113,730.
In January 2005, the Company acquired from unrelated parties an office building in Woodland Hills, California and a multifamily property in Honolulu, Hawaii. The aggregate acquisition costs of these properties approximated $169,870.
F-36
The following table summarizes the allocation of estimated fair values of the assets acquired at the date of acquisition.
|
June 30,
2006 |
December 31,
2005 |
||||||
---|---|---|---|---|---|---|---|---|
Land | $ | 42,887 | $ | 45,407 | ||||
Buildings and equipment | 68,394 | 204,137 | ||||||
Tenant improvements and other in-place lease assets | 2,982 | 24,661 | ||||||
Other assets: | ||||||||
Tenant receivables and other assets | 579 | 1,767 | ||||||
Above-market tenant leases | | 2,986 | ||||||
Accounts payable, accrued expenses and tenant security deposits: | ||||||||
Other liabilities | (849 | ) | (3,708 | ) | ||||
Below-market tenant leases | (263 | ) | (4,880 | ) | ||||
Secured notes payable | | (100,500 | ) | |||||
|
|
|||||||
$ | 113,730 | $ | 169,870 | |||||
|
|
4. Other Assets
Other assets consist of the following:
|
June 30,
2006 |
December 31,
2005 |
||||
---|---|---|---|---|---|---|
Deferred loan costs, net of accumulated amortization of $2,174 and $969 at June 30, 2006 and December 31, 2005 | $ | 13,966 | $ | 14,617 | ||
Above-market tenant leases | 4,797 | 5,562 | ||||
Security deposit funds | 2,783 | 3,043 | ||||
Prepaid impounds | 6,349 | 5,266 | ||||
Prepaid expenses | 11,349 | 7,081 | ||||
Other | 562 | 517 | ||||
|
|
|||||
$ | 39,806 | $ | 36,086 | |||
|
|
For the six months ended June 30, 2006 and 2005, the Company incurred deferred loan cost amortization expense of $1,679 and $2,308, respectively. The deferred loan cost amortization is included as a component of interest expense in the consolidated statements of operations.
5. Minimum Future Lease Rentals
The Company leases space to tenants primarily under noncancelable operating leases, which generally contain provisions for a base rent plus reimbursement for certain operating expenses. Operating expense reimbursements for the six months ended June 30, 2006 and 2005, were $8,903 and $6,599, respectively.
F-37
The Company leases space to certain tenants under noncancelable leases, which provide for contingent rents based upon tenant revenues. The contingent rental income for the six months ended June 30, 2006 and 2005, totaled $573 and $469, respectively.
Future minimum base rentals on noncancelable operating leases at June 30, 2006, are as follows:
July 1, 2006 to December 31, 2006 | $ | 143,457 | |
2007 | 277,774 | ||
2008 | 245,227 | ||
2009 | 205,707 | ||
2010 | 167,422 | ||
Thereafter | 476,299 | ||
|
|||
$ | 1,515,886 | ||
|
The above future minimum lease payments exclude tenant reimbursements, amortization of deferred rent receivables and above/below-market lease intangibles. Some leases are subject to termination options. In general, these leases provide for termination payments should the termination options be exercised. The above table is prepared assuming such options are not exercised.
F-38
6. Secured Notes Payable
A summary of secured notes payable is as follows:
Type of Debt
|
June 30,
2006 |
December 31,
2005 |
Effective
Interest Rate at June 30, 2006 (3) |
Fixed/
Floating Rate |
Maturity Date
|
|||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|
Secured by: | ||||||||||||
Barrington Plaza and Pacific Plaza (1) | $ | 153,000 | $ | 153,000 | 4.70 | % | DMBS + 0.60% (2) | December 22, 2011 | ||||
555 Barrington and The Shores (1) |
|
|
140,000 |
|
|
140,000 |
|
4.70 |
|
DMBS + 0.60 (2) |
|
December 22, 2011 |
Studio Plaza, Gateway Los Angeles, Bundy/Olympic and Brentwood Executive Plaza (1) |
|
|
170,000 |
|
|
170,000 |
|
5.00 |
|
LIBOR + 0.85 |
|
September 1, 2012 |
Palisades Promenade, 12400 Wilshire, First Federal Square, 11777 San Vicente and Landmark II (1) |
|
|
260,000 |
|
|
260,000 |
|
5.00 |
|
LIBOR + 0.85 |
|
September 1, 2012 |
Sherman Oaks Galleria, Second Street Plaza (1) |
|
|
215,000 |
|
|
215,000 |
|
5.00 |
|
LIBOR + 0.85 |
|
September 1, 2012 |
Olympic Center, MB Plaza, Valley Office Plaza, Coral Plaza, Westside Towers, Valley Executive Tower, Encino Terrace, Westwood Place, Century Park Plaza, Lincoln/Wilshire (1) |
|
|
425,000 |
|
|
425,000 |
|
4.89 |
|
LIBOR + 0.85 |
|
September 1, 2012 |
100 Wilshire, Encino Gateway, Encino Plaza (1) |
|
|
150,000 |
|
|
150,000 |
|
4.89 |
|
LIBOR + 0.85 |
|
September 1, 2012 |
1901 Avenue of the Stars, Columbus Center, and Warner Center Towers (1) |
|
|
425,000 |
|
|
425,000 |
|
4.89 |
|
LIBOR + 0.85 |
|
September 1, 2012 |
Beverly Hills Medical Center, Harbor Court, and Bishop Place (1) |
|
|
110,000 |
|
|
110,000 |
|
4.89 |
|
LIBOR + 0.85 |
|
September 1, 2012 |
The Trillium (1) |
|
|
100,500 |
|
|
100,500 |
|
4.28 |
|
4.28 |
|
January 1, 2007 |
Moanalua (1) |
|
|
75,000 |
|
|
75,000 |
|
4.86 |
|
DMBS + 0.60 (2) |
|
February 1, 2015 |
Royal Kunia (1) |
|
|
82,000 |
|
|
|
|
5.62 |
|
LIBOR + 0.62 |
|
March 1, 2016 |
|
|
|
|
|
|
|
|
|
|
|
||
Total secured notes payable |
|
$ |
2,305,500 |
|
$ |
2,223,500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-39
The minimum future principal payments due on the secured notes payable at June 30, 2006, are as follows:
July 1, 2006 to December 31, 2006 | $ | | |
2007 | 100,500 | ||
2008 | | ||
2009 | | ||
2010 | | ||
Thereafter | 2,205,000 | ||
|
|||
Total future principal payments | $ | 2,305,500 | |
|
7. Accounts Payable, Accrued Expenses and Tenant Security Deposits
Accounts payable, accrued expenses and tenant security deposits consist of the following:
|
June 30,
2006 |
December 31,
2005 |
||||
---|---|---|---|---|---|---|
Tenant security deposits | $ | 27,134 | $ | 25,670 | ||
Below-market tenant leases | 8,495 | 9,593 | ||||
Accounts payable | 18,957 | 20,009 | ||||
Deferred revenue | 13,323 | 11,872 | ||||
Above-market ground leases | 16,939 | 17,274 | ||||
|
|
|||||
$ | 84,848 | $ | 84,418 | |||
|
|
F-40
8. Interest Rate Agreements
The table below lists the Company's derivative instruments, and their fair values as of June 30, 2006 and December 31, 2005:
|
|
|
|
|
Fair Value
|
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Instrument
|
Notional
Value |
Interest
Pay Rate |
Effective
Date |
Maturity
Date |
June 30, 2006
|
December 31, 2005
|
||||||||||
|
|
|
|
|
Asset (Liability)
|
|||||||||||
Interest rate caps | $ | 368,000 | Ranging from 6.520% to 6.700% | Ranging from December 2004 to January 2005 | Ranging from December 2007 to January 2008 | $ | 0 | $ | 60 | |||||||
Interest rate swaps |
|
|
2,205,000 |
|
Ranging from 4.038% to 5.000% |
|
Ranging from August 2005 to March 2006 |
|
Ranging from August 2010 to August 2012 |
|
|
125,955 |
|
|
65,928 |
|
Interest rate caps |
|
|
450,000 |
|
Ranging from 5.000% to 5.500% |
|
Ranging from November 1, 2005 to March 1, 2006 |
|
August 1, 2011 |
|
|
11,592 |
|
|
6,004 |
|
Sold caps |
|
|
450,000 |
|
Ranging from 5.000% to 5.500% |
|
Ranging from November 1, 2005 to March 1, 2006 |
|
August 1, 2011 |
|
|
(11,592 |
) |
|
(6,004 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
Total net fair value of interest rate contracts |
|
|
|
$ |
125,955 |
|
$ |
65,988 |
|
|||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9. Minority Interests in Consolidated Real Estate Partnerships
The Company reflects unaffiliated partners' interests in the Real Estate Entities as minority interest in consolidated real estate partnerships. Minority interest in consolidated real estate partnerships represents the minority partners' share of the underlying net assets of the Company's consolidated real estate partnerships. When these consolidated real estate partnerships make cash distributions to partners in excess of the carrying amount of the minority interest, the Company generally records a charge equal to the amount of such excess distributions, even though there is no economic effect or cost. If the excess distributions previously absorbed by the Company are recovered through the future earnings of the consolidated real estate partnership, the Company will record income in the period of recovery. The Company reports this charge and any subsequent recovery in the consolidated statements of operations as deficit recovery (distributions) from (to) minority partners, net.
The minority interest charge of $64,434 and $8,843 for the six months ended June 30, 2006 and 2005, respectively, represents the Real Estate Entities net income allocable to the limited partners.
A preferred minority investor invested $99,000 and $85,000, in 2005 and 2004, respectively, in two of the Company's consolidated subsidiaries. In return, the preferred minority investor will receive a profit participation of 8.75% per annum on its unreturned capital contribution. Under certain circumstances the preferred minority investor has the right but not the obligation to initiate the sale of certain properties. Upon the sale of the properties, the initial capital contribution of the preferred investor will be returned. The preferred investor's contributed capital is reflected in the consolidated balance sheets as a component of minority interests as of June 30, 2006 and December 31, 2005. For
F-41
the six months ended June 30, 2006 and 2005, the Company has allocated $8,050 and $7,755, respectively, of the Company's consolidated subsidiaries' net income to the preferred minority investor.
10. Related-Party Transactions
The Company paid $3,953 and $2,937 in real estate commissions to an operating company owned by the stockholders of DERA for the six months ended June 30, 2006 and 2005, respectively. The commissions paid to the operating company are accounted for as leasing costs and are included in the Company's investment in real estate in the consolidated balance sheets.
The Company has contributed its share of discretionary profit-sharing contribution (subject to statutory limitations), totaling $192 and $180 for the six months ended June 30, 2006 and 2005, respectively, for services rendered by employees of an operating company owned by the stockholders of DERA.
Property management fees related to management services are paid to an operating company owned by the stockholders of DERA. The management fees are based upon percentages of the rental cash receipts collected by the properties. The fees range from 1.75% to 4.00% of the cash receipts. The Company expensed $4,709 and $4,457 in such property management fees for the six months ended June 30, 2006 and 2005, respectively. At June 30, 2006 and December 31, 2005, the Company had $823 and $600, respectively, in accrued and unpaid property management fees.
The Company has contracted with an operating company owned by the stockholders of DERA to provide building and tenant improvement work. For the six months ended June 30, 2006 and 2005, amounts totaling $4,831 and $5,705, respectively, were paid to the operating company for contracting work performed. These amounts are included in the costs basis of the buildings and in tenant improvements.
The Company leases approximately 26,785 square feet of office space to two operating companies owned or controlled by the stockholders. The rents from these leases totaled $390 for the six months ended June 30, 2006 and 2005. The terms under these leases were negotiated with unaffiliated third parties prior to the building being acquired by the Company.
Notes Receivable From Stockholders
On March 15, 2006, the Company's stockholders contributed $60,000 to the Company in the form of promissory notes. A portion of this amount may be used to fund capital commitments to the institutional fund formed in 2005 if and to the extent any capital calls are made by such fund prior to consummation of this offering pursuant to the applicable partnership agreement. On or prior to the closing of this offering, the Company's stockholders expect to use a combination of their own cash or borrowings from a third-party financial institution to repay the promissory notes. Such loans are expected to be secured by shares of our common stock or operating partnership units that the Company's stockholders will receive in the formation transactions. The full amount of the $60,000, whether retained by DERA or contributed to one of the real estate entities pursuant to a capital call, has the net effect of increasing the value of DERA, thereby resulting in an additional $60,000 of
F-42
common stock being exchanged for DERA in the formation transactions, based on the initial offering price to the public in this offering. Accordingly, the $60,000 less any amount that has been contributed to one of the real estate entities prior to the closing of this offering, will be acquired by us in the formation transactions pursuant to the DERA merger. Any of such amount that has been contributed to one of the real estate entities for asset acquisitions or other purposes will be acquired by us in the formation transactions in such form pursuant to the merger of one of the real estate entities.
11. Commitments and Contingencies
The Company is subject to various legal proceedings and claims that arise in the ordinary course of business. These matters are generally covered by insurance. Management believes that the ultimate settlement of these actions will not have a material adverse effect on the Company's financial position and results of operations or cash flows.
Concentration of Credit Risk
The Company's operating properties are located in Los Angeles County, California and Honolulu, Hawaii. The ability of the tenants to honor the terms of their respective leases is dependent upon the economic, regulatory and social factors affecting the markets in which the tenants operate.
Financial instruments that subject the Company to credit risk consist primarily of cash, accounts receivable, deferred rents receivable and interest rate contracts. The Company maintains its cash and cash equivalents and restricted cash on deposit and enters into interest rate contracts with high quality financial institutions. Accounts at each institution are insured by the Federal Deposit Insurance Corporation up to $100; and to date, the Company has not experienced any losses on its invested cash. The Company performs ongoing credit evaluations of its tenants for potential credit losses.
Asset Retirement Obligations
In March 2005, the FASB issued Interpretation No. 47, Accounting for Conditional Asset Retirement Obligationsan interpretation of FASB Statement No. 143 (FIN 47). FIN 47 clarifies that the term "conditional asset retirement obligation" as used in SFAS No. 143, Accounting for Asset Retirement Obligations , represents a legal obligation to perform an asset retirement activity in which the timing and/or method of settlement is conditional on a future event that may or may not be within a company's control. Under this standard, a liability for a conditional asset retirement obligation must be recorded if the fair value of the obligation can be reasonably estimated. FIN 47 is effective for fiscal years ending after December 15, 2005. Environmental site assessments and investigations have identified 14 properties in our portfolio containing asbestos. If these properties undergo major renovations or are demolished, certain environmental regulations are in place, which specify the manner in which the asbestos must be handled and disposed. As of June 30, 2006, the obligations to remove the asbestos from these properties have indeterminable settlement dates, and therefore, we are unable to reasonably estimate the fair value of the conditional asset retirement obligation.
F-43
Future Minimum Lease Payments
At June 30, 2006, the Company has leased portions of the land underlying three of its office properties as more fully described in the notes to our December 31, 2005 consolidated financial statements. For the six months ended June 30, 2006 and 2005, the Company expensed ground lease payments in the amount of $1,676 and $1,646, respectively.
The following is a schedule of minimum ground lease payments as of June 30, 2006:
July 1, 2006 to December 31, 2006 | $ | 1,675 | |
2007 | 3,283 | ||
2008 | 3,283 | ||
2009 | 3,408 | ||
2010 | 3,433 | ||
Thereafter | 128,475 | ||
|
|||
$ | 143,557 | ||
|
Tenant Concentrations
For the six months ended June 30, 2006 and 2005, no tenant exceeded 10% of the Company's total rental revenue and tenant reimbursements.
12. Segment Reporting
The Company's segments are based on the Company's method of internal reporting which classifies its operation by property type. The Company's segments by property type include: Office and Multifamily.
Asset information by segment is not reported because the Company does not use this measure to assess performance and make decisions to allocate resources. Therefore, depreciation and amortization expense is not allocated among segments. Interest and other income, management services, general and administrative expenses, interest expense, depreciation and amortization expense and net derivative gains and losses are not included in rental revenues less rental expenses as the internal reporting addresses these items on a corporate level.
F-44
Rental revenues less rental expenses is not a measure of operating results or cash flows from operating activities as measured by U.S. generally accepted accounting principles, and it is not indicative of cash available to fund cash needs and should not be considered an alternative to cash flows as a measure of liquidity. All companies may not calculate rental revenues less rental expenses in the same manner. The Company considers rental revenues less rental expenses to be an appropriate supplemental measure to net income because it assists both investors and management to understand the core operations of the Company's properties.
|
Six months ended June 30, 2006
|
|||||||||
---|---|---|---|---|---|---|---|---|---|---|
|
Office
|
Multifamily
|
Total
|
|||||||
Rental revenues | $ | 179,453 | $ | 26,724 | $ | 206,177 | ||||
Percentage of total | 87 | % | 13 | % | 100 | % | ||||
Rental expenses |
|
$ |
61,132 |
|
$ |
8,696 |
|
$ |
69,828 |
|
Percentage of total | 88 | % | 12 | % | 100 | % | ||||
Rental revenues less rental expenses |
|
$ |
118,321 |
|
$ |
18,028 |
|
$ |
136,349 |
|
Percentage of total | 87 | % | 13 | % | 100 | % |
|
Six months ended June 30, 2005
|
|||||||||
---|---|---|---|---|---|---|---|---|---|---|
|
Office
|
Multifamily
|
Total
|
|||||||
Rental revenues | $ | 169,447 | $ | 21,920 | $ | 191,367 | ||||
Percentage of total | 89 | % | 11 | % | 100 | % | ||||
Rental expenses |
|
$ |
59,021 |
|
$ |
7,315 |
|
$ |
66,336 |
|
Percentage of total | 89 | % | 11 | % | 100 | % | ||||
Rental revenues less rental expenses |
|
$ |
110,426 |
|
$ |
14,605 |
|
$ |
125,031 |
|
Percentage of total | 88 | % | 12 | % | 100 | % |
F-45
The following is a reconciliation of rental revenues less rental expenses to net income available to common stockholders:
|
Six Months Ended
June 30, |
|||||||
---|---|---|---|---|---|---|---|---|
|
2006
|
2005
|
||||||
Rental revenues less rental expenses | $ | 136,349 | $ | 125,031 | ||||
Add: |
|
|
|
|
|
|
|
|
Interest and other income | 2,548 | 746 | ||||||
Gain on investments in interest rate contracts, net | 59,967 | 6,300 | ||||||
Less: |
|
|
|
|
|
|
|
|
General and administrative expenses | 3,136 | 3,193 | ||||||
Interest expense | 58,055 | 52,356 | ||||||
Depreciation and amortization | 53,616 | 57,672 | ||||||
Deficit (recovery) distributions (from)/to minority partners | (6,248 | ) | 47,652 | |||||
Minority interest expense | 72,484 | 16,598 | ||||||
|
|
|||||||
Net income (loss) | $ | 17,821 | $ | (45,394 | ) | |||
|
|
13. Recent Accounting Pronouncements
In May 2005, the FASB issued Statement of Financial Accounting Standards (SFAS) No. 154, Accounting Changes and Error CorrectionsA Replacement of APB Opinion No. 20 and FASB Statement No. 3 (SFAS 154). This new standard replaces APB Opinion No. 20, Accounting Changes, and FASB Statement No. 3, Reporting Accounting Changes in Interim Financial Statements. Among other changes, SFAS 154 requires that a voluntary change in accounting principle be applied retrospectively with all prior period financial statements presented on the new accounting principle, unless it is impracticable to do so. SFAS 154 also provides that a change in method of depreciating or amortizing a long-lived nonfinancial asset be accounted for as a change in estimate (prospectively) that was effected by a change in accounting principle, and that correction of errors in previously issued financial statements should be termed a "restatement." SFAS 154 is now effective for accounting changes and correction of errors, however, we had no such items during the current quarter.
On December 16, 2004, the FASB issued SFAS No. 123 (Revised 2004), Share-Based Payment (SFAS 123R). SFAS 123R requires that compensation cost relating to share-based payment transactions be recognized in financial statements and measured based on the fair value of the equity or liability instruments issued. The adoption of SFAS 123R on January 1, 2006 did not impact our consolidated financial statements in 2006.
F-46
Report of Independent Registered Public Accounting Firm
The
Stockholders of
Douglas Emmett Realty Advisors, Inc.
We have audited the accompanying consolidated balance sheets of Douglas Emmett Realty Advisors, Inc. and subsidiaries as of December 31, 2005 and 2004, and the related consolidated statements of operations, stockholders' equity (deficit), and cash flows for the each of the three years in the period ended December 31, 2005. Our audits also included the financial statement schedule of real estate and accumulated depreciation. These financial statements and schedule are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements and schedule based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. We were not engaged to perform an audit of the Company's internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Douglas Emmett Realty Advisors, Inc. and subsidiaries at December 31, 2005 and 2004, and the consolidated results of their operations and their cash flows for each of the three years in period ended December 31, 2005, in conformity with U.S. generally accepted accounting principles. Also, in our opinion, the related financial statement schedule, when considered in relation to the basic financial statements taken as a whole, presents fairly in all material respects the information set forth therein.
Los
Angeles, California /s/ Ernst & Young LLP
April 28, 2006
F-47
Douglas Emmett Realty Advisors, Inc.
Consolidated Balance Sheets
(In thousands, except for share data)
|
December 31,
|
||||||||
---|---|---|---|---|---|---|---|---|---|
|
2005
|
2004
|
|||||||
Assets | |||||||||
Investment in real estate | $ | 2,622,484 | $ | 2,398,980 | |||||
Cash and cash equivalents |
|
|
108,282 |
|
|
107,860 |
|
||
Tenant receivables | 3,658 | 3,280 | |||||||
Deferred rent receivables | 62,145 | 46,248 | |||||||
Interest rate contracts | 71,992 | 4,330 | |||||||
Other assets | 36,086 | 24,999 | |||||||
|
|
||||||||
Total assets | $ | 2,904,647 | $ | 2,585,697 | |||||
|
|
||||||||
Liabilities |
|
|
|
|
|
|
|
||
Secured notes payable | $ | 2,223,500 | $ | 1,982,655 | |||||
Accounts payable, accrued expenses and tenant security deposits | 84,418 | 76,511 | |||||||
Interest rate contracts | 6,004 | 10,307 | |||||||
|
|
||||||||
Total liabilities | 2,313,922 | 2,069,473 | |||||||
Preferred minority interest in consolidated real estate partnerships |
|
|
184,000 |
|
|
85,000 |
|
||
Minority interest in consolidated real estate partnerships | 504,516 | 494,838 | |||||||
Stockholders' equity (deficit) |
|
|
|
|
|
|
|
||
Common stock$0 par value; 10,000 shares authorized and 65 shares outstanding | | | |||||||
Additional paid-in-capital | | | |||||||
Retained earnings (deficit) | (97,791 | ) | (63,614 | ) | |||||
|
|
||||||||
Total stockholders' equity (deficit) | (97,791 | ) | (63,614 | ) | |||||
|
|
||||||||
Total liabilities and stockholders' equity (deficit) | $ | 2,904,647 | $ | 2,585,697 | |||||
|
|
See accompanying notes.
F-48
Douglas Emmett Realty Advisors, Inc.
Consolidated Statements of Operations
(In thousands, except for share data)
|
Years Ended December 31,
|
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|
|
2005
|
2004
|
2003
|
|||||||||
Revenues: | ||||||||||||
Office rental: | ||||||||||||
Rental revenues | $ | 297,551 | $ | 249,402 | $ | 246,369 | ||||||
Tenant recoveries | 14,632 | 9,439 | 9,386 | |||||||||
Parking and other income | 36,383 | 27,797 | 27,557 | |||||||||
|
|
|
||||||||||
Total office revenue | 348,566 | 286,638 | 283,312 | |||||||||
Multifamily rental: | ||||||||||||
Rental revenues | 43,942 | 32,787 | 31,070 | |||||||||
Parking and other income | 1,280 | 1,006 | 924 | |||||||||
|
|
|
||||||||||
Total multifamily revenue | 45,222 | 33,793 | 31,994 | |||||||||
|
|
|
||||||||||
Total revenues | 393,788 | 320,431 | 315,306 | |||||||||
Operating Expenses: | ||||||||||||
Office rental | 119,879 | 103,407 | 96,771 | |||||||||
Multifamily rental | 15,347 | 13,219 | 11,765 | |||||||||
General and administrative expenses | 6,457 | 5,646 | 5,195 | |||||||||
Depreciation and amortization | 113,170 | 91,306 | 92,559 | |||||||||
|
|
|
||||||||||
Total operating expenses | 254,853 | 213,578 | 206,290 | |||||||||
|
|
|
||||||||||
Operating income | 138,935 | 106,853 | 109,016 | |||||||||
Gain on investments in interest rate contracts, net |
|
|
81,666 |
|
|
37,629 |
|
|
23,583 |
|
||
Interest and other income | 2,264 | 1,463 | 514 | |||||||||
Interest expense | (115,674 | ) | (95,125 | ) | (94,783 | ) | ||||||
Deficit distributions to minority partners, net | (28,150 | ) | (57,942 | ) | | |||||||
|
|
|
||||||||||
Income (loss) from continuing operations before minority interest expense | 79,041 | (7,122 | ) | 38,330 | ||||||||
Minority interest: | ||||||||||||
Minority interest in consolidated real estate partnerships | (79,756 | ) | (47,144 | ) | (30,944 | ) | ||||||
Preferred minority investor | (15,805 | ) | (2,499 | ) | | |||||||
|
|
|
||||||||||
Income (loss) from continuing operations | (16,520 | ) | (56,765 | ) | 7,386 | |||||||
Income from discontinued operations, net of minority interest | | 174 | 239 | |||||||||
|
|
|
||||||||||
Net income (loss) | $ | (16,520 | ) | $ | (56,591 | ) | $ | 7,625 | ||||
|
|
|
||||||||||
Basic income per common share: | ||||||||||||
Income (loss) from continuing operations | $ | (254 | ) | $ | (873 | ) | $ | 114 | ||||
Income from discontinued operations | | 3 | 4 | |||||||||
|
|
|
||||||||||
Net income (loss) per common share | $ | (254 | ) | $ | (870 | ) | $ | 118 | ||||
|
|
|
||||||||||
Weighted average shares of common stock outstanding | 65 | 65 | 65 | |||||||||
|
|
|
See accompanying notes.
F-49
Douglas Emmett Realty Advisors, Inc.
Statements of Stockholders' Equity (Deficit)
Years Ended December 31, 2005, 2004 and 2003
(In thousands, except share data)
|
Number of
Common Shares |
Additional
Paid-in Capital |
Common
Stock |
Retained
Earnings (Deficit) |
Total
|
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Balance at January 1, 2003 | 65 | $ | 5,615 | $ | | $ | 11,474 | $ | 17,089 | |||||||
Net income | | | | 7,625 | 7,625 | |||||||||||
Distributions | | | | (8,227 | ) | (8,227 | ) | |||||||||
|
|
|
|
|
||||||||||||
Balance at December 31, 2003 | 65 | 5,615 | | 10,872 | 16,487 | |||||||||||
Net loss | | | | (56,591 | ) | (56,591 | ) | |||||||||
Contributions | 2,000 | | | 2,000 | ||||||||||||
Distributions | | (7,615 | ) | | (17,895 | ) | (25,510 | ) | ||||||||
|
|
|
|
|
||||||||||||
Balance at December 31, 2004 | 65 | | | (63,614 | ) | (63,614 | ) | |||||||||
Net loss | | | | (16,520 | ) | (16,520 | ) | |||||||||
Distributions | | | | (17,657 | ) | (17,657 | ) | |||||||||
|
|
|
|
|
||||||||||||
Balance at December 31, 2005 | 65 | $ | | $ | | $ | (97,791 | ) | $ | (97,791 | ) | |||||
|
|
|
|
|
See accompanying notes.
F-50
Douglas Emmett Realty Advisors, Inc.
Consolidated Statements of Cash Flows
(In thousands)
|
Years Ended December 31,
|
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|
|
2005
|
2004
|
2003
|
|||||||||
Operating activities: | ||||||||||||
Net income (loss): | $ | (16,520 | ) | $ | (56,591 | ) | $ | 7,625 | ||||
Adjustments to reconcile net income (loss) to net cash provided by operating activities: | ||||||||||||
Minority interests in consolidated real estate partnerships, including discontinued operations | 95,561 | 66,827 | 54,578 | |||||||||
Deficit distributions to minority partners | 28,150 | 57,942 | | |||||||||
Depreciation and amortization, including discontinued operations | 113,170 | 91,588 | 93,809 | |||||||||
Accretion and amortization of above (below) market leases | (1,690 | ) | (266 | ) | 472 | |||||||
Gain on sale of property | | (16,656 | ) | (21,632 | ) | |||||||
Amortization of loan costs and fees | 10,482 | 5,668 | 3,830 | |||||||||
Gain on interest rate swap contracts | (81,666 | ) | (37,629 | ) | (23,583 | ) | ||||||
Changes in operating assets and liabilities: | ||||||||||||
Tenant receivables | (1,278 | ) | (933 | ) | 10 | |||||||
Deferred rent | (15,897 | ) | (14,044 | ) | (7,897 | ) | ||||||
Other assets | (2,935 | ) | 3,935 | 1,459 | ||||||||
Accounts payable and accrued expenses | 434 | (7,074 | ) | 5,279 | ||||||||
|
|
|
||||||||||
Net cash provided by operating activities | 127,811 | 92,767 | 113,950 | |||||||||
|
|
|
||||||||||
Investing activities: | ||||||||||||
Acquisition of and additions to properties | (231,157 | ) | (262,641 | ) | (64,105 | ) | ||||||
Proceeds from sale of properties | | 39,067 | 66,268 | |||||||||
|
|
|
||||||||||
Net cash provided by (used in) investing activities | (231,157 | ) | (223,574 | ) | 2,163 | |||||||
|
|
|
||||||||||
Financing activities: | ||||||||||||
Proceeds from borrowings | 1,865,000 | 534,455 | 717,023 | |||||||||
Repayments of borrowings | (1,724,655 | ) | (289,200 | ) | (550,400 | ) | ||||||
Proceeds from affiliated borrowing | 23,500 | | | |||||||||
Repayments of borrowing from affiliate | (23,500 | ) | | | ||||||||
Deferred loan costs | (14,476 | ) | (4,467 | ) | (8,408 | ) | ||||||
Proceeds from interest rate swap contract termination | 10,982 | | | |||||||||
Payment on interest rate swap contract termination | (1,281 | ) | (7,692 | ) | (126 | ) | ||||||
Contributions by minority interest | 142,518 | 231,427 | | |||||||||
Distributions to minority interests | (156,663 | ) | (273,196 | ) | (266,184 | ) | ||||||
Contributions by stockholders | | 2,000 | | |||||||||
Distributions to stockholders | (17,657 | ) | (25,510 | ) | (8,227 | ) | ||||||
|
|
|
||||||||||
Net cash provided by (used in) financing activities | 103,768 | 167,817 | (116,322 | ) | ||||||||
|
|
|
||||||||||
Net increase (decrease) in cash and cash equivalents | 422 | 37,010 | (209 | ) | ||||||||
Cash and cash equivalents at beginning of the year | 107,860 | 70,850 | 71,059 | |||||||||
|
|
|
||||||||||
Cash and cash equivalents at end of the year | $ | 108,282 | $ | 107,860 | $ | 70,850 | ||||||
|
|
|
||||||||||
Supplemental disclosure of cash flow information | ||||||||||||
Cash paid during the year for interest, net of amounts capitalized | $ | 110,651 | $ | 89,906 | $ | 85,672 |
See accompanying notes.
F-51
Douglas Emmett Realty Advisors, Inc.
Notes to Consolidated Financial Statements
December 31, 2005
(In thousands)
1. Organization and Description of Business
Organization
Douglas Emmett Realty Advisors, Inc. (DERA) and subsidiaries consists of Douglas Emmett Realty Advisors, Inc., a California S-Corporation, and eight California real estate limited partnerships (the Real Estate Entities) (collectively, the Company) and their operations as described in Note 2. The Company is engaged in the business of acquiring, owning, and developing real estate, consisting primarily of office and multifamily properties located in Los Angeles County, California and Honolulu, Hawaii. During all periods presented in the accompanying consolidated financial statements, the Company consists of DERA and the Real Estate Entities that own the properties that will be contributed through the formation transactions discussed below. DERA also has responsibility for the asset management of the real estate entities.
DERA is the predecessor of Douglas Emmett, Inc. (the REIT). Concurrent with an initial public offering (the Offering) of the common stock of the REIT, which is expected to be completed in 2006, the REIT and a newly formed majority owned limited partnership, Douglas Emmett Properties, L.P. (the Operating Partnership), together with the partners and stockholders of the affiliated partnerships and corporations of the Company and other parties which hold direct or indirect interests in the properties (collectively, the Participants), will engage in certain formation transactions (the Formation Transactions). The Participants will elect to take either stock in the REIT, limited partnership units in the Operating Partnership and/or cash pursuant to the Formation Transactions. The Formation Transactions are designed to (i) consolidate our asset management, property management, leasing, tenant improvement construction, acquisition, repositioning, redevelopment and financing businesses into our Operating Partnership; (ii) consolidate the ownership of our property portfolio under our Operating Partnership; (iii) facilitate this offering; (iv) enable the REIT to qualify as a REIT for federal income tax purposes commencing with the taxable year ending December 31, 2006; (v) defer the recognition of taxable gain by certain continuing investors; and (vi) enable prior investors to obtain liquidity for their investments.
The operations of the REIT will be carried on primarily through the Operating Partnership. It is the intent of the REIT to elect the status of and qualify as a REIT under the Sections 856 through 860 of the Internal Revenue Code of 1986, as amended. Douglas Emmett Management, Inc., a wholly owned subsidiary of the REIT, will be the sole general partner in the Operating Partnership. The REIT after the completion of the Formation Transactions will be fully integrated, self-administered and self-managed.
Description of Business
The REIT was formed as a Maryland corporation on June 28, 2005, and Douglas Emmett Properties, L.P., the Company's Operating Partnership, was formed as a Delaware limited partnership on July 25, 2005.
Upon the completion of Formation Transactions that will consolidate asset management, property management, leasing, tenant improvement construction, acquisition, and development businesses and the ownership of a property portfolio under our Operating Partnership, the REIT will be fully integrated, self-advised and self-managed. Currently, the properties constitute an office and multifamily
F-52
portfolio located in Los Angeles County, California, and Honolulu, Hawaii. The Company's office portfolio, with its complementary retail space, consists of 42 properties, five multifamily apartment properties, and two parcels of land.
2. Summary of Significant Accounting Policies
Basis of Presentation
In March 2005, the Emerging Issues Task Force (EITF) of the Financial Accounting Standards Board (FASB) reached a consensus on Issue No. 04-5, Investor's Accounting for an Investment in a Limited Partnership When the Investor Is the Sole General Partner and the Limited Partners Have Certain Rights . EITF 04-5 clarifies certain aspects of Statement of Positions 78-9 Accounting for Investments in Real Estate Ventures , and provides guidance on determining whether a sole general partner in a limited partnership should consolidate its investment in a limited partnership. DERA is the sole general partner of the Real Estate Entities and the limited partners of the Real Estate Entities do not have substantive "kick-out" or participation rights as defined by EITF 04-5. DERA early adopted the guidance of EITF 04-5 and has consolidated the Real Estate Entities retrospectively.
The accompanying consolidated financial statements represent the historical financial statements of the Company. They include the accounts of DERA and the Real Estate Entities. All significant intercompany balances and transactions have been eliminated in the consolidated financial statements.
Use of Estimates
The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make certain estimates and assumptions that affect the reported amounts in the consolidated financial statements and accompanying notes. Actual results could differ from those estimates.
Segment Disclosure
Statement of Financial Accounting Standards (SFAS) No. 131, Disclosures about Segments of an Enterprise and Related Information , established standards for disclosure about operating segments and related disclosures about products and services, geographic areas and major customers. Segment information is prepared on the same basis that the Company's management reviews information for operational decision making purposes. The Company currently operates two business segments: the acquisition, development, ownership and management of office real estate and the acquisition, redevelopment, ownership and management of multifamily real estate.
The products for the office segment include primarily rental of office space and other tenant services including parking and storage space rental. The products for the multifamily segment include rental of apartments and other tenant services including parking and storage space rental.
F-53
Investment in Real Estate
Acquisitions of properties subsequent to June 30, 2001, the effective date of SFAS No. 141, Business Combinations , are accounted for utilizing the purchase method and, accordingly, the results of operations of acquired properties are included in our results of operations from the respective dates of acquisition. Estimates of future cash flows and other valuation techniques are used to allocate the purchase price of acquired property between land, buildings and improvements, equipment and identifiable intangible assets and liabilities such as amounts related to in-place at-market leases, acquired above-market ground leases, acquired above and below-market leases and tenant relationships. Initial valuations are subject to change until such information is finalized, but no later than 12 months from the acquisition date.
The fair values of tangible assets are determined on an "as-if vacant" basis. The "as-if vacant" fair value is allocated to land, where applicable, buildings, tenant improvements and equipment based on comparable sales and other relevant information obtained in connection with the acquisition of the property.
The estimated fair value of acquired in-place at-market leases are the costs we would have incurred to lease the property to the occupancy level of the property at the date of acquisition. Such estimate includes the fair value of leasing commissions and legal costs that would be incurred to lease the property to this occupancy level. Additionally, we evaluate the time period over which such occupancy level would be achieved and include an estimate of the net operating costs (primarily real estate taxes, insurance and utilities) incurred during the lease-up period, which generally ranges from eight to 12 months.
Above-market and below-market in-place lease values are recorded based on the present value (using an interest rate which reflects the risks associated with the leases acquired) of the difference between the contractual amounts to be paid pursuant to the in-place leases and our estimate of fair market lease rates for the corresponding in-place leases, measured over a period equal to the remaining noncancelable term of the lease. As of December 31, 2005 and 2004, the Company had a net liability related to above and below market tenant and ground leases of $21,304 and $21,179, respectively.
F-54
The net above and below market tenant and ground lease liability is summarized as follows:
|
December 31,
|
||||||
---|---|---|---|---|---|---|---|
|
2005
|
2004
|
|||||
Above market tenant leases (1) | $ | 11,018 | $ | 8,032 | |||
Below market tenant leases (2) | (14,748 | ) | (9,868 | ) | |||
Above market ground leases (3) | (18,977 | ) | (18,977 | ) | |||
|
|
||||||
Subtotal | (22,707 | ) | (20,813 | ) | |||
Accumulated net accretion (amortization) | 1,403 | (366 | ) | ||||
|
|
||||||
Above and below market leases, net | $ | (21,304 | ) | $ | (21,179 | ) | |
|
|
Net accretion/(amortization) above (below) market in-place tenant lease value of $1,690, $266, $(476) was recorded as an increase (decrease) in rental income for the years ended December 31, 2005, 2004 and 2003, respectively. The weighted-average amortization period for the Company's above and below market tenant leases was approximately 9.8 years as of December 31, 2005.
The net accretion of above market ground lease value of $1,146, $556 and $0 has been recorded as a reduction of office rental operating expense.
Following is the estimated net accretion at December 31, 2005 for the next five years:
Year
|
|
||||
---|---|---|---|---|---|
2006 | $ | (1,594 | ) | ||
2007 | (1,425 | ) | |||
2008 | (1,195 | ) | |||
2009 | (1,243 | ) | |||
2010 | (1,483 | ) | |||
Thereafter | (14,364 | ) | |||
|
|||||
Total | $ | (21,304 | ) | ||
|
Expenditures for repairs and maintenance are charged to operations as incurred. Significant betterments and costs incurred in the execution of leases are capitalized. When assets are sold or retired, their costs and related accumulated depreciation are removed from the accounts with the resulting gains or losses reflected in net income or loss for the period.
The values allocated to land, buildings, site improvements, tenant improvements, leasing costs and in-place leases are depreciated on a straight-line basis using an estimated life of 40 years for buildings, 15 years for site improvements, and the respective lease term for tenant improvements, leasing costs and in-place leases. The values of above and below market leases are amortized over the life of the
F-55
related lease and recorded as either an increase (for below market leases) or a decrease (for above market leases) to rental income. The values of acquired above-market ground leases are amortized over the life of the lease and recorded as a decrease to office rental operating expense. The amortization of acquired in-place leases is recorded as an adjustment to depreciation and amortization in the consolidated statements of operations. If a lease were to be terminated prior to its stated expiration, all unamortized amounts relating to that lease would be written off.
The Company accounts for properties held for disposition or properties that are sold during the period in accordance with SFAS No. 144, Accounting for the Impairment or Disposal of Long-Lived Assets (SFAS No. 144). An asset is classified as an asset held for disposition when it meets the requirements of SFAS No. 144, which include, among other criteria, the approval of the sale of the asset, the asset has been marketed for sale and the Company expects that the sale will likely occur within the next 12 months. Upon classification of an asset as held for disposition, the net book value of the asset, excluding long-term debt, is included on the balance sheet as properties held for disposition, depreciation of the asset is ceased and the operating results of the asset are included in discontinued operations for all periods presented.
Impairment of Long-Lived Assets
The Company assesses whether there has been impairment in the value of its long-lived assets whenever events or changes in circumstances indicate the carrying amount of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount to the undiscounted future cash flows expected to be generated by the asset. If the current carrying value exceeds the estimated undiscounted cash flows, an impairment loss is recorded equal to the difference between the asset's current carrying value and its value based on the discounted estimated future cash flows. Assets to be disposed of are reported at the lower of the carrying amount or fair value, less costs to sell. Based upon such periodic assessments, no indications of impairment were identified for the years ended December 31, 2005 and 2004.
Cash and Cash Equivalents
For purposes of the consolidated statements of cash flows, the Company considers short-term investments with original maturities of three months or less when purchased to be cash equivalents.
Revenue and Gain Recognition
Revenue is recognized in accordance with Staff Accounting Bulletin No. 104 of the Securities and Exchange Commission, Revenue Recognition (SAB 104), as amended. SAB 104 requires that four basic criteria must be met before revenue can be recognized: persuasive evidence of an arrangement exists; the delivery has occurred or services rendered; the fee is fixed and determinable; and collectibility is reasonably assured. All leases are classified as operating leases. For all lease terms exceeding one year, rental income is recognized on a straight-line basis over the terms of the leases. Deferred rent receivables represent rental revenue recognized on a straight-line basis in excess of billed rents. Reimbursements from tenants for real estate taxes and other recoverable operating expenses are
F-56
recognized as revenues in the period the applicable costs are incurred. In addition, the Company records a capital asset for leasehold improvements constructed by the Company that are reimbursed by tenants, with the offsetting side of this accounting entry recorded to deferred revenue which is included in accounts payable, accrued expenses and tenant security deposits. The deferred revenue is amortized as additional rental revenue over the life of the related lease.
Rental revenue from month-to-month leases or leases with no scheduled rent increases or other adjustments is recognized on a monthly basis when earned.
Lease termination fees, which are included in rental revenues in the accompanying consolidated statements of operations, are recognized when the related leases are canceled and the Company has no continuing obligation to provide services to such former tenants. Total lease termination revenue for the years ended December 31, 2005, 2004 and 2003, was $1,291, $2,619 and $2,112, respectively.
The Company recognizes gains on sales of real estate pursuant to the provisions of SFAS No. 66, Accounting for Sales of Real Estate (SFAS No. 66). The specific timing of a sale is measured against various criteria in SFAS No. 66 related to the terms of the transaction and any continuing involvement in the form of management or financial assistance associated with the property. If the sales criteria are not met, the Company defers gain recognition and accounts for the continued operations of the property by applying the finance, installment or cost recovery methods, as appropriate, until the sales criteria are met.
Monitoring of Rents and Other Receivables
The Company maintains an allowance for estimated losses that may result from the inability of tenants to make required payments. If a tenant fails to make contractual payments beyond any allowance, the Company may recognize bad debt expense in future periods equal to the amount of unpaid rent and deferred rent. As of December 31, 2005 and 2004, the Company had an allowance for doubtful accounts of $72 and $0, respectively.
The Company generally does not require collateral or other security from its tenants, other than security deposits or letters of credit. As of December 31, 2005 and 2004, the Company had a total of approximately $13,670 and $12,700, respectively, of total lease security available on existing letters of credit; and $25,670 and $21,389 of security available in security deposits.
Deferred Loan Costs
Costs incurred in issuing secured notes payable are capitalized. Deferred loan costs are included in other assets in the consolidated balance sheets at December 31, 2005 and 2004. The deferred loan costs are amortized to interest expense over the life of the respective loans. Any unamortized amounts upon early repayment of secured notes payable are written off in the period of repayment.
Financial Instruments
The estimated fair values of financial instruments at December 31, 2005 and 2004, were determined using available market information and appropriate valuation methods. Considerable
F-57
judgment is necessary to interpret market data and develop estimated fair values. The use of different market assumptions or estimation methods may have a material effect on the estimated fair value amounts. Accordingly, estimated fair values are not necessarily indicative of the amounts that could be realized in current market exchanges.
Cash and cash equivalents, tenant receivables, certain other assets, accounts payable and accrued expenses and tenant security deposits are carried at amounts that reasonably approximate their fair value amounts. The Company's interest rate contracts are recorded on the consolidated balance sheets at their fair values. The estimated fair values of secured notes payable are approximately $2,255,227 at December 31, 2005, and are based on interest rates available at each of the dates presented for issuance of debt with similar terms and remaining maturities.
Interest Rate Agreements
The Company manages its interest rate risk associated with borrowings by obtaining interest rate swap and interest rate cap contracts. No other derivative instruments are used.
In June 1998, the Financial Accounting Standards Board (FASB) issued SFAS No. 133, Accounting for Derivative Instruments and Hedging Activities (SFAS No. 133), as amended by SFAS No. 138). The statement requires the Company to recognize all derivatives on the balance sheet at fair value. Derivatives that are not hedges must be adjusted to fair value and the changes in fair value must be reflected as income or expense. If the derivative is a hedge, depending on the nature of the hedge, changes in the fair value of derivatives are either offset against the change in fair value of the hedged assets, liabilities, or firm commitments through earnings or recognized in other comprehensive income, a component of stockholders' equity (deficit), until the hedged item is recognized in earnings. The ineffective portion of a derivative's change in fair value is immediately recognized in earnings. The Company's investments in interest rate swap and interest rate cap contracts do not qualify as effective hedges, and as such, the changes in such contracts' fair market values are being recorded in earnings.
During the years ended December 31, 2005, 2004 and 2003, the Company recognized gains relating to the change in fair market value of its interest rate contracts of $81,666, $37,629 and $23,583, respectively, and made payments related to the termination of certain interest rate contracts of $1,281, $7,692 and $126, respectively. Additionally, the Company received proceeds of $10,982 related to the termination of certain interest rate contracts during 2005.
Income Taxes
Douglas Emmett Realty Advisors is an S-Corporation and the Real Estate Entities are limited partnerships. Under applicable federal and state income tax rules, the allocated share of net income or loss from the limited partnerships and S-Corporation is reportable in the income tax returns of the respective partners and stockholders. Accordingly, no income tax provision is included in the accompanying consolidated financial statements other than the 1.5% tax due on taxable income of S-Corporations in the state of California.
F-58
3. Investment in Real Estate
Investment in real estate consists of the following:
|
December 31,
|
||||||
---|---|---|---|---|---|---|---|
|
2005
|
2004
|
|||||
Land | $ | 444,894 | $ | 406,911 | |||
Buildings | 2,324,536 | 2,039,037 | |||||
Tenant improvements and leasing costs | 359,312 | 358,260 | |||||
|
|
||||||
Investment in real estate | 3,128,742 | 2,804,208 | |||||
Less accumulated depreciation | (506,258 | ) | (405,228 | ) | |||
|
|
||||||
Net investment in real estate | $ | 2,622,484 | $ | 2,398,980 | |||
|
|
In January 2005, the Company acquired from unrelated parties an office building in Woodland Hills, California, and an apartment building in Honolulu, Hawaii. The aggregate acquisition costs of these properties approximated $169,870.
In June, August and November 2004, the Company acquired from unrelated parties office properties in Honolulu, Hawaii, Beverly Hills, California, and Honolulu, Hawaii, respectively. The aggregate acquisition costs of these properties approximated $171,898.
The following table summarizes the allocation of estimated fair values of the assets acquired and liabilities assumed at the date of acquisition.
|
December 31,
|
|||||||||
---|---|---|---|---|---|---|---|---|---|---|
|
2005
|
2004
|
2003
|
|||||||
Land | $ | 45,407 | $ | 13,323 | $ | | ||||
Buildings and equipment | 204,137 | 158,483 | | |||||||
Tenant improvements and other in-place lease assets | 24,661 | 22,384 | | |||||||
Other assets: | ||||||||||
Tenant receivables and other assets | 1,767 | 79 | | |||||||
Above-market tenant leases | 2,986 | 3,612 | | |||||||
Accounts payable, accrued expenses and tenant security deposits: | ||||||||||
Other liabilities | (3,708 | ) | (1,811 | ) | | |||||
Above-market ground leases | | (18,977 | ) | | ||||||
Below-market tenant leases | (4,880 | ) | (5,195 | ) | | |||||
Secured notes payable | (100,500 | ) | | | ||||||
|
|
|
||||||||
$ | 169,870 | $ | 171,898 | $ | | |||||
|
|
|
Interest, insurance and property tax costs incurred during the period of construction of real estate facilities are capitalized. For the years ended December 31, 2005, 2004 and 2003, the Company capitalized $0, $196 and $0 of interest, respectively.
F-59
4. Other Assets
Other assets consist of the following:
|
December 31,
|
|||||
---|---|---|---|---|---|---|
|
2005
|
2004
|
||||
Deferred loan costs, net of accumulated amortization of $969 and $14,501 at December 31, 2005 and 2004 | $ | 14,617 | $ | 10,623 | ||
Above-market tenant leases | 5,562 | 4,789 | ||||
Security deposit funds | 3,043 | 2,633 | ||||
Prepaid impounds | 5,266 | 2,454 | ||||
Prepaid expenses | 7,081 | 4,101 | ||||
Other | 517 | 399 | ||||
|
|
|||||
$ | 36,086 | $ | 24,999 | |||
|
|
During the years ended December 31, 2005, 2004 and 2003, the Company incurred deferred loan cost amortization expense of $10,482, $5,668 and $4,205, respectively, inclusive of loan cost write-offs totaling $9,823, $2,299 and $1,441, respectively, related to the refinancing of certain secured notes payable. The deferred loan cost amortization and write-offs are included as a component of interest expense in the consolidated statements of operations.
5. Minimum Future Lease Rentals
The Company leases space to tenants primarily under noncancelable operating leases, which generally contain provisions for a base rent plus reimbursement for certain operating expenses. Operating expense reimbursements for the years ended December 31, 2005, 2004 and 2003, were $14,632, $9,439 and $9,303, respectively.
The Company leases space to certain tenants under noncancelable leases, which provide for contingent rents based upon tenant revenues. The contingent rental income for the years ended December 31, 2005, 2004 and 2003, totaled $933, $483 and $239, respectively.
Future minimum base rentals on noncancelable operating leases at December 31, 2005, are as follows:
2006 | $ | 273,078 | |
2007 | 251,062 | ||
2008 | 217,516 | ||
2009 | 179,467 | ||
2010 | 141,458 | ||
Thereafter | 409,899 | ||
|
|||
$ | 1,472,480 | ||
|
The above future minimum lease payments exclude tenant reimbursements, amortization of deferred rent receivables and above/below-market lease intangibles. Some leases are subject to
F-60
termination options. In general, these leases provide for termination payments should the termination options be exercised. The above table is prepared assuming such options are not exercised.
6. Secured Notes Payable
Payments on mortgage debt are generally due in monthly installments of interest only. The aggregate historical cost, net of accumulated depreciation, of secured properties at December 31, 2005 and 2004, was approximately $2,366,600 and $2,394,320, respectively.
A summary of secured notes payable and secured line of credit is as follows:
Type of Debt
|
December 31, 2005
|
December 31, 2004
|
Effective Interest Rate at December 31, 2005
(4)
|
Fixed/
Floating Rate |
Maturity Date
|
|||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|
Secured Notes Payable | ||||||||||||
Secured by: | ||||||||||||
Barrington Plaza and Pacific Plaza (1) | $ | 153,000 | $ | 153,000 | 4.70% | DMBS + 0.60% (3) | December 22, 2011 | |||||
555 Barrington and The Shores (1) | 140,000 | 140,000 | 4.70 | DMBS + 0.60 (3) | December 22, 2011 | |||||||
Studio Plaza, Gateway Los Angeles, Bundy/Olympic and Brentwood Executive Plaza (1) | 170,000 | | 5.00 | LIBOR + 0.85 | September 1, 2012 | |||||||
Palisades Promenade, 12400 Wilshire, First Federal Square, 11777 San Vicente and Landmark II (1) | 260,000 | | 5.00 | LIBOR + 0.85 | September 1, 2012 | |||||||
Sherman Oaks Galleria, Second Street Plaza (1) | 215,000 | | 5.00 | LIBOR + 0.85 | September 1, 2012 | |||||||
Alameda Media, Olympic Center, MB Plaza, Valley Office Plaza, Coral Plaza, Westside Towers, Valley Executive Tower, Encino Terrace, Westwood Place, Century Park Plaza, Lincoln/Wilshire (1) | 425,000 | | 4.89 | LIBOR + 0.85 | September 1, 2012 | |||||||
100 Wilshire, Encino Gateway, Encino Plaza (1) | 150,000 | | 4.89 | LIBOR + 0.85 | September 1, 2012 | |||||||
1901 Avenue of the Stars, Columbus Center and Warner Center
Towers (1) |
425,000 | | 4.89 | LIBOR + 0.85 | September 1, 2012 | |||||||
Beverly Hills Medical Center, Harbor Court, and Bishop Place (1) | 110,000 | | 4.89 | LIBOR + 0.85 | September 1, 2012 | |||||||
The Trillium (1) | 100,500 | | 4.28 | 4.28 | January 1, 2007 | |||||||
Moanalua (1) | 75,000 | | 4.86 | DMBS + 0.60 (3) | February 1, 2015 | |||||||
F-61
Alameda Media, Olympic Center, MB Plaza, Valley Office Plaza, Coral Plaza, Westside Towers, Valley Executive Tower, Encino Terrace, Westwood Place, Century Park Plaza, One Westwood, Lincoln/Wilshire (1) | | 418,700 | n/a | LIBOR + 1.3 | December 1, 2009 | |||||||
Verona, Second Street Plaza, Saltair/San Vicente, Sherman Oaks Tower and Sherman Oaks Galleria (1) | | 210,000 | n/a | LIBOR + 1.2 | July 1, 2009 | |||||||
Executive Tower, Camden Medical Arts, Palisades Promenade, 12400 Wilshire, First Federal Square, 11777 San Vicente and Landmark II (1) | | 260,000 | n/a | LIBOR + 1.35 | March 2, 2008 | |||||||
Warner Center Towers (1) | | 214,000 | n/a | LIBOR + 1.55 | September 9, 2007 | |||||||
Village on Canon, Gateway Los Angeles, Bundy/Olympic and Brentwood Executive Plaza (1) | | 73,500 | n/a | LIBOR + 1.375 | August 6, 2007 | |||||||
Studio Plaza (1) | | 88,255 | n/a | LIBOR + 1.07 | August 1, 2007 | |||||||
9601 Wilshire | | 55,000 | n/a | LIBOR + 1.6 | September 18, 2006 | |||||||
1901 Avenue of the Stars, Santa Monica Square and Columbus Center (1) | | 129,000 | n/a | LIBOR + 1.3 | September 18, 2006 | |||||||
100 Wilshire, Encino Gateway, Encino Plaza and Brentwood/Saltair (1) | | 132,000 | n/a | LIBOR + 1.33 | March 1, 2006 | |||||||
Line of Credit | ||||||||||||
Secured by: | ||||||||||||
Beverly Hills Medical Center, Harbor Court and Bishop Place (2) | | 109,200 | n/a | LIBOR + 1.40 | November 19, 2006 | |||||||
|
|
|||||||||||
Total secured notes payable | $ | 2,223,500 | $ | 1,982,655 | ||||||||
|
|
F-62
The minimum future principal payments due on the secured notes payable at December 31, 2005, are as follows:
2006 | $ | | |
2007 | 100,500 | ||
2008 | | ||
2009 | | ||
2010 | | ||
Thereafter | 2,123,000 | ||
|
|||
Total future principal payments | $ | 2,223,500 | |
|
7. Accounts Payable, Accrued Expenses and Tenant Security Deposits
Accounts payable, accrued expenses and tenant security deposits consist of the following:
|
December 31,
|
|||||
---|---|---|---|---|---|---|
|
2005
|
2004
|
||||
Tenant security deposits | $ | 25,670 | $ | 21,389 | ||
Accounts payable | 20,009 | 22,190 | ||||
Above-market ground leases | 17,274 | 18,420 | ||||
Deferred revenue | 11,872 | 6,963 | ||||
Below-market tenant leases | 9,593 | 7,549 | ||||
|
|
|||||
$ | 84,418 | $ | 76,511 | |||
|
|
F-63
8. Interest Rate Agreements
The table below lists the Company's derivative instruments and their fair values as of December 31, 2005 and 2004:
|
|
|
|
|
|
Fair Value
|
||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Instrument
|
Notional Value
|
Interest Pay Rate
|
|
|
Termination/Sold Date
|
|||||||||||||
Effective Date
|
Maturity Date
|
2005
|
2004
|
|||||||||||||||
|
|
|
|
|
|
Asset (Liability)
|
||||||||||||
Interest rate swap | $ | 300,000 | 5.449% | February 1, 2001 | February 1, 2005 | August 26, 2005 | $ | | $ | (792 | ) | |||||||
Interest rate swap |
|
|
132,000 |
|
5.300% |
|
March 1, 2001 |
|
March 1, 2005 |
|
August 26, 2005 |
|
|
|
|
|
(623 |
) |
Interest rate swaps |
|
|
1,073,500 |
|
Ranging from 2.775% to 4.855% |
|
Ranging from September 2001 to August 2004 |
|
Ranging from October 2005 to July 2008 |
|
August 26, 2005 |
|
|
|
|
|
(4,900 |
) |
Interest rate cap |
|
|
218,700 |
|
8.550% |
|
November 7, 2003 |
|
June 1, 2008 |
|
August 26, 2005 |
|
|
|
|
|
74 |
|
Interest rate caps |
|
|
368,000 |
|
Ranging from 6.520% to 6.700% |
|
Ranging from December 2004 to January 2005 |
|
Ranging from December 2007 to January 2008 |
|
|
|
|
60 |
|
|
264 |
|
Interest rate swaps |
|
|
2,123,003 |
|
Ranging from 4.038% to 4.173% |
|
Ranging from August 2005 to September 2005 |
|
Ranging from August 2010 to August 2012 |
|
|
|
|
65,928 |
|
|
|
|
Interest rate caps |
|
|
368,000 |
|
5.500% |
|
November 1, 2005 |
|
August 1, 2011 |
|
|
|
|
6,004 |
|
|
|
|
Sold caps |
|
|
368,000 |
|
5.500% |
|
November 1, 2005 |
|
August 1, 2011 |
|
|
|
|
(6,004 |
) |
|
|
|
|
|
|||||||||||||||||
Total net fair value of interest rate contracts | $ | 65,988 | $ | (5,977 | ) | |||||||||||||
|
|
9. Minority Interests in Consolidated Real Estate Partnerships
The Company reflects unaffiliated partners' interests in the Real Estate Entities as minority interest in consolidated real estate partnerships. Minority interest in consolidated real estate partnerships represents the minority partners' share of the underlying net assets of the Company's consolidated real estate partnerships. When these consolidated real estate partnerships make cash distributions to partners in excess of the carrying amount of the minority interest, the Company generally records a charge equal to the amount of such excess distributions, even though there is no economic effect or cost. If the excess distributions previously absorbed by the Company are recovered through the future earnings of the consolidated real estate partnership, the Company will record income in the period of recovery. The Company reports this charge and any subsequent recovery in the consolidated statements of operations as deficit distributions to minority partners, net.
The minority interest charge of $79,756, $47,144 and $30,944 for the years ended December 31, 2005, 2004 and 2003, respectively, represents the Real Estate Entities net income allocable to the limited partners.
A preferred minority investor invested $99,000 and $85,000 in 2005 and 2004, respectively, in two of the Company's consolidated subsidiaries. In return, the preferred minority investor will receive a profit participation of 8.75% per annum on its unreturned capital contribution. Under certain circumstances, the preferred minority investor has the right but not the obligation to initiate the sale of
F-64
certain properties. Upon the sale of the properties, the initial capital contribution of the preferred investor will be returned. The preferred investor's contributed capital is reflected in the consolidated balance sheets as a component of minority interests as of December 31, 2005 and 2004. For the years ended December 31, 2005, 2004 and 2003, the Company has allocated $15,805, $2,499 and $0, respectively, of the Company's consolidated subsidiaries' net income to the preferred minority investor.
10. Discontinued Operations
SFAS No. 144 requires, among other things, that the operating results of real estate properties classified as held for disposition, be classified as discontinued operations in the statements of operations for all periods presented. All buildings classified as discontinued operations were sold during 2004 and 2003.
|
Years Ended December 31,
|
||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|
|
2005
|
2004
|
2003
|
||||||||
Income statement | |||||||||||
Revenues | $ | | $ | 1,744 | $ | 9,720 | |||||
Operating expenses | | (48 | ) | (3,481 | ) | ||||||
|
|
|
|||||||||
Revenues less operating expenses | | 1,696 | 6,239 | ||||||||
Interest expense |
|
|
|
|
|
(714 |
) |
|
(2,756 |
) |
|
Depreciation expense | | (282 | ) | (1,250 | ) | ||||||
Other income | | 2 | 8 | ||||||||
|
|
|
|||||||||
Income before gain on sale of properties and minority interest | | 702 | 2,241 | ||||||||
Gain on sale of properties |
|
|
|
|
|
16,656 |
|
|
21,632 |
|
|
Minority interest | | (17,184 | ) | (23,634 | ) | ||||||
|
|
|
|||||||||
Income from discontinued operations, net of minority interest | $ | | $ | 174 | $ | 239 | |||||
|
|
|
F-65
Income from discontinued operations, net, includes the operating results of one property sold in 2004 and three properties sold during 2003. The properties sold in 2004 and 2003 were classified as office properties for purposes of segment reporting. The net proceeds received from the sales transactions were $0, $39,067 and $66,268 for the years ended December 31, 2005, 2004 and 2003, respectively. Interest expense included in discontinued operations represents interest related to a secured note payable, which was repaid in connection with the sale of the respective property. Gains and losses on sales of these properties are included in the consolidated statements of operations as a component of discontinued operations, net.
11. Related-Party Transactions
The Company paid $5,633, $5,988 and $6,260 in real estate commissions to an operating company owned by the stockholders of DERA for the years ended December 31, 2005, 2004 and 2003, respectively. The commissions paid to the operating company are accounted for as leasing costs and are included in the Company's investment in real estate in the consolidated balance sheets.
The Company has contributed its share of discretionary profit-sharing contributions (subject to statutory limitations), totaling $192, $180 and $168, for the years ended December 31, 2005, 2004 and 2003, respectively, for services rendered by employees of an operating company owned by the stockholders of DERA.
Property management fees related to management services are paid to an operating company owned by the stockholders of DERA. The management fees are based upon percentages of the rental cash receipts collected by the properties. The fees range from 1.75% to 4.00% of the cash receipts. The Company expensed $8,972, $7,415 and $7,534 in such property management fees for the years ended December 31, 2005, 2004 and 2003, respectively. At December 31, 2005, 2004 and 2003, the Company had $600, $524 and $498, respectively, in accrued and unpaid property management fees.
The Company has contracted with an operating company owned by the stockholders of DERA to provide building and tenant improvement work. For the years ended December 31, 2005, 2004 and 2003, amounts totaling $16,250, $16,086 and $18,617, respectively, were paid to the operating company for contracting work performed. These amounts are included in the costs basis of the buildings and in tenant improvements.
The Company leases approximately 26,785 square feet of commercial office space to two operating companies owned or controlled by the stockholders. The annual rents from these leases totaled $814, $782, and $782 for the years ended December 31, 2005, 2004 and 2003, respectively. The terms under these leases were negotiated with unaffiliated third parties prior to the building being acquired by the Company.
12. Commitments and Contingencies
The Company is subject to various legal proceedings and claims that arise in the ordinary course of business. These matters are generally covered by insurance. Management believes that the ultimate
F-66
settlement of these actions will not have a material adverse effect on the Company's financial position and results of operations or cash flows.
Concentration of Credit Risk
The Company's operating properties are located in Los Angeles County, California and Honolulu, Hawaii. The ability of the tenants to honor the terms of their respective leases is dependent upon the economic, regulatory and social factors affecting the communities in which the tenants operate.
Financial instruments that subject the Company to credit risk consist primarily of cash, accounts receivable, deferred rents receivable and interest rate contracts. The Company maintains its cash and cash equivalents and restricted cash on deposit and enters into interest rate contracts with high quality financial institutions. Accounts at each institution are insured by the Federal Deposit Insurance Corporation up to $100; and to date, the Company has not experienced any losses on its invested cash. The Company performs ongoing credit evaluations of its tenants for potential credit losses.
Asset Retirement Obligations
In March 2005, the FASB issued Interpretation No. 47, Accounting for Conditional Asset Retirement Obligationsan interpretation of FASB Statement No. 143 (FIN 47). FIN 47 clarifies that the term "conditional asset retirement obligation" as used in SFAS No. 143, Accounting for Asset Retirement Obligations , represents a legal obligation to perform an asset retirement activity in which the timing and/or method of settlement is conditional on a future event that may or may not be within a company's control. Under this standard, a liability for a conditional asset retirement obligation must be recorded if the fair value of the obligation can be reasonably estimated. FIN 47 is effective for fiscal years ending after December 15, 2005. Environmental site assessments and investigations have identified 14 properties in our portfolio containing asbestos. If these properties undergo major renovations or are demolished, certain environmental regulations are in place, which specify the manner in which the asbestos must be handled and disposed. As of December 31, 2005, the obligations to remove the asbestos from these properties have indeterminable settlement dates, and therefore, we are unable to reasonably estimate the fair value of the conditional asset retirement obligation.
Future Minimum Lease Payments
At December 31, 2005, the Company has leased portions of the land underlying three of its office properties. Effective December 2004, the Company agreed to pay $1,377 per annum for the ground lease on Harbor Court through May 31, 2014, and the Company has the option to purchase the fee interest for $27,500. The Company entered into a ground lease for a portion of the land under Bishop Place that calls for annual rent of $550 through February 28, 2009, and $700 per annum, through February 28, 2019; thereafter, payments are determined by mutual agreement through December 31, 2086. The Company entered into a ground lease for One Westwood that calls for annual rents which were $1,301 in 2005. Rent may be increased annually based upon economic criteria defined in the lease agreement. The Company has the right to purchase the leased land for an amount equal to its fair market value as defined in the agreement. If the option is not exercised, the ground lease expires
F-67
May 7, 2083. For the years ended December 31, 2005, 2004 and 2003, the Company expensed ground lease payments in the amount of $3,261, $1,863 and $1,219, respectively.
The following is a schedule of minimum ground lease payments as of December 31, 2005:
2006 | $ | 3,283 | |
2007 | 3,283 | ||
2008 | 3,283 | ||
2009 | 3,408 | ||
2010 | 3,433 | ||
Thereafter | 128,475 | ||
|
|||
$ | 145,165 | ||
|
Tenant Concentrations
For the years ended December 31, 2005, 2004 and 2003, no tenant exceeded 10% of the Company's total rental revenue and tenant reimbursements.
13. Recent Accounting Pronouncements
In May 2005, the FASB issued Statement of Financial Accounting Standards ("SFAS") No. 154, Accounting Changes and Error CorrectionsA Replacement of APB Opinion No. 20 and FASB Statement No. 3 ("SFAS 154"). This new standard replaces APB Opinion No. 20, "Accounting Changes," and FASB Statement No. 3, Reporting Accounting Changes in Interim Financial Statements . Among other changes, SFAS 154 requires that a voluntary change in accounting principle be applied retrospectively with all prior period financial statements presented on the new accounting principle, unless it is impracticable to do so. SFAS 154 also provides that a change in method of depreciation or amortizing a long-lived nonfinancial asset be accounted for as a change in estimate (prospectively) that was effected by a change in accounting principle, and that correction of errors in previously issued financial statements should be termed a "restatement." We do not anticipate that the adoption of SFAS 154 will impact our consolidated financial statements.
On December 16, 2004, the FASB issued SFAS No. 123 (Revised 2004), Share-Based Payment ("SFAS 123R"). SFAS 123R requires that compensation cost relating to share-based payment transactions be recognized in financial statements and measured based on the fair value of the equity or liability instruments issued. We do not anticipate that the adoption of SFAS 123R on January 1, 2006 will impact our consolidated financial statements.
14. Segment Reporting
The Company's segments are based on the Company's method of internal reporting which classifies its operation by property type. The Company's segments by property type include: Office and Multifamily.
F-68
Asset information by segment is not reported because the Company does not use this measure to assess performance and make decisions to allocate resources. Therefore, depreciation and amortization expense is not allocated among segments. Interest and other income, management services, general and administrative expenses, interest expense, depreciation and amortization expense and net derivative gains and losses are not included in rental revenues less rental expenses as the internal reporting addresses these items on a corporate level.
Rental revenues less rental expenses is not a measure of operating results or cash flows from operating activities as measured by U.S. generally accepted accounting principles, and it is not indicative of cash available to fund cash needs and should not be considered an alternative to cash flows as a measure of liquidity. All companies may not calculate rental revenues less rental expenses in the same manner. The Company considers rental revenues less rental expenses to be an appropriate supplemental measure to net income because it assists both investors and management to understand the core operations of the Company's properties.
|
Year ended December 31, 2005
|
|||||||||
---|---|---|---|---|---|---|---|---|---|---|
|
Office
|
Multifamily
|
Total
|
|||||||
Rental revenues | $ | 348,566 | $ | 45,222 | $ | 393,788 | ||||
Percentage of total | 89 | % | 11 | % | 100 | % | ||||
Rental expenses |
|
$ |
119,879 |
|
$ |
15,347 |
|
$ |
135,226 |
|
Percentage of total | 89 | % | 11 | % | 100 | % | ||||
Rental revenues less rental expenses |
|
$ |
228,687 |
|
$ |
29,875 |
|
$ |
258,562 |
|
Percentage of total | 88 | % | 12 | % | 100 | % |
|
Year ended December 31, 2004
|
|||||||||
---|---|---|---|---|---|---|---|---|---|---|
|
Office
|
Multifamily
|
Total
|
|||||||
Rental revenues | $ | 286,638 | $ | 33,793 | $ | 320,431 | ||||
Percentage of total | 89 | % | 11 | % | 100 | % | ||||
Rental expenses |
|
$ |
103,407 |
|
$ |
13,219 |
|
$ |
116,626 |
|
Percentage of total | 89 | % | 11 | % | 100 | % | ||||
Rental revenues less rental expenses |
|
$ |
183,231 |
|
$ |
20,574 |
|
$ |
203,805 |
|
Percentage of total | 90 | % | 10 | % | 100 | % |
F-69
|
Year ended December 31, 2003
|
|||||||||
---|---|---|---|---|---|---|---|---|---|---|
|
Office
|
Multifamily
|
Total
|
|||||||
Rental revenues | $ | 283,312 | $ | 31,994 | $ | 315,306 | ||||
Percentage of total | 90 | % | 10 | % | 100 | % | ||||
Rental expenses |
|
$ |
96,771 |
|
$ |
11,765 |
|
$ |
108,536 |
|
Percentage of total | 89 | % | 11 | % | 100 | % | ||||
Rental revenues less rental expenses |
|
$ |
186,541 |
|
$ |
20,229 |
|
$ |
206,770 |
|
Percentage of total | 90 | % | 10 | % | 100 | % |
The following is a reconciliation of rental revenues less rental expenses to net income (loss):
|
Years Ended December 31,
|
|||||||||
---|---|---|---|---|---|---|---|---|---|---|
|
2005
|
2004
|
2003
|
|||||||
Rental revenues less rental expenses | $ | 258,562 | $ | 203,805 | $ | 206,770 | ||||
Add: | ||||||||||
Interest and other income | 2,264 | 1,463 | 514 | |||||||
Gain on investments in interest swaps | 81,666 | 37,629 | 23,583 | |||||||
Less: |
|
|
|
|
|
|
|
|
|
|
General and administrative expenses | 6,457 | 5,646 | 5,195 | |||||||
Interest expense | 115,674 | 95,125 | 94,783 | |||||||
Depreciation and amortization | 113,170 | 91,306 | 92,559 | |||||||
Deficit distribution to minority partners, net | 28,150 | 57,942 | | |||||||
Minority interest expense | 95,561 | 49,643 | 30,944 | |||||||
|
|
|
||||||||
Income (loss) from continuing operations | $ | (16,520 | ) | $ | (56,765 | ) | $ | 7,386 | ||
|
|
|
15. Subsequent Events
In March 2006, the Company acquired a multifamily property in Honolulu, Hawaii, for $114,000. In conjunction with the acquisition, the Company issued a note payable of $82,000. The note bears interest at the one-month LIBOR rate plus 62 basis points and matures February 28, 2016. Additionally, the Company entered into an interest rate swap contract for the amount of the loan which matures March 1, 2012.
F-70
CONSOLIDATED REAL ESTATE AND ACCUMULATED DEPRECIATION
(Dollars in thousands)
|
|
|
|
Cost Capitalized
Subsequent to Acquisition |
Gross Carrying Amount
At December 31, 2005 |
|
|
|
|||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
|
Initial Cost
|
|
|
|
||||||||||||||||||||||||||
|
|
Accumulated
Depreciation at December 31, 2005 |
|
|
|||||||||||||||||||||||||||
Name
|
Encumbrances at December 31, 2005
|
Land
|
Building &
Improvements |
Land
|
Building &
Improvements |
Land
|
Building &
Improvements |
Total
|
Year Built/
Renovated |
Year
Acquired |
|||||||||||||||||||||
Office Properties | |||||||||||||||||||||||||||||||
Bundy/Olympic | $ | 19,342 | $ | 4,201 | $ | 11,860 | $ | | $ | 5,271 | $ | 4,201 | $ | 17,131 | $ | 21,332 | $ | 5,504 | 1991 | 1994 | |||||||||||
Gateway Los Angeles | 24,725 | 2,376 | 15,302 | | 4,350 | 2,376 | 19,652 | 22,028 | 6,027 | 1987 | 1994 | ||||||||||||||||||||
Village on Canon | | 5,933 | 11,389 | | 2,422 | 5,933 | 13,811 | 19,744 | 4,905 | 1989/1995 | 1994 | ||||||||||||||||||||
Brentwood Executive Plaza | 21,117 | 3,255 | 9,654 | | 2,482 | 3,255 | 12,136 | 15,391 | 3,912 | 1983/1996 | 1995 | ||||||||||||||||||||
Camden Medical Arts | | 3,102 | 12,221 | | 3,178 | 3,102 | 15,399 | 18,501 | 4,609 | 1972/1992 | 1995 | ||||||||||||||||||||
Executive Tower | | 6,660 | 32,045 | | 6,033 | 6,660 | 38,078 | 44,738 | 12,319 | 1989 | 1995 | ||||||||||||||||||||
Palisades Promenade | 31,432 | 5,253 | 15,547 | | (338 | ) | 5,253 | 15,209 | 20,462 | 4,272 | 1990 | 1995 | |||||||||||||||||||
Studio Plaza | 104,816 | 9,347 | 73,358 | | 30,546 | 9,347 | 103,904 | 113,251 | 30,536 | 1988/2004 | 1995 | ||||||||||||||||||||
First Federal Square | 66,927 | 9,989 | 29,187 | | 7,691 | 9,989 | 36,878 | 46,867 | 13,762 | 1981/2000 | 1996 | ||||||||||||||||||||
Wilshire Plaza | 44,040 | 5,013 | 34,283 | | 5,547 | 5,013 | 39,830 | 44,843 | 12,619 | 1985 | 1996 | ||||||||||||||||||||
Landmark II | 93,578 | 19,156 | 109,259 | | 10,655 | 19,156 | 119,914 | 139,070 | 28,390 | 1989 | 1997 | ||||||||||||||||||||
Olympic Center | 23,266 | 5,473 | 22,850 | | 3,988 | 5,473 | 26,838 | 32,311 | 7,147 | 1985/1996 | 1997 | ||||||||||||||||||||
Saltair/San Vicente | | 5,075 | 6,946 | | 1,865 | 5,075 | 8,811 | 13,886 | 2,145 | 1964/1992 | 1997 | ||||||||||||||||||||
Second Street Plaza | 19,807 | 4,377 | 15,277 | | 631 | 4,377 | 15,908 | 20,285 | 4,081 | 1991 | 1997 | ||||||||||||||||||||
Sherman Oaks Galleria | 195,193 | 33,213 | 17,820 | | 199,649 | 33,213 | 217,469 | 250,682 | 40,887 | 1981/2002 | 1997 | ||||||||||||||||||||
Tower at Sherman Oaks | | 4,712 | 15,747 | | 3,766 | 4,712 | 19,513 | 24,225 | 5,554 | 1967/1991 | 1997 | ||||||||||||||||||||
Verona | | 2,574 | 7,111 | | 1,198 | 2,574 | 8,309 | 10,883 | 2,320 | 1991 | 1997 | ||||||||||||||||||||
Coral Plaza | 16,406 | 4,028 | 15,019 | | 1,981 | 4,028 | 17,000 | 21,028 | 4,000 | 1981 | 1998 | ||||||||||||||||||||
MB Plaza | 24,579 | 4,533 | 22,024 | | 3,522 | 4,533 | 25,546 | 30,079 | 6,264 | 1971/1996 | 1998 | ||||||||||||||||||||
Valley Executive Tower | 76,242 | 8,446 | 67,672 | | 8,818 | 8,446 | 76,490 | 84,936 | 18,213 | 1984 | 1998 | ||||||||||||||||||||
Valley Office Plaza | 32,633 | 5,731 | 24,329 | | 12,916 | 5,731 | 37,245 | 42,976 | 7,471 | 1966/2002 | 1998 | ||||||||||||||||||||
Westside Towers | 61,268 | 8,506 | 79,532 | | 7,134 | 8,506 | 86,666 | 95,172 | 18,814 | 1985 | 1998 | ||||||||||||||||||||
100 Wilshire | 87,479 | 12,769 | 78,447 | | 20,092 | 12,769 | 98,539 | 111,308 | 19,212 | 1968/2002 | 1999 | ||||||||||||||||||||
11777 San Vicente | 24,022 | 5,032 | 15,768 | | 6,160 | 5,032 | 21,928 | 26,960 | 4,126 | 1974/1998 | 1999 | ||||||||||||||||||||
Century Park Plaza | 71,529 | 10,275 | 70,761 | | 14,677 | 10,275 | 85,438 | 95,713 | 17,389 | 1972/1987 | 1999 | ||||||||||||||||||||
Encino Terrace | 58,882 | 12,535 | 59,554 | | 8,312 | 12,535 | 67,866 | 80,401 | 15,149 | 1986 | 1999 | ||||||||||||||||||||
One Westwood | | 2,376 | 29,784 | | 6,566 | 2,376 | 36,350 | 38,726 | 7,553 | 1987/2004 | 1999 | ||||||||||||||||||||
Westwood Place | 42,774 | 8,542 | 44,419 | | 5,185 | 8,542 | 49,604 | 58,146 | 10,659 | 1987 | 1999 | ||||||||||||||||||||
Brentwood/Saltair | | 4,468 | 11,615 | | 1,088 | 4,468 | 12,703 | 17,171 | 2,070 | 1986 | 2000 | ||||||||||||||||||||
Encino Gateway | 39,108 | 8,475 | 48,525 | | 5,529 | 8,475 | 54,054 | 62,529 | 9,885 | 1975/1998 | 2000 | ||||||||||||||||||||
Encino Plaza | 23,413 | 5,293 | 23,125 | | 2,747 | 5,293 | 25,872 | 31,165 | 5,160 | 1971/1992 | 2000 | ||||||||||||||||||||
Lincoln/Wilshire | 17,420 | 3,833 | 12,484 | | 755 | 3,833 | 13,239 | 17,072 | 2,094 | 1996 | 2000 | ||||||||||||||||||||
1901 Avenue of the Stars | 107,000 | 18,514 | 131,752 | | 15,739 | 18,514 | 147,491 | 166,005 | 20,682 | 1968/2001 | 2001 | ||||||||||||||||||||
9601 Wilshire | | 16,597 | 54,774 | | 22,441 | 16,597 | 77,215 | 93,812 | 9,389 | 1962/2004 | 2001 | ||||||||||||||||||||
Columbus Center | 9,460 | 2,096 | 10,396 | | 989 | 2,096 | 11,385 | 13,481 | 2,049 | 1987 | 2001 | ||||||||||||||||||||
Santa Monica Square | | 5,366 | 18,025 | | 4,638 | 5,366 | 22,663 | 28,029 | 2,968 | 1983/2004 | 2001 | ||||||||||||||||||||
Warner Center | 308,542 | 43,110 | 292,147 | | 45,459 | 43,110 | 337,606 | 380,716 | 67,621 | 1982-1993/2004 | 2002 | ||||||||||||||||||||
Beverly Hills Medical Center | 21,227 | 4,955 | 27,766 | | 462 | 4,955 | 28,228 | 33,183 | 1,918 | 1964/2004 | 2004 | ||||||||||||||||||||
Bishop Place | 70,850 | 8,317 | 105,651 | | 7,331 | 8,317 | 112,982 | 121,299 | 5,744 | 1992 | 2004 | ||||||||||||||||||||
Harbor Court | 17,923 | 51 | 41,001 | | 4,362 | 51 | 45,363 | 45,414 | 2,991 | 1994 | 2004 | ||||||||||||||||||||
The Trillium | 100,500 | 20,688 | 143,263 | | 2,894 | 20,688 | 146,157 | 166,845 | 7,580 | 1988 | 2005 | ||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||
1,855,500 | 354,245 | 1,867,689 | | 498,731 | 354,245 | 2,366,420 | 2,720,665 | 457,990 | |||||||||||||||||||||||
Multifamily Properties |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Barrington Plaza | $ | 117,600 | $ | 28,568 | $ | 81,485 | $ | | $ | 3,691 | $ | 28,568 | $ | 85,176 | $ | 113,744 | $ | 17,029 | 1963/1998 | 1998 | |||||||||||
555 Barrington | 35,900 | 6,461 | 27,639 | | 1,294 | 6,461 | 28,933 | 35,394 | 4,991 | 1989 | 1999 | ||||||||||||||||||||
Pacific Plaza | 35,400 | 10,091 | 16,159 | | 8,903 | 10,091 | 25,062 | 35,153 | 4,708 | 1963/1998 | 1999 | ||||||||||||||||||||
The Shores | 104,100 | 20,809 | 74,191 | | 18,027 | 20,809 | 92,218 | 113,027 | 15,064 | 1965-67/2002 | 1999 | ||||||||||||||||||||
Moanalua Hillside Apartments | 75,000 | 24,720 | 85,895 | | 144 | 24,720 | 86,039 | 110,759 | 6,476 | 1968/2004 | 2005 | ||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||
368,000 | 90,649 | 285,369 | | 32,059 | 90,649 | 317,428 | 408,077 | 48,268 | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||
Total | $ | 2,223,500 | $ | 444,894 | $ | 2,153,058 | $ | | $ | 530,790 | $ | 444,894 | $ | 2,683,848 | $ | 3,128,742 | $ | 506,258 | |||||||||||||
|
|
|
|
|
|
|
|
|
F-71
The following is a reconciliation of real estate assets and accumulated depreciation:
|
Years Ended December 31,
|
||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|
|
2005
|
2004
|
2003
|
||||||||
Real Estate Assets | |||||||||||
Balance, beginning of period | $ | 2,804,208 | $ | 2,550,279 | $ | 2,546,171 | |||||
Additionsproperty acquisitions | 274,205 | 187,779 | | ||||||||
improvements* | 50,329 | 100,336 | 65,108 | ||||||||
Deductionsproperty dispositions | | (34,186 | ) | (61,000 | ) | ||||||
|
|
|
|||||||||
Balance, end of period | $ | 3,128,742 | $ | 2,804,208 | $ | 2,550,279 | |||||
|
|
|
|||||||||
Accumulated Depreciation | |||||||||||
Balance, beginning of period | $ | (405,228 | ) | $ | (325,674 | ) | $ | (249,529 | ) | ||
Additionsdepreciation | (106,282 | ) | (88,082 | ) | (89,322 | ) | |||||
Deductionsdisposals | 5,252 | 8,528 | 13,177 | ||||||||
|
|
|
|||||||||
Balance, end of period | $ | (506,258 | ) | $ | (405,228 | ) | $ | (325,674 | ) | ||
|
|
|
Depreciation of real estate assets reflected in the statements of operations is calculated over the estimated original lives of the assets as follows:
Buildings and improvements | 40 years | |
Tenant improvements | Life of respective lease | |
Tenant origination costs | Life of respective lease |
F-72
Douglas, Emmett and Company
Balance Sheets
(In thousands)
|
June 30,
2006 |
December 31,
2005 |
||||||
---|---|---|---|---|---|---|---|---|
|
(Unaudited)
|
|
||||||
Assets | ||||||||
Cash | $ | 2,773 | $ | 1,398 | ||||
Accounts receivableaffiliated properties | 2,109 | 3,932 | ||||||
Prepaid expenses and other assets | 267 | 163 | ||||||
Property and equipment, net | 41 | 52 | ||||||
|
|
|||||||
Total assets | $ | 5,190 | $ | 5,545 | ||||
|
|
|||||||
Liabilities: |
|
|
|
|
|
|
||
Accounts payable and accrued liabilities | $ | 363 | $ | 540 | ||||
Deferred rent liability | 268 | 303 | ||||||
|
|
|||||||
Total liabilities | 631 | 843 | ||||||
Stockholders' equity: |
|
|
|
|
|
|
||
Common stock$0 par value; 10,000 shares authorized and 6,500 shares outstanding | | | ||||||
Additional paid-in capital | 128 | 128 | ||||||
Retained earnings | 4,431 | 4,574 | ||||||
|
|
|||||||
Total stockholders' equity | 4,559 | 4,702 | ||||||
|
|
|||||||
Total liabilities and stockholders' equity | $ | 5,190 | $ | 5,545 | ||||
|
|
See accompanying notes.
F-73
Douglas, Emmett and Company
Statements of Income
(Unaudited and in thousands)
|
Six Months Ended
June 30, |
|||||||
---|---|---|---|---|---|---|---|---|
|
2006
|
2005
|
||||||
Service revenues: | ||||||||
Real estate commissions | $ | 3,982 | $ | 3,039 | ||||
Property management fees | 4,841 | 4,462 | ||||||
Service contract fees | 10,069 | 9,504 | ||||||
|
|
|||||||
Total service revenues | 18,892 | 17,005 | ||||||
Costs of services: |
|
|
|
|
|
|
|
|
Salaries, wages, benefits and other direct costs | (12,028 | ) | (11,307 | ) | ||||
Selling, general and administrative expenses | (737 | ) | (780 | ) | ||||
|
|
|||||||
Total expenses | (12,765 | ) | (12,087 | ) | ||||
Other income |
|
|
30 |
|
|
6 |
|
|
|
|
|||||||
Net income | $ | 6,157 | $ | 4,924 | ||||
|
|
See accompanying notes.
F-74
Douglas, Emmett and Company
Statements of Cash Flows
(Unaudited and in thousands)
|
Six Months Ended
June 30, |
||||||||
---|---|---|---|---|---|---|---|---|---|
|
2006
|
2005
|
|||||||
Operating activities | |||||||||
Net income | $ | 6,157 | $ | 4,924 | |||||
Adjustments to reconcile net income to net cash provided by operating activities: | |||||||||
Depreciation and amortization | 11 | 17 | |||||||
Changes in assets and liabilities: | |||||||||
Accounts receivableaffiliated properties | 1,823 | (521 | ) | ||||||
Prepaid expenses and other assets | (104 | ) | 3 | ||||||
Accounts payable and other liabilities | (177 | ) | (124 | ) | |||||
Deferred rent liability | (35 | ) | 2 | ||||||
|
|
||||||||
Net cash provided by operating activities | 7,675 | 4,301 | |||||||
Investing activities | |||||||||
Additions to property and equipment | | (39 | ) | ||||||
|
|
||||||||
Net cash used in investing activities | | (39 | ) | ||||||
Financing activities | |||||||||
Dividends paid on common stock | (6,300 | ) | (3,300 | ) | |||||
|
|
||||||||
Net cash used in financing activities | (6,300 | ) | (3,300 | ) | |||||
|
|
||||||||
Net increase in cash and cash equivalents | 1,375 | 962 | |||||||
Cash and cash equivalents at beginning of period | 1,398 | 776 | |||||||
|
|
||||||||
Cash and cash equivalents at end of period | $ | 2,773 | $ | 1,738 | |||||
|
|
See accompanying notes.
F-75
Douglas, Emmett and Company
Notes to Financial Statements
June 30, 2006
(Unaudited and in thousands)
1. Background
Douglas, Emmett and Company (the Company) is an S-Corporation, which is owned by four individuals (collectively, the Stockholders). The Company was formed in 1971 and is primarily engaged in providing leasing and management services to properties owned by limited partnerships in which the Stockholders directly or indirectly have general and limited partnership interests. As of June 30, 2006, the Company managed 46 office properties and nine multifamily properties (collectively, the Affiliated Properties).
Unaudited Interim Financial Information
The accompanying unaudited interim financial statements have been prepared pursuant to the rules and regulations of the Securities and Exchange Commission. Certain information and footnote disclosure normally included in the financial statements prepared in accordance with U.S. generally accepted accounting principles may have been condensed or omitted pursuant to such rules and regulations, although management believes that the disclosures are adequate to make the presentation not misleading. The unaudited financial statements as of June 30, 2006, and for the six months ended June 30, 2006 and 2005, include, in the opinion of management, all adjustments, consisting of normal recurring adjustments, necessary to present fairly the financial information set forth therein. The results of operations for the interim period ended June 30, 2006 are not necessarily indicative of the results that may be expected for the year ended December 31, 2006. The interim financial statements should be read in conjunction with the Company's audited financial statements for the year ended December 31, 2005, and notes thereto.
2. Significant Accounting Policies
Use of Estimates
The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make certain estimates and assumptions that affect the reported amounts in the financial statements and accompanying notes. Actual results could differ from those estimates.
Cash and Cash Equivalents
For purposes of the statements of cash flows, the Company considers short-term investments with remaining maturities of three months or less when purchased to be cash equivalents.
Property and Equipment
Office equipment and computer hardware costs are stated at cost, net of accumulated depreciation. Depreciation of office equipment and computer hardware costs are computed using the straight-line method over their estimated useful life, ranging from three to seven years. The Company capitalizes expenditures that materially increase the life of the Company's assets and expenses the costs of maintenance and repairs.
F-76
Revenue Recognition
Real estate commissions relate to tenant leases at the Affiliated Properties and are generally recorded as income once the Company satisfies its obligations under the commission agreement. Terms and conditions of a commission agreement may include, but are not limited to, execution of a signed lease agreement and future contingencies including tenant occupancy, payment of a deposit or payment of a first month's rent (or a combination thereof). As some of these conditions are outside of the Company's control and are often not clearly defined, judgment must be exercised in determining when such required events have occurred in order to recognize revenue.
A typical commission agreement provides that the Company earns half of the lease commission upon the execution of the lease agreement by the tenant, while the remaining portion(s) of the lease commission is earned at a later date, usually upon tenant occupancy. The existence of any significant future contingencies, such as tenant occupancy, results in the delay of recognition of the corresponding revenue until such contingencies are satisfied. For example, if the Company does not earn all or a portion of the lease commission until the tenant pays its first month's rent, and the lease agreement provides the tenant with a free rent period, the Company delays revenue recognition until rent is paid by the tenant.
Property management fees are generally based upon percentages of the rental cash receipts generated by the Affiliated Properties, ranging from 1.75% to 4.00%, and are recognized when earned under the provisions of the related management agreements.
Under the terms of service contracts, the Affiliated Properties will typically reimburse the Company for certain expenses, which are comprised primarily of employee salaries and related benefit costs. The amounts, which are to be reimbursed per the terms of the services contract, are recognized in the same period as the related expenses are incurred.
The lease commission agreements, property management agreements, and service contracts are terminable 30 days subsequent to receipt of written notification by either the Company or the owners of the Affiliated Properties.
Income Taxes
Under applicable federal and state income tax rules as an S-Corporation, the allocated share of net income or loss is reportable in the income tax returns of the Stockholders. Accordingly, no income tax provision is included in the accompanying financial statements other than the 1.5% tax due on taxable income of S-Corporations in the state of California, which has been included as a component of selling, general and administrative expenses.
F-77
3. Accounts ReceivableAffiliated Properties
Accounts receivableaffiliated properties at June 30, 2006, and December 31, 2005, consisted of the following:
|
June 30, 2006
|
December 31, 2005
|
||||
---|---|---|---|---|---|---|
Property management fees | $ | 823 | $ | 786 | ||
Property expense reimbursements | 24 | 5 | ||||
Leasing commissions | 8 | 12 | ||||
Salary and expense reimbursement | 1,254 | 3,129 | ||||
|
|
|||||
$ | 2,109 | $ | 3,932 | |||
|
|
4. Property and Equipment
Property and equipment consists of the following:
|
June 30, 2006
|
December 31, 2005
|
|||||
---|---|---|---|---|---|---|---|
Computer hardware | $ | 64 | $ | 64 | |||
Office equipment | 64 | 64 | |||||
|
|
||||||
128 | 128 | ||||||
Less accumulated depreciation and amortization | (87 | ) | (76 | ) | |||
|
|
||||||
$ | 41 | $ | 52 | ||||
|
|
5. Other Assets
The following table summarizes the items included in other assets:
|
June 30, 2006
|
December 31, 2005
|
||||
---|---|---|---|---|---|---|
Legal retainer | $ | 60 | $ | 60 | ||
Prepaid insurance and other | 207 | 103 | ||||
|
|
|||||
$ | 267 | $ | 163 | |||
|
|
6. Commitments and Contingencies
The Company is subject to various legal proceedings and claims that arise in the ordinary course of business. These matters are generally covered by insurance. Management believes that the ultimate settlement of these actions will not have a material adverse effect on the Company's financial position and results of operations or cash flows.
Employee Retirement Savings Plan
The Company has a retirement savings plan pursuant to Section 401(k) of the Internal Revenue Code whereby the Company's employees may contribute a portion of their compensation to their
F-78
respective retirement accounts, in an amount not to exceed the maximum allowed under the Internal Revenue Code. The Company has elected to provide discretionary profit-sharing contributions (subject to statutory limitations), which amounted to $280 and $246 for the six months ended June 30, 2006 and 2005, respectively. The contributions have been recorded in salaries, wages, benefits and other direct costs in the accompanying statements of income. Employees who participate in the plan are immediately vested in their contributions and are vested in the contributions of the Company over a five-year period. At June 30, 2006, and December 31, 2005, the Company recorded a liability of $92 and $280, respectively, for unfunded contributions.
Concentration of Credit Risk
The Company maintains cash and cash equivalents at insured financial institutions. The combined account balances at each institution periodically exceed FDIC insurance coverage, and, as a result, there is a concentration of credit risk related to amounts in excess of FDIC insurance coverage. The Company believes that the risk is not significant.
7. Related Party Transactions
Noncancelable Operating Leases
The Company has a noncancelable operating lease obligation for office space with an affiliate in which the Stockholders have a general partnership interest. This lease expires on April 30, 2010, with two options to extend, provides for rent increases based on specific terms and requires payments of the Company's share of property taxes, insurance and maintenance costs. For the six months ended June 30, 2006 and 2005, the Company incurred rental expenses of $390 which has been included in selling, general and administrative expenses in the accompanying statements of income.
Future minimum payments under this lease were as follows at June 30, 2006:
July 1, 2006 to December 31, 2006 | $ | 426 | |
2007 | 852 | ||
2008 | 852 | ||
2009 | 852 | ||
2010 | 284 | ||
|
|||
$ | 3,266 | ||
|
F-79
Report of Independent Registered Public Accounting Firm
The
Stockholders of
Douglas, Emmett and Company
We have audited the accompanying balance sheets of Douglas, Emmett and Company (Company) as of December 31, 2005 and 2004, and the related statements of income, stockholders' equity, and cash flows for each of the three years in the period ended December 31, 2005. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. We were not engaged to perform an audit of the Company's internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Douglas, Emmett and Company at December 31, 2005 and 2004, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2005, in conformity with U.S. generally accepted accounting principles.
/s/ ERNST & YOUNG LLP
Los Angeles, California
March 31, 2006
F-80
Douglas, Emmett and Company
Balance Sheets
(In thousands, except for share data)
|
December 31,
|
|||||||
---|---|---|---|---|---|---|---|---|
|
2005
|
2004
|
||||||
Assets: | ||||||||
Cash | $ | 1,398 | $ | 776 | ||||
Accounts receivableaffiliated properties | 3,932 | 2,312 | ||||||
Prepaid expenses and other assets | 163 | 86 | ||||||
Property and equipment, net | 52 | 46 | ||||||
|
|
|||||||
Total assets | $ | 5,545 | $ | 3,220 | ||||
|
|
|||||||
Liabilities: |
|
|
|
|
|
|
||
Accounts payable and accrued liabilities | $ | 540 | $ | 517 | ||||
Deferred rent liability | 303 | 336 | ||||||
|
|
|||||||
Total liabilities | 843 | 853 | ||||||
Stockholders' equity: |
|
|
|
|
|
|
||
Common stock$0 par value; 10,000 shares authorized and 6,500 shares outstanding | | | ||||||
Additional paid-in capital | 128 | 128 | ||||||
Retained earnings | 4,574 | 2,239 | ||||||
|
|
|||||||
Total stockholders' equity | 4,702 | 2,367 | ||||||
|
|
|||||||
Total liabilities and stockholders' equity | $ | 5,545 | $ | 3,220 | ||||
|
|
See accompanying notes.
F-81
Douglas, Emmett and Company
Statements of Income
(In thousands)
|
Years Ended December 31,
|
|||||||||
---|---|---|---|---|---|---|---|---|---|---|
|
2005
|
2004
|
2003
|
|||||||
Service revenues: | ||||||||||
Real estate commissions | $ | 5,872 | $ | 6,391 | $ | 7,177 | ||||
Property management fees | 9,131 | 7,781 | 7,956 | |||||||
Service contract fees | 20,166 | 19,249 | 18,845 | |||||||
|
|
|
||||||||
Total service revenues | 35,169 | 33,421 | 33,978 | |||||||
Costs of services: |
|
|
|
|
|
|
|
|
|
|
Salaries, wages, benefits and other direct costs | 24,023 | 22,839 | 22,938 | |||||||
Selling, general and administrative expenses | 1,541 | 1,256 | 1,333 | |||||||
|
|
|
||||||||
Total expenses | 25,564 | 24,095 | 24,271 | |||||||
Interest and other income |
|
|
30 |
|
|
7 |
|
|
10 |
|
|
|
|
||||||||
Net income | $ | 9,635 | $ | 9,333 | $ | 9,717 | ||||
|
|
|
See accompanying notes.
F-82
Douglas, Emmett and Company
Statements of Stockholders' Equity
(In thousands, except for share data)
|
Number of
Common Shares |
Common
Stock |
Additional
Paid-in Capital |
Retained
Earnings |
Total
|
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Balance at January 1, 2003 | 6,500 | $ | | $ | 128 | $ | 2,489 | $ | 2,617 | |||||||
Net income | | | | 9,717 | 9,717 | |||||||||||
Distributions | | | | (8,700 | ) | (8,700 | ) | |||||||||
|
|
|
|
|
||||||||||||
Balance at December 31, 2003 | 6,500 | | 128 | 3,506 | 3,634 | |||||||||||
Net income | | | | 9,333 | 9,333 | |||||||||||
Distributions | | | | (10,600 | ) | (10,600 | ) | |||||||||
|
|
|
|
|
||||||||||||
Balance at December 31, 2004 | 6,500 | | 128 | 2,239 | 2,367 | |||||||||||
Net income | | | | 9,635 | 9,635 | |||||||||||
Distributions | | | | (7,300 | ) | (7,300 | ) | |||||||||
|
|
|
|
|
||||||||||||
Balance at December 31, 2005 | 6,500 | $ | | $ | 128 | $ | 4,574 | $ | 4,702 | |||||||
|
|
|
|
|
See accompanying notes.
F-83
Douglas, Emmett and Company
Statements of Cash Flows
(In thousands)
|
Years Ended December 31,
|
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|
|
2005
|
2004
|
2003
|
|||||||||
Operating activities | ||||||||||||
Net income | $ | 9,635 | $ | 9,333 | $ | 9,717 | ||||||
Adjustments to reconcile net income to net cash provided by operating activities: | ||||||||||||
Depreciation and amortization | 32 | 22 | 10 | |||||||||
Changes in assets and liabilities: | ||||||||||||
Accounts receivableaffiliated properties | (1,620 | ) | 117 | (301 | ) | |||||||
Other assets | (77 | ) | 78 | (90 | ) | |||||||
Accounts payable and other liabilities | 23 | 75 | 220 | |||||||||
Deferred rent liability | (33 | ) | 43 | 43 | ||||||||
|
|
|
||||||||||
Net cash provided by operating activities | 7,960 | 9,668 | 9,599 | |||||||||
Investing activities |
|
|
|
|
|
|
|
|
|
|
||
Additions to property and equipment | (38 | ) | (30 | ) | (31 | ) | ||||||
|
|
|
||||||||||
Net cash used in investing activities | (38 | ) | (30 | ) | (31 | ) | ||||||
Financing activities |
|
|
|
|
|
|
|
|
|
|
||
Distributions to stockholders | (7,300 | ) | (10,600 | ) | (8,700 | ) | ||||||
|
|
|
||||||||||
Net cash used in financing activities | (7,300 | ) | (10,600 | ) | (8,700 | ) | ||||||
|
|
|
||||||||||
Net increase (decrease) in cash and cash equivalents |
|
|
622 |
|
|
(962 |
) |
|
868 |
|
||
Cash and cash equivalents at beginning of year | 776 | 1,738 | 870 | |||||||||
|
|
|
||||||||||
Cash and cash equivalents at end of year | $ | 1,398 | $ | 776 | $ | 1,738 | ||||||
|
|
|
See accompanying notes.
F-84
Douglas, Emmett and Company
Notes to Financial Statements
December 31, 2005
(In thousands)
1. Background
Douglas, Emmett and Company (the Company) is an S-Corporation, which is owned by four individuals (collectively, the Stockholders). The Company was formed in 1971 and is primarily engaged in providing leasing and management services to properties owned by limited partnerships in which the Stockholders directly or indirectly have general and limited partnership interests. As of December 31, 2005, the Company managed 46 office properties and eight multifamily properties (collectively, the Affiliated Properties).
2. Significant Accounting Policies
Use of Estimates
The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make certain estimates and assumptions that affect the reported amounts in the financial statements and accompanying notes. Actual results could differ from those estimates.
Cash and Cash Equivalents
For purposes of the statements of cash flows, the Company considers short-term investments with remaining maturities of three months or less when purchased to be cash equivalents.
Property and Equipment
Office equipment and computer hardware costs are stated at cost, net of accumulated depreciation. Depreciation of office equipment and computer hardware costs are computed using the straight-line method over their estimated useful lives, ranging from three to seven years. The Company capitalizes expenditures that materially increase the life of the Company's assets and expenses the costs of maintenance and repairs.
Revenue Recognition
Real estate commissions relate to tenant leases at the Affiliated Properties and are generally recorded as income once the Company satisfies its obligations under the commission agreement. Terms and conditions of a commission agreement may include, but are not limited to, execution of a signed lease agreement and future contingencies including tenant occupancy, payment of a deposit or payment of a first month's rent (or a combination thereof). As some of these conditions are outside of the Company's control and are often not clearly defined, judgment must be exercised in determining when such required events have occurred in order to recognize revenue.
A typical commission agreement provides that the Company earns half of the lease commission upon the execution of the lease agreement by the tenant, while the remaining portion(s) of the lease commission is earned at a later date, usually upon tenant occupancy. The existence of any significant future contingencies, such as tenant occupancy, results in the delay of recognition of the corresponding revenue until such contingencies are satisfied. For example, if the Company does not earn all or a portion of the lease commission until the tenant pays its first month's rent, and the lease agreement
F-85
provides the tenant with a free rent period, the Company delays revenue recognition until rent is paid by the tenant.
Property management fees are generally based upon percentages of the rental cash receipts generated by the Affiliated Properties, ranging from 1.75% to 4.00%, and are recognized when earned under the provisions of the related management agreements.
Under the terms of service contracts, the Affiliated Properties will typically reimburse the Company for certain expenses, which are comprised primarily of employee salaries and related benefit costs. The amounts, which are to be reimbursed per the terms of the services contract, are recognized in the same period as the related expenses are incurred.
The lease commission agreements, property management agreements, and service contracts are terminable 30 days subsequent to receipt of written notification by either the Company or the owners of the Affiliated Properties.
Accounts ReceivableAffiliated Properties
Accounts receivableaffiliated properties consisted of the following:
|
December 31,
|
|||||
---|---|---|---|---|---|---|
|
2005
|
2004
|
||||
Property management fees | $ | 786 | $ | 687 | ||
Property expense reimbursements | 5 | 11 | ||||
Leasing commissions | 12 | 59 | ||||
Salary and expense reimbursement | 3,129 | 1,555 | ||||
|
|
|||||
$ | 3,932 | $ | 2,312 | |||
|
|
3. Property and Equipment
Property and equipment consisted of the following:
|
December 31,
|
||||||
---|---|---|---|---|---|---|---|
|
2005
|
2004
|
|||||
Computer hardware | $ | 64 | $ | 43 | |||
Office equipment | 64 | 47 | |||||
|
|
||||||
128 | 90 | ||||||
Less accumulated depreciation and amortization | (76 | ) | (44 | ) | |||
|
|
||||||
$ | 52 | $ | 46 | ||||
|
|
F-86
4. Other Assets
The following table summarizes the items included in other assets:
|
December 31,
|
|||||
---|---|---|---|---|---|---|
|
2005
|
2004
|
||||
Legal retainer | $ | 60 | $ | 60 | ||
Prepaid insurance and other | 103 | 26 | ||||
|
|
|||||
$ | 163 | $ | 86 | |||
|
|
Interest Income
Interest income was $30, $3 and $9 for the years ended December 31, 2005, 2004 and 2003, respectively, and has been included in interest and other income in the accompanying statements of income.
Income Taxes
Under applicable federal and state income tax rules as an S-Corporation, the allocated share of net income or loss is reportable in the income tax returns of the Stockholders. Accordingly, no income tax provision is included in the accompanying financial statements other than the 1.5% tax due on taxable income of S-Corporations in the state of California, which has been included as a component of selling, general and administrative expenses.
5. Commitments and Contingencies
The Company is subject to various legal proceedings and claims that arise in the ordinary course of business. These matters are generally covered by insurance. Management believes that the ultimate settlement of these actions will not have a material adverse effect on the Company's financial position and results of operations or cash flows.
Employee Retirement Savings Plan
The Company has a retirement savings plan pursuant to Section 401(k) of the Internal Revenue Code whereby the Company's employees may contribute a portion of their compensation to their respective retirement accounts, in an amount not to exceed the maximum allowed under the Internal Revenue Code. The Company has elected to provide discretionary profit-sharing contributions (subject to statutory limitations), which amounted to $280, $246 and $271 for the years ended December 31, 2005, 2004 and 2003, respectively. The contributions have been recorded in salaries, wages, benefits and other direct costs in the accompanying statements of income. Employees who participate in the plan are immediately vested in their contributions and are vested in the contributions of the Company over a five-year period. At December 31, 2005 and 2004, the Company recorded a liability of $280 and $246, respectively, for unfunded contributions.
F-87
Concentration of Credit Risk
The Company maintains cash and cash equivalents at insured financial institutions. The combined account balances at each institution periodically exceed FDIC insurance coverage, and, as a result, there is a concentration of credit risk related to amounts in excess of FDIC insurance coverage. The Company believes that the risk is not significant.
6. Related Party Transactions
Noncancelable Operating Leases
The Company has a noncancelable operating lease obligation for office space with an affiliate in which the Stockholders have a general partnership interest. This lease expires on April 30, 2010, with two options to extend, provides for rent increases based on specific terms, and requires payments of the Company's share of property taxes, insurance and maintenance costs. For the years ended December 31, 2005, 2004 and 2003, the Company incurred rental expenses, which has been included in selling, general and administrative expenses in the accompanying statements of income.
Future minimum payments under this lease were as follows at December 31, 2005:
2006 | $ | 852 | |
2007 | 852 | ||
2008 | 852 | ||
2009 | 852 | ||
2010 | 284 | ||
|
|||
$ | 3,692 | ||
|
F-88
Douglas Emmett Single Asset Entities
Combined Statements of Revenues and Certain Expenses
(Unaudited and in thousands)
|
Six Months Ended
June 30, |
||||||||
---|---|---|---|---|---|---|---|---|---|
|
2006
|
2005
|
|||||||
Revenues: | |||||||||
Office rental: | |||||||||
Rental revenues | $ | 3,837 | $ | 3,654 | |||||
Tenant recoveries | 198 | 154 | |||||||
Parking and other | 439 | 367 | |||||||
|
|
||||||||
Total office revenue | 4,474 | 4,175 | |||||||
Multifamily rental: |
|
|
|
|
|
|
|
||
Rental revenues | 1,121 | 1,061 | |||||||
Parking and other | 19 | 12 | |||||||
|
|
||||||||
Total multifamily revenue | 1,140 | 1,073 | |||||||
|
|
||||||||
Total revenues | 5,614 | 5,248 | |||||||
Certain expenses: |
|
|
|
|
|
|
|
||
Operating expenses | |||||||||
Office rental | (825 | ) | (899 | ) | |||||
Multifamily rental | (181 | ) | (134 | ) | |||||
Maintenance and management servicesaffiliates | (316 | ) | (259 | ) | |||||
General and administrative | (244 | ) | (145 | ) | |||||
|
|
||||||||
Total certain expenses | (1,566 | ) | (1,437 | ) | |||||
|
|
||||||||
Revenues in excess of certain expenses | $ | 4,048 | $ | 3,811 | |||||
|
|
See accompanying notes.
F-89
Douglas Emmett Single Asset Entities
Notes to Combined Statements of Revenues and Certain Expenses
June 30, 2006
(Unaudited and in thousands)
1. Basis of Presentation
The accompanying combined statements of revenues and certain expenses relate to the operations of eight properties (collectively, the Single Asset Entities). The following table provides information about the individual properties and their owners.
Property
|
Type
|
Location
|
General Partner/
Managing Member |
|||
---|---|---|---|---|---|---|
Barry Properties, Ltd. | Multifamily | Brentwood, CA | Aberdeen Properties LP | |||
Barrington Kiowa Properties | Multifamily | Brentwood, CA | Aberdeen Properties LP | |||
Kiowa Properties, Ltd. | Multifamily | Brentwood, CA | Aberdeen Properties LP | |||
Brentwood Court | Office | Brentwood, CA | Coral Realty LP and Offer Family Trust | |||
Owensmouth/Warner LLC | Land | Woodland Hills, CA | Coral Realty LP | |||
Brentwood-San Vicente Medical, Ltd. | Office | Brentwood, CA | Coral Realty LP | |||
San Vicente Plaza | Office | Brentwood, CA | EA Realty LP | |||
Brentwood Plaza | Office | Brentwood, CA | EA Realty LP |
The stockholders of Douglas Emmett Realty Advisors (DERA) directly or indirectly have general partnership and limited partnership interests in Aberdeen Properties LP, Coral Realty LP and EA Realty LP. Concurrent with the consummation of the initial public offering of the common stock of Douglas Emmett, Inc. (the Company), Aberdeen Properties LP, Coral Realty LP and EA Realty LP will contribute their ownership interests in the properties to the Company. Affiliates of the Single Asset Entities and DERA have historically provided maintenance and management services to the Single Asset Entities.
The accompanying combined statements of revenues and certain expenses relate to the Single Asset Entities and have been prepared for the purpose of complying with Rule 3-14 of Regulation S-X promulgated under the Securities Act of 1933, as amended. Accordingly, the combined statements are not representative of the actual operations for the periods presented as revenues and certain operating expenses, which may not be directly attributable to the revenues and expenses expected to be incurred to the future operations of the Single Asset Entities, have been excluded. Such items include depreciation, amortization, management fees, interest expense and interest income.
All of the Single Asset Entities are under common management and their acquisition will be conditioned on a single event, consummation of the Company's initial public offering. Due to common management, and consistent with Accounting Research Bulletin 51, Consolidated Financial Statements , management views the eight Single Asset Entities on a combined basis.
Unaudited Interim Financial Information
The accompanying interim unaudited statements of combined revenues and certain expenses have been prepared by the Single Asset Entities' management pursuant to the rules and regulations of the Securities and Exchange Commission. Certain information and footnote disclosure normally included in the financial statements prepared in accordance with U.S. generally accepted accounting principles may have been condensed or omitted pursuant to such rules and regulations, although management believes
F-90
that the disclosures are adequate to make the presentation not misleading. The unaudited combined statements of revenues and certain expenses for the six months ended June 30, 2006 and 2005, include, in the opinion of management, all adjustments, consisting of normal recurring adjustments, necessary to present fairly the financial information set forth therein. The results of operations for the interim period ended June 30, 2006 are not necessarily indicative of the results that may be expected for the year ended December 31, 2006. The interim combined statements of revenues and certain expenses should be read in conjunction with the Single Asset Entities' audited combined statements of revenues and certain expenses for the year ended December 31, 2005, and notes thereto.
2. Principles of Combination
The combined statements of revenues and certain expenses include selected accounts of the Single Asset Entities as described in Note 1. All significant intercompany accounts and transactions have been eliminated in the combined statements of revenues and certain expenses.
3. Summary of Significant Accounting Policies
Revenue Recognition
Revenue is recognized in accordance with Staff Accounting Bulletin No. 104 of the Securities and Exchange Commission, Revenue Recognition, (SAB 104), as amended. SAB 104 requires that four basic criteria must be met before revenue can be recognized: persuasive evidence of an arrangement exists; the delivery has occurred or services rendered; the fee is fixed and determinable; and collectibility is reasonably assured. All leases are classified as operating leases. For all lease terms exceeding one year, rental income is recognized on a straight-line basis over the terms of the leases.
Multifamily units are leased under operating leases with typical terms of 12 months and such rental revenue is recognized monthly as tenants are billed. The Company's multifamily leases are generally renewable on an annual basis at the tenant's option and, if not renewed or terminated, automatically convert to month-to-month.
Tenant reimbursements for real estate taxes, common area maintenance and other recoverable costs are recognized in the period that the expenses are incurred. Lease termination fees, which are included in parking and other revenue in the accompanying combined statements of revenues and certain expenses, are recognized when the related leases are canceled and the landlord has no continuing obligation to provide services to such former tenants.
Use of Estimates
Management has made a number of estimates and assumptions relating to the reporting and disclosure of revenues and certain expenses during the reporting periods to prepare the combined statements of revenues and certain expenses in conformity with U.S. generally accepted accounting principles. Actual results could differ from those estimates.
F-91
4. Minimum Future Lease Rentals
There are various lease agreements in place with tenants to lease space in the Single Asset Entities. As of June 30, 2006, the minimum future cash rents receivable under noncancelable operating leases in each of the next five years and thereafter are as follows:
July 1, 2006 to December 31, 2006 | $ | 3,290 | |
2007 | 6,110 | ||
2008 | 5,682 | ||
2009 | 5,151 | ||
2010 | 3,389 | ||
Thereafter | 5,770 | ||
|
|||
$ | 29,392 | ||
|
Leases generally require reimbursement of the tenant's proportional share of common area, real estate taxes and other operating expenses, which are excluded from the amounts above.
5. Tenant Concentrations
For each of the six months ended June 30, 2006 and 2005, one tenant represented 12% of the Single Asset Entities' total revenue.
6. Related-Party Transactions
An operating company that is owned by DERA's stockholders provides certain property maintenance and management services to the Single Asset Entities. For each of the six months ended June 30, 2006 and 2005, the operating company was reimbursed $316 and $259, respectively, for maintenance and management services incurred on behalf of the Single Asset Entities. The maintenance and management costs are included in maintenance and management servicesaffiliates.
7. Commitments and Contingencies
The Single Asset Entities are subject to various legal proceedings and claims that arise in the ordinary course of business. These matters are generally covered by insurance. Management believes that the ultimate settlement of these actions will not have a material adverse effect on the Single Asset Entities' results of operations.
F-92
Report of Independent Registered Public Accounting Firm
The
Stockholders of
Douglas Emmett Realty Advisors, Inc. and Subsidiaries
We have audited the accompanying combined statements of revenues and certain expenses (as defined in Note 1) of Barry Properties, Ltd., Barrington/Kiowa Properties, Kiowa Properties, Ltd., Brentwood Court, Owensmouth/Warner LLC, Brentwood-San Vicente Medical, Ltd., San Vicente Plaza and Brentwood Plaza (collectively, the Single Asset Entities) for each of the three years in the period ended December 31, 2005. These combined statements of revenues and certain expenses are the responsibility of the Single Asset Entities' management. Our responsibility is to express an opinion on these combined statements of revenues and certain expenses based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the combined statements of revenues and certain expenses are free of material misstatement. We were not engaged to perform an audit of the Single Asset Entities' internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Single Asset Entities' internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the combined statements of revenues and certain expenses, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
The accompanying combined statements of revenues and certain expenses of the Single Asset Entities were prepared for the purpose of complying with the rules and regulations of the Securities and Exchange Commission for inclusion in the Registration Statement on Form S-11 of Douglas Emmett, Inc. as described in Note 1, and are not intended to be a complete presentation of the revenues and expenses of Barry Properties, Ltd., Barrington/Kiowa Properties, Kiowa Properties, Ltd., Brentwood Court, Owensmouth/Warner LLC, Brentwood-San Vicente Medical Ltd., San Vicente Plaza and Brentwood Plaza.
In our opinion, the combined statements of revenues and certain expenses present fairly, in all material respects, the combined revenues and certain expenses, as defined above, of the Single Asset Entities for each of the three years in the period ended December 31, 2005, in conformity with U.S. generally accepted accounting principles.
/s/ ERNST & YOUNG LLP |
Los
Angeles, California
March 31, 2006
F-93
Douglas Emmett Single Asset Entities
Combined Statements of Revenues and Certain Expenses
(In thousands)
|
Years Ended December 31,
|
||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|
|
2005
|
2004
|
2003
|
||||||||
Revenues: | |||||||||||
Office rental: | |||||||||||
Rental revenues | $ | 7,328 | $ | 7,461 | $ | 6,889 | |||||
Tenant recoveries | 347 | 365 | 391 | ||||||||
Parking and other | 740 | 775 | 841 | ||||||||
|
|
|
|||||||||
Total office revenue | 8,415 | 8,601 | 8,121 | ||||||||
Multifamily rental: |
|
|
|
|
|
|
|
|
|
||
Rental revenues | 2,165 | 2,044 | 2,022 | ||||||||
Parking and other | 26 | 26 | 11 | ||||||||
|
|
|
|||||||||
Total multifamily revenue | 2,191 | 2,070 | 2,033 | ||||||||
|
|
|
|||||||||
Total revenues | 10,606 | 10,671 | 10,154 | ||||||||
Certain expenses: |
|
|
|
|
|
|
|
|
|
||
Operating expenses: | |||||||||||
Office rental | 1,839 | 1,647 | 1,603 | ||||||||
Multifamily rental | 299 | 349 | 349 | ||||||||
Maintenance and management servicesaffiliates | 592 | 539 | 543 | ||||||||
General and administrative | 313 | 235 | 232 | ||||||||
|
|
|
|||||||||
Total certain expenses | 3,043 | 2,770 | 2,727 | ||||||||
|
|
|
|||||||||
Revenues in excess of certain expenses | $ | 7,563 | $ | 7,901 | $ | 7,427 | |||||
|
|
|
See accompanying notes.
F-94
Douglas Emmett Single Asset Entities
Notes to Combined Statements of Revenues and Certain Expenses
Years Ended December 31, 2005, 2004 and 2003
(In thousands)
1. Basis of Presentation
The accompanying combined statements of revenues and certain expenses relate to the operations of eight properties (collectively, the Single Asset Entities). The following table provides information about the individual properties and their owners.
Property
|
Type
|
Location
|
General Partner/
Managing Member |
|||
---|---|---|---|---|---|---|
Barry Properties, Ltd. | Multifamily | Brentwood, CA | Aberdeen Properties LP | |||
Barrington Kiowa Properties | Multifamily | Brentwood, CA | Aberdeen Properties LP | |||
Kiowa Properties, Ltd. | Multifamily | Brentwood, CA | Aberdeen Properties LP | |||
Brentwood Court | Office | Brentwood, CA | Coral Realty LP and Offer Family Trust | |||
Owensmouth/Warner LLC | Land | Woodland Hills, CA | Coral Realty LP | |||
Brentwood-San Vicente Medical, Ltd. | Office | Brentwood, CA | Coral Realty LP | |||
San Vicente Plaza | Office | Brentwood, CA | EA Realty LP | |||
Brentwood Plaza | Office | Brentwood, CA | EA Realty LP |
The stockholders of Douglas Emmett Realty Advisors (DERA) directly or indirectly have general partnership and limited partnership interests in Aberdeen Properties LP, Coral Realty LP and EA Realty LP. Concurrent with the consummation of the initial public offering of the common stock of Douglas Emmett, Inc. (the Company), Aberdeen Properties LP, Coral Realty LP and EA Realty LP will contribute their ownership interests in the properties to the Company. Affiliates of the Single Asset Entities and DERA have historically provided maintenance and management services to the Single Asset Entities.
The accompanying combined statements of revenues and certain expenses relate to the Single Asset Entities and have been prepared for the purpose of complying with Rule 3-14 of Regulation S-X promulgated under the Securities Act of 1933, as amended. Accordingly, the combined statements are not representative of the actual operations for the years presented as revenues and certain operating expenses, which may not be directly attributable to the revenues and expenses expected to be incurred to the future operations of the Single Asset Entities, have been excluded. Such items include depreciation, amortization, management fees, interest expense and interest income.
All of the Single Asset Entities are under common management and their acquisition will be conditioned on a single event, consummation of the Company's initial public offering. Due to common management, and consistent with Accounting Research Bulletin 51, Consolidated Financial Statements , management views the eight Single Asset Entities on a combined basis.
2. Principles of Combination
The combined financial statements include selected accounts of the Single Asset Entities as described in Note 1. All significant intercompany accounts and transactions have been eliminated in the combined financial statements.
F-95
3. Summary of Significant Accounting Policies
Revenue Recognition
Revenue is recognized in accordance with Staff Accounting Bulletin No. 104 of the Securities and Exchange Commission, Revenue Recognition, (SAB 104), as amended. SAB 104 requires that four basic criteria must be met before revenue can be recognized: persuasive evidence of an arrangement exists; the delivery has occurred or services rendered; the fee is fixed and determinable; and collectibility is reasonably assured. All leases are classified as operating leases. For all lease terms exceeding one year, rental income is recognized on a straight-line basis over the terms of the leases.
Multifamily units are leased under operating leases with typical terms of 12 months and such rental revenue is recognized monthly as tenants are billed. The Company's multifamily leases are generally renewable on an annual basis at the tenant's option and, if not renewed or terminated, automatically convert to month-to-month.
Tenant reimbursements for real estate taxes, common area maintenance and other recoverable costs are recognized in the period that the expenses are incurred. Lease termination fees, which are included in parking and other revenue in the accompanying combined statements of revenues and certain expenses, are recognized when the related leases are canceled and the landlord has no continuing obligation to provide services to such former tenants.
Use of Estimates
Management has made a number of estimates and assumptions relating to the reporting and disclosure of revenues and certain expenses during the reporting periods to prepare the combined statements of revenues and certain expenses in conformity with U.S. generally accepted accounting principles. Actual results could differ from those estimates.
4. Minimum Future Lease Rentals
There are various lease agreements in place with tenants to lease space in the Single Asset Entities. As of December 31, 2005, the minimum future cash rents receivable under noncancelable operating leases in each of the next five years and thereafter are as follows:
2006 | $ | 6,287 | |
2007 | 5,909 | ||
2008 | 5,470 | ||
2009 | 4,930 | ||
2010 | 3,159 | ||
Thereafter | 4,890 | ||
|
|||
$ | 30,645 | ||
|
Leases generally require reimbursement of the tenant's proportional share of common area, real estate taxes and other operating expenses, which are excluded from the amounts above.
F-96
5. Tenant Concentrations
For the years ended December 31, 2005 and 2004, one tenant represented 10% of the Single Asset Entities' total revenue. For the year ended December 31, 2003, no tenant exceeded 10% of the Single Asset Entities' total revenue.
6. Related-Party Transactions
An operating company that is owned by the Single Asset Entities' and DERA's stockholders provides certain property maintenance and management services to the Single Asset Entities. For the years ended December 31, 2005, 2004 and 2003, the operating company was reimbursed $592, $539 and $543, respectively, for maintenance and management services incurred on behalf of the Single Asset Entities. The maintenance and management costs are included in maintenance and management servicesaffiliates.
7. Commitments and Contingencies
The Single Asset Entities are subject to various legal proceedings and claims that arise in the ordinary course of business. These matters are generally covered by insurance. Management believes that the ultimate settlement of these actions will not have a material adverse effect on the Single Asset Entities' results of operations.
F-97
Joint Bookrunning Managers | ||
Lehman Brothers |
Merrill Lynch & Co. |
Citigroup |
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 31. Other Expenses of Issuance and Distribution.
The following table itemizes the fees and expenses incurred by us in connection with the issuance and registration of the securities being registered hereunder. All amounts shown are estimates except the Securities and Exchange Commission registration fee and NYSE listing fee.
SEC Registration Fee | $ | 142,123.00 | ||
National Association of Securities Dealers Fee | 75,500.00 | |||
Accounting Fees and Expenses | * | |||
Legal Fees and Expenses (other than Blue Sky) | * | |||
Blue Sky Fees and Expenses | * | |||
Printing Expenses | * | |||
NYSE Listing Fees | * | |||
Miscellaneous | * | |||
|
||||
Total | $ | * | ||
|
Item 32. Sales to Special Parties.
None.
Item 33. Recent Sales of Unregistered Securities.
Upon our formation on June 28, 2005, Dan A. Emmett was issued 50 shares of our common stock for total consideration of $50.00 in cash, and Jordan Kaplan was issued 50 shares of our common stock for total consideration of $50.00 in cash. The issuance of such shares was effected in reliance upon an exemption from registration provided by Section 4(2) under the Securities Act.
In connection with the formation transactions, 58,617,573 shares of common stock and 50,512,427 units of limited partnership in our operating partnership with an aggregate value of $3.57 billion, assuming a price per share or unit at the mid-point of the range set forth on the cover page of the prospectus that forms a part of this registration statement, will be issued to certain persons transferring interests in our historical operating companies, the institutional funds, the investment funds and the single-asset entities to us in consideration of such transfer. All such persons made irrevocable elections to receive such securities in the formation transactions prior to the filing of this registration statement with the SEC. All of such persons are "accredited investors" as defined under Regulation D of the Securities Act. The issuance of such shares and units will be effected in reliance upon an exemption from registration provided by Section 4(2) under the Securities Act.
In addition, upon consummation of this offering, stock options and LTIP units will be granted pursuant to our stock incentive plan to certain executive officers, the number of which will be based on a formula using the mid-point of the price range for this offering to be set forth on the cover page of the prospectus. All such executive officers irrevocably committed to accept such options and LTIP units prior to the filing of this Registration Statement and are "accredited investors" as defined under Regulation D of the Securities Act. The grants will be effected in reliance upon an exemption from registration under Section 4(2) of the Securities Act.
II-1
Item 34. Indemnification of Directors and Officers.
The MGCL permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from actual receipt of an improper benefit or profit in money, property or services or active and deliberate dishonesty established by a final judgment as being material to the cause of action. Our charter contains such a provision which eliminates such liability to the maximum extent permitted by Maryland law.
Our charter authorizes us, to the maximum extent that Maryland law in effect from time to time permits, to obligate us to indemnify any present or former director or officer or any individual who, while a director or officer of our company and at our request, serves or has served another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or other enterprise as a director, officer, partner or trustee, from and against any claim or liability to which that individual may become subject or which that individual may incur by reason of his or her service in any such capacity and to pay or reimburse his or her reasonable expenses in advance of final disposition of a proceeding. Our bylaws obligate us, to the fullest extent permitted by Maryland law in effect from time to time, to indemnify and, without requiring a preliminary determination of the ultimate entitlement to indemnification, pay or reimburse reasonable expenses in advance of final disposition of a proceeding to:
Our charter and bylaws also permit us to indemnify and advance expenses to any person who served a predecessor of ours in any of the capacities described above and to any employee or agent of our company or a predecessor of our company.
The MGCL requires a corporation (unless its charter provides otherwise, which our charter does not) to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made or threatened to be made a party by reason of his or her service in that capacity. The MGCL permits a corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made or are threatened to be made a party by reason of their service in those or other capacities unless it is established that:
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However, under the MGCL, a Maryland corporation may not indemnify for an adverse judgment in a suit by or in the right of the corporation or for a judgment of liability on the basis that personal benefit was improperly received, unless in either case a court orders indemnification and then only for expenses.
In addition, the MGCL permits a corporation to advance reasonable expenses to a director or officer upon the corporation's receipt of:
Furthermore, our officers and directors are indemnified against specified liabilities by the underwriters, and the underwriters are indemnified against certain liabilities by us, under the purchase agreements relating to this offering. See "Underwriting."
We have entered into indemnification agreements with each of our executive officers and directors whereby we indemnify such executive officers and directors to the fullest extent permitted by Maryland law against all expenses and liabilities, subject to limited exceptions. These indemnification agreements also provide that upon an application for indemnity by an executive officer or director to a court of appropriate jurisdiction, such court may order us to indemnify such executive officer or director.
In addition, our directors and officers are indemnified for specified liabilities and expenses pursuant to the partnership agreement of Douglas Emmett Properties, LP, the partnership in which we serve as sole general partner.
Item 35. Treatment of Proceeds from Stock Being Registered.
None.
Item 36. Financial Statements and Exhibits.
(A) Financial Statements. See Index to Consolidated Financial Statements and the related notes thereto.
(B) Exhibits. The following exhibits are filed as part of, or incorporated by reference into, this registration statement on Form S-11:
Exhibits
|
|
|
---|---|---|
1.1* | Form of Underwriting Agreement. | |
3.1* | Form of Articles of Amendment and Restatement of Douglas Emmett, Inc. | |
3.2* | Form of Amended and Restated Bylaws of Douglas Emmett, Inc. | |
4.1 | Form of Certificate of Common Stock of Douglas Emmett, Inc. | |
5.1* | Opinion of Venable LLP, with respect to the legality of the shares being registered. | |
8.1* | Opinion of Skadden, Arps, Slate, Meagher & Flom LLP with respect to tax matters. | |
10.1 | Form of Agreement of Limited Partnership of Douglas Emmett Properties, LP. | |
10.2 | Amended and Restated Discount MBS Multifamily Note for $117,600,000 between Fannie Mae and Barrington Pacific, LLC, dated December 22, 2004.(2) | |
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10.3 | Amended and Restated Discount MBS Multifamily Note for $35,400,000 between Fannie Mae and Barrington Pacific, LLC, dated December 22, 2004.(2) | |
10.4 | Amended and Restated Discount MBS Multifamily Note for $35,900,000 between Fannie Mae and Douglas Emmett Realty Fund 1998 (assumed by Shores Barrington LLC), dated December 22, 2004.(2) | |
10.5 | Amended and Restated Discount MBS Multifamily Note for $104,100,000 between Fannie Mae and Douglas Emmett Realty Fund 1998 (assumed by Shores Barrington LLC), dated December 22, 2004.(2) | |
10.6 | Discount MBS Multifamily Note for $75,000,000 between Fannie Mae and DEG Residential, LLC, dated January 14, 2005.(2) | |
10.7 | Form of Registration Rights Agreement among Douglas Emmett, Inc. and the persons named therein.(1) | |
10.8 | Form of Indemnification Agreement between Douglas Emmett, Inc. and its directors and officers.(3) | |
10.9 | Form of Douglas Emmett, Inc. 2006 Omnibus Stock Incentive Plan.(3) | |
10.10 | Form of Stock Option Agreement.(3) | |
10.11 | Form of Employment Agreement between Douglas Emmett, Inc. and Jordan Kaplan. | |
10.12 | Form of Employment Agreement between Douglas Emmett, Inc. and Kenneth Panzer. | |
10.13 | Form of Employment Agreement between Douglas Emmett, Inc. and William Kamer. | |
10.14 | Representation, Warranty and Indemnity Agreement among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Dan A. Emmett, Christopher Anderson, Jordan Kaplan and Kenneth Panzer, dated as of June 15, 2006.(1) | |
10.15 | Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, DERF Acquisition, LLC and Douglas Emmett Realty Fund, dated as of June 15, 2006.(1) | |
10.16 | Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, DERF No. 2 Acquisition, LLC and Douglas Emmett Realty Fund No. 2, dated as of June 15, 2006.(1) | |
10.17 | Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, DERF 1995 Acquisition, LLC and Douglas Emmett Realty Fund 1995, dated as of June 15, 2006.(1) | |
10.18 | Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, DERF 1996 Acquisition, LLC and Douglas Emmett Realty Fund 1996, dated as of June 15, 2006.(1) | |
10.19 | Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, DERF 1997 Acquisition, LLC and Douglas Emmett Realty Fund 1997, dated as of June 15, 2006.(1) | |
10.20 | Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, DERF 1998 Acquisition, LLC and Douglas Emmett Realty Fund 1998, dated as of June 15, 2006.(1) | |
10.21 | Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, DERF 2000 Acquisition, LLC and Douglas Emmett Realty Fund 2000, dated as of June 15, 2006.(1) | |
II-4
10.22 | Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, DERF 2002 Acquisition, LLC and Douglas Emmett Realty Fund 2002, dated as of June 15, 2006.(1) | |
10.23 | Agreement and Plan of Merger among Douglas Emmett, Inc., DERF 2005 Acquisition, LLC, Douglas Emmett 2005 REIT, Inc. and Douglas Emmett Realty Fund 2005, dated as of June 15, 2006.(1) | |
10.24 | Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Opp Fund Acquisition, LLC and The Opportunity Fund, dated as of June 15, 2006.(1) | |
10.25 | Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Opp Fund 1995 Acquisition, LLC and The Opportunity Fund 1995, dated as of June 15, 2006.(1) | |
10.26 | Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Opp Fund 1996 Acquisition, LLC and The Opportunity Fund 1996, dated as of June 15, 2006.(1) | |
10.27 | Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Barry Acquisition, LLC and Barry Properties, Ltd., dated as of June 15, 2006.(1) | |
10.28 | Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Kiowa Acquisition, LLC and Kiowa Properties, Ltd., dated as of June 15, 2006.(1) | |
10.29 | Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Barrington/Kiowa Acquisition, LLC and Barrington/Kiowa Properties, dated as of June 15, 2006.(1) | |
10.30 | Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, BSVM Acquisition, LLC and Brentwood-San Vicente Medical, Ltd., dated as of June 15, 2006.(1) | |
10.31 | Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Brentwood Court Acquisition, LLC and Brentwood Court, dated as of June 15, 2006.(1) | |
10.32 | Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Brentwood Plaza Acquisition, LLC and Brentwood Plaza, dated as of June 15, 2006.(1) | |
10.33 | Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, San Vicente Plaza Acquisition, LLC and San Vicente Plaza, dated as of June 15, 2006.(1) | |
10.34 | Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Owensmouth Acquisition, LLC and Owensmouth/Warner, LLC, dated as of June 15, 2006.(1) | |
10.35 | Agreement and Plan of Merger among Douglas Emmett, Inc., DECO Acquisition, LLC, DERA Acquisition, LLC, Douglas, Emmett and Company and Douglas Emmett Realty Advisors, Inc., dated as of June 15, 2006.(1) | |
10.36 | P.L.E. OP Contribution Agreement among Douglas Emmett Properties, LP, Douglas Emmett Realty Advisors, Inc. and the stockholders of P.L.E. Builders, Inc., dated as of June 15, 2006.(1) | |
10.37 | REIT Contribution Agreement among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Douglas Emmett Realty Advisors, Inc., Aberdeen Properties, Coral Realty, EA Realty, New September, LLC and the contributors signatory thereto, dated as of June 15, 2006.(1) | |
10.38 | HBRCT OP Contribution Agreement among Douglas Emmett Properties, LP, Douglas Emmett Realty Advisors and HBRCT LLC., dated as of June 15, 2006.(1) | |
II-5
10.39 | Asset Contribution Agreement among Douglas Emmett, Inc., DERA Acquisition, LLC, DECO Acquisition, LLC, DERF 2005 Acquisition, LLC and Douglas Emmett Properties, LP, dated as of June 15, 2006.(1) | |
10.40 | Employment Agreement between Douglas Emmett, Inc. and Andres Gavinet. | |
10.41 | Form of LTIP Unit Award Agreement. | |
10.42 | $170,000,000 Loan Agreement dated as of August 25, 2005 among Douglas Emmett 1993, LLC, the lenders party thereto, Eurohypo AG, New York Branch, and Barclays Capital Real Estate Inc.(3) | |
10.43 | $260,000,000 Loan Agreement dated as of August 25, 2005 among Douglas Emmett 1995, LLC, the lenders party thereto, Eurohypo AG, New York Branch, and Barclays Capital Real Estate Inc.(3) | |
10.44 | $215,000,000 Loan Agreement dated as of August 25, 2005 among Douglas Emmett 1996, LLC, the lenders party thereto, Eurohypo AG, New York Branch, and Barclays Capital Real Estate Inc.(3) | |
10.45 | $425,000,000 Loan Agreement dated as of August 25, 2005 among Douglas Emmett 1997, LLC, Westwood Place Investors, LLC, the lenders party thereto, Eurohypo AG, New York Branch, and Barclays Capital Real Estate Inc.(3) | |
10.46 | $150,000,000 Loan Agreement dated as of August 25, 2005 among Douglas Emmett 1998, LLC, the lenders party thereto, Eurohypo AG, New York Branch, and Barclays Capital Real Estate Inc.(3) | |
10.47 | $425,000,000 Loan Agreement dated as of August 25, 2005 among Douglas Emmett 2000, LLC, the lenders party thereto, Eurohypo AG, New York Branch, and Barclays Capital Real Estate Inc.(3) | |
10.48 | $110,000,000 Loan Agreement dated as of August 25, 2005 among Douglas Emmett 2002, LLC, DEG, LLC, the lenders party thereto, Eurohypo AG, New York Branch, and Barclays Capital Real Estate Inc.(3) | |
10.49 | Joinder and Supplement Agreement dated as of August 25, 2005 among Douglas Emmett 2002, LLC and DEG, LLC made with reference to the Loan Agreement dated as of August 25, 2005 by and among Douglas Emmett 2002, LLC, the lenders party thereto and Eurohypo AG, New York Branch.(3) | |
10.50 | Form of LTIP Unit Designation. | |
10.51 | Form of Credit Agreement among Douglas Emmett 2006, LLC, Bank of America, N.A., Banc of America Securities, LLC, Bank of Montreal, Bayerische Landesbank, Wachovia Bank, N.A. and the other lenders party thereto. | |
10.52 | Form of Modification Agreement among Douglas Emmett 1993, LLC, Brentwood Plaza, the lenders party thereto and Eurohypo AG, New York Branch. | |
10.53 | Form of Modification Agreement among Douglas Emmett 1995, LLC, the lenders party thereto and Eurohypo AG, New York Branch. | |
10.54 | Form of Modification Agreement among Douglas Emmett 1996, LLC, the lenders party thereto and Eurohypo AG, New York Branch. | |
10.55 | Form of Modification Agreement among Douglas Emmett 1997, LLC, Westwood Place Investors, LLC, the lenders party thereto and Eurohypo AG, New York Branch. | |
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10.56 | Form of Modification Agreement among Douglas Emmett 1998, LLC, Brentwood Court, Brentwood-San Vicente Medical, Ltd., the lenders party thereto and Eurohypo AG, New York Branch. | |
10.57 | Form of Modification Agreement among Douglas Emmett 2000, LLC, the lenders party thereto and Eurohypo AG, New York Branch. | |
10.58 | Form of Modification Agreement among Douglas Emmett 2002, LLC, DEG, LLC, San Vicente Plaza, Owensmouth/Warner, LLC, the lenders party thereto and Eurohypo AG, New York Branch. | |
10.59 | Form of Joinder and Supplement Agreement among Douglas Emmett 1993, LLC and Brentwood Plaza made with reference to the Modification Agreement among Douglas Emmett 1993, LLC, the lenders party thereto and Eurohypo AG, New York Branch. | |
10.60 | Form of Joinder and Supplement Agreement among Douglas Emmett 1998, LLC, Brentwood Court and Brentwood-San Vicente Medical, Ltd. made with reference to the Modification Agreement among Douglas Emmett 1998, LLC, the lenders party thereto and Eurohypo AG, New York Branch. | |
10.61 | Form of Joinder and Supplement Agreement among Douglas Emmett 2002, LLC, DEG, LLC, San Vicente Plaza and Owensmouth/Warner, LLC made with reference to the Modification Agreement among Douglas Emmett 2002, LLC, DEG, LLC, the lenders party thereto and Eurohypo AG, New York Branch. | |
21.1 | List of Subsidiaries of the Registrant. | |
23.1* | Consent of Venable LLP (included in Exhibit 5.1). | |
23.2* | Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 8.1). | |
23.3 | Consent of Ernst & Young LLP. | |
23.4 | Consent of Eastdil Secured.(1) | |
24.1 | Power of Attorney (included on the Signature Page).(1) | |
99.1 | Consent of Victor J. Coleman.(1) | |
99.2 | Consent of Thomas E. O'Hern.(1) | |
99.3 | Consent of Dr. Andrea L. Rich.(1) | |
99.4 | Consent of William Wilson III.(1) | |
99.5 | Consent of Leslie E. Bider.(2) | |
99.6 | Consent of Ghebre Selassie Mehreteab.(2) | |
99.7 | Portfolio and Market Evaluation Report Prepared by Eastdil Secured.(3) |
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in
II-7
reliance under Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4), or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and this offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby further undertakes to provide to the underwriter at the closing specified in the underwriting agreements, certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser.
Insofar as indemnification of liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
II-8
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-11 and has duly caused this Amendment No. 3 to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Santa Monica, state of California, on October 3, 2006.
DOUGLAS EMMETT, INC | |||
|
|
By: |
/s/ JORDAN KAPLAN |
Name: Jordan Kaplan
Title: Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature
|
Title
|
Date
|
||
---|---|---|---|---|
|
|
|
|
|
/s/
JORDAN KAPLAN
Jordan Kaplan |
Chief Executive Officer, President and Director (Principal Executive Officer) | October 3, 2006 | ||
/s/ WILLIAM KAMER William Kamer |
|
Chief Financial Officer (Principal Financial Officer) |
|
October 3, 2006 |
* Barbara J. Orr |
|
Chief Accounting Officer (Principal Accounting Officer) |
|
October 3, 2006 |
/s/ DAN A. EMMETT Dan A. Emmett |
|
Chairman of the Board of Directors |
|
October 3, 2006 |
*By: |
|
/s/ JORDAN KAPLAN Jordan Kaplan Attorney-in-fact |
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|
|
|
II-9
Exhibits
|
|
|
---|---|---|
1.1* |
|
Form of Underwriting Agreement. |
3.1* |
|
Form of Articles of Amendment and Restatement of Douglas Emmett, Inc. |
3.2* |
|
Form of Amended and Restated Bylaws of Douglas Emmett, Inc. |
4.1 |
|
Form of Certificate of Common Stock of Douglas Emmett, Inc. |
5.1* |
|
Opinion of Venable LLP, with respect to the legality of the shares being registered. |
8.1* |
|
Opinion of Skadden, Arps, Slate, Meagher & Flom LLP with respect to tax matters. |
10.1 |
|
Form of Agreement of Limited Partnership of Douglas Emmett Properties, LP. |
10.2 |
|
Amended and Restated Discount MBS Multifamily Note for $117,600,000 between Fannie Mae and Barrington Pacific, LLC, dated December 22, 2004.(2) |
10.3 |
|
Amended and Restated Discount MBS Multifamily Note for $35,400,000 between Fannie Mae and Barrington Pacific, LLC, dated December 22, 2004.(2) |
10.4 |
|
Amended and Restated Discount MBS Multifamily Note for $35,900,000 between Fannie Mae and Douglas Emmett Realty Fund 1998 (assumed by Shores Barrington LLC), dated December 22, 2004.(2) |
10.5 |
|
Amended and Restated Discount MBS Multifamily Note for $104,100,000 between Fannie Mae and Douglas Emmett Realty Fund 1998 (assumed by Shores Barrington LLC), dated December 22, 2004.(2) |
10.6 |
|
Discount MBS Multifamily Note for $75,000,000 between Fannie Mae and DEG Residential, LLC, dated January 14, 2005.(2) |
10.7 |
|
Form of Registration Rights Agreement among Douglas Emmett, Inc. and the persons named therein.(1) |
10.8 |
|
Form of Indemnification Agreement between Douglas Emmett, Inc. and its directors and officers.(3) |
10.9 |
|
Form of Douglas Emmett, Inc. 2006 Omnibus Stock Incentive Plan.(3) |
10.10 |
|
Form of Stock Option Agreement.(3) |
10.11 |
|
Form of Employment Agreement between Douglas Emmett, Inc. and Jordan Kaplan. |
10.12 |
|
Form of Employment Agreement between Douglas Emmett, Inc. and Kenneth Panzer. |
10.13 |
|
Form of Employment Agreement between Douglas Emmett, Inc. and William Kamer. |
10.14 |
|
Representation, Warranty and Indemnity Agreement among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Dan A. Emmett, Christopher Anderson, Jordan Kaplan and Kenneth Panzer, dated as of June 15, 2006.(1) |
10.15 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, DERF Acquisition, LLC and Douglas Emmett Realty Fund, dated as of June 15, 2006.(1) |
10.16 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, DERF No. 2 Acquisition, LLC and Douglas Emmett Realty Fund No. 2, dated as of June 15, 2006.(1) |
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10.17 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, DERF 1995 Acquisition, LLC and Douglas Emmett Realty Fund 1995, dated as of June 15, 2006.(1) |
10.18 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, DERF 1996 Acquisition, LLC and Douglas Emmett Realty Fund 1996, dated as of June 15, 2006.(1) |
10.19 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, DERF 1997 Acquisition, LLC and Douglas Emmett Realty Fund 1997, dated as of June 15, 2006.(1) |
10.20 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, DERF 1998 Acquisition, LLC and Douglas Emmett Realty Fund 1998, dated as of June 15, 2006.(1) |
10.21 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, DERF 2000 Acquisition, LLC and Douglas Emmett Realty Fund 2000, dated as of June 15, 2006.(1) |
10.22 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, DERF 2002 Acquisition, LLC and Douglas Emmett Realty Fund 2002, dated as of June 15, 2006.(1) |
10.23 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., DERF 2005 Acquisition, LLC, Douglas Emmett 2005 REIT, Inc. and Douglas Emmett Realty Fund 2005, dated as of June 15, 2006.(1) |
10.24 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Opp Fund Acquisition, LLC and The Opportunity Fund, dated as of June 15, 2006.(1) |
10.25 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Opp Fund 1995 Acquisition, LLC and The Opportunity Fund 1995, dated as of June 15, 2006.(1) |
10.26 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Opp Fund 1996 Acquisition, LLC and The Opportunity Fund 1996, dated as of June 15, 2006.(1) |
10.27 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Barry Acquisition, LLC and Barry Properties, Ltd., dated as of June 15, 2006.(1) |
10.28 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Kiowa Acquisition, LLC and Kiowa Properties, Ltd., dated as of June 15, 2006.(1) |
10.29 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Barrington/Kiowa Acquisition, LLC and Barrington/Kiowa Properties, dated as of June 15, 2006.(1) |
10.30 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, BSVM Acquisition, LLC and Brentwood-San Vicente Medical, Ltd., dated as of June 15, 2006.(1) |
10.31 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Brentwood Court Acquisition, LLC and Brentwood Court, dated as of June 15, 2006.(1) |
II-11
10.32 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Brentwood Plaza Acquisition, LLC and Brentwood Plaza, dated as of June 15, 2006.(1) |
10.33 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, San Vicente Plaza Acquisition, LLC and San Vicente Plaza, dated as of June 15, 2006.(1) |
10.34 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Owensmouth Acquisition, LLC and Owensmouth/Warner, LLC, dated as of June 15, 2006.(1) |
10.35 |
|
Agreement and Plan of Merger among Douglas Emmett, Inc., DECO Acquisition, LLC, DERA Acquisition, LLC, Douglas, Emmett and Company and Douglas Emmett Realty Advisors, Inc., dated as of June 15, 2006.(1) |
10.36 |
|
P.L.E. OP Contribution Agreement among Douglas Emmett Properties, LP, Douglas Emmett Realty Advisors, Inc. and the stockholders of P.L.E. Builders, Inc., dated as of June 15, 2006.(1) |
10.37 |
|
REIT Contribution Agreement among Douglas Emmett, Inc., Douglas Emmett Properties, LP, Douglas Emmett Realty Advisors, Inc., Aberdeen Properties, Coral Realty, EA Realty, New September, LLC and the contributors signatory thereto, dated as of June 15, 2006.(1) |
10.38 |
|
HBRCT OP Contribution Agreement among Douglas Emmett Properties, LP, Douglas Emmett Realty Advisors and HBRCT LLC, dated as of June 15, 2006.(1) |
10.39 |
|
Asset Contribution Agreement among Douglas Emmett, Inc., DERA Acquisition, LLC, DECO Acquisition, LLC, DERF 2005 Acquisition, LLC and Douglas Emmett Properties, LP, dated as of June 15, 2006.(1) |
10.40 |
|
Employment Agreement between Douglas Emmett, Inc. and Andres Gavinet. |
10.41 |
|
Form of LTIP Unit Award Agreement. |
10.42 |
|
$170,000,000 Loan Agreement dated as of August 25, 2005 among Douglas Emmett 1993, LLC, the lenders party thereto, Eurohypo AG, New York Branch, and Barclays Capital Real Estate Inc.(3) |
10.43 |
|
$260,000,000 Loan Agreement dated as of August 25, 2005 among Douglas Emmett 1995, LLC, the lenders party thereto, Eurohypo AG, New York Branch, and Barclays Capital Real Estate Inc.(3) |
10.44 |
|
$215,000,000 Loan Agreement dated as of August 25, 2005 among Douglas Emmett 1996, LLC, the lenders party thereto, Eurohypo AG, New York Branch, and Barclays Capital Real Estate Inc.(3) |
10.45 |
|
$425,000,000 Loan Agreement dated as of August 25, 2005 among Douglas Emmett 1997, LLC, Westwood Place Investors, LLC, the lenders party thereto, Eurohypo AG, New York Branch, and Barclays Capital Real Estate Inc.(3) |
10.46 |
|
$150,000,000 Loan Agreement dated as of August 25, 2005 among Douglas Emmett 1998, LLC, the lenders party thereto, Eurohypo AG, New York Branch, and Barclays Capital Real Estate Inc.(3) |
10.47 |
|
$425,000,000 Loan Agreement dated as of August 25, 2005 among Douglas Emmett 2000, LLC, the lenders party thereto, Eurohypo AG, New York Branch, and Barclays Capital Real Estate Inc.(3) |
II-12
10.48 |
|
$110,000,000 Loan Agreement dated as of August 25, 2005 among Douglas Emmett 2002, LLC, DEG, LLC, the lenders party thereto, Eurohypo AG, New York Branch, and Barclays Capital Real Estate Inc.(3) |
10.49 |
|
Joinder and Supplement Agreement dated as of August 25, 2005 among Douglas Emmett 2002, LLC, and DEG, LLC, made with reference to the Loan Agreement dated as of August 25, 2005 by and among Douglas Emmett 2002, LLC, the lenders party thereto and Eurohypo AG, New York Branch.(3) |
10.50 |
|
Form of LTIP Unit Designation. |
10.51 |
|
Form of Credit Agreement among Douglas Emmett 2006, LLC, Bank of America, N.A., Banc of America Securities, LLC, Bank of Montreal, Bayerische Landesbank, Wachovia Bank, N.A. and the other lenders party thereto. |
10.52 |
|
Form of Modification Agreement among Douglas Emmett 1993, LLC, Brentwood Plaza, the lenders party thereto and Eurohypo AG, New York Branch. |
10.53 |
|
Form of Modification Agreement among Douglas Emmett 1995, LLC, the lenders party thereto and Eurohypo AG, New York Branch. |
10.54 |
|
Form of Modification Agreement among Douglas Emmett 1996, LLC, the lenders party thereto and Eurohypo AG, New York Branch. |
10.55 |
|
Form of Modification Agreement among Douglas Emmett 1997, LLC, Westwood Place Investors, LLC, the lenders party thereto and Eurohypo AG, New York Branch. |
10.56 |
|
Form of Modification Agreement among Douglas Emmett 1998, LLC, Brentwood Court, Brentwood-San Vicente Medical, Ltd., the lenders party thereto and Eurohypo AG, New York Branch. |
10.57 |
|
Form of Modification Agreement among Douglas Emmett 2000, LLC, the lenders party thereto and Eurohypo AG, New York Branch. |
10.58 |
|
Form of Modification Agreement among Douglas Emmett 2002, LLC, DEG, LLC, San Vicente Plaza, Owensmouth/Warner, LLC, the lenders party thereto and Eurohypo AG, New York Branch. |
10.59 |
|
Form of Joinder and Supplement Agreement among Douglas Emmett 1993, LLC and Brentwood Plaza made with reference to the Modification Agreement among Douglas Emmett 1993, LLC, the lenders party thereto and Eurohypo AG, New York Branch. |
10.60 |
|
Form of Joinder and Supplement Agreement among Douglas Emmett 1998, LLC, Brentwood Court and Brentwood-San Vicente Medical, Ltd. made with reference to the Modification Agreement among Douglas Emmett 1998, LLC, the lenders party thereto and Eurohypo AG, New York Branch. |
10.61 |
|
Form of Joinder and Supplement Agreement among Douglas Emmett 2002, LLC, DEG, LLC, San Vicente Plaza and Owensmouth/Warner, LLC made with reference to the Modification Agreement among Douglas Emmett 2002, LLC, DEG, LLC, the lenders party thereto and Eurohypo AG, New York Branch. |
21.1 |
|
List of Subsidiaries of the Registrant. |
23.1* |
|
Consent of Venable LLP (included in Exhibit 5.1). |
23.2* |
|
Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 8.1). |
II-13
23.3 |
|
Consent of Ernst & Young LLP. |
23.4 |
|
Consent of Eastdil Secured.(1) |
24.1 |
|
Power of Attorney (included on the Signature Page).(1) |
99.1 |
|
Consent of Victor J. Coleman.(1) |
99.2 |
|
Consent of Thomas E. O'Hern.(1) |
99.3 |
|
Consent of Dr. Andrea L. Rich.(1) |
99.4 |
|
Consent of William Wilson III.(1) |
99.5 |
|
Consent of Leslie E. Bider.(2) |
99.6 |
|
Consent of Ghebre Selassie Mehreteab.(2) |
99.7 |
|
Portfolio and Market Evaluation Report Prepared by Eastdil Secured.(3) |
II-14
[CERTIFICATE]
NUMBER OF SHARES [ ]
COMMON STOCK
PAR VALUE $.01
CUSIP [ ]
SEE REVERSE FOR CERTAIN DEFINITIONS
DOUGLAS EMMETT, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
This Certifies that |
|
is the record holder of |
|
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
Douglas Emmett, Inc. transferable on the books of the Corporation by the holder hereof, in person or by duly authorized attorney, upon surrender of this certificate properly endorsed. This certificate is not valid until countersigned by the Transfer Agent and registered by the Registrar.
Witness the facsimile seal of the Corporation and the facsimile signatures of its duly authorized officers.
Dated:
COUNTERSIGNED AND REGISTERED:
COMPUTERSHARE TRUST COMPANY, INC.
TRANSFER
AGENT AND REGISTRAR,
By:
AUTHORIZED OFFICER
[DOUGLAS EMMETT, INC. CORPORATE SEAL]
Jordan
Kaplan
CHIEF EXECUTIVE OFFICER
William
Kamer
CHIEF FINANCIAL OFFICER
The shares represented by this certificate are subject to restrictions on Beneficial and Constructive Ownership and Transfer for the purpose, among others, of the Corporation's maintenance of its status as a Real Estate Investment Trust under the Internal Revenue Code of 1986, as amended (the "Code"). Subject to certain further restrictions and except as expressly provided in the Corporation's Charter, (i) no Person may Beneficially or Constructively Own shares of the Corporation's Common Stock in excess of 5.0% (in value or number of shares) of the outstanding shares of Common Stock of the Corporation unless such Person is an Excepted Holder (in which case the Excepted Holder Limit shall be applicable); (ii) no Person may Beneficially or Constructively Own shares of Capital Stock of the Corporation in excess of 5.0% of the value of the total outstanding shares of Capital Stock of the Corporation, unless such Person is an Excepted Holder (in which case the Excepted Holder Limit shall be applicable); (iii) no Person may Beneficially or Constructively Own Capital Stock that would result in the Corporation being "closely held" under Section 856(h) of the Code or otherwise cause the Corporation to fail to qualify as a REIT; and (iv) no Person may Transfer shares of Capital Stock if such Transfer would result in the Capital Stock of the Corporation being owned by fewer than 100 Persons. Any Person who Beneficially or Constructively Owns or attempts to Beneficially or Constructively Own shares of Capital Stock which causes or will cause a Person to Beneficially or Constructively Own shares of Capital Stock in excess or in violation of the above limitations must immediately notify the Corporation. If any of the restrictions on transfer or ownership are violated, the shares of Capital Stock represented hereby will be automatically transferred to a Trustee of a Trust for the benefit of one or more Charitable Beneficiaries. In addition, the Corporation may redeem shares upon the terms and conditions specified by the Board of Directors in its sole discretion if the Board of Directors determines that ownership or a Transfer or other event may violate the restrictions described above. Furthermore, upon the occurrence of certain events, attempted Transfers in violation of the restrictions described above may be void ab initio. All capitalized terms in this legend have the meanings defined in the Charter of the Corporation, as the same may be amended from time to time, a copy of which, including the restrictions on transfer and ownership, will be furnished to each holder of Capital Stock of the Corporation on request and without charge. Requests for such a copy may be directed to the Secretary of the Corporation at its Principal Office.
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM | as tenants in common | UNIF GIFT MIN ACT- Custodian | ||
TEN ENT | as tenants by the entireties | (Cust) (Minor) | ||
JT TEN | as joint tenants with right of | under Uniform Gifts to Minors | ||
survivorship and not as tenants | Act | |||
in common |
(State)
|
UNIF TRF MIN ACT
Custodian (until age
)
(Cust)
under Uniform Transfers
(Minor)
to
Minors Act
(State)
Additional abbreviations may also be used though not in the above list.
For Value received, hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS,
INCLUDING POSTAL ZIP CODE, OF ASSIGNEE
Shares of the common stock represented by the within certificate, and do hereby irrevocably constitute and appoint Attorney to transfer the said stock on the books of the within named Corporation with full power of substitution in the premises.
Dated
X
X
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED:
BY
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
AGREEMENT OF LIMITED PARTNERSHIP
OF
DOUGLAS EMMETT PROPERTIES, LP
a Delaware limited partnership
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "
SECURITIES ACT
"),OR
THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION, UNLESS IN THE OPINION OF COUNSEL SATISFACTORY TO THE
PARTNERSHIP THE PROPOSED SALE, TRANSFER OR OTHER DISPOSITION MAY BE
EFFECTED WITHOUT REGISTRATION UNDER THE SECURITIES ACT AND UNDER
APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS.
dated as of [ ], 2006
|
|
Page
|
||
---|---|---|---|---|
ARTICLE 1 DEFINED TERMS | 1 | |||
ARTICLE 2 ORGANIZATIONAL MATTERS |
|
15 |
||
Section 2.1 | Formation | 15 | ||
Section 2.2 | Name | 15 | ||
Section 2.3 | Registered Office and Agent; Principal Office | 15 | ||
Section 2.4 | Power of Attorney | 15 | ||
Section 2.5 | Term | 16 | ||
ARTICLE 3 PURPOSE |
|
16 |
||
Section 3.1 | Purpose and Business | 16 | ||
Section 3.2 | Powers | 17 | ||
Section 3.3 | Partnership Only for Purposes Specified | 17 | ||
Section 3.4 | Representations and Warranties by the Partners | 17 | ||
ARTICLE 4 CAPITAL CONTRIBUTIONS |
|
20 |
||
Section 4.1 | Capital Contributions of the Partners | 20 | ||
Section 4.2 | Issuances of Additional Partnership Interests | 20 | ||
Section 4.3 | Additional Funds and Capital Contributions | 22 | ||
Section 4.4 | Stock Option Plans | 23 | ||
Section 4.5 | Dividend Reinvestment Plan, Stock Incentive Plan or Other Plan | 24 | ||
Section 4.6 | No Interest; No Return | 24 | ||
Section 4.7 | Conversion or Redemption of Capital Shares | 24 | ||
Section 4.8 | Other Contribution Provisions | 25 | ||
Section 4.9 | Excluded Properties | 25 | ||
ARTICLE 5 DISTRIBUTIONS |
|
25 |
||
Section 5.1 | Requirement and Characterization of Distributions | 25 | ||
Section 5.2 | Distributions in Kind | 26 | ||
Section 5.3 | Amounts Withheld | 26 | ||
Section 5.4 | Distributions Upon Liquidation | 26 | ||
Section 5.5 | Distributions to Reflect Additional Partnership Units | 26 | ||
Section 5.6 | Restricted Distributions | 26 | ||
ARTICLE 6 ALLOCATIONS |
|
26 |
||
Section 6.1 | Timing and Amount of Allocations of Net Income and Net Loss | 26 | ||
Section 6.2 | General Allocations | 27 | ||
Section 6.3 | Additional Allocation Provisions | 27 | ||
Section 6.4 | Tax Allocations | 30 | ||
i
ARTICLE 7 MANAGEMENT AND OPERATIONS OF BUSINESS |
|
30 |
||
Section 7.1 | Management | 30 | ||
Section 7.2 | Certificate of Limited Partnership | 33 | ||
Section 7.3 | Restrictions on Managing General Partner's Authority | 33 | ||
Section 7.4 | Reimbursement of the Managing General Partner and the Special Limited Partner | 35 | ||
Section 7.5 | Outside Activities of the Managing General Partner and the Special Limited Partner | 35 | ||
Section 7.6 | Transactions with Affiliates | 36 | ||
Section 7.7 | Indemnification | 37 | ||
Section 7.8 | Liability of the Managing General Partner and the Special Limited Partner | 39 | ||
Section 7.9 | Other Matters Concerning the Managing General Partner and the Special Limited Partner | 40 | ||
Section 7.10 | Title to Partnership Assets | 41 | ||
Section 7.11 | Reliance by Third Parties | 41 | ||
ARTICLE 8 RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS |
|
42 |
||
Section 8.1 | Limitation of Liability | 42 | ||
Section 8.2 | Management of Business | 42 | ||
Section 8.3 | Outside Activities of Limited Partners | 42 | ||
Section 8.4 | Return of Capital | 43 | ||
Section 8.5 | Rights of Limited Partners Relating to the Partnership | 43 | ||
Section 8.6 | Partnership Right to Call Limited Partner Interests | 43 | ||
ARTICLE 9 BOOKS, RECORDS, ACCOUNTING AND REPORTS |
|
44 |
||
Section 9.1 | Records and Accounting | 44 | ||
Section 9.2 | Partnership Year | 44 | ||
Section 9.3 | Reports | 44 | ||
ARTICLE 10 TAX MATTERS |
|
45 |
||
Section 10.1 | Preparation of Tax Returns | 45 | ||
Section 10.2 | Tax Elections | 45 | ||
Section 10.3 | Tax Matters Partner | 45 | ||
Section 10.4 | Withholding | 46 | ||
Section 10.5 | Organizational Expenses | 47 | ||
ARTICLE 11 PARTNER TRANSFERS AND WITHDRAWALS |
|
47 |
||
Section 11.1 | Transfer | 47 | ||
Section 11.2 | Transfer of General Partner's Partnership Interest | 48 | ||
Section 11.3 | Limited Partners' Rights to Transfer | 48 | ||
Section 11.4 | Substituted Limited Partners | 51 | ||
Section 11.5 | Assignees | 52 | ||
Section 11.6 | General Provisions | 52 | ||
ii
ARTICLE 12 ADMISSION OF PARTNERS |
|
53 |
||
Section 12.1 | Admission of Successor Managing General Partner and Additional General Partners | 53 | ||
Section 12.2 | Admission of Additional Limited Partners | 54 | ||
Section 12.3 | Amendment of Agreement and Certificate of Limited Partnership | 54 | ||
Section 12.4 | Limit on Number of Partners | 55 | ||
Section 12.5 | Admission | 55 | ||
ARTICLE 13 DISSOLUTION, LIQUIDATION AND TERMINATION |
|
55 |
||
Section 13.1 | Dissolution | 55 | ||
Section 13.2 | Winding Up | 55 | ||
Section 13.3 | Deemed Contribution and Distribution | 57 | ||
Section 13.4 | Rights of Holders | 57 | ||
Section 13.5 | Notice of Dissolution | 57 | ||
Section 13.6 | Cancellation of Certificate of Limited Partnership | 57 | ||
Section 13.7 | Reasonable Time for Winding-Up | 58 | ||
ARTICLE 14 PROCEDURES FOR ACTIONS AND CONSENTS OF PARTNERS; AMENDMENTS; MEETINGS |
|
58 |
||
Section 14.1 | Procedures for Actions and Consents of Partners | 58 | ||
Section 14.2 | Amendments | 58 | ||
Section 14.3 | Meetings of the Partners | 58 | ||
ARTICLE 15 GENERAL PROVISIONS |
|
59 |
||
Section 15.1 | Redemption Rights of Qualifying Parties | 59 | ||
Section 15.2 | Addresses and Notice | 62 | ||
Section 15.3 | Titles and Captions | 63 | ||
Section 15.4 | Pronouns and Plurals | 63 | ||
Section 15.5 | Further Action | 63 | ||
Section 15.6 | Binding Effect | 63 | ||
Section 15.7 | Waiver | 63 | ||
Section 15.8 | Counterparts | 63 | ||
Section 15.9 | Applicable Law; Consent to Jurisdiction; Waiver of Jury Trial | 63 | ||
Section 15.10 | Entire Agreement | 64 | ||
Section 15.11 | Invalidity of Provisions | 64 | ||
Section 15.12 | Limitation to Preserve REIT Status | 64 | ||
Section 15.13 | REIT Restrictions | 65 | ||
Section 15.14 | No Partition | 65 | ||
Section 15.15 | No Third-Party Rights Created Hereby | 65 | ||
Section 15.16 | No Rights as Shareholders | 66 |
iii
Exhibits List
|
|
|
|
---|---|---|---|
Exhibit A | PARTNERS AND PARTNERSHIP UNITS | A-1 | |
Exhibit B |
EXAMPLES REGARDING ADJUSTMENT FACTOR |
|
B-1 |
Exhibit C |
LIST OF EXCLUDED PROPERTIES |
|
C-1 |
Exhibit D |
NOTICE OF REDEMPTION |
|
D-1 |
iv
AGREEMENT OF LIMITED PARTNERSHIP
OF DOUGLAS EMMETT PROPERTIES, LP
THIS AGREEMENT OF LIMITED PARTNERSHIP OF DOUGLAS EMMETT PROPERTIES, LP, dated as of [ ], 2006, is made and entered into by and among DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, DOUGLAS EMMETT, INC., a Maryland corporation, and any additional limited partner that is admitted from time to time to the Partnership and listed on Exhibit A attached hereto.
WHEREAS, a Certificate of Limited Partnership of the Partnership was filed in the office of the Secretary of State of the State of Delaware on July 25, 2005 (the " Formation Date "); and
WHEREAS, the Partners (as hereinafter defined) desire to enter into this Agreement (as hereinafter defined);
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINED TERMS
The following definitions shall be for all purposes, unless otherwise clearly indicated to the contrary, applied to the terms used in this Agreement:
" Act " means the Delaware Revised Uniform Limited Partnership Act, 6 Del.C. § 17-101 et. seq. , as it may be amended from time to time, and any successor to such statute.
" Actions " has the meaning set forth in Section 7.7 hereof.
" Additional Funds " has the meaning set forth in Section 4.3.A hereof.
" Additional General Partner " means a Person who is admitted to the Partnership as a General Partner pursuant to Section 4.2 and Section 12.1 hereof and who is shown as such on the books and records of the Partnership.
" Additional Limited Partner " means a Person who is admitted to the Partnership as a Limited Partner pursuant to Section 4.2 and Section 12.2 hereof and who is shown as such on the books and records of the Partnership.
" Adjusted Available Cash " means, as of any date of determination, the sum of Available Cash and REIT Available Cash.
" Adjusted Capital Account Deficit " means, with respect to any Partner, the deficit balance, if any, in such Person's Capital Account as of the end of the relevant Partnership Year, after giving effect to the following adjustments:
(i) decrease such deficit by any amounts that such Person is obligated to restore pursuant to this Agreement or by operation of law upon liquidation of such Partner's Partnership Interest or that such Person is deemed to be obligated to restore pursuant to the penultimate sentence of each of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and
(ii) increase such deficit by the items described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
The foregoing definition of "Adjusted Capital Account Deficit" is intended to comply with the provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
" Adjustment Factor " means 1.0; provided, however, that in the event that:
(i) the Special Limited Partner (a) declares or pays a dividend on its outstanding REIT Shares in REIT Shares or makes a distribution to all holders of its outstanding REIT Shares in REIT Shares,
(b) splits or subdivides its outstanding REIT Shares or (c) effects a reverse stock split or otherwise combines its outstanding REIT Shares into a smaller number of REIT Shares, the Adjustment Factor shall be adjusted by multiplying the Adjustment Factor previously in effect by a fraction, (i) the numerator of which shall be the number of REIT Shares issued and outstanding on the record date for such dividend, distribution, split, subdivision, reverse split or combination (assuming for such purposes that such dividend, distribution, split, subdivision, reverse split or combination has occurred as of such time) and (ii) the denominator of which shall be the actual number of REIT Shares (determined without the above assumption) issued and outstanding on the record date for such dividend, distribution, split, subdivision, reverse split or combination;
(ii) the Special Limited Partner distributes any rights, options or warrants to all holders of its REIT Shares to subscribe for or to purchase or to otherwise acquire REIT Shares, or other securities or rights convertible into, exchangeable for or exercisable for REIT Shares (other than REIT Shares issuable pursuant to a Qualified DRIP), at a price per share less than the Value of a REIT Share on the record date for such distribution (each a " Distributed Right "), then the Adjustment Factor shall be adjusted by multiplying the Adjustment Factor previously in effect by a fraction (a) the numerator of which shall be the number of REIT Shares issued and outstanding on the record date plus the maximum number of REIT Shares purchasable under such Distributed Rights and (b) the denominator of which shall be the number of REIT Shares issued and outstanding on the record date plus a fraction (1) the numerator of which is the maximum number of REIT Shares purchasable under such Distributed Rights times the minimum purchase price per REIT Share under such Distributed Rights and (2) the denominator of which is the Value of a REIT Share as of the record date; provided, however, that, if any such Distributed Rights expire or become no longer exercisable, then the Adjustment Factor shall be adjusted, effective retroactive to the date of distribution of the Distributed Rights, to reflect a reduced maximum number of REIT Shares or any change in the minimum purchase price for the purposes of the above fraction; and
(iii) the Special Limited Partner shall, by dividend or otherwise, distribute to all holders of its REIT Shares evidences of its indebtedness or assets (including securities, but excluding any dividend or distribution referred to in subsection (i) above), which evidences of indebtedness or assets relate to assets not received by the General Partner and/or any Special Limited Partner pursuant to a pro rata distribution by the Partnership, then the Adjustment Factor shall be adjusted to equal the amount determined by multiplying the Adjustment Factor in effect immediately prior to the close of business as of the record date by a fraction (a) the numerator of which shall be such Value of a REIT Share as of the record date and (b) the denominator of which shall be the Value of a REIT Share as of the record date less the then fair market value (as determined by the Managing General Partner, whose determination shall be conclusive) of the portion of the evidences of indebtedness or assets so distributed applicable to one REIT Share.
Any adjustments to the Adjustment Factor shall become effective immediately after such event, retroactive to the record date, if any, for such event. For illustrative purposes, examples of adjustments to the Adjustment Factor are set forth on Exhibit B attached hereto.
" Affiliate " means, with respect to any Person, any Person directly or indirectly controlling or controlled by or under common control with such Person. For the purposes of this definition, " control " when used with respect to any Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise, and the terms "controlling" and "controlled" have meanings correlative to the foregoing.
" Affiliated REIT " means the Special Limited Partner and any Affiliate of the Special Limited Partner that has elected to be taxed as a REIT under the Code.
2
" Agreement " means this Limited Partnership Agreement of Douglas Emmett Properties, LP, as now or hereafter amended, restated, modified, supplemented or replaced.
" Applicable Percentage " has the meaning set forth in Section 15.1.B hereof.
" Appraisal " means, with respect to any assets, the written opinion of an independent third party experienced in the valuation of similar assets, selected by the Managing General Partner in good faith. Such opinion may be in the form of an opinion by such independent third party that the value for such property or asset as set by the Managing General Partner is fair, from a financial point of view, to the Partnership.
" Assignee " means a Person to whom one or more Partnership Common Units have been Transferred in a manner permitted under this Agreement, but who has not become a Substituted Limited Partner, and who has the rights set forth in Section 11.5 hereof.
" Available Cash " means, with respect to any period for which such calculation is being made,
(i) the sum, without duplication, of:
(1) the Partnership's Net Income or Net Loss (as the case may be) for such period,
(2) Depreciation and all other noncash charges to the extent deducted in determining Net Income or Net Loss for such period,
(3) the amount of any reduction in reserves of the Partnership referred to in clause (ii)(6) below (including, without limitation, reductions resulting because the Managing General Partner determines such amounts are no longer necessary),
(4) the excess, if any, of the net cash proceeds from the sale, exchange, disposition, financing or refinancing of Partnership property for such period over the gain (or loss, as the case may be) recognized from such sale, exchange, disposition, financing or refinancing during such period (excluding Terminating Capital Transactions), and
(5) all other cash received (including amounts previously accrued as Net Income and amounts of deferred income) or any net amounts borrowed by the Partnership for such period that was not included in determining Net Income or Net Loss for such period;
(ii) less the sum, without duplication, of:
(1) all principal debt payments made during such period by the Partnership,
(2) capital expenditures made by the Partnership during such period,
(3) investments in any entity (including loans made thereto) to the extent that such investments are not otherwise described in clause (ii)(1) or clause (ii)(2) above,
(4) all other expenditures and payments not deducted in determining Net Income or Net Loss for such period (including amounts paid in respect of expenses previously accrued),
(5) any amount included in determining Net Income or Net Loss for such period that was not received by the Partnership during such period,
(6) the amount of any increase in reserves (including, without limitation, working capital reserves) established during such period that the Managing General Partner determines are necessary or appropriate in its sole and absolute discretion,
(7) any amount distributed or paid in redemption of any Limited Partner Interest or Partnership Units, including, without limitation, any Cash Amount paid, and
3
(8) the amount of any working capital accounts and other cash or similar balances which the Managing General Partner determines to be necessary or appropriate in its sole and absolute discretion.
Notwithstanding the foregoing, Available Cash shall not include (a) any cash received or reductions in reserves, or take into account any disbursements made, or reserves established, after dissolution and the commencement of the liquidation and winding up of the Partnership or (b) any Capital Contributions, whenever received or any payments, expenditures or investments made with such Capital Contributions.
" Business Day " means any day except a Saturday, Sunday or other day on which commercial banks in The City of New York, New York or Los Angeles, California are authorized by law to close.
" Capital Account " means, with respect to any Partner, the Capital Account maintained by the Managing General Partner for such Partner on the Partnership's books and records in accordance with the following provisions:
(i) To each Partner's Capital Account, there shall be added such Partner's Capital Contributions, such Partner's distributive share of Net Income and any items in the nature of income or gain that are specially allocated pursuant to Section 6.3 hereof, and the principal amount of any Partnership liabilities assumed by such Partner or that are secured by any property distributed to such Partner.
(ii) From each Partner's Capital Account, there shall be subtracted the amount of cash and the Gross Asset Value of any property distributed to such Partner pursuant to any provision of this Agreement, such Partner's distributive share of Net Losses and any items in the nature of expenses or losses that are specially allocated pursuant to Section 6.3 hereof, and the principal amount of any liabilities of such Partner assumed by the Partnership or that are secured by any property contributed by such Partner to the Partnership.
(iii) In the event any interest in the Partnership is Transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Partner's Capital Account of the transferor to the extent that it relates to the Transferred interest.
(iv) In determining the principal amount of any liability for purposes of subsections (i) and (ii) hereof, there shall be taken into account Code Section 752(c) and any other applicable provisions of the Code and Regulations.
(v) The provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Regulations promulgated under Section 704 of the Code, and shall be interpreted and applied in a manner consistent with such Regulations. If the Managing General Partner shall determine that it is prudent to modify the manner in which the Capital Accounts are maintained in order to comply with such Regulations, the Managing General Partner may make such modification provided that such modification will not have any effect on the amounts distributable to any Partner or the timing of any distribution to such Partner without such Person's consent. The Managing General Partner also shall (a) make any adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of the Partners and the amount of Partnership capital reflected on the Partnership's balance sheet, as computed for book purposes, in accordance with Regulations Section 1.704-1(b)(2)(iv)(q) and (b) make any appropriate modifications in the event that unanticipated events might otherwise cause this Agreement not to comply with Regulations Section 1.704-1(b) or Section 1.704-2; provided, however, that such changes shall not reduce amounts otherwise distributable to the Partner as current cash distributions or as distributions on termination of the Partnership or affect the timing of any distribution to the Partner.
" Capital Contribution " means, with respect to any Partner, the amount of money and the initial Gross Asset Value of any Contributed Property, adjusted to the extent provided in the definition of
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"Capital Account" above, that such Partner contributes to the Partnership pursuant to Section 4.1, 4.2, or 4.3 hereof or is deemed to contribute pursuant to Section 4.4 or 4.5 hereof;
" Capital Share " means a share of any capital stock of the Special Limited Partner now or hereafter authorized or reclassified other than REIT Share.
" Cash Amount " means an amount of cash equal to the product of (i) the Value of a REIT Share and (ii) the REIT Shares Amount determined as of the applicable Valuation Date.
" Certificate " means the Certificate of Limited Partnership of the Partnership filed in the office of the Secretary of State of the State of Delaware, as amended from time to time in accordance with the terms hereof and the Act.
" Charity " means an entity described in Section 501(c)(3) of the Code or any trust all the beneficiaries of which are such entities.
" Charter " means the Certificate of Incorporation of the Special Limited Partner filed with the Secretary of State of the State of Maryland on June 28, 2005, as amended, supplemented or restated from time to time.
" Closing Price " has the meaning set forth in the definition of "Value."
" Code " means the Internal Revenue Code of 1986, as amended and in effect from time to time or any successor statute thereto, as interpreted by the applicable Regulations thereunder. Any reference herein to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of future law.
" Consent " means the consent to, approval of, or vote in favor of a proposed action by a Partner given in accordance with Article 14 hereof.
" Consent of the Partners " means the Consent of the General Partner and Consent of a Majority in Interest of the Partners, which Consent shall be obtained prior to the taking of any action for which it is required by this Agreement and, except as otherwise provided in this Agreement, may be given or withheld by the General Partner or the Limited Partners in their sole and absolute discretion; provided, however, that if any such action affects only certain classes or series of Partnership Units, "Consent of the Partners" means the Consent of a Majority in Interest of the affected classes or series of Partnership Units.
" Consent of the Limited Partners " means the Consent of a Majority in Interest of the Limited Partners, which Consent shall be obtained prior to the taking of any action for which it is required by this Agreement and, except as otherwise provided in this Agreement, may be given or withheld each Limited Partner in its sole and absolute discretion.
" Contributed Property " means each Property or other asset, in such form as may be permitted by the Act, but excluding cash, contributed or deemed contributed to the Partnership (or deemed contributed by the Partnership to a "new" partnership pursuant to Code Section 708).
" Controlled Entity " means, as to any Partner, (a) any corporation more than fifty percent (50%) of the outstanding voting stock of which is owned by such Partner or such Partner's Family Members or Affiliates, other Partners or other Partners' Family Members or Affiliates, (b) any trust, whether or not revocable, of which such Partner or such Partner's Family Members or Affiliates are the sole beneficiaries, (c) any partnership of which such Partner or other Partners or their respective Affiliates are the managing partners and in which such Partner, such Partner's Family Members or Affiliates, other Partners or other Partners' Family Members or Affiliates hold partnership interests representing at least twenty-five percent (25%) of such partnership's capital and profits and (d) any limited liability company of which such Partner, other Partners or their respective Affiliates are the managers and in which such Partner, such Partner's Family Members or Affiliates, other Partners or such other Partners'
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Family Members or Affiliates hold membership interests representing at least twenty-five percent (25%) of such limited liability company's capital and profits.
" Cut-Off Date " means the fifth (5th) Business Day after the Managing General Partner's receipt of a Notice of Redemption.
" Debt " means, as to any Person, as of any date of determination: (i) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services; (ii) all amounts owed by such Person to banks or other Persons in respect of reimbursement obligations under letters of credit, surety bonds and other similar instruments guaranteeing payment or other performance of obligations by such Person; (iii) all indebtedness for borrowed money or for the deferred purchase price of property or services secured by any lien on any property owned by such Person, to the extent attributable to such Person's interest in such property, even though such Person has not assumed or become liable for the payment thereof; and (iv) lease obligations of such Person that, in accordance with generally accepted accounting principles, should be capitalized.
" Depreciation " means, for each Partnership Year or other applicable period, an amount equal to the Federal income tax depreciation, amortization or other cost recovery deduction allowable with respect to an asset for such year or other period, except that if the Gross Asset Value of an asset differs from its adjusted basis for Federal income tax purposes at the beginning of such year or period, Depreciation shall be in an amount that bears the same ratio to such beginning Gross Asset Value as the Federal income tax depreciation, amortization or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided, however, that if the Federal income tax depreciation, amortization or other cost recovery deduction for such year or period is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Managing General Partner.
" Distributed Right " has the meaning set forth in the definition of "Adjustment Factor."
" ERISA " means the Employee Retirement Income Security Act of 1974, as amended.
" Exchange Act " means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
" Excluded Property " means those assets listed on Exhibit C attached hereto, as Exhibit C may, from time to time, be amended by the Managing General Partner, together with any other asset now or hereafter held directly by the Special Limited Partner or any wholly-owned Subsidiary of the Special Limited Partner (other than the stock of any wholly-owned Subsidiary and interests in the Partnership), in each case to the extent such asset has not theretofore been contributed to the Partnership.
" Family Members " means, as to a Person that is an individual, such Person's spouse, ancestors, descendants (whether by blood or by adoption or step-descendants by marriage), brothers and sisters, nieces and nephews and inter vivos or testamentary trusts of which only such Person and his or her spouse, ancestors, descendants (whether by blood or by adoption or step-descendants by marriage), brothers and sisters and nieces and nephews are beneficiaries.
" Formation Date " has the meaning set forth in the Recitals hereof.
" Fourteen-Month Period " means (a) as to an Original Limited Partner or any successor-in-interest that is a Qualifying Party, a fourteen-month period ending on the day before the first fourteen-month anniversary of the date of this Agreement or on the day before a subsequent anniversary thereof and (b) as to any other Qualifying Party, a fourteen-month period ending on the day before the first fourteen-month anniversary of such Qualifying Party's first becoming a Holder of Partnership Common Units, or on the day before a subsequent anniversary thereof; provided, however, that the Managing General Partner may, in its sole and absolute discretion, by written agreement with a Qualifying Party, shorten or lengthen the first Fourteen-Month Period to a period of shorter or longer than fourteen
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(14) months with respect to a Qualifying Party other than an Original Limited Partner or successor-in-interest.
" Funding Debt " means any Debt incurred by or on behalf of the General Partner or the Special Limited Partner for the purpose of providing funds to the Partnership.
" General Partner " means the Managing General Partner, and its successors and assigns, in its capacity as a general partner of the Partnership and any Additional General Partner.
" General Partner Interest " means the Partnership Interest held by a General Partner hereof, which Partnership Interest is an interest as a general partner under the Act. A General Partner Interest may be expressed as a number of Partnership Common Units, Partnership Preferred Units or any other Partnership Units.
" General Partner Loan " has the meaning set forth in Section 4.3.D hereof.
" Gross Asset Value " means, with respect to any asset, the asset's adjusted basis for Federal income tax purposes, except as follows:
(a) The initial Gross Asset Value of any asset contributed by a Partner to the Partnership shall be the gross fair market value of such asset as determined by the Managing General Partner and agreed to by the contributing Person.
(b) The Gross Asset Values of all Partnership assets immediately prior to the occurrence of any event described in clause (i), clause (ii), clause (iii), clause (iv) or clause (v) hereof shall be adjusted to equal their respective gross fair market values, as determined by the Managing General Partner using such reasonable method of valuation as it may adopt, as of the following times:
(i) the acquisition of an additional interest in the Partnership (other than in connection with the execution of this Agreement but including, without limitation, acquisitions pursuant to Section 4.2 hereof or contributions or deemed contributions by the General Partner pursuant to Section 4.2 hereof) by a new or existing Partner in exchange for more than a de minimis Capital Contribution, if the Managing General Partner reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Partners in the Partnership;
(ii) the distribution by the Partnership to a Partner of more than a de minimis amount of Partnership property as consideration for an interest in the Partnership if the Managing General Partner reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Partners in the Partnership;
(iii) the liquidation of the Partnership within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g);
(iv) upon the admission of a successor Managing General Partner pursuant to Section 12.1 hereof; and
(v) at such other times as the Managing General Partner shall reasonably determine necessary or advisable in order to comply with Regulations Sections 1.704-1(b) and 1.704-2.
(c) The Gross Asset Value of any Partnership asset distributed to a Partner shall be the gross fair market value of such asset on the date of distribution as determined by the distributee and the Managing General Partner; provided, however, that if the distributee is the Managing General Partner or if the distributee and the Managing General Partner cannot agree on such a determination, such gross fair market value shall be determined by Appraisal.
(d) The Gross Asset Values of Partnership assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining
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Capital Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m); provided, however, that Gross Asset Values shall not be adjusted pursuant to this subsection (d) to the extent that the Managing General Partner reasonably determines that an adjustment pursuant to subsection (b) above is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this subsection (d).
(e) If the Gross Asset Value of a Partnership asset has been determined or adjusted pursuant to subsection (a), subsection (b) or subsection (d) above, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Net Income and Net Losses.
" Holder " means either (a) a Partner or (b) an Assignee owning a Partnership Unit.
" Incapacity " or " Incapacitated " means: (i) as to any Partner who is an individual, death, total physical disability or entry by a court of competent jurisdiction adjudicating such Partner incompetent to manage his or her person or his or her estate; (ii) as to any Partner that is a corporation or limited liability company, the filing of a certificate of dissolution, or its equivalent, for the corporation or the revocation of its charter; (iii) as to any Partner that is a partnership, the dissolution and commencement of winding up of the partnership; (iv) as to any Partner that is an estate, the distribution by the fiduciary of the estate's entire interest in the Partnership; (v) as to any trustee of a trust that is a Partner, the termination of the trust (but not the substitution of a new trustee); or (vi) as to any Partner, the bankruptcy of such Partner. For purposes of this definition, bankruptcy of a Partner shall be deemed to have occurred when (a) the Partner commences a voluntary proceeding seeking liquidation, reorganization or other relief of or against such Partner under any bankruptcy, insolvency or other similar law now or hereafter in effect, (b) the Partner is adjudged as bankrupt or insolvent, or a final and nonappealable order for relief under any bankruptcy, insolvency or similar law now or hereafter in effect has been entered against the Partner, (c) the Partner executes and delivers a general assignment for the benefit of the Partner's creditors, (d) the Partner files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against the Partner in any proceeding of the nature described in clause (b) above, (e) the Partner seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator for the Partner or for all or any substantial part of the Partner's properties, (f) any proceeding seeking liquidation, reorganization or other relief under any bankruptcy, insolvency or other similar law now or hereafter in effect has not been dismissed within one hundred twenty (120) days after the commencement thereof, (g) the appointment without the Partner's consent or acquiescence of a trustee, receiver or liquidator has not been vacated or stayed within ninety (90) days of such appointment, or (h) an appointment referred to in clause (g) above is not vacated within ninety (90) days after the expiration of any such stay.
" Indemnitee " means (i) any Person made a party to a proceeding by reason of its status as (a) the General Partner or the Special Limited Partner or (b) a director or member of the General Partner or the Special Limited Partner or an officer or employee of the Partnership, the Special Limited Partner or the General Partner and (ii) such other Persons (including Affiliates of the General Partner, the Special Limited Partner or the Partnership) as the Managing General Partner may designate from time to time (whether before or after the event giving rise to potential liability), in its sole and absolute discretion.
" IRS " means the United States Internal Revenue Service.
" Legal Requirements " has the meaning set forth in Section 7.3.C hereof.
" Limited Partner " means the Special Limited Partner and any Additional Limited partner that is admitted from time to time to the Partnership and is listed on Exhibit A attached hereto, as such Exhibit A may be amended from time to time, and any Substituted Limited Partner or Additional
8
Limited Partner, each shown as such in the books and records of the Partnership, in such Person's capacity as a limited partner of the Partnership.
" Limited Partner Interest " means a Partnership Interest of a Limited Partner in the Partnership representing a fractional part of the Partnership Interests of all Limited Partners and includes any and all benefits to which the holder of such a Partnership Interest may be entitled as provided in this Agreement, together with all obligations of such Person to comply with the terms and provisions of this Agreement. A Limited Partner Interest may be expressed as a number of Partnership Common Units, Partnership Preferred Units or other Partnership Units.
" Liquidating Event " has the meaning set forth in Section 13.1 hereof.
" Liquidator " has the meaning set forth in Section 13.2.A hereof.
" Majority in Interest of the Partners " means Partners holding in the aggregate Percentage Interests that are greater than fifty percent (50%) of the aggregate Percentage Interests of all Partners entitled to Consent to or withhold Consent from a proposed action.
" Majority in Interest of the Limited Partners " means Limited Partners (other than the Special Limited Partner and any Limited Partner fifty percent (50%) or more of whose equity is owned, directly or indirectly, by the Managing General Partner or Special Limited Partner) holding in the aggregate Percentage Interests that are greater than fifty percent (50%) of the aggregate Percentage Interests of all such Limited Partners entitled to Consent to or withhold Consent from a proposed action.
" Managing General Partner " means Douglas Emmett Management, Inc., a Delaware corporation, and its successors and assigns, as the managing general partner of the Partnership in their capacities as managing general partner of the Partnership.
" Market Price " has the meaning set forth in the definition of "Value."
" Net Income " or " Net Loss " means, for each Partnership Year of the Partnership, an amount equal to the Partnership's taxable income or loss for such year, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments:
(a) Any income of the Partnership that is exempt from Federal income tax and not otherwise taken into account in computing Net Income (or Net Loss) pursuant to this definition of "Net Income" or "Net Loss" shall be added to (or subtracted from, as the case may be) such taxable income (or loss);
(b) Any expenditure of the Partnership described in Code Section 705(a)(2)(B) or treated as a Code Section 705(a)(2)(B) expenditure pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Net Income (or Net Loss) pursuant to this definition of "Net Income" or "Net Loss," shall be subtracted from (or added to, as the case may be) such taxable income (or loss);
(c) In the event the Gross Asset Value of any Partnership asset is adjusted pursuant to subsection (b) or subsection (c) of the definition of "Gross Asset Value," the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Net Income or Net Loss;
(d) Gain or loss resulting from any disposition of property with respect to which gain or loss is recognized for Federal income tax purposes shall be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Gross Asset Value;
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(e) In lieu of the depreciation, amortization and other cost recovery deductions that would otherwise be taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Partnership Year;
(f) To the extent that an adjustment to the adjusted tax basis of any Partnership asset pursuant to Code Section 734(b) or Code Section 743(b) is required pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Partner's interest in the Partnership, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of the asset and shall be taken into account for purposes of computing Net Income or Net Loss; and
(g) Notwithstanding any other provision of this definition of "Net Income" or "Net Loss," any item that is specially allocated pursuant to Section 6.3 hereof shall not be taken into account in computing Net Income or Net Loss. The amounts of the items of Partnership income, gain, loss or deduction available to be specially allocated pursuant to Section 6.3 hereof shall be determined by applying rules analogous to those set forth in this definition of "Net Income" or "Net Loss."
" New Securities " means (i) any rights, options, warrants or convertible or exchangeable securities having the right to subscribe for or purchase REIT Shares or Preferred Shares, excluding grants under the Stock Option Plans, or (ii) any Debt issued by the Special Limited Partner that provides any of the rights described in clause (i).
" Nonrecourse Deductions " has the meaning set forth in Regulations Section 1.704-2(b)(1), and the amount of Nonrecourse Deductions for a Partnership Year shall be determined in accordance with the rules of Regulations Section 1.704-2(c).
" Nonrecourse Liability " has the meaning set forth in Regulations Section 1.752-1(a)(2).
" Notice of Redemption " means the Notice of Redemption substantially in the form of Exhibit D attached to this Agreement.
" Optionee " means a Person to whom a stock option is granted under any Stock Option Plan.
" Original Limited Partners " means the Persons listed as the Limited Partners on Exhibit A originally attached to this Agreement, without regard to any amendment thereto, and does not include any Assignee or other transferee, including, without limitation, any Substituted Limited Partner succeeding to all or any part of the Partnership Interest of any such Person.
" Ownership Limit " means the applicable restriction or restrictions on ownership of shares of the Special Limited Partner imposed under the Charter.
" Partner " means the General Partner or a Limited Partner, and " Partners " means the General Partner and the Limited Partners.
" Partner Minimum Gain " means an amount, with respect to each Partner Nonrecourse Debt, equal to the Partnership Minimum Gain that would result if such Partner Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Regulations Section 1.704-2(i)(3).
" Partner Nonrecourse Debt " has the meaning set forth in Regulations Section 1.704-2(b)(4).
" Partner Nonrecourse Deductions " has the meaning set forth in Regulations Section 1.704-2(i)(2), and the amount of Partner Nonrecourse Deductions with respect to a Partner Nonrecourse Debt for a Partnership Year shall be determined in accordance with the rules of Regulations Section 1.704-2(i)(2).
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" Partnership " means the limited partnership formed and continued under the Act and pursuant to this Agreement, and any successor thereto.
" Partnership Common Unit " means a fractional, undivided share of the Partnership Interests of all Partners issued pursuant to Sections 4.1 and 4.2 hereof, but does not include any Partnership Preferred Unit or any other Partnership Unit specified in a Partnership Unit Designation as being other than a Partnership Common Unit; provided, however, that the General Partner Interest and the Limited Partner Interests shall have the differences in rights and privileges as specified in this Agreement.
" Partnership Employee " means an employee of the Partnership or an employee of a Subsidiary of the Partnership, if any, acting in such capacity.
" Partnership Interest " means an ownership interest in the Partnership held by either a Limited Partner or a General Partner and includes any and all benefits to which the holder of such a Partnership Interest may be entitled as provided in this Agreement, together with all obligations of such Person to comply with the terms and provisions of this Agreement. A Partnership Interest may be expressed as a number of Partnership Common Units, Partnership Preferred Units or other Partnership Units.
" Partnership Minimum Gain " has the meaning set forth in Regulations Section 1.704-2(b)(2), and the amount of Partnership Minimum Gain, as well as any net increase or decrease in Partnership Minimum Gain, for a Partnership Year shall be determined in accordance with the rules of Regulations Section 1.704-2(d).
" Partnership Preferred Unit " means a fractional, undivided share of the Partnership Interests that the Managing General Partner has authorized pursuant to Section 4.1 or Section 4.2 or Section 4.3 hereof that has distribution rights, or rights upon liquidation, winding up and dissolution, that are superior or prior to the Partnership Common Units.
" Partnership Record Date " means the record date established by the Managing General Partner for the distribution of Available Cash pursuant to Section 5.1 hereof, which record date shall generally be the same as the record date established by the Special Limited Partner for a distribution to its shareholders of some or all of its portion of such distribution.
" Partnership Unit " means a Partnership Common Unit, a Partnership Preferred Unit, a Performance Unit or any other partnership unit or fractional, undivided share of the Partnership Interests that the Managing General Partner has authorized pursuant to Section 4.1, Section 4.2 or Section 4.3 hereof.
" Partnership Unit Designation " shall have the meaning set forth in Section 4.2.A hereof.
" Partnership Year " means the fiscal year of the Partnership, which shall be the calendar year.
" Percentage Interest " means, as to each Partner, its interest in the Partnership Units, as determined by dividing the Partnership Units owned by such Partner by the aggregate number of Partnership Units then outstanding.
" Performance Unit " has the meaning set forth in Section 4.2.B hereof.
" Permitted Transfer " has the meaning set forth in Section 11.3.A hereof.
" Person " means an individual or a corporation, partnership, trust, unincorporated organization, association, limited liability company or other entity.
" Pledge " has the meaning set forth in Section 11.3.A hereof.
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" Preferred Share " means a share of capital stock of the Special Limited Partner now or hereafter authorized or reclassified that has dividend rights, or rights upon liquidation, winding up and dissolution, that are superior or prior to the REIT Shares.
" Properties " means any assets and property of the Partnership such as, but not limited to, interests in real property and personal property, including, without limitation, fee interests, interests in ground leases, easements and rights of way, interests in limited liability companies, joint ventures or partnerships, interests in mortgages, and Debt instruments as the Partnership may hold from time to time and " Property " means any one such asset or property.
" Publicly Traded " means having common equity securities listed or admitted to trading on any U.S. national securities exchange or the NASDAQ Stock Market's National Market System.
" Qualified DRIP " means a dividend reinvestment plan of the Special Limited Partner that permits participants to acquire REIT Shares using the proceeds of dividends paid by the Special Limited Partner; provided, however, that if such shares are offered at a discount, such discount must (i) be designed to pass along to the shareholders of the Special Limited Partner the savings enjoyed by the Special Limited Partner in connection with the avoidance of stock issuance costs, and (ii) not exceed 5% of the value of a REIT Share as computed under the terms of such dividend reinvestment plan.
" Qualified Transferee " means an "accredited investor" as defined in Rule 501 promulgated under the Securities Act.
" Qualifying Party " means (a) a Limited Partner, (b) an Additional Limited Partner, (c) an Assignee, or (d) a Person, including a lending institution as the pledgee of a Pledge, who is the transferee of a Limited Partner Interest in a Permitted Transfer; provided, however, that a Qualifying Party shall not include the Special Limited Partner.
" Redemption " has the meaning set forth in Section 15.1.A hereof.
" Regulations " means the income tax regulations under the Code, whether such regulations are in proposed, temporary or final form, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).
" Regulatory Allocations " has the meaning set forth in Section 6.3.B(viii) hereof.
" REIT " means a real estate investment trust qualifying under Code Section 856.
" REIT Available Cash " means, as of any date of determination, all amounts which would be available for distribution to the holders of REIT Shares (calculated in a manner substantially similar to the manner in which the Partnership calculates Available Cash and without regard to any distributions from or allocations by the Partnership to be made, or which have been made, to the Managing General Partner and the Special Limited Partner hereunder and without regard to any restriction on distribution imposed on the Managing General Partner by any third party).
" REIT Partner " means (a) the Special Limited Partner or any Affiliate of the Special Limited Partner to the extent such person has in place an election to qualify as a REIT and, (b) any "qualified REIT subsidiary" (within the meaning of Code Section 856(i)(2)) of any such person.
" REIT Payment " has the meaning set forth in Section 15.12 hereof.
" REIT Requirements " has the meaning set forth in Section 5.1 hereof.
" REIT Share " means a share of common stock of the Special Limited Partner, par value $.01 per share (but shall not include any additional series or class of the Special Limited Partner's common stock created after the date of this Agreement).
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" REIT Shares Amount " means a number of REIT Shares equal to the product of (a) the number of Tendered Units and (b) the Adjustment Factor; provided, however, that, in the event that the Special Limited Partner issues to all holders of REIT Shares as of a certain record date rights, options, warrants or convertible or exchangeable securities entitling the Special Limited Partner's shareholders to subscribe for or purchase REIT Shares, or any other securities or property (collectively, the " Rights "), with the record date for such Rights issuance falling within the period starting on the date of the Notice of Redemption and ending on the day immediately preceding the Specified Redemption Date, which Rights will not be distributed before the relevant Specified Redemption Date, then the REIT Shares Amount shall also include such Rights that a holder of that number of REIT Shares would be entitled to receive, expressed, where relevant hereunder, in a number of REIT Shares determined by the Special Limited Partner in good faith.
" Related Party " means, with respect to any Person, any other Person whose ownership of shares of the Special Limited Partner's capital stock would be attributed to the first such Person under Code Section 544 (as modified by Code Section 856(h)(1)(B)).
" Rights " has the meaning set forth in the definition of "REIT Shares Amount."
" SEC " means the Securities and Exchange Commission.
" Securities Act " means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
" Special Limited Partner " means Douglas Emmett, Inc., a Maryland corporation.
" Special Limited Partner Affiliate " means any other Limited Partners, from time to time, that are Affiliates of Douglas Emmett, Inc., each of which shall be designated as a "Special Limited Partner Affiliate" on Exhibit A attached hereto, as amended from time to time, and shown as such in the books and records of the Partnership.
" Special Redemption " has the meaning set forth in Section 15.1.A hereof.
" Specified Partnership Units " means, (i) with respect to each Excluded Property that is listed on Exhibit C as of the date hereof, the number of Partnership Common Units and/or Partnership Preferred Units (as the case may be) set forth opposite such Excluded Property on E xhibit C, and (ii) with respect to each Excluded Property that is added to Exhibit C from and after the date hereof, the amount of Partnership Common Units and/or Partnership Preferred Units (as the case may be) which would have been issued to the Special Limited Partner, pursuant to Section 4.3.B and 4.2 hereof, if the Special Limited Partner had contributed such Excluded Property on the later to occur of (a) the date of issuance of any Partnership Unit to any Person that is not an Affiliate of the Special Limited Partner and (b) the date that such asset was acquired by the Special Limited Partner or a wholly-owned Subsidiary of the Special Limited Partner, in exchange for Partnership Units equal in value to the fair market value of such Excluded Property as of such date.
" Specified Redemption Date " means the tenth (10 th ) Business Day after the receipt by the Managing General Partner of a Notice of Redemption; provided, however, that no Specified Redemption Date shall occur during the first Fourteen-Month Period (except pursuant to a Special Redemption).
" Stock Option Plans " means any stock option plan now or hereafter adopted by the Partnership or the Special Limited Partner.
" Subsidiary " means, with respect to any Person, any corporation or other entity of which a majority of (i) the voting power of the voting equity securities or (ii) the outstanding equity interests is owned, directly or indirectly, by such Person; provided, however, that, with respect to the Partnership, " Subsidiary " means solely a partnership or limited liability company (taxed, for Federal income tax purposes, as a partnership and not as an association or publicly traded partnership taxable as a
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corporation, including without limitation single member limited liability companies) of which the Partnership is a member or any "taxable REIT subsidiary" in which the Partnership owns shares of stock, unless the Managing General Partner has received an unqualified opinion from independent counsel of recognized standing, or a ruling from the IRS, that the ownership of shares of stock of a corporation or other entity (other than a "taxable REIT subsidiary") will not jeopardize the Special Limited Partner's status as a REIT or any Special Limited Partner Affiliate's status as a "qualified REIT subsidiary" (within the meaning of Code Section 856(i)(2)), in which event the term " Subsidiary " shall include the corporation or other entity which is the subject of such opinion or ruling.
" Substituted Limited Partner " means a Person who is admitted as a Limited Partner to the Partnership pursuant to (i) Section 11.4 hereof or (ii) pursuant to any designation or similar document or instrument providing for the creation of a new class or series of Limited Partner Interests.
" Tax Items " has the meaning set forth in Section 6.4.A hereof.
" Tendered Units " has the meaning set forth in Section 15.1.A hereof.
" Tendering Party " has the meaning set forth in Section 15.1.A hereof.
" Terminating Capital Transaction " means any sale or other disposition of all or substantially all of the assets of the Partnership or a related series of transactions that, taken together, result in the sale or other disposition of all or substantially all of the assets of the Partnership.
" Transfer " means any sale, assignment, bequest, conveyance, devise, gift (outright or in trust), Pledge, encumbrance, hypothecation, mortgage, exchange, transfer or other disposition or act of alienation, whether voluntary, involuntary or by operation of law; provided, however, that when the term is used in Article 11 hereof, " Transfer " does not include (a) any Redemption of Partnership Common Units by the Partnership, or acquisition of Tendered Units by the Special Limited Partner, pursuant to Section 15.1 hereof or (b) any redemption of Partnership Units pursuant to any Partnership Unit Designation. The terms " Transferred " and " Transferring " have correlative meanings.
" Valuation Date " means the date of receipt by the Managing General Partner of a Notice of Redemption pursuant to Section 15.1 herein, or such other date as specified herein, or, if such date is not a Business Day, the immediately preceding Business Day.
" Value " means, on any Valuation Date with respect to a REIT Share, the average of the daily Market Prices for ten (10) consecutive trading days immediately preceding the Valuation Date (except that, as provided in Section 4.4.C. hereof, the Market Price for the trading day immediately preceding the date of exercise of a stock option under any Stock Option Plans shall be substituted for such average of daily market prices for purposes of Section 4.4 hereof). The term " Market Price " on any date means, with respect to any class or series of outstanding REIT Shares, the Closing Price for such REIT Shares on such date. The " Closing Price " on any date means the last sale price for such REIT Shares, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, for such REIT Shares, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if such REIT Shares are not listed or admitted to trading on the New York Stock Exchange, as reported on the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such REIT Shares are listed or admitted to trading or, if such REIT Shares are not listed or admitted to trading on any national securities exchange, the last quoted price, or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System or, if such system is no longer in use, the principal other automated quotation system that may then be in use or, if such REIT Shares are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in such REIT Shares selected by the Board of Directors of the Special Limited
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Partner or, in the event that no trading price is available for such REIT Shares, the fair market value of the REIT Shares, as determined in good faith by the Board of Directors of the Special Limited Partner.
In the event that the REIT Shares Amount includes Rights that a holder of REIT Shares would be entitled to receive, then the Value of such Rights shall be determined by the Special Limited Partner acting in good faith on the basis of such quotations and other information as it considers, in its reasonable judgment, appropriate.
ARTICLE 2
ORGANIZATIONAL MATTERS
Section 2.1 Formation. The Partnership is a limited partnership heretofore formed and continued pursuant to the provisions of the Act and upon the terms and subject to the conditions set forth in this Agreement. Except as expressly provided herein to the contrary, the rights and obligations of the Partners and the administration and termination of the Partnership shall be governed by the Act. The Partnership Interest of each Partner shall be personal property for all purposes.
Section 2.2 Name. The name of the Partnership is "Douglas Emmett Properties, LP" The Partnership's business may be conducted under any other name or names deemed advisable by the Managing General Partner, including the name of the Managing General Partner or any Affiliate thereof. The words "Limited Partnership," "L.P.," "Ltd." or similar words or letters shall be included in the Partnership's name where necessary for the purposes of complying with the laws of any jurisdiction that so requires. The Managing General Partner in its sole and absolute discretion may change the name of the Partnership at any time and from time to time and shall notify the Partners of such change in the next regular communication to the Partners.
Section 2.3 Registered Office and Agent; Principal Office. The address of the registered office of the Partnership in the State of Delaware is located at Corporation Service Company, 2711 Centerville Road, Suite 400, City of Wilmington, Delaware 19808 and the registered agent for service of process on the Partnership in the State of Delaware at such registered office is Corporation Service Company, 2711 Centerville Road, Suite 400, City of Wilmington, Delaware 19808. The principal office of the Partnership is located at 808 Wilshire Boulevard, Suite 200, Santa Monica, California 90401 or such other place as the Managing General Partner may from time to time designate by notice to the Limited Partners. The Partnership may maintain offices at such other place or places within or outside the State of Delaware as the Managing General Partner deems advisable.
Section 2.4 Power of Attorney.
A. Each Limited Partner and Assignee hereby irrevocably constitutes and appoints the Managing General Partner, any Liquidator, and authorized officers and attorneys-in-fact of each, and each of those acting singly, in each case with full power of substitution, as its true and lawful agent and attorney-in-fact, with full power and authority in its name, place and stead to:
(1) execute, swear to, seal, acknowledge, deliver, file and record in the appropriate public offices: (a) all certificates, documents and other instruments (including, without limitation, this Agreement and the Certificate and all amendments, supplements or restatements thereof) that the Managing General Partner or the Liquidator deems appropriate or necessary to form, qualify or continue the existence or qualification of the Partnership as a limited partnership (or a partnership in which the limited partners have limited liability to the extent provided by applicable law) in the State of Delaware and in all other jurisdictions in which the Partnership may conduct business or own property; (b) all instruments that the Managing General Partner or any Liquidator deems appropriate or necessary to reflect any amendment, change, modification or restatement of this Agreement in accordance with its terms; (c) all conveyances and other instruments or documents
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that the Managing General Partner or the Liquidator deems appropriate or necessary to reflect the dissolution and liquidation of the Partnership pursuant to the terms of this Agreement, including, without limitation, a certificate of cancellation; (d) all conveyances and other instruments or documents that the Managing General Partner or the Liquidator deems appropriate or necessary to reflect the distribution or exchange of assets of the Partnership pursuant to the terms of this Agreement; (e) all instruments relating to the admission, acceptance, withdrawal, removal or substitution of any Partner pursuant to the terms of this Agreement or the Capital Contribution of any Partner; and (f) all certificates, documents and other instruments relating to the determination of the rights, preferences and privileges relating to Partnership Interests; and
(2) execute, swear to, acknowledge and file all ballots, consents, approvals, waivers, certificates and other instruments appropriate or necessary, in the sole and absolute discretion of the Managing General Partner or any Liquidator, to make, evidence, give, confirm or ratify any vote, consent, approval, agreement or other action that is made or given by the Partners hereunder or is consistent with the terms of this Agreement.
Nothing contained herein shall be construed as authorizing the Managing General Partner or any Liquidator to amend this Agreement except in accordance with Section 14.2 hereof or as may be otherwise expressly provided for in this Agreement.
B. The foregoing power of attorney is hereby declared to be irrevocable and a special power coupled with an interest, in recognition of the fact that each of the Limited Partners and Assignees will be relying upon the power of the Managing General Partner or the Liquidator to act as contemplated by this Agreement in any filing or other action by it on behalf of the Partnership, and it shall survive and not be affected by the subsequent Incapacity of any Limited Partner or Assignee and the Transfer of all or any portion of such Person's Partnership Units or Partnership Interest (as the case may be) and shall extend to such Person's heirs, successors, assigns and personal representatives. Each such Limited Partner and Assignee hereby agrees to be bound by any representation made by the Managing General Partner or the Liquidator, acting in good faith pursuant to such power of attorney; and each such Limited Partner and Assignee hereby waives any and all defenses that may be available to contest, negate or disaffirm the action of the Managing General Partner or the Liquidator, taken in good faith under such power of attorney. Each Limited Partner and Assignee shall execute and deliver to the Managing General Partner or the Liquidator, within fifteen (15) days after receipt of the Managing General Partner's or the Liquidator's request therefor, such further designation, powers of attorney and other instruments as the Managing General Partner or the Liquidator (as the case may be) deems necessary to effectuate this Agreement and the purposes of the Partnership. Notwithstanding anything else set forth in this Section 2.4.B, no Limited Partner shall incur any personal liability for any action of the Managing General Partner or the Liquidator taken under such power of attorney.
Section 2.5 Term. The term of the Partnership commenced on July 25, 2005, the date that the original Certificate was filed in the office of the Secretary of State of Delaware in accordance with the Act, and shall continue indefinitely unless the Partnership is dissolved sooner pursuant to the provisions of Article 13 hereof or as otherwise provided by law.
ARTICLE 3
PURPOSE
Section 3.1 Purpose and Business. The purpose and nature of the Partnership is to conduct any business, enterprise or activity permitted by or under the Act, including, without limitation, (i) to conduct the business of ownership, construction, reconstruction, development, redevelopment, alteration, improvement, maintenance, operation, sale, leasing, transfer, encumbrance, conveyance and exchange of the Properties, (ii) to acquire and invest in any securities and/or loans relating to the Properties, (iii) to enter into any partnership, joint venture, business trust arrangement, limited liability
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company or other similar arrangement to engage in any business permitted by or under the Act, or to own interests in any entity engaged in any business permitted by or under the Act, (iv) to conduct the business of providing property and asset management and brokerage services, whether directly or through one or more partnerships, joint ventures, Subsidiaries, business trusts, limited liability companies or similar arrangements, and (v) to do anything necessary or incidental to the foregoing; provided, however, that such business and arrangements and interests shall be limited to and conducted in such a manner (a) as to permit the Special Limited Partner, in the sole and absolute discretion of the Special Limited Partner, at all times to be classified as a REIT and to avoid paying taxes under Code Sections 857 or 4981 and (b) as will comply in all material respects with the covenants, conditions and restrictions now or hereafter placed upon or adopted by the Special Limited Partner pursuant to any agreement of the Special Limited Partner or applicable laws and regulations. The Partnership shall have all powers necessary or desirable to accomplish the purposes set forth above. In connection with the foregoing, the Partnership shall have full power and authority to enter into, perform and carry out contracts of any kind, to borrow and lend money and to issue evidence of indebtedness, whether or not secured by mortgage, deed of trust, pledge or other lien and, directly or indirectly, to acquire and construct additional Properties necessary, useful or desirable in connection with its business.
Section 3.2 Powers.
A. The Partnership shall be empowered to do any and all acts and things necessary, appropriate, proper, advisable, incidental to or convenient for the furtherance and accomplishment of the purposes and business described herein and for the protection and benefit of the Partnership.
B. Notwithstanding any other provision in this Agreement, the General Partner shall cause the Partnership not to take, or to refrain from taking, any action that, in the judgment of the Managing General Partner, in its sole and absolute discretion, (i) could adversely affect the ability of the Special Limited Partner to continue to qualify as a REIT, (ii) could subject the Special Limited Partner to any taxes under Code Section 857 or Code Section 4981 or any other related or successor provision under the Code, (iii) could violate any law or regulation of any governmental body or agency having jurisdiction over the Special Limited Partner, its securities or the Partnership or (iv) could violate in any material respect any of the covenants, conditions or restrictions now or hereafter placed upon or adopted by the Special Limited Partner pursuant to any agreement of the Special Limited Partner or applicable laws and regulations, unless, in any such case, such action (or inaction) under clause (i), clause (ii), clause (iii) or clause (iv) above shall have been specifically consented to by the Special Limited Partner.
Section 3.3 Partnership Only for Purposes Specified. The Partnership shall be a limited partnership only for the purposes specified in Section 3.1 hereof, and this Agreement shall not be deemed to create a company, venture or partnership between or among the Partners or any other Persons with respect to any activities whatsoever other than the activities within the purposes of the Partnership as specified in Section 3.1 hereof. Except as otherwise provided in this Agreement, no Partner shall have any authority to act for, bind, commit or assume any obligation or responsibility on behalf of the Partnership, its properties or any other Partner. No Partner, in its capacity as a Partner under this Agreement, shall be responsible or liable for any indebtedness or obligation of another Partner, nor shall the Partnership be responsible or liable for any indebtedness or obligation of any Partner, incurred either before or after the execution and delivery of this Agreement by such Partner, except as to those responsibilities, liabilities, indebtedness or obligations incurred pursuant to and as limited by the terms of this Agreement and the Act.
Section 3.4 Representations and Warranties by the Partners.
A. Each Partner that is an individual (including, without limitation, each Additional Limited Partner or Substituted Limited Partner as a condition to becoming an Additional Limited Partner or a Substituted Limited Partner) represents and warrants to, and covenants with, each other Partner that
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(i) the consummation of the transactions contemplated by this Agreement to be performed by such Partner will not result in a breach or violation of, or a default under, any material agreement by which such Partner or any of such Partner's property is bound, or any statute, regulation, order or other law to which such Partner is subject, (ii) such Partner does not, and for so long as it is Partner will not, own, directly or indirectly, (a) five percent (5%) or more of the total combined voting power of all classes of stock entitled to vote, or five percent (5%) or more of the total number of shares of all classes of stock, of any corporation that is a tenant of either (I) the Special Limited Partner or any "qualified REIT subsidiary" (within the meaning of Code Section 856(i)(2)), (II) the Partnership or (III) any partnership, venture or limited liability company of which the Special Limited Partner, any "qualified REIT subsidiary" (within the meaning of Code Section 856(i)(2)), with respect to the Special Limited Partner, or the Partnership is a member or (b) an interest of five percent (5%) or more in the assets or net profits of any tenant of either (I) the Special Limited Partner or any "qualified REIT subsidiary" (within the meaning of Code Section 856(i)(2)), (II) the Partnership or (III) any partnership, venture, or limited liability company of which the Special Limited Partner, any "qualified REIT subsidiary" (within the meaning of Code Section 856(i)(2)), with respect to the Special Limited Partner, or the Partnership is a member, (iii) such Partner has the legal capacity to enter into this Agreement and perform such Partner's obligations hereunder, and (iv) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms. Notwithstanding the foregoing, each Partner that is an individual may exceed any of the five percent (5%) limits set forth in clause (ii) of the immediately preceding sentence; provided, however, that the Partner obtains the written consent of the Managing General Partner prior to exceeding any such limits, which consent the Managing General Partner may give or withhold in its sole and absolute discretion; and provided, further, that in no event shall the Partner own, directly or indirectly, more than ten percent (10%) of the stock described in clause (ii) (a) of the immediately preceding sentence or more than ten percent (10%) of the assets or net profits described in clause (ii) (b) of the immediately preceding sentence. Each Partner that is an individual shall also represent and warrant to the Partnership whether such Partner is a "foreign person" within the meaning of Code Section 1445(f) or a foreign partner within the meaning of Section 1446(e).
B. Each Partner that is not an individual (including, without limitation, each Additional Limited Partner or Substituted Limited Partner as a condition to becoming an Additional Limited Partner or a Substituted Limited Partner) represents and warrants to, and covenants with, each other Partner that (i) all transactions contemplated by this Agreement to be performed by it have been duly authorized by all necessary action, including, without limitation, that of its general partner(s), committee(s), trustee(s), beneficiaries, directors and/or shareholder(s) (as the case may be) as required, (ii) the consummation of such transactions shall not result in a breach or violation of, or a default under, its partnership or operating agreement, trust agreement, charter or bylaws (as the case may be) any material agreement by which such Partner or any of such Partner's properties or any of its partners, members, beneficiaries, trustees or shareholders (as the case may be) is or are bound, or any statute, regulation, order or other law to which such Partner or any of its partners, members, trustees, beneficiaries or shareholders (as the case may be) is or are subject, (iii) such Partner does not, and for so long as it is a Partner will not, own, directly or indirectly, (a) five percent (5%) or more of the total combined voting power of all classes of stock entitled to vote, or five percent (5%) or more of the total number of shares of all classes of stock, of any corporation that is a tenant of either (I) the Special Limited Partner or any "qualified REIT subsidiary" (within the meaning of Code Section 856(i)(2)), with respect to the Special Limited Partner, (II) the Partnership or (III) any partnership, venture or limited liability company of which the Special Limited Partner, any Special Limited Partner, any "qualified REIT subsidiary" (within the meaning of Code Section 856(i)(2)), with respect to the Special Limited Partner, or the Partnership is a member or (b) an interest of five percent (5%) or more in the assets or net profits of any tenant of either (I) the Special Limited Partner, or any "qualified REIT subsidiary" (within the meaning of Code Section 856(i)(2)) with respect to the Special Limited Partner, (II) the Partnership or
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(III) any partnership, venture or limited liability company for which the Special Limited Partner, any Special Limited Partner, any "qualified REIT subsidiary" (within the meaning of Code Section 856(i)(2)), with respect to the Special Limited Partner, or the Partnership is a member, and (iv) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms. Notwithstanding the foregoing, each Partner that is not an individual may exceed any of the five percent (5%) limits set forth in clause (iii) of the immediately preceding sentence; provided, however, that the Partner obtains the written consent of the Managing General Partner prior to exceeding any such limits, which consent the Managing General Partner may give or withhold in its sole and absolute discretion; and provided, further, that in no event shall the Partner own, directly or indirectly, more than ten percent (10%) of the stock described in clause (iii) (a) of the immediately preceding sentence or more than ten percent (10%) of the assets or net profits described in clause (iii) (b) of the immediately preceding sentence. Each Partner that is not an individual shall also represent and warrant to the Partnership whether such Partner is a "foreign person" within the meaning of Code Section 1445(f) or a foreign partner within the meaning of Section 1446(e).
C. Each Partner (including, without limitation, each Substituted Limited Partner as a condition to becoming a Substituted Limited Partner) represents, warrants and agrees that it has acquired and continues to hold its interest in the Partnership for its own account for investment purposes only and not for the purpose of, or with a view toward, the resale or distribution of all or any part thereof in violation of applicable laws, and not with a view toward selling or otherwise distributing such interest or any part thereof at any particular time or under any predetermined circumstances in violation of applicable laws. Each Partner further represents and warrants that it is a sophisticated investor, able and accustomed to handling sophisticated financial matters for itself, particularly real estate investments, and that it has a sufficiently high net worth that it does not anticipate a need for the funds that it has invested in the Partnership in what it understands to be a highly speculative and illiquid investment.
D. The representations and warranties contained in Sections 3.4.A, 3.4.B and 3.4.C hereof shall survive the execution and delivery of this Agreement by each Partner (and, in the case of an Additional Limited Partner or a Substituted Limited Partner, the admission of such Additional Limited Partner or Substituted Limited Partner as a Limited Partner in the Partnership) and the dissolution, liquidation and termination of the Partnership.
E. Each Partner (including, without limitation, each Substituted Limited Partner as a condition to becoming a Substituted Limited Partner) hereby acknowledges that no representations as to potential profit, cash flows, funds from operations or yield, if any, in respect of the Partnership or the General Partner have been made by any Partner or any employee or representative or Affiliate of any Partner, and that projections and any other information, including, without limitation, financial and descriptive information and documentation, that may have been in any manner submitted to such Partner shall not constitute any representation or warranty of any kind or nature, express or implied.
F. Notwithstanding the foregoing, the Managing General Partner may, in its sole and absolute discretion, permit the modification of any of the representations and warranties contained in Sections 3.4.A, 3.4.B and 3.4.C above as applicable to any Partner (including, without limitation any Additional Limited Partner or Substituted Limited Partner or any transferee of either), provided that such representations and warranties, as modified, shall be set forth in either (i) a Partnership Unit Designation applicable to the Partnership Units held by such Partner or (ii) a separate writing addressed to the Partnership and the Managing General Partner.
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ARTICLE 4
CAPITAL CONTRIBUTIONS
Section 4.1 Capital Contributions of the Partners. The Partners have heretofore made Capital Contributions to the Partnership. Each Partner owns Partnership Units in the amount set forth for such Partner on Exhibit A, as the same may be amended from time to time by the Managing General Partner to the extent necessary to reflect accurately sales, exchanges or other Transfers, redemptions, Capital Contributions, the issuance of additional Partnership Units, or similar events having an effect on a Partner's ownership of Partnership Units. Except as provided by law or in Section 4.2, 4.3, or 10.4 hereof, the Partners shall have no obligation or, except with the prior written consent of the Managing General Partner, right to make any additional Capital Contributions or loans to the Partnership.
Section 4.2 Issuances of Additional Partnership Interests.
A. General. The Managing General Partner is hereby authorized to cause the Partnership to issue additional Partnership Interests, in the form of Partnership Units, for any Partnership purpose, at any time or from time to time, to the Partners (including the General Partner and the Special Limited Partner) or to other Persons, and to admit such Persons as Additional Limited Partners or as General Partners, for such consideration and on such terms and conditions as shall be established by the Managing General Partner in its sole and absolute discretion, all without the approval of any Limited Partner or any other Person. Without limiting the foregoing, the Managing General Partner is expressly authorized to cause the Partnership to issue Partnership Units (i) upon the conversion, redemption or exchange of any Debt, Partnership Units, or other securities issued by the Partnership, (ii) for less than fair market value, so long as the Managing General Partner concludes in good faith that such issuance is in the best interests of the Managing General Partner and the Partnership, and (iii) in connection with any merger of any other Person into the Partnership if the applicable merger agreement provides that Persons are to receive Partnership Units in exchange for their interests in the Person merging into the Partnership. Any additional Partnership Interests may be issued in one or more classes, or one or more series of any of such classes, with such designations, preferences and relative, participating, optional or other special rights, powers and duties (including, without limitation, rights, powers and duties that may be senior or otherwise entitled to preference over existing Partnership Units) as shall be determined by the Managing General Partner, in its sole and absolute discretion without the approval of any Limited Partner or any other Person, and set forth in a written document thereafter attached to and made an exhibit to this Agreement, which exhibit shall be an amendment to this Agreement and shall be incorporated herein by this reference (each, a " Partnership Unit Designation "), including, in the event of the admission of an Additional General Partner, such rights, duties and obligations for such General Partner hereunder as the Managing General Partner shall assign, delegate or permit such Additional General Partner to exercise hereunder, in the sole and absolute discretion of the Managing General Partner, without the approval of any Limited Partner or any other Person. Without limiting the generality of the foregoing, the Managing General Partner shall have authority to specify: (a) the allocations of items of Partnership income, gain, loss, deduction and credit to each such class or series of Partnership Interests; (b) the right of each such class or series of Partnership Interests to share (on a pari passu , junior or preferred basis) in Partnership distributions; (c) the rights of each such class or series of Partnership Interests upon dissolution and liquidation of the Partnership; (d) the voting rights, if any, of each such class or series of Partnership Interests; and (e) the conversion, redemption or exchange rights applicable to each such class or series of Partnership Interests. Upon the issuance of any additional Partnership Interest, the Managing General Partner shall amend Exhibit A and the books and records of the Partnership as appropriate to reflect such issuance.
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B. Issuances of Performance Units. Without limiting the generality of the foregoing, the Managing General Partner is hereby authorized to create one or more classes or series of additional Partnership Interests, in the form of Partnership Units (each such class or series of Partnership Interests is referred to as " Performance Units "), for issuance at any time or from time to time to directors, officers or employees of the Special Limited Partner or any Affiliate of the foregoing, and to admit such Persons as Additional Limited Partners or General Partners, for such consideration and on such terms and conditions as shall be established by the Managing General Partner, all without approval of any Limited Partner or any other Person. The Managing General Partner shall determine, in its sole and absolute discretion without the approval of any Limited Partner or any other Person, and set forth in a Partnership Unit Designation, the designations, preferences and relative, participating, option or other special rights, powers and duties with respect to any class or series of Performance Units(including, without limitation, the extent to which the value or number of each such class or series of Performance Units is subject to adjustment based on the financial performance of the Special Limited Partner). Upon the issuance of any class or series of Performance Units, the Managing General Partner shall amend the Partnership Agreement, including Exhibit A and the books and records of the Partnership as appropriate to reflect such issuance.
C. Issuances to the General Partner or Special Limited Partner. No additional Partnership Units shall be issued to the General Partner or the Special Limited Partner unless (i) the additional Partnership Units are issued to all Partners in proportion to their respective Percentage Interests, (ii) (a) the additional Partnership Units are (x) Partnership Common Units issued in connection with an issuance of REIT Shares, or (y) Partnership Units (other than Partnership Common Units) issued in connection with an issuance of Preferred Shares, New Securities or other interests in the Special Limited Partner (other than REIT Shares), which Preferred Shares, New Securities or other interests have designations, preferences and other rights, terms and provisions that are substantially the same as the designations, preferences and other rights, terms and provisions of the additional Partnership Units issued to the General Partner, and (b) the General Partner or the Special Limited Partner (as the case may be) contributes to the Partnership the cash proceeds or other consideration received in connection with the issuance of such REIT Shares, Preferred Shares, New Securities or other interests in the Special Limited Partner, (iii) the additional Partnership Units are issued upon the conversion, redemption or exchange of Debt, Partnership Units or other securities issued by the Partnership, or (iv) the additional Partnership Units are issued pursuant to Section 4.3.B, Section 4.3.E, Section 4.4, Section 4.5 or Section 4.9.
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D. No Preemptive Rights. No Person, including, without limitation, any Partner or Assignee, shall have any preemptive, preferential, participation or similar right or rights to subscribe for or acquire any Partnership Interest.
Section 4.3 Additional Funds and Capital Contributions.
A. General. The Managing General Partner may, at any time and from time to time, determine that the Partnership requires additional funds (" Additional Funds ") for the acquisition or development of additional Properties, for the redemption of Partnership Units or for such other purposes as the Managing General Partner may determine, in its sole and absolute discretion. Additional Funds may be obtained by the Partnership, at the election of the Managing General Partner, in any manner provided in, and in accordance with, the terms of this Section 4.3 without the approval of any Limited Partner or any other Person.
B. Additional Capital Contributions. The Managing General Partner, on behalf of the Partnership, may obtain any Additional Funds by accepting Capital Contributions from any Partners or other Persons. In connection with any such Capital Contribution (of cash or property), the Managing General Partner is hereby authorized to cause the Partnership from time to time to issue additional Partnership Units (as set forth in Section 4.2 above) in consideration therefor and the Percentage Interests of the General Partner, the Limited Partners shall be adjusted to reflect the issuance of such additional Partnership Units.
C. Loans by Third Parties. The Managing General Partner, on behalf of the Partnership, may obtain any Additional Funds by causing the Partnership to incur Debt to any Person (other than the Managing General Partner or the Special Limited Partner) upon such terms as the Managing General Partner determines appropriate, including making such Debt convertible, redeemable or exchangeable for Partnership Units; provided, however, that the Partnership shall not incur any such Debt if any Partner would be personally liable for the repayment of such Debt (unless such Partner otherwise agrees).
D. General Partner and Special Limited Partner Loans. The Managing General Partner, on behalf of the Partnership, may obtain any Additional Funds by causing the Partnership to incur Debt to the General Partner and/or the Special Limited Partner (each, a " General Partner Loan ") if (i) such Debt is, to the extent permitted by law, on substantially the same terms and conditions (including interest rate, repayment schedule, and conversion, redemption, repurchase and exchange rights) as Funding Debt incurred by the General Partner or the Special Limited Partner, as applicable, the net proceeds of which are loaned to the Partnership to provide such Additional Funds, or (ii) such Debt is on terms and conditions no less favorable to the Partnership than would be available to the Partnership from any third party; provided, however, that the Partnership shall not incur any such Debt if any Partner would be personally liable for the repayment of such Debt (unless such Partner otherwise agrees).
E. Issuance of Securities by the Special Limited Partner. The Special Limited Partner shall not issue any additional REIT Shares, Capital Shares or New Securities unless the Special Limited Partner contributes the cash proceeds or other consideration received from the issuance of such additional REIT Shares, Capital Shares or New Securities (as the case may be) and from the exercise of the rights contained in any such additional New Securities to the Partnership in exchange for (x) in the case of an issuance of REIT Shares, Partnership Common Units, or (y) in the case of an issuance of Capital Shares or New Securities, Partnership Units with designations, preferences and other rights, terms and provisions that are substantially the same as the designations, preferences and other rights, terms and provisions of such Capital Shares or New Securities; provided, however, that notwithstanding the foregoing, the Special Limited Partner may issue REIT Shares, Capital Shares or New Securities (a) pursuant to Section 4.4 or Section 15.1.B hereof, (b) pursuant to a dividend or distribution (including any stock split) of REIT Shares,
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Capital Shares or New Securities to all of the holders of REIT Shares, Capital Shares or New Securities (as the case may be), (c) upon a conversion, redemption or exchange of Capital Shares, (d) upon a conversion, redemption, exchange or exercise of New Securities, or (e) in connection with an acquisition of a property or other asset to be owned, directly or indirectly, by the Special Limited Partner if the Managing General Partner determines that such acquisition is in the best interests of the Partnership. In the event of any issuance of additional REIT Shares, Capital Shares or New Securities by the Special Limited Partner, and the contribution to the Partnership, by the Special Limited Partner, of the cash proceeds or other consideration received from such issuance, if the cash proceeds actually received by the Special Limited Partner are less than the gross proceeds of such issuance as a result of any underwriter's discount or other expenses paid or incurred in connection with such issuance, then the Special Limited Partner shall be deemed to have made a Capital Contribution to the Partnership in the amount equal to the sum of the cash proceeds of such issuance plus the amount of such underwriter's discount and other expenses paid by the Special Limited Partner (which discount and expense shall be treated as an expense for the benefit of the Partnership for purposes of Section 7.4)
Section 4.4 Stock Option Plans.
A. Options Granted to Persons other than Partnership Employees. If at any time or from time to time, in connection with any Stock Option Plan, a stock option granted for stock in the Special Limited Partner to a Person other than a Partnership Employee is duly exercised:
(1) The Special Limited Partner, shall, as soon as practicable after such exercise, make a Capital Contribution to the Partnership in an amount equal to the exercise price paid to the Special Limited Partner by such exercising party in connection with the exercise of such stock option.
(2) Notwithstanding the amount of the Capital Contribution actually made pursuant to Section 4.4.A(1) hereof, the Special Limited Partner shall be deemed to have contributed to the Partnership as a Capital Contribution, in lieu of the Capital Contribution actually made and in consideration of an additional Limited Partner Interest (expressed in and as additional Partnership Common Units), an amount equal to the Value of a REIT Share as of the date of exercise multiplied by the number of REIT Shares then being issued in connection with the exercise of such stock option.
(3) An equitable Percentage Interest adjustment shall be made in which the Special Limited Partner shall be treated as having made a cash contribution equal to the amount described in Section 4.4.A(2) hereof.
B. Options Granted to Partnership Employees. If at any time or from time to time, in connection with any Stock Option Plan, a stock option granted for stock in the Special Limited Partner to a Partnership Employee is duly exercised:
(1) The Special Limited Partner shall sell to the Partnership, and the Partnership shall purchase from the Special Limited Partner, the number of REIT Shares as to which such stock option is being exercised. The purchase price per REIT Share for such sale of REIT Shares to the Partnership shall be the Value of a REIT Share as of the date of exercise of such stock option.
(2) The Partnership shall sell to the Optionee (or if the Optionee is an employee of a Partnership Subsidiary, the Partnership shall sell to such Partnership Subsidiary, which in turn shall sell to the Optionee), for a cash price per share equal to the Value of a REIT Share at the time of the exercise, the number of REIT Shares equal to (a) the exercise price paid to the Special Limited Partner by the exercising party in connection with the exercise of such stock option divided by (b) the Value of a REIT Share at the time of such exercise.
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(3) The Partnership shall transfer to the Optionee (or if the Optionee is an employee of a Partnership Subsidiary, the Partnership shall transfer to such Partnership Subsidiary, which in turn shall transfer to the Optionee) at no additional cost, as additional compensation, the number of REIT Shares equal to the number of REIT Shares described in Section 4.4.B(1) hereof less the number of REIT Shares described in Section 4.4.B(2) hereof.
(4) The Special Limited Partner shall, as soon as practicable after such exercise, make a Capital Contribution to the Partnership of an amount equal to all proceeds received (from whatever source, but excluding any payment in respect of payroll taxes or other withholdings) by the Special Limited Partner in connection with the exercise of such stock option. An equitable Percentage Interest adjustment shall be made in which the Special Limited Partner shall be treated as having made a cash contribution equal to the amount described in Section 4.4.B(1) hereof.
C. Future Stock Incentive Plans. Nothing in this Agreement shall be construed or applied to preclude or restrain the Managing General Partner or the Special Limited Partner from adopting, modifying or terminating stock incentive plans for the benefit of employees, directors or other business associates of the Managing General Partner, the Special Limited Partner, the Partnership or any of their Affiliates. The Partners acknowledge and agree that, in the event that any such plan is adopted, modified or terminated by the Managing General Partner or the Special Limited Partner, amendments to this Section 4.4 may become necessary or advisable and that any approval or Consent to any such amendments requested by the Managing General Partner or the Special Limited Partner shall be deemed granted by the Limited Partners.
Section 4.5 Dividend Reinvestment Plan, Stock Incentive Plan or Other Plan. Except as may otherwise be provided in this Article 4, all amounts received by the Special Limited Partner in respect of any dividend reinvestment plan, stock incentive or other stock or subscription plan or agreement, either (a) shall be utilized by the Special Limited Partner to effect open market purchases of REIT Shares, or (b) if the Special Limited Partner elects instead to issue new REIT Shares with respect to such amounts, shall be contributed by the Special Limited Partner to the Partnership in exchange for additional Partnership Common Units. Upon such contribution, the Partnership will issue to the Special Limited Partner a number of Partnership Common Units equal in value to the product of (i) the Value as of the date of issuance of each REIT Share so issued by the Special Limited Partner multiplied by (ii) the number of REIT Shares so issued.
Section 4.6 No Interest; No Return. No Partner shall be entitled to interest on its Capital Contribution or on such Partner's Capital Account. Except as provided herein or by law, no Partner shall have any right to demand or receive the return of its Capital Contribution from the Partnership.
Section 4.7 Conversion or Redemption of Capital Shares.
A. Conversion of Capital Shares. If, at any time, any of the Capital Shares are converted into REIT Shares, in whole or in part, then a number of Partnership Units with designations, preferences and other rights, terms and provisions that are substantially the same as the designations, preferences and other rights, terms and provisions of such Capital Shares (" Partnership Equivalent Units ") equal to the number of Capital Shares so converted shall automatically be converted into a number of Partnership Common Units equal to (i) the number of REIT Shares issued upon such conversion divided by (ii) the Adjustment Factor then in effect, and the Percentage Interests of the General Partner and the Limited Partners (including the Special Limited Partner) shall be adjusted to reflect such conversion.
B. Redemption of Capital Shares. If, at any time, any Capital Shares are redeemed (whether by exercise of a put or call, automatically or by means of another arrangement) by the Special Limited Partner for cash, the Partnership shall, immediately prior to such redemption of Capital
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Shares, redeem an equal number of Partnership Equivalent Units held by the Special Limited Partner upon the same terms and for the same price per Partnership Equivalent Unit as such Preferred Shares are redeemed.
Section 4.8 Other Contribution Provisions. In the event that any Partner is admitted to the Partnership and is given a Capital Account in exchange for services rendered to the Partnership, such transaction shall be treated by the Partnership and the affected Partner as if the Partnership had compensated such partner in cash and such Partner had contributed the cash that the Partner would have received to the capital of the Partnership. In addition, with the consent of the Managing General Partner, one or more Partners (including the Special Limited Partner) may enter into contribution agreements with the Partnership which have the effect of providing a guarantee of certain obligations of the Partnership.
Section 4.9 Excluded Properties. The Special Limited Partner shall contribute each Excluded Property (or, if applicable, the net proceeds (after payment of all transfer taxes and other transaction costs) received by the Special Limited Partner from the sale, transfer or other disposition of an Excluded Property to a Person who is not a wholly-owned Subsidiary of the Special Limited Partner) to the Partnership upon the earlier of (i) such time as it is commercially practicable to contribute such property to the Partnership without adverse tax or other economic consequence to the Special Limited Partner and (ii) any sale, transfer or other disposition of an Excluded Property to a Person who is not a wholly-owned Subsidiary of the Special Limited Partner. Upon any such contribution of an Excluded Property or the proceeds therefrom, the Special Limited Partner shall receive in exchange for such contribution, notwithstanding the actual value of such Excluded Property or the amount of such proceeds (as the case may be), the Specified Partnership Units applicable to such Excluded Property.
ARTICLE 5
DISTRIBUTIONS
Section 5.1 Requirement and Characterization of Distributions. Subject to the terms of any Partnership Unit Designation, the Managing General Partner shall cause the Partnership to distribute quarterly all, or such portion as the Managing General Partner may in its sole and absolute discretion determine, of Available Cash generated by the Partnership during such quarter to the Holders on the Partnership Record Date with respect to such quarter: (i) first, with respect to any Partnership Units that are entitled to any preference in distribution, in accordance with the rights of such class(es) of Partnership Units (and, within such class(es), among the Holders pro rata in proportion to their respective Percentage Interests on such Partnership Record Date); and (ii) second, with respect to any Partnership Units that are not entitled to any preference in distribution, in accordance with the rights of such class of Partnership Units, as applicable (and, within such class, among the Holders pro rata in proportion to their respective Percentage Interests on such Partnership Record Date). Distributions payable with respect to any Partnership Units that were not outstanding during the entire quarterly period in respect of which any distribution is made shall be prorated based on the portion of the period that such Partnership Units were outstanding. Notwithstanding the foregoing, the Managing General Partner, in its sole and absolute discretion, may distribute Available Cash to the Holders on a more or less frequent basis than quarterly and provide for an appropriate record date. The Managing General Partner shall make such reasonable efforts, as determined by it in its sole and absolute discretion and consistent with the Special Limited Partner's qualification as a REIT, to cause the Partnership to distribute sufficient amounts to enable the Special Limited Partner, for so long as the Special Limited Partner has determined to qualify as a REIT, to pay shareholder dividends that will (a) satisfy the requirements for qualifying as a REIT under the Code and Regulations (the " REIT Requirements ") and (b) except to the extent otherwise determined by the Special Limited Partner, eliminate any Federal income or excise tax liability of the Special Limited Partner.
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Notwithstanding the foregoing, in the event any Excluded Property (or the proceeds therefrom) has not been contributed to the Partnership pursuant to Section 4.9, the distributions provided for above shall be calculated, to the extent possible, based on Adjusted Available Cash as if each Excluded Property had been contributed to the Partnership in exchange for Partnership Common Units pursuant to Section 4.9; provided, however, that in the event any Excluded Property (or the proceeds therefrom) has not been contributed to the Partnership pursuant to Section 4.9, any distributions to be made with respect to the Special Limited Partner's Partnership Units shall in the aggregate be reduced to the extent of any REIT Available Cash.
Subject to the applicable Partner Unit Designation, each Limited Partner shall receive a pro rata share of Distributions under this Article 5 in an amount equal to the distributions such Limited Partner would have received if such Limited Partner held one REIT Share (bearing the same designations as the actual Partnership Unit held by such Limited Partner) for each of such Limited Partner's Partnership Unit.
Section 5.2 Distributions in Kind. No right is given to any Holder to demand and receive property other than cash as provided in this Agreement. The Managing General Partner may determine, in its sole and absolute discretion, to make a distribution in kind of Partnership assets to the Holders, and such assets shall be distributed in such a fashion as to ensure that the fair market value is distributed and allocated in accordance with Articles 5, 6 and 10 hereof; provided, however, that the Managing General Partner shall not make a distribution in kind to any Holder unless the Holder has been given 90 days prior written notice of such distribution.
Section 5.3 Amounts Withheld. All amounts withheld pursuant to the Code or any provisions of any state or local tax law and Section 10.4 hereof with respect to any allocation, payment or distribution to any Holder shall be treated as amounts paid or distributed to such Holder pursuant to Section 5.1 hereof for all purposes under this Agreement.
Section 5.4 Distributions Upon Liquidation. Notwithstanding the other provisions of this Article 5, net proceeds from a Terminating Capital Transaction, and any other cash received or reductions in reserves made after commencement of the liquidation of the Partnership, shall be distributed to the Holders in accordance with Section 13.2 hereof.
Section 5.5 Distributions to Reflect Additional Partnership Units. In the event that the Partnership issues additional Partnership Units pursuant to the provisions of Article 4 hereof, the Managing General Partner is hereby authorized to make such revisions to this Article 5 as it determines are necessary or desirable to reflect the issuance of such additional Partnership Units, including, without limitation, making preferential distributions to certain classes of Partnership Units.
Section 5.6 Restricted Distributions. Notwithstanding any provision to the contrary contained in this Agreement, neither the Partnership nor the General Partner, on behalf of the Partnership, shall make a distribution to any Holder if such distribution would violate Section 17-607 of the Act or other applicable law.
ARTICLE 6
ALLOCATIONS
Section 6.1 Timing and Amount of Allocations of Net Income and Net Loss. Net Income and Net Loss of the Partnership shall be determined and allocated with respect to each Partnership Year of the Partnership as of the end of each such year, provided that the Managing General Partner may in its discretion allocate Net Income and Net Loss for a shorter period as of the end of such period. Except as otherwise provided in this Article 6, and subject to Section 11.6.C hereof, an allocation to a Holder of a share of Net Income or Net Loss shall be treated as an allocation of the same share of each item of income, gain, loss or deduction that is taken into account in computing Net Income or Net Loss.
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Section 6.2 General Allocations. Subject to Section 11.6.C hereof and with any modifications pursuant to the definition of Capital Account Net Income and Net Loss shall be allocated to each of the Holders as follows:
(i) Net Income will be allocated to Holders of Partnership Preferred Units in accordance with and subject to the terms of the Partnership Unit Designation applicable to such Partnership Preferred Units;
(ii) subject to the terms of any Partnership Unit Designation, remaining Net Income will be allocated to the Holders of Partnership Common Units in accordance with their respective Percentage Interests at the end of each Partnership Year;
(iii) subject to the terms of any Partnership Unit Designation, Net Loss will be allocated to the Holders of Partnership Common Units in accordance with their respective Percentage Interests at the end of each Partnership Year; and
(iv) for purposes of this Section 6.2, the Percentage Interests of the Holders of Partnership Common Units shall be calculated based on a denominator equal to the aggregate Partnership Common Units outstanding as of the date of determination.
It is intended that the provisions of this Article 6 satisfy the requirements of Section 704(b) of the Code and the Regulations thereunder, and the General Partner is authorized to make adjustments to the allocation provisions set forth above to the extent the General Partner determines such adjustments to be necessary or appropriate to comply with Section 704(b) of the Code and the Regulations thereunder (including to cause Capital Accounts attributable to Partnership Common Units to be in proportion to their respective Percentage Interests); provided, however, that in no event shall this sentence permit the General Partner to adjust the timing or amount of any distributions to the Partners.
Section 6.3 Additional Allocation Provisions. Notwithstanding the foregoing provisions of this Article 6:
A. Special Allocations Regarding Partnership Preferred Units. If any Partnership Preferred Units are redeemed pursuant to Section 4.7.B hereof (treating a full liquidation of the Managing General Partner's General Partner Interest or of such Special Limited Partner's Limited Partner Interest for purposes of this Section 6.3.A as including a redemption of any then outstanding Partnership Preferred Units pursuant to Section 4.7.B hereof), for the Partnership Year that includes such redemption (and, if necessary, for subsequent Partnership Years) (a) gross income and gain (in such relative proportions as the Managing General Partner in its discretion shall determine) shall be allocated to the holder(s) of such Partnership Preferred Units to the extent that the Redemption Amounts paid or payable with respect to the Partnership Preferred Units so redeemed (or treated as redeemed) exceeds the aggregate Capital Account Balances (net of liabilities assumed or taken subject to by the Partnership) per Partnership Preferred Unit allocable to the Partnership Preferred Units so redeemed (or treated as redeemed) and (b) deductions and losses (in such relative proportions as the Managing General Partner in its discretion shall determine) shall be allocated to the holder(s) of such Partnership Preferred Units to the extent that the aggregate Capital Account Balances (net of liabilities assumed or taken subject to by the Partnership) per Partnership Preferred Unit allocable to the Partnership Preferred Units so redeemed (or treated as redeemed) exceeds the Redemption Amount paid or payable with respect to the Partnership Preferred Units so redeemed (or treated as redeemed).
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B. Regulatory Allocations.
(i) Minimum Gain Chargeback. Except as otherwise provided in Regulations Section 1.704-2(f), notwithstanding the provisions of Section 6.2 hereof, or any other provision of this Article 6, if there is a net decrease in Partnership Minimum Gain during any Partnership Year, each Holder shall be specially allocated items of Partnership income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Holder's share of the net decrease in Partnership Minimum Gain, as determined under Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Holder pursuant thereto. The items to be allocated shall be determined in accordance with Regulations Sections 1.704-2(f)(6) and 1.704-2(j)(2). This Section 6.3.B(i) is intended to qualify as a "minimum gain chargeback" within the meaning of Regulations Section 1.704-2(f) and shall be interpreted consistently therewith.
(ii) Partner Minimum Gain Chargeback. Except as otherwise provided in Regulations Section 1.704-2(i)(4) or in Section 6.3.B(i) hereof, if there is a net decrease in Partner Minimum Gain attributable to a Partner Nonrecourse Debt during any Partnership Year, each Holder who has a share of the Partner Minimum Gain attributable to such Partner Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(5), shall be specially allocated items of Partnership income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Holder's respective share of the net decrease in Partner Minimum Gain attributable to such Partner Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Holder pursuant thereto. The items to be so allocated shall be determined in accordance with Regulations Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section 6.3.B(ii) is intended to qualify as a "chargeback of partner nonrecourse debt minimum gain" within the meaning of Regulations Section 1.704-2(i) and shall be interpreted consistently therewith.
(iii) Nonrecourse Deductions and Partner Nonrecourse Deductions. Any Nonrecourse Deductions for any Partnership Year shall be specially allocated to the Holders in accordance with their respective Percentage Interests. Any Partner Nonrecourse Deductions for any Partnership Year shall be specially allocated to the Holder(s) who bears the economic risk of loss with respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable, in accordance with Regulations Section 1.704-2(i).
(iv) Qualified Income Offset. If any Holder unexpectedly receives an adjustment, allocation or distribution described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Partnership income and gain shall be allocated, in accordance with Regulations Section 1.704-1(b)(2)(ii)(d), to such Holder in an amount and manner sufficient to eliminate, to the extent required by such Regulations, the Adjusted Capital Account Deficit of such Holder as quickly as possible, provided that an allocation pursuant to this Section 6.3.B(iv) shall be made if and only to the extent that such Holder would have an Adjusted Capital Account Deficit after all other allocations provided in this Article 6 have been tentatively made as if this Section 6.3.B(iv) were not in the Agreement. It is intended that this Section 6.3.B(iv) qualify and be construed as a "qualified income offset" within the meaning of Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
(v) Gross Income Allocation. In the event that any Holder has a deficit Capital Account at the end of any Partnership Year that is in excess of the sum of (1) the amount (if any) that such Holder is obligated to restore to the Partnership upon complete liquidation of
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such Holder's Partnership Interest (including, the Holder's interest in outstanding Partnership Preferred Units and other Partnership Units) and (2) the amount that such Holder is deemed to be obligated to restore pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Holder shall be specially allocated items of Partnership income and gain in the amount of such excess to eliminate such deficit as quickly as possible, provided that an allocation pursuant to this Section 6.3.B(v) shall be made if and only to the extent that such Holder would have a deficit Capital Account in excess of such sum after all other allocations provided in this Article 6 have been tentatively made as if this Section 6.3.B(v) and Section 6.3.B(iv) hereof were not in the Agreement.
(vi) Limitation on Allocation of Net Loss. To the extent that any allocation of Net Loss would cause or increase an Adjusted Capital Account Deficit as to any Holder, such allocation of Net Loss shall be reallocated among the other Holders in accordance with their respective Percentage Interests, subject to the limitations of this Section 6.3.B(vi).
(vii) Section 754 Adjustment. To the extent that an adjustment to the adjusted tax basis of any Partnership asset pursuant to Code Section 734(b) or Code Section 743(b) is required, pursuant to Regulations Section 1.704-1(b)(2) (iv)(m)(2) or Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as the result of a distribution to a Holder of Partnership Common Units in complete liquidation of its interest in the Partnership, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such gain or loss shall be specially allocated to the Holders in accordance with their respective Percentage Interests in the event that Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Holder(s) to whom such distribution was made in the event that Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.
(viii) Curative Allocations. The allocations set forth in Sections 6.3.B(i), (ii), (iii), (iv), (v), (vi) and (vii) hereof (the " Regulatory Allocations ") are intended to comply with certain regulatory requirements, including the requirements of Regulations Sections 1.704-1(b) and 1.704-2. Notwithstanding the provisions of Section 6.1 hereof, the Regulatory Allocations shall be taken into account in allocating other items of income, gain, loss and deduction among the Holders of Partnership Common Units so that to the extent possible without violating the requirements giving rise to the Regulatory Allocations, the net amount of such allocations of other items and the Regulatory Allocations to each Holder of a Partnership Common Unit shall be equal to the net amount that would have been allocated to each such Holder if the Regulatory Allocations had not occurred.
C. Special Allocations Upon Liquidation. Notwithstanding any provision in this Article 6 to the contrary, in the event that the Partnership disposes of all or substantially all of its assets in a transaction that will lead to a liquidation of the Partnership pursuant to Article 13 hereof, then any Net Income or Net Loss realized in connection with such transaction and thereafter (and, if necessary, constituent items of income, gain, loss and deduction) shall be specially allocated for such Partnership Year (and to the extent permitted by Section 761(c) of the Code, for the immediately preceding Partnership Year) among the Holders as required so as to cause liquidating distributions pursuant to Section 13.2.A(4) hereof to be made in the same amounts and proportions as would have resulted had such distributions instead been made pursuant to Article 5 hereof.
D. Allocation of Excess Nonrecourse Liabilities. For purposes of determining a Holder's proportional share of the "excess nonrecourse liabilities" of the Partnership within the meaning of Regulations Section 1.752-3(a)(3), each Holder's respective interest in Partnership profits shall be equal to such Holder's Percentage Interest with respect to Partnership Common Units.
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Section 6.4 Tax Allocations.
A. In General. Except as otherwise provided in this Section 6.4, for income tax purposes under the Code and the Regulations each Partnership item of income, gain, loss and deduction (collectively, " Tax Items ") shall be allocated among the Holders in the same manner as its correlative item of "book" income, gain, loss or deduction is allocated pursuant to Sections 6.2 and 6.3 hereof.
B. Section 704(c) Allocations. Notwithstanding Section 6.4.A hereof, Tax Items with respect to Property that is contributed to the Partnership with a Gross Asset Value that varies from its basis in the hands of the contributing Partner immediately preceding the date of contribution shall be allocated among the Holders for income tax purposes pursuant to Regulations promulgated under Code Section 704(c) so as to take into account such variation. The Partnership shall account for such variation under any method approved under Code Section 704(c) and the applicable Regulations as chosen by the Managing General Partner. In the event that the Gross Asset Value of any partnership asset is adjusted pursuant to subsection (b) of the definition of "Gross Asset Value" (provided in Article 1 hereof), subsequent allocations of Tax Items with respect to such asset shall take account of the variation, if any, between the adjusted basis of such asset and its Gross Asset Value in the same manner as under Code Section 704(c) and the applicable Regulations and using the method chosen by the Managing General Partner.
ARTICLE 7
MANAGEMENT AND OPERATIONS OF BUSINESS
Section 7.1 Management.
A. Except as otherwise expressly provided in this Agreement or as delegated or provided to an Additional General Partner by the Managing General Partner pursuant to Section 4.2.A and Section 11.2 hereof, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the Managing General Partner, and no Limited Partner (other than the Special Limited Partner in its capacity as the sole member of the Managing General Partner) shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. No General Partner may be removed by the Partners, with or without cause, except with the consent of the Managing General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to the General Partner under any other provision of this Agreement, the Managing General Partner, subject to the other provisions hereof including, without limitation, Section 3.1, Section 3.2, and Section 7.3, shall have full power and authority to do all things deemed necessary or desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 3.2 hereof and to effectuate the purposes set forth in Section 3.1 hereof, including, without limitation:
(1) the making of any expenditures, the lending or borrowing of money or selling of assets (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to the Holders in such amounts as will permit the Special Limited Partner (so long as the Special Limited Partner qualifies as a REIT) to prevent the imposition of any Federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders sufficient to permit the Special Limited Partner to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any obligations that the Managing General Partner deems necessary for the conduct of the activities of the Partnership;
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(2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(3) subject to Section 11.2 hereof, the acquisition, sale, transfer, exchange or other disposition of any, all or substantially all of the assets (including the goodwill) of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger, consolidation, reorganization or other combination of the Partnership with or into another entity;
(4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the assignment of any assets of the Partnership in trust for creditors or on the promise of the assignee to pay the debts of the Partnership, the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms that the Managing General Partner sees fit, including, without limitation, the financing of the operations and activities of the Managing General Partner, the Partnership or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including, without limitation, the Managing General Partner and/or the Partnership's Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership's Subsidiaries;
(5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property;
(6) the negotiation, execution and performance of any contracts, including leases (including ground leases), easements, management agreements, rights of way and other property-related agreements, conveyances or other instruments that the Managing General Partner considers useful or necessary to the conduct of the Partnership's operations or the implementation of the Managing General Partner's powers under this Agreement, including contracting with contractors, developers, consultants, governmental authorities, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation, as applicable, out of the Partnership's assets;
(7) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, and the collection and receipt of revenues, rents and income of the Partnership;
(8) the selection and dismissal of employees of the Partnership (if any) or the Managing General Partner (including, without limitation, employees having titles or offices such as "president," "vice president," "secretary" and "treasurer"), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the Managing General Partner and the determination of their compensation and other terms of employment or hiring;
(9) the maintenance of such insurance (including, without limitation, directors and officers insurance) for the benefit of the Partnership and the Partners (including, without limitation, the Special Limited Partner) as the Managing General Partner deems necessary or appropriate;
(10) the formation of, or acquisition of an interest in, and the contribution of property to, any further limited or general partnerships, limited liability companies, joint ventures or other relationships that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which the Managing General Partner has an equity investment from time to time); provided, however, that, as long as the Special Limited Partner has determined to continue to qualify as a REIT, the Managing
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General Partner will not engage in any such formation, acquisition or contribution that would cause the Special Limited Partner to fail to qualify as a REIT;
(11) the control of any matters affecting the rights and obligations of the Partnership, including the settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense, and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(12) the undertaking of any action in connection with the Partnership's direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(13) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the Managing General Partner may adopt; provided, however, that such methods are otherwise consistent with the requirements of this Agreement;
(14) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Partnership;
(15) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(16) the exercise of any of the powers of the Managing General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(17) the exercise of any of the powers of the Managing General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(18) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases, confessions of judgment or any other legal instruments or agreements in writing necessary or appropriate in the judgment of the Managing General Partner for the accomplishment of any of the powers of the Managing General Partner enumerated in this Agreement;
(19) the issuance of additional Partnership Units in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(20) an election to dissolve the Partnership pursuant to Section 13.1.B hereof; and
(21) the distribution of cash to acquire Partnership Common Units held by a Limited Partner in connection with a Redemption under Section 15.1 hereof.
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B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the Managing General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners or any other Persons, notwithstanding any other provision of the Act or any applicable law, rule or regulation.
C. At all times from and after the date hereof, the Managing General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after the date hereof, the Managing General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the Managing General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the Managing General Partner may, but shall be under no obligation to (except as otherwise provided by this Agreement with respect to the obligation to the Special Limited Partner), take into account the tax consequences to any Partner of any action taken by it. The Managing General Partner, the Special Limited Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the Managing General Partner pursuant to its authority under this Agreement.
Section 7.2 Certificate of Limited Partnership. To the extent that such action is determined by the Managing General Partner to be reasonable and necessary or appropriate, the Managing General Partner shall file amendments to and restatements of the Certificate and do all the things to maintain the Partnership as a limited partnership (or a partnership in which the limited partners have limited liability) under the laws of the State of Delaware and each other state, the District of Columbia or any other jurisdiction, in which the Partnership may elect to do business or own property. Subject to the terms of Section 8.5.A hereof, the Managing General Partner shall not be required, before or after filing, to deliver or mail a copy of the Certificate or any amendment thereto to any Limited Partner. The Managing General Partner shall use all reasonable efforts to cause to be filed such other certificates or documents as may be reasonable and necessary or appropriate for the formation, continuation, qualification and operation of a limited partnership (or a partnership in which the limited partners have limited liability to the extent provided by applicable law) in the State of Delaware and any other state, or the District of Columbia or other jurisdiction, in which the Partnership may elect to do business or own property.
Section 7.3 Restrictions on Managing General Partner's Authority.
A. The Managing General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose except as otherwise provided in this Agreement, including, without limitation, Section 7.10;
(3) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability except as provided herein or under the Act; or
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(5) enter into any contract, mortgage, loan or other agreement that expressly prohibits or restricts (a) the Managing General Partner or the Partnership from performing its specific obligations under Section 15.1 hereof in full or (b) a Limited Partner from exercising its rights under Section 15.1 hereof to effect a Redemption in full, except, in either case, with the written consent of such Limited Partner affected by the prohibition or restriction.
B. Except as provided in Section 7.3C hereof, the Managing General Partner shall not, without the prior Consent of the Partners, amend, modify or terminate this Agreement.
C. Notwithstanding Section 7.3.B and 14.2 hereof, the Managing General Partner shall have the power, without the Consent of the Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1) to add to the obligations of the Managing General Partner or surrender any right or power granted to the Managing General Partner or any Affiliate of the Managing General Partner (including the delegation or surrender of any power to any Additional General Partner admitted to the Partnership pursuant to the terms hereof) for the benefit of the Limited Partners;
(2) to reflect the admission, substitution or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibit A in connection with such admission, substitution or withdrawal;
(3) to reflect a change that is of an inconsequential nature or does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4) to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a Federal or state agency or contained in Federal or state law (collectively, " Legal Requirements ");
(5) (a) to reflect such changes as are reasonably necessary for the Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements, or (b) to reflect the Transfer of all or any part of a Partnership Interest among the Special Limited Partner and any "qualified REIT subsidiary" (within the meaning of Code Section 856(i)(2)) with respect to the Special Limited Partner;
(6) to modify either or both of the manner in which items of Net Income or Net Loss are allocated pursuant to Article VI or the manner in which Capital Accounts are adjusted, computed, or maintained (but in each case only to the extent set forth in the definition of "Capital Account" or the flush language of Section 6.2);
(7) the issuance of additional Partnership Interests in accordance with Section 4.2; and
(8) to reflect any other modification to this Agreement as is reasonably necessary for the business or operations of the Partnership or the Special Limited Partner and which does not violate Section 7.3.D.
D. Notwithstanding Sections 7.3.B, 7.3.C and 14.2 hereof, this Agreement shall not be amended, and no action may be taken by the Managing General Partner, without the consent of each Partner adversely affected thereby, if such amendment or action would (i) convert a Limited Partner Interest in the Partnership into a General Partner Interest (except as a result of the Managing General Partner acquiring such Partnership Interest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2.A(4) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, as
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permitted pursuant to Sections 4.2, 7.3.C and Article 6 hereof), (iv) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Section 15.1 hereof, or amend or modify any related definitions, (v) alter or modify Section 11.2 hereof, (vi) remove, alter or amend the powers and restrictions related to REIT requirements or to permit the Special Limited Partner to avoid paying tax under Sections 857 or 4981 contained in Sections 3.1, 3.2, 7.1 and 7.3, or (vii) amend this Section 7.3.D. Further, no amendment may alter the restrictions on the Managing General Partner's authority set forth elsewhere in this Section 7.3 without the consent specified therein. Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner.
Section 7.4 Reimbursement of the Managing General Partner and the Special Limited Partner.
A. Neither the Managing General Partner nor the Special Limited Partner shall be compensated for its services as managing general partner or limited partner of the Partnership except as provided in this Agreement (including the provisions of Articles 5 and 6 hereof regarding distributions, payments and allocations to which they may be entitled in their respective capacities as the Managing General Partner and the Special Limited Partner).
B. Subject to Sections 7.4.C and 15.12 hereof, the Partnership shall be liable for, and shall reimburse the Managing General Partner and the Special Limited Partner, as applicable, on a monthly basis, or such other basis as the Managing General Partner may determine in its sole and absolute discretion, for all sums expended in connection with the Partnership's business, including, without limitation, (i) expenses relating to the ownership of interests in and management and operation of, or for the benefit of, the Partnership, (ii) compensation of officers and employees, including, without limitation, payments under future compensation plans, of the Special Limited Partner, the Managing General Partner, or the Partnership that may provide for stock units, or phantom stock, pursuant to which employees of the Special Limited Partner, the Managing General Partner, or the Partnership will receive payments based upon dividends on or the value of REIT Shares, (iii) director or manager fees and expenses of the Special Limited Partner or its Affiliates, and (iv) all costs and expenses of the Special Limited Partner being a public company, including costs of filings with the SEC, reports and other distributions to its shareholders; provided, however, that the amount of any reimbursement shall be reduced by any interest earned by the Managing General Partner or the Special Limited Partner with respect to bank accounts or other instruments or accounts held by it on behalf of the Partnership as permitted pursuant to Section 7.5 hereof. Such reimbursements shall be in addition to any reimbursement of the Managing General Partner and the Special Limited Partner as a result of indemnification pursuant to Section 7.7 hereof.
C. To the extent practicable, Partnership expenses shall be billed directly to and paid by the Partnership and, subject to Section 15.12 hereof, reimbursements to the Managing General Partner, the Special Limited Partner or any of their respective Affiliates by the Partnership pursuant to this Section 7.4 shall be treated as "guaranteed payments" within the meaning of Code Section 707(c) and shall not be treated as distributions for purposes of computing the Partners' Capital Accounts.
Section 7.5 Outside Activities of the Managing General Partner and the Special Limited Partner. Neither the Managing General Partner nor the Special Limited Partner shall directly or indirectly enter into or conduct any business, other than in connection with, (a) with respect to the Managing General Partner, the ownership, acquisition and disposition of Partnership Interests as the Managing General Partner, (b) with respect to the Managing General Partner, the management of the business of the Partnership, (c) with respect to the Special Limited Partner, the operation of the Special Limited Partner as a reporting company with a class (or classes) of securities registered under the Exchange Act, (d) with respect to the Special Limited Partner, its operations as a REIT, (e) with respect to the Special Limited Partner, the offering, sale, syndication, private placement or public offering of stock, bonds, securities or other interests, (f) financing or refinancing of any type related to the Partnership or
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its assets or activities, and (g) such activities as are incidental thereto; provided, however, that each of the Managing General Partner and the Special Limited Partner may, in its sole and absolute discretion, from time to time hold or acquire assets in its own name or otherwise other than through the Partnership so long as each of the Managing General Partner and the Special Limited Partner takes commercially reasonable measures to insure that the economic benefits and burdens of such Property are otherwise vested in the Partnership, whether by electing to treat such asset as an "Excluded Property" hereunder, through assignment, mortgage loan or otherwise or, if it is not commercially reasonable to vest such economic interests in the Partnership, the Partners shall negotiate in good faith to amend this Agreement, including, without limitation, the definition of "Adjustment Factor," to reflect such activities and the direct ownership of assets by the Managing General Partner or the Special Limited Partner, as applicable. Nothing contained herein shall be deemed to prohibit the Managing General Partner from executing guarantees of Partnership debt for which it would otherwise be liable in its capacity as Managing General Partner. The Managing General Partner, the Special Limited Partner and all "qualified REIT subsidiaries" (within the meaning of Code Section 856(i)(2)), taken as a group, shall not own any assets or take title to assets (other than temporarily in connection with an acquisition prior to contributing such assets to the Partnership) other than (i) Excluded Properties, (ii) interests in "qualified REIT subsidiaries" (within the meaning of Code Section 856(i)(2)), (iii) Partnership Interests as the Managing General Partner or Special Limited Partner and (iv) such cash and cash equivalents, bank accounts or similar instruments or accounts as such group deems reasonably necessary, taking into account Section 7.1.D hereof and the requirements necessary for the Special Limited Partner to qualify as a REIT and for the Managing General Partner and the Special Limited Partner to carry out their respective responsibilities contemplated under this Agreement and the Charter. The Managing General Partner and any Affiliates of the Managing General Partner may acquire Limited Partner Interests and shall be entitled to exercise all rights of a Limited Partner relating to such Limited Partner Interests. Nothing in this Agreement shall limit, or be deemed to limit, (A) the ability of the Managing General Partner, the Special Limited Partner or any of their respective Subsidiaries to form (or acquire an interest in) a partnership or limited liability company with any other Person into which such Person shall contribute or otherwise assign or transfer (or has contributed or otherwise assigned or transferred) certain assets or properties of such Person for partnership or membership interests in such partnership or limited liability company, as the case may be, or (B) the ability of the Special Limited Partner to own any interest in any financing vehicle that is otherwise not a Subsidiary of the Partnership, which will be deemed to be an Excluded Property.
Section 7.6 Transactions with Affiliates.
A. The Partnership may lend or contribute funds or other assets to the Special Limited Partner and its Subsidiaries or other Persons in which the Special Limited Partner has an equity investment, and such Persons may borrow funds from the Partnership, on terms and conditions no less favorable to the Partnership in the aggregate than would be available from unaffiliated third parties as determined by the Managing General Partner in good faith ( provided , however , that the foregoing limitation shall not apply to any transaction between the Partnership and its Subsidiaries in which the Special Limited Partner does not own an equity interest other than through the Partnership). The foregoing authority shall not create any right or benefit in favor of any Subsidiary or any other Person. It is expressly acknowledged and agreed by each Partner that the Special Limited Partner may, in the sole and absolute discretion of the Managing General Partner, (i) borrow funds from the Partnership in order to redeem, at any time or from time to time, options or warrants previously or hereafter issued by the Special Limited Partner, (ii) put to the Partnership, for cash, any rights, options, warrants or convertible or exchangeable securities that the Special Limited Partner may desire or be required to purchase or redeem or (iii) borrow funds from the Partnership to acquire assets that become Excluded Properties or will be contributed to the Partnership for Partnership Units. If the Special Limited Partner acquires a corporation in which the Partnership does not hold an interest, in whole or in part, with the proceeds (whether comprised of cash or other assets) of a loan from the Partnership to the Special Limited
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Partner, the Partnership shall issue to such corporation an interest in the Partnership that (i) entitles the holder thereof to receive distributions in amounts and at the same times as interest payments on such loan (with appropriate reductions in such distributions if any portion of the loan is repaid), (ii) entitles the holder thereof to receive, if and to the extent that any portion of such loan is repaid, a number of Partnership Units equal to the quotient obtained by dividing the principal amount of the loan repaid by the Value of REIT Shares at the date of repayment (it being understood and agreed that if the loan is repaid with funds contributed to such corporation by the Special Limited Partner from the proceeds of a sale of REIT Shares, the market price Value of REIT Shares at the date of repayment shall be deemed to be the net price per share at which such shares were sold), and (iii) is automatically redeemed for no consideration upon the repayment in full of such loan.
B. Except as provided in Section 7.5 hereof and subject to Section 3.1 hereof, the Partnership may transfer assets to joint ventures, limited liability companies, partnerships, corporations, business trusts or other business entities in which it is or thereby becomes a participant upon such terms and subject to such conditions consistent with this Agreement and applicable law as the Managing General Partner, believes, in good faith, to be advisable.
C. The Managing General Partner, the Special Limited Partner and their respective Affiliates may sell, transfer or convey any property to the Partnership, directly or indirectly, on terms and conditions no less favorable to the Partnership in the aggregate than would be available from unaffiliated third parties as determined by the Managing General Partner in good faith; provided , however , that the foregoing limitation shall not apply to any transaction between the Partnership and its Subsidiaries in which the Special Limited Partner does not own an equity interest other than through the Partnership.
D. The Managing General Partner or the Special Limited Partner, in their respective sole and absolute discretion and without the approval of the Partners or any of them or any other Persons, may propose and adopt (on behalf of the Partnership) employee benefit plans funded by the Partnership for the benefit of employees of the Managing General Partner, the Partnership, the Special Limited Partner, Subsidiaries of the Partnership or any Affiliate of any of them in respect of services performed, directly or indirectly, for the benefit of the Managing General Partner, the Special Limited Partner, the Partnership or any of the Partnership's Subsidiaries.
Section 7.7 Indemnification.
A. To the fullest extent permitted by applicable law, the Partnership shall indemnify each Indemnitee from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including, without limitation, attorney's fees and other legal fees and expenses), judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative, that relate to the operations of the Partnership (" Actions ") as set forth in this Agreement in which such Indemnitee may be involved, or is threatened to be involved, as a party or otherwise; provided, however, that the Partnership shall not indemnify an Indemnitee (i) if the act or omission of the Indemnitee was material to the matter giving rise to the Action and either was committed in bad faith or was the result of active and deliberate dishonesty; (ii) in the case of any criminal proceeding, the Indemnitee had reasonable cause to believe that the act or omission was unlawful; or (iii) for any transaction for which such Indemnitee received an improper personal benefit in violation or breach of any provision of this Agreement; and provided, further, that (x) no payments pursuant to this Agreement shall be made by the Partnership to indemnify or advance funds to any Indemnitee with respect to any Action initiated or brought voluntarily by such Indemnitee (and not by way of defense) unless (I) approved or authorized by the Managing General Partner or (II) incurred to establish or enforce such Indemnitee's right to indemnification under this Agreement, and (y) the Partnership shall not be liable for any expenses incurred by an Indemnitee in connection
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with one or more Actions or claims brought by the Partnership or involving such Indemnitee if such Indemnitee is found liable to the Partnership on any portion of any claim in any such Action.
Without limitation, the foregoing indemnity shall extend to any liability of any Indemnitee, pursuant to a loan guaranty or otherwise, for any indebtedness of the Partnership or any Subsidiary of the Partnership (including, without limitation, any indebtedness which the Partnership or any Subsidiary of the Partnership has assumed or taken subject to), and the Managing General Partner is hereby authorized and empowered, on behalf of the Partnership, to enter into one or more indemnity agreements consistent with the provisions of this Section 7.7 in favor of any Indemnitee having or potentially having liability for any such indebtedness. It is the intention of this Section 7.7.A that the Partnership indemnify each Indemnitee to the fullest extent permitted by law. The termination of any proceeding by judgment, order or settlement does not create a presumption that the Indemnitee did not meet the requisite standard of conduct set forth in this Section 7.7.A. The termination of any proceeding by conviction of an Indemnitee or upon a plea of nolo contendere or its equivalent by an Indemnitee, or an entry of an order of probation against an Indemnitee prior to judgment, creates a rebuttable presumption that such Indemnitee acted in a manner contrary to that specified in this Section 7.7.A with respect to the subject matter of such proceeding. Any indemnification pursuant to this Section 7.7 shall be made only out of the assets of the Partnership, and neither the Managing General Partner nor any other Holder shall have any obligation to contribute to the capital of the Partnership or otherwise provide funds to enable the Partnership to fund its obligations under this Section 7.7.
B. To the fullest extent permitted by law, expenses incurred by an Indemnitee who is a party to a proceeding or otherwise subject to or the focus of or is involved in any Action shall be paid or reimbursed by the Partnership as incurred by the Indemnitee in advance of the final disposition of the Action upon receipt by the Partnership of (i) a written affirmation by the Indemnitee of the Indemnitee's good faith belief that the standard of conduct necessary for indemnification by the Partnership as authorized in Section 7.7A has been met, and (ii) a written undertaking by or on behalf of the Indemnitee to repay the amount if it shall ultimately be determined that the standard of conduct has not been met.
C. The indemnification provided by this Section 7.7 shall be in addition to any other rights to which an Indemnitee or any other Person may be entitled under any agreement, pursuant to any vote of the Partners, as a matter of law or otherwise, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee unless otherwise provided in a written agreement with such Indemnitee or in the writing pursuant to which such Indemnitee is indemnified.
D. The Partnership may, but shall not be obligated to, purchase and maintain insurance, on behalf of any of the Indemnitees and such other Persons as the Managing General Partner shall determine, against any liability that may be asserted against or expenses that may be incurred by such Person in connection with the Partnership's activities, regardless of whether the Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement.
E. Any liabilities which an Indemnitee incurs as a result of acting on behalf of the Partnership, the Managing General Partner or the Special Limited Partner (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the IRS, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities or judgments or fines under this Section 7.7, unless such liabilities arise as a result of (i) an act or omission of such Indemnitee that was material to the matter giving rise to the Action and either was committed in bad faith or was the result of active and
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deliberate dishonesty; (ii) in the case of any criminal proceeding, an act or omission that such Indemnitee had reasonable cause to believe was unlawful, or (iii) any transaction in which such Indemnitee received a personal benefit in violation or breach of any provision of this Agreement or applicable law.
F. In no event may an Indemnitee subject any of the Holders to personal liability by reason of the indemnification provisions set forth in this Agreement.
G. An Indemnitee shall not be denied indemnification in whole or in part under this Section 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
H. The provisions of this Section 7.7 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons. Any amendment, modification or repeal of this Section 7.7 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Partnership's liability to any Indemnitee under this Section 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
I. It is the intent of the parties that any amounts paid by the Partnership to the Managing General Partner pursuant to this Section 7.7 shall be treated as "guaranteed payments" within the meaning of Code Section 707(c).
Section 7.8 Liability of the Managing General Partner and the Special Limited Partner.
A. Notwithstanding anything to the contrary set forth in this Agreement, neither the Managing General Partner (nor the Special Limited Partner as the managing member for the Managing General Partner) nor any of their respective directors or officers shall be liable or accountable in damages or otherwise to the Partnership, any Partners, or any Assignees for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission if the Managing General Partner, the Special Limited Partner or such director or officer acted in good faith.
B. The Limited Partners expressly acknowledge that (i) the Managing General Partner (and the Special Limited Partner, as the managing Member of the Managing General Partner) is acting for the benefit of the Partnership, the Limited Partners and the Special Limited Partner's shareholders collectively, (ii) the Special Limited Partner is under no obligation to give priority to the separate interests of the Limited Partners (including, without limitation, the tax consequences to Limited Partners or Assignees) in deciding whether to cause the Partnership to take (or decline to take) any actions, and (iii) the Managing General Partner shall not be liable to the Partnership or to any Partner for monetary damages for losses sustained, liabilities incurred or benefits not derived by the Limited Partners in connection with such decisions, provided that the Managing General Partner has acted in good faith.
C. Subject to its obligations and duties as Managing General Partner set forth in Section 7.1.A hereof, the Managing General Partner may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents or through the Special Limited Partner (subject to the supervision and control of the Managing General Partner and the Special Limited Partner). The Managing General Partner shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faith.
D. Any amendment, modification or repeal of this Section 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Managing General Partner's, the
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Special Limited Partner's and their respective officers' and directors', liability to the Partnership and the Limited Partners under this Section 7.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
E. Notwithstanding anything herein to the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Partnership by any Partner pursuant to any other written instrument, no Partner shall have any personal liability whatsoever, to the Partnership or to the other Partners, for the debts or liabilities of the Partnership or the Partnership's obligations hereunder, and the full recourse of the other Partner(s) shall be limited to the interest of that Partner in the Partnership. To the fullest extent permitted by law, no officer, director, member or shareholder of the Managing General Partner or the Special Limited Partner shall be liable to the Partnership for money damages except for (i) active and deliberate dishonesty established by a non-appealable final judgment or (ii) actual receipt of an improper benefit or profit in money, property or services. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Partner, other than its interest in the Partnership, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Partner(s) and arising out of, or in connection with, this Agreement. This Agreement is executed by the officers of the Managing General Partner or of the Special Limited Partner as managing member of the Managing General Partner, solely as officers of the same and not in their own individual capacities.
F. To the extent that, at law or in equity, the Managing General Partner or the Special Limited Partner as the managing member of the Managing General Partner has duties (including fiduciary duties) and liabilities relating thereto to the Partnership or the Limited Partners, neither the Managing General Partner nor the Special Limited Partner shall be liable to the Partnership or to any other Partner for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of the Managing General Partner and the Special Limited Partner otherwise existing at law or in equity, are agreed by the Partners to replace such other duties and liabilities of such Managing General Partner.
G. Whenever in this Agreement the Managing General Partner is permitted or required to make a decision (i) in its "sole discretion" or "discretion" or under a grant of similar authority or latitude, the Managing General Partner shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest or factors affecting the Partnership or the Partners or any of them, or (ii) in its "good faith" or under another expressed standard, the Managing General partner shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise. If any question should arise with respect to the operation of the Partnership, which is not otherwise specifically provided for in this Agreement or the Act, or with respect to the interpretation of this Agreement, the Managing General Partner is hereby authorized to make a final determination with respect to any such question and to interpret this Agreement in such a manner as it shall deem, in its sole discretion, to be fair and equitable, and its determination and interpretations so made shall be final and binding on all parties. The Managing General Partner's "sole discretion" and "discretion" under this Agreement shall be exercised in good faith.
Section 7.9 Other Matters Concerning the Managing General Partner and the Special Limited Partner.
A. The Managing General Partner and the Special Limited Partner may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument,
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opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties.
B. The Managing General Partner and the Special Limited Partner may consult with legal counsel, accountants, appraisers, management consultants, investment bankers, architects, engineers, environmental consultants and other consultants and advisers selected by it, and any act taken or omitted to be taken in reliance upon the opinion of such Persons as to matters that the Managing General Partner and the Special Limited Partner reasonably believes to be within such Person's professional or expert competence shall be conclusively presumed to have been done or omitted in good faith and in accordance with such opinion.
C. The Managing General Partner shall have the right, in respect of any of its powers or obligations hereunder, to act through any of its duly authorized officers and a duly appointed attorney or attorneys-in-fact (including, without limitation, officers and directors of the Special Limited Partner). Each such attorney shall, to the extent provided by the Managing General Partner in the power of attorney, have full power and authority to do and perform all and every act and duty that is permitted or required to be done by the Managing General Partner hereunder.
D. Notwithstanding any other provision of this Agreement or the Act, any action of the Managing General Partner or the Special Limited Partner on behalf of the Partnership or any decision of the Managing General Partner or the Special Limited Partner to refrain from acting on behalf of the Partnership, undertaken in the good faith belief that such action or omission is necessary or advisable in order (i) to protect the ability of the Special Limited Partner to continue to qualify as a REIT, (ii) for the Special Limited Partner otherwise to satisfy the REIT Requirements, (iii) to avoid the Special Limited Partner incurring any taxes under Code Section 857 or Code Section 4981, or (iv) for any Special Limited Partner Affiliate to continue to qualify as a "qualified REIT subsidiary" (within the meaning of Code Section 856(i)(2)), is expressly authorized under this Agreement and is deemed approved by all of the Limited Partners.
E. To the extent the Special Limited Partner, or its officers or directors, take any action by or on behalf of the Managing General Partner or the Partnership, the Special Limited Partner and its officers and directors shall be entitled to the same protection as the Managing General Partner and its officers and directors.
Section 7.10 Title to Partnership Assets. Title to Partnership assets, whether real, personal or mixed and whether tangible or intangible, shall be deemed to be owned by the Partnership as an entity, and no Partner, individually or collectively with other Partners or Persons, shall have any ownership interest in such Partnership assets or any portion thereof. Title to any or all of the Partnership assets may be held in the name of the Partnership, the Managing General Partner, the Special Limited Partner or one or more nominees, as the Managing General Partner or the Special Limited Partner may determine, including Affiliates of the Managing General Partner or the Special Limited Partner. The Managing General Partner and the Special Limited Partner hereby declare and warrant that any Partnership assets for which legal title is held in the name of the Managing General Partner or the Special Limited Partner, as applicable, or any nominee or Affiliate of the Managing General Partner or the Special Limited Partner shall be held by the Managing General Partner or the Special Limited Partner, as applicable, for the use and benefit of the Partnership in accordance with the provisions of this Agreement. All Partnership assets shall be recorded as the property of the Partnership in its books and records, irrespective of the name in which legal title to such Partnership assets is held.
Section 7.11 Reliance by Third Parties. Notwithstanding anything to the contrary in this Agreement, any Person dealing with the Partnership shall be entitled to assume that the Managing General Partner has full power and authority, without the consent or approval of any other Partner, or Person, to encumber, sell or otherwise use in any manner any and all assets of the Partnership and to enter into any contracts on behalf of the Partnership, and take any and all actions on behalf of the
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Partnership, and such Person shall be entitled to deal with the Managing General Partner as if it were the Partnership's sole party in interest, both legally and beneficially. Each Limited Partner hereby waives any and all defenses or other remedies that may be available against such Person to contest, negate or disaffirm any action of the Managing General Partner in connection with any such dealing. In no event shall any Person dealing with the Managing General Partner or its representatives be obligated to ascertain that the terms of this Agreement have been complied with or to inquire into the necessity or expediency of any act or action of the Managing General Partner or its representatives. Each and every certificate, document or other instrument executed on behalf of the Partnership by the Managing General Partner or its representatives shall be conclusive evidence in favor of any and every Person relying thereon or claiming thereunder that (i) at the time of the execution and delivery of such certificate, document or instrument, this Agreement was in full force and effect, (ii) the Person executing and delivering such certificate, document or instrument was duly authorized and empowered to do so for and on behalf of the Partnership and (iii) such certificate, document or instrument was duly executed and delivered in accordance with the terms and provisions of this Agreement and is binding upon the Partnership.
ARTICLE 8
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
Section 8.1 Limitation of Liability. No Limited Partner shall have any liability under this Agreement except as expressly provided in this Agreement (including, without limitation, Section 10.4 hereof) or under the Act.
Section 8.2 Management of Business. Subject to the rights and powers of the Special Limited Partner hereunder, no Limited Partner or Assignee (other than the Managing General Partner, any of its Affiliates or any officer, director, member, employee, partner, agent or trustee of the Managing General Partner, the Partnership or any of their Affiliates, in their capacity as such) shall take part in the operations, management or control (within the meaning of the Act) of the Partnership's business, transact any business in the Partnership's name or have the power to sign documents for or otherwise bind the Partnership. The transaction of any such business by the Managing General Partner, any of its Affiliates or any officer, director, member, employee, partner, agent, representative, or trustee of the Managing General Partner, the Partnership or any of their Affiliates, in their capacity as such, shall not affect, impair or eliminate the limitations on the liability of the Limited Partners or Assignees under this Agreement.
Section 8.3 Outside Activities of Limited Partners. Subject to any agreements entered into pursuant to Section 7.6 hereof and any other agreements entered into by a Limited Partner or any of its Affiliates with the Managing General Partner, the Partnership or a Subsidiary (including, without limitation, any employment agreement), any Limited Partner (including, subject to Section 7.5 hereof, the Special Limited Partner) and any Assignee, officer, director, employee, agent, trustee, Affiliate, member or shareholder of any Limited Partner shall be entitled to and may have business interests and engage in business activities in addition to those relating to the Partnership, including business interests and activities that are in direct or indirect competition with the Partnership or that are enhanced by the activities of the Partnership. Neither the Partnership nor any Partner shall have any rights by virtue of this Agreement in any business ventures of any Limited Partner or Assignee. Subject to such agreements, none of the Limited Partners nor any other Person shall have any rights by virtue of this Agreement or the partnership relationship established hereby in any business ventures of any other Person (other than the Managing General Partner or the Special Limited Partner, to the extent expressly provided herein), and such Person shall have no obligation pursuant to this Agreement, subject to Section 7.6 hereof and any other agreements entered into by a Limited Partner or its Affiliates with the Managing General Partner, the Partnership or a Subsidiary, to offer any interest in any such business ventures to the Partnership, any Limited Partner, or any such other Person, even if
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such opportunity is of a character that, if presented to the Partnership, any Limited Partner or such other Person, could be taken by such Person. Notwithstanding any other provision of this Agreement, including without limitation Section 7.1.A and Section 7.5, one or more Affiliates of the Special Limited Partner may own membership interests or similar equity interests in one or more Subsidiaries, provided that the aggregate amount of such interests owned by the Affiliates of the Special Limited Partner in any one Subsidiary shall not exceed 5% of such Subsidiary's outstanding membership or similar equity interests and provided further that, at or promptly following the acquisition by such Affiliates of the Special Limited Partner of such interests, such interest(s) are listed as Excluded Properties on Exhibit C hereto.
Section 8.4 Return of Capital. Except pursuant to the rights of Redemption set forth in Section 15.1 hereof, no Limited Partner shall be entitled to the withdrawal or return of its Capital Contribution, except to the extent of distributions made pursuant to this Agreement or upon termination of the Partnership as provided herein. Except to the extent provided in Article 6 hereof or otherwise expressly provided in this Agreement, no Limited Partner or Assignee shall have priority over any other Limited Partner or Assignee either as to the return of Capital Contributions or as to profits, losses or distributions.
Section 8.5 Rights of Limited Partners Relating to the Partnership.
A. In addition to other rights provided by this Agreement or by the Act, and except as limited by Section 8.5.C hereof, the Managing General Partner shall deliver to each Limited Partner a copy of any information mailed to all of the common shareholders of the Special Limited Partner as soon as practicable after such mailing.
B. The Partnership shall notify any Limited Partner that is a Qualifying Party, on request, of the then current Adjustment Factor and any change made to the Adjustment Factor shall be set forth in the quarterly report required by Section 9.3.B hereof immediately following the date such change becomes effective.
C. Notwithstanding any other provision of this Section 8.5, the Managing General Partner may keep confidential from the Limited Partners (or any of them), for such period of time as the Managing General Partner determines in its sole and absolute discretion to be reasonable, any information that (i) the Managing General Partner believes to be in the nature of trade secrets or other information the disclosure of which the Managing General Partner in good faith believes is not in the best interests of the Partnership or the Managing General Partner or (ii) the Partnership or the Managing General Partner is required by law or by agreement to keep confidential.
Section 8.6 Partnership Right to Call Limited Partner Interests.
Notwithstanding any other provision of this Agreement, on and after the date on which the aggregate Percentage Interests of the Limited Partners (other than the Special Limited Partner) are less than one percent (1%), the Partnership shall have the right, but not the obligation, from time to time and at any time to redeem any and all outstanding Limited Partner Interests (other than the Special Limited Partner's Limited Partner Interests) by treating any Limited Partner as a Tendering Party who has delivered a Notice of Redemption pursuant to Section 15.1 hereof for the amount of Partnership Common Units to be specified by the Managing General Partner, in its sole and absolute discretion, by notice to such Limited Partner that the Partnership has elected to exercise its rights under this Section 8.6. Such notice given by the Managing General Partner to a Limited Partner pursuant to this Section 8.6 shall be treated as if it were a Notice of Redemption delivered to the Managing General Partner by such Limited Partner. For purposes of this Section 8.6, (a) any Limited Partner (whether or not otherwise a Qualifying Party) may, in the Managing General Partner's sole and absolute discretion, be treated as a Qualifying Party that is a Tendering Party and (b) the provisions of Sections 15.1.F(2)
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and 15.1.F(3) hereof shall not apply, but the remainder of Section 15.1 hereof shall apply, mutatis mutandis .
ARTICLE 9
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1 Records and Accounting.
A. The Managing General Partner shall keep or cause to be kept at the principal office of the Partnership those records and documents required to be maintained by the Act and other books and records deemed by the Managing General Partner to be appropriate with respect to the Partnership's business, including, without limitation, all books and records necessary to provide to the Limited Partners any information, lists and copies of documents required to be provided pursuant to Section 8.5.A, Section 9.3 or Article 13 hereof. Any records maintained by or on behalf of the Partnership in the regular course of its business may be kept on any information storage device, provided that the records so maintained are convertible into clearly legible written form within a reasonable period of time.
B. The books of the Partnership shall be maintained, for financial and tax reporting purposes, on an accrual basis in accordance with generally accepted accounting principles, or on such other basis as the Managing General Partner determines to be necessary or appropriate. To the extent permitted by sound accounting practices and principles, the Partnership and the Managing General Partner may operate with integrated or consolidated accounting records, operations and principles.
Section 9.2 Partnership Year. The Partnership Year of the Partnership shall be the calendar year.
Section 9.3 Reports.
A. As soon as practicable, but in no event later than one hundred five (105) days after the close of each Partnership Year, the Managing General Partner shall cause to be mailed to each Limited Partner of record as of the close of the Partnership Year, financial statements of the Partnership, or of the Special Limited Partner if such statements are prepared solely on a consolidated basis with the Special Limited Partner, for such Partnership Year, presented in accordance with generally accepted accounting principles, such statements to be audited by a nationally recognized firm of independent public accountants selected by the Managing General Partner.
B. As soon as practicable, but in no event later than sixty (60) days after the close of each calendar quarter (except the last calendar quarter of each year), the Managing General Partner shall cause to be mailed to each Limited Partner of record as of the last day of the calendar quarter, a report containing unaudited financial statements of the Partnership for such calendar quarter, or of the Special Limited Partner if such statements are prepared solely on a consolidated basis with the Special Limited Partner, and such other information as may be required by applicable law or regulation or as the Managing General Partner determines to be appropriate.
C. The Managing General Partner shall have satisfied its obligations under Section 9.3A and Section 9.3B by posting or making available the reports required by this Section 9.3 on the website maintained from time to time by the Partnership or the Special Limited Partner, provided that such reports are able to be printed or downloaded from such website.
D. At the request of any Limited Partner, the Managing General Partner shall provide access to the books, records and workpapers upon which the reports required by this Section 9.3 are based, to the extent required by the Act.
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ARTICLE 10
TAX MATTERS
Section 10.1 Preparation of Tax Returns. The Managing General Partner shall arrange for the preparation and timely filing of all returns with respect to Partnership income, gains, deductions, losses and other items required of the Partnership for Federal and state income tax purposes and shall use all reasonable efforts to furnish, within ninety (90) days of the close of each taxable year, the tax information reasonably required by Limited Partners and for Federal and state income tax and any other tax reporting purposes. The Limited Partners shall promptly provide the Managing General Partner with such information relating to the Contributed Properties as is readily available to the Limited Partners, including tax basis and other relevant information, as may be reasonably requested by the Managing General Partner from time to time.
Section 10.2 Tax Elections. Except as otherwise provided herein, the Managing General Partner shall, in its sole and absolute discretion, determine whether to make any available election pursuant to the Code, including, but not limited to, the election under Code Section 754 and the election to use the "recurring item" method of accounting provided under Code Section 461(h) with respect to property taxes imposed on the Partnership's Properties; provided, however, that, if the "recurring item" method of accounting is elected with respect to such property taxes, the Partnership shall pay the applicable property taxes prior to the date provided in Code Section 461(h) for purposes of determining economic performance. The Managing General Partner shall have the right to seek to revoke any such election (including, without limitation, any election under Code Sections 461(h) and 754) upon the Managing General Partner's determination in its sole and absolute discretion that such revocation is in the best interests of the Partners.
Section 10.3 Tax Matters Partner.
A. The Managing General Partner shall be the "tax matters partner" of the Partnership for Federal income tax purposes. The tax matters partner shall receive no compensation for its services. All third-party costs and expenses incurred by the tax matters partner in performing its duties as such (including legal and accounting fees and expenses) shall be borne by the Partnership in addition to any reimbursement pursuant to Section 7.4 hereof. Nothing herein shall be construed to restrict the Partnership from engaging an accounting firm to assist the tax matters partner in discharging its duties hereunder. At the request of any Limited Partner, the Managing General Partner agrees to inform such Limited Partner regarding the preparation and filing of any returns and with respect to any subsequent audit or litigation relating to such returns.
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B. The tax matters partner is authorized, but not required:
(1) to enter into any settlement with the IRS with respect to any administrative or judicial proceedings for the adjustment of Partnership items required to be taken into account by a Partner for income tax purposes (such administrative proceedings being referred to as a " tax audit " and such judicial proceedings being referred to as " judicial review "), and in the settlement agreement the tax matters partner may expressly state that such agreement shall bind all Partners, except that such settlement agreement shall not bind any Partner (i) who (within the time prescribed pursuant to the Code and Regulations) files a statement with the IRS providing that the tax matters partner shall not have the authority to enter into a settlement agreement on behalf of such Partner (as the case may be) or (ii) who is a "notice partner" (as defined in Code Section 6231) or a member of a "notice group" (as defined in Code Section 6223(b)(2));
(2) in the event that a notice of a final administrative adjustment at the Partnership level of any item required to be taken into account by a Partner for tax purposes (a " final adjustment ") is mailed to the tax matters partner, to seek judicial review of such final adjustment, including the filing of a petition for readjustment with the United States Tax Court or the United States Claims Court, or the filing of a complaint for refund with the District Court of the United States for the district in which the Partnership's principal place of business is located;
(3) to intervene in any action brought by any other Partner for judicial review of a final adjustment;
(4) to file a request for an administrative adjustment with the IRS at any time and, if any part of such request is not allowed by the IRS, to file an appropriate pleading (petition or complaint) for judicial review with respect to such request;
(5) to enter into an agreement with the IRS to extend the period for assessing any tax that is attributable to any item required to be taken into account by a Partner for tax purposes, or an item affected by such item; and
(6) to take any other action on behalf of the Partners or any of them in connection with any tax audit or judicial review proceeding to the extent permitted by applicable law or regulations.
The taking of any action and the incurring of any expense by the tax matters partner in connection with any such proceeding, except to the extent required by law, is a matter in the sole and absolute discretion of the tax matters partner and the provisions relating to indemnification of the Managing General Partner set forth in Section 7.7 hereof shall be fully applicable to the tax matters partner in its capacity as such.
Section 10.4 Withholding. Each Limited Partner hereby authorizes the Partnership to withhold from or pay on behalf of or with respect to such Limited Partner any amount of Federal, state, local or foreign taxes that the Partnership is required to withhold or pay with respect to any amount distributable or allocable to such Limited Partner pursuant to this Agreement, including, without limitation, any taxes required to be withheld or paid by the Partnership pursuant to Code Section 1441, Code Section 1442, Code Section 1445 or Code Section 1446. Any amount paid on behalf of or with respect to a Limited Partner shall constitute a loan by the Partnership to such Limited Partner, which loan shall be repaid by such Limited Partner within thirty (30) days after the affected Limited Partner receives written notice from the Managing General Partner that such payment must be made, provided that the Limited Partner shall not be required to repay such deemed loan if either (i) the Partnership withholds such payment from a distribution that would otherwise be made to the Limited Partner or (ii) the Managing General Partner determines, in its sole and absolute discretion, that such payment may be satisfied out of the Available Cash of the Partnership that would, but for such payment, be distributed to the Limited Partner. Any amounts payable by a Limited Partner hereunder shall bear interest at the base rate on corporate loans at large United States money center commercial banks, as
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published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate) from the date such amount is due ( i.e. , thirty (30) days after the Limited Partner receives written notice of such amount) until such amount is paid in full.
Section 10.5 Organizational Expenses. The Managing General Partner may cause the Partnership to elect to deduct expenses, if any, incurred by it in organizing the Partnership ratably over a 180-month period as provided in Section 709 of the Code.
ARTICLE 11
PARTNER TRANSFERS AND WITHDRAWALS
Section 11.1 Transfer.
A. No part of the interest of a Partner shall be subject to the claims of any creditor, to any spouse for alimony or support, or to legal process, and may not be voluntarily or involuntarily alienated or encumbered except as may be specifically provided for in this Agreement.
B. No Partnership Interest shall be Transferred, in whole or in part, except in accordance with the terms and conditions set forth in this Article 11. Any Transfer or purported Transfer of a Partnership Interest not made in accordance with this Article 11 shall be null and void ab initio .
C. Notwithstanding the other provisions of this Article 11 (other than Section 11.6.D hereof), the respective Partnership Interests of the Managing General Partner and the Special Limited Partner may be Transferred, in whole or in part, at any time or from time to time, to or among the Managing General Partner, the Special Limited Partner, and any other Person that is, at the time of such Transfer, an Affiliate of the Special Limited Partner, including any "qualified REIT subsidiary" (within the meaning of Code Section 856(i)(2)). Any transferee of the entire General Partner Interest pursuant to this Section 11.1.C shall, upon compliance with Section 12.1.A hereof, become, without further action or consent of any Partners or other Persons, the sole Managing General Partner of the Partnership, subject to all the rights, privileges, duties and obligations under this Agreement and the Act relating to a Managing General Partner. Any transferee of a Special Limited Partner Interest pursuant to this Section 11.1.C shall, upon its execution of a counterpart of this Agreement, become, without further action or consent of any Partner or any other Person, a Substituted Limited Partner (as a Special Limited Partner). Upon any Transfer of the Managing General Partner's entire General Partner Interest (other than a pledge, hypothecation, encumbrance or mortgage) permitted by this Section 11.1.C, the transferor Partner shall be relieved of all its obligations under this Agreement from and after the date of such Transfer. The provisions of Section 11.2.B, 11.3, 11.4.A and 11.5 hereof shall not apply to any Transfer permitted by this Section 11.1.C.
D. No Transfer of any Partnership Interest may be made to a lender to the Partnership or any Person who is related (within the meaning of Section 1.752-4(b) of the Regulations) to any lender to the Partnership whose loan constitutes a Nonrecourse Liability, without the consent of the Managing General Partner in its sole and absolute discretion; provided, however, that as a condition to such consent, the lender will be required to enter into an arrangement with the Partnership and the Managing General Partner to redeem or exchange for the REIT Shares Amount any Partnership Units in which a security interest is held by such lender simultaneously with the time at which such lender would be deemed to be a partner in the Partnership for purposes of allocating liabilities to such lender under Section 752 of the Code (provided that for purpose of calculating the REIT Shares Amount in this Section 11.1.D, "Tendered Units" shall mean all such Partnership Units in which a security interest is held by such lender).
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Section 11.2 Transfer of General Partner's Partnership Interest.
A. The Managing General Partner may not Transfer any of its General Partner Interest or withdraw from the Partnership except as provided in Sections 11.1.C, 11.2.B and 11.2.C hereof. The term "Transfer", when used in this Section 11.2 with respect to the General Partner Interest, shall be deemed to include a Transfer of the General Partner Interest resulting from any merger, consolidation or other combination by the Special Limited Partner with or into another Person (other than a Subsidiary of the Special Limited Partner), the sale of all or substantially all of the assets of the Special Limited Partner and its Subsidiaries, taken as a whole, or any reclassification, recapitalization or change of the outstanding equity interests of the Special Limited Partner, but shall exclude the transactions described in Section 11.3.B hereof.
B. Except as provided in Section 11.1.C, this Section 11.2.B and Section 11.2.C hereof, the Managing General Partner shall not withdraw from the Partnership and shall not Transfer all of its interest in the Partnership (whether by sale, disposition, statutory merger or consolidation, liquidation or otherwise) without the Consent of the Limited Partners. Upon any Transfer of such a Partnership Interest pursuant to the Consent of the Limited Partners and otherwise in accordance with the provisions of this Section 11.2.B, the transferee shall become a successor Managing General Partner for all purposes herein, and shall be vested with the powers and rights of the transferor Managing General Partner, and shall be liable for all obligations and responsible for all duties of the Managing General Partner, once such transferee has executed such instruments as may be necessary to effectuate such admission and to confirm the agreement of such transferee to be bound by all the terms and provisions of this Agreement with respect to the Partnership Interest so acquired. It is a condition to any Transfer otherwise permitted hereunder that the transferee assumes, by operation of law or express agreement, all of the obligations of the transferor Managing General Partner under this Agreement with respect to such Transferred Partnership Interest, and such Transfer shall relieve the transferor Managing General Partner of its obligations under this Agreement without the Consent of the Limited Partners. In the event that the Managing General Partner withdraws from the Partnership in violation of this Agreement or otherwise, or otherwise dissolves or terminates, or upon the bankruptcy of the Managing General Partner, a Majority in Interest of the Limited Partners may elect to continue the Partnership business by selecting a successor Managing General Partner in accordance with Section 13.1.A hereof.
C. The Managing General Partner may, with the Consent of the Limited Partners, merge with another entity if immediately after such merger substantially all the assets of the surviving entity, other than the General Partner Interest held by the Managing General Partner, are contributed to the Partnership as a Capital Contribution in exchange for Partnership Units.
D. No Additional General Partner shall Transfer any of its General Partner Interest or withdraw from the Partnership except with the consent of the Managing General Partner.
Section 11.3 Limited Partners' Rights to Transfer.
A. General. Prior to the end of the first Fourteen-Month Period and except as provided in Section 11.1.C hereof, no Limited Partner shall Transfer all or any portion of its Partnership Interest to any transferee without the consent of the Managing General Partner, which consent may be withheld in its sole and absolute discretion; provided, however, that any Limited Partner may, at any time, without the consent of the Managing General Partner, (i) Transfer all or part of its Partnership Interest to any Family Member, any Charity, any Controlled Entity or any Affiliate, or (ii) pledge (a " Pledge ") all or any portion of its Partnership Interest to a lending institution as collateral or security for a bona fide loan or other extension of credit, and Transfer such pledged Partnership Interest to such lending institution in connection with the exercise of remedies under such loan or extension of credit (any Transfer or Pledge permitted by this proviso is hereinafter referred to as a " Permitted Transfer "). After such first Fourteen-Month Period, each Limited Partner, and each transferee of Partnership Units or Assignee pursuant to a Permitted Transfer,
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shall have the right to Transfer all or any portion of its Partnership Interest to any Person, subject to the provisions of Section 11.4 hereof and to satisfaction of each of the following conditions:
(1) Special Limited Partner Right of First Refusal. The transferring Partner (or the Partner's estate in the event of the Partner's death) shall give written notice of the proposed Transfer to the Managing General Partner and the Special Limited Partner, which notice shall state (i) the identity and address of the proposed transferee and (ii) the amount and type of consideration proposed to be received for the Transferred Partnership Units. The Special Limited Partner shall have ten (10) Business Days upon which to give the Transferring Partner notice of its election to acquire the Partnership Units on the terms set forth in such notice. If it so elects, it shall purchase the Partnership Units on such terms within ten (10) Business Days after giving notice of such election; provided, however, that in the event that the proposed terms involve a purchase for cash, the Special Limited Partner may at its election deliver in lieu of all or any portion of such cash a note from the Special Limited Partner payable to the Transferring Partner at a date as soon as reasonably practicable, but in no event later than one hundred eighty (180) days after such purchase, and bearing interest at an annual rate equal to the total dividends declared with respect to one (1) REIT Share for the four (4) preceding fiscal quarters of the Managing General Partner, divided by the Value as of the closing of such purchase; and provided, further, that such closing may be deferred to the extent necessary to effect compliance with the Hart-Scott-Rodino Antitrust Improvements Act of 1976, if applicable, and any other applicable requirements of law. If it does not so elect, the Transferring Partner may Transfer such Partnership Units to a third party, on terms no more favorable to the transferee than the proposed terms, subject to the other conditions of this Section 11.3.
(2) Qualified Transferee. Any Transfer of a Partnership Interest shall be made only to a single Qualified Transferee; provided, however, that, for such purposes, all Qualified Transferees that are Affiliates, or that comprise investment accounts or funds managed by a single Qualified Transferee and its Affiliates, shall be considered together to be a single Qualified Transferee; and provided, further, that each Transfer meeting the minimum Transfer restriction of Section 11.3.A(4) hereof may be to a separate Qualified Transferee.
(3) Opinion of Counsel. The Transferor shall deliver or cause to be delivered to the Managing General Partner an opinion of counsel reasonably satisfactory to it to the effect that the proposed Transfer may be effected without registration under the Securities Act and will not otherwise violate the registration provisions of the Securities Act and the regulations promulgated thereunder or violate any state securities laws or regulations applicable to the Partnership or the Partnership Interests Transferred; provided, however, that the Managing General Partner may, in its sole discretion, waive this condition upon the request of the Transferor. If, in the opinion of such counsel, such Transfer would require the filing of a registration statement under the Securities Act or would otherwise violate any Federal or state securities laws or regulations applicable to the Partnership or the Partnership Units, the Managing General Partner may prohibit any Transfer otherwise permitted under this Section 11.3 by a Limited Partner of Partnership Interests.
(4) Minimum Transfer Restriction. Any Transferring Partner must Transfer not less than the lesser of (i) five hundred (500) Partnership Units or (ii) all of the remaining Partnership Units owned by such Transferring Partner, unless, in each case, otherwise agreed to by the Managing General Partner in its sole and absolute discretion; provided, however, that, for purposes of determining compliance with the foregoing restriction, all Partnership Units owned by Affiliates of a Limited Partner shall be considered to be owned by such Limited Partner.
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(5) No Further Transfers. The transferee shall not be permitted to effect any further Transfer of the Partnership Units, other than to the Special Limited Partner.
(6) Exception for Permitted Transfers. The conditions of Sections 11.3.A(1) through 11.3.A(5) hereof shall not apply in the case of a Permitted Transfer.
It is a condition to any Transfer otherwise permitted hereunder (whether or not such Transfer is effected during or after the first Fourteen-Month Period) that the transferee assumes by operation of law or express agreement all of the obligations of the transferor Limited Partner under this Agreement with respect to such Transferred Partnership Interest, and no such Transfer (other than pursuant to a statutory merger or consolidation wherein all obligations and liabilities of the transferor Partner are assumed by a successor corporation by operation of law) shall relieve the transferor Partner of its obligations under this Agreement without the approval of the Managing General Partner, in its sole and absolute discretion. Notwithstanding the foregoing, any transferee of any Transferred Partnership Interest shall be subject to any and all ownership limitations (including, without limitation, the Ownership Limit) contained in the Charter that may limit or restrict such transferee's ability to exercise its Redemption rights, including, without limitation, the Ownership Limit. Any transferee, whether or not admitted as a Substituted Limited Partner, shall take subject to the obligations of the transferor hereunder. Unless admitted as a Substituted Limited Partner, no transferee, whether by a voluntary Transfer, by operation of law or otherwise, shall have any rights hereunder, other than the rights of an Assignee as provided in Section 11.5 hereof.
B. Certain Transactions of the Special Limited Partner. Notwithstanding anything to the contrary in this Agreement, the Special Limited Partner may merge, consolidate or otherwise combine its assets with another entity, sell all or substantially all of its assets or reclassify, recapitalize or change its outstanding equity interests if:
(i) in connection with such merger, consolidation, combination, sale, reclassification, recapitalization or change, all of the Limited Partners (other than the Special Limited Partner) will receive, or will have the right to elect to receive, for each Partnership Unit an amount of cash, securities or other property equal to the product of the Adjustment Factor and the greatest amount of cash, securities or other property paid to a holder of one REIT Share in consideration of one REIT Share pursuant to the terms of such merger, consolidation or combination; provided, that if, in connection with such merger, consolidation, combination, sale, reclassification, recapitalization or change, a purchase, tender or exchange offer shall have been made to and accepted by the holders of the outstanding REIT Shares, each holder of Partnership Units (other than the Special Limited Partner) shall receive, or shall have the right to elect to receive, the greatest amount of cash, securities or other property which such holder of Partnership Units would have received had it exercised its right to Redemption pursuant to Article 15 hereof and received REIT Shares in exchange for its Partnership Units immediately prior to the expiration of such purchase, tender or exchange offer and had thereupon accepted such purchase, tender or exchange offer and then such merger, consolidation or combination shall have been consummated; or
(ii) the following conditions are met: (w) substantially all of the assets directly or indirectly owned by the surviving entity, other than the Partnership Units held by the Special Limited Partner, are owned directly or indirectly by the Partnership or another limited partnership or limited liability company which is the survivor of a merger, consolidation or combination of assets with the Partnership (in each case, the " Surviving Partnership "); (x) the holders of Partnership Units own a percentage interest of the Surviving Partnership based on the relative fair market value of the net assets of the Partnership and the other net assets of the Surviving Partnership immediately prior to the consummation of such transaction; (y) the rights, preferences and privileges of such holders in the Surviving Partnership are at least as
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favorable as those in effect immediately prior to the consummation of such transaction and as those applicable to any other limited partners or non-managing members of the Surviving Partnership; and (z) the rights of the Limited Partners include at least one of the following: (a) the right to redeem their interests in the Surviving Partnership for the consideration available to such persons pursuant to Section 11.3.B(i) or (b) the right to redeem their Partnership Units for cash on terms equivalent to those in effect with respect to their Partnership Units immediately prior to the consummation of such transaction, or, if the ultimate controlling person of the Surviving Partnership has publicly traded common equity securities, such common equity securities, with an exchange ratio based on the determination of relative fair market value of such securities and the REIT Shares.
C. Incapacity. If a Limited Partner is subject to Incapacity, the executor, administrator, trustee, committee, guardian, conservator or receiver of such Limited Partner's estate shall have all the rights of a Limited Partner, but not more rights than those enjoyed by other Limited Partners, for the purpose of settling or managing the estate, and such power as the Incapacitated Limited Partner possessed to Transfer all or any part of its interest in the Partnership. The Incapacity of a Limited Partner, in and of itself, shall not dissolve or terminate the Partnership.
D. Adverse Tax Consequences. No Transfer by a Limited Partner of its Partnership Interests (including any Redemption, any other acquisition of Partnership Units by the Managing General Partner or any acquisition of Partnership Units by the Partnership) may be made to or by any Person if (i) in the opinion of legal counsel for the Partnership, it would result in the Partnership being treated as an association taxable as a corporation or would result in a termination of the Partnership under Code Section 708 or (ii) such Transfer would be effectuated through an "established securities market" or a "secondary market (or the substantial equivalent thereof)" within the meaning of Code Section 7704.
Section 11.4 Substituted Limited Partners.
A. No Limited Partner shall have the right to substitute a transferee (including any transferees pursuant to Transfers permitted by Section 11.3 hereof) as a Limited Partner in its place. A transferee of the interest of a Limited Partner may be admitted as a Substituted Limited Partner only with the consent of the Managing General Partner, which consent may be given or withheld by the Managing General Partner in its sole and absolute discretion. The failure or refusal by the Managing General Partner to permit a transferee of any such interests to become a Substituted Limited Partner shall not give rise to any cause of action against the Partnership or the Managing General Partner. Subject to the foregoing, an Assignee shall not be admitted as a Substituted Limited Partner until and unless it furnishes to the Managing General Partner (i) evidence of acceptance, in form and substance satisfactory to the Managing General Partner, of all the terms, conditions and applicable obligations of this Agreement, (ii) a counterpart signature page to this Agreement executed by such Assignee and (iii) such other documents and instruments as may be required or advisable, in the sole and absolute discretion of the Managing General Partner, to effect such Assignee's admission as a Substituted Limited Partner.
B. Concurrently with, and as evidence of, the admission of a Substituted Limited Partner, the Managing General Partner shall amend Exhibit A and the books and records of the Partnership to reflect the name, address and number of Partnership Units of such Substituted Limited Partner and to eliminate or adjust, if necessary, the name, address and number of Partnership Units of the predecessor of such Substituted Limited Partner.
C. A transferee who has been admitted as a Substituted Limited Partner in accordance with this Article 11 shall have all the rights and powers and be subject to all the restrictions and liabilities of a Limited Partner under this Agreement.
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Section 11.5 Assignees. If the Managing General Partner, in its sole and absolute discretion, does not consent to the admission of any permitted transferee under Section 11.3 hereof as a Substituted Limited Partner, as described in Section 11.4 hereof, such transferee shall be considered an Assignee for purposes of this Agreement. An Assignee shall be entitled to all the rights of an assignee of a limited partnership interest under the Act, including the right to receive distributions from the Partnership and the share of Net Income, Net Losses and other items of income, gain, loss, deduction and credit of the Partnership attributable to the Partnership Units assigned to such transferee and the rights to Transfer the Partnership Units provided in this Article 11, but shall not be deemed to be a holder of Partnership Units for any other purpose under this Agreement (other than as expressly provided in Section 15.1 hereof with respect to a Qualifying Party that becomes a Tendering Party), and shall not be entitled to effect a Consent or vote with respect to such Partnership Units on any matter presented to the Limited Partners for approval (such right to Consent or vote, to the extent provided in this Agreement or under the Act, fully remaining with the transferor Limited Partner). In the event that any such transferee desires to make a further assignment of any such Partnership Units, such transferee shall be subject to all the provisions of this Article 11 to the same extent and in the same manner as any Limited Partner desiring to make an assignment of Partnership Units.
Section 11.6 General Provisions.
A. No Limited Partner may withdraw from the Partnership other than as a result of a permitted Transfer of all of such Limited Partner's Partnership Units in accordance with this Article 11, with respect to which the transferee becomes a Substituted Limited Partner, or pursuant to a redemption (or acquisition by the Special Limited Partner) of all of its Partnership Units pursuant to a Redemption under Section 15.1 hereof and/or pursuant to any Partnership Unit Designation.
B. Any Limited Partner who shall Transfer all of its Partnership Units in a Transfer (i) permitted pursuant to this Article 11 where such transferee was admitted as a Substituted Limited Partner, (ii) pursuant to the exercise of its rights to effect a redemption of all of its Partnership Units pursuant to a Redemption under Section 15.1 hereof and/or pursuant to any Partnership Unit Designation or (iii) to the Special Limited Partner, whether or not pursuant to Section 15.1.B hereof, shall cease to be a Limited Partner.
C. If any Partnership Unit is Transferred in compliance with the provisions of this Article 11, or is redeemed by the Partnership, or acquired by the Special Limited Partner pursuant to Section 15.1 hereof, on any day other than the first day of a Partnership Year, then Net Income, Net Losses, each item thereof and all other items of income, gain, loss, deduction and credit attributable to such Partnership Unit for such Partnership Year shall be allocated to the transferor Partner or the Tendering Party (as the case may be) and, in the case of a Transfer other than a Redemption, to the transferee Partner, by taking into account their varying interests during the Partnership Year in accordance with Code Section 706(d), using the "interim closing of the books" method or another permissible method selected by the Managing General Partner. Solely for purposes of making such allocations, each of such items for the calendar month in which a Transfer occurs shall be allocated to the transferee Partner and none of such items for the calendar month in which a Transfer or a Redemption occurs shall be allocated to the transferor Partner, or the Tendering Party (as the case may be) if such Transfer occurs on or before the fifteenth (15th) day of the month, otherwise such items shall be allocated to the transferor. All distributions of Available Cash attributable to such Partnership Unit with respect to which the Partnership Record Date is before the date of such Transfer, assignment or Redemption shall be made to the transferor Partner or the Tendering Party (as the case may be) and, in the case of a Transfer other than a Redemption, all distributions of Available Cash thereafter attributable to such Partnership Unit shall be made to the transferee Partner.
D. In addition to any other restrictions on Transfer herein contained, in no event may any Transfer of a Partnership Interest by any Partner (including any Redemption, any acquisition of
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Partnership Units by the Special Limited Partner or any other acquisition of Partnership Units by the Partnership) be made: (i) to any person or entity who lacks the legal right, power or capacity to own a Partnership Interest; (ii) in violation of applicable law; (iii) of any component portion of a Partnership Interest, such as the Capital Account, or rights to distributions, separate and apart from all other components of a Partnership Interest; (iv) in the event that such Transfer would cause either the Special Limited Partner or any Special Limited Partner Affiliate to cease to comply with the REIT Requirements or to cease to qualify as a "qualified REIT subsidiary" (within the meaning of Code Section 856(i)(2)); (v) if such Transfer would, in the opinion of counsel to the Partnership or the Managing General Partner, cause a termination of the Partnership for Federal or state income tax purposes (except as a result of the Redemption (or acquisition by the Special Limited Partner) of all Partnership Common Units held by all Limited Partners); (vi) if such Transfer would, in the opinion of legal counsel to the Partnership, cause the Partnership to cease to be classified as a partnership for Federal income tax purposes (except as a result of the Redemption (or acquisition by the Special Limited Partner) of all Partnership Common Units held by all Limited Partners (other than the Special Limited Partner)); (vii) if such Transfer would cause the Partnership to become, with respect to any employee benefit plan subject to Title I of ERISA, a "party-in-interest" (as defined in ERISA Section 3(14)) or a "disqualified person" (as defined in Code Section 4975(c)); (viii) if such Transfer would, in the opinion of legal counsel to the Partnership, cause any portion of the assets of the Partnership to constitute assets of any employee benefit plan pursuant to Department of Labor Regulations Section 2510.3-101; (ix) if such Transfer requires the registration of such Partnership Interest pursuant to any applicable Federal or state securities laws; (x) if such Transfer causes the Partnership to become a "publicly traded partnership," as such term is defined in Code Section 469(k)(2) or Code 7704(b); (xi) if such Transfer causes the Partnership (as opposed to the Managing General Partner) to become a reporting company under the Exchange Act; or (xii) if such Transfer subjects the Partnership to regulation under the Investment Company Act of 1940, the Investment Advisors Act of 1940 or ERISA, each as amended. The General Partner shall take all action necessary to avoid the Partnership from being classified as a "publicly traded partnership" under Code Section 7704.
E. Transfers pursuant to this Article 11 may only be made on the first day of a fiscal quarter of the Partnership, unless the Managing General Partner otherwise agrees.
ARTICLE 12
ADMISSION OF PARTNERS
Section 12.1 Admission of Successor Managing General Partner and Additional General Partners.
A. A successor to all of the Managing General Partner's General Partner Interest pursuant to Section 11.1.C or Section 11.2 hereof who is proposed to be admitted as a successor Managing General Partner shall be admitted to the Partnership as the Managing General Partner, effective immediately prior to such Transfer. Any such successor shall carry on the business of the Partnership without dissolution. In each case, the admission shall be subject to the successor Managing General Partner executing and delivering to the Partnership an acceptance of all of the terms and conditions of this Agreement and such other documents or instruments as may be required to effect the admission.
B. A successor to a portion of the Managing General Partner's General Partner Interest pursuant to Section 11.2.B hereof or any Person to be admitted as an Additional General Partner pursuant to Section 4.2.A hereof who is proposed to be admitted as an Additional General Partner shall be admitted to the Partnership as a General Partner, effective immediately prior to such Transfer. Any such Additional General Partner shall carry on the business of the Partnership without dissolution. In each case, the admission shall be subject to the Additional General Partner executing and delivering to the Partnership an acceptance of all of the terms and conditions of this Agreement and such other
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documents or instruments as may be required to effect the admission. Concurrently with, and as evidence of, the admission of an Additional General Partner, the Managing General Partner shall amend Exhibit A and the books and records of the Partnership to reflect the name, address and number of Partnership Units of such Additional General Partner.
Section 12.2 Admission of Additional Limited Partners.
A. After the admission to the Partnership of an Original Limited Partner on the date hereof, a Person (other than an existing Partner) who makes a Capital Contribution to the Partnership in exchange for Partnership Units and in accordance with this Agreement shall be admitted to the Partnership as an Additional Limited Partner only upon furnishing to the Managing General Partner (i) evidence of acceptance, in form and substance satisfactory to the Managing General Partner, of all of the terms and conditions of this Agreement, including, without limitation, the power of attorney granted in Section 2.4 hereof, (ii) a counterpart signature page to this Agreement executed by such Person and (iii) such other documents or instruments as may be required in the sole and absolute discretion of the Managing General Partner in order to effect such Person's admission as an Additional Limited Partner. Concurrently with, and as evidence of, the admission of an Additional Limited Partner, the Managing General Partner shall amend Exhibit A and the books and records of the Partnership to reflect the name, address and number of Partnership Units of such Additional Limited Partner.
B. Notwithstanding anything to the contrary in this Section 12.2, no Person shall be admitted as an Additional Limited Partner without the consent of the Managing General Partner, which consent may be given or withheld in the Managing General Partner's sole and absolute discretion. The admission of any Person as an Additional Limited Partner shall become effective on the date upon which the name of such Person is recorded on the books and records of the Partnership, following the consent of the Managing General Partner to such admission and the satisfaction of all the conditions set forth in Section 12.2.A.
C. If any Additional Limited Partner is admitted to the Partnership on any day other than the first day of a Partnership Year, then Net Income, Net Losses, each item thereof and all other items of income, gain, loss, deduction and credit allocable among Holders for such Partnership Year shall be allocated among such Additional Limited Partner and all other Holders by taking into account their varying interests during the Partnership Year in accordance with Code Section 706(d), using the "interim closing of the books" method or another permissible method selected by the Managing General Partner. Solely for purposes of making such allocations, each of such items for the calendar month in which an admission of any Additional Limited Partner occurs shall be allocated among all the Holders including such Additional Limited Partner, in accordance with the principles described in Section 11.6.C hereof. All distributions of Available Cash with respect to which the Partnership Record Date is before the date of such admission shall be made solely to Partners and Assignees other than the Additional Limited Partner, and all distributions of Available Cash thereafter shall be made to all the Partners and Assignees including such Additional Limited Partner.
D. Any Additional Limited Partner admitted to the Partnership that is an Affiliate of the Managing General Partner shall be deemed to be a "Special Limited Partner Affiliate" hereunder and shall be reflected as such on Exhibit A and the books and records of the Partnership.
Section 12.3 Amendment of Agreement and Certificate of Limited Partnership. For the admission to the Partnership of any Partner, the Managing General Partner shall take all steps necessary and appropriate under the Act to amend the records of the Partnership and, if necessary, to prepare as soon as practical an amendment of this Agreement (including an amendment of Exhibit A ) and, if required by law, shall prepare and file an amendment to the Certificate and may for this purpose exercise the power of attorney granted pursuant to Section 2.4 hereof.
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Section 12.4 Limit on Number of Partners. Unless otherwise permitted by the Managing General Partner in its sole and absolute discretion, no Person shall be admitted to the Partnership as an Additional Limited Partner if the effect of such admission would be to cause the Partnership to have a number of Partners that would cause the Partnership to become a reporting company under the Exchange Act.
Section 12.5 Admission. A Person shall be admitted to the Partnership as a limited partner of the Partnership or a general partner of the Partnership only upon strict compliance, and not upon substantial compliance, with the requirements set forth in this Agreement for admission to the Partnership as a Limited Partner or a General Partner.
ARTICLE 13
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 13.1 Dissolution. The Partnership shall not be dissolved by the admission of Substituted Limited Partners or Additional Limited Partners, by the admission of a successor Managing General Partner or an Additional General Partner in accordance with the terms of this Agreement. Upon the withdrawal of the Managing General Partner, any successor Managing General Partner shall continue the business of the Partnership without dissolution. However, the Partnership shall dissolve, and its affairs shall be wound up, upon the first to occur of any of the following (each a " Liquidating Event "):
A. an event of withdrawal, as defined in the Act (including, without limitation, bankruptcy), of the sole Managing General Partner unless, within ninety (90) days after the withdrawal, a Majority in Interest of the Partners remaining agree in writing, in their sole and absolute discretion, to continue the business of the Partnership and to the appointment, effective as of the date of withdrawal, of a successor Managing General Partner;
B. an election to dissolve the Partnership made by the Managing General Partner in its sole and absolute discretion, with or without the Consent of the Partners;
C. entry of a decree of judicial dissolution of the Partnership pursuant to the provisions of the Act;
D. any sale or other disposition of all or substantially all of the assets of the Partnership or a related series of transactions that, taken together, result in the sale or other disposition of all or substantially all of the assets of the Partnership;
E. the Redemption (or acquisition by the Special Limited Partner) of all Partnership Common Units other than Partnership Common Units held by the Managing General Partner or the Special Limited Partner; or
F. the Redemption (or acquisition by the Special Limited Partner) of all Partnership Units other than Partnership Units held by the Managing General Partner or the Special Limited Partner.
Section 13.2 Winding Up.
A. Upon the occurrence of a Liquidating Event, the Partnership shall continue solely for the purposes of winding up its affairs in an orderly manner, liquidating its assets and satisfying the claims of its creditors and the Holders. After the occurrence of a Liquidating Event, no Holder shall take any action that is inconsistent with, or not necessary to or appropriate for, the winding up of the Partnership's business and affairs. The Managing General Partner (or, in the event that there is no remaining Managing General Partner or the Managing General Partner has dissolved, become bankrupt within the meaning of the Act or ceased to operate, any Person elected by a Majority in Interest of the Partners (the Managing General Partner or such other Person being referred to herein as the " Liquidator ")) shall be responsible for overseeing the winding up and dissolution of the Partnership and
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shall take full account of the Partnership's liabilities and property, and the Partnership property shall be liquidated as promptly as is consistent with obtaining the fair value thereof, and the proceeds therefrom (which may, to the extent determined by the Managing General Partner, include shares of stock in the Special Limited Partner) shall be applied and distributed in the following order:
(1) First, to the satisfaction of all of the Partnership's debts and liabilities to creditors other than the Holders (whether by payment or the making of reasonable provision for payment thereof);
(2) Second, to the satisfaction of all of the Partnership's debts and liabilities to the Managing General Partner and the Special Limited Partner (whether by payment or the making of reasonable provision for payment thereof), including, but not limited to, amounts due as reimbursements under Section 7.4 hereof;
(3) Third, to the satisfaction of all of the Partnership's debts and liabilities to the other Holders (whether by payment or the making of reasonable provision for payment thereof);
(4) Fourth, to the Holders in accordance with Section 5.1 above; and
(5) Subject to the terms of any Partnership Unit Designation, the balance, if any, to the Holders in accordance with and in proportion to their positive Capital Account balances, after giving effect to all contributions, distributions and allocations for all periods; provided, however, that it is the intent of the Partners that liquidating distributions shall be made in the same manner as distributions would be made under Section 5.1, and accordingly, to the extent that distributions under Section 13.2(A)(4) and (A)(5) would result in different distributions than had all liquidating distributions been made under Section 5.1, the Capital Accounts of the partners shall be adjusted (including through allocations, or if necessary, credits or debits to Capital Accounts) prior to the liquidating distributions being made to the extent necessary to cause distributions made to each partner under Section 13.2(A)(4) and (A)(5) to be the same as the distributions that would have been made to such partner had liquidating distributions been made in accordance with Section 5.1.
The Managing General Partner shall not receive any additional compensation for any services performed pursuant to this Article 13.
B. Notwithstanding the provisions of Section 13.2.A hereof that require liquidation of the assets of the Partnership, but subject to the order of priorities set forth therein, if prior to or upon dissolution of the Partnership, the Liquidator determines that an immediate sale of part or all of the Partnership's assets would be impractical or would cause undue loss to the Holders, the Liquidator may, in its sole and absolute discretion, defer for a reasonable time the liquidation of any assets except those necessary to satisfy liabilities of the Partnership (including to those Holders as creditors) and/or distribute to the Holders, in lieu of cash, as tenants in common and in accordance with the provisions of Section 13.2.A hereof, undivided interests in such Partnership assets as the Liquidator deems not suitable for liquidation. Any such distributions in kind shall be made only if, in the good faith judgment of the Liquidator, such distributions in kind are in the best interest of the Holders, and shall be subject to such conditions relating to the disposition and management of such properties as the Liquidator deems reasonable and equitable and to any agreements governing the operation of such properties at such time. The Liquidator shall determine the fair market value of any property distributed in kind using such reasonable method of valuation as it may adopt.
C. In the event that the Partnership is "liquidated" within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g), distributions shall be made pursuant to this Article 13 to the Holders (a) first in accordance with Section 5.1 and (b) then to the Holders that have positive Capital Accounts in compliance with Regulations Section 1.704-1(b)(2)(ii)(b)(2) to the extent of, and in proportion to, positive Capital Account balances, but distributions under this clause (b) shall be subject to the proviso set forth above in Section 13.2(A)(5). If any Holder has a deficit balance in its Capital Account (after
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giving effect to all contributions, distributions and allocations for all taxable years, including the year during which such liquidation occurs), such Holder shall have no obligation to make any contribution to the capital of the Partnership with respect to such deficit, and such deficit shall not be considered a debt owed to the Partnership or to any other Person for any purpose whatsoever. In the sole and absolute discretion of the Managing General Partner or the Liquidator, a pro rata portion of the distributions that would otherwise be made to the Holders pursuant to this Article 13 may be:
(1) distributed to a trust established for the benefit of the Managing General Partner and the Holders for the purpose of liquidating Partnership assets, collecting amounts owed to the Partnership, and paying any contingent or unforeseen liabilities or obligations of the Partnership or of the Managing General Partner arising out of or in connection with the Partnership and/or Partnership activities. The assets of any such trust shall be distributed to the Holders, from time to time, in the reasonable discretion of the Managing General Partner, in the same proportions and amounts as would otherwise have been distributed to the Holders pursuant to this Agreement; or
(2) withheld or escrowed to provide a reasonable reserve for Partnership liabilities (contingent or otherwise) and to reflect the unrealized portion of any installment obligations owed to the Partnership, provided that such withheld or escrowed amounts shall be distributed to the Holders in the manner and order of priority set forth in Section 13.2.A hereof as soon as practicable.
Section 13.3 Deemed Contribution and Distribution. Notwithstanding any other provision of this Article 13, in the event that the Partnership is liquidated within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g), but no Liquidating Event has occurred, the Partnership's Property shall not be liquidated, the Partnership's liabilities shall not be paid or discharged and the Partnership's affairs shall not be wound up. Instead, for Federal income tax purposes the Partnership shall be deemed to have contributed all of its assets and liabilities to a new partnership in exchange for an interest in the new partnership; and immediately thereafter, distributed Partnership Units to the Partners in the new partnership in accordance with their respective Capital Accounts in liquidation of the Partnership, and the new partnership is deemed to continue the business of the Partnership. Nothing in this Section 13.3 shall be deemed to have constituted any Assignee as a Substituted Limited Partner without compliance with the provisions of Section 11.4 or Section 13.3 hereof.
Section 13.4 Rights of Holders. Except as otherwise provided in this Agreement, (a) each Holder shall look solely to the assets of the Partnership for the return of its Capital Contribution, (b) no Holder shall have the right or power to demand or receive property other than cash from the Partnership and (c) no Holder shall have priority over any other Holder as to the return of its Capital Contributions, distributions or allocations.
Section 13.5 Notice of Dissolution. In the event that a Liquidating Event occurs or an event occurs that would, but for an election or objection by one or more Partners pursuant to Section 13.1 hereof, result in a dissolution of the Partnership, the Managing General Partner shall, within thirty (30) days thereafter, provide written notice thereof to each Holder and, in the Managing General Partner's sole and absolute discretion or as required by the Act, to all other parties with whom the Partnership regularly conducts business (as determined in the sole and absolute discretion of the Managing General Partner), and the Managing General Partner may, or, if required by the Act, shall, publish notice thereof in a newspaper of general circulation in each place in which the Partnership regularly conducts business (as determined in the sole and absolute discretion of the Managing General Partner).
Section 13.6 Cancellation of Certificate of Limited Partnership. Upon the completion of the liquidation of the Partnership cash and property as provided in Section 13.2 hereof, the Partnership shall be terminated, a certificate of cancellation shall be filed with the State of Delaware, all qualifications of the Partnership as a foreign limited partnership or association in jurisdictions other
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than the State of Delaware shall be cancelled, and such other actions as may be necessary to terminate the Partnership shall be taken.
Section 13.7 Reasonable Time for Winding-Up. A reasonable time shall be allowed for the orderly winding-up of the business and affairs of the Partnership and the liquidation of its assets pursuant to Section 13.2 hereof, in order to minimize any losses otherwise attendant upon such winding-up, and the provisions of this Agreement shall remain in effect between and among the Partners during the period of liquidation.
ARTICLE 14
PROCEDURES FOR ACTIONS AND CONSENTS
OF PARTNERS; AMENDMENTS; MEETINGS
Section 14.1 Procedures for Actions and Consents of Partners. The actions requiring consent or approval of Partners pursuant to this Agreement, including Section 7.3 hereof, or otherwise pursuant to applicable law, are subject to the procedures set forth in this Article 14.
Section 14.2 Amendments. Amendments to this Agreement may be proposed by the Managing General Partner or by Limited Partners holding twenty-five percent (25%) or more of the Partnership Interests held by Limited Partners (excluding the Partnership Interests held by the Special Limited Partner) and, except as set forth in Section 7.3.C and subject to Section 7.3.D, shall be approved by the Consent of the Partners. Following such proposal, the Managing General Partner shall submit to the Partners any proposed amendment that, pursuant to the terms of this Agreement, requires the consent, approval or vote of the Partners holding Partnership Interests entitled to vote thereon. The Managing General Partner shall seek the written consent, approval or vote of the Partners on any such proposed amendment or shall call a meeting to vote thereon and to transact any other business that the Managing General Partner may deem appropriate. For purposes of obtaining a written Consent, the Managing General Partner may require a response within a reasonable specified time, but not less than fifteen (15) days, and failure to respond in such time period shall constitute a Consent that is consistent with the Managing General Partner's recommendation with respect to the proposal; provided, however, that an action shall become effective at such time as requisite Consents are received even if prior to such specified time.
Section 14.3 Meetings of the Partners.
A. Meetings of the Partners may be called only by the Managing General Partner. The call shall state the nature of the business to be transacted. Notice of any such meeting shall be given to all Partners entitled to act at the meeting not less than seven (7) days nor more than sixty (60) days prior to the date of such meeting. Partners may vote in person or by proxy at such meeting. Whenever the vote, consent or approval of Partners is permitted or required under this Agreement, such vote, consent or approval may be given at a meeting of Partners or may be given in accordance with the procedure prescribed in Section 14.3.B hereof.
B. Any action required or permitted to be taken at a meeting of the Partners may be taken without a meeting if a written consent setting forth the action so taken is signed by the holders of a majority of the Percentage Interests of the Partners (or such other percentage as is expressly required by this Agreement for the action in question) entitled to act at the meeting. Such consent may be in one instrument or in several instruments, and shall have the same force and effect as a vote of the holders of a majority of the Percentage Interests of the Partners (or such other percentage as is expressly required by this Agreement) entitled to act at the meeting. Such consent shall be filed with the Managing General Partner. An action so taken shall be deemed to have been taken at a meeting held on the effective date so certified.
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C. Each Partner entitled to act at the meeting may authorize any Person or Persons to act for it by proxy on all matters in which a Partner is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting. Each proxy must be signed by the Partner or its attorney-in-fact. No proxy shall be valid after the expiration of eleven (11) months from the date thereof unless otherwise provided in the proxy (or there is receipt of a proxy authorizing a later date). Every proxy shall be revocable at the pleasure of the Partner executing it, such revocation to be effective upon the Partnership's receipt of written notice of such revocation from the Partner executing such proxy.
D. Each meeting of Partners shall be conducted by the Managing General Partner or such other Person as the Managing General Partner may appoint pursuant to such rules for the conduct of the meeting as the Managing General Partner or such other Person deems appropriate in its sole and absolute discretion. Without limitation, meetings of Partners may be conducted in the same manner as meetings of the Special Limited Partner's shareholders and may be held at the same time as, and as part of, the meetings of the Special Limited Partner's shareholders.
ARTICLE 15
GENERAL PROVISIONS
Section 15.1 Redemption Rights of Qualifying Parties.
A. After the applicable Fourteen-Month Period, a Qualifying Party shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Partnership Common Units held by such Tendering Party (Partnership Common Units that have in fact been tendered for redemption being hereafter referred to as " Tendered Units ") in exchange (a " Redemption ") for the Cash Amount payable on the Specified Redemption Date. The Partnership may, in the Managing General Partner's sole and absolute discretion, redeem Tendered Units at the request of the Holder prior to the end of the applicable Fourteen-Month Period (subject to the terms and conditions set forth herein) (a " Special Redemption "); provided, however, that the Managing General Partner first receives a legal opinion to the same effect as the legal opinion described in Section 15.1.G(4) of this Agreement. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the Managing General Partner and the Special Limited Partner by the Qualifying Party when exercising the Redemption right (the " Tendering Party "). The Partnership's obligation to effect a Redemption, however, shall not arise or be binding against the Partnership until the earlier of (i) the date the Managing General Partner, on behalf of the Partnership, notifies the Tendering Party that the Partnership declines to cause the Special Limited to Partner to acquire some or all of the Tendered Units under Section 15.1.B hereof following receipt of a Notice of Redemption and (ii) the Business Day following the Cut-Off Date. In the event of a Redemption, the Cash Amount shall be delivered as a certified or bank check payable to the Tendering Party or, in the Managing General Partner's sole and absolute discretion, in immediately available funds, in each case, on or before the tenth (10th) Business Day following the date on which the Managing General Partner receives a Notice of Redemption from the Tendering Party.
B. Notwithstanding the provisions of Section 15.1.A hereof, on or before the close of business on the Cut-Off Date, the Partnership may, in the Managing General Partner's sole and absolute discretion but subject to the Ownership Limit and the transfer restrictions and other limitations of the Charter, elect to cause the Special Limited Partner to acquire some or all (such percentage being referred to as the " Applicable Percentage ") of the Tendered Units from the Tendering Party in exchange for REIT Shares. If the Partnership chooses to cause the Special Limited Partner to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the Managing General Partner, on behalf of the Partnership, shall give written notice thereof to the Special Limited Partner and the Tendering Party on or before the close of business on the Cut-Off Date. If the Partnership elects to cause the Special
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Limited Partner to acquire any of the Tendered Units for REIT Shares, the Managing General Partner, on behalf of the Partnership, shall direct the Special Limited Partner to issue and deliver such REIT Shares to the Tendering Party pursuant to the terms of this Section 15.1.B, in which case (1) the Special Limited Partner shall assume directly the obligation with respect thereto and shall satisfy the Tendering Party's exercise of its Redemption right with respect to such Tendered Units, and (2) such transaction shall be treated, for Federal income tax purposes, as a transfer by the Tendering Party of such Tendered Units to the Special Limited Partner in exchange for the REIT Shares Amount. If the Partnership so elects, on the Specified Redemption Date, the Tendering Party shall sell such number of the Tendered Units to the Special Limited Partner in exchange for a number of REIT Shares equal to the product of the REIT Shares Amount and the Applicable Percentage. The Tendering Party shall submit (i) such information, certification or affidavit as the Special Limited Partner may reasonably require in connection with the application of the Ownership Limit and other restrictions and limitations of the Charter to any such acquisition and (ii) such written representations, investment letters, legal opinions or other instruments necessary, in the Special Limited Partner's view, to effect compliance with the Securities Act. In the event of a purchase of the Tendered Units by the Special Limited Partner pursuant to this Section 15.1.B, the Tendering Party shall no longer have the right to cause the Partnership to effect a Redemption of such Tendered Units, and, upon notice to the Tendering Party by the Managing General Partner, given on or before the close of business on the Cut-Off Date, that the Partnership has elected to cause the Special Limited Partner to acquire some or all of the Tendered Units pursuant to this Section 15.1.B, the obligation of the Partnership to effect a Redemption of the Tendered Units as to which the Managing General Partner's notice relates shall not accrue or arise. The product of the Applicable Percentage and the REIT Shares Amount, if applicable, shall be delivered by the Special Limited Partner as duly authorized, validly issued, fully paid and non-assessable REIT Shares and, if applicable, Rights, free of any pledge, lien, encumbrance or restriction, other than the Ownership Limit and other restrictions provided in the Charter, the Securities Act and relevant state securities or "blue sky" laws. Neither any Tendering Party whose Tendered Units are acquired by the Special Limited Partner pursuant to this Section 15.1.B, any Partner, any Assignee nor any other interested Person shall have any right to require or cause the Special Limited Partner to register, qualify or list any REIT Shares owned or held by such Person, whether or not such REIT Shares are issued pursuant to this Section 15.1.B, with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange; provided, however, that this limitation shall not be in derogation of any registration or similar rights granted pursuant to any other written agreement between the Special Limited Partner and any such Person. Notwithstanding any delay in such delivery, the Tendering Party shall be deemed the owner of such REIT Shares and Rights for all purposes, including, without limitation, rights to vote or consent, receive dividends, and exercise rights, as of the Specified Redemption Date. REIT Shares issued upon an acquisition of the Tendered Units by the Special Limited Partner pursuant to this Section 15.1.B may contain such legends regarding restrictions under the Securities Act and applicable state securities laws as the Special Limited Partner in good faith determines to be necessary or advisable in order to ensure compliance with such laws.
C. Notwithstanding the provisions of Section 15.1.A and 15.1.B hereof, the Tendering Parties shall have no rights under this Agreement that would otherwise be prohibited under the Charter with respect to the Ownership Limit. To the extent that any attempted Redemption or acquisition of the Tendered Units by the Special Limited Partner pursuant to Section 15.1.B hereof would be in violation of this Section 15.1.C, it shall be null and void ab initio , and the Tendering Party shall not acquire any rights or economic interests in REIT Shares otherwise issuable by the Special Limited Partner under Section 15.1.B hereof or cash otherwise payable under Section 15.1.A hereof.
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D. If the Partnership does not exercise its right to cause the Special Limited Partner to acquire the Tendered Units pursuant to Section 15.1.B hereof:
(1) The Partnership may elect to raise funds for the payment of the Cash Amount either (a) by requiring that the Special Limited Partner contribute to the Partnership funds from the proceeds of a registered public offering by the Special Limited Partner of REIT Shares sufficient to purchase the Tendered Units or (b) from any other sources (including, but not limited to, the sale of any Property and the incurrence of additional Debt) available to the Partnership. Any proceeds from a public offering that are in excess of the Cash Amount shall be for the sole benefit of the Special Limited Partner. The Special Limited Partner shall make a Capital Contribution of any such amounts to the Partnership for an additional Limited Partner Interest. Any such contribution shall entitle the Special Limited Partner to an equitable Percentage Interest adjustment.
(2) If the Cash Amount is not paid on or before the Specified Redemption Date, interest shall accrue with respect to the Cash Amount from the day after the Specified Redemption Date to and including the date on which the Cash Amount is paid at a rate equal to the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal (but not higher than the maximum lawful rate).
E. Notwithstanding the provisions of Section 15.1.B hereof, the Partnership shall not, under any circumstances, elect to cause the Special Limited Partner to acquire any Tendered Units in exchange for REIT Shares if such exchange would be prohibited under the Charter.
F. Notwithstanding anything herein to the contrary (but subject to Section 15.1.C hereof), with respect to any Redemption (or any tender of Partnership Common Units for Redemption if the Tendered Units are acquired by the Special Limited Partner pursuant to Section 15.1.B hereof) pursuant to this Section 15.1:
(1) All Partnership Common Units acquired by the Special Limited Partner pursuant to Section 15.1.B hereof shall automatically, and without further action required, be converted into and deemed to be a Special Limited Partner's Partner Interest comprised of the same number of Partnership Common Units.
(2) Subject to the Ownership Limit, no Tendering Party may effect a Redemption for less than one thousand (1,000) Partnership Common Units or, if such Tendering Party holds (as a Limited Partner or, economically, as an Assignee) less than one thousand (1,000) Partnership Common Units, all of the Partnership Common Units held by such Tendering Party, unless, in each case, otherwise agreed to by the Managing General Partner in its sole and absolute discretion.
(3) If (i) a Tendering Party surrenders its Tendered Units during the period after the Partnership Record Date with respect to a distribution and before the record date established by the Special Limited Partner for a distribution to its shareholders of some or all of its portion of such Partnership distribution, and (ii) the Partnership elects to cause the Special Limited Partner to acquire any of such Tendered Units in exchange for REIT Shares pursuant to Section 15.1.B, such Tendering Party shall pay to the Managing General Partner on the Specified Redemption Date an amount in cash equal to the portion of the Partnership distribution in respect of the Tendered Units exchanged for REIT Shares, insofar as such distribution relates to the same period for which such Tendering Party would receive a distribution in respect of such REIT Shares.
(4) The consummation of such Redemption (or an acquisition of Tendered Units by the Special Limited Partner pursuant to Section 15.1.B hereof, as the case may be) shall be subject to the expiration or termination of the applicable waiting period, if any, under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
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(5) The Tendering Party shall continue to own (subject, in the case of an Assignee, to the provisions of Section 11.5 hereof) all Partnership Common Units subject to any Redemption, and be treated as a Limited Partner or an Assignee, as applicable, with respect to such Partnership Common Units for all purposes of this Agreement, until such Partnership Common Units are either paid for by the Partnership pursuant to Section 15.1.A hereof or transferred to the Special Limited Partner and paid for, by the issuance of the REIT Shares, pursuant to Section 15.1.B hereof on the Specified Redemption Date. Until a Specified Redemption Date and an acquisition of the Tendered Units by the Special Limited Partner pursuant to Section 15.1.B hereof, the Tendering Party shall have no rights as a shareholder of the Special Limited Partner with respect to the REIT Shares issuable in connection with such acquisition.
G. In connection with an exercise of Redemption rights pursuant to this Section 15.1, the Tendering Party shall submit the following to the Managing General Partner, in addition to the Notice of Redemption:
(1) A written affidavit, dated the same date as the Notice of Redemption, (a) disclosing the actual and constructive ownership, as determined for purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares by (i) such Tendering Party and (ii) to the best of their knowledge any Related Party and (b) representing that, after giving effect to the Redemption or an acquisition of the Tendered Units by the Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party will own REIT Shares in excess of the Ownership Limit;
(2) A written representation that neither the Tendering Party nor to the best of their knowledge any Related Party has any intention to acquire any additional REIT Shares prior to the closing of the Redemption or an acquisition of the Tendered Units by the Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date; and
(3) An undertaking to certify, at and as a condition to the closing of (i) the Redemption or (ii) the acquisition of the Tendered Units by the Special Limited Partner pursuant to Section 15.1.B hereof on the Specified Redemption Date, that either (a) the actual and constructive ownership of REIT Shares by the Tendering Party and to the best of their knowledge any Related Party remain unchanged from that disclosed in the affidavit required by Section 15.1.G(1) or (b) after giving effect to the Redemption or an acquisition of the Tendered Units by the Special Limited Partner pursuant to Section 15.1.B hereof, neither the Tendering Party nor to the best of their knowledge any Related Party shall own REIT Shares in violation of the Ownership Limit.
(4) In connection with any Special Redemption, the Special Limited Partner shall have the right to receive an opinion of counsel reasonably satisfactory to it to the effect that the proposed Special Redemption will not cause the Partnership, the Managing General Partner or the Special Limited Partner to violate any Federal or state securities laws or regulations applicable to the Special Redemption, the issuance and sale of the Tendered Units to the Tendering Party or the issuance and sale of REIT Shares to the Tendering Party pursuant to Section 15.1.B of this Agreement.
Section 15.2 Addresses and Notice. Any notice, demand, request or report required or permitted to be given or made to a Partner or Assignee under this Agreement shall be in writing and shall be deemed given or made when delivered in person or when sent by first class United States mail or by other means of written communication (including by telecopy, facsimile, or commercial courier service) to the Partner, or Assignee at the address set forth in Exhibit A or Exhibit B (as applicable) or such other address of which the Partner shall notify the Managing General Partner in writing.
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Section 15.3 Titles and Captions. All article or section titles or captions in this Agreement are for convenience only. They shall not be deemed part of this Agreement and in no way define, limit, extend or describe the scope or intent of any provisions hereof. Except as specifically provided otherwise, references to "Articles" or "Sections" are to Articles and Sections of this Agreement.
Section 15.4 Pronouns and Plurals. Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa.
Section 15.5 Further Action. The parties shall execute and deliver all documents, provide all information and take or refrain from taking action as may be necessary or appropriate to achieve the purposes of this Agreement.
Section 15.6 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives and permitted assigns.
Section 15.7 Waiver.
A. No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such breach or any other covenant, duty, agreement or condition.
B. The restrictions, conditions and other limitations on the rights and benefits of the Limited Partners contained in this Agreement, and the duties, covenants and other requirements of performance or notice by the Limited Partners, are for the benefit of the Partnership and, except for an obligation to pay money to the Partnership, may be waived or relinquished by the Managing General Partner, in its sole and absolute discretion, on behalf of the Partnership in one or more instances from time to time and at any time; provided, however, that any such waiver or relinquishment may not be made if it would have the effect of (i) creating liability for any other Limited Partner, (ii) causing the Partnership to cease to qualify as a limited partnership, (iii) reducing the amount of cash otherwise distributable to the Limited Partners (other than any such reduction that affects all of the Limited Partners holding the same class or series of Partnership Units on a uniform or pro rata basis, if approved by a Majority in Interest of the Partners holding such class or series of Partnership Units), (iv) resulting in the classification of the Partnership as an association or publicly traded partnership taxable as a corporation or (v) violating the Securities Act, the Exchange Act or any state "blue sky" or other securities laws; and provided, further, that any waiver relating to compliance with the Ownership Limit or other restrictions in the Charter shall be made and shall be effective only as provided in the Charter.
Section 15.8 Counterparts. This Agreement may be executed in counterparts, all of which together shall constitute one agreement binding on all the parties hereto, notwithstanding that all such parties are not signatories to the original or the same counterpart. Each party shall become bound by this Agreement immediately upon affixing its signature hereto.
Section 15.9 Applicable Law; Consent to Jurisdiction; Waiver of Jury Trial.
A. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Delaware, without regard to the principles of conflicts of law. In the event of a conflict between any provision of this Agreement and any non-mandatory provision of the Act, the provisions of this Agreement shall control and take precedence.
B. Each Partner hereby (i) submits to the non-exclusive jurisdiction of any state or federal court sitting in the State of Delaware (collectively, the " Delaware Courts "), with respect to any dispute arising out of this Agreement or any transaction contemplated hereby to the extent such courts would have subject matter jurisdiction with respect to such dispute, (ii) irrevocably waives, and agrees not to assert
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by way of motion, defense, or otherwise, in any such action, any claim that it is not subject personally to the jurisdiction of any of the Delaware Courts, that its property is exempt or immune from attachment or execution, that the action is brought in an inconvenient forum, or that the venue of the action is improper, (iii) agrees that notice or the service of process in any action, suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be properly served or delivered if delivered to such Partner at such Partner's last known address as set forth in the Partnership's books and records, and (iv) irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement or the transactions contemplated hereby.
Section 15.10 Entire Agreement. This Agreement contains all of the understandings and agreements between and among the Partners with respect to the subject matter of this Agreement and the rights, interests and obligations of the Partners with respect to the Partnership. Notwithstanding the immediately preceding sentence, the Partners hereby acknowledge and agree that the Managing General Partner, without the approval of any Limited Partner, may enter into side letters or similar written agreements with Limited Partners that are not Affiliates of the Managing General Partner or the Special Limited Partner, executed contemporaneously with the admission of such Limited Partner to the Partnership, affecting the terms hereof, as negotiated with such Limited Partner and which the Managing General Partner in its sole discretion deems necessary, desirable or appropriate. The parties hereto agree that any terms, conditions or provisions contained in such side letters or similar written agreements with a Limited Partner shall govern with respect to such Limited Partner notwithstanding the provisions of this Agreement.
Section 15.11 Invalidity of Provisions. If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby.
Section 15.12 Limitation to Preserve REIT Status. Notwithstanding anything else in this Agreement, to the extent that the amount paid, credited, distributed or reimbursed by the Partnership to any REIT Partner or its officers, directors, employees or agents, whether as a reimbursement, fee, expense or indemnity (a " REIT Payment "), would constitute gross income to the REIT Partner for purposes of Code Section 856(c)(2) or Code Section 856(c)(3), then, notwithstanding any other provision of this Agreement, the amount of such REIT Payments, as selected by the Managing General Partner in its discretion from among items of potential distribution, reimbursement, fees, expenses and indemnities, shall be reduced for any Partnership Year so that the REIT Payments, as so reduced, for or with respect to such REIT Partner shall not exceed the lesser of:
(i) an amount equal to the excess, if any, of (a) four and nine-tenths percent (4.9%) of the REIT Partner's total gross income (but excluding the amount of any REIT Payments) for the Partnership Year that is described in subsections (A) through (H) of Code Section 856(c)(2) over (b) the amount of gross income (within the meaning of Code Section 856(c)(2)) derived by the REIT Partner from sources other than those described in subsections (A) through (H) of Code Section 856(c)(2) (but not including the amount of any REIT Payments); or
(ii) an amount equal to the excess, if any, of (a) twenty-four percent (24%) of the REIT Partner's total gross income (but excluding the amount of any REIT Payments) for the Partnership Year that is described in subsections (A) through (I) of Code Section 856(c)(3) over (b) the amount of gross income (within the meaning of Code Section 856(c)(3)) derived by the REIT Partner from sources other than those described in subsections (A) through (I) of Code Section 856(c)(3) (but not including the amount of any REIT Payments);
provided, however, that REIT Payments in excess of the amounts set forth in clauses (i) and (ii) above may be made if the Managing General Partner, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts shall not adversely affect the REIT Partner's ability to qualify as a REIT. To the extent that REIT Payments may not be made in a Partnership Year as a
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consequence of the limitations set forth in this Section 15.12, such REIT Payments shall carry over and shall be treated as arising in the following Partnership Year if such carry over does not adversely affect the REIT Partner's ability to qualify as a REIT. The purpose of the limitations contained in this Section 15.12 is to prevent any REIT Partner from failing to qualify as a REIT under the Code by reason of such REIT Partner's share of items, including distributions, reimbursements, fees, expenses or indemnities, receivable directly or indirectly from the Partnership, and this Section 15.12 shall be interpreted and applied to effectuate such purpose.
Section 15.13 REIT Restrictions. Each Affiliated REIT is a REIT and is subject to the provisions of Sections 856 through and including 860 of the Code. So long as an Affiliated REIT owns, directly or indirectly, any interest in the Partnership, then notwithstanding any other provision of this Agreement:
(i) any services that would otherwise cause any rents from a lease to be excluded from treatment as rents from real property pursuant to Section 856(d)(2)(C) of the Code shall be provided by either (1) an independent contractor (as described in Section 856(d)(3) of the Code) with respect to such Affiliated REIT and from whom neither the Partnership nor such Affiliated REIT derives or receives any income or (2) a taxable REIT subsidiary of such Affiliated REIT as described in Section 856(l) of the Code;
(ii) except for a taxable REIT subsidiary of an Affiliated REIT, the Partnership shall not own, directly or indirectly or by attribution (in accordance with attribution rules referred to in Section 856(d)(5) of the Code), in the aggregate more than 10% of the total value of all classes of stock or more than 10% of the total voting power (or, with respect to any such person which is not a corporation, an interest of 10% or more in the assets or net profits of such person) of a lessee or sublessee of all or any part of the Property or of any other assets of the Partnership except in each case with the specific written approval of each Affiliated REIT;
(iii) except for securities of a taxable REIT subsidiary of an Affiliated REIT, the Partnership shall not own or acquire, directly or indirectly or by attribution, more than 10% of the total value or the total voting power of the outstanding securities of any issuer or own any other asset (including a security) which would cause the Affiliated REIT to fail the asset test of Section 856(c)(4)(B) of the Code; and
(iv) leases entered into by the Partnership or any of its Subsidiary partnerships, limited partnerships, and limited liability companies shall provide for rents that qualify as "rents from real property" within the meaning of Section 856(d) of the Code with respect to each Affiliated REIT.
Section 15.14 No Partition. No Partner nor any successor-in-interest to a Partner shall have the right while this Agreement remains in effect to have any property of the Partnership partitioned, or to file a complaint or institute any proceeding at law or in equity to have such property of the Partnership partitioned, and each Partner, on behalf of itself and its successors and assigns hereby waives any such right. It is the intention of the Partners that the rights of the parties hereto and their successors-in-interest to Partnership property, as among themselves, shall be governed by the terms of this Agreement, and that the rights of the Partners and their respective successors-in-interest shall be subject to the limitations and restrictions as set forth in this Agreement.
Section 15.15 No Third-Party Rights Created Hereby. The provisions of this Agreement are solely for the purpose of defining the interests of the Holders, inter se ; and no other person, firm or entity ( i.e. , a party who is not a signatory hereto or a permitted successor to such signatory hereto) shall have any right, power, title or interest by way of subrogation or otherwise, in and to the rights, powers, title and provisions of this Agreement. No creditor or other third party having dealings with the Partnership (other than as expressly set forth herein with respect to Indemnitees) shall have the right to enforce the right or obligation of any Partner to make Capital Contributions or loans to the Partnership or to pursue any other right or remedy hereunder or at law or in equity. None of the rights or obligations of
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the Partners herein set forth to make Capital Contributions or loans to the Partnership shall be deemed an asset of the Partnership for any purpose by any creditor or other third party, nor may any such rights or obligations be sold, transferred or assigned by the Partnership or pledged or encumbered by the Partnership to secure any debt or other obligation of the Partnership or any of the Partners.
Section 15.16 No Rights as Shareholders. Nothing contained in this Agreement shall be construed as conferring upon the Holders of Partnership Units any rights whatsoever as shareholders of the Special Limited Partner, including without limitation any right to receive dividends or other distributions made to shareholders of the Special Limited Partner or to vote or to consent or receive notice as shareholders in respect of any meeting of shareholders for the election of directors of the Special Limited Partner or any other matter.
[Remainder of Page Left Blank Intentionally]
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IN WITNESS WHEREOF, this Agreement has been executed as of the date first written above.
MANAGING GENERAL PARTNER: | |||
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DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, |
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SPECIAL LIMITED PARTNER: |
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DOUGLAS EMMETT, INC., a Maryland corporation, |
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Name: Its: |
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LIMITED PARTNER: | |||
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[ , a ], |
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LIMITED PARTNER: | |||
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Exhibit A
PARTNERS AND PARTNERSHIP UNITS
Name and Address of Partners
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Partnership Units (Type and Amount)
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Managing General Partner: | ||
Douglas Emmett Management, Inc.
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Special Limited Partner: | ||
Douglas Emmett, Inc.
[Address] |
[ ] Partnership Common Units | |
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Limited Partners: | ||
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TOTAL: | [ ] Partnership Common Units |
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Exhibit B
EXAMPLES REGARDING ADJUSTMENT FACTOR
For purposes of the following examples, it is assumed that (a) the Adjustment Factor in effect on December 30, 2005 is 1.0 and (b) on January 1, 2006 (the " Partnership Record Date " for purposes of these examples), prior to the events described in the examples, there are 100 REIT Shares issued and outstanding.
Example 1
On the Partnership Record Date, the Special Limited Partner declares a dividend on its outstanding REIT Shares in REIT Shares. The amount of the dividend is one REIT Share paid in respect of each REIT Share owned. Pursuant to Paragraph (i) of the definition of "Adjustment Factor," the Adjustment Factor shall be adjusted on the Partnership Record Date, effective immediately after the stock dividend is declared, as follows:
1.0 * 200/100 = 2.0
Accordingly, the Adjustment Factor after the stock dividend is declared is 2.0.
Example 2
On the Partnership Record Date, the Special Limited Partner distributes options to purchase REIT Shares to all holders of its REIT Shares. The amount of the distribution is one option to acquire one REIT Share in respect of each REIT Share owned. The strike price is $4.00 a share. The Value of a REIT Share on the Partnership Record Date is $5.00 per share. Pursuant to Paragraph (ii) of the definition of "Adjustment Factor," the Adjustment Factor shall be adjusted on the Partnership Record Date, effective immediately after the options are distributed, as follows:
1.0 * (100 + 100)/(100 + [100 * $4.00/$5.00]) = 1.1111
Accordingly, the Adjustment Factor after the options are distributed is 1.1111. If the options expire or become no longer exercisable, then the retroactive adjustment specified in Paragraph (ii) of the definition of "Adjustment Factor" shall apply.
Example 3
On the Partnership Record Date, the Special Limited Partner distributes assets to all holders of its REIT Shares. The amount of the distribution is one asset with a fair market value (as determined by the Managing General Partner) of $1.00 in respect of each REIT Share owned. It is also assumed that the assets do not relate to assets received by the Managing General Partner pursuant to a pro rata distribution by the Partnership. The Value of a REIT Share on the Partnership Record Date is $5.00 a share. Pursuant to Paragraph (iii) of the definition of "Adjustment Factor," the Adjustment Factor shall be adjusted on the Partnership Record Date, effective immediately after the assets are distributed, as follows:
1.0 * $5.00/($5.00 - $1.00) = 1.25
Accordingly, the Adjustment Factor after the assets are distributed is 1.25.
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Exhibit C
LIST OF EXCLUDED PROPERTIES
None.
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Exhibit D
NOTICE OF REDEMPTION
The undersigned Limited Partner or Assignee hereby irrevocably tenders for Redemption Partnership Common Units in Douglas Emmett Properties, LP in accordance with the terms of the Agreement of Limited Partnership of Douglas Emmett Properties, LP, dated as of [ ], 2005 as amended (the " Agreement "), and the Redemption rights referred to therein. The undersigned Limited Partner or Assignee:
(a) undertakes (i) to surrender such Partnership Common Units and any certificate therefor at the closing of the Redemption and (ii) to furnish to the Managing General Partner, prior to the Specified Redemption Date, the documentation, instruments and information required under Section 15.1.G of the Agreement;
(b) directs that the certified check representing the Cash Amount, or the REIT Shares Amount, as applicable, deliverable upon the closing of such Redemption be delivered to the address specified below;
(c) represents, warrants, certifies and agrees that:
(i) the undersigned Limited Partner or Assignee is a Qualifying Party,
(ii) the undersigned Limited Partner or Assignee has, and at the closing of the Redemption will have, good, marketable and unencumbered title to such Partnership Common Units, free and clear of the rights or interests of any other person or entity,
(iii) the undersigned Limited Partner or Assignee has, and at the closing of the Redemption will have, the full right, power and authority to tender and surrender such Partnership Common Units as provided herein, and
(iv) the undersigned Limited Partner or Assignee has obtained the consent or approval of all persons and entities, if any, having the right to consent to or approve such tender and surrender; and
(d) acknowledges that he will continue to own such Partnership Common Units until and unless either (1) such Partnership Common Units are acquired by the Special Limited Partner pursuant to Section 15.1.B of the Agreement or (2) such redemption transaction closes.
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All capitalized terms used herein and not otherwise defined shall have the same meaning ascribed to them respectively in the Agreement.
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D-3
Exhibit 10.11
This EMPLOYMENT AGREEMENT (the " Agreement ") is made effective as of , 2006 (the " Effective Date ") by and between Douglas Emmett, Inc. (the " Company "), Douglas Emmett Properties, LP (the " Partnership "), and Jordan L. Kaplan (" Executive ") with respect to the following facts and circumstances:
WHEREAS, the Company desires to engage Executive as the President and Chief Executive Officer of the Company, during the Agreement Term (as defined below), on the terms and conditions and for the consideration set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein and for other good and valuable consideration, the parties agree as follows:
1. Effectiveness; Term of Employment. Subject to the provisions of Section 8 of this Agreement, Executive shall be employed by the Company on the terms and subject to the conditions set forth in this Agreement for a period commencing on the Effective Date and ending on December 31, 2010. Commencing on January 1, 2011 and on each January 1 thereafter (each an " Extension Date "), the Agreement Term shall be automatically extended for an additional one-year period unless either the Company or Executive provides the other party hereto sixty (60) days' prior written notice before the next Extension Date that the Agreement Term shall not be so extended (the " Agreement Term ").
2. Position; Duties. During the Agreement Term, Executive shall serve as President and Chief Executive Officer of the Company and the Partnership. In such position, Executive shall have such duties and authority commensurate with such position as shall be determined from time to time by the Board of Directors of the Company (the " Board ") including such duties and responsibilities with respect to any subsidiary, affiliate or joint venture of the Company (each a " Subsidiary "). Subject to the discretion of the Nominating Committee of the Board, Executive shall serve as a member of the Board and of the board of directors (or equivalent) of any Subsidiary without additional compensation. Executive's duties will be principally performed at the Company's headquarters, which will be located within the West Side of Los Angeles, with such travel as may be required to perform his duties hereunder as reasonably requested by the Company.
3. Base Salary. During the Agreement Term, the Company shall pay Executive a base salary at the annual rate of $950,000, payable in regular installments in accordance with the Company's usual payment practices. Executive's salary shall be reviewed at least annually by the Compensation Committee of the Board (the " Committee ") and Executive shall be entitled to such increases in Executive's base salary, if any, as may be determined from time to time in the sole and absolute discretion of the Committee. Executive's annual base salary, as in effect from time to time, is hereinafter referred to as the " Base Salary ."
4. Annual Bonus. With respect to each fiscal year during the Agreement Term, Executive shall be eligible to earn an annual bonus award (the " Annual Bonus ") based upon reasonable criteria to be reasonably established not later than the first thirty (30) days of that fiscal year by the Compensation Committee of the Board in consultation with Executive. The amount of the bonus shall equal the following percentages of Executive's Base Salary during that fiscal year:
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Unless otherwise approved by the Board in its discretion, no bonus will be payable to Executive for any year if Executive does not meet the Threshold criteria established for that year. The Company will pay any Annual Bonus earned by Executive with respect to a given fiscal year in accordance with the terms and conditions of the Company's annual bonus plan, but no later than the earlier of (i) the fifteenth
day of the third month following the end of such fiscal year or (ii) the date that other senior executives are paid similar bonuses.
5. Long-Term Incentive Compensation.
5.1. Option Award. As of the Effective Date, Executive shall be granted an option to purchase 2,488,889 shares of Company stock (the " Option Award ") pursuant to a separate written Non Qualified Stock Option Agreement under the Company's 2006 Omnibus Stock Incentive Plan (the " Plan "). The Option Award shall be subject to the terms and conditions of that agreement and the Plan.
5.2. LTIP Award. As of the Effective Date, Executive shall be granted 420,000 LTIP Units (the " LTIP Award ") pursuant to a separate written LTIP Unit Award Agreement under the Plan. The LTIP Award shall be subject to the terms and conditions of that agreement and the Plan.
6. Employee Benefits. During the Agreement Term, Executive shall be entitled to participate in the Company's employee welfare and retirement benefit plans and perquisite programs as in effect, and subject to such modification as the Company may determine necessary or appropriate, from time to time (collectively " Employee Benefits "), on the same basis as those benefits are generally made available to other senior executives of the Company, which shall in any case include (i) the payment or reimbursement of tax/financial services, the use of and payment of all related expenses for an automobile, and a personal umbrella insurance policy all in amounts and on terms not less favorable than those provided to Executive by the Company's predecessor provided that, any such payment or reimbursement by the Company shall be made no later than the fifteenth day of the third month following the end of the calendar year in which Executive incurred such expense, and (ii) medical and dental benefits (without any co payment) for Executive, Executive's spouse and Executive's eligible dependents on terms not less favorable than those provided to Executive by the Company's predecessor. During the Agreement Term, Executive shall have the right (i) to participate in any future compensation plans implemented for executives of the Company on a basis commensurate with his position and (ii) to be indemnified by the Company for all actions taken as an officer, director or agent of the Company or its Subsidiaries to the full extent provided under law or pursuant to the Indemnification Agreement of even date herewith. Subject to the policies and procedures of the Company, in addition to any accrued personal time off (" PTO ") accrued with respect to service to the predecessors of the Company, Executive shall be entitled to accrue twenty five (25) paid days of PTO per year during the Agreement Term.
7. Business Expenses. During the Agreement Term, the Company shall reimburse Executive for all reasonable business expenses incurred by Executive in the performance of Executive's duties hereunder in accordance with the Company's policies as in effect from time to time.
8. Termination. Notwithstanding any other provision of this Agreement, the provisions of this Section 8 shall exclusively govern Executive's rights upon termination of employment with the Company. Following Executive's termination of employment, except as set forth in this Section 8, Executive (and Executive's legal representative and estate) shall have no further rights to any compensation or any other benefits under this Agreement.
8.1. Definitions.
" Accrued Rights " means the sum of the following: (i) any accrued but unpaid Base Salary through the date of termination; (ii) a payment in respect of all unpaid, but accrued and unused PTO through the date of termination; (iii) any Annual Bonus earned but unpaid as of the date of termination for any previously completed fiscal year ( i.e., not for the year of employment termination); (iv) reimbursement for any unreimbursed business expenses properly incurred by Executive in accordance with Company policy through the date of termination; (v) such rights, if any, under the Option Award, the LTIP Award and other compensation programs and Employee Benefits to which
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Executive may be entitled upon termination of employment according to the documents governing such benefits; and (vi) any existing rights to indemnification for prior acts through the date of termination.
" Cause " means any of the following: (i) any act or omission by Executive which constitutes intentional misconduct or a willful violation of law; (ii) an act of fraud, conversion, misappropriation or embezzlement by Executive or conviction of, indictment for (or its procedural equivalent) or entering a guilty plea or plea of no contest with respect to a felony, the equivalent thereof or any crime involving any moral turpitude with respect to which imprisonment is a common punishment; or (iii) any other failure (other than any failure resulting from incapacity due to physical or mental illness) by Executive to perform his material and reasonable duties and responsibilities as an employee, director or consultant of the Company or any Subsidiary which continues for ten (10) days following written notice from the Company or any Subsidiary (except in the case of a willful failure to perform his duties or a willful breach, which shall require no notice). For purposes of the foregoing sentence, no act, or failure to act, on Executive's part shall be considered "willful" unless the Executive acted, or failed to act, in bad faith or without reasonable belief that his act or failure to act was in the best interest of the Company or any Subsidiary.
" Change of Control " shall be deemed to have occurred if
(i) there shall be consummated (a) any consolidation or merger of the Company, other than a merger or consolidation of the Company in which (1) the holders of the Company's common stock immediately prior to the merger or consolidation have at least fifty one percent (51%) ownership of the total voting power of the surviving entity immediately after the merger or consolidation, and (2) no person (other than an Exempted Holder as defined below) beneficially owns (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, 20% or more of the total voting power of the surviving entity or (b) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company, or
(ii) the shareholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company, or
(iii) any person (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the " Exchange Act ")) other than an Exempted Holder (as defined below) shall become the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of twenty percent (20%) or more of the Company's common stock. " Exempted Holder " means (a) the Company or any majority-owned Subsidiary ( provided that this exclusion applies solely to the ownership levels of the Company or the majority-owned Subsidiary); (b) any trustee, fiduciary or other person or entity holding securities under any employee benefit plan or trust sponsored or maintained by the Company or any Subsidiary; or (c) any underwriter or placement agent temporarily holding securities pursuant to an offering of such securities. However, a Change in Control shall not be deemed to have occurred if a person's percentage interest increases over twenty percent (20%) solely as a result of a decrease in the outstanding stock because of an acquisition of securities by the Company; provided , however , that a "Change in Control" shall be deemed to have occurred on any subsequent acquisitions of the Company's common stock by that person (other than pursuant to a stock split, stock dividend, or similar transaction) at a time when that person beneficially owns twenty percent (20%) or more of the Company's outstanding common stock, or
(iv) the Board shall cease for any reason to have a majority of Uncontested Directors. " Uncontested Directors " means directors who were initially elected or initially nominated (a) by a vote of at least two-thirds of the then Uncontested Directors and (b) not as a result of an actual or threatened election contest with respect to directors or as a result of any other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board,
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including by reason of agreement intended to avoid or settle any such actual or threatened contest or solicitation.
" Disability " means physical or mental incapacity whereby Executive is unable with or without reasonable accommodation for a period of six (6) consecutive months or for an aggregate of nine (9) months in any twenty-four (24) consecutive month period to perform the essential functions of Executive's duties.
" Good Reason " shall be present where Executive gives notice to the Board of his voluntary resignation (a) within one hundred and twenty (120) days after the occurrence of any of the following, without Executive's written consent: (i) the failure of the Company to pay or cause to be paid Executive's Base Salary or Annual Bonus, when due hereunder, subject to a ten (10) day cure period by the Company (except in the case of a willful failure which shall require no notice); (ii) diminution in Executive's status, including, title, position, duties, authority or responsibility (including Executive ceasing to be a member of the Board other than as a result of a voluntary resignation), subject to a thirty (30) day cure period by the Company (except in the case of a willful breach, which shall require no notice); (iii) relocation of the Company's executive offices to a location outside of the West Side of Los Angeles; or (iv) the failure of the Company to obtain the express written assumption of this Agreement pursuant to Section 11.5 hereof (unless such Agreement is assumed by operation of law); (b) within eighteen (18) months after the occurrence of a Change of Control.
8.2. Termination by the Company for Cause or By Executive's Resignation without Good Reason. The Agreement Term and Executive's employment hereunder may be terminated by the Company for Cause and shall terminate upon Executive's resignation without Good Reason, and in either case Executive shall be entitled to receive only his Accrued Rights.
8.3. Death/Disability. The Agreement Term and Executive's employment hereunder shall terminate upon Executive's death or Disability. Upon termination of Executive's employment hereunder due to death or Disability, Executive's legal representative or estate (as the case may be) shall be entitled to receive (i) the Accrued Rights plus (ii) an amount equal to a pro-rated portion of the Annual Bonus Executive otherwise would have been paid for the fiscal year in which such termination of employment occurs, payable when the Annual Bonus would otherwise have been paid to Executive pursuant to Section 4, based upon (a) actual performance for such fiscal year, as determined at the end of such fiscal year and (b) the percentage of such fiscal year that shall have elapsed through the date of Executive's termination of employment; plus (iii) continued medical benefits for Executive and Executive's spouse and eligible dependents who at the time of Executive's termination are enrolled in the Company's medical plan. Such benefits shall be substantially identical to the benefits maintained for other senior executives of the Company and shall be provided for a period of twelve (12) months following Executive's termination of employment. Executive acknowledges that such benefit continuation is intended, and shall be deemed, to satisfy the obligations of the Company and any of its subsidiaries and affiliates to provide continuation of benefits under Section 4980B of the Internal Revenue Code of 1986, as amended (" COBRA ") for such period and that the Company may satisfy such obligation by paying any applicable COBRA premiums.
8.4. Termination by the Company without Cause or Resignation by Executive for Good Reason. The Agreement Term and Executive's employment hereunder may be terminated by the Company without Cause at any time and for any reason or by Executive's resignation for Good Reason at any time upon thirty (30) days written notice by the terminating party, although the Company may waive services during that period. If Executive's employment is terminated by the Company without Cause (other than by reason of death or Disability) or if Executive resigns for Good Reason, Executive shall be entitled to receive (i) the Accrued Rights, plus (ii) provided that Executive first executes and returns to the Company (and does not revoke) a release of all claims that is in form and substance reasonably
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satisfactory to the Company, and subject to Executive's continued compliance with the provisions of Section 9 of this Agreement (to the extent expressly applicable after the Agreement Term):
8.4.1. an amount, payable in a lump sum without discount within 30 days of the date of termination, equal to three (3) times the average of Executive's compensation over the last three full calendar years ending prior to the termination date including (i) the Base Salary; (ii) the Annual Bonus and (iii) the value (based on a Black Scholes formula in the case of options and value of the underlying grants in the case of LTIP or outperformance plans) of any equity (including stock, LTIPs and options) or other compensation plans granted or awarded to Executive. In the event that there are less than three full calendar years completed after the execution of this Agreement, the average shall be based on (i) 2006 (including compensation paid by the predecessor of the Company) and (ii) any other full completed years prior to the date of termination.
8.4.2. continued medical and dental benefits for Executive, Executive's spouse and Executive's eligible dependents, who at the time of Executive's termination are enrolled in the Company's benefits plans provided for a period of three (3) years following Executive's termination of employment. Such benefits shall be substantially identical to the benefits maintained for other senior executives of the Company. Executive acknowledges that such benefit continuation is intended, and shall be deemed, to satisfy the obligations of the Company and any of its subsidiaries and affiliates to provide continuation of benefits under COBRA for such period and that the Company may satisfy such obligation by paying any applicable COBRA premiums or causing such premiums to be paid.
8.5. Notice of Termination. Any purported termination of employment by the Company or by Executive (other than due to Executive's death) shall be communicated by written notice to the other party, which indicates the specific termination provision in this Agreement relied upon and sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of employment under the provision so indicated and the date of employment termination.
8.6. Employee Termination and Board/Committee/Officer Resignation. Upon termination of Executive's employment for any reason, Executive's employment with each of the Company and each Subsidiary shall be terminated and Executive shall be deemed to resign, as of the date of such termination and to the extent applicable, from the boards of directors (and any committees thereof) of the Company and any Subsidiary and affiliates and as an officer of the Company and any Subsidiary. Executive shall confirm such resignation(s) in writing to the Company.
9. Covenants.
9.1. Confidentiality. Executive acknowledges that, in his employment hereunder, he will occupy a position of trust and confidence with the Company and its Subsidiaries. Executive agrees that Executive shall not during the Agreement Term and for two (2) years thereafter, except (i) as may be required to perform his duties hereunder or as required by applicable law or (ii) until such information shall have become public other than by Executive's unauthorized disclosure or (iii) with the prior written consent of the Company, use, disclose or disseminate any trade secrets, confidential information or any other information of a secret, proprietary, confidential or generally undisclosed nature relating to the Company and/or any Subsidiary, or their respective businesses, contracts, projects, proposed projects, revenues, costs, operations, methods or procedures.
9.2. Non-solicitation. Executive agrees that, for a period of one (1) year immediately following the end of Executive's employment with the Company, except acting on behalf of the Company during the Employment Term, Executive shall not, either directly or indirectly, solicit or participate in the solicitation of any employee or consultant of the Company to terminate or materially alter his, her or
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its relationship with the Company or any Subsidiary. This restriction shall not apply to Executive's assistant.
9.3. Full time; Non competition. During the Agreement Term, Executive will devote Executive's full business time and best efforts to the performance of Executive's duties hereunder and will not engage in any other business, profession or occupation for compensation or otherwise which would conflict or interfere with the rendition of such services either directly or indirectly; except that nothing herein shall preclude Executive from accepting appointment to or continuing to serve on any board of directors or trustees of any business entity, trade organization or any charitable organization or engaging in any activities or managing his investments and affairs so long as such activities in the aggregate do not interfere with the performance of Executive's duties hereunder or conflict with this Section 9.3 herein. During the Agreement Term, without the prior approval of the Board, Executive shall not in any city, town, county, parish where the Company and/or any Subsidiaries directly or indirectly engages in business or is actively contemplating engaging in business: (i) engage in a competing business for Executive's own account; (ii) enter the employ of, or render any consulting or any other services to, any entity that competes with the Company and/or any of its affiliates; or (iii) become interested in any such competing entity in any capacity, including, without limitation, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; provided, however, Executive may own, directly or indirectly, solely as a passive investment, 5% or less of any class of securities of any entity traded on any national securities exchange and any assets acquired in compliance with this Section. A business shall not be deemed a "competing business" if it does not invest in or deal with the same basic product type as the Company does from time to time. At this time the basic product type of the Company is large and mid-size office buildings and multi-family properties in Los Angeles County and Hawaii (larger than 50,000 sq. ft. for office properties and 50 units for apartment buildings).
9.4. Company Policies. During the Agreement Term, Executive shall also be subject to and shall abide by all written reasonable policies and procedures of the Company provided to him, including regarding the protection of confidential information and intellectual property and potential conflicts of interest, except to the extent that such policies and procedures conflict with the other provisions of this Agreement, in which case this Agreement shall control. Executive acknowledges that the Company may amend any such policies and guidelines from, time to time, and that Executive remains at all times bound by their most current version to the extent made known to him and reasonable in scope.
9.5. Intellectual Property. Except as permitted in Section 9.3 and as provided under Section 2870 of the California Labor Code, the Company shall be the sole owner of all the products and proceeds of Executive's services hereunder including, without limitation, all materials, ideas, concepts, formats, suggestions, developments, and other intellectual properties that Executive may acquire, obtain, develop or create in connection with his services hereunder and during the Agreement Term, free and clear of any claims by Executive (or anyone claiming under Executive) of any kind or character whatsoever (other than Executive's rights and benefits hereunder). Executive shall, at the request of the Company, execute such assignments, certificates or other instruments as the Company may from time to time deem necessary or desirable to evidence, establish, maintain, perfect, protect, enforce or defend the Company's right, title and interest in and to any such products and proceeds of Executive's services hereunder. Notwithstanding the above, Executive shall not be considered to be in breach of this Section 9.5 in connection with any property or other material of a type described in this Section 9.5 which does not become the property of the Company, so long as Executive does not, directly or indirectly, have or obtain any personal interest in such property or material.
9.6. General. Executive and the Company intend that: (i) this Section 9 concerning (among other things) the exclusive services of Executive to the Company and/or its Subsidiaries shall be construed as a series of separate covenants; (ii) if any portion of the restrictions set forth in this Section 9 should, for any reason whatsoever, be declared invalid by an arbitrator or a court of
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competent jurisdiction, the validity or enforceability of the remainder of such restrictions shall not thereby be adversely affected; and (iii) Executive declares that the territorial and time limitations set forth in this Section 9 are reasonable and properly required for the adequate protection of the business of the Company and/or its Subsidiaries. In the event that any such territorial or time limitation is deemed to be unreasonable by an arbitrator or a court of competent jurisdiction, Executive agrees to the reduction of the subject territorial or time limitation to the area or period which such arbitrator or court shall have deemed reasonable. All of the provisions of this Section 9 are in addition to any other written agreements on the subjects covered herein that Executive may have with the Company and/or any of its Subsidiaries and are not meant to and do not excuse any additional obligations that Executive may have under such agreements.
9.7. Specific Performance. Executive acknowledges and agrees that the confidential information, non-solicitation, intellectual property rights and other rights of the Company referred to in Section 9 of this Agreement are each of substantial value to the Company and/or its subsidiaries and affiliates and that any breach of Section 9 by Executive would cause irreparable harm to the Company and/or its Subsidiaries, for which the Company and/or its Subsidiaries would have no adequate remedy at law. Therefore, in addition to any other remedies that may be available to the Company and/or any of its Subsidiaries under this Agreement or otherwise, the Company and/or its Subsidiaries shall be entitled to obtain temporary restraining orders, preliminary and permanent injunctions and/or other equitable relief to specifically enforce Executive's duties and obligations under this Agreement, or to enjoin any breach of this Agreement, without the need to post a bond or other security and without the need to demonstrate special damages. Furthermore, Executive agrees that any damages suffered by the Company and/or its Subsidiaries as a result of Executive's breach of Executive's duties and obligations under this Agreement shall entitle the Company and/or its Subsidiaries to offset such damages against any payments to be made pursuant to this Agreement, to the extent permitted by applicable law.
10. Excise Tax Gross-Up Payments. Company agrees to pay Executive the amount or amounts specified in Schedule B, at such time or times as specified in Schedule B, as an excise tax Gross-Up Payment as provided in Schedule B. In connection therewith, the Company and Executive agree to the provisions of Schedule B, which are incorporated herein by this reference.
11. Miscellaneous.
11.1. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to conflicts of laws principles or rules thereof.
11.2. Entire Agreement; Amendment. This Agreement (and the Option Award and the LTIP Award) represents the entire agreement and understanding between the parties and, except as expressly stated in this Agreement, supersedes any prior agreement, understanding or negotiations respecting such subject. No change to or modification of this Agreement shall be valid or binding unless it is in writing and signed by Executive and a duly authorized director of the Company.
11.3. No Waiver. Failure to insist upon strict compliance with any of the terms, covenants, or conditions hereof shall not be deemed a waiver of such term, covenant, or condition, nor shall any waiver or relinquishment of, or failure to insist upon strict compliance with, any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times. No waiver of any breach of any term or provision of this Agreement shall be construed to be, nor shall be, a waiver of any other breach of this Agreement. No waiver shall be binding unless in writing and signed by the party waiving the breach.
11.4. Severability; Invalid Provision. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby. The parties
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understand and agree that if any provision of this Agreement shall, for any reason, be adjudged by any court or arbitrator of competent jurisdiction to be invalid or unenforceable, such judgment shall not affect, impair, or invalidate the remainder of this Agreement, but shall be confined in its operation to the provision of this Agreement directly involved in the controversy in which such judgment shall have been rendered.
11.5. Assignment. This Agreement and all of Executive's rights and duties hereunder, shall not be assignable or delegable by Executive. Any purported assignment or delegation by Executive in violation of the foregoing shall be null and void ab initio and of no force and effect. This Agreement may be assigned by the Company to a successor in interest to substantially all of the business operations of the Company. Upon such assignment, the rights and obligations of the Company hereunder shall become the rights and obligations of such affiliate or successor person or entity. The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place (except to the extent such assumption would occur by operation of law). It is anticipated that the Executive's employer of record and salary and bonus payor may be the Partnership or another Subsidiary, but the Company and the Partnership will be jointly and severally liable for all amounts payable to Executive hereunder.
11.6. Set Off. The Company's obligation to pay Executive the amounts provided and to make the arrangements provided hereunder shall be subject to set-off, counterclaim or recoupment of amounts owed by Executive to the Company or its Subsidiaries to the extent permitted by applicable law.
11.7. Successors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon the parties' respective personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
11.8. Notice. Any and all notice given hereunder shall be in writing and shall be deemed to have been duly given when received, if personally delivered; when transmitted, if transmitted by telecopy, or electronic or digital transmission method, upon receipt of telephonic or electronic confirmation; the day after the notice is sent, if sent for next day delivery to a domestic address using a generally recognized overnight delivery service ( e.g. , FedEx); and upon receipt, if sent by certified or registered mail, return receipt requested. In each case notice will be sent as follows:
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Douglas Emmett, Inc.
808 Wilshire Blvd., Suite 200 Santa Monica, CA 90401 Attention: Chief Operating Officer Telephone: (310) 255-7700 |
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If to Executive: |
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Jordan L. Kaplan 808 Wilshire Blvd., Suite 200 Telephone: 310 255 7700 Santa Monica, CA 90401 |
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Either party may change its address and/or facsimile number for notice purposes by duly giving notice to the other party pursuant to this Section.
11.9. Executive's Representations. Executive hereby represents to the Company that the execution and delivery of this Agreement by Executive and the Company and the performance by Executive of Executive's duties hereunder shall not constitute a breach of, or otherwise contravene, the terms of any employment agreement or other agreement or policy to which Executive is a party or otherwise bound. Executive represents and warrants that he is not subject to any employment agreement, nondisclosure
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agreement, common law nondisclosure obligation, fiduciary duty, noncompetition agreement, restrictive covenant or any other obligation to any former employer or to any other person or entity in any way relating to the right or ability of Executive to be employed by and/or perform services for the Company and its Subsidiaries. Executive further represents and warrants that he has not brought to or disclosed to the Company or to its Subsidiaries, and covenants that he will not bring to or disclose to the Company or to its Subsidiaries or use in connection with his employment with the Company, any trade secrets or proprietary information from any of his prior employers or from any other person or entity.
11.10. Cooperation in Third-Party Disputes. At the request of the Company, Executive shall cooperate with the Company and/or its Subsidiaries and each of their respective attorneys or other legal representatives (collectively referred to as " Attorneys ") in connection with any claim, litigation, or judicial or arbitral proceeding which is now pending or may hereinafter be brought against the Company and/or any of its Subsidiaries or affiliates by any third party. Executive's duty of cooperation shall include, but shall not be limited to, (a) meeting with the Company's and/or its Subsidiaries' Attorneys by telephone or in person at mutually convenient times and places in order to state truthfully Executive's knowledge of the matters at issue and recollection of events; (b) appearing at the Company's and/or its Subsidiaries' and/or their Attorneys' request (and, to the extent possible, at a time convenient to Executive that does not conflict with the needs or requirements of Executive's then-current employer or personal commitments) as a witness at depositions, trials or other proceedings, without the necessity of a subpoena, in order to state truthfully Executive's knowledge of the matters at issue; and (c) signing at the Company's request declarations or affidavits that truthfully state the matters of which Executive has knowledge. Such services will be without additional compensation if Executive is then employed by the Company or any Subsidiary and for reasonable compensation and subject to his reasonable availability if he is not so employed. The Company shall promptly reimburse Executive for Executive's actual and reasonable travel or other out-of-pocket expenses that Executive may incur in cooperating with the Company and/or its Subsidiaries under this Section 11.10.
11.11. Withholding Obligations. The Company, or any other entity making a payment, may withhold and make such deductions from any amounts payable under this Agreement such federal, state and local taxes as may be required to be withheld or deducted from time to time pursuant to any applicable law, governmental regulation and/or order. The amount of compensation payable to Executive pursuant to this Agreement shall be "grossed up" as necessary (on an after-tax basis) to compensate for any additional social security withholding taxes due as a result of Executive's shared employment by the any Subsidiary.
11.12. Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. A facsimile signature shall be deemed to be the same as an original signature.
11.13. Interpretation. Executive understands that this Agreement is deemed to have been drafted jointly by the parties and that the parties had a reasonable opportunity to retain legal counsel for such purpose. Any uncertainty or ambiguity shall not be construed for or against any party based on attribution of drafting to any party.
11.14. Headings. Titles or captions of Sections contained in this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provisions hereof.
11.15. Survival of Provisions. All other rights and obligations of the parties hereto, other than those applicable by their express terms only during the Agreement Term, shall survive any termination or expiration of this Agreement or of Executive's employment with the Company, and shall be fully enforceable thereafter.
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11.16. Arbitration of Disputes. Except as is necessary for Executive and the Company to preserve their respective rights under this Agreement by seeking necessary equitable relief (including, but not limited to, the Company's rights under Section 9 of this Agreement) from a court of competent jurisdiction, the Company and Executive agree that any and all disputes based upon, relating to or arising out of this Agreement (including, but not limited to, any breach or alleged breach of this Agreement, or any dispute concerning the formation of this Agreement, or the validity, scope and/or enforceability of this arbitration provision), Executive's employment relationship with the Company and/or the termination of that relationship, and/or any other dispute by and between the Company and Executive, including any and all claims Executive may at any time attempt to assert against the Company, shall be submitted to binding arbitration in Los Angeles, California, in accordance with the rules of JAMS, provided that the arbitrator shall allow for discovery sufficient to adequately arbitrate any alleged claims, including access to essential documents and witnesses, and otherwise in accordance with California Code of Civil Procedure § 1283.05. The party prevailing in any action shall be entitled to its reasonable attorneys' fees in enforcing its rights hereunder. In any event, the Company shall pay any expenses that Executive would not otherwise have incurred if the dispute had been adjudicated in a court of law, rather than through arbitration, including the arbitrator's fee, any administrative fee and any filing fee in excess of the maximum court filing fee in the jurisdiction in which the arbitration is commenced. Judgment in a court of competent jurisdiction may be had on any decision and award of the arbitrator. For these purposes, the parties agree to submit to the jurisdiction of the state and federal courts located in Los Angeles County, California.
11.17. Section 409A of the Code. This Agreement is intended to comply with Section 409A of the Code. Each party to this Agreement intends and agrees that this Agreement shall be interpreted and modified to the minimum extent necessary and to provide as near as possible the same economic benefit to the Executive provided hereunder in the absence of such modification, as mutually agreed by counsel for both parties, so as to avoid the imposition of any excise tax under Section 409A of the Internal Revenue Code and the regulations thereunder.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.
Douglas Emmett, Inc. | Executive | |||
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Jordan L. Kaplan | ||
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Douglas Emmett Properties, LP |
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CALIFORNIA LABOR CODE SECTION 2870
INVENTION ON OWN TIME-EXEMPTION FROM AGREEMENT
"(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:
(1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actually or demonstrably anticipated research or development of the employer; or
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable."
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Schedule B
Excise Tax Gross Up
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exhausts its remedies pursuant this Schedule B and Executive thereafter is required to make a payment of any Excise Tax, Executive Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive.
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to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to this Schedule B, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.
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This EMPLOYMENT AGREEMENT (the " Agreement ") is made effective as of , 2006 (the " Effective Date ") by and between Douglas Emmett, Inc. (the " Company "), Douglas Emmett Properties, LP (the " Partnership "), and Kenneth Panzer (" Executive ") with respect to the following facts and circumstances:
WHEREAS, the Company desires to engage Executive as the Chief Operating Officer of the Company, during the Agreement Term (as defined below), on the terms and conditions and for the consideration set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein and for other good and valuable consideration, the parties agree as follows:
1. Effectiveness; Term of Employment. Subject to the provisions of Section 8 of this Agreement, Executive shall be employed by the Company on the terms and subject to the conditions set forth in this Agreement for a period commencing on the Effective Date and ending on December 31, 2010. Commencing on January 1, 2011 and on each January 1 thereafter (each an " Extension Date "), the Agreement Term shall be automatically extended for an additional one-year period unless either the Company or Executive provides the other party hereto sixty (60) days' prior written notice before the next Extension Date that the Agreement Term shall not be so extended (the " Agreement Term ").
2. Position; Duties. During the Agreement Term, Executive shall serve as Chief Operating Officer of the Company and the Partnership. In such position, Executive shall have such duties and authority commensurate with such position as shall be determined from time to time by the Board of Directors of the Company (the " Board ") including such duties and responsibilities with respect to any subsidiary, affiliate or joint venture of the Company (each a " Subsidiary "). Subject to the discretion of the Nominating Committee of the Board, Executive shall serve as a member of the Board and of the board of directors (or equivalent) of any Subsidiary without additional compensation. Executive's duties will be principally performed at the Company's headquarters, which will be located within the West Side of Los Angeles, with such travel as may be required to perform his duties hereunder as reasonably requested by the Company.
3. Base Salary. During the Agreement Term, the Company shall pay Executive a base salary at the annual rate of $950,000, payable in regular installments in accordance with the Company's usual payment practices. Executive's salary shall be reviewed at least annually by the Compensation Committee of the Board (the " Committee ") and Executive shall be entitled to such increases in Executive's base salary, if any, as may be determined from time to time in the sole and absolute discretion of the Committee. Executive's annual base salary, as in effect from time to time, is hereinafter referred to as the " Base Salary ."
4. Annual Bonus. With respect to each fiscal year during the Agreement Term, Executive shall be eligible to earn an annual bonus award (the " Annual Bonus ") based upon reasonable criteria to be reasonably established not later than the first thirty (30) days of that fiscal year by the Compensation Committee of the Board in consultation with Executive. The amount of the bonus shall equal the following percentages of Executive's Base Salary during that fiscal year:
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65% | 100% | 150% | 200% |
Unless otherwise approved by the Board in its discretion, no bonus will be payable to Executive for any year if Executive does not meet the Threshold criteria established for that year. The Company will pay any Annual Bonus earned by Executive with respect to a given fiscal year in accordance with the terms and conditions of the Company's annual bonus plan, but no later than the earlier of (i) the fifteenth
day of the third month following the end of such fiscal year or (ii) the date that other senior executives are paid similar bonuses.
5. Long-Term Incentive Compensation.
5.1. Option Award. As of the Effective Date, Executive shall be granted an option to purchase 2,488,889 shares of Company stock (the " Option Award ") pursuant to a separate written Non Qualified Stock Option Agreement under the Company's 2006 Omnibus Stock Incentive Plan (the " Plan "). The Option Award shall be subject to the terms and conditions of that agreement and the Plan.
5.2. LTIP Award. As of the Effective Date, Executive shall be granted 420,000 LTIP Units (the " LTIP Award ") pursuant to a separate written LTIP Unit Award Agreement under the Plan. The LTIP Award shall be subject to the terms and conditions of that agreement and the Plan.
6. Employee Benefits. During the Agreement Term, Executive shall be entitled to participate in the Company's employee welfare and retirement benefit plans and perquisite programs as in effect, and subject to such modification as the Company may determine necessary or appropriate, from time to time (collectively " Employee Benefits "), on the same basis as those benefits are generally made available to other senior executives of the Company, which shall in any case include (i) the payment or reimbursement of tax/financial services, the use of and payment of all related expenses for an automobile, and a personal umbrella insurance policy all in amounts and on terms not less favorable than those provided to Executive by the Company's predecessor provided that, any such payment or reimbursement by the Company shall be made no later than the fifteenth day of the third month following the end of the calendar year in which Executive incurred such expense, and (ii) medical and dental benefits (without any co payment) for Executive, Executive's spouse and Executive's eligible dependents on terms not less favorable than those provided to Executive by the Company's predecessor. During the Agreement Term, Executive shall have the right (i) to participate in any future compensation plans implemented for executives of the Company on a basis commensurate with his position and (ii) to be indemnified by the Company for all actions taken as an officer, director or agent of the Company or its Subsidiaries to the full extent provided under law or pursuant to the Indemnification Agreement of even date herewith. Subject to the policies and procedures of the Company, in addition to any accrued personal time off (" PTO ") accrued with respect to service to the predecessors of the Company, Executive shall be entitled to accrue twenty five (25) paid days of PTO per year during the Agreement Term.
7. Business Expenses. During the Agreement Term, the Company shall reimburse Executive for all reasonable business expenses incurred by Executive in the performance of Executive's duties hereunder in accordance with the Company's policies as in effect from time to time.
8. Termination. Notwithstanding any other provision of this Agreement, the provisions of this Section 8 shall exclusively govern Executive's rights upon termination of employment with the Company. Following Executive's termination of employment, except as set forth in this Section 8, Executive (and Executive's legal representative and estate) shall have no further rights to any compensation or any other benefits under this Agreement.
8.1. Definitions.
" Accrued Rights " means the sum of the following: (i) any accrued but unpaid Base Salary through the date of termination; (ii) a payment in respect of all unpaid, but accrued and unused PTO through the date of termination; (iii) any Annual Bonus earned but unpaid as of the date of termination for any previously completed fiscal year ( i.e., not for the year of employment termination); (iv) reimbursement for any unreimbursed business expenses properly incurred by Executive in accordance with Company policy through the date of termination; (v) such rights, if any, under the Option Award, the LTIP Award and other compensation programs and Employee Benefits to which
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Executive may be entitled upon termination of employment according to the documents governing such benefits; and (vi) any existing rights to indemnification for prior acts through the date of termination.
" Cause " means any of the following: (i) any act or omission by Executive which constitutes intentional misconduct or a willful violation of law; (ii) an act of fraud, conversion, misappropriation or embezzlement by Executive or conviction of, indictment for (or its procedural equivalent) or entering a guilty plea or plea of no contest with respect to a felony, the equivalent thereof or any crime involving any moral turpitude with respect to which imprisonment is a common punishment; or (iii) any other failure (other than any failure resulting from incapacity due to physical or mental illness) by Executive to perform his material and reasonable duties and responsibilities as an employee, director or consultant of the Company or any Subsidiary which continues for ten (10) days following written notice from the Company or any Subsidiary (except in the case of a willful failure to perform his duties or a willful breach, which shall require no notice). For purposes of the foregoing sentence, no act, or failure to act, on Executive's part shall be considered "willful" unless the Executive acted, or failed to act, in bad faith or without reasonable belief that his act or failure to act was in the best interest of the Company or any Subsidiary.
" Change of Control " shall be deemed to have occurred if
(i) there shall be consummated (a) any consolidation or merger of the Company, other than a merger or consolidation of the Company in which (1) the holders of the Company's common stock immediately prior to the merger or consolidation have at least fifty one percent (51%) ownership of the total voting power of the surviving entity immediately after the merger or consolidation, and (2) no person (other than an Exempted Holder as defined below) beneficially owns (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, 20% or more of the total voting power of the surviving entity or (b) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company, or
(ii) the shareholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company, or
(iii) any person (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the " Exchange Act ")) other than an Exempted Holder (as defined below) shall become the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of twenty percent (20%) or more of the Company's common stock. " Exempted Holder " means (a) the Company or any majority-owned Subsidiary ( provided that this exclusion applies solely to the ownership levels of the Company or the majority-owned Subsidiary); (b) any trustee, fiduciary or other person or entity holding securities under any employee benefit plan or trust sponsored or maintained by the Company or any Subsidiary; or (c) any underwriter or placement agent temporarily holding securities pursuant to an offering of such securities. However, a Change in Control shall not be deemed to have occurred if a person's percentage interest increases over twenty percent (20%) solely as a result of a decrease in the outstanding stock because of an acquisition of securities by the Company; provided , however , that a "Change in Control" shall be deemed to have occurred on any subsequent acquisitions of the Company's common stock by that person (other than pursuant to a stock split, stock dividend, or similar transaction) at a time when that person beneficially owns twenty percent (20%) or more of the Company's outstanding common stock, or
(iv) the Board shall cease for any reason to have a majority of Uncontested Directors. " Uncontested Directors " means directors who were initially elected or initially nominated (a) by a vote of at least two-thirds of the then Uncontested Directors and (b) not as a result of an actual or threatened election contest with respect to directors or as a result of any other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board,
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including by reason of agreement intended to avoid or settle any such actual or threatened contest or solicitation.
" Disability " means physical or mental incapacity whereby Executive is unable with or without reasonable accommodation for a period of six (6) consecutive months or for an aggregate of nine (9) months in any twenty-four (24) consecutive month period to perform the essential functions of Executive's duties.
" Good Reason " shall be present where Executive gives notice to the Board of his voluntary resignation (a) within one hundred and twenty (120) days after the occurrence of any of the following, without Executive's written consent: (i) the failure of the Company to pay or cause to be paid Executive's Base Salary or Annual Bonus, when due hereunder, subject to a ten (10) day cure period by the Company (except in the case of a willful failure which shall require no notice); (ii) diminution in Executive's status, including, title, position, duties, authority or responsibility (including Executive ceasing to be a member of the Board other than as a result of a voluntary resignation), subject to a thirty (30) day cure period by the Company (except in the case of a willful breach, which shall require no notice); (iii) relocation of the Company's executive offices to a location outside of the West Side of Los Angeles; or (iv) the failure of the Company to obtain the express written assumption of this Agreement pursuant to Section 11.5 hereof (unless such Agreement is assumed by operation of law); (b) within eighteen (18) months after the occurrence of a Change of Control.
8.2. Termination by the Company for Cause or By Executive's Resignation without Good Reason. The Agreement Term and Executive's employment hereunder may be terminated by the Company for Cause and shall terminate upon Executive's resignation without Good Reason, and in either case Executive shall be entitled to receive only his Accrued Rights.
8.3. Death/Disability. The Agreement Term and Executive's employment hereunder shall terminate upon Executive's death or Disability. Upon termination of Executive's employment hereunder due to death or Disability, Executive's legal representative or estate (as the case may be) shall be entitled to receive (i) the Accrued Rights plus (ii) an amount equal to a pro-rated portion of the Annual Bonus Executive otherwise would have been paid for the fiscal year in which such termination of employment occurs, payable when the Annual Bonus would otherwise have been paid to Executive pursuant to Section 4, based upon (a) actual performance for such fiscal year, as determined at the end of such fiscal year and (b) the percentage of such fiscal year that shall have elapsed through the date of Executive's termination of employment; plus (iii) continued medical benefits for Executive and Executive's spouse and eligible dependents who at the time of Executive's termination are enrolled in the Company's medical plan. Such benefits shall be substantially identical to the benefits maintained for other senior executives of the Company and shall be provided for a period of twelve (12) months following Executive's termination of employment. Executive acknowledges that such benefit continuation is intended, and shall be deemed, to satisfy the obligations of the Company and any of its subsidiaries and affiliates to provide continuation of benefits under Section 4980B of the Internal Revenue Code of 1986, as amended (" COBRA ") for such period and that the Company may satisfy such obligation by paying any applicable COBRA premiums.
8.4. Termination by the Company without Cause or Resignation by Executive for Good Reason. The Agreement Term and Executive's employment hereunder may be terminated by the Company without Cause at any time and for any reason or by Executive's resignation for Good Reason at any time upon thirty (30) days written notice by the terminating party, although the Company may waive services during that period. If Executive's employment is terminated by the Company without Cause (other than by reason of death or Disability) or if Executive resigns for Good Reason, Executive shall be entitled to receive (i) the Accrued Rights, plus (ii) provided that Executive first executes and returns to the Company (and does not revoke) a release of all claims that is in form and substance reasonably
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satisfactory to the Company, and subject to Executive's continued compliance with the provisions of Section 9 of this Agreement (to the extent expressly applicable after the Agreement Term):
8.4.1. an amount, payable in a lump sum without discount within 30 days of the date of termination, equal to three (3) times the average of Executive's compensation over the last three full calendar years ending prior to the termination date including (i) the Base Salary; (ii) the Annual Bonus and (iii) the value (based on a Black Scholes formula in the case of options and value of the underlying grants in the case of LTIP or outperformance plans) of any equity (including stock, LTIPs and options) or other compensation plans granted or awarded to Executive. In the event that there are less than three full calendar years completed after the execution of this Agreement, the average shall be based on (i) 2006 (including compensation paid by the predecessor of the Company) and (ii) any other full completed years prior to the date of termination.
8.4.2. continued medical and dental benefits for Executive, Executive's spouse and Executive's eligible dependents, who at the time of Executive's termination are enrolled in the Company's benefits plans provided for a period of three (3) years following Executive's termination of employment. Such benefits shall be substantially identical to the benefits maintained for other senior executives of the Company. Executive acknowledges that such benefit continuation is intended, and shall be deemed, to satisfy the obligations of the Company and any of its subsidiaries and affiliates to provide continuation of benefits under COBRA for such period and that the Company may satisfy such obligation by paying any applicable COBRA premiums or causing such premiums to be paid.
8.5. Notice of Termination. Any purported termination of employment by the Company or by Executive (other than due to Executive's death) shall be communicated by written notice to the other party, which indicates the specific termination provision in this Agreement relied upon and sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of employment under the provision so indicated and the date of employment termination.
8.6. Employee Termination and Board/Committee/Officer Resignation. Upon termination of Executive's employment for any reason, Executive's employment with each of the Company and each Subsidiary shall be terminated and Executive shall be deemed to resign, as of the date of such termination and to the extent applicable, from the boards of directors (and any committees thereof) of the Company and any Subsidiary and affiliates and as an officer of the Company and any Subsidiary. Executive shall confirm such resignation(s) in writing to the Company.
9. Covenants.
9.1. Confidentiality. Executive acknowledges that, in his employment hereunder, he will occupy a position of trust and confidence with the Company and its Subsidiaries. Executive agrees that Executive shall not during the Agreement Term and for two (2) years thereafter, except (i) as may be required to perform his duties hereunder or as required by applicable law or (ii) until such information shall have become public other than by Executive's unauthorized disclosure or (iii) with the prior written consent of the Company, use, disclose or disseminate any trade secrets, confidential information or any other information of a secret, proprietary, confidential or generally undisclosed nature relating to the Company and/or any Subsidiary, or their respective businesses, contracts, projects, proposed projects, revenues, costs, operations, methods or procedures.
9.2. Non-solicitation. Executive agrees that, for a period of one (1) year immediately following the end of Executive's employment with the Company, except acting on behalf of the Company during the Employment Term, Executive shall not, either directly or indirectly, solicit or participate in the solicitation of any employee or consultant of the Company to terminate or materially alter his, her or
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its relationship with the Company or any Subsidiary. This restriction shall not apply to Executive's assistant.
9.3. Full time; Non competition. During the Agreement Term, Executive will devote Executive's full business time and best efforts to the performance of Executive's duties hereunder and will not engage in any other business, profession or occupation for compensation or otherwise which would conflict or interfere with the rendition of such services either directly or indirectly; except that nothing herein shall preclude Executive from accepting appointment to or continuing to serve on any board of directors or trustees of any business entity, trade organization or any charitable organization or engaging in any activities or managing his investments and affairs so long as such activities in the aggregate do not interfere with the performance of Executive's duties hereunder or conflict with this Section 9.3 herein. During the Agreement Term, without the prior approval of the Board, Executive shall not in any city, town, county, parish where the Company and/or any Subsidiaries directly or indirectly engages in business or is actively contemplating engaging in business: (i) engage in a competing business for Executive's own account; (ii) enter the employ of, or render any consulting or any other services to, any entity that competes with the Company and/or any of its affiliates; or (iii) become interested in any such competing entity in any capacity, including, without limitation, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; provided, however, Executive may own, directly or indirectly, solely as a passive investment, 5% or less of any class of securities of any entity traded on any national securities exchange and any assets acquired in compliance with this Section. A business shall not be deemed a "competing business" if it does not invest in or deal with the same basic product type as the Company does from time to time. At this time the basic product type of the Company is large and mid-size office buildings and multi-family properties in Los Angeles County and Hawaii (larger than 50,000 sq. ft. for office properties and 50 units for apartment buildings).
9.4. Company Policies. During the Agreement Term, Executive shall also be subject to and shall abide by all written reasonable policies and procedures of the Company provided to him, including regarding the protection of confidential information and intellectual property and potential conflicts of interest, except to the extent that such policies and procedures conflict with the other provisions of this Agreement, in which case this Agreement shall control. Executive acknowledges that the Company may amend any such policies and guidelines from, time to time, and that Executive remains at all times bound by their most current version to the extent made known to him and reasonable in scope.
9.5. Intellectual Property. Except as permitted in Section 9.3 and as provided under Section 2870 of the California Labor Code, the Company shall be the sole owner of all the products and proceeds of Executive's services hereunder including, without limitation, all materials, ideas, concepts, formats, suggestions, developments, and other intellectual properties that Executive may acquire, obtain, develop or create in connection with his services hereunder and during the Agreement Term, free and clear of any claims by Executive (or anyone claiming under Executive) of any kind or character whatsoever (other than Executive's rights and benefits hereunder). Executive shall, at the request of the Company, execute such assignments, certificates or other instruments as the Company may from time to time deem necessary or desirable to evidence, establish, maintain, perfect, protect, enforce or defend the Company's right, title and interest in and to any such products and proceeds of Executive's services hereunder. Notwithstanding the above, Executive shall not be considered to be in breach of this Section 9.5 in connection with any property or other material of a type described in this Section 9.5 which does not become the property of the Company, so long as Executive does not, directly or indirectly, have or obtain any personal interest in such property or material.
9.6. General. Executive and the Company intend that: (i) this Section 9 concerning (among other things) the exclusive services of Executive to the Company and/or its Subsidiaries shall be construed as a series of separate covenants; (ii) if any portion of the restrictions set forth in this Section 9 should, for any reason whatsoever, be declared invalid by an arbitrator or a court of
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competent jurisdiction, the validity or enforceability of the remainder of such restrictions shall not thereby be adversely affected; and (iii) Executive declares that the territorial and time limitations set forth in this Section 9 are reasonable and properly required for the adequate protection of the business of the Company and/or its Subsidiaries. In the event that any such territorial or time limitation is deemed to be unreasonable by an arbitrator or a court of competent jurisdiction, Executive agrees to the reduction of the subject territorial or time limitation to the area or period which such arbitrator or court shall have deemed reasonable. All of the provisions of this Section 9 are in addition to any other written agreements on the subjects covered herein that Executive may have with the Company and/or any of its Subsidiaries and are not meant to and do not excuse any additional obligations that Executive may have under such agreements.
9.7. Specific Performance. Executive acknowledges and agrees that the confidential information, non-solicitation, intellectual property rights and other rights of the Company referred to in Section 9 of this Agreement are each of substantial value to the Company and/or its subsidiaries and affiliates and that any breach of Section 9 by Executive would cause irreparable harm to the Company and/or its Subsidiaries, for which the Company and/or its Subsidiaries would have no adequate remedy at law. Therefore, in addition to any other remedies that may be available to the Company and/or any of its Subsidiaries under this Agreement or otherwise, the Company and/or its Subsidiaries shall be entitled to obtain temporary restraining orders, preliminary and permanent injunctions and/or other equitable relief to specifically enforce Executive's duties and obligations under this Agreement, or to enjoin any breach of this Agreement, without the need to post a bond or other security and without the need to demonstrate special damages. Furthermore, Executive agrees that any damages suffered by the Company and/or its Subsidiaries as a result of Executive's breach of Executive's duties and obligations under this Agreement shall entitle the Company and/or its Subsidiaries to offset such damages against any payments to be made pursuant to this Agreement, to the extent permitted by applicable law.
10. Excise Tax Gross-Up Payments. Company agrees to pay Executive the amount or amounts specified in Schedule B, at such time or times as specified in Schedule B, as an excise tax Gross-Up Payment as provided in Schedule B. In connection therewith, the Company and Executive agree to the provisions of Schedule B, which are incorporated herein by this reference.
11. Miscellaneous.
11.1. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to conflicts of laws principles or rules thereof.
11.2. Entire Agreement; Amendment. This Agreement (and the Option Award and the LTIP Award) represents the entire agreement and understanding between the parties and, except as expressly stated in this Agreement, supersedes any prior agreement, understanding or negotiations respecting such subject. No change to or modification of this Agreement shall be valid or binding unless it is in writing and signed by Executive and a duly authorized director of the Company.
11.3. No Waiver. Failure to insist upon strict compliance with any of the terms, covenants, or conditions hereof shall not be deemed a waiver of such term, covenant, or condition, nor shall any waiver or relinquishment of, or failure to insist upon strict compliance with, any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times. No waiver of any breach of any term or provision of this Agreement shall be construed to be, nor shall be, a waiver of any other breach of this Agreement. No waiver shall be binding unless in writing and signed by the party waiving the breach.
11.4. Severability; Invalid Provision. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby. The parties
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understand and agree that if any provision of this Agreement shall, for any reason, be adjudged by any court or arbitrator of competent jurisdiction to be invalid or unenforceable, such judgment shall not affect, impair, or invalidate the remainder of this Agreement, but shall be confined in its operation to the provision of this Agreement directly involved in the controversy in which such judgment shall have been rendered.
11.5. Assignment. This Agreement and all of Executive's rights and duties hereunder, shall not be assignable or delegable by Executive. Any purported assignment or delegation by Executive in violation of the foregoing shall be null and void ab initio and of no force and effect. This Agreement may be assigned by the Company to a successor in interest to substantially all of the business operations of the Company. Upon such assignment, the rights and obligations of the Company hereunder shall become the rights and obligations of such affiliate or successor person or entity. The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place (except to the extent such assumption would occur by operation of law). It is anticipated that the Executive's employer of record and salary and bonus payor may be the Partnership or another Subsidiary, but the Company and the Partnership will be jointly and severally liable for all amounts payable to Executive hereunder.
11.6. Set Off. The Company's obligation to pay Executive the amounts provided and to make the arrangements provided hereunder shall be subject to set-off, counterclaim or recoupment of amounts owed by Executive to the Company or its Subsidiaries to the extent permitted by applicable law.
11.7. Successors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon the parties' respective personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
11.8. Notice. Any and all notice given hereunder shall be in writing and shall be deemed to have been duly given when received, if personally delivered; when transmitted, if transmitted by telecopy, or electronic or digital transmission method, upon receipt of telephonic or electronic confirmation; the day after the notice is sent, if sent for next day delivery to a domestic address using a generally recognized overnight delivery service ( e.g. , FedEx); and upon receipt, if sent by certified or registered mail, return receipt requested. In each case notice will be sent as follows:
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Douglas Emmett, Inc.
808 Wilshire Blvd., Suite 200 Santa Monica, CA 90401 Attention: Chief Executive Officer Telephone: (310) 255-7700 |
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If to Executive: |
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Kenneth Panzer 808 Wilshire Blvd., Suite 200 Santa Monica, CA 90401 Telephone: 310 255 7700 |
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Either party may change its address and/or facsimile number for notice purposes by duly giving notice to the other party pursuant to this Section.
11.9. Executive's Representations. Executive hereby represents to the Company that the execution and delivery of this Agreement by Executive and the Company and the performance by Executive of Executive's duties hereunder shall not constitute a breach of, or otherwise contravene, the terms of any employment agreement or other agreement or policy to which Executive is a party or otherwise bound. Executive represents and warrants that he is not subject to any employment agreement, nondisclosure
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agreement, common law nondisclosure obligation, fiduciary duty, noncompetition agreement, restrictive covenant or any other obligation to any former employer or to any other person or entity in any way relating to the right or ability of Executive to be employed by and/or perform services for the Company and its Subsidiaries. Executive further represents and warrants that he has not brought to or disclosed to the Company or to its Subsidiaries, and covenants that he will not bring to or disclose to the Company or to its Subsidiaries or use in connection with his employment with the Company, any trade secrets or proprietary information from any of his prior employers or from any other person or entity.
11.10. Cooperation in Third-Party Disputes. At the request of the Company, Executive shall cooperate with the Company and/or its Subsidiaries and each of their respective attorneys or other legal representatives (collectively referred to as " Attorneys ") in connection with any claim, litigation, or judicial or arbitral proceeding which is now pending or may hereinafter be brought against the Company and/or any of its Subsidiaries or affiliates by any third party. Executive's duty of cooperation shall include, but shall not be limited to, (a) meeting with the Company's and/or its Subsidiaries' Attorneys by telephone or in person at mutually convenient times and places in order to state truthfully Executive's knowledge of the matters at issue and recollection of events; (b) appearing at the Company's and/or its Subsidiaries' and/or their Attorneys' request (and, to the extent possible, at a time convenient to Executive that does not conflict with the needs or requirements of Executive's then-current employer or personal commitments) as a witness at depositions, trials or other proceedings, without the necessity of a subpoena, in order to state truthfully Executive's knowledge of the matters at issue; and (c) signing at the Company's request declarations or affidavits that truthfully state the matters of which Executive has knowledge. Such services will be without additional compensation if Executive is then employed by the Company or any Subsidiary and for reasonable compensation and subject to his reasonable availability if he is not so employed. The Company shall promptly reimburse Executive for Executive's actual and reasonable travel or other out-of-pocket expenses that Executive may incur in cooperating with the Company and/or its Subsidiaries under this Section 11.10.
11.11. Withholding Obligations. The Company, or any other entity making a payment, may withhold and make such deductions from any amounts payable under this Agreement such federal, state and local taxes as may be required to be withheld or deducted from time to time pursuant to any applicable law, governmental regulation and/or order. The amount of compensation payable to Executive pursuant to this Agreement shall be "grossed up" as necessary (on an after-tax basis) to compensate for any additional social security withholding taxes due as a result of Executive's shared employment by the any Subsidiary.
11.12. Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. A facsimile signature shall be deemed to be the same as an original signature.
11.13. Interpretation. Executive understands that this Agreement is deemed to have been drafted jointly by the parties and that the parties had a reasonable opportunity to retain legal counsel for such purpose. Any uncertainty or ambiguity shall not be construed for or against any party based on attribution of drafting to any party.
11.14. Headings. Titles or captions of Sections contained in this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provisions hereof.
11.15. Survival of Provisions. All other rights and obligations of the parties hereto, other than those applicable by their express terms only during the Agreement Term, shall survive any termination or expiration of this Agreement or of Executive's employment with the Company, and shall be fully enforceable thereafter.
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11.16. Arbitration of Disputes. Except as is necessary for Executive and the Company to preserve their respective rights under this Agreement by seeking necessary equitable relief (including, but not limited to, the Company's rights under Section 9 of this Agreement) from a court of competent jurisdiction, the Company and Executive agree that any and all disputes based upon, relating to or arising out of this Agreement (including, but not limited to, any breach or alleged breach of this Agreement, or any dispute concerning the formation of this Agreement, or the validity, scope and/or enforceability of this arbitration provision), Executive's employment relationship with the Company and/or the termination of that relationship, and/or any other dispute by and between the Company and Executive, including any and all claims Executive may at any time attempt to assert against the Company, shall be submitted to binding arbitration in Los Angeles, California, in accordance with the rules of JAMS, provided that the arbitrator shall allow for discovery sufficient to adequately arbitrate any alleged claims, including access to essential documents and witnesses, and otherwise in accordance with California Code of Civil Procedure § 1283.05. The party prevailing in any action shall be entitled to its reasonable attorneys' fees in enforcing its rights hereunder. In any event, the Company shall pay any expenses that Executive would not otherwise have incurred if the dispute had been adjudicated in a court of law, rather than through arbitration, including the arbitrator's fee, any administrative fee and any filing fee in excess of the maximum court filing fee in the jurisdiction in which the arbitration is commenced. Judgment in a court of competent jurisdiction may be had on any decision and award of the arbitrator. For these purposes, the parties agree to submit to the jurisdiction of the state and federal courts located in Los Angeles County, California.
11.17. Section 409A of the Code. This Agreement is intended to comply with Section 409A of the Code. Each party to this Agreement intends and agrees that this Agreement shall be interpreted and modified to the minimum extent necessary and to provide as near as possible the same economic benefit to the Executive provided hereunder in the absence of such modification, as mutually agreed by counsel for both parties, so as to avoid the imposition of any excise tax under Section 409A of the Internal Revenue Code and the regulations thereunder.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.
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CALIFORNIA LABOR CODE SECTION 2870
INVENTION ON OWN TIME-EXEMPTION FROM AGREEMENT
"(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:
(1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actually or demonstrably anticipated research or development of the employer; or
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable."
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Schedule B
Excise Tax Gross Up
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exhausts its remedies pursuant this Schedule B and Executive thereafter is required to make a payment of any Excise Tax, Executive Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive.
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to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to this Schedule B, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.
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Exhibit 10.13
This EMPLOYMENT AGREEMENT (the " Agreement ") is made effective as of , 2006 (the " Effective Date ") by and between Douglas Emmett, Inc. (the " Company "), Douglas Emmett Properties, LP (the " Partnership "), and William Kamer (" Executive ") with respect to the following facts and circumstances:
WHEREAS, the Company desires to engage Executive as the Chief Financial Officer of the Company, during the Agreement Term (as defined below), on the terms and conditions and for the consideration set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein and for other good and valuable consideration, the parties agree as follows:
1. Effectiveness; Term of Employment . Subject to the provisions of Section 8 of this Agreement, Executive shall be employed by the Company on the terms and subject to the conditions set forth in this Agreement for a period commencing on the Effective Date and ending on December 31, 2010. Commencing on January 1, 2011 and on each January 1 thereafter (each an " Extension Date "), the Agreement Term shall be automatically extended for an additional one-year period unless either the Company or Executive provides the other party hereto sixty (60) days' prior written notice before the next Extension Date that the Agreement Term shall not be so extended (the " Agreement Term ").
2. Position; Duties . During the Agreement Term, Executive shall serve as Chief Financial Officer of the Company and the Partnership. In such position, Executive shall have such duties and authority commensurate with such position as shall be determined from time to time by the Board of Directors of the Company (the " Board ") including such duties and responsibilities with respect to any subsidiary, affiliate or joint venture of the Company (each a " Subsidiary "). Executive's duties will be principally performed at the Company's headquarters, which will be located within the West Side of Los Angeles, with such travel as may be required to perform his duties hereunder as reasonably requested by the Company.
3. Base Salary . During the Agreement Term, the Company shall pay Executive a base salary at the annual rate of $575,000, payable in regular installments in accordance with the Company's usual payment practices. Executive's salary shall be reviewed at least annually by the Compensation Committee of the Board (the " Committee ") and Executive shall be entitled to such increases in Executive's base salary, if any, as may be determined from time to time in the sole and absolute discretion of the Committee. Executive's annual base salary, as in effect from time to time, is hereinafter referred to as the " Base Salary ."
4. Annual Bonus . With respect to each full fiscal year commencing during the Agreement Term, Executive shall be eligible to earn an annual bonus award (the " Annual Bonus ") based upon reasonable criteria to be reasonably established not later than the first thirty (30) days of that fiscal year by the Compensation Committee of the Board in consultation with Executive. The amount of the bonus shall equal the following percentages of Executive's Base Salary during that fiscal year:
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Outperformance
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50% | 80% | 100% | 120% |
Unless otherwise approved by the Board in its discretion, no bonus will be payable to Executive for any year if Executive does not meet the Threshold criteria established for that year. The Company will pay any Annual Bonus earned by Executive with respect to a given fiscal year in accordance with the terms and conditions of the Company's annual bonus plan, but no later than the earlier of (i) the fifteenth day of the third month following the end of such fiscal year or (ii) the date that other senior executives are paid similar bonuses.
5. Long-Term Incentive Compensation .
5.1. Option Award . As of the Effective Date, Executive shall be granted an option to purchase 386,667 shares of Company stock (the " Option Award ") pursuant to a separate written Non Qualified Stock Option Agreement under the Company's 2006 Omnibus Stock Incentive Plan (the " Plan "). The Option Award shall be subject to the terms and conditions of that agreement and the Plan.
5.2. LTIP Award . As of the Effective Date, Executive shall be granted 101,500 LTIP Units (the " LTIP Award ") pursuant to a separate written LTIP Unit Award Agreement under the Plan. The LTIP Award shall be subject to the terms and conditions of that agreement and the Plan.
6. Employee Benefits . During the Agreement Term, Executive shall be entitled to participate in the Company's employee welfare and retirement benefit plans and perquisite programs as in effect, and subject to such modification as the Company may determine necessary or appropriate, from time to time (collectively " Employee Benefits "), on the same basis as those benefits are generally made available to other senior executives of the Company, plus (i) $1,200 per month for the purchase of health insurance benefits during any period in which he is not participating in the Company's health plan and (ii) a car allowance of $500 per month. During the Agreement Term, Executive shall have the right (i) to participate in any future compensation plans implemented for executives of the Company on a basis commensurate with his position and (ii) to be indemnified by the Company for all actions taken as an officer, director or agent of the Company or its Subsidiaries to the full extent provided under law or pursuant to the Indemnification Agreement of even date herewith. Subject to the policies and procedures of the Company, in addition to any accrued personal time off (" PTO ") accrued with respect to service to the predecessors of the Company, Executive shall be entitled to accrue twenty five (25) paid days of PTO per year during the Agreement Term.
7. Business Expenses . During the Agreement Term, the Company shall reimburse Executive for all reasonable business expenses incurred by Executive in the performance of Executive's duties hereunder in accordance with the Company's policies as in effect from time to time.
8. Termination . Notwithstanding any other provision of this Agreement, the provisions of this Section 8 shall exclusively govern Executive's rights upon termination of employment with the Company. Following Executive's termination of employment, except as set forth in this Section 8, Executive (and Executive's legal representative and estate) shall have no further rights to any compensation or any other benefits under this Agreement.
8.1. Definitions .
" Accrued Rights " means the sum of the following: (i) any accrued but unpaid Base Salary through the date of termination; (ii) a payment in respect of all unpaid, but accrued and unused PTO through the date of termination; (iii) any Annual Bonus earned but unpaid as of the date of termination for any previously completed fiscal year ( i.e., not for the year of employment termination); (iv) reimbursement for any unreimbursed business expenses properly incurred by Executive in accordance with Company policy through the date of termination; (v) such rights, if any, under the Option Award, the LTIP Award and other compensation programs and Employee Benefits to which Executive may be entitled upon termination of employment according to the documents governing such benefits; and (vi) any existing rights to indemnification for prior acts through the date of termination.
" Cause " means any of the following: (i) any act or omission by Executive which constitutes intentional misconduct or a willful violation of law; (ii) an act of fraud, conversion, misappropriation or embezzlement by Executive or conviction of, indictment for (or its procedural equivalent) or entering a guilty plea or plea of no contest with respect to a felony, the equivalent thereof or any crime involving any moral turpitude with respect to which imprisonment is a common punishment; or (iii) any other failure (other than any failure resulting from incapacity due to physical or mental illness) by Executive to perform his material and reasonable duties and responsibilities as an employee, director or
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consultant of the Company or any Subsidiary which continues for ten (10) days following written notice from the Company or any Subsidiary (except in the case of a willful failure to perform his duties or a willful breach, which shall require no notice). For purposes of the foregoing sentence, no act, or failure to act, on Executive's part shall be considered "willful" unless the Executive acted, or failed to act, in bad faith or without reasonable belief that his act or failure to act was in the best interest of the Company or any Subsidiary.
" Change of Control " shall be deemed to have occurred if
(i) there shall be consummated (a) any consolidation or merger of the Company, other than a merger or consolidation of the Company in which (1) the holders of the Company's common stock immediately prior to the merger or consolidation have at least fifty one percent (51%) ownership of the total voting power of the surviving entity immediately after the merger or consolidation, and (2) no person (other than an Exempted Holder as defined below) beneficially owns (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, 20% or more of the total voting power of the surviving entity or (b) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company, or
(ii) the shareholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company, or
(iii) any person (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the " Exchange Act ")) other than an Exempted Holder (as defined below) shall become the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of twenty percent (20%) or more of the Company's common stock. " Exempted Holder " means (a) the Company or any majority-owned Subsidiary ( provided that this exclusion applies solely to the ownership levels of the Company or the majority-owned Subsidiary); (b) any trustee, fiduciary or other person or entity holding securities under any employee benefit plan or trust sponsored or maintained by the Company or any Subsidiary; (c) any underwriter or placement agent temporarily holding securities pursuant to an offering of such securities; or (d) Dan Emmett, Jordan Kaplan or Ken Panzer, their immediate family members and family trusts or family-only partnerships and any charitable foundations, any entities in which they and their families beneficially own a majority of the voting interests, and any "group" (as described in Rule 13d-5(b)(i) under the Exchange Act) including them. However, a Change in Control shall not be deemed to have occurred if a person's percentage interest increases over twenty percent (20%) solely as a result of a decrease in the outstanding stock because of an acquisition of securities by the Company; provided , however , that a "Change in Control" shall be deemed to have occurred on any subsequent acquisitions of the Company's common stock by that person (other than pursuant to a stock split, stock dividend, or similar transaction) at a time when that person beneficially owns twenty percent (20%) or more of the Company's outstanding common stock, or
(iv) the Board shall cease for any reason to have a majority of Uncontested Directors. " Uncontested Directors " means directors who were initially elected or initially nominated (a) by a vote of at least two-thirds of the then Uncontested Directors and (b) not as a result of an actual or threatened election contest with respect to directors or as a result of any other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board, including by reason of agreement intended to avoid or settle any such actual or threatened contest or solicitation.
" Disability " means physical or mental incapacity whereby Executive is unable with or without reasonable accommodation for a period of six (6) consecutive months or for an aggregate of nine (9) months in any twenty-four (24) consecutive month period to perform the essential functions of Executive's duties.
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" Good Reason " shall be present where Executive gives notice to the Board of his voluntary resignation (a) within one hundred and twenty (120) days after the occurrence of any of the following, without Executive's written consent: (i) the failure of the Company to pay or cause to be paid Executive's Base Salary or Annual Bonus, when due hereunder, subject to a ten (10) day cure period by the Company (except in the case of a willful failure which shall require no notice); (ii) diminution in Executive's status, including, title, position, duties, authority or responsibility, subject to a thirty (30) day cure period by the Company (except in the case of a willful breach, which shall require no notice); (iii) relocation of the Company's executive offices to a location outside of the West Side of Los Angeles; or (iv) the failure of the Company to obtain the express written assumption of this Agreement pursuant to Section 11.5 hereof (unless such Agreement is assumed by operation of law); (b) within eighteen (18) months after the occurrence of a Change of Control.
8.2. Termination by the Company for Cause or By Executive's Resignation without Good Reason . The Agreement Term and Executive's employment hereunder may be terminated by the Company for Cause and shall terminate upon Executive's resignation without Good Reason, and in either case Executive shall be entitled to receive only his Accrued Rights.
8.3. Death/Disability . The Agreement Term and Executive's employment hereunder shall terminate upon Executive's death or Disability. Upon termination of Executive's employment hereunder due to death or Disability, Executive's legal representative or estate (as the case may be) shall be entitled to receive (i) the Accrued Rights plus (ii) an amount equal to a pro-rated portion of the Annual Bonus Executive otherwise would have been paid for the fiscal year in which such termination of employment occurs, payable when the Annual Bonus would otherwise have been paid to Executive pursuant to Section 4, based upon (a) actual performance for such fiscal year, as determined at the end of such fiscal year and (b) the percentage of such fiscal year that shall have elapsed through the date of Executive's termination of employment; plus (iii) continued medical benefits for Executive and Executive's spouse and eligible dependents who at the time of Executive's termination are enrolled in the Company's medical plan. Such benefits shall be substantially identical to the benefits maintained for other senior executives of the Company and shall be provided for a period of twelve (12) months following Executive's termination of employment. Executive acknowledges that such benefit continuation is intended, and shall be deemed, to satisfy the obligations of the Company and any of its subsidiaries and affiliates to provide continuation of benefits under Section 4980B of the Internal Revenue Code of 1986, as amended (" COBRA ") for such period and that the Company may satisfy such obligation by paying any applicable COBRA premiums.
8.4. Termination by the Company without Cause or Resignation by Executive for Good Reason . The Agreement Term and Executive's employment hereunder may be terminated by the Company without Cause at any time and for any reason or by Executive's resignation for Good Reason at any time upon thirty (30) days written notice by the terminating party, although the Company may waive services during that period. If Executive's employment is terminated by the Company without Cause (other than by reason of death or Disability) or if Executive resigns for Good Reason, Executive shall be entitled to receive (i) the Accrued Rights, plus (ii) provided that Executive first executes and returns to the Company (and does not revoke) a release of all claims that is in form and substance reasonably satisfactory to the Company, and subject to Executive's continued compliance with the provisions of Section 9 of this Agreement (to the extent expressly applicable after the Agreement Term):
8.4.1. an amount, payable in a lump sum without discount within 30 days of the date of termination, equal to two (2) times the average of Executive's compensation over the last three full calendar years ending prior to the termination date including (i) the Base Salary; (ii) the Annual Bonus and (iii) the value (based on a Black Scholes formula in the case of options and value of the underlying grants in the case of LTIP or outperformance plans) of any equity (including stock, LTIPs and options) or other compensation plans granted or awarded to Executive. In the event that there are less than three full calendar years completed after the execution of this Agreement,
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the average shall be based on (i) 2006 (including compensation paid by the predecessor of the Company) and (ii) any other full completed years prior to the date of termination.
8.4.2. continued medical and dental benefits for Executive, Executive's spouse and Executive's eligible dependents, who at the time of Executive's termination are enrolled in the Company's benefits plans provided for a period of two (2) years following Executive's termination of employment. Such benefits shall be substantially identical to the benefits maintained for other senior executives of the Company. Executive acknowledges that such benefit continuation is intended, and shall be deemed, to satisfy the obligations of the Company and any of its subsidiaries and affiliates to provide continuation of benefits under COBRA for such period and that the Company may satisfy such obligation by paying any applicable COBRA premiums or causing such premiums to be paid.
8.5. Notice of Termination . Any purported termination of employment by the Company or by Executive (other than due to Executive's death) shall be communicated by written notice to the other party, which indicates the specific termination provision in this Agreement relied upon and sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of employment under the provision so indicated and the date of employment termination.
8.6. Employee Termination and Officer Resignation . Upon termination of Executive's employment for any reason, Executive's employment with each of the Company and each Subsidiary shall be terminated and Executive shall be deemed to resign, as of the date of such termination and to the extent applicable, as an officer of the Company and any Subsidiary. Executive shall confirm such resignation(s) in writing to the Company.
9. Covenants .
9.1. Confidentiality . Executive acknowledges that, in his employment hereunder, he will occupy a position of trust and confidence with the Company and its Subsidiaries. Executive agrees that Executive shall not during the Agreement Term and for two (2) years thereafter, except (i) as may be required to perform his duties hereunder or as required by applicable law or (ii) until such information shall have become public other than by Executive's unauthorized disclosure or (iii) with the prior written consent of the Company, use, disclose or disseminate any trade secrets, confidential information or any other information of a secret, proprietary, confidential or generally undisclosed nature relating to the Company and/or any Subsidiary, or their respective businesses, contracts, projects, proposed projects, revenues, costs, operations, methods or procedures.
9.2. Non-solicitation . Executive agrees that, for a period of one (1) year immediately following the end of Executive's employment with the Company, except acting on behalf of the Company during the Employment Term, Executive shall not, either directly or indirectly, solicit or participate in the solicitation of any employee or consultant of the Company to terminate or materially alter his, her or its relationship with the Company or any Subsidiary. This restriction shall not apply to Executive's assistant.
9.3. Full time; Non competition. During the Agreement Term, Executive will devote Executive's full business time and best efforts to the performance of Executive's duties hereunder and will not engage in any other business, profession or occupation for compensation or otherwise which would conflict or interfere with the rendition of such services either directly or indirectly; except that nothing herein shall preclude Executive from accepting appointment to or continuing to serve on any board of directors or trustees of any business entity, trade organization or any charitable organization or engaging in any activities or managing his investments and affairs so long as such activities in the aggregate do not interfere with the performance of Executive's duties hereunder or conflict with this Section 9.3 herein. During the Agreement Term, without the prior approval of the Board, Executive shall not in any city, town, county, parish where the Company and/or any Subsidiaries directly or
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indirectly engages in business or is actively contemplating engaging in business: (i) engage in a competing business for Executive's own account; (ii) enter the employ of, or render any consulting or any other services to, any entity that competes with the Company and/or any of its affiliates; or (iii) become interested in any such competing entity in any capacity, including, without limitation, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; provided, however, Executive may own, directly or indirectly, solely as a passive investment, 5% or less of any class of securities of any entity traded on any national securities exchange and any assets acquired in compliance with this Section. A business shall not be deemed a "competing business" if it does not invest in or deal with the same basic product type as the Company does from time to time. At this time the basic product type of the Company is large and mid-size office buildings and multi-family properties in Los Angeles County and Hawaii (larger than 50,000 sq. ft. for office properties and 50 units for apartment buildings).
9.4. Company Policies . During the Agreement Term, Executive shall also be subject to and shall abide by all written reasonable policies and procedures of the Company provided to him, including regarding the protection of confidential information and intellectual property and potential conflicts of interest, except to the extent that such policies and procedures conflict with the other provisions of this Agreement, in which case this Agreement shall control. Executive acknowledges that the Company may amend any such policies and guidelines from, time to time, and that Executive remains at all times bound by their most current version to the extent made known to him and reasonable in scope.
9.5. Intellectual Property . Except as permitted in Section 9.3 and as provided under Section 2870 of the California Labor Code, the Company shall be the sole owner of all the products and proceeds of Executive's services hereunder including, without limitation, all materials, ideas, concepts, formats, suggestions, developments, and other intellectual properties that Executive may acquire, obtain, develop or create in connection with his services hereunder and during the Agreement Term, free and clear of any claims by Executive (or anyone claiming under Executive) of any kind or character whatsoever (other than Executive's rights and benefits hereunder). Executive shall, at the request of the Company, execute such assignments, certificates or other instruments as the Company may from time to time deem necessary or desirable to evidence, establish, maintain, perfect, protect, enforce or defend the Company's right, title and interest in and to any such products and proceeds of Executive's services hereunder. Notwithstanding the above, Executive shall not be considered to be in breach of this Section 9.5 in connection with any property or other material of a type described in this Section 9.5 which does not become the property of the Company, so long as Executive does not, directly or indirectly, have or obtain any personal interest in such property or material.
9.6. General . Executive and the Company intend that: (i) this Section 9 concerning (among other things) the exclusive services of Executive to the Company and/or its Subsidiaries shall be construed as a series of separate covenants; (ii) if any portion of the restrictions set forth in this Section 9 should, for any reason whatsoever, be declared invalid by an arbitrator or a court of competent jurisdiction, the validity or enforceability of the remainder of such restrictions shall not thereby be adversely affected; and (iii) Executive declares that the territorial and time limitations set forth in this Section 9 are reasonable and properly required for the adequate protection of the business of the Company and/or its Subsidiaries. In the event that any such territorial or time limitation is deemed to be unreasonable by an arbitrator or a court of competent jurisdiction, Executive agrees to the reduction of the subject territorial or time limitation to the area or period which such arbitrator or court shall have deemed reasonable. All of the provisions of this Section 9 are in addition to any other written agreements on the subjects covered herein that Executive may have with the Company and/or any of its Subsidiaries and are not meant to and do not excuse any additional obligations that Executive may have under such agreements.
9.7. Specific Performance . Executive acknowledges and agrees that the confidential information, non-solicitation, intellectual property rights and other rights of the Company referred to in Section 9 of
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this Agreement are each of substantial value to the Company and/or its subsidiaries and affiliates and that any breach of Section 9 by Executive would cause irreparable harm to the Company and/or its Subsidiaries, for which the Company and/or its Subsidiaries would have no adequate remedy at law. Therefore, in addition to any other remedies that may be available to the Company and/or any of its Subsidiaries under this Agreement or otherwise, the Company and/or its Subsidiaries shall be entitled to obtain temporary restraining orders, preliminary and permanent injunctions and/or other equitable relief to specifically enforce Executive's duties and obligations under this Agreement, or to enjoin any breach of this Agreement, without the need to post a bond or other security and without the need to demonstrate special damages. Furthermore, Executive agrees that any damages suffered by the Company and/or its Subsidiaries as a result of Executive's breach of Executive's duties and obligations under this Agreement shall entitle the Company and/or its Subsidiaries to offset such damages against any payments to be made pursuant to this Agreement, to the extent permitted by applicable law.
10. Excise Tax Gross-Up Payments . Company agrees to pay Executive the amount or amounts specified in Schedule B, at such time or times as specified in Schedule B, as an excise tax Gross-Up Payment as provided in Schedule B. In connection therewith, the Company and Executive agree to the provisions of Schedule B, which are incorporated herein by this reference.
11. Miscellaneous .
11.1. Governing Law . This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to conflicts of laws principles or rules thereof.
11.2. Entire Agreement; Amendment . This Agreement (and the Option Award and the LTIP Award) represents the entire agreement and understanding between the parties and, except as expressly stated in this Agreement, supersedes any prior agreement, understanding or negotiations respecting such subject. No change to or modification of this Agreement shall be valid or binding unless it is in writing and signed by Executive and a duly authorized director of the Company.
11.3. No Waiver . Failure to insist upon strict compliance with any of the terms, covenants, or conditions hereof shall not be deemed a waiver of such term, covenant, or condition, nor shall any waiver or relinquishment of, or failure to insist upon strict compliance with, any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times. No waiver of any breach of any term or provision of this Agreement shall be construed to be, nor shall be, a waiver of any other breach of this Agreement. No waiver shall be binding unless in writing and signed by the party waiving the breach.
11.4. Severability; Invalid Provision . In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby. The parties understand and agree that if any provision of this Agreement shall, for any reason, be adjudged by any court or arbitrator of competent jurisdiction to be invalid or unenforceable, such judgment shall not affect, impair, or invalidate the remainder of this Agreement, but shall be confined in its operation to the provision of this Agreement directly involved in the controversy in which such judgment shall have been rendered.
11.5. Assignment . This Agreement and all of Executive's rights and duties hereunder, shall not be assignable or delegable by Executive. Any purported assignment or delegation by Executive in violation of the foregoing shall be null and void ab initio and of no force and effect. This Agreement may be assigned by the Company to a successor in interest to substantially all of the business operations of the Company. Upon such assignment, the rights and obligations of the Company hereunder shall become the rights and obligations of such affiliate or successor person or entity. The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or
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otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place (except to the extent such assumption would occur by operation of law). It is anticipated that the Executive's employer of record and salary and bonus payor may be the Partnership or another Subsidiary, but the Company and the Partnership will be jointly and severally liable for all amounts payable to Executive hereunder.
11.6. Set Off . The Company's obligation to pay Executive the amounts provided and to make the arrangements provided hereunder shall be subject to set-off, counterclaim or recoupment of amounts owed by Executive to the Company or its Subsidiaries to the extent permitted by applicable law.
11.7. Successors; Binding Agreement . This Agreement shall inure to the benefit of and be binding upon the parties' respective personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
11.8. Notice . Any and all notice given hereunder shall be in writing and shall be deemed to have been duly given when received, if personally delivered; when transmitted, if transmitted by telecopy, or electronic or digital transmission method, upon receipt of telephonic or electronic confirmation; the day after the notice is sent, if sent for next day delivery to a domestic address using a generally recognized overnight delivery service ( e.g. , FedEx); and upon receipt, if sent by certified or registered mail, return receipt requested. In each case notice will be sent as follows:
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Douglas Emmett, Inc.
808 Wilshire Blvd., Suite 200 Santa Monica, CA 90401 Attention: Chief Executive Officer Telephone: (310) 255-7700 |
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If to Executive: |
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William Kamer 808 Wilshire Blvd., Suite 200 Santa Monica, CA 90401 Telephone: 310 255 7700 |
Either party may change its address and/or facsimile number for notice purposes by duly giving notice to the other party pursuant to this Section.
11.9. Executive's Representations . Executive hereby represents to the Company that the execution and delivery of this Agreement by Executive and the Company and the performance by Executive of Executive's duties hereunder shall not constitute a breach of, or otherwise contravene, the terms of any employment agreement or other agreement or policy to which Executive is a party or otherwise bound. Executive represents and warrants that he is not subject to any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, noncompetition agreement, restrictive covenant or any other obligation to any former employer or to any other person or entity in any way relating to the right or ability of Executive to be employed by and/or perform services for the Company and its Subsidiaries. Executive further represents and warrants that he has not brought to or disclosed to the Company or to its Subsidiaries, and covenants that he will not bring to or disclose to the Company or to its Subsidiaries or use in connection with his employment with the Company, any trade secrets or proprietary information from any of his prior employers or from any other person or entity.
11.10. Cooperation in Third-Party Disputes . At the request of the Company, Executive shall cooperate with the Company and/or its Subsidiaries and each of their respective attorneys or other
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legal representatives (collectively referred to as " Attorneys ") in connection with any claim, litigation, or judicial or arbitral proceeding which is now pending or may hereinafter be brought against the Company and/or any of its Subsidiaries or affiliates by any third party. Executive's duty of cooperation shall include, but shall not be limited to, (a) meeting with the Company's and/or its Subsidiaries' Attorneys by telephone or in person at mutually convenient times and places in order to state truthfully Executive's knowledge of the matters at issue and recollection of events; (b) appearing at the Company's and/or its Subsidiaries' and/or their Attorneys' request (and, to the extent possible, at a time convenient to Executive that does not conflict with the needs or requirements of Executive's then-current employer or personal commitments) as a witness at depositions, trials or other proceedings, without the necessity of a subpoena, in order to state truthfully Executive's knowledge of the matters at issue; and (c) signing at the Company's request declarations or affidavits that truthfully state the matters of which Executive has knowledge. Such services will be without additional compensation if Executive is then employed by the Company or any Subsidiary and for reasonable compensation and subject to his reasonable availability if he is not so employed. The Company shall promptly reimburse Executive for Executive's actual and reasonable travel or other out-of-pocket expenses that Executive may incur in cooperating with the Company and/or its Subsidiaries under this Section 11.10.
11.11. Withholding Obligations . The Company, or any other entity making a payment, may withhold and make such deductions from any amounts payable under this Agreement such federal, state and local taxes as may be required to be withheld or deducted from time to time pursuant to any applicable law, governmental regulation and/or order. The amount of compensation payable to Executive pursuant to this Agreement shall be "grossed up" as necessary (on an after-tax basis) to compensate for any additional social security withholding taxes due as a result of Executive's shared employment by the any Subsidiary.
11.12. Counterparts . This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. A facsimile signature shall be deemed to be the same as an original signature.
11.13. Interpretation . Executive understands that this Agreement is deemed to have been drafted jointly by the parties and that the parties had a reasonable opportunity to retain legal counsel for such purpose. Any uncertainty or ambiguity shall not be construed for or against any party based on attribution of drafting to any party.
11.14. Headings . Titles or captions of Sections contained in this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provisions hereof.
11.15. Survival of Provisions . All other rights and obligations of the parties hereto, other than those applicable by their express terms only during the Agreement Term, shall survive any termination or expiration of this Agreement or of Executive's employment with the Company, and shall be fully enforceable thereafter.
11.16. Arbitration of Disputes . Except as is necessary for Executive and the Company to preserve their respective rights under this Agreement by seeking necessary equitable relief (including, but not limited to, the Company's rights under Section 9 of this Agreement) from a court of competent jurisdiction, the Company and Executive agree that any and all disputes based upon, relating to or arising out of this Agreement (including, but not limited to, any breach or alleged breach of this Agreement, or any dispute concerning the formation of this Agreement, or the validity, scope and/or enforceability of this arbitration provision), Executive's employment relationship with the Company and/or the termination of that relationship, and/or any other dispute by and between the Company and Executive, including any and all claims Executive may at any time attempt to assert against the Company, shall be submitted to binding arbitration in Los Angeles, California, in accordance with the
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rules of JAMS, provided that the arbitrator shall allow for discovery sufficient to adequately arbitrate any alleged claims, including access to essential documents and witnesses, and otherwise in accordance with California Code of Civil Procedure § 1283.05. The party prevailing in any action shall be entitled to its reasonable attorneys' fees in enforcing its rights hereunder. In any event, the Company shall pay any expenses that Executive would not otherwise have incurred if the dispute had been adjudicated in a court of law, rather than through arbitration, including the arbitrator's fee, any administrative fee and any filing fee in excess of the maximum court filing fee in the jurisdiction in which the arbitration is commenced. Judgment in a court of competent jurisdiction may be had on any decision and award of the arbitrator. For these purposes, the parties agree to submit to the jurisdiction of the state and federal courts located in Los Angeles County, California.
11.17. Section 409A of the Code . This Agreement is intended to comply with Section 409A of the Code. Each party to this Agreement intends and agrees that this Agreement shall be interpreted and modified to the minimum extent necessary and to provide as near as possible the same economic benefit to the Executive provided hereunder in the absence of such modification, as mutually agreed by counsel for both parties, so as to avoid the imposition of any excise tax under Section 409A of the Internal Revenue Code and the regulations thereunder.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.
Douglas Emmett, Inc. | Executive | ||
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William Kamer | |
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Douglas Emmett Properties, LP |
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CALIFORNIA LABOR CODE SECTION 2870
INVENTION ON OWN TIME-EXEMPTION FROM AGREEMENT
"(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:
(1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actually or demonstrably anticipated research or development of the employer; or
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable."
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Schedule B
Excise Tax Gross Up
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consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant this Schedule B and Executive thereafter is required to make a payment of any Excise Tax, Executive Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive.
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shall (subject to the Company's complying with the requirements of this Schedule B) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to this Schedule B, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.
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June 7, 2006
Andrès
Gavinet
11601 Wilshire Blvd. Ste. #350
Los Angeles, CA 90025
Dear Andrès
We are pleased to present you with the terms of your proposed employment as our Executive Vice PresidentFinance. You will initially be employed by Douglas Emmett and Company (and upon a successful completion of an IPO you will employed by Douglas Emmett, Inc., or a subsidiary thereof, (the "REIT")). You will primarily report to the REIT's CFO with additional responsibility to the REIT's COO and CEO. Your supervisory and reporting responsibilities for the REIT are expected to include accounting, the audit function, taxes, SEC reporting, Sarbanes Oxley, investor relations, earnings projections, the corporate model, and support for capital markets transactions. The REIT's CAO is expected to report to you and the COO.
Your employment start date will be on or about July 1, 2006. Your beginning annual base salary will be $300,000 plus a discretionary annual bonus based on performance with a target of 80% of your base salary. You also will be given a package of other benefits, which currently include a cell phone for business use, a car allowance, and health insurance, commensurate with our Senior Vice Presidents. Annual employee performance reviews are generally done in December. Your first annual employee performance and bonus review is expected to be in December 2006 at which time you will be considered for your 2008 bonus on a prorated basis with a target of $175,000 AG.
Upon a successful completion of an IPO, and at the same time as the other senior officers of the REIT and on our standard grant agreements, you will receive a grant of 15,000 LTIP units and of non qualified options with an exercise price equal to the IPO price covering 44,444 shares of REIT common stock, each vesting 25% each year on December 31, beginning on December 31, 2007. (The number of shares and LTIP units are based on a price per share of $20 and a value for each of option of $2.25, and will be adjusted proportionately to the extent the mid point of the range in the "road show" prospectus (but not the final prospectus) differs from those values). In the event of a "change in control" (which will be defined in the grants), any unvested portion of the grant shall vest.
Your employment status is as an exempt employee. Exempt employees are not eligible for overtime pay; our office is formerly open from 8:30 in the morning to 6:00 in the evening.
Douglas Emmett and Company currently offers two health service programs for medical and hospitalization care. We offer an "HMO only" plan in which Douglas Emmett typically pays the premium cost for the employee. Typically, the employee pays dependent and family coverage premiums. The alternative program is a "PPOPreferred Provider Option" plan. Typically, the employees are responsible for a portion of the premium cost for individual as well as dependent/family coverage. Attached is the summary of benefits addendum including typical current premium costs to the employee. Both health care plans are provided through Health Net. Our current dental and vision care provider is Triple Choice Plans. Similar to the health care plan, there are HMO and PPO choices with the Triple Choice coverage. You will become eligible for these benefits effective the first day of the month after a sixty-day waiting period. We also currently provide a Section 125 "Cafeteria" plan, which allows for the payment of medical/dental premiums with pre-tax dollars and also offers the employee the opportunity to use "flex" pre-tax programs to pay for qualified childcare and uninsured medical
costs. Our Human Resources Department will be pleased to answer your questions concerning the various programs currently available to you.
Vacation time is given in the form of "Personal Time Off" or "PTO". PTO is provided instead of vacation and sick days. During your first year of employment, you will earn 15 PTO days on a pro-rata basis beginning on your first day of employment.
You will be eligible to participate in the 401(k) plan the quarter following six full months of employment. Employer contributions to the plan are made at the employer's discretion. For the last five years the employer made a 50% matching contribution to a maximum of $3,000 per employee.
Of course, this letter cannot set out all of the employee policies to which you will be subject. Human Resources will assist you to complete the "New Hire" packet on your first day of work, which will include a number of those policies. Our policies and benefits are subject to change without prior notice. You will be expected to review and execute a copy of our Confidentiality Agreement and Mutual Agreement to Arbitrate Claims as a condition of your employment. Your acceptance of these employment terms is based on your understanding and acknowledgment that you are hired as an "employee-at-will" and as a result, your employment with Douglas Emmett and Company can be terminated at any time with our without cause and with or without advanced notice. This letter and the terms set forth herein do not alter the at-will nature of your employment, which can only be changed by a written agreement executed by myself or Jordan. Please be advised that this offer for employment is subject to our approval of a reference and background check.
We are very excited by the prospect of having you join the team and we are looking forward to a mutually prosperous relationship with you.
Sincerely,
Ken
Panzer
Chief Operating Officer
AGREED AND ACCEPTED
/s/
ANDRÈS GAVINET
Andrès Gavinet |
6-8-06
Date |
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DOUGLAS EMMETT, INC.
2006 OMNIBUS STOCK INCENTIVE PLAN
LTIP UNIT AWARD AGREEMENT
Name
of the Grantee:
(the "
Grantee
")
No. of LTIP Units Awarded:
Grant Effective Date:
RECITALS
A. The Grantee is an officer of Douglas Emmett, Inc. (the " Company ") and its subsidiary Douglas Emmett Properties LP, through which the Company conducts substantially all of its operations (the " Partnership ").
B. Pursuant to the Company's 2006 Omnibus Stock Incentive Plan (as amended and supplemented from time to time, the " Plan ") and the Limited Partnership Agreement (the " LP Agreement ") of the Partnership, the Company as general partner of the Partnership hereby grants to the Grantee an Other Stock-Based Award (as defined in the Plan, referred to herein as an " Award ") in the form of, and by causing the Partnership to issue to the Grantee, the number of LTIP Units (as defined in the LP Agreement) set forth above (the " Award LTIP Units ") having the rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption and conversion set forth herein and in the LP Agreement. Upon the close of business on the Grant Effective Date pursuant to this LTIP Unit Award Agreement (this " Agreement "), the Grantee shall receive the number of LTIP Units specified above, subject to the restrictions and conditions set forth herein, in the Plan and in the LP Agreement. Unless otherwise indicated, capitalized terms used herein but not defined shall have the meanings given to those terms in the Plan or as defined in Section 2.
NOW, THEREFORE , the Company, the Partnership and the Grantee agree as follows:
1. Effectiveness of Award. The Grantee shall be admitted as a partner of the Partnership with beneficial ownership of the Award LTIP Units as of the Grant Effective Date by (i) signing and delivering to the Partnership a copy of this Agreement and (ii) signing, as a Limited Partner, and delivering to the Partnership a counterpart signature page to the LP Agreement (attached hereto as Exhibit A). Upon execution of this Agreement by the Grantee, the Partnership and the Company, the LP Agreement shall be amended to reflect the issuance to the Grantee of the Award LTIP Units and the Partnership shall deliver to the Grantee a certificate of the Partnership certifying the number of LTIP Units then issued to the Grantee. Thereupon, the Grantee shall have all the rights of a Limited Partner of the Partnership with respect to a number of LTIP Units equal to the Award LTIP Units, as set forth in the LP Agreement, subject, however, to the restrictions and conditions specified in Section 2 below.
2. Vesting of Award LTIP Units.
[ FOR IMMEDIATELY VESTED GRANTS: (i) The Award LTIP Units subject to this Agreement shall be fully vested as of the Grant Effective Date.]
[ FOR GRANTS VESTING OVER 4 YEARS: (i) Except as otherwise provided in Sections 2(iii) and 2(iv) below, the Award LTIP Units shall become vested in the following amounts and upon the
following conditions, provided that the Continuous Service (as defined below) of the Grantee continues through and on the applicable Vesting Date or Dates.
Vesting Date
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Number of
Award LTIP Units Becoming Vested |
Cumulative
Percentage Vested |
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Before December 31, 2007 | 0 | 0% | ||
December 31, 2007 | (25%) | 25% | ||
December 31, 2008 | (25%) | 50% | ||
December 31, 2009 | (25%) | 75% | ||
December 31, 2010 | (25%) | 100% |
(ii) There shall be no proportionate or partial vesting of Award LTIP Units in or during the months, days or periods prior to each Vesting Date, and all vesting of Award LTIP Units shall occur only on the applicable Vesting Date. Upon the termination or cessation of the Grantee's Continuous Service, other than without Cause by the Company or for Good Reason, by the Grantee, any portion of the Award LTIP Units which is not yet then vested shall automatically and without notice or payment of any consideration by the Company or the Partnership terminate, be forfeited and be and become null and void and neither the Grantee nor any of his successors, heirs, assigns, or personal representatives will thereafter have any further rights or interests in the Award LTIP Units.
(iii) Notwithstanding any other term or provision of this Agreement, if the Grantee's Continuous Service is terminated without Cause by the Company or for Good Reason by the Grantee, or if the principal class of securities for which the LTIP Award Units may be exchanged are no longer publicly traded following a Change of Control, then the unvested Award LTIP Units subject to this Agreement that have not been previously forfeited shall immediately vest as of the date of such termination without Cause or for Good Reason. The vesting of the Award LTIP Units subject to this Agreement shall not otherwise accelerate on a Sale Event except as provided in this Agreement or with the consent of the Committee.
(iv) Notwithstanding anything to the contrary in this Section 2, to the extent the Grantee is a party to another agreement or arrangement with the Company that provides accelerated vesting of the Award LTIP Units in the event of certain types of employment terminations or any other applicable vesting-related events or provides more favorable vesting provisions than provided for in this Agreement, the more favorable vesting terms of such other agreement or arrangement shall control.
(v) For purposes of this Agreement, the following terms shall have the meanings indicated:
" Cause " for termination of the Grantee's employment means (A) if the Grantee is a party to an employment or other similar service agreement with the Company (a " Service Agreement "), and "cause" is defined therein, such definition, or (B) if the Grantee is not party to a Service Agreement or the Grantee's Service Agreement does not define "cause," then Cause means any of the following: (a) any act or omission by the Grantee which constitutes intentional misconduct or a willful violation of law or a material written Company policy previously provided to the Grantee; (b) the Grantee receiving a benefit, money, property or services from the Company or any Subsidiary or another person dealing with the Company or any Subsidiary in violation of applicable law or written policy of the Company or any Subsidiary; (c) an act of fraud, conversion, misappropriation or embezzlement by the Grantee or conviction of, indictment for (or its procedural equivalent) or entering a guilty plea or plea of no contest with respect to a felony, the equivalent thereof or any crime with respect to which imprisonment is a possible punishment or which involves moral turpitude; or (d) any other failure by the Grantee to perform his material and reasonable duties and responsibilities as an employee, director
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or consultant of the Company or any Subsidiary which continues for ten (10) days following written notice from the Company or any Subsidiary (except in the case of a willful failure to perform his duties or a willful breach, which shall require no notice). For purposes of the foregoing sentence, no act, or failure to act, on the Grantee's part shall be considered "willful" unless the Grantee acted, or failed to act, in bad faith or without reasonable belief that his act or failure to act was in the best interest of the Company or any Subsidiary.
" Change of Control " shall be deemed to have occurred if
(i) there shall be consummated (x) any consolidation or merger of the Company, other than a merger or consolidation of the Company in which (1) the holders of the Company's common stock immediately prior to the merger or consolidation have at least fifty one percent (51%) ownership of the total voting power of the surviving entity immediately after the merger or consolidation, and (2) no person (other than an Exempted Holder as defined below) beneficially owns (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, twenty percent (20%) or more of the total voting power of the surviving entity or (y) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company, or
(ii) the shareholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company, or
(iii) any person (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the " Exchange Act ")) other than an Exempted Holder (as defined below) shall become the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of twenty percent (20%) or more of the Company's Common Stock. " Exempted Holder " means (a) the Company or any majority-owned Subsidiary ( provided that this exclusion applies solely to the ownership levels of the Company or the majority-owned Subsidiary); (b) any trustee, fiduciary or other person or entity holding securities under any employee benefit plan or trust sponsored or maintained by the Company or any Subsidiary; (c) any underwriter temporarily holding securities pursuant to an offering of such securities; or (d) Dan Emmett, Jordan Kaplan or Ken Panzer, their immediate family members and family trusts or family-only partnerships and any charitable foundations, any entities in which they and their families beneficially own a majority of the voting interests, and any "group" (as described in Rule 13d-5(b)(i) under the Exchange Act) including them. However, a Change in Control shall not be deemed to have occurred if a person's percentage interest increases over twenty (20%) solely as a result of a decrease in the outstanding stock because of an acquisition of securities by the Company; provided, however, that a "Change in Control" shall be deemed to have occurred on any subsequent acquisitions of the Company's Common Stock by that person (other than pursuant to a stock split, stock dividend, or similar transaction) at a time when that person beneficially owns twenty percent (20%) or more of the Company's outstanding Common Stock, or
(v) the Board shall cease for any reason to have a majority of Uncontested Directors. " Uncontested Directors " means directors who were initially elected or initially nominated (i) by a vote of at least two-thirds of the then Uncontested Directors and (ii) not as a result of an actual or threatened election contest with respect to directors or as a result of any other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board, including by
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reason of agreement intended to avoid or settle any such actual or threatened contest or solicitation.
" Continuous Service " means the continuous service to the Company and any Subsidiary, without interruption or termination, in any capacity of employee, member of the Board or, with the written permission of the Company, consultant. Continuous Service shall not be considered interrupted in the case of (A) any approved leave of absence, (B) transfers among the Company and any Subsidiary, or any successor, in any capacity of employee, member of the Board or consultant, or (C) any change in status as long as the individual remains in the service of the Company and any Subsidiary in any capacity of employee, member of the Board or (if the Company specifically agrees in writing that the Continuous Service is not uninterrupted) a consultant. An approved leave of absence shall include sick leave, military leave, or any other authorized personal leave.
" Good Reason " for termination of the Grantee's employment means (A) if the Grantee is a party to a Service Agreement, and "good reason" is defined therein, such definition, or (B) if the Grantee is not party to a Service Agreement or the Grantee's Service Agreement does not define "good reason", then Good Reason shall be present where the Grantee gives notice to the Board of his voluntary resignation within ninety (90) days after the occurrence of any of the following, without the Grantee's written consent: (a) the failure of the Company to pay or cause to be paid any salary, bonus or other payment owed to the Grantee, when due under any Grantee Service Agreement or otherwise, subject to a ten (10) day cure period by the Company (except in the case of a willful failure, which shall require no notice); or (b) within four (4) months after a Change of Control, a substantial diminution in the Grantee's duties, authority or responsibility (but not title or position), subject to a thirty (30) day cure period by the Company (except in the case of a willful breach, which shall require no notice).
" Non-Vested LTIP Units " means any portion of the Award LTIP Units subject to this Agreement that has not become vested pursuant to Section 2.
" Vested LTIP Units " means any portion of the Award LTIP Units subject to this Agreement that is and has become vested pursuant to Section 2.
3. Distributions . Distributions on the Award LTIP Units shall be paid to the Grantee to the extent provided for in the LP Agreement. The Distribution Participation Date (as defined in the LP Agreement) for the Award LTIP Units shall be the Grant Effective Date.
4. Rights with Respect to Award LTIP Units . Without duplication with the provisions of Section 3 of the Plan, if (i) the Company shall at any time be involved in a merger, consolidation, dissolution, liquidation, reorganization, exchange of shares, sale of all or substantially all of the assets or capital stock of the Company or a transaction similar thereto, (ii) any stock dividend, stock split, reverse stock split, stock combination, reclassification, recapitalization, or other similar change in the capital structure of the Company, or any distribution to holders of Common Stock other than ordinary cash dividends, shall occur or (iii) any other event shall occur which in the judgment of the Committee necessitates action by way of adjusting the terms of the Agreement, then and in that event, the Committee shall take such action as shall be necessary to maintain the Grantee's rights hereunder so that they are substantially proportionate to the rights existing under this Agreement prior to such event, including, but not limited to, adjustments in the number of Award LTIP Units then subject to this Agreement and substitution of other awards under the Plan or otherwise. The Grantee shall have the right to vote the Award LTIP Units if and when voting is allowed under the LP Agreement, regardless of whether vesting has occurred.
5. Incorporation of Plan . This Agreement is subject in all respects to the terms, conditions, limitations and definitions contained in the Plan. In the event of any discrepancy or inconsistency between this Agreement and the Plan, the terms and conditions of the Plan shall control.
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6. Restrictions on Transfer . None of the Award LTIP Units granted hereunder shall be sold, assigned, transferred, pledged, hypothecated, given away or in any other manner disposed of, encumbered, whether voluntarily or by operation of law (each such action a " Transfer "), or redeemed in accordance with the LP Agreement (i) prior to vesting, (ii) for a period of two (2) years beginning on the Grant Effective Date other than in connection with a Change of Control, or (iii) unless such Transfer is in compliance with all applicable securities laws (including, without limitation, the Securities Act of 1933, as amended (the " Securities Act ")), and such Transfer is in accordance with the applicable terms and conditions of the LP Agreement; provided that, upon the approval of, and subject to the terms and conditions specified by, the Committee, Non-Vested LTIP Units that have been held for a period of at least two (2) years beginning on the Grant Effective Date specified above may be Transferred to (w) the spouse, children or grandchildren of the Grantee (" Immediate Family Members "), (x) a trust or trusts for the exclusive benefit of the Grantee and such Immediate Family Members, (y) a partnership in which the Grantee and such Immediate Family Members are the only partners, or (z) one or more entities in which the Grantee has a 10% or greater equity interest, provided that the transferee agrees in writing with the Company and the Partnership to be bound by all the terms and conditions of this Agreement and that subsequent transfers of Non-Vested LTIP Units shall be prohibited except those in accordance with this Section 6. In connection with any Transfer of Award LTIP Units granted hereunder, the Partnership may require the Grantee to provide an opinion of counsel, satisfactory to the Partnership, that such Transfer is in compliance with all federal and state securities laws (including, without limitation, the Securities Act). Any attempted Transfer of Award LTIP Units granted hereunder not in accordance with the terms and conditions of this Section 6 shall be null and void, and the Partnership shall not reflect on its records any change in record ownership of any Award LTIP Units as a result of any such Transfer, shall otherwise refuse to recognize any such Transfer and shall not in any way give effect to any such Transfer of any Award LTIP Units. This Agreement is personal to the Grantee, is non-assignable and is not transferable in any manner, by operation of law or otherwise, other than by will or the laws of descent and distribution.
7. Legend . The records of the Partnership evidencing the Award LTIP Units shall bear an appropriate legend, as determined by the Partnership in its sole discretion, to the effect that such LTIP Units are subject to restrictions as set forth herein, in the Plan and in the LP Agreement.
8. Tax Matters; Section 83(b) Election . The Grantee hereby agrees to make an election to include in gross income in the year of transfer the Award LTIP Units hereunder pursuant to Section 83(b) of the Internal Revenue Code substantially in the form attached hereto as Exhibit B and to supply the necessary information in accordance with the regulations promulgated thereunder.
9. Withholding and Taxes . No later than the date as of which an amount first becomes includible in the gross income of the Grantee for income tax purposes or subject to the Federal Insurance Contributions Act withholding with respect to the Award LTIP Units granted hereunder, the Grantee will pay to the Company or, if appropriate, any of its Subsidiaries, or make arrangements satisfactory to the Committee regarding the payment of, any United States federal, state or local or foreign taxes of any kind required by law to be withheld with respect to such amount. The obligations of the Company under this Agreement will be conditional on such payment or arrangements, and the Company and its Subsidiaries shall, to the extent permitted by law, have the right to deduct any such taxes from any payment otherwise due to the Grantee.
10. Amendment, Modification . This Agreement may only be modified or amended in a writing signed by the parties hereto, provided that the Grantee acknowledges that the Plan may be amended or discontinued in accordance with Section 16 thereof and that this Agreement may be amended or canceled by the Committee, on behalf of the Company and the Partnership, for the purpose of satisfying changes in law or for any other lawful purpose, so long as no such action shall impair the Grantee's rights under this Agreement without the Grantee's written consent. No promises, assurances, commitments, agreements, undertakings or representations, whether oral, written, electronic or
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otherwise, and whether express or implied, with respect to the subject matter hereof, have been made by the parties which are not set forth expressly in this Agreement.
11. Complete Agreement . This Agreement (together with those agreements and documents expressly referred to herein, for the purposes referred to herein) embody the complete and entire agreement and understanding between the parties with respect to the subject matter hereof, and supersede any and all prior promises, assurances, commitments, agreements, undertakings or representations, whether oral, written, electronic or otherwise, and whether express or implied, which may relate to the subject matter hereof in any way.
12. Investment Representation; Registration . The Grantee hereby makes the covenants, representations and warranties set forth on Exhibit C attached hereto as of the Grant Effective Date and as of each Vesting Date. All of such covenants, warranties and representations shall survive the execution and delivery of this Agreement by the Grantee. The Grantee shall immediately notify the Partnership upon discovering that any of the representations or warranties set forth on Exhibit C was false when made or have, as a result of changes in circumstances, become false. The Partnership will have no obligation to register under the Securities Act any of the Award LTIP Units or any other securities issued pursuant to this Agreement or upon conversion or exchange of the Award LTIP Units into other limited partnership interests of the Partnership or shares of capital stock of the Company.
13. No Obligation to Continue Employment or Other Service Relationship . Neither the Company nor any Subsidiary is obligated by or as a result of the Plan or this Agreement to continue to have the Grantee provide services to it or to continue the Grantee in employment and neither the Plan nor this Agreement shall interfere in any way with the right of the Company or any Subsidiary to terminate its service relationship with the Grantee or the employment of the Grantee at any time.
14. No Limit on Other Compensation Arrangements . Nothing contained in this Agreement shall preclude the Company from adopting or continuing in effect other or additional compensation plans, agreements or arrangements, and any such plans, agreements and arrangements may be either generally applicable or applicable only in specific cases or to specific persons.
15. Status of Award LTIP Units under the Plan . The Award LTIP Units are both issued as equity securities of the Partnership and granted as "Other Stock-Based Awards" under the Plan. The Company will have the right at its option, as set forth in the LP Agreement, to issue Stock in exchange for partnership units into which Vested LTIP Units may have been converted pursuant to the LP Agreement, subject to certain limitations set forth in the LP Agreement, and such Stock, if issued, will be issued under the Plan. The Grantee acknowledges that the Grantee will have no right to approve or disapprove such election by the Company.
16. Severability . If any term or provision of this Agreement is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or under any applicable law, rule or regulation, then such provision shall be construed or deemed amended to conform to applicable law (or if such provision cannot be so construed or deemed amended without materially altering the purpose or intent of this Agreement and the grant of Award LTIP Units hereunder, such provision shall be stricken as to such jurisdiction and the remainder of this Agreement and the award hereunder shall remain in full force and effect).
17. Section 409A . If any compensation provided by this Agreement may result in the application of Section 409A of the Code, the Company shall, in consultation with the Grantee, modify the Agreement in the least restrictive manner necessary in order to, where applicable, (i) exclude such compensation from the definition of "deferred compensation" within the meaning of such Section 409A or (ii) comply with the provisions of Section 409A, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under such statutory provisions and to make such
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modifications, in each case, without any diminution in the value of the benefits granted hereby to the Grantee.
18. Law Governing . This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Maryland (without reference to the conflict of laws rules or principles thereof).
19. Headings . Section, paragraph and other headings and captions are provided solely as a convenience to facilitate reference. Such headings and captions shall not be deemed in any way material or relevant to the construction, meaning or interpretation of this Agreement or any term or provision hereof.
20. Notices . Notices hereunder shall be mailed or delivered to the Partnership at its principal place of business and shall be mailed or delivered to the Grantee at the address on file with the Partnership or, in either case, at such other address as one party may subsequently furnish to the other party in writing.
21. Counterparts . This Agreement may be executed in two or more separate counterparts, each of which shall be an original, and all of which together shall constitute one and the same agreement.
22. Successors and Assigns . The rights and obligations created hereunder shall be binding on the Grantee and his heirs and legal representatives and on the successors and assigns of the Partnership.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned have caused this Award to be executed on the day of , 200 .
DOUGLAS EMMETT, INC. | |||
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DOUGLAS EMMETT PROPERTIES LP |
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By DOUGLAS EMMETT, INC., Its General Partner |
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By: |
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Name:
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The Grantee |
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Name: Address: |
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EXHIBIT A
FORM OF LIMITED PARTNER SIGNATURE PAGE
The Grantee, desiring to become one of the within named Limited Partners of Douglas Emmett Properties LP, hereby becomes a party to the Agreement of Limited Partnership of Douglas Emmett Properties LP, as amended through the date hereof (the " Partnership Agreement "). The Grantee agrees that this signature page may be attached to any counterpart of the Partnership Agreement.
Signature Line for Limited Partner: | |||
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By: |
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Name:
Date: , , 200 |
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Address of Limited Partner: |
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EXHIBIT B
ELECTION TO INCLUDE IN GROSS INCOME IN YEAR OF
TRANSFER OF PROPERTY PURSUANT TO SECTION 83(B)
OF THE INTERNAL REVENUE CODE
The undersigned hereby makes an election pursuant to Section 83(b) of the Internal Revenue Code with respect to the property described below and supplies the following information in accordance with the regulations promulgated thereunder:
Dated: , 2006
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Name: |
Schedule to Section 83(b) Election -Vesting Provisions of LTIP Units
LTIP Units are subject to time-based vesting with [100% vesting on ] [one-fourth ( 1 / 4 ) vesting on each of December 21, 2007, 2008, 2009 and 2010, provided that the Taxpayer remains an employee of Douglas Emmett, Inc. (the "Company") or its subsidiaries through such dates, subject to acceleration in the event of certain extraordinary transactions.] Unvested LTIP Units are subject to forfeiture in the event of failure to vest based on the passage of time and continued employment with the Company or its subsidiaries.
EXHIBIT C
GRANTEE'S COVENANTS, REPRESENTATIONS AND WARRANTIES
The Grantee hereby represents, warrants and covenants as follows:
(a) The Grantee has received and had an opportunity to review the following documents (the " Background Documents "):
(i) The Company's Registration Statement on Form S-11 with respect to the Company's initial public offering;
(ii) The latest Annual Report to Stockholders that has been provided to stockholders after the Company's initial public offering, if available;
(iii) The Company's Proxy Statement for its most recent Annual Meeting of Stockholders following the Company's initial public offering, if available;
(iv) The Company's Report on Form 10-K for the fiscal year most recently ended following the Company's initial public offering, if available;
(v) The Company's Form 10-Q for the most recently ended quarter if one has been filed by the Company with the Securities and Exchange Commission since the filing of the Form 10-K described in clause (iv) above or, if a Form 10-K has not been filed by the Company, since the filing of the Form S-11 described in clause (i) above;
(vi) Each of the Company's Current Report(s) on Form 8-K, if any, filed since the later of the end of the fiscal year most recently ended for which a Form 10-K has been filed by the Company or the filing of the Form S-11 described in clause (i) above;
(vii) The Agreement of Limited Partnership of Douglas Emmett Properties LP;
(viii) The Company's 2006 Omnibus Stock Incentive Plan; and
(ix) The Company's Amended and Restated Certificate of Incorporation.
The Grantee also acknowledges that any delivery of the Background Documents and other information relating to the Company and the Partnership prior to the determination by the Partnership of the suitability of the Grantee as a holder of Award LTIP Units shall not constitute an offer of Award LTIP Units until such determination of suitability shall be made.
(b) The Grantee hereby represents and warrants that
(i) The Grantee either (A) is an "accredited investor" as defined in Rule 501(a) under the Securities Act of 1933, as amended (the " Securities Act "), or (B) by reason of the business and financial experience of the Grantee, together with the business and financial experience of those persons, if any, retained by the Grantee to represent or advise him or her with respect to the grant to him or her of LTIP Units, the potential conversion of LTIP Units into common units of the Partnership (" Common Units ") and the potential redemption of such Common Units for shares of common stock in the Company (" Shares "), has such knowledge, sophistication and experience in financial and business matters and in making investment decisions of this type that the Grantee (I) is capable of evaluating the merits and risks of an investment in the Partnership and potential investment in the Company and of making an informed investment decision, (II) is capable of protecting his or her own interest or has engaged representatives or advisors to assist him or her in protecting his or her its interests, and (III) is capable of bearing the economic risk of such investment.
(ii) The Grantee understands that (A) the Grantee is responsible for consulting his or her own tax advisors with respect to the application of the U.S. federal income tax laws, and the tax laws of any state, local or other taxing jurisdiction to which the Grantee is or by reason of the award of LTIP Units may become subject, to his or her particular situation; (B) the Grantee has
not received or relied upon business or tax advice from the Company, the Partnership or any of their respective employees, agents, consultants or advisors, in their capacity as such; (C) the Grantee provides or will provide services to the Partnership on a regular basis and in such capacity has access to such information, and has such experience of and involvement in the business and operations of the Partnership, as the Grantee believes to be necessary and appropriate to make an informed decision to accept this Award of LTIP Units; and (D) an investment in the Partnership and/or the Company involves substantial risks. The Grantee has been given the opportunity to make a thorough investigation of matters relevant to the LTIP Units and has been furnished with, and has reviewed and understands, materials relating to the Partnership and the Company and their respective activities (including, but not limited to, the Background Documents). The Grantee has been afforded the opportunity to obtain any additional information (including any exhibits to the Background Documents) deemed necessary by the Grantee to verify the accuracy of information conveyed to the Grantee. The Grantee confirms that all documents, records, and books pertaining to his or her receipt of LTIP Units which were requested by the Grantee have been made available or delivered to the Grantee. The Grantee has had an opportunity to ask questions of and receive answers from the Partnership and the Company, or from a person or persons acting on their behalf, concerning the terms and conditions of the LTIP Units. The Grantee has relied upon, and is making its decision solely upon, the Background Documents and other written information provided to the Grantee by the Partnership or the Company. The Grantee did not receive any tax, legal or financial advice from the Partnership or the Company and, to the extent it deemed necessary, has consulted with its own advisors in connection with its evaluation of the Background Documents and this Agreement and the Grantee's receipt of LTIP Units.
(iii) The LTIP Units to be issued, the Common Units issuable upon conversion of the LTIP Units and any Shares issued in connection with the redemption of any such Common Units will be acquired for the account of the Grantee for investment only and not with a current view to, or with any intention of, a distribution or resale thereof, in whole or in part, or the grant of any participation therein, without prejudice, however, to the Grantee's right (subject to the terms of the LTIP Units, the Plan and this Agreement) at all times to sell or otherwise dispose of all or any part of his or her LTIP Units, Common Units or Shares in compliance with the Securities Act, and applicable state securities laws, and subject, nevertheless, to the disposition of his or her assets being at all times within his or her control.
(iv) The Grantee acknowledges that (A) neither the LTIP Units to be issued, nor the Common Units issuable upon conversion of the LTIP Units, have been registered under the Securities Act or state securities laws by reason of a specific exemption or exemptions from registration under the Securities Act and applicable state securities laws and, if such LTIP Units or Common Units are represented by certificates, such certificates will bear a legend to such effect, (B) the reliance by the Partnership and the Company on such exemptions is predicated in part on the accuracy and completeness of the representations and warranties of the Grantee contained herein, (C) such LTIP Units, or Common Units, therefore, cannot be resold unless registered under the Securities Act and applicable state securities laws, or unless an exemption from registration is available, (D) there is no public market for such LTIP Units and Common Units and (E) neither the Partnership nor the Company has any obligation or intention to register such LTIP Units or the Common Units issuable upon conversion of the LTIP Units under the Securities Act or any state securities laws or to take any action that would make available any exemption from the registration requirements of such laws, except, that, upon the redemption of the Common Units for Shares, the Company currently intends to issue such Shares under the Plan and pursuant to a Registration Statement on Form S-8 under the Securities Act, to the extent that (I) the Grantee is eligible to receive such Shares under the Plan at the time of such issuance and (II) the Company has filed an effective Form S-8 Registration Statement with the Securities and Exchange Commission registering the issuance of such Shares. The Grantee hereby acknowledges that because of the restrictions on transfer or assignment of such LTIP Units acquired hereby and the Common Units issuable upon conversion of the LTIP Units which are set forth in the Partnership
Agreement and this Agreement, the Grantee may have to bear the economic risk of his or her ownership of the LTIP Units acquired hereby and the Common Units issuable upon conversion of the LTIP Units for an indefinite period of time.
(v) The Grantee has determined that the LTIP Units are a suitable investment for the Grantee.
(vi) No representations or warranties have been made to the Grantee by the Partnership or the Company, or any officer, director, shareholder, agent, or affiliate of any of them, and the Grantee has received no information relating to an investment in the Partnership or the LTIP Units except the information specified in this Paragraph (b).
(c) So long as the Grantee holds any LTIP Units, the Grantee shall disclose to the Partnership in writing such information as may be reasonably requested with respect to ownership of LTIP Units as the Partnership may deem reasonably necessary to ascertain and to establish compliance with provisions of the Internal Revenue Code of 1986, as amended (the " Code "), applicable to the Partnership or to comply with requirements of any other appropriate taxing authority.
(d) The Grantee hereby agrees to make an election under Section 83(b) of the Code with respect to the LTIP Units awarded hereunder, and has delivered with this Agreement a completed, executed copy of the election form attached to this Agreement as Exhibit B . The Grantee agrees to file the election (or to permit the Partnership to file such election on the Grantee's behalf) within thirty (30) days after the Award of the LTIP Units hereunder with the IRS Service Center at which such Grantee files his or her personal income tax returns, and to file a copy of such election with the Grantee's U.S. federal income tax return for the taxable year in which the LTIP Units are awarded to the Grantee.
(e) The address set forth on the signature page of this Agreement is the address of the Grantee's principal residence, and the Grantee has no present intention of becoming a resident of any country, state or jurisdiction other than the country and state in which such residence is sited.
(f) The representations of the Grantee as set forth above are true and complete to the best of the information and belief of the Grantee, and the Partnership shall be notified promptly of any changes in the foregoing representations.
DOUGLAS EMMETT PROPERTIES, LP
PARTNERSHIP UNIT DESIGNATIONLTIP UNITS
Pursuant to Section 4.2 of the Agreement, the Partnership hereby designates an additional class of Partnership Units to be referred to as "LTIP Units." The terms of the LTIP Units are as follows:
1. Vesting.
A. Vesting, Generally. LTIP Units may, in the sole discretion of the General Partner, be issued subject to vesting, forfeiture and additional restrictions on transfer pursuant to the terms of an award, vesting or other similar agreement (a " Vesting Agreement "). The terms of any Vesting Agreement may be modified by the General Partner from time to time in its sole discretion, subject to any restrictions on amendment imposed by the relevant Vesting Agreement or by the terms of any plan pursuant to which the LTIP Units are issued, if applicable. LTIP Units that have vested and are no longer subject to forfeiture under the terms of a Vesting Agreement are referred to as " Vested LTIP Units "; all other LTIP Units are referred to as " Unvested LTIP Units ." Subject to the terms of any Vesting Agreement, a holder of LTIP Units shall be entitled to transfer his or her LTIP Units to the same extent, and subject to the same restrictions as holders of Partnership Common Units are entitled to transfer their Partnership Common Units pursuant to Article XI of the Agreement.
B. Forfeiture or Transfer of Unvested LTIP Units. Unless otherwise specified in the relevant Vesting Agreement, upon the occurrence of any event specified in a Vesting Agreement as resulting in either the forfeiture of any LTIP Units, or the right of the Partnership or the General Partner to repurchase LTIP Units at a specified purchase price, then upon the occurrence of the circumstances resulting in such forfeiture or if the Partnership or the General Partner exercises such right to repurchase, then the relevant LTIP Units shall immediately, and without any further action, be treated as cancelled or transferred to the General Partner, as applicable, and no longer outstanding for any purpose. Unless otherwise specified in the Vesting Agreement, no consideration or other payment shall be due with respect to any LTIP Units that have been forfeited, other than any distributions declared with a record date prior to the effective date of the forfeiture. In connection with any forfeiture or repurchase of LTIP Units, the balance of the portion of the Capital Account of the holder that is attributable to all of his or her LTIP Units shall be reduced by the amount, if any, by which it exceeds the target balance contemplated by Section 6.1.F of the Agreement, calculated with respect to the holder's remaining LTIP Units, if any.
C. Legend. Any certificate evidencing an LTIP Unit shall bear an appropriate legend indicating that additional terms, conditions and restrictions on transfer, including without limitation any Vesting Agreement, apply to the LTIP Unit.
2. Distributions.
A. LTIP Distribution Amount. Commencing from the Distribution Participation Date (as defined below) established for any LTIP Units, for any quarterly or other period holders of such LTIP Units shall be entitled to receive, if, when and as authorized by the General Partner out of funds legally available for the payment of distributions, regular cash distributions in an amount per unit equal to the amount that would have been payable to such holders if the LTIP Units had been Partnership Common Units for the quarter or other period to which such distributions relate (assuming such LTIP Units were held for the entire quarter or other period) (the " LTIP Distribution Amount "). Except as otherwise provided by the award, plan or other agreement pursuant to which an LTIP Unit was issued, if an LTIP Unit was outstanding for less than the full quarterly or other period to which the LTIP Distribution Amount relates, the LTIP Distribution Amount shall be prorated accordingly, on the basis of actual days elapsed. In addition, from and after the Distribution Participation Date, LTIP Units shall
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be entitled to receive, if, when and as authorized by the General Partner out of funds or other property legally available for the payment of distributions, non-liquidating special, extraordinary or other distributions which may be made from time to time, in an amount per unit equal to the amount of any non-liquidating special, extraordinary or other distributions that would have been payable to such holders if the LTIP Units had been Partnership Common Units (if applicable, assuming such LTIP Units were held for the entire period to which such distributions relate). LTIP Units shall also be entitled to receive, if, when and as authorized by the General Partner out of funds or other property legally available for the payment of distributions, distributions representing proceeds of a sale or other disposition of all or substantially all of the assets of the Partnership in an amount per unit equal to the amount of any such distributions payable on the Partnership Common Units, whether made prior to, on or after the Distribution Participation Date, provided that the amount of such distributions shall not exceed the positive balances of the Capital Accounts of the holders of such LTIP Units to the extent attributable to the ownership of such LTIP Units. Distributions on the LTIP Units, if authorized, shall be payable on such dates and in such manner as may be authorized by the General Partner (any such date, a " Distribution Payment Date "); provided that the Distribution Payment Date and the record date for determining which holders of LTIP Units are entitled to receive a distribution shall be the same as the corresponding dates relating to the corresponding distribution on the Partnership Common Units. For the avoidance of doubt, except as otherwise provided by the award, plan or other agreement pursuant to which an LTIP Unit was issued, if an LTIP Unit is not outstanding on the applicable record date, no distribution, prorated or otherwise, shall be payable with respect to it.
B. Distribution Participation Date. The " Distribution Participation Date " for each LTIP Units will be such date as may be specified in the Vesting Agreement or other documentation pursuant to which such LTIP Units are issued, and if no such date is specified, the date on which the LTIP Units are issued.
3. Allocations.
A. In General. Commencing with the portion of the taxable year of the Partnership that begins on the Distribution Participation Date established for any LTIP Units, such LTIP Units shall be allocated Net Income and Net Loss in amounts per LTIP Unit equal to the amounts allocated per Partnership Common Unit. The allocations provided by the preceding sentence shall be subject to the provisions of the following Section 3.B and to the special allocations required by Section 6.3.B of the Agreement. The Managing General Partner is authorized in its discretion to delay or accelerate the participation of the LTIP Units in allocations of Net Income and Net Loss under this Section 3, or to adjust the allocations made under this Section 3 after the Distribution Participation Date, so that the ratio of (i) the total amount of Net Income or Net Loss allocated with respect to each LTIP Unit in the taxable year in which that LTIP Unit's Distribution Participation Date falls (excluding special allocations under Section 3.B below), to (ii) the total amount distributed to that LTIP Unit with respect to such period, is more nearly equal to the ratio of (i) the Net Income and Net Loss allocated with respect to the General Partner's Partnership Common Units in such taxable year to (ii) the amounts distributed to the General Partner with respect to such Partnership Common Units and such taxable year.
B. Special Allocations. After giving effect to the special allocations set forth in Sections 6.3.A and 6.3.B of the Agreement, and subject to the prior allocation of income and gain under Section 6.2(i) of the Agreement, any Liquidating Gains shall first be allocated to the holders of LTIP Units until the Economic Capital Account Balances of such holders, to the extent attributable to their ownership of LTIP Units, are equal to (i) the Partnership Common Unit Economic Balance, multiplied by (ii) the number of their LTIP Units; provided that no such Liquidating Gains will be allocated with respect to any particular LTIP Unit unless and to the extent that such Liquidating Gains, when aggregated with other Liquidating Gains realized since the issuance of such LTIP Unit, exceed Liquidating Losses realized since the issuance of such LTIP Unit. After giving effect to the special
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allocations set forth in Sections 6.3.A and 6.3.B of the Agreement, in the event that, due to distributions with respect to Partnership Common Units in which the LTIP Units do not participate or otherwise, the Economic Capital Account Balance of any present or former holder of LTIP Units, to the extent attributable to the holder's ownership of LTIP Units, exceeds the target balance specified above, then Liquidating Losses shall be allocated to such holder to the extent necessary to reduce or eliminate the disparity. In the event that Liquidating Gains or Liquidating Losses are allocated under this Section 3.B, Net Income and Net Loss allocable under the remaining clauses of Section 6.2 ( i.e. Sections 6.2(ii) and following) shall be recomputed without regard to the Liquidating Gains or Liquidating Losses so allocated. For this purpose, " Liquidating Gains " means any net gain realized in connection with the actual or hypothetical sale of all or substantially all of the assets of the Partnership (including any Liquidating Transaction), including but not limited to net gain realized in connection with an adjustment to the Gross Asset Values of Partnership assets under clause (b) of the definition of Gross Asset Value in the Agreement. Similarly, " Liquidating Losses " means any net loss realized in connection with any such event. The " Economic Capital Account Balances " of the holders of LTIP Units will be equal to their Capital Account balances, plus the amount of their shares of any Partner Minimum Gain or Partnership Minimum Gain, in either case to the extent attributable to their ownership of LTIP Units. Similarly, the " Partnership Common Unit Economic Balance " shall mean (i) the Capital Account balance of the Special Limited Partner, plus the amount of the Special Limited Partner's share of any Partner Minimum Gain or Partnership Minimum Gain, in either case to the extent attributable to the Special Limited Partner's ownership of Partnership Common Units and computed on a hypothetical basis after taking into account all allocations through the date on which any allocation is made under this Section 6.1.F, divided by (ii) the number of the General Partner's Partnership Common Units. Any such allocations shall be made among the holders of LTIP Units in proportion to the amounts required to be allocated to each under this Section 3.B. The parties agree that the intent of this Section 3.B (as well as, to the extent applicable, Section 6.3.C of the Agreement) is to make the Capital Account balance associated with each LTIP Unit economically equivalent to the Capital Account balance associated with the Special Limited Partner's Partnership Common Units (on a per-unit basis), but only if the Partnership has recognized cumulative net gains with respect to its assets since the issuance of the relevant LTIP Unit.
4. Adjustments.
The Partnership shall maintain at all times a one-to-one correspondence between LTIP Units and Partnership Common Units for conversion, distribution and other purposes, including without limitation complying with the following procedures; provided that the foregoing is not intended to alter the Capital Account Limitation (as defined in Section 7.B below), the special allocations pursuant to Section 3.B above, differences between non-liquidating distributions to be made with respect to the LTIP Units and Partnership Common Units prior to the Distribution Participation Date for such LTIP Units, differences between liquidating distributions to be made with respect to the LTIP Units and Partnership Common Units pursuant to Section 13.2 of the Partnership Agreement or Section 2.A above in the event that the Capital Accounts attributable to the LTIP Units are less than those attributable to the Partnership Common Units due to insufficient special allocations pursuant to Section 3.B above or related provisions.
If an Adjustment Event (as defined below) occurs, then the General Partner shall make a corresponding adjustment to the LTIP Units to maintain such one-for-one correspondence between Partnership Common Units and LTIP Units. The following shall be " Adjustment Events ": (A) the Partnership makes a distribution on all outstanding Partnership Common Units in Partnership Units, (B) the Partnership subdivides the outstanding Partnership Common Units into a greater number of units or combines the outstanding Partnership Common Units into a smaller number of units, or (C) the Partnership issues any Partnership Units in exchange for its outstanding Partnership Common Units by way of a reclassification or recapitalization of its Partnership Common Units. If more than
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one Adjustment Event occurs, the adjustment to the LTIP Units need be made only once using a single formula that takes into account each and every Adjustment Event as if all Adjustment Events occurred simultaneously. For the avoidance of doubt, the following shall not be Adjustment Events: (x) the issuance of Partnership Units in a financing, reorganization, acquisition or other similar business transaction, (y) the issuance of Partnership Units pursuant to any employee benefit or compensation plan or distribution reinvestment plan, or (z) the issuance of any Partnership Units to the General Partner in respect of a capital contribution to the Partnership of proceeds from the sale of securities by the General Partner. If the Partnership takes an action affecting the Partnership Common Units other than actions specifically described above as Adjustment Events and in the opinion of the General Partner such action would require an adjustment to the LTIP Units to maintain the one-to-one correspondence described above, the General Partner shall have the right to make such adjustment to the LTIP Units, to the extent permitted by law and by the terms of any plan pursuant to which the LTIP Units have been issued, in such manner and at such time as the General Partner, in its sole discretion, may determine to be appropriate under the circumstances. If an adjustment is made to the LTIP Units as herein provided the Partnership shall promptly file in the books and records of the Partnership an officer's certificate setting forth such adjustment and a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment absent manifest error. Promptly after filing of such certificate, the Partnership shall mail a notice to each holder of LTIP Units setting forth the adjustment to his or her LTIP Units and the effective date of such adjustment.
5. Ranking.
The LTIP Units shall rank on parity with the Partnership Common Units in all respects, subject to the proviso in the first sentence of Section 4 above.
6. No Liquidation Preference.
The LTIP Units shall have no liquidation preference.
7. Right to Convert LTIP Units into Partnership Common Units.
A. Conversion Right. A holder of LTIP Units shall have the right (the " Conversion Right "), at his or her option, at any time to convert all or a portion of his or her Vested LTIP Units into Partnership Common Units. Holders of LTIP Units shall not have the right to convert Unvested LTIP Units into Partnership Common Units until they become Vested LTIP Units; provided , however , that when a holder of LTIP Units is notified of the expected occurrence of an event that will cause his or her Unvested LTIP Units to become Vested LTIP Units, such Person may give the Partnership a Conversion Notice conditioned upon and effective as of the time of vesting, and such Conversion Notice, unless subsequently revoked by the holder of the LTIP Units, shall be accepted by the Partnership subject to such condition. The General Partner shall have the right at any time to cause a conversion of Vested LTIP Units into Partnership Common Units. In all cases, the conversion of any LTIP Units into Partnership Common Units shall be subject to the conditions and procedures set forth in this Section 7.
B. Number of Units Convertible. A holder of Vested LTIP Units may convert such Vested LTIP Units into an equal number of fully paid and non-assessable Partnership Common Units, giving effect to all adjustments (if any) made pursuant to Section 4. Notwithstanding the foregoing, in no event may a holder of Vested LTIP Units convert a number of Vested LTIP Units that exceeds (x) the Economic Capital Account Balance of such holder, to the extent attributable to its ownership of LTIP Units, divided by (y) the Partnership Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the " Capital Account Limitation ").
C. Notice. In order to exercise his or her Conversion Right, a holder of LTIP Units shall deliver a notice (a " Conversion Notice ") in the form attached as Attachment A hereto not less than 10 nor
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more than 60 days prior to a date (the " Conversion Date ") specified in such Conversion Notice. Each holder of LTIP Units covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section 7 shall be free and clear of all liens. Notwithstanding anything herein to the contrary or the holding period requirement of Section 15.1 of the Agreement (but subject to the remainder of Section 15.1 of the Agreement), a holder of LTIP Units may deliver a Redemption Notice pursuant to Section 15.1 of the Agreement relating to those Partnership Common Units that will be issued to such holder upon conversion of such LTIP Units into Partnership Common Units in advance of the Conversion Date; provided , however , that the redemption of such Partnership Common Units by the Partnership shall in no event take place until the Conversion Date. Notwithstanding the foregoing, the 1,000 unit minimum provided in Section 15.1.F of the Agreement shall not apply to LTIP Units. For clarity, it is noted that the objective of this paragraph is to put a holder of LTIP Units in a position where, if he or she so wishes, the Partnership Common Units into which his or her Vested LTIP Units will be converted can be redeemed by the Partnership simultaneously with such conversion notwithstanding such Partnership Common Units were not held for the Fourteen-Month Period, with the further consequence that, if the General Partner elects to assume the Partnership's redemption obligation with respect to such Partnership Common Units under Section 8.6 of the Agreement by delivering to such holder Shares rather than cash, then such holder can have such Shares issued to him or her simultaneously with the conversion of his or her Vested LTIP Units into Partnership Common Units. The General Partner shall cooperate with a holder of LTIP Units to coordinate the timing of the different events described in the foregoing sentence.
D. Forced Conversion. The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units held by a holder of LTIP Units to be converted (a " Forced Conversion ") into an equal number of Partnership Common Units, giving effect to all adjustments (if any) made pursuant to Section 4; provided , that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of the holder of such LTIP Units pursuant to Section 7.B above. In order to exercise its right to cause a Forced Conversion, the Partnership shall deliver a notice (a " Forced Conversion Notice ") in the form attached as Attachment B hereto to the applicable holder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section 15.2 of the Agreement.
E. Conversion Procedures. A conversion of Vested LTIP Units for which the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such holder of LTIP Units, as of which time such holder of LTIP Units shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of the number of Partnership Common Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such holder of LTIP Units, upon his or her written request, a certificate of the General Partner certifying the number of Partnership Common Units and remaining LTIP Units, if any, held by such Person immediately after such conversion.
F. Treatment of Capital Account. For purposes of making future allocations under Section 3.B above and applying the Capital Account Limitation, the portion of the Economic Capital Account balance of the applicable holder of LTIP Units that is treated as attributable to his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the Partnership Common Unit Economic Balance.
G. Mandatory Conversion in Connection with a Transaction. If the Partnership or the Special Limited Partner shall be a party to any transaction (including without limitation a merger, consolidation, unit exchange, self tender offer for all or substantially all Partnership Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership's assets, but excluding any transaction which constitutes an Adjustment Event), in each case as a result of
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which Partnership Common Units shall be exchanged for or converted into the right, or the holders of Partnership Common Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a " Transaction "), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Partnership Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction and the conversion shall occur immediately prior to the effectiveness of the Transaction).
In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each holder of LTIP Units to be afforded the right to receive in connection with such Transaction in consideration for the Partnership Common Units into which his or her LTIP Units will be converted the same kind and amount of cash, securities and other property (or any combination thereof) receivable upon the consummation of such Transaction by a holder of the same number of Partnership Common Units, assuming such holder of Partnership Common Units is not a Person with which the Partnership consolidated or into which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a " Constituent Person "), or an affiliate of a Constituent Person. In the event that holders of Partnership Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each holder of LTIP Units of such election, and shall use commercially reasonable efforts to afford such holders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of each LTIP Unit held by such holder into Partnership Common Units in connection with such Transaction. If a holder of LTIP Units fails to make such an election, such holder (and any of its transferees) shall receive upon conversion of each LTIP Unit held him or her (or by any of his or her transferees) the same kind and amount of consideration that a holder of a Partnership Common Unit would receive if such holder of Partnership Common Units failed to make such an election.
Subject to the rights of the Partnership and the General Partner under any Vesting Agreement and the terms of any plan under which LTIP Units are issued, the Partnership shall use commercially reasonable efforts to cause the terms of any Transaction to be consistent with the provisions of this Section 7 and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any holders of LTIP Units whose LTIP Units will not be converted into Partnership Common Units in connection with the Transaction that will (i) contain provisions enabling the holders of LTIP Units that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to the Partnership Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in the Agreement for the benefit of the holders of LTIP Units.
8. Redemption Rights.
LTIP Units may not be tendered for redemption pursuant to Section 15.1 of the Agreement unless and until such LTIP Units have been converted into Partnership Common Units (or any other class or series of Partnership Units entitled to such Redemption right) in accordance with their terms. Notwithstanding the foregoing, and except as otherwise permitted by the award, plan or other agreement pursuant to which an LTIP Unit was issued, the Redemption right shall not be exercisable with respect to any Partnership Common Unit issued upon conversion of an LTIP Unit until on or after the date that is two years after the date on which the LTIP Unit was issued, provided however ,
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that the foregoing restriction shall not apply if the Redemption Right is exercised by a LTIP Unit holder in connection with a transaction that falls within the definition of a "change of control" under the agreement or agreements pursuant to which the LTIP Units were issued to him or her. In no event shall the Fourteen-Month Period set forth in Section 15.1.A apply with respect to Partnership Common Units issued upon conversion of LTIP Units. LTIP Units will not be redeemable at the option of the Partnership; provided , however , that the foregoing shall not prohibit the Partnership from repurchasing LTIP Units from the holder thereof if and to the extent such holder agrees to sell such Units.
9. Voting Rights.
A. Voting with Partnership Common Units. Holders of LTIP Units shall have the right to vote on all matters submitted to a vote of the holders of Partnership Common Units; holders of LTIP Units and Partnership Common Units shall vote together as a single class, together with any other class or series of units of limited partnership interest in the Partnership upon which like voting rights have been conferred. In any matter in which the LTIP Units are entitled to vote, including an action by written consent, each LTIP Unit shall be entitled to vote a Percentage Interest equal on a per unit basis to the Percentage Interest of the Partnership Common Units.
B. Special Approval Rights. Except as provided in Section 9.A above, holders of LTIP Units shall only (a) have those voting rights required from time to time by non-waivable provisions of applicable law, if any, and (b) have the additional voting rights that are expressly set forth in this Section 9.B. The General Partner and/or the Partnership shall not, without the affirmative vote of holders of more than 50% of the then outstanding LTIP Units affected thereby, given in person or by proxy, either in writing or at a meeting (voting separately as a class), take any action that would materially and adversely alter, change, modify or amend, whether by merger, consolidation or otherwise, the rights, powers or privileges of such LTIP Units, subject to the following exceptions:
(i) no separate consent of the holders of LTIP Units will be required if and to the extent that any such alteration, change, modification or amendment would equally, ratably and proportionately alter, change, modify or amend the rights, powers or privileges of the Partnership Common Units (in which event the holders of LTIP Units shall only have such voting rights, if any, as provided in Section 14.1 of the Agreement in accordance with Section 9.A above);
(ii) with respect to any merger, consolidation or other business combination or reorganization, so long as the LTIP Units either (x) are converted into Partnership Common Units immediately prior to the effectiveness of the transaction, (y) remain outstanding with the terms thereof materially unchanged, or (z) if the Partnership is not the surviving entity in such transaction, are exchanged for a security of the surviving entity with terms that are materially the same with respect to rights to allocations, distributions, redemption, conversion and voting as the LTIP Units and without any income, gain or loss expected to be recognized by the holder upon the exchange for federal income tax purposes (and with the terms of the Partnership Common Units or such other securities into which the LTIP Units (or the substitute security therefor) are convertible materially the same with respect to rights to allocations, distributions, redemption, conversion and voting), such merger, consolidation or other business combination or reorganization shall not be deemed to materially and adversely alter, change, modify or amend the rights, powers or privileges of the LTIP Units, provided further , that if some, but not all, of the LTIP Units are converted into Partnership Common Units immediately prior to the effectiveness of the transaction (and neither clause (y) or (z) above is applicable), then the consent required pursuant to this Section will be the consent of the holders of more than 50% of the LTIP Units to be outstanding following such conversion and Partnership Common Units outstanding voting together as a single class pursuant to Section 9.A above;
(iii) any creation or issuance of any Partnership Common Units or of any class of series of Common Partnership Units or Preference Units of the Partnership (whether ranking junior to, on
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a parity with or senior to the LTIP Units with respect to payment of distributions, redemption rights and the distribution of assets upon liquidation, dissolution or winding up), which either (x) does not require the consent of the holders of Partnership Common Units or (y) does require such consent and is authorized by a vote of the holders of Partnership Common Units and LTIP Units voting together as a single class pursuant to Section 9.A above, together with any other class or series of units of limited partnership interest in the Partnership upon which like voting rights have been conferred, shall not be deemed to materially and adversely alter, change, modify or amend the rights, powers or privileges of the LTIP Units;
(iv) any waiver by the Partnership of restrictions or limitations applicable to any outstanding LTIP Units with respect to any holder or holders thereof shall not be deemed to materially and adversely alter, change, modify or amend the rights, powers or privileges of the LTIP Units with respect to other holders; and
(v) the General Partner shall have the power, without the consent of holders of LTIP Units, to amend the Agreement as may be required to reflect any change to the Agreement not otherwise specifically permitted by this Section 9.B that the General Partner deems necessary or appropriate in its sole discretion, provided that such change does not adversely affect or eliminate any right granted to holders of LTIP Units requiring their approval.
The foregoing voting provisions will not apply if, as of or prior to the time when the action with respect to which such vote would otherwise be required will be taken or be effective, all outstanding LTIP Units shall have been converted and/or redeemed, or provision is made for such redemption and/or conversion to occur as of or prior to such time.
10. Tax Matters in Connection with Issuance of LTIP Units.
A. Safe Harbor Election. To the extent provided for in Regulations, revenue rulings, revenue procedures and/or other IRS guidance issued after the date hereof, the Partnership is hereby authorized to, and at the direction of the General Partner shall, elect a safe harbor under which the fair market value of any Partnership Interests issued after the effective date of such Regulations (or other guidance) will be treated as equal to the liquidation value of such Partnership Interests (i.e., a value equal to the total amount that would be distributed with respect to such interests if the Partnership sold all of its assets for their fair market value immediately after the issuance of such Partnership Interests, satisfied its liabilities (excluding any non-recourse liabilities to the extent the balance of such liabilities exceeds the fair market value of the assets that secure them) and distributed the net proceeds to the Partners under the terms of this Agreement). In the event that the Partnership makes a safe harbor election as described in the preceding sentence, each Partner hereby agrees to comply with all safe harbor requirements with respect to transfers of such Partnership Interests while the safe harbor election remains effective.
B. Forfeiture Allocations. Upon a forfeiture of any unvested Partnership Interest by any Partner, gross items of income, gain, loss or deduction shall be allocated to such Partner if and to the extent required by final Regulations promulgated after the Effective Date to ensure that allocations made with respect to all unvested Partnership Interests are recognized under Code Section 704(b).
[End of text]
8
Attachment A to Partnership Unit Designation-LTIP Units
Notice of Election by Partner to Convert
LTIP Units into Partnership Common Units
The undersigned holder of LTIP Units hereby irrevocably elects to convert the number of Vested LTIP Units in Douglas Emmett Properties, LP (the " Partnership ") set forth below into Partnership Common Units in accordance with the terms of the Agreement of Limited Partnership of the Partnership, as amended. The undersigned hereby represents, warrants, and certifies that the undersigned: (a) has title to such LTIP Units, free and clear of the rights or interests of any other person or entity other than the Partnership; (b) has the full right, power, and authority to cause the conversion of such LTIP Units as provided herein; and (c) has obtained the consent or approval of all persons or entities, if any, having the right to consent or approve such conversion.
Name of Holder: |
(Please Print: Exact Name as Registered with Partnership) |
Number of LTIP Units to be Converted: |
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Conversion Date: |
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(Signature of Holder: Sign Exact Name as Registered with Partnership) |
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(Street Address) |
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(City) | (State) | (Zip Code) |
Signature Guaranteed by: |
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Attachment B to Partnership Unit Designation-LTIP Units
Notice of Election by Partnership to Force Conversion
of LTIP Units into Partnership Common Units
Douglas Emmett Properties, LP (the " Partnership ") hereby irrevocably elects to cause the number of LTIP Units held by the holder of LTIP Units set forth below to be converted into Partnership Common Units in accordance with the terms of the Second Amended and Restated Agreement of Limited Partnership of the Partnership, as amended.
Name of Holder: |
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(Please Print: Exact Name as Registered with Partnership) |
Number of LTIP Units to be Converted: |
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Conversion Date: |
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Published CUSIP Number: [ ]
CREDIT AGREEMENT
Dated as of October 2006
among
DOUGLAS EMMETT 2006, LLC,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
Bank
of Montreal
as Co-Syndication Agent
Bayerische
Landesbank
as Co-Syndication Agent
Wachovia
Bank, N.A.
as Co-Syndication Agent
Section
|
|
Page
|
|||
---|---|---|---|---|---|
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS | 5 | ||||
1.01 | Defined Terms | 5 | |||
1.02 | Other Interpretive Provisions | 29 | |||
1.03 | Accounting Terms | 30 | |||
1.04 | Rounding | 30 | |||
1.05 | Times of Day | 30 | |||
1.06 | Letter of Credit Amounts | 30 | |||
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS | 31 | ||||
2.01 | Committed Loans | 31 | |||
2.02 | Borrowings, Conversions and Continuations of Committed Loans | 31 | |||
2.03 | Letters of Credit | 33 | |||
2.04 | Swing Line Loans | 40 | |||
2.05 | Prepayments | 43 | |||
2.06 | Termination or Reduction of Commitments | 44 | |||
2.07 | Repayment of Loans | 45 | |||
2.08 | Interest | 45 | |||
2.09 | Fees | 45 | |||
2.10 | Computation of Interest and Fees | 46 | |||
2.11 | Evidence of Debt | 46 | |||
2.12 | Payments Generally; Administrative Agent's Clawback | 47 | |||
2.13 | Sharing of Payments by Lenders | 48 | |||
2.14 | Extension of Maturity Date | 49 | |||
2.15 | Increase in Commitments | 50 | |||
2.16 | Additions, Exclusions and Releases of Borrowing Base Properties | 51 | |||
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY | 58 | ||||
3.01 | Taxes | 58 | |||
3.02 | Illegality | 59 | |||
3.03 | Inability to Determine Rates | 60 | |||
3.04 | Increased Costs | 61 | |||
3.05 | Compensation for Losses | 62 | |||
3.06 | Mitigation Obligations; Replacement of Lenders | 63 | |||
3.07 | Survival | 63 | |||
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS | 63 | ||||
4.01 | Conditions of Initial Credit Extension | 63 | |||
4.02 | Conditions to all Credit Extensions | 67 | |||
ARTICLE V. REPRESENTATIONS AND WARRANTIES | 68 | ||||
5.01 | Existence, Qualification and Power; SPE Requirement; REIT Status | 68 | |||
5.02 | Authorization; No Contravention | 68 | |||
5.03 | Governmental Authorization; Other Consents | 69 | |||
5.04 | Binding Effect | 69 | |||
5.05 | Financial Statements and Condition; No Material Adverse Effect | 69 | |||
5.06 | Litigation | 69 | |||
5.07 | No Default | 69 | |||
5.08 | Ownership of Property; Liens | 70 | |||
5.09 | Environmental Representation | 70 | |||
5.10 | Insurance | 71 | |||
5.11 | Taxes | 71 | |||
1
5.12 | ERISA Compliance | 71 | |||
5.13 | Subsidiaries; Equity Interests; Organizational Structure | 72 | |||
5.14 | Margin Regulations; Investment Company Act | 72 | |||
5.15 | Disclosure | 72 | |||
5.16 | Compliance with Laws | 72 | |||
5.17 | Taxpayer Identification Number | 73 | |||
5.18 | No Bankruptcy Filing | 73 | |||
5.19 | Executive Offices; Places of Organization | 73 | |||
5.20 | Condemnation; Casualty | 73 | |||
5.21 | Utilities and Public Access; No Shared Facilities | 73 | |||
5.22 | Solvency | 73 | |||
5.23 | No Joint Assessment; Separate Lots | 74 | |||
5.24 | Security Interests and Liens | 74 | |||
5.25 | Leases | 74 | |||
5.26 | Physical Condition | 75 | |||
5.27 | Flood Zone | 75 | |||
5.28 | Management Agreement | 75 | |||
5.29 | Boundaries | 75 | |||
5.30 | Illegal Activity | 76 | |||
5.31 | Permitted Liens | 76 | |||
5.32 | Other Representations | 76 | |||
ARTICLE VI. AFFIRMATIVE COVENANTS | 76 | ||||
6.01 | Financial Statements | 76 | |||
6.02 | Certificates; Other Information | 77 | |||
6.03 | Notices | 78 | |||
6.04 | Left Blank | 79 | |||
6.05 | Preservation of Existence, Etc. | ||||
6.06 | Maintenance of the Borrowing Base Properties; Alterations | 79 | |||
6.07 | Maintenance of Insurance; Real Estate Taxes and Other Changes | 80 | |||
6.08 | Compliance with Laws | 80 | |||
6.09 | Books and Records | 81 | |||
6.10 | Use of Proceeds | 81 | |||
6.11 | SNDAs | 81 | |||
6.12 | Management of the Borrowing Base Properties | 81 | |||
6.13 | Leases | 82 | |||
6.14 | Tenant Estoppel Agreements | 82 | |||
6.15 | Operating Plan and Budget | 82 | |||
6.16 | Operating Expenses | 82 | |||
6.17 | Environmental Matters | 83 | |||
6.18 | Additional Credit Facility Guarantors; Release of Credit Facility Guarantors | 84 | |||
ARTICLE VII. NEGATIVE COVENANTS | 85 | ||||
7.01 | Liens | 85 | |||
7.02 | Investments | 86 | |||
7.03 | Indebtedness | 87 | |||
7.04 | Fundamental Changes/Dispositions | 88 | |||
7.05 | ERISA | 90 | |||
7.06 | Restricted Payments | 90 | |||
7.07 | Change in Nature of Business; Existence | 90 | |||
7.08 | Transactions with Affiliates | 90 | |||
7.09 | Burdensome Agreements | 90 | |||
2
7.10 | Use of Proceeds | 91 | |||
7.11 | Leases | 91 | |||
7.12 | Property Management | 92 | |||
7.13 | Ground Lease | 93 | |||
7.14 | Zoning | 94 | |||
7.15 | No Joint Assessment; Separate Lots | 95 | |||
7.16 | Foreign Assets Control Regulations | 95 | |||
7.17 | Amendment of Contribution Agreement or Reimbursement Agreement | 95 | |||
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES | 95 | ||||
8.01 | Events of Default | 95 | |||
8.02 | Remedies Upon Event of Default | 92 | |||
8.03 | Application of Funds | 98 | |||
ARTICLE IX. ADMINISTRATIVE AGENT | 99 | ||||
9.01 | Appointment and Authority | 99 | |||
9.02 | Rights as a Lender | 99 | |||
9.03 | Exculpatory Provisions | 99 | |||
9.04 | Reliance by Administrative Agent | 100 | |||
9.05 | Delegation of Duties | 100 | |||
9.06 | Resignation of Administrative Agent | 100 | |||
9.07 | Non-Reliance on Administrative Agent and Other Lenders | 101 | |||
9.08 | No Other Duties, Etc. | 102 | |||
9.09 | Administrative Agent May File Proofs of Claim | 102 | |||
9.10 | Defaults | 103 | |||
ARTICLE X. MISCELLANEOUS | 105 | ||||
10.01 | Amendments, Etc. | 105 | |||
10.02 | Notices; Effectiveness; Electronic Communication | 106 | |||
10.03 | No Waiver; Cumulative Remedies | 107 | |||
10.04 | Expenses; Indemnity; Damage Waiver | 108 | |||
10.05 | Payments Set Aside | 110 | |||
10.06 | Successors and Assigns | 110 | |||
10.07 | Treatment of Certain Information; Confidentiality | 114 | |||
10.08 | Right of Setoff | 114 | |||
10.09 | Interest Rate Limitation | 115 | |||
10.10 | Counterparts; Integration; Effectiveness | 115 | |||
10.11 | Brokers | 115 | |||
10.12 | Survival of Representations and Warranties | 115 | |||
10.13 | Severability | 116 | |||
10.14 | Replacement of Lenders | 116 | |||
10.15 | Governing Law; Jurisdiction; Etc. | 116 | |||
10.16 | Waiver of Jury Trial; Judicial Reference | 117 | |||
10.17 | No Advisory or Fiduciary Responsibility | 119 | |||
10.18 | USA PATRIOT Act Notice | 119 | |||
10.19 | Time of the Essence | 119 | |||
10.20 | Limitation Of Liability | 119 | |||
10.21 | Cooperation with Syndication | 121 | |||
10.22 | Entire Agreement | 122 | |||
10.23 | Contribution Agreement and Reimbursement Agreement | 122 | |||
SIGNATURES | S-1 |
3
SCHEDULES
1.01 | Eligible Assignees | |
2.01 | Commitments and Applicable Percentages | |
5.05 | Existing Indebtedness | |
5.06 | Litigation | |
5.08 | Borrowing Base Properties; Credit Facility Guarantors; Allocated Loan Amounts; Property Managers of Borrowing Base Properties | |
5.09 | Environmental Matters | |
5.13 | Subsidiaries; Other Equity Investments; Equity Interests in the Borrower | |
5.25 | Rent Rolls | |
7.01 | Existing Liens | |
7.14 | Conforming Uses of Borrowing Base Properties | |
10.02 | Administrative Agent's Office; Certain Addresses for Notices |
EXHIBITS
Form of | ||
A | Committed Loan Notice | |
B | Swing Line Loan Notice | |
C(1) | Note (Committed Loan) | |
C(2) | Note (Swing Line) | |
D | Assignment and Assumption | |
E | Operating Partnership Guaranty | |
F | Credit Facility Guaranty | |
G | Contribution Agreement | |
H | Reimbursement Agreement | |
I | Deed of Trust | |
J | Opinion Matters | |
K | Leasing Information | |
L | Environmental Indemnity Agreement | |
M | General Assignment | |
N | Ground Lease Estoppel Agreement | |
O | Property Manager's Consent | |
P | SNDA | |
Q | Tenant Estoppel Agreement | |
R | Survey Certificate |
4
This CREDIT AGREEMENT (" Agreement ") is entered into as of 2006, among DOUGLAS EMMETT 2006, LLC, a Delaware limited liability company (the " Borrower "), each lender from time to time party hereto (collectively, the " Lenders " and individually, a " Lender "), BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, Bank of Montreal as Co-Syndication Agent, Bayerische Landesbank, as Co-Syndication Agent, and Wachovia Bank, N.A., as Co-Syndication Agent.
The Borrower has requested that the Lenders provide a revolving credit facility, and the Lenders are willing to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
" Additional Borrowing Base Property " means any Borrowing Base Property that is added pursuant to Section 2.16(a) .
" Administrative Agent " means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent appointed in accordance with Section 9.06 .
" Administrative Agent's Office " means the Administrative Agent's address and, as appropriate, account as set forth on Schedule 10.02 , or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.
" Administrative Questionnaire " means an Administrative Questionnaire in a form supplied by the Administrative Agent.
" Affiliate " means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
" Aggregate Allocated Loan Amount " means the sum of the Allocated Loan Amounts for the Borrowing Base Properties.
" Aggregate Commitments " means the Commitments of all the Lenders.
" Agreement " means this Credit Agreement.
" Allocated Loan Amount " means:
(a) Subject to adjustment as set forth in clause (c) or (d) below, the Allocated Loan Amount for each Initial Borrowing Base Property as of the Closing Date shall be the amount set forth for such Borrowing Base Property on Schedule 5.08 attached hereto;
(b) Subject to adjustment as set forth clause (c) or (d) below, the Allocated Loan Amount for any Additional Borrowing Base Property which is added pursuant to Section 2.16(a) shall be the amount determined by the Administrative Agent as of the time the applicable Nominated Property is to be included as an Additional Borrowing Base Property, equal to the lesser of (i) sixty-five percent (65%) of the Appraised Value of such Borrowing Base Property as determined in accordance with a current Appraisal pursuant to Section 2.16(a)(ii)(A) , and (ii) the amount that, when added to the sum of the Allocated Loan Amounts for all of the other Borrowing Base
5
Properties, would produce a Debt Service Coverage Ratio for all of the Borrowing Base Properties (including the Additional Borrowing Base Property) of 1.25:1.0 (subject, however, to the Borrower's right to withdraw the Nominated Property pursuant to Section 2.16(a)(iv) hereof);
(c) Subject to adjustment as set forth in clause (d) below, the Allocated Loan Amount for each Borrowing Base Property as of any extension of the Maturity Date pursuant to Section 2.14 hereof shall be the amount determined by the Administrative Agent in connection with such extension of the Maturity Date equal to the lesser of (i) sixty-five percent (65%) of the Appraised Value of such Borrowing Base Property as determined in accordance with the Appraisal obtained in connection with the such extension, and (ii) the amount described in the foregoing clause (i) for such Borrowing Base Property, multiplied by a fraction, the numerator of which is the principal amount that would produce a Debt Service Coverage Ratio for all of the Borrowing Base Properties of 1.25:1.00, and denominator of which is the sum of the amounts described in the foregoing clause (i) for all of the Borrowing Base Properties; and
(d) the Allocated Loan Amount of a Borrowing Base Property suffering a Casualty Event or a Taking shall be reduced by the amount of any Net Proceeds attributable to such Borrowing Base Property applied by the Administrative Agent in prepayment of the Outstanding Principal Amount pursuant to Section 2.05(e) .
" Annual Budget " shall have the meaning assigned to such term in Section 6.15 .
" Applicable Law " means any applicable statute, law (including Environmental Laws), regulation, ordinance, rule, judgment, rule of common law, order, decree, Government Approval, approval, concession, grant, franchise, license, agreement, directive, guideline, policy, requirement, or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Authority with applicable jurisdiction, whether now or hereinafter in effect and, in each case, as amended (including any thereof pertaining to land use, zoning and building ordinances and codes).
" Applicable Percentage " means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender's Commitment at such time. If the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
" Applicable Rate " means a per annum rate equal to the applicable amount set forth in the grid below:
Total Outstandings of the Credit Facility
|
Eurodollar Rate Loans
(Eurodollar Rate +) [basis points per annum] |
Base Rate Loans
(Federal Funds Rate +) [basis points per annum] |
Letters of Credit
[basis points per annum] |
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Less than or equal to the sum of $175,000,000 plus 45% of the Appraised Value of Additional Borrowing Base Properties | 70 | 95 | 70 | |||
Greater than the sum of $175,000,000 plus 45% of the Appraised Value of Additional Borrowing Base Properties | 80 | 105 | 80 |
6
" Appraisal " means an appraisal of each Borrowing Base Property prepared by an Appraiser and complying in all respects with the standards for real estate appraisal established pursuant to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended, and otherwise in form and substance reasonably satisfactory to the Administrative Agent.
" Appraised Value " means, for any Borrowing Base Property, the appraised value indicated as such for that Borrowing Base Property reflected in the Appraisal thereof most recently delivered to and approved by the Administrative Agent pursuant to Section 4.01(a) , Section 2.16(a)(ii)(A) , or Section 2.14(a)(iv) , as applicable.
" Appraiser " means any "state certified general appraiser" as such term is defined and construed under applicable regulations and guidelines issued pursuant to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended, which appraiser must have been licensed and certified by the applicable Governmental Authority having jurisdiction in the State of California, and which appraiser shall have been selected by the Administrative Agent.
" Approved Fund " means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business (and which is not engaged in the business of acquiring direct or indirect ownership interests in commercial real estate projects) and that is administered or managed by (a) a Lender, or (b) a Person that meets the requirements in clauses (i), (ii) , (iii) or (iv) of the definition of "Eligible Assignee."
" Approved Lease " means (a) each existing Lease as of the Closing Date as set forth in the Leasing Affidavit, (b) each Lease of a Borrowing Base Property added pursuant to Section 2.16(a) , and (c) each Lease entered into after the Closing Date in accordance with the terms and conditions contained in Section 7.11, as such leases and related documents shall be modified or amended as permitted pursuant to the terms of this Agreement.
" Arranger " means Banc of America Securities LLC, in its capacity as sole lead arranger and sole book manager.
" Assignee Group " means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
" Assignment and Assumption " means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.06(b)) , and accepted by the Administrative Agent, in substantially the form of Exhibit D or any other form approved by the Administrative Agent.
" Attributable Indebtedness " means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.
" Availability Period " means the period from and including the Closing Date to the earliest of (a) the Maturity Date (as extended pursuant to Section 2.14 , if applicable), (b) the date of termination of the Aggregate Commitments pursuant to Section 2.06 , and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02 .
" Bank of America " means Bank of America, N.A. and its successors.
" Bankruptcy Code " means title 11 of the United States Code, as in effect from time to time.
7
" Bankruptcy Party " means any of the Loan Parties, the REIT, or any Subsidiary of the REIT that hold a majority of the direct or indirect interests in any Loan Party or controls any Loan Party.
" Base Rate " means for any day a fluctuating rate per annum equal the Federal Funds Rate plus twenty-five basis points (0.25%). Each change in any interest rate provided for herein based upon the Base Rate resulting from a change in the Base Rate shall take effect at the time of such change in the Base Rate.
" Base Rate Committed Loan " means a Committed Loan that is a Base Rate Loan.
" Base Rate Loan " means a Loan that bears interest based on the Base Rate.
" Borrower " has the meaning specified in the introductory paragraph hereto.
" Borrower Materials " has the meaning specified in Section 6.02 .
" Borrowing " means a Committed Borrowing or a Swing Line Borrowing, as the context may require.
" Borrowing Base Property " means one of the properties which is identified on Schedule 5.08 or otherwise offered by the Borrower or a Credit Facility Guarantor (or a Controlled Subsidiary that will become a Credit Facility Guarantor pursuant to Section 6.18 ) and accepted as a new Borrowing Base Property pursuant to Section 2.16(a) (upon the satisfaction of the conditions set forth therein), together with all personal Property, contract rights, leases and other Collateral relating to such Property, unless and until such Property is excluded as a Borrowing Base Property pursuant to Section 2.16(b) or otherwise released as Collateral pursuant to Section 2.16(c) and (d) .
" Business Day " means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Applicable Laws of, or are in fact closed in, the state where the Administrative Agent's Office is located and, if such day relates to any Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market; provided, however, if such day relates to any payment obligation of any Loan Party under the Loan Documents, the term Business Day shall exclude any day on which commercial banks are authorized to close under the Applicable Laws of, or are in fact closed in, the State of California.
" Cash Collateralize " has the meaning specified in Section 2.03(g).
" Casualty Event " means any loss of or damage to, any portion of any Borrowing Base Property by fire or other casualty.
" Change in Law " means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority, or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.
" Change of Control " means an event or series of events by which:
(a) the Borrower or any Credit Facility Guarantor ceases to be a Controlled Subsidiary;
(b) the Operating Partnership ceases to be controlled directly or indirectly by the REIT or the REIT's interest in the Operating Partnership ceases to be its principal asset; or
(c) the Operating Partnership ceases to be the sole operating partnership of the REIT;
provided, however, that a Change of Control shall not occur, and nothing in this Agreement shall prohibit or restrict, any direct or indirect investment or co-investment of any kind by the Operating
8
Partnership in any Person (including, without limitation, any partnership or joint venture) as long as none of the events described in the foregoing clauses (a), (b) and (c) have occurred.
" Closing Conditions Side Letter " means that certain letter executed by the Administrative Agent and acknowledged by the Borrower regarding the status of the satisfaction of the closing conditions in Section 4.01 .
" Closing Date " means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01 , which shall be the date of this Agreement.
" Code " means the Internal Revenue Code of 1986, as amended.
" Collateral " means each Borrowing Base Property and all other Property interests, now owned or hereafter acquired, of any Loan Party in or upon which a Lien exists or has been granted in favor of the Administrative Agent on behalf of the Lenders hereunder or under the Collateral Documents.
" Collateral Documents " means, collectively, (a) the Deeds of Trust, the General Assignments and all other security agreements, lease assignments and other similar agreements between any Loan Party and the Lenders or the Administrative Agent for the benefit of the Lenders now or hereafter delivered to the Lenders or the Administrative Agent pursuant to or in connection with the transactions contemplated hereby, (b) all financing statements (or comparable documents) now or hereafter filed in accordance with the UCC (or comparable law) against any Loan Party as debtor in favor of the Lenders or the Administrative Agent for the benefit of the Lenders as secured party, and (c) any other documents executed by any Loan Party at the request of Agent and upon the recommendation of Agent's counsel or local counsel in order to establish, perfect or protect any of the liens or security interests granted in the Deeds of Trust or any other Collateral Document.
" Commitment " means, as to each Lender, its obligation to (a) make Committed Loans to the Borrower pursuant to Section 2.01 , (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender's name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto or acquires the interest of another Lender pursuant to Section 10.06 , as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
" Committed Borrowing " means a borrowing consisting of simultaneous Committed Loans of the same Type and, in the case of Eurodollar Rate Committed Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01 .
" Committed Loan " has the meaning specified in Section 2.01 .
" Committed Loan Notice " means a notice of (a) a Committed Borrowing, (b) a conversion of Committed Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Committed Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A .
" Condemnation Awards " means all compensation, awards, damages, rights of action and proceeds awarded to any Loan Party by reason of a Taking.
" Contractual Obligation " means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its Property is bound (excluding the Loan Documents).
" Contribution Agreement " means the Contribution Agreement by and among the Credit Facility Guarantors, substantially in the form of Exhibit G attached hereto.
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" Control " means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. " Controlling " and " Controlled " have meanings correlative thereto.
" Controlled Account " shall mean one or more deposit accounts established by the Administrative Agent (for the benefit of the Lenders) at a depository bank or financial institution that is acceptable to the Administrative Agent, for the deposit of Insurance Proceeds, Net Proceeds and Net Proceeds Deficiency (as defined in the Deeds of Trust) pursuant to the Deeds of Trust.
" Controlled Subsidiary " means a Person that is majority-owned and controlled directly or indirectly by the Operating Partnership or the REIT.
" Credit Extension " means each of the following: (a) a Borrowing, and (b) an L/C Credit Extension.
" Credit Facility Guarantor " means each Controlled Subsidiary (other than the Borrower) that is the owner or ground lessee of a Borrowing Base Property and is a party to the Credit Facility Guaranty. Upon release of a Borrowing Base Property owned by such Controlled Subsidiary pursuant to Section 2.16(c) and (d) , and as long as such Controlled Subsidiary no longer owns or ground leases an interest in any Borrowing Base Property and the conditions of Sections 2.16(c) and 6.18(c) are met, such Controlled Subsidiary shall no longer constitute a Credit Facility Guarantor hereunder or under the Credit Facility Guaranty and shall be released as a Credit Facility Guarantor as provided in Section 6.18(c) .
" Credit Facility Guaranty " means the Guaranty made by each Credit Facility Guarantor in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit F .
" Debtor Relief Laws " means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
" Debt Service " means, as of the date of calculation, an amount equal to the payment of interest which would be required under this Agreement for the period in question based on the Maximum Credit Facility Availability (after giving effect to any additions or releases of Borrowing Base Property pursuant to Sections 2.16(a) or Section 2.16(c) , if applicable) in effect as of such calculation date (or, in the case of Section 2.14(a), the Existing Maturity Date), and the interest rate in effect under this Agreement as of the date of such calculation (or if more than one interest rate is then in effect hereunder, the highest rate for Eurodollar Rate Committed Loans then in effect hereunder or, if no Eurodollar Rate Committed Loan is then in effect hereunder, the interest rate that would be in effect on the date of calculation if a Eurodollar Rate Committed Loan in the amount of such Maximum Credit Facility Availability were advanced on such date for an Interest Period of one month). All such calculations shall be subject to the reasonable approval of the Administrative Agent.
" Debt Service Coverage Ratio " means, as of the date of calculation, the ratio of (a) Net Operating Income for all of the Borrowing Base Properties as determined on a pro forma basis for the twelve (12) full calendar month period commencing immediately subsequent to the date of such calculation, to (b) Debt Service; provided, however , that for the purposes of determining the Allocated Loan Amount for any Additional Borrowing Base Property added pursuant to Section 2.16(a) , the Net Operating Income in clause (a) of this definition shall include the Net Operating Income of each of the Borrowing Base Properties and the Additional Borrowing Base Property, and the Debt Service in clause (b) of this definition shall be calculated as if the Maximum Credit Facility Availability were increased by the addition of the Additional Borrowing Base Property (subject, however, to the Borrower's right to withdraw the Nominated Property pursuant to Section 2.16(a)(iv) hereof).
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" Deed of Trust " means each Deed of Trust, Assignment of Leases and Rents and Security Agreement and substantially in the form of Exhibit I (with any changes required by local counsel to conform such documents to the requirements of the laws of the State of Hawaii, if such Deed of Trust is to secure Borrowing Base Properties in the State of Hawaii), to be executed, dated and delivered by the applicable Loan Party to the Administrative Agent (on behalf of the Lenders), securing the obligations identified therein.
" Default " means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
" Default Rate " means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to the non-default interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.
" Defaulting Lender " means any Lender that (a) has failed to fund any portion of the Committed Loans, participations in L/C Obligations or participations in Swing Line Loans required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder unless such failure has been cured, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute or unless such failure has been cured, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
" DERF 1997 " means Douglas Emmett Realty Fund 1997, a California Limited Partnership.
" Disposition " or " Dispose " means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any Property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
" Dollar " and " $ " mean lawful money of the United States.
" Eligible Assignee " means any of (i) a commercial bank organized under the laws of the United States, or any state thereof, having (x) total assets in excess of $50,000,000,000 and (y) a combined capital and surplus of at least $5,000,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization of Economic Cooperation and Development (" OECD "), or a political subdivision of any such country, and having (x) total assets in excess of $50,000,000,000 and (y) a combined capital and surplus of at least $5,000,000,000, provided that such bank is acting through a branch or agency located in the United States or in the country in which it is organized or another country which is also a member of OECD; (iii) a life insurance company organized under the laws of any state of the United States, or organized under the laws of any country which is a member of OECD and licensed as a life insurer by any state within the United States and having (x) admitted assets of at least $50,000,000,000 and (y) a combined capital and surplus of at least $5,000,000,000; (iv) any Person described in Schedule 1.01 ; or (v) an Approved Fund having (1) total assets of at least $50,000,000,000 and (2) a net worth of at least $5,000,000,000; provided that any such Person meeting the requirements of (i) through (v) (or its holding company) shall also have a long-term senior unsecured indebtedness rating of BBB+ or better by S&P (if rated by S&P) and Baa1 or better by Moody's (if rated by Moody's) at the time an interest in the Loans is assigned to it.
" Eligible Property " means any retail, multifamily or office real estate properties (or any properties that have a mix of any of the foregoing uses), or any real estate properties that will be developed or redeveloped into any of the foregoing types of properties (provided that the zoning for such real estate properties permit such properties to be developed or redeveloped for such use), that are located in California or Hawaii and owned or to be acquired in fee simple, or subject to a Ground Lease approved by the Administrative Agent in its sole discretion.
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" Environmental Claim " means, with respect to any Person, any written request for information by a Governmental Authority, or any written notice, notification, claim, administrative, regulatory or judicial action, suit, judgment, demand or other written communication by any Person or Governmental Authority alleging or asserting liability with respect to any Loan Party or any Borrowing Base Property, whether for damages, contribution, indemnification, cost recovery, compensation, injunctive relief, investigatory, response, Remediation, damages to natural resources, personal injuries, fines or penalties arising out of, based on or resulting from (a) the presence, Use or Release into the environment of any Hazardous Material originating at or from, or otherwise affecting, any Borrowing Base Property, (b) any fact, circumstance, condition or occurrence forming the basis of any violation, or alleged violation, of any Environmental Law by any Loan Party relating to any Borrowing Base Property or otherwise affecting the health, safety or environmental condition of any Borrowing Base Property, or (c) any alleged injury or threat of injury to the environment by any Loan Party relating to any Borrowing Base Property or otherwise affecting any Borrowing Base Property.
" Environmental Indemnity Agreement " means an environmental indemnity agreement substantially in the form of Exhibit L , with such revisions (in the case of any Borrowing Base Property located outside of the State of California) as may be proposed by local counsel to the Administrative Agent and reasonably acceptable to the Administrative Agent and the Borrower (not to be unreasonably withheld, delayed or conditioned).
" Environmental Laws " means any and all Applicable Laws relating to the regulation or protection of the environment or the Release or threatened Release of Hazardous Materials into the indoor or outdoor environment, including ambient air, soil, surface water, ground water, wetlands, land or subsurface strata, or otherwise relating to the Use of Hazardous Materials; provided , however , that solely for purposes of the Environmental Indemnity Agreement, "Environmental Laws" shall not include the California Environmental Quality Act or statutes, laws, regulations or orders which relate to zoning or otherwise regulating the permissible uses of land or permissible structures to be developed thereon.
" Environmental Liens " shall have the meaning assigned thereto in Section 6.17(a)(v) .
" Environmental Losses " means any losses, damages, costs, fees, expenses, claims, suits, judgments, awards, liabilities (including, but not limited to, strict liabilities), obligations, debts, diminutions in value, fines, penalties, charges, costs of Remediation (whether or not performed voluntarily), amounts paid in settlement, foreseeable and unforeseeable consequential damages, litigation costs, reasonable attorneys' fees and expenses, engineers' fees, environmental consultants' fees, and investigation costs (including, but not limited to, costs for sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), of whatever kind or nature, and whether or not incurred in connection with any judicial or administrative proceedings, actions, claims, suits, judgments or awards relating to Hazardous Materials, Environmental Claims, Environmental Liens and violation of Environmental Laws. Notwithstanding the foregoing, "Environmental Losses" shall not include any loss resulting from diminution in value of any Borrowing Base Property suffered by any Lender if the Lenders shall have been paid in full all amounts payable by the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party or shall have otherwise realized all such amounts upon or prior to foreclosure of the Collateral for the Loans; provided , that , subject to the provisions of Section 23 of the Environmental Indemnity Agreement, nothing contained in this sentence shall limit any claim for a loss (otherwise included within the term "Environmental Losses" as defined herein) suffered by the Administrative Agent, any Lender or any Affiliate as a result of a claim for the diminution in value of the interest of any Person (other than the interest of the Administrative Agent, any Lender or any Affiliate of the Administrative Agent or any Lender) in any Borrowing Base Property (including the interest of any ground lessor, tenant, easement holder or other third party, but excluding any Person who has purchased or acquired any Loan Party's interest in such Borrowing Base Property by foreclosure or deed-in-lieu of foreclosure
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or any time thereafter) or the diminution in value of any other Property made against the Administrative Agent, any such Lender or any Affiliate by any other Person as a result of the Administrative Agent, any Lender or any Affiliate succeeding to the ownership of any Borrowing Base Property through foreclosure or other exercise of remedies (but not as a result of any contractual obligation incurred by the Administrative Agent, any Lender or any Affiliate subsequent to or in connection with its acquisition of the ownership of a Borrowing Base Property).
" Environmental Reports " means, collectively, each environmental survey and assessment report prepared for the Administrative Agent relating to each Borrowing Base Property listed on Schedule 5.08 attached hereto and each other Environmental Report delivered to the Administrative Agent pursuant to Section 2.16(a)(ii)(D) ; each such environmental report shall include a certification by the engineer (a) that such engineer has obtained and examined the list of prior owners, (b) has made an on-site physical examination of the applicable Borrowing Base Property, and (c) has made a visual observation of the surrounding areas and has found no evidence of the presence of toxic or Hazardous Materials, or of past or present Hazardous Materials activities that have not been remediated or are not subject to an operation and maintenance program, except as disclosed in such Environmental Reports.
" Environmental Requirement " means any Environmental Law, agreement or restriction (including but not limited to any condition or requirement imposed by any insurance or surety company), as the same now exists or may be changed or amended or come into effect in the future, which pertains to health, safety, any Hazardous Material, or the environment, including but not limited to ground or air or water or noise pollution or contamination, and underground or aboveground tanks.
" Equity Interests " means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
" ERISA " means the Employee Retirement Income Security Act of 1974.
" ERISA Affiliate " means any trade or business (whether or not incorporated) under common control with any Loan Party within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
" ERISA Event " means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a) (2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate.
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" Estimated Remediation Cost " means all costs associated with performing work to remediate contamination of real property or groundwater, including engineering and other professional fees and expenses, costs to remove, transport and dispose of contaminated soil, costs to "cap" or otherwise contain contaminated soil, and costs to pump and treat water and monitor water quality.
" Eurodollar Rate " means, for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (" BBA LIBOR "), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR comparable to those currently published by Ruters) as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period and in an amount comparable to the amount of the applicable Eurodollar Rate Loan. If such rate is not available at such time for any reason, then the "Eurodollar Rate" for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America's London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.
" Eurodollar Rate Committed Loan " means a Committed Loan that is a Eurodollar Rate Loan.
" Eurodollar Rate Loan " means a Loan that bears interest at a rate based on the Eurodollar Rate.
" Event of Default " has the meaning specified in Section 8.01 .
" Excluded Property " means (a) any real property owned by any Credit Facility Guarantor or their respective Subsidiaries on the Closing Date, other than the Borrowing Base Properties, (b) any Qualified Real Estate Interest that is acquired after the Closing Date by any Credit Facility Guarantor or their respective Subsidiaries, and (c) any Borrowing Base Property which has been released from the Liens of the Loan Documents in accordance with Sections 2.16(c) and (d).
" Excluded Taxes " means, with respect to the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) Taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or in which it is deemed to be doing business unless it would not be deemed to be doing business in such jurisdiction but for and solely as a result of entering into the transactions governed by this Agreement, in the case of any Lender, in which its applicable Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which the Borrower is located, and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 10.14 ), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such Foreign Lender's failure or inability to comply with Section 3.01(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 3.01(a) , and (d) backup withholding taxes.
" Existing Maturity Date " has the meaning specified in Section 2.14(a).
" Extension Notice " has the meaning specified in Section 2.14(a)(i).
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" Extension Period " has the meaning specified in Section 2.14(a).
" Federal Funds Rate " means, for any day, the rate per annum 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 Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1 / 100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.
" Fee Letter " means the letter agreement, dated August 3, 2006, among the Borrower, the Credit Facility Guarantors, the Administrative Agent and the Arranger.
" FIRREA " means the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended from time to time, and any regulations promulgated thereunder.
" Foreign Lender " means any Lender that is organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
" FRB " means the Board of Governors of the Federal Reserve System of the United States.
" GAAP " means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
" General Assignments " means those certain Assignment of Contracts and Government Approvals substantially in the form of Exhibit M attached hereto, delivered by each Credit Facility Guarantor to the Administrative Agent (on behalf of the Lenders).
" Government Approval " means any action, authorization, consent, approval, license, ruling, permit, tariff, rate, certification, exemption, filing or registration by or with any Governmental Authority, including all licenses, permits, allocations, authorizations, approvals and certificates obtained by or in the name of, or assigned to, the Borrower or any Credit Facility Guarantor and used in connection with the ownership, construction, operation, use or occupancy of the Borrowing Base Properties, including building permits, certificates of occupancy, zoning and planning approvals, business licenses, licenses to conduct business, and all such other permits, licenses and rights.
" Governmental Authority " means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra- national bodies such as the European Union or the European Central Bank) with jurisdiction over the matter in question.
" Ground Lease " means (a) that certain Ground Lease dated May 8, 1984, by and between DERF 1997, successor in interest to British & Continental Development Corporation (as " Ground Lessee ") and Martha L. Richman, as Trustee of the M.L. Richman Survivor's Trust, Martha L. Richman, as Trustee of the L.G. Richman GST Non-Exempt Marital Trust, Judy Richman, as Trustee of the Judy L. Richman Trust; Mark Richman, as Trustee of the Mark J. Richman Trust; Mark Richman, as Trustee of
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the Aliza L. Richman Trust; Mark Richman, as Trustee of the Ilana N. Richman Trust; and Mark Richman, as Trustee of the Michael Richman Trust, collectively, as successor in interest to Lester G, Richman and Francis S. Richman (as " Ground Lessor "), as amended by First Amendment to Ground Lease, dated August 20, 1984, Second Amendment to Ground Lease, dated October 18, 1985; Letter Agreement dated May 24, 1989; Assignment of Right of First Refusal dated June 14, 1989; and Settlement Agreement dated December 8, 1999; and (b) any other ground lease of a Borrowing Base Property approved by the Administrative Agent.
" Ground Lease Estoppel Agreement " means the form of Ground Lease Estoppel Agreement attached hereto as Exhibit N , or such other form as is reasonably satisfactory to the Administrative Agent.
" Guarantee " means, as to any Person, any (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the "primary obligor") in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease Property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term "Guarantee" as a verb has a corresponding meaning.
" Guarantors " means, collectively, the Operating Partnership and each Credit Facility Guarantor.
" Guaranty " means, collectively, the OP Guaranty and the Credit Facility Guaranty.
" Hazardous Materials " means, collectively, (a) any petroleum or petroleum products, flammable materials, explosives, radioactive materials, asbestos, urea formaldehyde foam insulation, Mold, and transformers or other equipment that contain polychlorinated biphenyls (" PCB's "), (b) any chemicals or other materials or substances that are now or hereafter become defined as or included in the definition of "Hazardous Materials", "hazardous wastes", "hazardous materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic substances", "toxic pollutants", "contaminants", "pollutants" or words of similar import under any Environmental Law, and (c) any other chemical or other material or substance, exposure to which is now or hereafter prohibited, limited or regulated under any Environmental Law.
" Improvements " means all on-site improvements to the Collateral, together with all fixtures, tenant improvements, and appurtenances now or later to be located on the Property and/or in such improvements.
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" Indebtedness " means, as to any Person at a particular time, without duplication, all of the following:
(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers' acceptances, bank guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price of Property or services (other than trade accounts payable in the ordinary course of business);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on Property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f) capital leases and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends (excluding distributions payable at the discretion of the manager or general partner of a Person pursuant to such Person's Organization Documents); and
(h) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any capital lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.
" Indemnified Taxes " means Taxes other than Excluded Taxes.
" Indemnitees " has the meaning specified in Section 10.04(b).
" Information " has the meaning specified in Section 10.07 .
" Initial Borrowing Base Properties " means the real properties so designated on Schedule 5.08 .
" Insurance Premiums " means the premiums payable by the Loan Parties with respect to the insurance required pursuant to the Deeds of Trust.
" Insurance Proceeds " means all insurance proceeds, damages, claims and rights of action and the right thereto under any insurance policies relating to the Borrowing Base Properties.
" Interest Payment Date " means, (a) as to any Committed Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided , however , that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; (b) as to any Base Rate Committed Loan, the first Business Day of each month and the Maturity Date, and
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(c) as to any Swing Line Loan, the date that such Swing Line Loan is repaid pursuant to Section 2.07(b) .
" Interest Period " means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrower in its Committed Loan Notice, or for the purpose of causing a Eurodollar Rate Loan to mature concurrently with an existing Eurodollar Rate Loan or to mature on the first day (or first Business Day) of a calendar month, such other period that is less than one month as requested by the Borrower and if available from, or otherwise consented to by, all the Lenders; provided that:
(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b) other than with respect to a Eurodollar Rate Loan with an Interest Period of less than one (1) month, any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period;
(c) no Interest Period shall extend beyond the Maturity Date; and
(d) notwithstanding the foregoing, the "Interest Period" of any Swing Line Loan that is a Eurodollar Rate Loan shall be one (1) day.
" Investment " means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
" IPO " means the initial public offering of shares in the REIT which is the consummation of those certain "Formation Transactions" described in that certain Amendment No. 2 to Form S-11 filed by the REIT on September 20, 2006, with the SEC.
" IPO Effective Time " means the date and time as of which the proceeds of the IPO have been received by the REIT.
" IRS " means the United States Internal Revenue Service.
" ISP " means, with respect to any Letter of Credit, the "International Standby Practices 1998" published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
" Issuer Documents " means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and the Borrower (or any Loan Party) or in favor the L/C Issuer and relating to such Letter of Credit.
" L/C Advance " means, with respect to each Lender, such Lender's funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.
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" L/C Borrowing " means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date required by Section 2.03(c) or refinanced as a Committed Borrowing.
" L/C Credit Extension " means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
" L/C Issuer " means Bank of America in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit permitted hereunder.
" L/C Obligations " means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including (without duplication) all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 . For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be "outstanding" in the amount so remaining available to be drawn.
" Lease(s) " means all leases and other agreements or arrangements with or assumed by the Borrower or any Credit Facility Guarantor as landlord for the use or occupancy of all or any portion of the Borrowing Base Properties, including any signage thereat, now in effect or hereafter entered into (including lettings, subleases, licenses, concessions, tenancies and other occupancy agreements with or assumed by the Borrower or any Credit Facility Guarantor as landlord covering or encumbering all or any portion of the Borrowing Base Properties), together with any existing or future guarantees of payment or performance thereunder, amendments, modification and supplements of the same, and all additional remainders, reversions and other rights and estates appurtenant thereto.
" Lease Approval Package " shall have the meaning assigned to such term in Section 7.11(b)(iii) .
" Lease Information Summary " shall have the meaning assigned to such term in Section 7.11(b)(iii) .
" Leasing Affidavit " shall have the meaning assigned to such term in Section 4.01(a)(vii) .
" Lender " has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the Swing Line Lender.
" Lending Office " means, as to any Lender, the office or offices of such Lender described as such in such Lender's Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
" Letter of Credit " means any standby letter of credit issued hereunder .
" Letter of Credit Application " means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.
" Letter of Credit Expiration Date " means the day that is seven days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).
" Letter of Credit Fee " has the meaning specified in Section 2.03(i).
" Letter of Credit Sublimit " means an amount equal to 15% of the Aggregate Commitments, as the amount of such Aggregate Commitments may be adjusted from time to time in accordance with this Agreement. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.
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" Lien " means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).
" Loan " means an extension of credit by a Lender to the Borrower under Article II in the form of a Committed Loan or a Swing Line Loan.
" Loan Documents " means this Agreement, each Note, each Issuer Document, the Fee Letter, each Guaranty, each Environmental Indemnity Agreement, the Collateral Documents, each Property Manager's Consent, and all other documents delivered to the Administrative Agent, the L/C Issuer or the Lenders in connection therewith.
" Loan Parties " means, collectively, the Borrower and each Guarantor.
" Losses " has the meaning set forth in Section 10.04(b).
" Major Default " means (a) any Event of Default; (b) any Default arising from the failure to make any payment on account of principal or interest to any Lender required under the Loan Documents or any fees payable to the Administrative Agent under the Fee Letter, in each case on or before the due date therefor; and (c) any other Default written notice of which has been delivered by the Administrative Agent to the Borrower unless, in the case of this clause (c), the Borrower has provided written notice to the Administrative Agent, within seven (7) days after notice of such Default has been delivered to the Borrower, stating that the Borrower shall undertake to cure such Default on or prior to the expiration of the applicable cure period therefor, if any, set forth in the definition of the term "Event of Default" (and setting forth the steps that the Borrower intends to take in order to effectuate such cure), and the Administrative Agent shall not have provided notice to the Borrower within five (5) Business Days after receipt of such notice from the Borrower, setting forth the Administrative Agent's determination, in its reasonable discretion, that the steps set forth in the notice from the Borrower are not likely to result in the timely cure of such default. Notwithstanding the foregoing, for purposes of Sections 7.06(a) and 8.01(b) , a Major Default of the type described in clause (b) above shall not be deemed to "exist" unless the Borrower has received notice of such Major Default and has failed to cure such Major Default within two (2) Business Days.
" Major Lease " means, with respect to each Borrowing Base Property, one or more Leases to the same tenant or its Affiliates covering an aggregate of more than 30,000 rentable square feet.
" Material Adverse Effect " means a material adverse effect, as determined by the Administrative Agent, in its reasonable judgment and discretion, on (a) any Borrowing Base Property or the business, operations, financial condition, liabilities or capitalization of any Loan Party, (b) the ability of the Borrower or any other Loan Party to pay or perform (or cause to be performed) its respective material obligations under any of the Loan Documents to which it is a party, including the timely payment of the principal of or interest on the Loans or other amounts payable in connection therewith, (c) the Administrative Agent's Liens in any of the Collateral securing the Loans or the priority of any such Liens, (d) the validity or enforceability of any of the Loan Documents, or (e) the rights and remedies of the Lenders and the Administrative Agent under any of the Loan Documents.
" Maturity Date " means the later of (a) October , 2009, and (b) if maturity is extended pursuant to Section 2.14 , such extended maturity date as determined pursuant to such Section; provided, however, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
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" Maximum Credit Facility Availability " means, as of the time of determination, the lesser of:
(a) the Aggregate Commitments; and
(b) the Aggregate Allocated Loan Amount.
" Modifications " means any amendments, supplements, modifications, renewals, replacements, consolidations, severances, substitutions and extensions thereof from time to time; "Modify", "Modified", or related words shall have meanings correlative thereto.
" Mold " means any microbial or fungus contamination or infestation in any Borrowing Base Property of a type which could reasonably be anticipated (after due inquiry and investigation) to pose a risk to human health or the environment or could reasonably be anticipated (after due inquiry and investigation) to negatively impact the value of such Borrowing Base Property in any material respect.
" Moody's " means Moody's Investors Service, Inc. and any successor thereto.
" Multiemployer Plan " means any employee benefit plan of the type described in Section 4001(a) (3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
" Net Operating Income " means, for any period, the excess, if any, of Operating Income for such period over Operating Expenses for such period.
" Net Proceeds " means (i) the net amount of all Insurance Proceeds received by the Administrative Agent as a result of a Casualty Event to a Borrowing Base Property, after deduction of the Administrative Agent's reasonable out-of-pocket costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting the same and Taxes paid or payable as a result of such Casualty Event, or (ii) the net amount of all Condemnation Awards in respect of a Borrowing Base Property, after deduction of the Administrative Agent's reasonable out-of-pocket costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting the same, whichever the case may be, and Taxes paid or payable as a result of such Taking.
" Nominated Property " has the meaning set forth in Section 2.16(a)(i) .
" Note " means a promissory note made by the Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit C(1) (Committed Loan Note) or Exhibit C(2) (Swing Line Loan Note).
" Obligations " means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
" On " or " on ", when used with respect to any Collateral or any property adjacent to any Collateral, means "on, in, under, above or about".
" One Westwood Leasehold Interest " means the rights of DERF 1997 with respect to the office building located at the One Westwood Property and to the land on which such building is located, together with the rights of the DERF 1997 with respect to any air rights and other rights, privileges, easements, hereditaments and appurtenances thereunto relating or appertaining thereto, all Improvements thereon, together with all fixtures and equipment required for the operation thereof, all
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personal property related to the foregoing and all other items described in the granting clause of the Deed of Trust relating to such building and interest in land.
" One Westwood Leasehold Property " means that certain office building project located at 10990 Wilshire Boulevard, in the City and County of Los Angeles, State of California which is situated on certain land more fully described in the Deed of Trust delivered by DERF 1997; together with the undivided one-sixth (1/6th) interest as tenant-in-common in the underlying fee estate of the land on which the One Westwood Leasehold Property is situated, which is more fully described in the Deed of Trust relating to the One Westwood Leasehold Property.
" Operating Expenses " means, for any period, all expenditures, computed in accordance with GAAP, of whatever kind or nature relating to the ownership, operation, maintenance, repair or leasing of the Borrowing Base Properties that are projected to be incurred on a regular monthly or other periodic basis, including (a) allocated amounts on account of Insurance Premiums and Real Estate Taxes, prorated on an annual basis, (b) management fees in an amount which is the greater of (i) management fees that are projected to be paid during such period, and (ii) management fees at an imputed rate of 2.0% of Operating Income for such period, and (c) imputed capital expenditure in an amount equal to a prorated portion of an annual amount equal to $0.20 per square foot; provided , however , that Operating Expenses shall not include (i) depreciation, amortization and other non-cash charges or capital expenditures (except as provided above), (ii) leasing commissions, tenant improvement allowances or other expenditures projected to be incurred for tenant improvements, (iii) any deposits to cash reserves (if any) required to be maintained under the Loan Documents (except if and to the extent any sums are projected to withdrawn therefrom to pay (and are actually used to pay) expenses which otherwise constitute Operating Expenses without duplication), (iv) any payment or expense for which any Loan Party is to be reimbursed by any third party if the receipt of the related reimbursement payment is required to be excluded in the calculation of Operating Income, (v) any projected changes in value of the Borrowing Base Properties, and (vi) any principal, interest or other debt service payable with respect to the Loans, including any payments to Cash Collateralize any Letter of Credit. Operating Expenses shall be determined on a projected annual basis, which projections of Operating Expenses must be reasonably satisfactory to the Administrative Agent.
" Operating Income " means, for any period, all regular ongoing income projected for such period, computed in accordance with GAAP, from the ownership or operation, or otherwise arising in respect, of the Borrowing Base Properties, including (a) all amounts payable to any Loan Party by any Person as Rents under Approved Leases, (b) business interruption proceeds and rent loss insurance proceeds projected to be paid (except with respect to any Leases that have been terminated as of the date of computation as a result of any Casualty Event or Taking), and (c) all other amounts which would be included in any Loan Party's financial statements as operating income of the Borrowing Base Properties, including, receipts from leases and parking agreements, concession fees and charges, and other miscellaneous operating revenues, but excluding any extraordinary income, including (i) any Condemnation Awards or Insurance Proceeds (other than business interruption and rent loss proceeds as aforementioned), (ii) any item of income otherwise includable in Operating Income but paid directly to a Person other than a Loan Party, or their representative or its Affiliate (except, in each case, to the extent such Loan Party receives monetary credit for such payment from the recipient thereof or such item is treated as an income item to such Loan Party, in accordance with GAAP), (iii) security deposits and earnest money deposits projected to be received from tenants until forfeited or applied in accordance with their Leases, (iv) lease buyout payments projected to be made by tenants in connection with any surrender, cancellation or termination of their Leases, and (v) any changes in value of the Borrowing Base Properties. Operating Income shall be determined on a projected annual basis, which projections of Operating Income must be reasonably satisfactory to the Administrative Agent.
" Operating Partnership " means Douglas Emmett Properties, LP, a Delaware limited partnership.
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" OP Guaranty " means the Guaranty made by the Operating Partnership in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit E .
" Organization Documents " means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
" Other Charges " means all ground rents, maintenance charges, impositions other than Real Estate Taxes, and any other charges, including vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Borrowing Base Properties, now or hereafter levied or assessed or imposed against the Borrowing Base Properties or any part thereof, other than Excluded Taxes.
" Other Taxes " means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document, excluding, however, such taxes imposed as a result of an assignment (other than an assignment resulting from Borrower's request pursuant to Section 10.4) .
" Outstanding Amount " means (a) with respect to Committed Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.
" Participant " has the meaning specified in Section 10.06(d).
" PBGC " means the Pension Benefit Guaranty Corporation.
" PCAOB " means the Public Company Accounting Oversight Board.
" Pension Plan " means any "employee pension benefit plan" (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.
" Permitted Investments " means: (a) direct obligations of the United States of America, or of any agency thereof, or obligations guaranteed as to principal and interest by the United States of America, or by any agency thereof, in either case maturing not more than ninety (90) days from the date of acquisition thereof; (b) certificates of deposit issued by any bank or trust company organized under the laws of the United States of America or any state thereof and having capital, surplus and undivided profits of at least $500,000,000, maturing not more than ninety (90) days from the date of acquisition thereof; and (c) commercial paper rated A-1 or P-1 or better by S&P or Moody's, respectively, maturing not more than ninety (90) days from the date of acquisition thereof; in each case so long as the same (i) provide for the payment of principal and interest (and not principal alone or interest alone), and (ii) are not subject to any contingency regarding the payment of principal or interest.
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" Permitted Liens " means for each Borrowing Base Property: (a) any Lien created by the Loan Documents, (b) Liens for Real Estate Taxes not yet delinquent and Liens for Other Charges not yet due or delinquent, (c) rights of existing and future tenants under Approved Leases as tenants only, (d) Permitted Title Exceptions that constitute Liens, (e) utility and other easements entered into by a Loan Party in the ordinary course of business having no adverse impact on the occupation, use, enjoyment, operation, value or marketability of any Borrowing Base Property and approved in advance in writing by the Administrative Agent in its reasonable discretion, (f) any Lien for the performance of work or the supply of materials affecting any Borrowing Base Property unless the applicable Loan Party fails to discharge such Lien by payment or bonding (in accordance with statutory bonding requirements the effect of which is to release such Lien from the affected Borrowing Base Property and to limit the Lien claimant's rights to a recovery on the bond) on or prior to the date that is the earlier of (i) thirty (30) days after the date of filing of such Lien, and (ii) the date on which the Borrowing Base Property or the applicable Loan Party's interest therein is subject to risk of sale, forfeiture, termination, cancellation or loss, (g) any Lien consisting of the rights of a lessor under equipment leases which are entered into in compliance with Sections 7.03(e) and (f) , or any equipment lease entered into by a tenant of a Borrowing Base Property , (h) any other title and survey exceptions (not referred to in clauses (a) through (g) above) affecting the Borrowing Base Properties as the Administrative Agent may approve in advance in writing and in its sole discretion.
" Person " means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
" Permitted Title Exceptions " means as to any Borrowing Base Property, the outstanding liens, easements, restrictions, security interests and other exceptions to title set forth in the policy of title insurance insuring the lien of the Deed of Trust encumbering such Borrowing Base Property approved by the Administrative Agent.
" Plan " means any "employee benefit plan" (as such term is defined in Section 3(3) of ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
" Plans " means the plans and specifications for any Borrowing Base Property, including existing or proposed Improvements, and all Modifications thereof that are included as part of the Plans in accordance with the terms of this Agreement.
" Platform " has the meaning specified in Section 6.02 .
" Property " means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.
" Property Condition Report " means, collectively, those certain property condition reports for each Borrowing Base Property prepared for the Administrative Agent and listed on Schedule 5.08 attached hereto and each other Property Condition Report delivered to the Administrative Agent pursuant to Section 2.16(a)(ii)(D) .
" Property Management Agreement " means, collectively, (a) each Property Management Agreement between a Loan Party and the Property Manager listed on Schedule 5.08 attached hereto and (b) any other property management and/or leasing agreement entered into with a Property Manager appointed in accordance with the definition of Property Manager contained in this Article .
" Property Manager " means (a) Douglas Emmett Management, LLC, (b) the REIT, the Operating Partnership or any Controlled Subsidiary designated by the REIT (provided that for properties located outside of California, the property management services may be sub-contracted to third parties), or (c) any third-party manager and/or leasing agent as shall be reasonably approved by the Administrative Agent or otherwise permitted without such approval pursuant to Section 7.12 .
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" Property Manager's Consent " means a Property Manager's Consent and Subordination of Property Management Agreement for each Borrowing Base Property substantially in the form of Exhibit O , to be executed, dated and delivered by (a) the Property Manager and the Loan Party that owns or ground leases the applicable Borrowing Base Property to the Administrative Agent (on behalf of the Lenders) on the Closing Date, and (b) any other Property Manager to the Administrative Agent (on behalf of the Lenders) prior to its appointment as Property Manager.
" Purchase Offer " has the meaning specified therefor in Section 9.10(e).
" Qualified Real Estate Interest " means any real estate asset of a type and quality, located in California or Hawaii, consistent with the Borrowing Base Properties as of the date this Agreement is entered into or which is otherwise consistent with the investment practices prior to the date hereof of the REIT and its Subsidiaries, taken as a whole, and which is acquired after the Closing Date directly by a Credit Facility Guarantor.
" Real Estate Taxes " means all real estate taxes and all general and special assessments, levies, permits, inspection and license fees, all water and sewer rents and charges, all charges for utilities and all other public charges whether of a like kind or different nature, imposed upon or assessed against any Loan Party with respect to the Borrowing Base Properties or any part thereof or upon the revenues, rents, issues, income and profits of the Borrowing Base Properties or arising in respect of the occupancy, use or possession thereof.
" Register " has the meaning specified in Section 10.06(c).
" Registered Public Accounting Firm " has the meaning specified in the Securities Laws and shall be independent of the Borrower as prescribed by the Securities Laws.
" REIT " means Douglas Emmett, Inc., a Maryland corporation.
" REIT Status " means, with respect to any Person, (a) the qualification of such Person as a real estate investment trust under Sections 856 through 860 of the Code, (b) the applicability to such Person and its shareholders of the method of taxation provided for in Sections 857 et seq . of the Code, and (c) the qualification and taxation of such Person as a real estate investment trust under analogous provisions of state and local law in each state and jurisdiction in which such Person owns Property, operates or conducts business.
" Reimbursement Agreement " means the Reimbursement Agreement by and among the Borrower and OP Guarantor, substantially in the form of Exhibit H attached hereto.
" Rejecting Lender " has the meaning specified in Section 7.04(c) .
" Related Party " and " Related Parties " means, with respect to any Person, such Person's Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person's Affiliates.
" Release " means any release, spill, emission, leaking, pumping, injection, pouring, dumping, deposit, disposal, discharge, dispersal, leaching, seeping or migration into the indoor or outdoor environment, including the movement of Hazardous Materials through ambient air, soil, surface water, ground water, wetlands, land or subsurface strata.
" Remediation " means, without limitation, any investigation, site monitoring, response, remedial, removal, or corrective action, any activity to cleanup, detoxify, decontaminate, contain or otherwise remediate any Hazardous Materials, any actions to prevent, cure or mitigate any Release of any Hazardous Materials, any action to comply with any Environmental Laws or with any permits issued pursuant thereto, any inspection, investigation, study, monitoring, assessment, audit, sampling and testing, laboratory or other analysis, or evaluation relating to any Hazardous Materials. " Remediate " shall have a correlative meaning.
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" Rents " means all rents (whether denoted as base rent, advance rent, minimum rent, percentage rent, additional rent or otherwise), issues, income, royalties, profits, revenues, proceeds, bonuses, deposits (whether denoted as security deposits or otherwise), termination fees, rejection damages, buy-out fees and any other fees made or to be made in lieu of rent to any Loan Party, any award made hereafter to any Loan Party in any court proceeding involving any tenant, lessee, licensee or concessionaire under any of the Leases in any bankruptcy, insolvency or reorganization proceedings in any state or federal court, and all other payments, rights and benefits of whatever nature from time to time due to any Loan Party under the Leases (including any Leases with respect to signage), including (a) rights to payment earned under the Leases, (b) any payments or rights to payment with respect to parking facilities or other facilities in any way contained within or associated with the Borrowing Base Properties, and (c) all other income, consideration, issues, accounts, profits or benefits of any nature arising from the possession, use and operation of the Borrowing Base Properties.
" Reportable Event " means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
" Request for Credit Extension " means (a) with respect to a Borrowing or continuation of Committed Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
" Required Lenders " means, as of any date of determination, at least two Lenders having at least 66 2 / 3 % of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 , at least two Lenders holding in the aggregate at least 66 2 / 3 % of the Total Outstandings (with the aggregate amount of each Lender's risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed "held" by such Lender for purposes of this definition); provided that the Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
" Responsible Officer " means, with respect to any Loan Party, any of the individual officers serving as the Chief Executive Officer, President, Executive Vice President, Senior Vice President, Vice President, Chief Financial Officer, Secretary, Treasurer or Assistant Treasurer of such Loan Party's manager or the manager of such Loan Party's sole general partner (as applicable), in its respective capacity as the manager or the manager of the sole general partner (as applicable) of such Loan Party, and whose name appears on a certificate of incumbency executed by the Secretary of such manager, in its respective capacity as the manager or as the manager of the sole general partner (as applicable) of such Loan Party, and delivered concurrently with the execution of this Agreement, as such certificate of incumbency may be amended from time to time to identify the names of the individuals then holding such offices and certified by the Secretary of such manager, in its respective capacity as the manager or as the manager of the sole general partner of such Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
" Restoration Consultant " has the meaning set forth in the Deed of Trust.
" Restricted Payment " means any dividend or other distribution (whether in cash, securities or other Property) with respect to any capital stock or other Equity Interest of the Borrower or any Credit Facility Guarantor, or any payment (whether in cash, securities or other Property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any
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return of capital to the stockholders, partners or members (or the equivalent Person thereof) of the Borrower or any Credit Facility Guarantor.
" Sarbanes-Oxley " means the Sarbanes-Oxley Act of 2002.
" SEC " means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
" Securities Laws " means the Securities Act of 1933, the Securities Exchange Act of 1934, Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and practices promulgated, approved or incorporated by the SEC or the PCAOB.
" Short Eurodollar Rate Loan " has the meaning set forth in Section 3.03(b) .
" SNDA Agreement " means (b) the form of Subordination, Non-Disturbance, and Attornment Agreement attached hereto as Exhibit P (with such commercially reasonable changes thereto as may be requested by such tenant and accepted by the Administrative Agent in its reasonable discretion), or (b) such other form as is reasonably satisfactory to the Administrative Agent.
" Solvency Certificate " means a certificate to be executed by each Credit Facility Guarantor, in the form an annex to the Committed Loan Notice or an annex to the Swing Line Loan Notice.
" Solvent " means, when used with respect to any Person, that at the time of determination: (i) the fair saleable value of its assets is in excess of the total amount of its liabilities (including contingent liabilities); (ii) the present fair saleable value of its assets is greater than its probable liability on its existing debts as such debts become absolute and matured; (iii) it is then able and expects to be able to pay its debts (including contingent debts and other commitments) as they mature; and (iv) it has capital sufficient to carry on its business as conducted and as proposed to be conducted.
" S&P " means Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.
" SPE " means a limited liability company which at all times on and after the date hereof, unless otherwise approved in writing by the Administrative Agent:
(a) is not engaged and will not engage in any business unrelated to (i) the acquisition, development, ownership, leasing, management, operation, sale, exchange, financing or refinancing of Borrowing Base Properties (whether directly or through the ownership of a Subsidiary that engages in such business), and (ii) the transactions permitted or contemplated by this Agreement and the other Loan Documents;
(b) does not have and will not have any assets other than those related to Borrowing Base Properties, if any, Subsidiaries that own Borrowing Base Properties and assets relating to the ownership of Borrowing Base Properties, and its obligations under the Loan Documents;
(c) will maintain its accounts, books and records separate from any other Person;
(d) will maintain financial statements that accurately show its separate assets and liabilities to the extent such financial statements are required to be delivered pursuant to Section 6.01(d) ;
(e) has not incurred and will not incur any Indebtedness other than (i) Credit Extensions, (ii) if it acquires a Borrowing Base Property, Indebtedness described in Section 7.03(c) not evidenced by a note, and (iii) other Indebtedness permitted by the Loan Documents;
(f) other than its obligations under the Loan Documents, has not and will not assume or guarantee or become obligated for the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person; and
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(g) other than pursuant to the Loan Documents, has not pledged and will not pledge its assets for the benefit of any other Person.
" Subsidiary " of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the Loan Parties.
" Swap Contract " means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a " Master Agreement "), including any such obligations or liabilities under any Master Agreement.
" Swap Termination Value " means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a) , the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
" Swing Line " means the revolving credit facility made available by the Swing Line Lender pursuant to Section 2.04 .
" Swing Line Borrowing " means a borrowing of a Swing Line Loan pursuant to Section 2.04 .
" Swing Line Lender " means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender permitted hereunder.
" Swing Line Loan " has the meaning specified in Section 2.04(a).
" Swing Line Loan Notice " means a notice of a Swing Line Borrowing pursuant to Section 2.04(b) , which, if in writing, shall be substantially in the form of Exhibit B .
" Swing Line Sublimit " means an amount equal to the lesser of (a) $50,000,000, and (b) the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the Aggregate Commitments.
" Synthetic Lease Obligation " means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of Property creating obligations that do not appear on the balance sheet of such Person but which, upon
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the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
" Taking " means a taking or voluntary conveyance during the term hereof of all or part of any Borrowing Base Property or any interest therein or right accruing thereto or use thereof, as the result of, or in settlement of, any condemnation or other eminent domain proceeding by any Governmental Authority affecting such Borrowing Base Property or any portion thereof whether or not the same shall have actually been commenced.
" Taxes " means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
" Tenant Estoppel Agreement " means (a) the form of Tenant Estoppel Agreement attached hereto as Exhibit Q , or (b) such other form as is reasonably satisfactory to the Administrative Agent.
" Title Insurer " means Chicago Title Company or any other title insurance company acceptable to the Administrative Agent.
" Title Policy " shall have the meaning assigned to such term in Section 4.01(a)(ii) .
" Total Outstandings " means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
" Type " means, with respect to a Committed Loan, its character as a Base Rate Committed Loan or a Eurodollar Rate Committed Loan.
" Underlying Fee Estate " means, for the One Westwood Leasehold Property, those interests consisting of the fee simple interest in the land of such property and the rights of the Ground Lessor under the Ground Lease for the One Westwood Leasehold Property, exclusive of any such interests which are owned by DERF 1997 and encumbered pursuant to the Deeds of Trust on the Closing Date.
" Unfunded Pension Liability " means the excess of a Pension Plan's benefit liabilities under Section 4001(a) (16) of ERISA, over the current value of that Pension Plan's assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
" United States " and " U.S. " mean the United States of America.
" Unreimbursed Amount " has the meaning specified in Section 2.03(c)(i).
" Use " means, with respect to any Hazardous Materials, the generation, manufacture, processing, distribution, handling, use, treatment, recycling or storage of such Hazardous Materials or transportation to or from the Property of such Person of such Hazardous Materials.
1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words " include ," " includes " and " including " shall be deemed to be followed by the phrase "without limitation." The word " will " shall be construed to have the same meaning and effect as the word " shall ." Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time Modified (subject to any restrictions on such Modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person's successors and assigns, (iii) the words " herein ," " hereof " and
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" hereunder ," and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as Modified from time to time, and (vi) the words " asset " and " property " shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(b) In the computation of periods of time from a specified date to a later specified date, the word " from " means " from and including ;" the words " to " and " until " each mean " to but excluding ;" and the word " through " means " to and including ."
(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms.
(a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a consistent manner, except as otherwise specifically prescribed herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that , until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
1.04 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
1.05 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
1.06 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the maximum amount available for drawing under such Letter of Credit in effect at such time; provided , however , that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum amount available for drawing under such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
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ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such loan, a " Committed Loan ") to the Borrower from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender's Commitment; provided , however , that after giving effect to any Committed Borrowing, (a) the Total Outstandings shall not exceed the Maximum Credit Facility Availability then in effect, and (b) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender's Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender's Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's Commitment. Within the limits of each Lender's Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01 , prepay under Section 2.05 , and reborrow under this Section 2.01 . Committed Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
2.02 Borrowings, Conversions and Continuations of Committed Loans.
(a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the other, and each continuation of Eurodollar Rate Committed Loans shall be made upon the Borrower's irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent (i) not later than 1:00 p.m. three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Committed Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) not later than 11:00 a.m. on the requested date of any Borrowing of Base Rate Committed Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Committed Loans shall be in a principal amount of not less than $1,000,000. Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall, as provided in Exhibit A , specify (1) whether the Borrower is requesting a Committed Borrowing, a conversion of Committed Loans from one Type to the other, or a continuation of Eurodollar Rate Committed Loans, (2) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (3) the principal amount of Committed Loans to be borrowed, converted or continued, (4) the Type of Committed Loans to be borrowed or to which existing Committed Loans are to be converted, and (5) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or if the Borrower fails to give a notice requesting a continuation of an existing Eurodollar Rate Committed Loan three Business days before the last day of the Interest Period for such Eurodollar Rate Committed Loan, then as long as no Event of Default shall have occurred and is continuing, such Committed Loan shall automatically be made or continued as a Eurodollar Rate Committed Loan with an Interest Period of one month, and the Borrower shall be deemed to have provided to the Administrative Agent with a timely and unqualified Committed Loan Notice requesting such Eurodollar Rate Committed Loan. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Committed Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. If an Event of Default has occurred and is continuing as of the date that is three Business Days before the last day of an Interest Period for a Eurodollar Rate Committed Loan, and, if such Loan is not repaid on the last day of such Interest Period, then such Loan shall automatically be converted into a Base Rate
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Committed Loan as of the last day of such Interest Period, and the Borrower shall be deemed to have provided to the Administrative Agent with a timely and unqualified Committed Loan Notice requesting such conversion.
(b) Following receipt, or deemed receipt, of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Committed Loans, and if no timely notice of a conversion or continuation of a Eurodollar Rate Committed Loan is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to or continuation of Eurodollar Rate Committed Loans with an Interest Period of one month, as described in the preceding subsection. In the case of a Committed Borrowing, each Lender shall make the amount of its Committed Loan available to the Administrative Agent in Dollars and in immediately available funds at the Administrative Agent's Office not later than (y) 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice, with respect to a Base Rate Committed Loan, and (z) 11a.m. on the Business Day specified in the applicable Committed Loan Notice, with respect to a Eurodollar Rate Committed Loan. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, subject to the provisions of the Closing Conditions Side Letter, if such Borrowing is the initial Credit Extension, Section 4.01 ), and subject to Section 2.02(f) , the Administrative Agent shall make all funds so received available to the Borrower in Dollars and in immediately available funds on the day such funds are so received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of America with the amount of such funds (or the applicable portion thereof designated by the Borrower) and/or (ii) if requested by the Borrower, by wire transfer of such funds (or the applicable portion thereof designated by the Borrower), in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower. With respect to Base Rate Committed Loans, the Administrative Agent shall remit to the Borrower (or begin the wire transfer process, as applicable) by 2:00 p.m. on the Business Day specified in the applicable Committed Loan Notice, all such funds that have been timely delivered in Dollars by the Lenders to the Administrative Agent. With respect to Eurodollar Rate Committed Loans, the Administrative Agent shall remit to the Borrower (or begin the wire transfer process, as applicable) by 12:00 p.m. on the Business Day specified in the applicable Committed Loan Notice, all such funds that have been timely delivered in Dollars by the Lenders to the Administrative Agent. By its acceptance of such funds, Borrower shall not have waived any rights it may have with respect to a Defaulting Lender's failure to deliver funds pursuant to this Section 2.02 (b).
(c) Except as otherwise provided herein, a Eurodollar Rate Committed Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Committed Loan. During the existence of a Default that is not a payment Default or an Event of Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Committed Loans with an Interest Period in excess of one month. During the existence of a payment Default or an Event of Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Committed Loans, in each case unless the consent of the Required Lenders is obtained.
(d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Committed Loans upon determination of such interest rate.
(e) After giving effect to all Committed Borrowings, all conversions of Committed Loans from one Type to the other, and all continuations of Committed Loans as the same Type, there shall not be more than eight Interest Periods in effect with respect to Eurodollar Rate Committed Loans.
(f) Notwithstanding anything to the contrary contained herein, if any L/C Borrowing is outstanding on the date that a Committed Loan Notice is given by the Borrower, then the
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Borrower must in such Committed Loan Notice request Committed Loans in an amount at least sufficient to repay such L/C Borrowing in full, in addition to any other amounts requested by the Borrower to be disbursed pursuant to the Borrower's instructions as described in Section 2.02(b) , and the Borrower must instruct the Administrative Agent to apply the proceeds of all or a part of such Borrowing (as is necessary) to the payment in full of any such L/C Borrowings.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03 , (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower, the Operating Partnership or any Controlled Subsidiary of the Operating Partnership, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower, the Operating Partnership or any Controlled Subsidiary of the Operating Partnership and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Maximum Credit Facility Availability then in effect, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender's Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender's Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in clauses (x) and (z) of the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower's ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been terminated or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii) , the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Applicable Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;
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(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars; or
(E) a default of any Lender's obligations to fund under Section 2.03(c) exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such Lender to eliminate the L/C Issuer's risk with respect to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) as between the L/C Issuer and the Lenders, as provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term "Administrative Agent" as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent, if they are not the same Person) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 12:00 p.m. at least three Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may require. Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit
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issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Section 4.02 shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower (or the Operating Partnership or any Controlled Subsidiary of the Operating Partnership requested by the Borrower) or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer's usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender's Applicable Percentage times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an " Auto-Extension Letter of Credit "); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the Borrower and the beneficiary thereof not later than a day (the " Non-Extension Notice Date ") in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer or required by the Borrower in the Letter of Credit Application, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided , however , that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is five Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the Administrative Agent thereof and (y) if the Borrower is notified on or before 12:00 p.m. on the date of any
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payment by the L/C Issuer under a Letter of Credit (each such date, an " Honor Date "), the Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing, on or before 2 p.m. on the Honor Date, and (z) if the Borrower is notified that a payment has been made under a Letter of Credit after 12:00 p.m. on the Honor Date, the Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing, on or before 2 p.m. on the day after the Honor Date (provided, however, that interest shall accrue on the Unreimbursed Amount at the Applicable Rate for Base Rate Loans from the Honor Date to the date of such repayment by the Borrower). If the Borrower fails to so reimburse the L/C Issuer by the time specified in the foregoing clause (y) or (z) (as applicable), the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the " Unreimbursed Amount "), and the amount of such Lender's Applicable Percentage thereof. In such event, such failure shall not, in and of itself, constitute an Event of Default hereunder (provided no other Event of Default under Section 8.01(a) has occurred and is continuing, including an Event of Default based upon a violation of Section 2.03(c)(ii) ), and the Borrower shall be deemed to have requested a Committed Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the conditions set forth in Section 4.02(a) and (b) . Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available to the Administrative Agent for the account of the L/C Issuer at the Administrative Agent's Office in Dollars in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii) , each Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of Base Rate Loans because the conditions set forth in Section 4.02(a) or (b) cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate (unless such failure to refinance is due to a Defaulting Lender, in which case it shall bear interest at the Applicable Rate for Base Rate Loans). In such event, each Lender's payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03 .
(iv) Until each Lender funds its Committed Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender's Applicable Percentage of such amount shall be solely for the account of the L/C Issuer.
(v) Each Lender's obligation to make Committed Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any
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circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that each Lender's obligation to make Committed Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Sections 4.02(a) and (b) . No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii) , the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid (less such interest and fees as aforesaid) shall constitute such Lender's Committed Loan included in the relevant Committed Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender's L/C Advance in respect of such payment in accordance with Section 2.03(c), if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement or any other Loan Document;
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(ii) the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person (other than the defense of the indefeasible payment or performance under the Loan Documents), whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever (other than the defense of the indefeasible payment or performance under the Loan Documents), whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or any Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower's instructions or other irregularity, the Borrower will immediately notify the L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided , however , that this assumption is not intended to, and shall not, preclude the Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e) ; provided , however , that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by the L/C Issuer's willful misconduct or
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gross negligence or the L/C Issuer's willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing which has not been reimbursed within two (2) Business Days of demand, or (ii) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrower shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations. Sections 2.05 and 8.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder. For purposes of this Section 2.03 , Section 2.05 and Section 8.02(c), " Cash Collateralize " means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances of the Borrower (the " Cash Collateral ") pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer (which documents are hereby consented to by the Lenders). Derivatives of such term have corresponding meanings. The Borrower hereby grants to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a security interest in all such Cash Collateral deposited with the Administrative Agent pursuant to this Section and all proceeds of the foregoing, as security for the repayment of the Obligations. Cash Collateral shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America. As long as no Event of Default has occurred and is continuing, upon a reduction of the Outstanding Amount of the L/C Obligations that have been Cash Collateralized (including if due to the expiration or termination of the applicable Letters of Credit, or if due to the repayment of any L/C Borrowings), the Administrative Agent shall promptly return to the Borrower the amount of Cash Collateral that is in excess of such Outstanding Amount. If an Event of Default has occurred and is continuing, any Cash Collateral shall be returned to the Borrower when all of the Obligations (other than inchoate indemnity obligations) have been indefeasibly paid in full.
(h) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the " Letter of Credit Fee ") for each Letter of Credit equal to the Applicable Rate for Letters of Credit (computed over the applicable period on the basis of a 360-day year and actual days elapsed) times the daily amount available to be drawn under such Letter of Credit during such period. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 . Letter of Credit Fees shall be (i) due and payable on the first Business Day after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall
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be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall computed based on the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to each Letter of Credit, at the rate per annum specified in the Fee Letter (computed over the applicable period on the basis of a 360-day year and actual days elapsed), which fee shall be computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on the first Business Day after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 . In addition, the Borrower shall pay directly to the L/C Issuer for its own account, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand upon delivery of an invoice therefore and are nonrefundable (except to the extent otherwise provided in the Letter of Credit Application).
(k) Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.
(l) Letters of Credit Issued for Operating Partnership or Controlled Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, the Borrower, the Operating Partnership or a Controlled Subsidiary of the Operating Partnership, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of the Borrower, the Operating Partnership or any Controlled Subsidiary of the Operating Partnership inures to the benefit of the Borrower.
(m) Invoices. The L/C Issuer shall send an invoice to the Borrower with respect to all Letter of Credit Fees, fronting fees and other charges described in Section 2.03(j) on or before the due date thereof provided, however, that failure to send such invoice shall not abrogate the Borrower's obligations to pay such amounts that are due hereunder.
2.04 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04 , to make loans (each such loan, a " Swing Line Loan ") to the Borrower from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender's Commitment; provided , however , that after giving effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the Maximum Credit Facility Availability then in effect, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender's Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender's Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not
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exceed such Lender's Commitment, and provided , further , that the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.04 , prepay under Section 2.05 , and reborrow under this Section 2.04 . Swing Line Loans may be either Base Rate Loans or Eurodollar Rate Loans, as requested by the Borrower in its Swing Line Loan Notice; provided, however, that if the Borrower does not designate the requested Swing Line Loan as a Base Rate Loan, such Swing Line Loan shall be a daily Eurodollar Rate Loan. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender's Applicable Percentage times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower's irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $500,000, (ii) the requested borrowing date, which shall be a Business Day, and (iii) whether such Swing Line Loan will bear interest based on the daily Eurodollar Rate (in which case, such Swing Line Borrowing shall be a daily Eurodollar Rate Loan) or the Base Rate. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower, including a Solvency Certificate executed by each Credit Facility Guarantor. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 1:30 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Section 4.02(a), (b), (c) or (d) is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 2:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower in Dollars that are immediately available funds either by (i) crediting the account of the Borrower on the books of the Swing Line Lender with the amount of such funds (or applicable portion or portions thereof designated by Borrower), and/or (ii) if requested by Borrower, remit a wire transfer of such funds (or applicable portion or portions thereof designated by Borrower), in each case in accordance with instructions provided (and reasonably acceptable) to the Administrative Agent by the Borrower.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Lender make a Committed Loan in an amount equal to such Lender's Applicable Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02 , without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Maximum Facility Availability and the conditions set forth in Sections 4.02(a) and (b) . The Swing Line Lender shall furnish
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the Borrower with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent. Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available to the Administrative Agent in Dollars and immediately available funds for the account of the Swing Line Lender at the Administrative Agent's Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii) , each Lender that so makes funds available shall be deemed to have made a Eurodollar Rate Committed Loan (if the Swing Line Loan is a Eurodollar Rate Loan) or a Base Rate Committed Loan (if the Swing Line Loan is a Base Rate Loan) to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing in accordance with Section 2.04(c)(i), the request for Committed Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender's payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the greatest of (A) the Federal Funds Rate, and (B) a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid (excluding the amounts described in the foregoing clauses (A) and (B)) shall constitute such Lender's Committed Loan included in the relevant Committed Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
(iv) Each Lender's obligation to make Committed Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that each Lender's obligation to make Committed Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Sections 4.02(a) and (b) . No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.
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(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Lender funds its Base Rate Committed Loan or risk participation pursuant to this Section 2.04 to refinance such Lender's Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender pursuant to the payment instructions for the Swing Line Lender set forth in Schedule 10.02 .
2.05 Prepayments.
(a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans in whole or in part without premium or penalty; provided that (i) such notice (which may be by telephone, promptly confirmed in writing) must be received by the Administrative Agent not later than 12:00 p.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate Committed Loans and (B) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurodollar Rate Committed Loans shall be in a principal amount of not less than $1,000,000; and (iii) any prepayment of Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Committed Loans to be prepaid and, if Eurodollar Rate Committed Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender's Applicable Percentage of such prepayment. Any prepayment of a Eurodollar Rate Committed Loan shall be accompanied by all accrued interest on the amount prepaid (other than as provided in Section 2.16(c)(i)(B) ), together with any additional amounts required pursuant to Section 3.05 . Each such prepayment shall be applied to the Committed Loans of the Lenders in accordance with their respective Applicable Percentages. Notwithstanding the foregoing, if the Borrower fails to prepay any Committed Loan on the date of prepayment set forth in the Borrower's notice therefor shall not, in and of itself, constitute an Event of Default hereunder. If the Borrower fails to make such prepayment with respect to any Eurodollar Rate Committed Loans on the date set forth in such notice, the Borrower shall pay any amounts required pursuant to Section 3.05 .
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(b) The Borrower may, upon written or telephonic notice to the Swing Line Lender, at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender not later than 3:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. Any prepayment of a Swing Line Loan shall be accompanied by all accrued interest on the amount prepaid. Notwithstanding the foregoing, the failure of the Borrower to prepay any Swing Line Loan on the date of prepayment set forth in the Borrower's notice therefor shall not, in and of itself, constitute an Event of Default hereunder.
(c) If at any time the Total Outstandings exceeds the then applicable Maximum Credit Facility Availability (including if due to the exclusion of a Borrowing Base Property from the Collateral pursuant to Section 2.16(b), or if due to a change in the Aggregate Allocated Loan Amount of the Borrowing Base Properties upon reappraisal of such properties upon extension of the Existing Maturity Date pursuant to Section 2.14 ), the Borrower shall immediately prepay Loans (or Cash Collateralize Letters of Credit pursuant to the procedures set forth in Section 2.03(g) ) in an amount sufficient to reduce the Outstanding Amount to then applicable Maximum Credit Facility Amount. If Letters of Credit have been Cash Collateralized in the amount required pursuant to this Section 2.05(c) , then as long as no Event of Default has occurred and is continuing, upon a reduction of the Total Outstandings, the Administrative Agent shall promptly return to the Borrower the equivalent amount of Cash Collateral.
(d) Upon a release of a Borrowing Base Property pursuant to Section 2.16(c) and (d) , the Borrower shall prepay the Loan in the amount of the Allocated Loan Amount of such released Borrowing Base Property, if required pursuant to Section 2.16(c)(i)(B) ;
(e) If a Casualty Event or Taking shall occur with respect to any Borrowing Base Property, and unless the Net Proceeds of such Casualty Event or Taking are applied (or held for application) towards the repair or restoration of such Borrowing Base Property as permitted under Section 2.2 of the applicable Deed of Trust, then upon the Borrower's or the Administrative Agent's receipt of the applicable Insurance Proceeds or Condemnation Awards, upon such receipt the Borrower shall prepay any L/C Borrowings first, and then the Loans designated by the Borrower (or Cash Collateralize Letters of Credit) in the amount of the Net Proceeds of such Casualty Event or Taking, without premium (but subject to the provisions of Sections 2.12(a) and 3.05 ) or, at the instruction of the Borrower (provided no Event of Default is then continuing), such Net Proceeds shall be held in a Controlled Account by the Administrative Agent and applied to prepayment of the Loan as designated by the Borrower on the next Interest Payment Date applicable to the Loans to be prepaid (in which case the amount so held shall continue to bear interest at the non-default rate(s) provided in this Agreement (as long as no Event of Default shall have occurred and be continuing, in which event such Loans shall bear interest at the Default Rate) until so applied to prepay the Loan). Nothing in this Section 2.07 shall be deemed to limit any obligation of the Borrower under the Deeds of Trust or any other Collateral Document.
2.06 Termination or Reduction of Commitments.
(a) Optional. The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce the Aggregate Commitments; provided that (i) any such notice shall be received by the Administrative Agent not later than 12:00 p.m. three (3) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $1,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not terminate or reduce the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the Maximum Credit Facility Availability unless the Borrower
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repays the amount of such excess at the time of such reduction, (iv) no such reduction shall reduce the Aggregate Commitments below $125,000,000.
(b) Notice; Fees. The Administrative Agent will promptly notify the Lenders of any such termination or reduction of the Aggregate Commitments pursuant to Section 2.06(a) . Any reduction of the Aggregate Commitments shall be applied to the Commitment of each Lender according to its Applicable Percentage. All fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of such termination.
2.07 Repayment of Loans.
(a) The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of Committed Loans outstanding on such date.
(b) The Borrower shall repay each Swing Line Loan (which may be repaid from borrowing of Committed Loans) on the earlier to occur of (i) the date that is ten (10) Business Days after such Loan is made and (ii) the Maturity Date.
2.08 Interest.
(a) Subject to the provisions of clause (b) below, (i) each Eurodollar Rate Committed Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate Committed Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate; (iii) each Swing Line Loan that is a Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the daily Eurodollar Rate plus the Applicable Rate; and (iv) each Swing Line Loan that is a Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.
(b) (i) If any amount payable by the Borrower under any Loan Document is not paid on the due date thereof, whether at stated maturity, by acceleration or otherwise, from and after the date that is two (2) Business Days after the Borrower receives written notice from the Administrative Agent of the Borrower's failure to make such payment when due, such amount shall bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by Applicable Laws.
(ii) Upon the request of the Required Lenders, while any Event of Default exists, the Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by Applicable Laws.
(iii) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
2.09 Fees. In addition to certain fees described in clauses (i) and (j) of Section 2.03 :
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage, a commitment fee equal to fifteen basis points (0.15%) (computed over the applicable period on the basis of a 360-day year and actual days elapsed) times the actual daily amount by which the Aggregate Commitments during such
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period exceed the sum of (i) the Outstanding Amount of the Committed Loans, (ii) the Outstanding Amount of Swing Line Loans, and (iii) the Outstanding Amount of L/C Obligations. The commitment fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the first Business Day after the end of each March, June, September and December in respect to the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period. The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Aggregate Commitments during any quarter, the actual daily amount shall be computed separately for each period during such quarter that such Aggregate Commitments were in effect.
(b) Extension Commitment Fee. In connection with any extension of the Maturity Date pursuant to Section 2.14 , the Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage, an extension commitment fee in the amount set forth in Section 2.14(a)(x) .
(c) Other Fees. The Borrower shall pay to the Arranger, the Administrative Agent and the L/C Issuer for their own respective accounts fees in the amounts and at the times specified in the Fee Letter, it being understood that any fees in the Fee Letter are to be paid without duplication of amounts to be paid pursuant to this Agreement. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(d) Invoices. The Administrative Agent shall send an invoice to the Borrower with respect to all fees described in Section 2.03 on or before the due date thereof provided, however, that failure to send such invoice shall not abrogate the Borrower's obligations to pay such amounts that are due hereunder and under the Fee Letter.
2.10 Computation of Interest and Fees. All computations of interest for Base Rate Loans shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error, provided that any discretion used in making such determination has been exercised reasonably.
2.11 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender's Loans in addition to such
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accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in clause (a) , each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
2.12 Payments Generally; Administrative Agent's Clawback.
(a) General. All payments that are to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent's Office in Dollars and in immediately available funds not later than 3:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 3:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent . Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Committed Borrowing of Eurodollar Rate Committed Loans (or, in the case of any Committed Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Committed Borrowing) that such Lender will not make available to the Administrative Agent such Lender's share of such Committed Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02 ) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Committed Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to such Committed Borrowing. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Committed Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender's Committed Loan included in such Committed Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
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(ii) Payments by Borrower; Presumptions by Administrative Agent . Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (b) shall be conclusive, absent manifest error, provided that any discretion used in making such determination has been exercised reasonably.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II , and such funds are not made available to the Borrower by the Administrative Agent because the applicable conditions to the Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Committed Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Committed Loan, to purchase its participation or to make its payment under Section 10.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Committed Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lender's receiving payment of a proportion of the aggregate amount of such Committed Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Committed Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments
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shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Committed Loans and other amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Committed Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which the provisions of this Section shall apply).
The Borrower and, by its execution of the Consent of Guarantor attached hereto, each other Loan Party consents to the foregoing.
2.14 Extension of Maturity Date.
(a) Extension of Maturity Date. Subject to the terms of this Section 2.14, the Borrower may require that each Lender extend the then-existing Maturity Date (the " Existing Maturity Date ") of such Lender's Commitment for an additional period of one (1) year from the Existing Maturity Date. The Borrower may require up to two (2) such one-year extensions (each, an " Extension Period "), provided that the following conditions have been satisfied with respect to each such Extension Period:
(i) The Borrower shall notify (the " Extension Notice " ) the Administrative Agent of the Borrower's exercise of such option between sixty (60) and one hundred twenty (120) days prior to the Existing Maturity Date;
(ii) No Default or Event of Default exists as of the date of the Extension Notice or as of the Existing Maturity Date or would result from the extension of the Maturity Date for the Extension Period;
(iii) Each Loan Party shall deliver to the Administrative Agent a certificate of its Responsible Officer, dated the Existing Maturity Date, certifying that the representations and warranties of such Loan Party contained in this Agreement and in each other Loan Document are true and correct in all material respects on and as of the date of such extension and after giving effect thereto, as though made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date); provided, however , that if any representation or warranty is qualified by a disclosure made by the Borrower after the Closing Date, such representation and warranty must be true and correct notwithstanding such disclosure unless such disclosure is accepted by the Administrative Agent (on behalf of, and with the consent of, the Required Lenders) in writing;
(iv) The Aggregate Commitments as of the extension of the Existing Maturity Date do not exceed sixty-five percent (65%) of the aggregate Appraised Values of the Borrowing Base Properties, which Appraised Value shall be based on the "as is" value established by a new Appraisal for each Borrowing Base Property obtained by the Administrative Agent not more than sixty (60) days prior to the Existing Maturity Date, such Appraisal to be at the Borrower's expense and reasonably satisfactory to the Administrative Agent in all respects;
(v) The Debt Service Coverage Ratio (based on projections delivered by the Borrower of Operating Expenses and Operating Income of all of the Borrowing Base Properties for the twelve (12) full calendar month period following the Existing Maturity Date and the outstanding Aggregate Commitments as of the Existing Maturity Date) shall be equal to or greater than 1.25:1.00;
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(vi) If required by the Administrative Agent, the Administrative Agent shall have received the results of any judgment and lien searches required and ordered by the Administrative Agent (at no cost to the Borrower);
(vii) As of the date of the Extension Notice, and as of the Existing Maturity Date, the Borrower and each Credit Facility Guarantor shall be in compliance with its limitations on Indebtedness under Section 7.03 and a Responsible Officer of the Borrower and each Credit Facility Guarantor shall have delivered to the Administrative Agent a certificate to such effect;
(viii) Whether or not the extension becomes effective, the Borrower shall pay all reasonable out-of-pocket costs and expenses incurred by the Administrative Agent and the Lenders in connection with the proposed extension (pre- and post-closing), including Appraisal fees and reasonable legal fees; all such costs and expenses shall be due and payable within ten (10) days of demand, and any failure to pay such amounts shall constitute a Default under this Agreement and the Loan Documents;
(ix) Not later than the Existing Maturity Date, (i) the extension shall have been documented to the Lenders' reasonable satisfaction and consented to by each Loan Party, the Administrative Agent and all the Lenders, including the execution and delivery by each Guarantor of reaffirmations of their respective obligations under each Guaranty, (ii) each Credit Facility Guarantor shall have delivered to the Administrative Agent an executed Solvency Certificate, and (iii) the Administrative Agent shall have been provided with an updated title report and appropriate title insurance endorsements shall have been issued as required by the Administrative Agent; and
(x) On the Existing Maturity Date, the Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage, an extension commitment fee equal to 10 basis points (0.10%) multiplied by the Aggregate Commitments in effect as of the extension of the Existing Maturity Date. Such extension commitment fee shall not be due in the event that the Borrower provides a timely revocation pursuant to Section 2.14(b).
Any such extension shall be otherwise subject to all of the other terms and provisions of this Agreement and the other Loan Documents.
(b) Revocation of Request for Extension. The Borrower may, upon notice to the Administrative Agent, revoke an Extension Notice; provided that any such notice shall be received by the Administrative Agent not later than 3:00 p.m. five (5) Business Days prior to the Existing Maturity Date.
(c) Conflicting Provisions. This Section 2.14 shall supersede any provisions in Section 10.01 to the contrary.
2.15 Increase in Commitments.
(a) Request for Increase. Provided there exists no Default, upon notice to the Administrative Agent (which shall promptly notify the Lenders), the Borrower may from time to time, request an increase in the Aggregate Commitments by an amount (for all such requests) not exceeding $250,000,000; provided that (i) any such request for an increase shall be in a minimum amount of $50,000,000, and (ii) the Borrower may make a maximum of five such requests. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten (10) Business Days from the date of delivery of such notice to the Lenders).
(b) Lender Elections to Increase. Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an
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amount equal to, greater than, or less than its Applicable Percentage of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment.
(c) Notification by Administrative Agent; Additional Lenders. The Administrative Agent shall notify the Borrower and each Lender of the Lenders' responses to each request made hereunder. To achieve the full amount of a requested increase and subject to the approval of the Administrative Agent, the L/C Issuer and the Swing Line Lender (which approvals shall not be unreasonably withheld), the Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(d) Effective Date and Allocations. If the Aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (the " Increase Effective Date ") and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase and the Increase Effective Date.
(e) Conditions to Effectiveness of Increase. As a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase; (ii) certifying that, before and after giving effect to such increase, the representations and warranties of such Loan Party contained in the Loan Documents are true and correct on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Section 2.15 , the representations and warranties contained in clauses (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a), (b), (c) and (d) , of Section 6.01 ; provided, however , that if any representation or warranty is qualified by a disclosure made by the Borrower after the Closing Date, such representation and warranty must be true and correct notwithstanding such disclosure unless such disclosure is accepted by the Administrative Agent (on behalf of, and with the consent by, the required Lenders) in writing; and (iii) in the case of the Borrower, certifying that no Default exists. The Borrower shall prepay any Committed Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05 ) to the extent necessary to keep the outstanding Committed Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Commitments under this Section.
(f) Conflicting Provisions. This Section shall supersede any provisions in Section 10.01 to the contrary.
2.16 Additions, Exclusions and Releases of Borrowing Base Properties.
(a) Additions of Borrowing Base Properties. As of the Closing Date, the Borrowing Base Properties hereunder shall be the Initial Borrowing Base Properties. Additional real estate properties that qualify as Eligible Property may be offered by the Borrower and shall be included as Borrowing Base Properties only in accordance with the following (and any other applicable terms and conditions contained in this Agreement):
(i) Request for Addition of Borrowing Base Properties. The Borrower from time to time may request that any Eligible Property owned or to be acquired in fee simple, or subject to a Ground Lease approved by the Administrative Agent in its sole discretion , by the Borrower, any Credit Facility Guarantor or any Controlled Subsidiary that becomes a Credit Facility
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Guarantor pursuant to Section 6.18 hereof (a " Nominated Property "), be accepted as Collateral and included as a Borrowing Base Property by delivering to the Administrative Agent and the Lenders a written request therefor.
(ii) Acceptance of Collateral. The Administrative Agent shall have the right, in its sole discretion, and after performing such due diligence as the Administrative Agent desires in its sole discretion, to accept or reject any such Nominated Property offered as an Additional Borrowing Base Property. Notwithstanding the foregoing, the Administrative Agent shall not unreasonably withhold its acceptance of a Nominated Property as a Borrowing Base Property if, through the due diligence contemplated hereby, the Administrative Agent determines that the Nominated Property does not qualify as a Borrowing Base Property based upon the same underwriting standards as used for the Initial Borrowing Base Properties, and provided that the items delivered pursuant to clauses (A) through (M) below and the information and disclosures contained therein are satisfactory to the Administrative Agent in its sole discretion. The Borrower shall at its expense provide the Administrative Agent and the Lenders with the following due diligence materials and information with respect to any Nominated Property at least forty-five (45) days prior to the proposed addition of such Nominated Property as a Borrowing Base Property:
(A) a preliminary title report for the Nominated Property and an ALTA survey meeting the requirements of Section 4.01(a)(iii) ;
(B) copies of permanent and unconditional certificates of occupancy for such Nominated Property meeting the requirements of Section 4.01(a)(iv) or otherwise acceptable to the Administrative Agent;
(C) an Environmental Report and a Property Condition Report with respect to such Nominated Property, dated as of a recent date, prepared by a qualified firm acceptable to the Administrative Agent, in generally accepted industry standard format;
(D) Uniform Commercial Code searches with respect to the existing or proposed owner or lessor of the Nominated Property;
(E) the existing or proposed form of Property Management Agreement, standard lease form and all existing brokerage and/or leasing agreements, if any, affecting such Nominated Property that will not be terminated, certified by a Responsible Officer to be true, correct and complete in all material respects;
(F) if the Nominated Property is owned or leased (or to be acquired by) a Controlled Subsidiary that is not currently a Loan Party, copies of the financial statements for the owner or lessor of such Nominated Property meeting the requirements of Section 4.01(a)(xiv) ;
(G) projections of Operating Expenses and Operating Income of all of the Borrowing Base Properties (including the Nominated Property) for the twelve (12) full calendar month period following the date of the proposed addition of the Nominated Property;
(H) a seismic report for such Nominated Property prepared by a firm of licensed engineers selected by the Administrative Agent and prepared in accordance with the Administrative Agent's scope for such reports and otherwise acceptable to the Administrative Agent in all respects;
(I) current, certified rent roll (which certificate may be qualified by knowledge in the case of an acquisition) and other reports of the financial and operating results (for
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the most recent 12-month period) and projections for the Nominated Property setting forth in such format as the Administrative Agent may reasonably require;
(J) if required by the Administrative Agent, evidence of the zoning, subdivision and entitlements status of the Nominated Property, including, without limitation, copies of the certificate of occupancy and any other material permits, licenses or approvals required for such property;
(K) in the case of an acquisition, a copy of the purchase and sale agreement(s) by which the owner will acquire the fee title to, or Ground Lease interest in, the Nominated Property;
(L) the Leasing Affidavits (which may be qualified by knowledge in the case of an acquisition and other items described in Section 4.01(a)(vii) with respect to such new Borrowing Base Property; and
(M) such other items pertaining to the Nominated Property as the Administrative Agent may reasonably request.
The Borrower acknowledges that the review of the due diligence materials described in this Section 2.16(a)(ii) will require advance notice to the Administrative Agent, and the Borrower undertakes, as provided above, to provide as much advance notice as reasonably possible to achieve timely review of such materials. The Administrative Agent shall notify the Borrower and the Lenders within thirty (30) days of receipt of all of the items described in clauses (A) through (M) above whether it agrees to accept the applicable Nominated Property as a Borrowing Base Property, which acceptance shall be conditioned upon the satisfaction (or waiver by the Administrative Agent in writing) of each of the items described in Section 2.16(a)(iii) .
(iii) Conditions to Inclusion of Proposed Borrowing Base Properties in Borrowing Base. Each of the following conditions must be satisfied (or waived by the Administrative Agent in writing) prior to any Nominated Property becoming a Borrowing Base Property hereunder:
(A) Appraisal. The Administrative Agent shall have received an Appraisal for the Nominated Property (which Appraisal shall be ordered by the Administrative Agent promptly upon request of the Borrower).
(B) Maximum Facility Amount. Based upon the information provided by the Borrower pursuant to Section 2.16(a)(ii)(G) , the Administrative Agent shall be satisfied that, as of the date of and including the addition of the new Borrowing Base Property (and after giving effect to any applicable increase in Commitments pursuant to Section 2.15 ), the Debt Service Coverage Ratio based on the Aggregate Commitments then in effect is equal to or greater than 1.25:1.00.
(C) Guaranty and Collateral Documents. The Borrower shall deliver, or caused to be delivered, to the Administrative Agent, at the Borrower's sole expense: (i) if the new Borrowing Base Property is owned or leased by a Controlled Subsidiary that is not currently the Borrower or a Credit Facility Guarantor, an accession to the Credit Facility Guaranty, a Consent to this Agreement and an accession to the Contribution Agreement in the forms attached to each such agreement, an Environmental Indemnity Agreement and a Solvency Certificate, together with all of the items described in Sections 4.01(a)(x), 4.01(a)(xi), 4.01(xviii), 4.01(a)(xix) and 4.01(a)(xxi) with respect to such Controlled Subsidiary; (ii) each Collateral Document for such Borrowing Base Property, each of which shall be duly executed by the Borrower or Credit Facility Guarantor that is the owner or lessee of such property and each other Person a party thereto, and upon
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recording or filing, shall create a duly perfected first priority Lien on or security interest in, or assignment of, the Collateral described therein (subject to Permitted Title Exceptions), and (ii) such termination statements and other documents as may be necessary to terminate all Liens on such new Borrowing Base Property, other than Permitted Title Exceptions.
(D) Title Assurances. The Administrative Agent shall have received confirmation from the Title Insurer satisfactory to the Administrative Agent of the effectiveness of the Title Policy for such new Borrowing Base Property meeting the requirements of Section 4.01(a)(ii) .
(E) Insurance. The Borrower shall have provided, or caused to be provided, to the Administrative Agent a copy of the insurance policies required by the Deed of Trust for such new Borrowing Base Property, together with evidence of the payment of premiums therefor that are then due and payable;
(F) Tenant Estoppel Agreements, SNDAs and Ground Lease Estoppel Agreements. The Borrower shall have provided, or caused to be provided, to the Administrative Agent, a Tenant Estoppel Agreement and an SNDA Agreement executed by any Tenant under a Major Lease and, if the new Borrowing Base Property is a Ground Lease, a Ground Lease Estoppel Agreement executed by the fee owner of the property.
(G) Legal Opinions. If the Controlled Subsidiary that is the owner or lessee of the new Borrowing Base Property is not the Borrower or an existing Credit Facility Guarantor, the Borrower shall have delivered to the Administrative Agent, if required by the Administrative Agent, opinions of counsel as to such Controlled Subsidiary as to the valid existence of such Controlled Subsidiary, the due authorization, execution and delivery of the Deed of Trust and other Collateral Documents for such Borrowing Base Property, and lack of any conflict of any such document with any Contractual Obligations of such Person, in form and substance reasonably satisfactory to the Administrative Agent. If the new Borrowing Base Property is located outside of the State of California, the Borrower shall have delivered to the Administrative Agent an opinion of counsel in the state where the Borrowing Base Property is located concerning the form, legality and enforceability of the Deed of Trust and other Collateral Documents relating to such Borrowing Base Property, lack of any violation of any requirements of law as a result of the execution, delivery and performance of such documents, and such other matters relating to such Borrowing Base Property and such Collateral Documents as the Administrative Agent may require;
(H) Officers' Certificate. The Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer certifying (i) that no Default has occurred and is continuing; (ii) that the condition precedent set forth in Section 2.16(a)(iii)(B) has been satisfied; (iii) that all financial and operating information delivered to the Administrative Agent pursuant to Section 2.16(a)(ii) , subject to audit, is complete and correct in all material respects to the knowledge of the Borrower; (iv) that such property would not be required to be excluded as Collateral pursuant to Section 2.16(b) ; (v) in the case of an acquisition, the purchase price for the Nominated Property, upon which the Administrative Agent and the Lenders shall be entitled to rely; and (vi) that the applicable Credit Facility Guarantor holds no Indebtedness other than as permitted under Section 7.03 ;
(I) Disbursements. The Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent required to be paid hereunder; and
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(J) Affirmation. The Borrower and each Credit Facility Guarantor shall have reaffirmed its obligations under its Credit Facility Guaranty and each other Loan Document to which it is a party.
(iv) Timing of Inclusion of New Borrowing Base Property. Notwithstanding anything to the contrary contained herein, (A) no real property owned or leased by the Borrower or a Controlled Subsidiary (other than the Initial Borrowing Base Properties) shall be counted as a Borrowing Base Property unless such property is nominated as a Nominated Property pursuant to Section 2.16(a)(i), is accepted as a Borrowing Base Property pursuant to Sections 2.16(a)(ii) and 2.16(a)(iii) , and, if such Nominated Property is owned or ground leased by a Controlled Subsidiary that is not a party to the Credit Facility Guaranty, the Administrative Agent has received the documents and opinions described in Sections 2.16(a)(iii)(C) and the first sentence of Section 2.16(a)(iii)(G) ; and (B) promptly upon such information becoming available, the Administrative Agent shall notify the Borrower of the proposed Allocated Loan Amount of the Nominated Property and, if such proposed Allocated Loan Amount is less than sixty-five percent (65%) of the Appraised Value of such Nominated Property due to the calculation thereof pursuant to clause (b)(ii) of the defined term "Allocated Loan Amount," then the Borrower may, upon notice to the Administrative Agent, withdraw its proposal to added such Nominated Property as a Borrowing Base Property pursuant to this Section 2.16(a) .
(v) Appraisals. The Borrower shall reimburse the Administrative Agent for the cost of all Appraisals of Nominated Properties offered as proposed Borrowing Base Properties under Section 2.16(a) . Any delay in the completion of such Appraisals shall be the sole risk of the Borrower. The Borrower shall, and shall cause the applicable Credit Facility Guarantor to, cooperate with such Appraisers, including by providing the appraisers with access to the Nominated Property, the books and records of the Borrower or such Credit Facility Guarantor, as applicable, and the Collateral or proposed Collateral subject to Appraisal.
(vi) Special considerations pertaining to the One Westwood Leasehold Property. If the Underlying Fee Estate in the One Westwood Leasehold Property is added as Borrowing Base Property in accordance with the provisions of Section 7.13(b) , the Allocated Loan Amount for the One Westwood Leasehold Property set forth on Schedule 5.08 shall be increased by sixty-five percent (65%) of the Appraised Value of the Underlying Fee Estate.
(b) Exclusion of Borrowing Base Properties From the Collateral. Any Borrowing Base Property will automatically be considered to have an Appraised Value of zero and will be excluded as a Borrowing Base Property:
(i) Casualty Events and Adverse Changes. Within ten (10) days after demand from the Administrative Agent to the Borrower following the occurrence of any one of the following events:
(A) any Casualty Event or Taking with respect to such Borrowing Base Property which is not restored, repaired or replaced as required under the terms of the Deed of Trust encumbering such property within no more than one hundred eighty (180) days after the occurrence of such Casualty Event or Taking (or, if payments are made in respect of such Casualty Event or Taking by an insurer under a policy of business interruption insurance covering such Borrowing Base Property, such longer period after the occurrence of such Casualty Event or Taking that such business interruption insurance payments are paid by such insurer, not to exceed, in any case, a period of twelve (12) months following such Casualty Event or Taking); or
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(B) the occurrence of an material adverse change in the environmental condition of such property from that described in the materials described in Section 4.01(a)(vi) or Section 2.16(ii)(D) (as applicable) which is not adequately remediated pursuant to the terms of the Environmental Indemnity Agreement relating to or the Deed of Trust encumbering such Borrowing Base Property; and
(ii) Sales, Transfers, Etc. Immediately upon the occurrence of any sale, transfer or encumbrance of such Borrowing Base Property, other than Permitted Liens and transfers expressly permitted by the Loan Documents.
(iii) Releases. Immediately upon the release of such Borrowing Base Property pursuant to Section 2.16(c) and (d).
(c) Releases of Borrowing Base Properties. Except as set forth in this Section 2.16(c) , or unless the Obligations (other than inchoate indemnity obligations) have been paid in full, neither the Borrower nor any Credit Facility Guarantor shall have the right to obtain the release of any Borrowing Base Property from the Lien of the Loan Documents, and no repayment or prepayment of any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the Deed of Trust on any Borrowing Base Property or any other Collateral. Any release upon payment of the Obligations in full shall be in accordance with the provisions of the Deeds of Trust governing releases.
(i) At any time following the Closing Date, the Borrower on one or more occasions may obtain, and the Administrative Agent shall take such actions as are necessary to effectuate pursuant to this Section 2.16(c)(i), the release of the entirety of any Borrowing Base Property from the Lien of the Deeds of Trust (and related Loan Documents) thereon and the release of the Borrower's and the respective Credit Facility Guarantor's obligations under the Loan Documents with respect to such Borrowing Base Property (other than those which expressly survive repayment, including, but not limited to, those set forth in the Environmental Indemnity Agreement), upon satisfaction of each of the following conditions:
(A) The Borrower shall submit to the Administrative Agent (on behalf of the Lenders), by 3:00 p.m. at least ten (10) days prior to the date of the proposed release, written notice of its election to obtain such release (which notice shall include a certification by a Responsible Officer of the Borrower that the proposed release complies with all of the conditions set forth in Section 2.16(c)(i), together with the form or forms for a release of Lien and related Loan Documents (or, in the case of a Deed of Trust, a request for reconveyance) for such Borrowing Base Property for execution by the Administrative Agent, which the Administrative Agent shall execute and deliver to the applicable Credit Facility Guarantor, for recordation upon satisfaction of all conditions set forth in this Section 2.16(c)(i). Such release shall be in a form appropriate in each jurisdiction in which the applicable Borrowing Base Property is located and reasonably satisfactory to the Administrative Agent and its counsel. Any notice of a proposed release of a Borrowing Base Property pursuant to this Section 2.16(c) may be revoked (or the date proposed for such release may be postponed) by a further written notice (which may be delivered by the Borrower by facsimile to the Administrative Agent). Any notice revoking a proposed release (or postponing the date for a proposed release) shall be delivered not less than one (1) Business Day prior to the date of such release specified in the notice of release.;
(B) The Aggregate Commitments and the Maximum Credit Facility Availability shall be reduced by the Allocated Loan Amount of the Borrowing Base Property released pursuant to this Section 2.16(c) and, if after giving effect to such reduction, the Total Outstandings would exceed the Maximum Credit Facility Availability, then the Borrower
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shall remit to the Administrative Agent the amount of such excess (for application to prepayment of the principal balance of the Loan) and all costs due pursuant to Section 3.05 (it being agreed that accrued interest on the principal amount to be paid pursuant to this clause shall not be due and payable in connection with such release (unless such accrued interest is otherwise due and payable), but shall be due and payable on the next Interest Payment Date). The minimum increment requirements of Section 2.05(a) shall not apply to a prepayment of the Loan made in accordance with this Section 2.16(c)(i)(B) ;
(C) Immediately prior to such release, the Debt Service Coverage Ratio as calculated for all of the Borrowing Base Properties then securing the Loan other than the Borrowing Base Property proposed to be released shall be equal to or greater than 1.25-to-1.00 (based on projections delivered by the Borrower of Operating Expenses and Operating Income of all of the remaining Borrowing Base Properties for the twelve (12) full calendar month period following the proposed date of such release and assuming for the purposes of such calculation that the Maximum Credit Facility Availability used to calculate the Debt Service Coverage Ratio has been reduced by the Allocated Loan Amount of the Borrowing Base Property proposed to be released);
(D) After giving effect to such release and the payment of principal required to be made in connection therewith, the Aggregate Commitments (unless the Loan shall be repaid in full) shall not be less than $125,000,000; and
(E) No Default or Event of Default exists at the time of the Borrower's request or on the date of the proposed release or after giving effect thereto (other than a Default or Event of Default that would be cured by effectuating such release).
Immediately upon the release of the Borrowing Base Property pursuant to this Section 2.16(c) , the Maximum Credit Facility Availability shall be reduced by the Allocated Loan Amount of such Borrowing Base Property. It is understood and agreed that no such release shall impair or otherwise adversely affect the Liens, security interests and other rights of the Administrative Agent or the Lenders under the Loan Documents not being released (or as to the parties to the Loan Documents and Borrowing Base Properties subject to the Loan Documents not being released).
(ii) Any Borrowing Base Property released from the Lien of the Deed of Trust and other Loan Documents pursuant to this Section 2 .16(c) shall, effective upon such release, no longer be considered a "Borrowing Base Property" for purposes of this Agreement or the other Loan Documents, except for purposes of those indemnification obligations and other covenants which, by their terms, expressly survive any such release.
(d) Release of Collateral. The Lenders irrevocably authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral pursuant to Section 2.16(c) . If the owner of the applicable Borrowing Base Property that is released pursuant to Section 2.16(c) is no longer an owner of any Borrowing Base Property, the Credit Facility Guaranty of such owner may be released in accordance with the provisions of Section 6.18(c) .
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ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any obligation of the Borrower hereunder or under any other Loan Document shall be made free and clear of and without reduction or withholding for any Indemnified Taxes or, without duplication, Other Taxes, provided that if the Borrower shall be required by Applicable Law to deduct any Indemnified Taxes (including, without duplication, any Other Taxes) from such payments, then (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) the Administrative Agent, Lender or L/C Issuer, 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 and (iii) the Borrower shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with Applicable Law.
(b) Payment of Other Taxes by the Borrower. Without limiting the provisions of clause (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with Applicable Law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative Agent, each Lender and the L/C Issuer, within 10 days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest error, provided that any discretion used in making such determination has been exercised reasonably.
(d) Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or reduction of withholding Tax under the law of the jurisdiction in which the Borrower is resident for Tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.
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Without limiting the generality of the foregoing, in the event that the Borrower is resident for Tax purposes in the United States, any Foreign Lender shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:
(i) duly completed copies of IRS Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party,
(ii) duly completed copies of IRS Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a "bank" within the meaning of Section 881(c) (3)(A) of the Code, (B) a "10 percent shareholder" of the Borrower within the meaning of Section 881(c) (3)(B) of the Code, or (C) a "controlled foreign corporation" described in Section 881(c) (3)(C) of the Code and (y) duly completed copies of IRS Form W-8BEN, or
(iv) any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower to determine the withholding or deduction required to be made (including, without limitation, duly completed copies of IRS Form W-8IMY and accompanying documentation, as applicable).
Until such properly completed and executed documentation as shall be prescribed by Applicable Law have been provided to the Borrower and which permit the Borrower to make payments to a Foreign Lender hereunder and under the Loan Documents without withholding, the Borrower shall be entitled to take all actions that are required to comply with Applicable Laws with respect to payments payable hereunder on account of Loans made to the Borrower by any such Foreign Lender, and such actions shall not constitute a Default or an Event of Default.
(f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or the L/C Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of the Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Lender or the L/C Issuer in the event the Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such Governmental Authority. This subsection shall not be construed to require the Administrative Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.
3.02 Illegality. If any Lender determines that any Change in Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority hereafter imposes material
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restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Committed Loans to Eurodollar Rate Committed Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
3.03 Inability to Determine Rates. (a) If the Required Lenders determine, after making reasonable efforts, for any reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar deposits are not being offered to Lenders in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan, or (c) if as a result of conditions or circumstances arising after the Closing Date, the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, while such condition remains in effect, the obligation of the Lenders to make or maintain Eurodollar Rate Loans for such amount or such Interest Period that gives rise to such conditions shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice (which instruction to the Administrative Agent the Required Lenders agree to promptly give upon the cessation of such condition). Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans that are affected by the applicable conditions of this Section 3.03(a) or, failing that, will be deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans in the amount specified therein. Notwithstanding the forgoing, if the applicable conditions of this Section 3.03(a) affect Eurodollar Rate Loans with only certain loan amounts or certain Interest Periods, the Borrower may request Eurodollar Rate Loans with other loan amounts or Interest Periods that do not meet the conditions of this Section 3.03(a) .
(b) If any Lender (the " Determining Lender ") determines, after making reasonable efforts, for any reason in connection with any request for a Eurodollar Rate Committed Loan with an Interest Period of less than one month (a " Short Eurodollar Rate Loan "), that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the Interest Period of such Short Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurodollar Rate for the requested Interest Period with respect to such proposed Short Eurodollar Rate Loan, or (c) the Eurodollar Rate for the Interest Period requested for such Short Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Determining Lender of funding such Short Eurodollar Rate Loan, such Lender will promptly notify the Administrative Agent, who will promptly after receipt of such notice so notify the Borrower and each other Lender. Thereafter, while such condition remains in effect, the obligation of any Lender to make such Short Eurodollar Rate Loans for such Interest Period that gives rise to such conditions shall be suspended until the Determining Lender instructs the Administrative Agent that it revokes such notice (which instruction to the Administrative Agent the Determining Lender agrees to promptly give upon the cessation of such condition, and which revocation instruction shall be promptly delivered by the Administrative Agent to the Borrower and each other Lender). Upon receipt of notice of a Determining Lender that any of the conditions in this Section 3.03(b) exists, the Borrower shall be deemed to have revoked any pending request for a
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Borrowing of, conversion to or continuation of Short Eurodollar Rate Loans that are affected by the applicable conditions of this Section 3.03(b) . Notwithstanding the forgoing, if the applicable conditions of this Section 3.03(b) affect Short Eurodollar Rate Loans with only certain Interest Periods, the Borrower may request Short Eurodollar Rate Loans with other Interest Periods that do not meet the conditions of this Section 3.03(b) .
3.04 Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.04(e) ) or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any Tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such Lender or the L/C Issuer in respect thereof (except for Excluded Taxes or any change in the rate of any Excluded Taxes); or
(iii) impose on any Lender or the L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such Lender's or the L/C Issuer's holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender's or the L/C Issuer's capital or on the capital of such Lender's or the L/C Issuer's holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender's or the L/C Issuer's holding company could have achieved but for such Change in Law (taking into consideration such Lender's or the L/C Issuer's policies and the policies of such Lender's or the L/C Issuer's holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender's or the L/C Issuer's holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its holding company, as the case may be, as specified in clause (a) or (b) of this Section and delivered to the Borrower shall be conclusive absent manifest error, provided that any discretion used in determining such amounts has been exercised reasonably. The Borrower shall pay such Lender or
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the L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender's or the L/C Issuer's right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than six months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender's or the L/C Issuer's intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof).
(e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each Lender, if as a result of a Change in Law such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as "Eurocurrency liabilities"), additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender reasonably and in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower shall have received at least 10 days' prior notice (with a copy to the Administrative Agent) of such additional interest from such Lender. If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such additional interest shall be due and payable 10 days from receipt of such notice.
3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any actual loss, cost or expense incurred by it as a result of:
(a) any conversion, payment or prepayment of any Eurodollar Rate Committed Loan on a day other than the last day of the Interest Period for such Eurodollar Rate Committed Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Eurodollar Rate Committed Loan on the date or in the amount notified by the Borrower; or
(c) any assignment of a Eurodollar Rate Committed Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.14 ;
including any loss of anticipated interest and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained; less amounts earned, or that would be earned, by Lender's reemployment of such funds.
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For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05 , each Lender shall be deemed to have funded each Eurodollar Rate Committed Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Committed Loan was in fact so funded.
3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04 , or the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , or if any Lender gives a notice pursuant to Section 3.02 , then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04 , as the case may be, in the future, or eliminate the need for, or the condition requiring, the notice pursuant to Section 3.02 , as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under Section 3.04 , or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , or if any Lender gives a notice pursuant to Section 3.02 , the Borrower may replace such Lender in accordance with Section 10.14 .
3.07 Survival. All of the Borrower's obligations under this Article III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) Loan Documents.
(A) Executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(B) Executed counterparts of each Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(C) A Note executed by the Borrower in favor of each Lender requesting a Note (including the Swing Line Lender);
(D) An executed Deed of Trust for each Borrowing Base Property, in proper form for recording in the official records of the county in which each such Borrowing Base
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Property is located, and UCC-1 financing statements in proper form for filing in all filing offices that the Administrative Agent may require;
(E) Executed counterparts of each Environmental Indemnity Agreement;
(F) Executed counterparts of each General Assignment;
(G) Executed counterparts of each Property Manager's Consent;
(H) Executed counterparts of each Solvency Certificate;
(I) Executed counterparts of the Contribution Agreement;
(J) Executed counterparts of the Reimbursement Agreement; and
(K) Executed counterparts of each other Loan Document;
(ii) Title Insurance; Priority. Confirmation from the Title Insurer satisfactory to the Administrative Agent of the effectiveness of the ALTA policy or policies (or pro forma policy or policies) of title insurance for each Borrowing Base Property satisfactory to the Administrative Agent (collectively, the " Title Policy ") issued by the Title Insurer (i) each insuring the Administrative Agent for the benefit of the Lenders in an amount equal to the aggregate amount of the Aggregate Commitments in effect on the Closing Date (with a tie-in endorsement satisfactory to the Administrative Agent) that the applicable Credit Facility Guarantor is lawfully seized and possessed of a valid and subsisting fee simple (or other applicable) interest in the Borrowing Base Properties subject to no Liens other than Permitted Title Exceptions and (ii) providing such other affirmative insurance and endorsements as the Administrative Agent may require in each case as approved by the Administrative Agent; in addition, the Borrower shall have paid all recording and filing fees payable in connection with recording the Deeds of Trust and the filing of the Uniform Commercial Code financing statements related thereto in the appropriate offices;
(iii) Survey. An "as-built" survey of each Borrowing Base Property, each satisfactory to the Administrative Agent in form and content and made by a registered land surveyor satisfactory to the Administrative Agent, each survey showing, among other things through the use of course bearings and distances, (A) all easements and roads or rights of way (including all access to public roads) and setback lines, if any, affecting the Improvements and that the same are unobstructed or any such obstructions are acceptable to the Administrative Agent; (B) the dimensions of all existing buildings and distance of all material Improvements from the lot lines; (C) no encroachments by improvements located on adjoining property that are not acceptable to the Administrative Agent; and (D) such additional information which may be reasonably required by the Administrative Agent. Each such survey shall be dated a date reasonably satisfactory to the Administrative Agent, bear a proper certificate substantially in the form of Exhibit R attached hereto by the surveyor in favor of the Administrative Agent (on behalf of the Lenders) and the Title Insurer and include the legal description of the applicable Borrowing Base Property;
(iv) Certificates of Occupancy. Copies of permanent and unconditional certificates of occupancy permitting the fully functioning operation and occupancy of each Borrowing Base Property and of such other permits necessary for the use and operation of each Borrowing Base Property issued by the respective Governmental Authorities having jurisdiction over such Borrowing Base Property, together with such other evidence as may be requested by the Administrative Agent with respect to the compliance of each Borrowing Base Property with zoning requirements;
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(v) Insurance. A copy of the insurance policies required by the Deeds of Trust or certificates of insurance with respect thereto, such policies or certificates, as the case may be, to be in form and substance, and issued by companies, acceptable to the Administrative Agent and otherwise in compliance with the terms of the Deeds of Trust, together with evidence of the payment of all premiums therefor that are currently due and payable;
(vi) Environmental Report. The Environmental Reports for each Borrowing Base Property;
(vii) Leases. (A) The affidavits (the " Leasing Affidavits ") of a Responsible Officer of each Credit Facility Guarantor certifying that, with respect to each Borrowing Base Property owned or leased by it, except as disclosed in the estoppel certificates delivered to the Administrative Agent prior to the Closing Date with respect to each such Borrowing Base Property, that certain Douglas, Emmett & Company Delinquency/Aging Report (Summarized) dated August 28, 2006 (with respect to all Initial Borrowing Base Properties other than Camden Medical Arts) and that certain Emmett & Company Delinquency/Aging Report (Summarized) dated August 30, 2006 (with respect to Camden Medical Arts), provided to the Administrative Agent with respect to each such Borrowing Base Property, or the rent rolls delivered to the Administrative Agent pursuant to Section 4.01(a)(vii) or Section 2.16(a)(ii)(J) (as applicable) for each such Borrowing Base Property, (1) each tenant lease listed in the Leasing Affidavits is in full force and effect; (2) the tenant lease summaries provided by the Borrower or Credit Facility Guarantors to the Administrative Agent are true and correct and, as to all matters contained therein relating to rent, term, termination rights, options to renew, extend or expand, rights of first refusal or offer, tenant improvement allowances, security deposits and other credit enhancements, insurance, tax and operating expense recovery, and obligations with respect to subordination, non-disturbance and attornment, complete in all material respects, and such summaries do not fail to disclose any material term of any Lease which would adversely affect the obligation of the tenant thereunder to pay rent or perform any of its other material obligations for the entire term thereof consistent with the terms disclosed in such summary and the rent rolls delivered to the Administrative Agent pursuant to Section 4.01(a)(vii) or Section 2.16(a)(ii)(J) (as applicable); (3) no defaults exist under any of the Leases (other than the Major Leases) by any party (including any guarantor) thereto that, individually or in the aggregate with respect to all such defaults, would result in a Material Adverse Effect and, to the knowledge of the Borrower and each Credit Facility Guarantor, no material default exists under any of the Major Leases; and (4) to the knowledge of the Borrower and each Credit Facility Guarantor, no event which would result in a material adverse change in the financial condition, operations or business of one or more tenants under Major Leases has occurred which the Borrower or such Credit Facility Guarantor has determined would adversely affect the ability of such tenant to pay its rent and perform its other material obligations under such Major Lease, (B) the standard office lease form and the standard retail lease form (both as approved by the Administrative Agent) to be used for the Borrowing Base Properties, and (C) rent rolls for each Borrowing Base Property;
(viii) Tenant Estoppel Agreement and Ground Lease Estoppel Agreements. Tenant Estoppel Agreements in form and substance satisfactory to the Administrative Agent from tenants covering at least seventy-five percent (75%) of all the leased space in the Borrowing Base Properties, and Ground Lease Estoppel Agreements executed by the Ground Lessors under the Ground Leases of the property described in clause (a) of the definition of "Ground Lease";
(ix) SNDA Agreements. Each SNDA Agreement obtained by the Borrower pursuant to Section 6.11 ;
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(x) Non-Foreign Status. A certificate by a Responsible Officer certifying the tax identification number of the Borrower and each Credit Facility Guarantor and the fact that none of the Borrower or any Credit Facility Guarantor is a foreign person under the Code.
(xi) UCC Searches. Uniform Commercial Code searches with respect to the Borrower, each Credit Facility Guarantor and the Property Manager as required by the Administrative Agent;
(xii) Appraisals. The Appraisals for each Borrowing Base Property indicating an "as-is" value for each of the Borrowing Base Properties, such that the Allocated Loan Amount for each Borrowing Base Property shall not exceed sixty percent (65%) of the Appraised Value of such Borrowing Base Property;
(xiii) Management and Leasing Agreements. True, complete and correct copies of the Property Management Agreement and all brokerage and/or leasing agreements affecting the Borrowing Base Properties;
(xiv) Financial Information. Copies of (A) an opening balance sheet for the Borrower, and (B) the most recent audited and unaudited annual and quarterly financial statements of each Credit Facility Guarantor, all of the foregoing to be satisfactory to the Administrative Agent and each Lender in their reasonable discretion;;
(xv) Annual Budget. A copy of the Annual Budget for each Borrowing Base Property for the current calendar year;
(xvi) Property Condition Report. A survey of the physical condition of each Borrowing Base Property prepared by a licensed engineer selected by the Administrative Agent and in accordance with the Administrative Agent's scope and otherwise acceptable to the Administrative Agent in all respects;
(xvii) Seismic Report. A seismic report for each Borrowing Base Property prepared by a firm of licensed engineers selected by the Administrative Agent and prepared in accordance with the Administrative Agent's scope for such reports and otherwise acceptable to the Administrative Agent in all respects;
(xviii) Authorizations. Such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(xix) Good Standings. Such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in California;
(xx) Opinions. A favorable opinion of Cox, Castle & Nicholson LLP, counsel to the Loan Parties, and Skadden, Arps, Slate, Meagher & Flom LLP or such other firm as shall be reasonably acceptable to the Administrative Agent, as special Delaware counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit T and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xxi) Loan Parties' Certificate. A certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such
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Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xxii) Borrower's Certificate. A certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since December 31, 2005, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and
(xxiii) Other Items. Such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Fees. Any fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid or satisfactory arrangements have been made such that such fees shall be paid on the Closing Date.
(c) Disbursements. Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) if and to the extent required pursuant to Section 10.04 hereto.
(d) DSCR. The Debt Service Coverage Ratio based on the Aggregate Commitments shall be equal to or greater than 1.25:1.00.
(e) IPO. The IPO Effective Time shall have occurred.
(f) Closing Date. The Closing Date shall have occurred on or before December 31 2006.
Without limiting the generality of the provisions of Section 9.04 , for purposes of determining compliance with the conditions specified in this Section 4.01 , each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a continuation of Eurodollar Rate Committed Loans or a conversion of Eurodollar Rate Loans to Base Rate Loans) is subject to the following conditions precedent:
(a) Representations and Warranties True. The representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that for purposes of this Section 4.02 , the representations and warranties contained in clauses (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) , (b), (c) and (d) of Section 6.01 ; provided, however , that if any representation or warranty is qualified by a disclosure made by the Borrower after the Closing Date, such representation and warranty must be true and correct notwithstanding such disclosure unless such disclosure is accepted by the Administrative Agent (on behalf of, and with the consent of, the Required Lenders) in writing.
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(b) No Default. No Event of Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof (provided, however, that if a Default that is not a payment Default, a Default under Section 8.01(f) , or an Event of Default then exists, and if the other applicable conditions set forth in this Section 4.02 are met, the Lenders will honor requests for Credit Extensions for Swing Line Loans, Base Rate Committed Loans and Eurodollar Rate Committed Loans with Interest Periods of not more than one month).
(c) Request for Credit Extension. The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender, shall have received a Request for Credit Extension in accordance with the requirements hereof.
(d) Solvency Certificate. Each Credit Facility Guarantor shall have executed a Solvency Certificate.
(e) Confirmation of Title Priority. If requested by the Administrative Agent in connection with a Request for a Credit Extension upon the extension of the Maturity Date pursuant to Section 2.14, an increase in the Aggregate Commitments pursuant to Section 2.16, or in connection with any matter excluded from the revolving credit endorsement to the Title Policy, the Administrative Agent shall have received written confirmation from the Title Company of the continued priority of the Administrative Agent's Liens on each Borrowing Base Property, which confirmation may be in the form of email or facsimile transmission.
Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Eurodollar Committed Loans to Base Rate Committed Loans or a continuation of Committed Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Borrower and each Guarantor that executes a Consent of Guarantor attached hereto, makes the following representations and warranties:
5.01 Existence, Qualification and Power; SPE Requirement; REIT Status.
(a) Each Loan Party (i) is duly organized or formed, validly existing and, as applicable, in good standing under the Applicable Laws of the jurisdiction of its incorporation or organization, (ii) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (y) own or lease its assets and carry on its business and (z) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (iii) is duly qualified and, as applicable, in good standing under the Applicable Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification; except in each case referred to in clause (ii)(y) or (z) or clause (iii) , to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(b) The Borrower is, and at all times since its formation has been, an SPE.
(c) Commencing with its taxable year ending on December 31, 2006, the REIT has or will have REIT Status. As of the Closing Date, the shares of common stock of the REIT are listed on the NYSE.
5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person's Organization Documents; (b) conflict with or result in any breach or contravention of, or
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the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which the Borrower or any Credit Facility Guarantor is a party or affecting the Borrower or any Credit Facility Guarantor or the properties of the Borrower or any Credit Facility Guarantor or any of their respective Subsidiaries, or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Applicable Law.
5.03 Governmental Authorization; Other Consents. Except for filings or recordings contemplated by the Loan Documents, no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by any Loan Party of this Agreement or any other Loan Document to which such Person is a party.
5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
5.05 Financial Statements and Condition; No Material Adverse Effect.
(a) All financial statements delivered by any Loan Party or the REIT hereunder (other than projections) are complete, accurate and fairly present the financial condition of the Persons described therein as of the dates thereof and results of operations for the periods covered thereby, and all such financial statements (other than projections) delivered after the Closing Date were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein. All projections delivered by any Loan Party or the REIT are based on reasonable and good faith estimates on the date as of which such projections are stated or certified. Since December 31, 2005, there has been no act, omission, change or event affecting any Loan Party which has had a Material Adverse Effect.
(b) Neither the Borrower nor any Credit Facility Guarantor has any Indebtedness, material contingent liabilities, liabilities for Taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, other than (i) Indebtedness under this Agreement or the other Loan Documents, (ii) Indebtedness permitted by this Agreement or the other Loan Documents, (iii) the Ground Lease, (iv) security deposits and tenant improvement allowances under the Leases (which, with respect to any Lease that is not an Approved Lease, are consistent with market terms and entered into in the ordinary course of business), (v) Taxes and Other Charges that are not yet delinquent, (vi) Indebtedness referred to or reflected or provided for in the financial statements most recently delivered to the Administrative Agent and (vii) Indebtedness set forth on Schedule 5.05 attached hereto.
5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against any Loan Party or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (b) except as specifically disclosed in Schedule 5.06 , either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect.
5.07 No Default. Neither the Borrower nor any Credit Facility Guarantor is in default under or with respect to any Contractual Obligation that could, either individually or in the aggregate, reasonably be
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expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
5.08 Ownership of Property; Liens. As of the Closing Date, each Credit Facility Guarantor identified in Schedule 5.08 has good and marketable title in fee simple to, or valid leasehold interests in (as disclosed in such Schedule), the corresponding Borrowing Base Property listed in such Schedule, subject to no Liens, other than Permitted Title Exceptions and rights of equipment lessors under equipment leases that comply with the requirements of Section 7.03(e) . As of the Closing Date, the property of the Borrower is subject to no Liens, other than Liens in favor of the Administrative Agent. There are no outstanding options to purchase or rights of first refusal to purchase affecting the Borrowing Base Properties, other than those in favor of the Borrower or a Credit Facility Guarantor.
5.09 Environmental Representation. Except for matters expressly and specifically set forth in the Environmental Reports or the Property Condition Reports or matters disclosed in Schedule 5.09 , to the knowledge of the Borrower and each other Loan Party:
(a) Each Loan Party that owns a Borrowing Base Property and each Borrowing Base Property is in compliance with all applicable Environmental Laws, except where the failure to comply with such laws is not reasonably likely to result in a Material Adverse Effect.
(b) There is no Environmental Claim relating to a Borrowing Base Property of which any Loan Party has received written notice pending, or to the knowledge of any Loan Party, threatened in writing, and no penalties arising under Environmental Laws have been assessed, against any Loan Party that owns Borrowing Base Property, any Borrowing Base Property or, to the knowledge of any Loan Party, against any Person whose liability for any Environmental Claim relating to a Borrowing Base Property any Loan Party has or may have retained or assumed either contractually or by operation of law, and no Loan Party has received any written notice of any investigation or review relating to a Borrowing Base Property which is pending or, to the knowledge of any Loan Party, threatened in writing by any Governmental Authority, citizens group, employee or other Person with respect to any alleged failure by any Loan Party or any Borrowing Base Property to have any environmental, health or safety permit, license or other authorization required under, or to otherwise comply with, any Environmental Law relating to a Borrowing Base Property or with respect to any alleged liability of any Loan Party for any Use or Release of any Hazardous Materials relating to a Borrowing Base Property.
(c) There have been no past, and there are no present, Releases of any Hazardous Material that could reasonably be anticipated to form the basis of any Environmental Claim relating to a Borrowing Base Property against any Loan Party or, to the knowledge of any Loan Party, against any Person whose liability for any Environmental Claim relating to a Borrowing Base Property any Loan Party has or may have retained or assumed either contractually or by operation of law.
(d) To the knowledge of any Loan Party, there is no Release of Hazardous Materials migrating to any Borrowing Base party which could require Remediation or require any Loan Party to provide notice to any Governmental Authority.
(e) There is not present at, on, in or under any Borrowing Base Property, PCB-containing equipment, asbestos or asbestos containing materials, underground storage tanks or surface impoundments for Hazardous Materials, lead in drinking water (except in concentrations that comply with all Environmental Laws), or lead-based paint (except in compliance with all applicable Environmental Laws).
(f) No Liens are presently recorded with the appropriate land records under or pursuant to any Environmental Law with respect to any Borrowing Base Property and, to the knowledge of any
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Loan Party, no Governmental Authority has been taking or is in the process of taking any action that could subject any Borrowing Base Property to Liens under any Environmental Law.
The Borrower has provided to the Administrative Agent's environmental consultant prior to the Closing Date true and correct copies of all materials, environmental reports and other documents pertaining to the Borrowing Base Properties requested by the consultant and in the Borrower's possession or control.
5.10 Insurance. The Borrowing Base Properties are insured as required under the Deeds of Trust.
5.11 Taxes. The Borrower and each of the Credit Facility Guarantors have filed all Federal, state and other material tax returns and reports required to be filed, and have paid all Federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. No Loan Party is aware of any proposed tax assessment against any Loan Party that would, if made, have a Material Adverse Effect.
5.12 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state laws. Each Loan Party and each ERISA Affiliate have made all required contributions to each Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of any Loan Party, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.
(c) (i) no Pension Plan has any Unfunded Pension Liability; (ii) no Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iii) no Loan Party and no ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (iv) no Loan Party and no ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.
(d) (i) None of the Loan Parties is or will be a "plan" within the meaning of Section 3(3) of ERISA that is subject to Title I of ERISA or Section 4975(e) of the Code that is subject to Section 4975 of the Code; (ii) the assets of each Loan Party do not and will not constitute "plan assets" within the meaning of the United States Department of Labor Regulations set forth in 29 C.F.R. §2510.3-101; (iii) none of the Loan Parties is or will be a "governmental plan" within the meaning of Section 3(32) of ERISA; (iv) transactions by or with the Loan Parties are not and will not be subject to state statutes applicable to the Loan Parties regulating investments of fiduciaries with respect to governmental plans; and (v) the Loan Parties shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Administrative Agent or any Lender of any of its rights under this Agreement, any Note or the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA or Section 4975 of the Code. The Borrower further agrees to deliver or cause to be delivered to Administrative Agent such certifications or other evidence of compliance with the provisions of this Section as Administrative Agent may from time to time request.
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5.13 Subsidiaries; Equity Interests; Organizational Structure.
(a) As of the Closing Date, the Borrower has no Subsidiaries and no Credit Facility Guarantor has any Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13 . All of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and nonassessable and, as of the Closing Date, are owned by a Loan Party in the amounts specified on Part (a) of Schedule 5.13. The Borrower has no equity investments in any other corporation or entity. All of the outstanding Equity Interests in the Borrower and each Credit Facility Guarantor have been validly issued, are fully paid and nonassessable and, as of the Closing Date, are owned by the Persons described in Part (b) of Schedule 5.13 in the amounts specified on Part (b) of Schedule 5.13 . With respect to any Loan Party that is a limited liability company, the manager of such Loan Party is specified in Part (b) of Schedule 5.13 .
(b) The Borrower has heretofore delivered to the Administrative Agent a true and complete copy of the Organization Documents of the Borrower and each Credit Facility Guarantor and has provided the Administrative Agent with a true and complete copy of the certificate of limited partnership of the Operating Partnership. The Borrower has heretofore delivered to the Administrative Agent a copy of the form of limited partnership agreement of the Operating Agreement to be executed as of the IPO Effective Time (which is true and complete in all materials respects with the exception of missing schedules and exhibits).
5.14 Margin Regulations; Investment Company Act.
(a) The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.
(b) None of the Loan Parties is (a) an "investment company" as defined in, or subject to regulation under, the Investment Company Act of 1940 or (b) a "holding company", or an "affiliate" of a "holding company" or a "subsidiary company" of a "holding company", as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935.
5.15 Disclosure. There is no fact presently known to any Loan Party that could reasonably be anticipated to have a Material Adverse Effect that has not been disclosed herein, in the other Loan Documents or in a report, financial statement, exhibit, schedule, disclosure letter or other writing furnished to the Administrative Agent or the Lenders for use in connection with the Loan Documents. No report, financial statement, certificate or other material information (including the Form S-11 of the REIT declared effective by the SEC) furnished (whether in writing or orally) by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case, as Modified by other information so furnished) contains any material misstatement of fact known to any Loan Party or omits to state any material fact know to any Loan Party necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Loan Parties represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
5.16 Compliance with Laws.
(a) Each Loan Party is in compliance in all material respects with the requirements of all Applicable Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (i) such Applicable Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (ii) the failure to
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comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(b) Except as expressly set forth in the Property Condition Report for each Borrowing Base Property, the Environmental Reports, or the seismic reports delivered for the Borrowing Base Properties pursuant to Section 4.01(a)(xvi), 4.01(a)(vi), 4.01(a)(xvii) or Section 2.16(a) , each Borrowing Base Property and the use thereof and operations thereat by the applicable Loan Party that owns or ground leases such Borrowing Base Property comply in all material respects with all Applicable Laws. All material Government Approvals necessary under Applicable Law in connection with the operation of the Borrowing Base Properties as contemplated by the Loan Documents have been duly obtained, are in full force and effect, are not subject to appeal, are held in the name of the Loan Party that is the owner or ground lessee of such property, and are free from conditions or requirements compliance with which could reasonably be expected to have a Material Adverse Effect or which the applicable Loan Party does not reasonably expect to be able to satisfy. To the best knowledge of each Loan Party, there is no proceeding pending or threatened in writing that seeks, or may reasonably be expected, to rescind, terminate, Modify or suspend any such Government Approval. Except for business licenses and other licenses or permits that are not specifically applicable to the Borrowing Base Properties, no Loan Party has any reason to believe that the Administrative Agent, acting for the benefit of the Lenders, will not be entitled, without undue expense or delay, to the benefit of each such Government Approval upon the exercise of remedies under the Collateral Documents.
5.17 Taxpayer Identification Number. As of the Closing Date, each Loan Party's true and correct U.S. taxpayer identification number is set forth on Schedule 10.02 .
5.18 No Bankruptcy Filing. No Loan Party and no member or general partner of a Loan Party is contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of its assets or property, and no Loan Party has knowledge of any Person contemplating the filing of any such petition against any Loan Party.
5.19 Executive Offices; Places of Organization. The location of each Loan Party's principal place of business and chief executive office is the address identified in Schedule 10.02 , except to the extent changed in accordance with Section 7.04 . Each Loan Party as of the Closing Date, was organized in the State of Delaware or, in the case of DERF 1997, the State of California.
5.20 Condemnation; Casualty. To the knowledge of each Loan Party, no Taking has been commenced or is presently contemplated with respect to all or any portion of any Borrowing Base Property or for the relocation of roadways providing access to any Borrowing Base Property. Except as disclosed in the applicable Property Condition Report for such Borrowing Base Property, no Casualty Event of any material nature that has not been substantially repaired has occurred with respect to any Borrowing Base Property.
5.21 Utilities and Public Access; No Shared Facilities. Each Borrowing Base Property has adequate rights of access to public ways and is served by adequate electric, gas, water, sewer, sanitary sewer and storm drain facilities. All public utilities necessary to the use and enjoyment of each Borrowing Base Property as intended to be used and enjoyed are located in the public right-of-way abutting each Borrowing Base Property except as otherwise shown on the survey of such Borrowing Base Property provided to the Administrative Agent.
5.22 Solvency.
(a) On the Closing Date and after and giving effect to the Credit Extension occurring on the Closing Date and the disbursement of the Loan proceeds pursuant to the Borrower's instructions, each Loan Party is Solvent (with respect to the Borrower only, taking into account the obligations of the Operating Partnership under the Reimbursement Agreement).
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(b) On each date of a Credit Extension and after giving effect to the Credit Extension occurring on such date and the disbursement of the Loan proceeds pursuant to the Borrower's instructions, (i) the Borrower is Solvent (taking into account the obligations of the Operating Partnership under the Reimbursement Agreement), and (ii) each Credit Facility Guarantor is Solvent.
5.23 No Joint Assessment; Separate Lots. No Loan Party has suffered, permitted or initiated the joint assessment of any Borrowing Base Property with any other real property constituting a separate tax lot.
5.24 Security Interests and Liens. The Collateral Documents create (and upon recordation of the Deeds of Trust and filing of the applicable financing statements in the appropriate filing offices, there will be perfected), as security for the Obligations, valid, enforceable, perfected and first priority security interests in and Liens on all of the respective Collateral intended to be covered thereunder, in favor of the Administrative Agent as administrative agent for the ratable benefit of the Lenders, subject to no Liens other than the Permitted Title Exceptions and rights of equipment lessors under equipment leases currently in effect which comply with the requirements set forth in Sections 7.03(e) and (f), except as enforceability may be limited by applicable insolvency, bankruptcy, reorganization, moratorium 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. Other than in connection with any future change in a Loan Party's name or the location in which a Loan Party is organized or registered, no further recordings or filings are or will be required in connection with the creation, perfection or enforcement of such security interests and Liens, other than the filing of continuation statements and Notices of Intent to Preserve Security Interests in accordance with the Uniform Commercial Code and the California Civil Code. A financing statement covering all property covered by any Collateral Document that is subject to a Uniform Commercial Code financing statement has been filed and/or recorded, as appropriate, (or irrevocably delivered to the Administrative Agent or a title agent for such recordation or filing) in all places necessary to perfect a valid first priority security interest with respect to the rights and property that are the subject of such Collateral Document to the extent governed by the Uniform Commercial Code and to the extent such security can be perfected by such filing.
5.25 Leases.
(a) As of the Closing Date, the rent rolls attached hereto as Schedule 5.25 are true, correct and complete and the Leases referred to thereon are all valid and in full force and effect; (b) the Leases (including Modifications thereto) are in writing, and there are no oral agreements with respect thereto; (c) the copies of each of the Leases (if any) delivered to the Administrative Agent are true, correct and complete in all material respects and have not been Modified (or further Modified); (d) each Lease summary delivered to the Administrative Agent are true and correct in all material respects and, as to all matters contained therein relating to rent, term, termination rights, options to renew, extend or expand, rights of first refusal or offer, tenant improvement allowances, security deposits and other credit enhancements, insurance, tax and operating expense recovery, and obligations with respect to subordination, non-disturbance and attornment, complete in all material respects, and such summaries do not fail to disclose any material term of any Lease which would materially impact the obligation of the tenant thereunder to pay rent or perform any of its other material obligations for the entire term thereof as disclosed in such summary; (e) to the knowledge of any Loan Party, no defaults exist under any of the Leases (other than the Major Leases) by any party (including any guarantor) thereto that, individually or in the aggregate with respect to all such defaults would result in a Material Adverse Effect and, to the knowledge of any Loan Party, no material default exists under any of the Major Leases; (f) no Loan Party has any knowledge of any presently effective notice of termination or notice of default given by any tenant with respect to any Major Lease or under any other Leases that individually or in the aggregate could be reasonably expected to result in a Material Adverse Effect; (g) no Loan Party has made
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any presently effective assignment or pledge of any of the Leases, the rents or any interests therein except to the Administrative Agent; (h) no tenant or other party has an option or right of first refusal to purchase all or any portion of any Borrowing Base Property, except for the rights in favor of Borrower or any Credit Facility Guarantor under a Ground Lease; (i) except as disclosed in the lease summaries delivered by the Borrower to the Administrative Agent, no tenant has the right to terminate its Lease prior to expiration of the stated term of such Lease (except as a result of a casualty or condemnation); and (j) no tenant has prepaid more than one month's rent in advance (except for bona fide security deposits and estimated payments of operating expenses, taxes and other pass-throughs paid by tenants pursuant to their Leases not prepaid more than one month prior to the date such estimated payments are due). The foregoing is qualified by any disclosures to the contrary contained in (i) the rent rolls attached hereto as Schedule 5.25 or hereafter delivered pursuant to Section 2.16 in connection with the addition of a Borrowing Base Property, and (ii) the delinquency reports referred to in the Lease Affidavits delivered as of the Closing Date or hereafter delivered pursuant to Section 2.16 in connection with the addition of a Borrowing Base Property.
5.26 Physical Condition. Except as expressly and specifically described and disclosed in the Property Condition Reports for the Borrowing Base Properties, the Environmental Reports or the seismic reports delivered for the Borrowing Base Properties pursuant to Section 4.01 or Section 2.16(a) or the capital improvement schedules contained in the budgets for the Borrowing Base Properties delivered to the Administrative Agent, to each Loan Party's knowledge, each Borrowing Base Property, including all buildings, improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, is in good condition, order and repair in all material respects; to the knowledge of each Loan Party, there exists no structural or other material defects or damages in any Borrowing Base Property, whether latent or otherwise, and no Loan Party has received written notice from any insurance company or bonding company of any defects or inadequacies in any Borrowing Base Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond. Notwithstanding the provisions of Section 8.01(d) , if any representation or warranty contained in this Section 5.26 is untrue at any time with respect to any Borrowing Base Property, such Default or Event of Default may be cured if the applicable Loan Party, within the cure period set forth in Section 8.01(c) , performs such acts as are sufficient to cause this representation and warranty to be true by the end of such cure period.
5.27 Flood Zone. No portion of any Borrowing Base Property is located in a flood hazard area as designated by the Federal Emergency Management Agency or, if in a flood zone, flood insurance is maintained therefor in full compliance with the provisions of the Deed of Trust.
5.28 Management Agreement. The Property Management Agreement for each Borrowing Base Property is the only management and/or leasing agreement related to such Borrowing Base Property, and is in full force and effect with no default or event of default existing thereunder, and the copy of each Property Management Agreement delivered to the Administrative Agent is a true, correct and complete copy.
5.29 Boundaries. Except as may be disclosed on the surveys delivered pursuant to Section 4.01 and Section 2.16(a) and in the Title Policy for each Borrowing Base Property, to the knowledge of each Loan Party: (a) none of the Improvements is outside the boundaries of any Borrowing Base Property (or building restriction or setback lines applicable thereto); (b) no improvements on adjoining properties encroach upon any Borrowing Base Property; and (c) no Improvements encroach upon or violate any easements or (in any respect which would have a Material Adverse Effect) any other encumbrance upon any Borrowing Base Property.
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5.30 Illegal Activity. No portion of any Borrowing Base Property has been purchased with proceeds of any illegal activity and no part of the proceeds of any Credit Extension will be used in connection with any illegal activity.
5.31 Permitted Liens. None of the Permitted Title Exceptions or Permitted Liens individually or in the aggregate will have a Material Adverse Effect.
5.32 Other Representations. All of the representations in this Agreement and in the other Loan Documents by any Loan Party are true, correct and complete in all material respects.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding:
6.01 Financial Statements. The Borrower shall deliver to the Administrative Agent and each Lender, in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but not later than five (5) Business Days after the annual Form 10-K of the REIT becomes publicly available, the annual Form 10-K of the REIT;
(b) within 120 days after the end of each fiscal year, the following: (i) an annual summary of operating results for each of the Borrowing Base Properties for such fiscal year, (ii) a comparison of actual results to budget for each of the Borrowing Base Properties for such fiscal year, (iii) the operating budget for each of the Borrowing Base Properties for the fiscal year then under way, (iv) an unaudited balance sheet and income statement for such fiscal year for the Borrower and each Credit Facility Guarantor (which may be consolidated provided that such financial statements contain notes identifying each item on such financial statements that is attributable to the Borrower, a Credit Facility Guarantor or the Borrowing Base Properties) and (vi) an updated rent roll for each of the Borrowing Base Properties.
(c) within five (5) Business Days after the Form 10-Q of the REIT for each fiscal quarter becomes publicly available, the most recent Form 10-Q of the REIT;
(d) within 60 days after the end of each fiscal quarter, the following: (i) a summary of operating results for each of the Borrowing Base Properties as of the end of the current quarter for the year-to-date, (ii) a comparison of actual results to budget for each of the Borrowing Base Properties as of the end of the current fiscal quarter for the year-to-date, (iii) an unaudited balance sheet and income statement for the Borrower and each Credit Facility Guarantor as of the end of the current fiscal quarter for the year-to-date (which may be consolidated provided that such financial statements contain notes identifying each item on such financial statements that is attributable to the Borrower, a Credit Facility Guarantor or the Borrowing Base Properties) and (v) an updated rent roll for each of the Borrowing Base Properties.; and
(e) from time to time, within fifteen (15) days after request therefor, such other information regarding the financial condition, operations, business or prospects of the Borrower, the Borrowing Base Properties, the other Loan Parties and the Bankruptcy Parties as the Administrative Agent may reasonably request, including, without limitation, if there is a material variation in the application of accounting principles as further described herein (i) a description in reasonable detail of any material variation between the application of accounting principles employed in the preparation of any annual or quarterly financial statement under Section 6.01 and the application of accounting principles employed in the preparation of the immediately preceding annual or quarterly financial statements, and (ii) reasonable estimates of the difference between such statements arising as a consequence thereof.
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Notwithstanding the foregoing, in the event that the REIT is not required to file a form 10-K, then in lieu of the item described in clause (a) above, the Borrower shall deliver to the Administrative Agent, not later than one hundred twenty (120) days after the end of each fiscal year, audited financial statements for such year for the REIT and its Subsidiaries (including a balance sheet, statement of income, statement of shareholder's equity, statement of cash flow and notes) as of the end of such fiscal year, audited and accompanied by a report and opinion of "Big Four" public accounting firm or other public accounting firm reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any "going concern" or like qualification or exception or any qualification or exception as to the scope of such audit.
6.02 Certificates; Other Information. The Borrower shall deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) at the time of the delivery of each of the financial statements provided for in Section 6.01(b) and (d), a certificate of a Responsible Officer on behalf of the Borrower, certifying (i) that such respective financial statements and reports as being true, correct, and complete in all material respects; (ii) that such officer has no knowledge, except as specifically stated, of any Default or if a Default has occurred, specifying the nature thereof in reasonable detail and the action which the Borrower is taking or proposes to take with respect thereto; and (iii) that the Borrower and each Credit Facility Guarantor is in compliance with the applicable restrictions on Indebtedness set forth in Section 7.03 ;
(b) promptly, such additional information regarding the business, financial or corporate affairs of any Loan Party, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to Sections 6.01(a) or 6.01(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower's website on the Internet at the website address listed on Schedule 10.02 (as such address may be changes pursuant to Section 10.02); or (ii) on which such documents are posted on the Borrower's behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent). The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for obtaining and maintaining its copies of such documents.
The Borrower hereby acknowledges that (1) the Administrative Agent and/or the Arranger will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, " Borrower Materials ") by posting the Borrower Materials on IntraLinks or another similar electronic system (the " Platform "), and (2) certain of the Lenders may be "public-side" Lenders ( i.e., Lenders that do not wish to receive material non-public information with respect to the Loan Parties or their securities) (each, a " Public Lender "). The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked "PUBLIC" which, at a minimum, means that the word "PUBLIC" shall appear prominently on the first page thereof; (x) by marking Borrower Materials "PUBLIC," the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws ( provided , however , that to the extent such Borrower Materials
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constitute Information, they shall be treated as set forth in Section 10.07 ); (y) all Borrower Materials marked "PUBLIC" are permitted to be made available through a portion of the Platform designated "Public Investor;" and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked "PUBLIC" as being suitable only for posting on a portion of the Platform not designated "Public Investor." Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower Materials "PUBLIC."
6.03 Notices. The Borrower shall, promptly after becoming aware of any of the following, provide to the Administrative Agent and each Lender:
(a) prompt written notice of the occurrence of any Default, including a description of the same in reasonable detail;
(b) prompt written notice of the commencement (or threatened commencement in writing) of all material legal or arbitral proceedings whether or not covered by insurance policies maintained by or for any Loan Party in accordance with the Loan Documents (it being understood that any monetary claims asserted in any proceeding which, individually or in the aggregate, exceeds $3,000,000 shall be deemed material), and of all proceedings by or before any Governmental Authority of a material nature, and any material development in respect of such legal or other proceedings, affecting the Borrower or any Credit Facility Guarantor or any Borrowing Base Property;
(c) prompt written notice of the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of the Borrower, any Credit Facility Guarantor or any ERISA Affiliate in an aggregate amount exceeding $3,000,000;
(d) promptly after the Borrower knows or has reason to believe any default has occurred by any Loan Party or tenant under any Major Lease or any Loan Party has received written notice of default from the tenant under any Major Lease, a notice of such default;
(e) copies of any material notices or documents pertaining to or related to the Borrowing Base Properties, the Borrower or any Credit Facility Guarantor received from any Governmental Authority; and, with respect to Major Leases only, any notices received asserting a material default by the landlord under such lease, or relating to an assignment of the lease by the tenant, or a subletting of all or substantially all of the premises thereunder, or the vacation of all or a material portion of the premises by the tenant, or a change in control of the tenant, or an election by the tenant to terminate the lease or any other event or condition which, as reasonably determined by the Borrower or any other Loan Party, would impact the obligation of the tenant thereunder to pay rent or perform any of its other material obligations for the entire term thereof as previously disclosed to the Administrative Agent;
(f) prompt written notice of any Taking threatened in writing; or the occurrence of any Casualty Event resulting in damage or loss in excess of $1,000,000;
(g) prompt written notice of any labor controversy pending or threatened against the Borrower or any Credit Facility Guarantor and affecting any Borrowing Base Property that could reasonably be expected to have a Material Adverse Effect, and any material development in any such labor controversy;
(h) any notice received by any Loan Party with respect to the cancellation, alteration or non-renewal of any insurance coverage maintained with respect to any Borrowing Base Property;
(i) prompt written notice that any material required permit, license, certificate or approval with respect to any Borrowing Base Property lapses or ceases to be in full force and effect;
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(j) prompt written notice of any claim from any Governmental Authority that any Borrowing Base Property, or any use, activity, operation or maintenance thereof or thereon, is not in compliance with any Applicable Law in any material respect; and
(k) prompt written notice of any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 6.03 shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth, in reasonable detail, the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
6.04 Left Blank.Preservation of Existence, Etc.
(a) The Borrower shall, and shall cause each Loan Party to, preserve, renew and maintain in full force and effect its legal existence and good standing under the laws of the jurisdiction of its organization.
(b) The Borrower shall, and shall cause each Credit Facility Guarantor to, take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) The Borrower shall preserve and keep in full force and effect its existence as an SPE.
6.06 Maintenance of the Borrowing Base Properties; Alterations. The Borrower shall, and shall cause each Credit Facility Guarantor to:
(a) maintain or cause to be maintained each Borrowing Base Property in good condition and repair in a manner consistent with a Class-A office building located in the relevant submarket in which such Borrowing Base Property is located, and make all reasonably necessary repairs or replacements thereto;
(b) not remove, demolish or alter, or permit or suffer the removal, demolition or alteration of, any of the Improvements or make any alteration that (i) would have a Material Adverse Effect on any Borrowing Base Property, or (ii) involve a cost in the aggregate for all such alterations on any Borrowing Base Property which is anticipated to exceed $10,000,000, without the prior consent of the Administrative Agent;
(c) complete promptly and in a good and workmanlike manner any Improvements which may be hereafter constructed and, subject to the terms of the Loan Documents (including, without limitation, the terms of the Deeds of Trust pertaining to use of Insurance Proceeds and Condemnation Awards), promptly restore (in compliance with, the terms of the Deeds of Trust pertaining to use of Insurance Proceeds and Condemnation Awards) in like manner any portion of the Improvements which may be damaged or destroyed thereon from any cause whatsoever, and pay when due all claims for labor performed and material furnished therefor, subject to the Borrower's or Credit Facility Guarantor's (as applicable) right to contest any such claims (as long as, with respect to any claim for which a mechanic's lien has been filed, such contested claims have been bonded over to the satisfaction of the Administrative Agent within thirty (30) days of the date of filing);
(d) not commit, or permit, any waste of the Borrowing Base Properties; and
(e) not remove any item from the Borrowing Base Properties without replacing it with a comparable item of equal quality, value and usefulness, except that the Borrower and each Credit Facility Guarantor may sell or dispose of in the ordinary course of its business any property which is obsolete or that it has determined not to be necessary or desirable for the use and operation of the applicable Borrowing Base Property.
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6.07 Maintenance of Insurance; Real Estate Taxes and Other Changes. The Borrower shall, and shall cause each Credit Facility Guarantor to, obtain and maintain insurance and pay all Real Estate Taxes and other charges as required under the Deeds of Trust.
6.08 Compliance with Laws.
(a) The Borrower shall comply in all material respects with all Applicable Laws (subject to such more stringent requirements as may be set forth elsewhere herein). Each Credit Facility Guarantor shall comply in all material respects (subject to such more stringent requirements as may be set forth elsewhere herein) with all Applicable Laws relating to the Borrowing Base Properties, and shall comply in all material respects with any other Applicable Laws, if the failure to so comply would result in a Material Adverse Effect.
(b) The Borrower shall, and shall cause each Credit Facility Guarantor to, maintain in full force and effect all required Government Approvals that are, and shall from time to time obtain all Government Approvals that shall now or hereafter be necessary, under Applicable Law in connection with the operation or maintenance of the Borrowing Base Properties and shall comply, in all material respects, with all such Government Approvals and keep them in full force and effect. Upon request from time to time, the Borrower shall promptly furnish a true, correct and complete copy of each such Government Approval to the Administrative Agent. The Borrower shall, and shall cause each Credit Facility Guarantor to, unless otherwise approved by the Administrative Agent in writing, use its reasonable efforts to contest any proceedings before any Governmental Authority and to resist any proposed adverse changes in Applicable Law to the extent that such proceedings or changes are directed specifically toward any Borrowing Base Property or could reasonably be expected to have a Material Adverse Effect, but only to the extent that Borrower or such Credit Facility Guarantor deems such action to be in the best interests of the affected Borrowing Base Property in the exercise of its business judgment.
(c) Any Loan Party may, at its own expense, contest by appropriate legal proceedings promptly initiated and conducted in good faith and with due diligence, the validity or application of any Applicable Law, and in the case of the Borrower shall provide the Administrative Agent with notice of any such contest of a material nature, and in the case of a Credit Facility Guarantor shall provide the Administrative Agent with notice of any such contest of a material nature if such matter pertains to a Borrowing Base Property, provided that:
(i) The Borrower or Credit Facility Guarantor shall pay any outstanding fines, penalties or other payments under protest unless such proceeding shall suspend the collection of such items;
(ii) such proceeding shall be permitted under and be conducted in accordance with the applicable provisions of any other instrument governing the contest of such Applicable Laws to which the applicable Loan Party or any such Borrowing Base Property is subject and shall not constitute a default thereunder;
(iii) no part of or interest in any Borrowing Base Property (or the Borrower's or any Credit Facility Guarantor's interest therein) will be in danger of being sold, forfeited, terminated, canceled or lost during the pendency of the proceeding;
(iv) such proceeding shall not subject the Borrower, any Credit Facility Guarantor, the Administrative Agent or any Lender to criminal or civil liability (other than civil liability of the Borrower or any Credit Facility Guarantor as to which adequate security has been provided pursuant to clause (v) below);
(v) unless paid under protest, the Borrower or applicable Credit Facility Guarantor shall have furnished such security as may be required in the proceeding, or as may be reasonably
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requested by the Administrative Agent, to insure the payment of any such items, together with all interest and penalties thereon, which shall not be less than 110% of the maximum liability of the Borrower or such Credit Facility Guarantor as reasonably determined by the Administrative Agent; and
(vi) the Borrower shall, or shall cause the applicable Credit Facility Guarantor to, promptly upon final determination thereof pay the amount of such items, together with all costs, interest and penalties.
6.09 Books and Records. The Borrower will, and will cause each of the other Loan Parties to, keep proper books of record and account in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities. The Borrower will, and will cause each of the other Loan Parties to, permit any representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice, to visit and inspect each Borrowing Base Property, the location of the books and records of the Borrower and the location of the books and records of each Credit Facility Guarantor relating to the Borrowing Base Properties (subject to the proviso set forth in Section 6.17(a)(viii) , to examine and make extracts from the books and records of the Borrower and the books and records of each Credit Facility Guarantor relating to its Borrowing Base Properties, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times (during normal business hours) and as often as reasonably requested.
6.10 Use of Proceeds. The Borrower will use the proceeds of the Credit Extensions for acquisitions, debt payments, development, improvements, operating and capital expenditures, dividends, distributions, working capital and any other general corporate purpose, provided that each such use is not in contravention of any Applicable Law or of any Loan Document.
6.11 SNDAs. The Borrower will distribute and use commercially reasonable efforts to obtain the SNDA Agreements duly executed by each tenant under a Major Lease by the Closing Date, and shall continue to use commercially reasonable efforts to obtain SNDA Agreements not obtained by the Closing Date as promptly as possible following the Closing Date. The Administrative Agent agrees to execute SNDA Agreements with tenants under Leases promptly following the written request of the Borrower and as a condition to any obligation of a tenant to subordinate its lease to the Loan.
6.12 Management of the Borrowing Base Properties.
(a) The Borrower shall, or shall cause each Credit Facility Guarantor to, (i) cause each Borrowing Base Property to be managed by the Property Manager in accordance with the Property Management Agreement, (ii) promptly perform and observe all of the material covenants required to be performed and observed by the Borrower, if applicable, or the applicable Credit Facility Guarantor under the Property Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder, (iii) promptly notify the Administrative Agent of any material default under the Property Management Agreement of which it is aware, and (iv) promptly enforce the performance and observance of all of the material covenants required to be performed and observed by the Property Manager under the Property Management Agreement.
(b) If (i) an Event of Default exists, (ii) the Property Manager is insolvent, or (iii) the Property Manager is in default of any material covenant or obligation under the Property Management Agreement beyond the expiration of any applicable grace period set forth therein, the Borrower shall, or shall cause the applicable Credit Facility Guarantor to, at the request of the Administrative Agent, promptly terminate the Property Management Agreement and replace the Property Manager with a property manager approved by the Administrative Agent pursuant to a Property Management Agreement on terms and conditions reasonably satisfactory to the Administrative Agent.
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(c) Notwithstanding the foregoing, or anything to the contrary contained in this Agreement or any of the Loan Documents (including, without limitation, Section 7.12 ), each of the Loan Parties shall have the right, at their option, to terminate and dispense with written property management agreements for any one or more of the Borrowing Base Properties as long as a Property Manager of the type described in clauses (a) or (b) of the definition of such term contained in this Agreement shall act as property manager.
6.13 Leases. The Borrower shall, and shall cause each Credit Facility Guarantor to, (a) assign to the Administrative Agent (on behalf of the Lenders) any and all Leases, and/or all Rents payable thereunder, including, but not limited to, any Lease which is now in existence or which may be executed after the Closing Date, (b) promptly perform and fulfill, or cause to be performed and fulfilled, each and every material term and provision of such Credit Facility Guarantor's or the Borrower's obligations, if applicable, under the Leases, including the performance of any tenant improvement work required with respect thereto, (c) give to the Administrative Agent a copy of each notice of default given to any tenant under a Major Lease or sent by any tenant thereunder to such Credit Facility Guarantor or the Borrower, if applicable, (d) consistent with good business practices and in the best interests of the affected Borrowing Base Property, enforce its rights with regard to all Leases unless otherwise approved by the Administrative Agent, (e) use its commercially reasonable efforts to lease the Borrowing Base Properties, and (f) diligently enforce the terms of each Lease with respect to any construction work to be performed by the tenant thereunder so that such work is performed in a manner which will cause a minimum amount of disruption to the tenants then in occupancy at any such Borrowing Base Property and in a manner so as not to cause a default by the Borrower, if applicable, or such Credit Facility Guarantor under any other tenants' Leases or provide the basis for any abatement or set off by any other tenant of the rent payable under any such Lease, or a claim by any other tenant for breach of warranty of habitability or similar claim. The Administrative Agent and the Lenders acknowledge that they have reviewed and approved the standard form office lease currently used by the Loan Parties for the Borrowing Base Properties.
6.14 Tenant Estoppel Agreements. At the Administrative Agent's request, at any time while an Event of Default exists and otherwise from time to time upon the joint agreement of the Borrower and the Administrative Agent, with each acting reasonably, the Borrower shall, and shall cause each Credit Facility Guarantor to, request and use commercially reasonable efforts to obtain and furnish to the Administrative Agent written estoppels in form and substance satisfactory to the Administrative Agent, executed by tenants under Leases in any Borrowing Base Property and confirming the term, rent, and other provisions and matters relating to the Leases. Borrower further hereby agrees that, while an Event of Default exists, the Administrative Agent may exercise all rights of the Borrower or each Credit Facility Guarantor, as applicable under the Leases to request the delivery of estoppels from the tenants thereunder.
6.15 Operating Plan and Budget. Commencing with the budget for the calendar year 2007 and then annually thereafter, the Borrower shall, and shall cause each Credit Facility Guarantor to, submit to the Administrative Agent an annual budget for each Borrowing Base Property (each an " Annual Budget "), in reasonable detail setting forth in detail budgeted monthly Operating Income and monthly Operating Expenses for each such Borrowing Base Property (which shall be in a format consistent with budgets prepared for each Borrowing Base Property provided to the Administrative Agent prior to the Closing Date). The Annual Budget for each year shall be delivered together with the annual financial statement for the preceding year pursuant to Section 6.01(b) . The Administrative Agent and the Lenders shall have no approval rights over the Annual Budget.
6.16 Operating Expenses. The Borrower shall, and shall cause each Credit Facility Guarantor to, pay all known costs and expenses of operating, maintaining, leasing and otherwise owning the Borrowing Base Properties on a current basis and before same become delinquent (or, in the case of trade payables, so that the same are not more than sixty (60) days past due), including all interest, principal
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(when due) and other sums required to be paid under this Agreement and the other Loan Documents, before utilizing any revenues derived or to be derived from or in respect of the Borrowing Base Properties for any other purpose, including paying any Restricted Payment.
6.17 Environmental Matters.
(a) The Borrower covenants and agrees that:
(i) all uses and operations on or of each Borrowing Base Property, whether by the Borrower, any Credit Facility Guarantor, or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
(ii) except for Releases incidental to the Use of Hazardous Materials permitted by clause (iii) below and in compliance with all Applicable Laws, neither the Borrower nor any Credit Facility Guarantor shall permit a Release of Hazardous Materials in, on, under or from any Borrowing Base Property;
(iii) neither the Borrower nor any Credit Facility Guarantor shall knowingly permit Hazardous Materials in, on, or under any Borrowing Base Property, except those that are in compliance with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Borrowing Base Properties (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Borrowing Base Properties as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 5.09 or as specifically described in the Environmental Reports, neither the Borrower nor any Credit Facility Guarantor shall permit any underground storage tanks to be in, on, or under any Borrowing Base Property, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) the Borrower and each Credit Facility Guarantor shall keep the Borrowing Base Properties free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower, Credit Facility Guarantor or any other Person (collectively, " Environmental Liens ");
(vi) notwithstanding clause (iii) above, neither the Borrower nor any Credit Facility Guarantor shall, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Borrowing Base Property, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Borrowing Base Property;
(vii) the Borrower shall, and shall cause each Credit Facility Guarantor to, cause the Remediation of such Hazardous Materials present on, under or emanating from any Borrowing Base Property, or migrating onto or into any Borrowing Base Property, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with the Environmental Indemnity Agreement; and
(viii) the Borrower shall, and shall cause each Credit Facility Guarantor to, provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Borrowing Base Property for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Borrowing Base Property or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall, and shall cause each Credit Facility Guarantor to, cooperate with the
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Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews, and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower or any Credit Facility Guarantor in relation to any Borrowing Base Property, whether heretofore or hereafter obtained.
(b) The Borrower shall promptly provide notice to the Administrative Agent of:
(i) all Environmental Claims asserted or threatened against the Borrower, any Credit Facility Guarantor or any other Person occupying any Borrowing Base Property or any portion thereof or against any Borrowing Base Property which become known to the Borrower or any Credit Facility Guarantor;
(ii) the discovery by the Borrower or any Credit Facility Guarantor of any occurrence or condition on any Borrowing Base Property or on any real property adjoining or in the vicinity of any Borrowing Base Property which could reasonably be expected to lead to an Environmental Claim against the Borrower, any Credit Facility Guarantor, any Borrowing Base Property, the Administrative Agent or any of the Lenders;
(iii) the commencement or completion of any Remediation at any Borrowing Base Property; and
(iv) any Environmental Lien filed against any Borrowing Base Property.
In connection therewith, the Borrower shall transmit to the Administrative Agent copies of any citations, orders, notices or other written communications received from any Person and any notices, reports or other written communications and copies of any future Environmental Reports whether or not submitted to any Governmental Authority with respect to the matters described above.
6.18 Additional Credit Facility Guarantors; Release of Credit Facility Guarantors.
(a) The Borrower shall notify the Administrative Agent at the time that any Controlled Subsidiary will receive a transfer of a Borrowing Base Property pursuant to Section 7.04 and, prior to such transfer (i) if such Controlled Subsidiary is not already a Credit Facility Guarantor or the Borrower, such Controlled Subsidiary (unless it is the Borrower) shall become a Credit Facility Guarantor by executing and delivering to the Administrative Agent an accession to such Creditor Facility Guaranty (in the form attached thereto), a Consent to this Agreement in the form of the Consent attached hereto and executed by each Credit Facility Guarantor as of the Closing Date, and a Solvency Certificate; (ii) the Administrative Agent shall have received all of the items described in Sections 4.01(a)(xi) and 4.01(xviii) and, if such Controlled Subsidiary is not already a Credit Facility Guarantor or the Borrower, the items described in Sections 4.01(a)(x), 4.01(a)(xix) and 4.01(a)(xxi) with respect to such Controlled Subsidiary; (iii) if such Controlled Subsidiary is not already a Credit Facility Guarantor or the Borrower, the Administrative Agent shall have received, if required by the Administrative Agent, an opinion of counsel to such Controlled Subsidiary covering such matters with respect to such Controlled Subsidiary as are covered by the opinions of counsel relating to the Credit Facility Guarantors and delivered to the Administrative Agent on the Closing Date; (iv) if such Controlled Subsidiary is not already a Credit Facility Guarantor or the Borrower, such Controlled Subsidiary (unless it is the Borrower) shall have executed an accession to the Contribution Agreement in the form attached thereto); and (v) the Administrative Agent shall have received an executed Environmental Indemnity Agreement from such Controlled Subsidiary with respect to the applicable Borrowing Base Property, an assumption of the obligations under the Deed of Trust relating to the applicable Borrowing Base Property, and such other documents or instruments as the Administrative Agent may reasonably deem necessary
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or appropriate to perfect and preserve the Liens of the Loan Documents with respect to such Borrowing Base Property.
(b) The Borrower shall comply with the provisions of Section 2.16(a)(iii)(C) with respect to any Controlled Subsidiary that is not at that time a Borrower or a Credit Facility Guarantor and that becomes an owner of a Borrowing Base Property pursuant to the terms of Section 2.16 .
(c) Upon transfer by a Credit Facility Guarantor of a Borrowing Base Property to a Controlled Subsidiary pursuant to Section 7.04 and the satisfaction of the requirements of Section 6.18(a), or in the event all Borrowing Base Properties owned or ground leased by a Credit Facility Guarantor have been released pursuant to Section 2.16(c) and (d) , the Administrative Agent, for itself and on behalf of the Lenders, shall release such Credit Facility Guarantor (the " Released Credit Facility Guarantor ") from its obligations under the Credit Facility Guaranty provided that : (i) such Released Credit Facility Guarantor no longer owns or ground leases any Borrowing Base Properties; (ii) no Default exists; (iii) the Total Outstandings do not exceed the Maximum Credit Facility Availability; and (iv) the Borrower has delivered to the Administrative Agent a certificate of a Responsible Officer certifying as to the matters set forth in the foregoing clauses (ii) and (iii) . Upon the release of the Released Credit Facility Guarantor as provided in this Section 6.18(c), any property owned or ground leased by such Released Credit Facility Guarantor shall not constitute Borrowing Base Property (unless such Released Credit Facility Guarantor acquires a Borrowing Base Property pursuant to Section 2.16 or Section 7.04 and once again becomes a Credit Facility Guarantor in compliance with this Section 6.18) .
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Borrower will not do or permit, directly or indirectly, any of the following:
7.01 Liens. None of the Borrower nor any Credit Facility Guarantor shall create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, except for the following:
(a) Liens pursuant to any Loan Document; any Permitted Title Exceptions affecting any Borrowing Base Property; any Permitted Liens; and any Lien for the performance of work or the supply of materials (unless, in the case of any such Lien affecting any Borrowing Base Property, the Borrower or the applicable Credit Facility Guarantor fails to discharge such Lien by payment or bonding (in accordance with statutory bonding requirements the effect of which is to release such Lien from the affected Borrowing Base Property and to limit the Lien claimant's rights to a recovery on the bond) on or prior to the date that is the earlier of (i) thirty (30) days after the date of filing of such lien against such Borrowing Base Property and (ii) the date on which the Borrowing Base Property (or the Borrower's or applicable Credit Facility Guarantor's ground leasehold interest therein) is in danger of being sold, forfeited, terminated, canceled or lost);
(b) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or extensions thereof, provided that the property covered thereby does not include the Collateral and the amount secured or benefited thereby is not increased in a manner prohibited by Sections 7.03(e), (f) or (g) ;
(c) Liens for Taxes not yet delinquent or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
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(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or other like Liens arising in the ordinary course of business which, in the case of the Borrowing Base Properties, are not overdue for a period of more than thirty (30) days or which are being contested in good faith and by appropriate proceedings diligently conducted, if the amounts are immaterial or if adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) pledges or deposits in the ordinary course of business in connection with workers' compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) Liens or pledges to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) judgment and other similar Liens (which shall be subordinate to the Liens of the Deeds of Trust, in the case of any such Lien encumbering any Borrowing Base Property or the Borrower's or any Credit Facility Guarantor's interest therein) in an aggregate amount not in excess of $1,000,000 arising in connection with court proceedings, but only if the execution or other enforcement of such Liens is effectively stayed (or bonded over through the posting of a bond in accordance with a statutory bonding procedure the effect of which is to release such Lien from any such Property and to limit the Lien claimant's rights to recovery under the bond) and the claims secured thereby are being actively contested in good faith by appropriate proceedings and for which appropriate reserves have been established;
(h) easements, rights-of-way, restrictions and other similar encumbrances affecting real property other than the Borrowing Base Properties or any other Collateral for the Loans;
(i) Liens securing the Indebtedness permitted by Section 7.03(g) and encumbering the specific Excluded Property financed pursuant to such section or sections (it being understood that the Liens permitted under this Section 7.01(i) shall also include Liens encumbering interests in accounts, rents, leases, management and other contracts, personal property and other items related to the applicable Excluded Property and Liens on interest rate hedging agreements entered into in connection therewith); and
(j) Liens securing equipment leases and similar personal property financing arrangements permitted pursuant to Sections 7.03(e) and (f) .
7.02 Investments. None of the Borrower nor any Credit Facility Guarantor shall make any Investments, except:
(a) operating deposit accounts or money market accounts with banks or other financial institutions;
(b) Permitted Investments;
(c) the Borrowing Base Properties;
(d) Excluded Properties owned by a Credit Facility Guarantor;
(e) a Credit Facility Guarantor's Equity Interests in any Subsidiary;
(f) the Borrower's Equity Interest in any Subsidiary that owns only Borrowing Base Properties;
(g) other investments required or permitted by the Loan Documents; and
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(h) other investments of any Credit Facility Guarantor which are consistent with the investment practices of the REIT, the Operating Partnership or their respective Controlled Subsidiaries from time to time.
7.03 Indebtedness. None of the Borrower nor any Credit Facility Guarantor shall create, incur, assume or suffer to exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness or enter into any equipment leases (whether or not constituting Indebtedness), except for the following:
(a) Indebtedness in favor of the Administrative Agent and the Lender's pursuant to this Agreement and the other Loan Document;
(b) Indebtedness of any Credit Facility Guarantor in existence as of the Closing Date and listed on Schedule 5.05 hereof;
(c) accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of such Person's business in accordance with customary terms, not more than sixty (60) days past due, unless contested in good faith by appropriate actions or proceedings and reserved for in accordance with GAAP;
(d) Indebtedness consisting of (i) endorsements by such Person for collection or deposit in the ordinary course of business or (ii) unsecured Swap Contracts entered into by such Person other than the Borrower with respect to Indebtedness permitted under Sections 7.03(a) , (b) and (g) ;
(e) Indebtedness of any Credit Facility Guarantor incurred in connection with capital or tenant improvements to (or other tenant concessions made in connection with) such Person's Properties (including, without limitation, the Borrowing Base Properties) or the acquisition of equipment or other assets for the benefit of such Person's Properties (including, without limitation, the Borrowing Base Properties), that is not used for the purposes of making Restricted Payments and that is not secured by the Collateral or any Excluded Property, including obligations under equipment leases and Indebtedness secured by Liens on personal property not constituting Collateral and used in the ownership or operation of their respective Properties, which for any Credit Facility Guarantor is in the aggregate amount not to exceed not to exceed $10,000,000 (inclusive of the portion of the value of the equipment covered by equipment leases entered into pursuant to this Section 7.03(e) amortized through the rental payments under such leases);
(f) If the Borrower owns a Borrowing Base Property, Indebtedness of the Borrower incurred in connection with capital or tenant improvements to (or other tenant concessions made in connection with) such Borrowing Base Properties or the acquisition of equipment or other assets for the benefit of such Borrowing Base Properties, that is not used for the purposes of making Restricted Payments and that is not secured by the Collateral, including obligations under equipment leases and Indebtedness secured by Liens on personal property not constituting Collateral and used in the ownership or operation of such Borrowing Base Properties, in an amount not to exceed the lesser of (y) $2,000,000 for each Borrowing Base Property owned by the Borrower, or (z) an aggregate of $10,000,000 (inclusive of the portion of the value of the equipment covered by equipment leases entered into pursuant to this Section 7.03(f) amortized through the rental payments under such leases);
(g) Indebtedness of any Credit Facility Guarantor for borrowed money incurred in connection with the acquisition, financing or refinancing of, or the issuance of letters of credit in connection
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with, one or more Excluded Properties, but only if such Indebtedness satisfies the following requirements:
(i) the obligation to repay such Indebtedness is non-recourse to such Credit Facility Guarantor and the Bankruptcy Parties (except for "carve-outs" (or Guarantees guarantying the debtor's liability with respect to "carve-outs") for fraud, misrepresentation, misappropriation and other exceptions-from-non-recourse customary in the real estate finance industry);
(ii) such Indebtedness is secured solely by Liens on one or more Excluded Properties (but which may also be secured by Liens on other property owned by Affiliates of the Operating Partnership that are not Credit Facility Guarantors), together with Liens on any interests in accounts, rents, leases, management and other contracts, personal property and other items (including, without limitation, Swap Agreements) related thereto;
(iii) the amount of such Indebtedness (or allocated loan amount in the case of Indebtedness secured by multiple property), when incurred, does not exceed sixty five percent (65%) of the fair market value of each Excluded Property encumbered as collateral for such Indebtedness, as determined by the lender's appraisal (or, in the case of financing for the acquisition of Excluded Property, sixty-five percent (65%) of the acquisition cost of the Excluded Property so acquired) encumbered as collateral for such Indebtedness; and
(iv) no Major Default or Event of Default shall have occurred or be continuing immediately prior to the incurrence of such Indebtedness or would occur after giving effect thereto.
7.04 Fundamental Changes/Dispositions.
(a) Neither the Borrower nor any Credit Facility Guarantor shall, after the Closing Date, merge, dissolve, liquidate, consolidate with or into another Person, or wind up, liquidate or dissolve, or enter into any agreement to do any of the foregoing; and, without the prior written consent of the Administrative Agent (and the Required Lenders), neither the Borrower nor any Credit Facility Guarantor shall (i) directly or indirectly transfer or Dispose of any interest in any Borrowing Base Property or any part thereof (including any interest in the Borrower or any Credit Facility Guarantor), or (ii) directly or indirectly grant any Lien on any direct interest in any Borrowing Base Property or any part thereof, whether voluntarily or involuntarily (including any interest in the Borrower or any Credit Facility Guarantor), or (iii) except as described in clause (e) of the definition of "Permitted Liens", enter into any easement or other agreement granting rights in or restricting the use or development of any Borrowing Base Property except for easements and other agreements which, in the reasonable opinion of the Administrative Agent, have no Material Adverse Effect; provided, however, that, the foregoing restrictions shall not apply with respect to:
(A) transfers of any Borrowing Base Property to the Borrower, any Credit Facility Guarantor or any Controlled Subsidiary that becomes a Credit Facility Guarantor ( provided that , (x) prior to such transfer, the Controlled Subsidiary (if not a Credit Facility Guarantor) becomes a Credit Facility Guarantor in accordance with Section 6.18 and does not have any Indebtedness that would be in violation of Section 7.03 or Liens on its Property that would be in violation of Section 7.01 ; (y) the Borrower delivers, or causes to be delivered, to the Administrative Agent, assumptions by such Controlled Subsidiary of the obligations of transferor under the Deed of Trust for such Borrowing Base Property, an Environmental Indemnity Agreement with respect to such Borrowing Base Property and endorsements to the Title Policy for the transferred Borrowing Base Property, confirming the fee or leasehold (as applicable) ownership of such Borrowing Base Property in the transferee and the Administrative Agent's first priority Lien therein (subject only to Permitted Title
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Encumbrances); and (z) the Administrative Agent is satisfied that the priority of the Administrative Agent's Lien in such Borrowing Base Property to secure the transferee's Guaranty is not impaired);
(B) transfers of any direct Equity Interests in the Borrower or any Credit Facility Guarantor (or their respective general partner, managing member or non-member manager), as long as (w) the rights of the Administrative Agent and the Lenders under the Loan Documents are not impaired, (x) the Lien of the Administrative Agent on the Collateral is not impaired, (y) such transfer does not cause the Borrower or any Credit Facility Guarantor to cease being a Controlled Subsidiary; and (z) such transfer does not result in a Change of Control;
(C) entering into Approved Leases or the granting of Liens expressly permitted by the Loan Documents;
(D) Dispositions of Borrowing Base Properties that are released pursuant to Section 2.16(c) and (d) ;
(E) Dispositions of Excluded Properties;
(F) any other transfers expressly permitted by the Loan Documents; and
(G) any of the following as long as long as the Borrower or any Credit Facility Guarantor continues to be a Controlled Subsidiary, no Change of Control results therefrom and the Property Manager of the Borrowing Base Properties continues to be an entity described in clause (a) or (b) of the definition of "Property Manager" or is otherwise a manager or leasing agent reasonably approved by the Administrative Agent: (1) any Disposition, pledge or issuance (whether through public offerings, private placements or other means) of shares or Equity Interests in the REIT or the Operating Partnership; (2) any conversion into securities of the REIT, of partnership units or other Equity Interests of the Operating Partnership; (3) any Disposition, pledge or issuance of any Equity Interests in any Subsidiary of the REIT or the Operating Partnership (other than the Borrower or any Credit Facility Guarantor) owning any direct or indirect Equity Interests in any Loan Party; (4) any merger, consolidation, dissolution, conversion, liquidation, reorganization, sale, lease or other Disposition involving any Person other than the Borrower or any Credit Facility Guarantor; and (5) any merger or consolidation involving the Borrower or any Credit Facility Guarantor in which the Borrower or such Credit Facility Guarantor, as applicable, is the surviving entity, as long as (i) the surviving entity does not have any Liens or Indebtedness not permitted pursuant to Sections 7.01 and 7.03 hereof, (ii) with respect to any such merger involving the Borrower, the surviving entity continues to remain an SPE, and (iii) no other Default would arise from, or exist as a result of, such merger. With respect to any merger, consolidation, dissolution, conversion, liquidation or reorganization transaction or event described in the foregoing clauses (4) or (5) occurring with respect to the Borrower, any Credit Facility Guarantor or any Person that controls or owns a majority of the Equity Interests of the Borrower or any Credit Facility Guarantor, the Borrower shall notify the Administrative Agent within ten (10) Business Days of the occurrence of such event and shall, upon request, provide to the Administrative Agent with any copies of the organizational documents of such Person (including any documents evidencing such merger, consolidation, dissolution, conversion, liquidation or reorganization).
(b) Without the prior written consent of the Administrative Agent, the Borrower will not, and will not permit any Credit Facility Guarantor to, make any modification of the terms or provisions of its Organization Documents, except: (i) modifications necessary to clarify existing provisions of such Organization Documents, (ii) modifications which would have no adverse, substantive effect
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on the rights or interests of the Lenders in conjunction with the Loans or under the Loan Documents, or (iii) modifications necessary to effectuate transfers to the extent expressly permitted in this Agreement. If any such modifications are made to such Organization Documents, the Borrower shall, or shall cause the applicable Credit Facility Guarantor to, deliver a copy of such modified Organization Documents to the Administrative Agent within 30 days of such modification.
7.05 ERISA. The Borrower shall not take any action, or omit to take any action, which would (a) cause the Borrower's assets to constitute "plan assets" for purposes of ERISA or the Code or (b) cause the Transactions to be a nonexempt prohibited transaction (as such term is defined in Section 4975 of the Code or Section 406 of ERISA) that could subject the Administrative Agent and/or the Lenders, on account of any Loan or execution of the Loan Documents hereunder, to any tax or penalty on prohibited transactions imposed under Section 4975 of the Code or Section 502(i) of ERISA.
7.06 Restricted Payments.
(a) Neither the Borrower nor any Subsidiary of the Borrower may declare or make, directly or indirectly, any Restricted Payment at any time during the existence of a Major Default or an Event of Default.
(b) No Credit Facility Guarantor may declare or make, directly or indirectly, any Restricted Payment in violation of Section 6.16 .
7.07 Change in Nature of Business; Existence. Except as otherwise expressly permitted under the terms of the Loan Documents, neither the Borrower nor any Credit Facility Guarantor shall engage in any material line of business substantially different from those lines of business conducted by the REIT and its Subsidiaries on the Closing Date or any business substantially related or incidental thereto. The Operating Partnership shall not engage in any material line of business, other than the acquisition, development, ownership, operation and leasing of real property assets or any business substantially related or incidental thereto, whether directly or though a joint venture or Subsidiary (provided that no Change of Control results therefrom). Neither the Borrower nor any Credit Facility Guarantor shall change its name, identity, or organizational structure, or the location of its chief executive office or principal place of business unless such Person (i) shall have obtained the prior written consent of the Administrative Agent to such change, and (ii) shall have taken all actions necessary or requested by the Administrative Agent to file or amend any financing statement or continuation statement to assure perfection and continuation of perfection of security interests under the Loan Documents.
7.08 Transactions with Affiliates. Neither the Borrower nor any Credit Facility Guarantor shall enter into any transaction of any kind with any Affiliate, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to such Person as would be obtainable by such Person at the time in a comparable arm's length transaction with a Person other than an Affiliate. This Section shall not prohibit transfers of Borrowing Base Properties permitted pursuant to Section 7.04 , or transfers of Excluded Properties to Affiliates of a Loan Party.
7.09 Burdensome Agreements. None of the Borrower, any Credit Facility Guarantor or any of their respective Subsidiaries shall enter into any Contractual Obligation that (a) limits the ability (i) of any Credit Facility Guarantor to transfer a Borrowing Base Property to the Borrower, (ii) of any Credit Facility Guarantor to Guarantee the Indebtedness of the Borrower pursuant to the terms of the Credit Facility Guaranty, (iii) of the Borrower to create, incur, assume or suffer to exist Liens in favor of the Administrative Agent and the Lenders on the Property of such the Borrower, or (iv) of any Credit Facility Guarantor to create, incur, assume or suffer to exist Liens in favor of the Administrative Agent and the Lenders on the Borrowing Base Properties of such Credit Facility Guarantor.
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7.10 Use of Proceeds. The Borrower shall not use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.
7.11 Leases.
(a) The Borrower shall not, and shall not permit any Credit Facility Guarantor to, (i) accept from any tenant, nor permit any tenant to pay, Rent for more than one month in advance except for payment in the nature of security for performance of a tenant's obligations, escalations, percentage rents and estimated payments (not prepaid more than one month prior to the date such estimated payments are due) of operating expenses, taxes and other pass-throughs paid by tenants pursuant to their Leases; (ii) amend, modify and supplement (other than ministerial changes), terminate, or accept surrender of, any Major Lease now existing or hereafter made, without the prior written consent of the Administrative Agent; notwithstanding the foregoing, the Borrower and each Credit Facility Guarantor may amend, modify and supplement, terminate, or accept surrender of any Approved Lease that is not a Major Lease; provided that (A) any such amendment, modification or supplement, is (1) consistent with fair market terms and (2) is entered into pursuant to arm's-length negotiations with a tenant not affiliated with the Borrower or any Credit Facility Guarantor, and (B) any such termination is (1) in the ordinary course of business, (2) consistent with good business practice and (3) in the best interests of the affected Borrowing Base Property; (iii) except for the Collateral Documents, assign, transfer, pledge, subordinate or mortgage any Lease or any Rent without the prior written consent of the Administrative Agent and the Required Lenders; (iv) waive or release any nonperformance of any material covenant of any Major Lease by any tenant without the Administrative Agent's prior written consent; (v) release any guarantor from its obligations under any guaranty of any Major Lease or any letter of credit or other credit support for a tenant's performance under any Major Lease, except as expressly permitted pursuant to the terms of such Lease; or (vi) enter into any master lease for any space at the Borrowing Base Properties. Notwithstanding the foregoing or anything to the contrary contained herein, the Borrower and each Credit Facility Guarantor shall have the right, at its option, to terminate or accept the surrender of any Lease (including any Major Lease), and to pursue any other rights and remedies the Borrower or such Credit Facility Guarantor may have against any tenant, following an uncured material default by a tenant under its Lease.
(b) Approvals. The Borrower shall not, and shall not permit any Credit Facility Guarantor to, enter into any Lease for any space at any Borrowing Base Property (unless such proposed Lease is held in escrow pending the receipt of any approval required below) except as follows:
(i) Non-Major Leases. The Borrower and the Credit Facility Guarantors may enter into Leases that do not constitute Major Leases, and extensions, amendments, modifications, supplements and renewals thereof without the approval of the Administrative Agent or any Lender; provided that such Lease, extension, amendment, modification, supplement or renewal (A) in the case of a Lease, is substantially in the form of the Borrower's or the Credit Facility Guarantor's standard form office lease or standard form retail lease, as applicable, previously approved by the Administrative Agent, (B) is consistent with fair market terms, and (C) is entered into pursuant to arm-length negotiations with a tenant not affiliated with the Borrower or any Credit Facility Guarantor. Any proposed Lease that is not a Major Lease, or any extension, renewal or modification of any such Lease, that does not comply with the preceding sentence shall require the prior approval of the Administrative Agent.
(ii) Major Leases. None of the Borrower nor any Credit Facility Guarantor shall enter into any Major Lease or any extension, renewal, amendment, modification or supplement of any Major Lease without the prior written approval of the Administrative Agent.
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(iii) Information. With respect to any Lease or amendment, modification or supplement of a Lease that requires approval of the Administrative Agent, the Borrower shall, or shall cause the applicable Credit Facility Guarantor to, provide the Administrative Agent with the following information (collectively, the " Lease Approval Package "): (A) all material information available to the Borrower or such Credit Facility Guarantor concerning the lessee and its business and financial condition; (B) a draft of the lease (or lease modification); and (C) a summary (the " Lease Information Summary ") substantially in the form attached hereto as Exhibit K , of the material terms of such lease or lease modification. Within five (5) Business Days after the Administrative Agent shall have received a complete Lease Approval Package, the Administrative Agent shall either consent or refuse to consent to such Lease Approval Package. If the Administrative Agent shall fail to respond within such five (5) Business Day period, the Administrative Agent shall be deemed to have approved such lease or lease modification; provided that such lease or lease modification is documented pursuant to a lease or lease modification which is consistent with the draft and lease summary and Lease Approval Package previously delivered to the Administrative Agent in all material respects.
(c) Additional Requirements as to all Leases. Notwithstanding anything to the contrary set forth in this Section 7.11 , the following requirements shall apply with respect to all Leases and all amendments, modifications or supplements of Leases entered into after the date hereof:
(i) The Borrower shall, or shall cause each Credit Facility Guarantor to, within ten (10) days after the Administrative Agent's request, provide the Administrative Agent with a true, correct and complete copy thereof as signed by all such parties, including any amendments, modifications or supplements and guarantees thereof.
(ii) All Leases must be subordinate to the Deed of Trust, and all existing and future advances thereunder, and to any amendments, modifications or supplements thereof.
(iii) Notwithstanding anything to the contrary set forth above, the Administrative Agent may require that the Borrower or the applicable Credit Facility Guarantor and the tenant under any Major Lease execute and deliver an SNDA Agreement (with such commercially reasonable changes thereto as may be requested by such tenant). The Administrative Agent (on behalf of the Lenders) shall, if requested by the Borrower or the applicable Credit Facility Guarantor, and as a condition to a tenant's obligation to subordinate its lease (if necessary or if requested by the Borrower) or attorn, enter into an SNDA Agreement with such tenant (with such commercially reasonable changes thereto as may be requested by such tenant). The Administrative Agent's execution thereof shall be conditioned upon the prior execution thereof by both the tenant and the Borrower or the applicable Credit Facility Guarantor.
(iv) All Leases shall be substantially in the form of the Borrower's or the applicable Credit Facility Guarantor's standard form office lease or standard form retail lease, as applicable, approved by the Administrative Agent and the Borrower on the Closing Date, with such modifications as the Administrative Agent shall thereafter approve prior to the execution of such Leases.
7.12 Property Management.
(a) Neither the Borrower nor any Credit Facility Guarantor shall, without the prior written approval of the Administrative Agent, (i) enter into any new Property Management Agreement; (ii) terminate or make any material changes to the Property Management Agreement, either orally or in writing, in any respect; or (iii) consent to, approve or agree to any assignment or transfer by or with respect to the Property Manager (including transfers of beneficial interests in the Property
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Manager that are not otherwise permitted by Section 7.04 or assignments or transfers by the Property Manager of any or all of its rights under any Property Management Agreement).
(b) Notwithstanding the foregoing clause (a) , the Borrower may, and may permit the Credit Facility Guarantors, on prior written notice to the Administrative Agent, subject to the limitations set forth herein with respect to the Administrative Agent's approval of any new manager for any Borrowing Base Property, terminate a Property Management Agreement in accordance with its terms as a result of a material default by a Property Manager thereunder, provided a replacement Property Manager satisfactory to the Administrative Agent is immediately appointed pursuant to a Property Management Agreement acceptable to the Administrative Agent which permits termination by the Borrower or the applicable Credit Facility Guarantor on thirty (30) days' notice so long as the new property manager delivers a Property Manager's Consent. Any change in ownership or control of the Property Manager other than as specifically set forth herein or permitted by Section 7.04 shall be cause for the Administrative Agent to re-approve such Property Manager and Property Management Agreement. If at any time the Administrative Agent consents to the appointment of a new Property Manager, such new Property Manager and the Borrower shall, or shall cause the applicable Credit Facility Guarantor to, as a condition of the Administrative Agent's consent, execute a Property Manager's Consent in the form then used by the Administrative Agent. Each Property Manager shall be required to hold and maintain all necessary licenses, certifications and permits required by Applicable Law. The Borrower and any Credit Facility Guarantor may, on prior written notice to the Administrative Agent, assign or transfer a Property Management Agreement to, or terminate and enter into a new Property Management Agreement on substantially the same terms with, the REIT, the Operating Partnership or any Controlled Subsidiary, provided that such new management entity delivers a Property Manager's Consent with respect to such Property Management Agreement.
7.13 Ground Lease.
(a) The Borrower shall not, and shall not permit any Credit Facility Guarantor to, (i) surrender any leasehold estate created by any Ground Lease or terminate or cancel any Ground Lease without the prior written consent of the Administrative Agent and the Required Lenders; (ii) without the Administrative Agent's prior written consent, cause, agree to, or permit to occur any subordination, or consent to the subordination of, such Ground Lease to any mortgage, deed of trust or other Lien encumbering (or that may in the future encumber) the estate of the lessor under the Ground Lease in any premise(s) demised to the Borrower or such Credit Facility Guarantor under a Ground Lease (other than a subordination or consent to subordination expressly required by the terms of the Ground Lease); (iii) grant any consent, approval or waiver under, or agree to any termination, cancellation or modification of any Ground Lease, in each case, without the prior written consent of the Administrative Agent and, in the case of any material consent, approval, waiver or modification, the prior written consent of the Required Lenders, except, with respect to the One Westwood Leasehold Interest, where the collateral for the Loans consists of both the leasehold and entire fee interests in the One Westwood Leasehold Interest covered by such Ground Lease and such consent, approval, waiver or modification has no Material Adverse Effect on the Lenders or on the security interests in such One Westwood Leasehold Interest held for their benefit. Any such surrender of the leasehold estate created by such Ground Lease or termination, cancellation or Modification of such Ground Lease not permitted pursuant to the foregoing terms of this Section 7.13(a) shall be void ab initio and of no force and effect.
(b) Notwithstanding the foregoing clause (a) , at such time as DERF 1997 has the right under the terms of the Ground Lease for the One Westwood Leasehold Property to acquire the Underlying Fee Estate, and provided that the applicable conditions precedent to a Borrowing in an amount of at least sixty-five percent (65%) of the Appraised Value of the Underlying Fee Estate
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can be met (including the condition that, after such Borrowing, the Total Outstandings would not exceed the Maximum Credit Facility Availability), Borrower shall (i) cause DERF 1997 to exercise its right, and thereafter use commercially reasonable efforts to, acquire such interest; (ii) upon the consummation of such acquisition, cause DERF 1997 to grant to the Administrative Agent on behalf of the Lenders a first priority perfected Lien on the entirety of such Underlying Fee Estate (together with all other right, title and interest of DERF 1997 in and to the One Westwood Leasehold Property), on the same terms, covenants and conditions as are set forth in the form of Deed of Trust to be used for fee-owned Borrowing Base Properties; (iii) cause to be delivered to the Administrative Agent, concurrently with the recordation of such Deed of Trust (or an amendment to the Deed of Trust for the One Westwood Leasehold Property providing with respect to the Underlying Fee Estate (and all other right, title and interest of DERF 1997 in and to the One Westwood Leasehold Property) the same terms, covenants and conditions as are set forth in the form of Deed of Trust to be used for fee owned Borrowing Base Properties), a Title Policy obtained from the Title Insurer at the Borrower's or DERF 1997's sole cost and expense which complies with the requirements of Section 4.01(a)(ii), and amendments to the Loan Documents (in form and substance satisfactory to the Administrative Agent and as reasonably required by the Administrative Agent) relating to the One Westwood Leasehold Property confirming that all of the Borrower's and DERF 1997's representations, warranties, covenants and obligations and all of the rights, remedies and benefits of the Administrative Agent and the Lenders thereunder with respect to the One Westwood Leasehold Property apply to the Underlying Fee Estate, together with all other right, title and interest of DERF 1997 in and to the One Westwood Leasehold Property; and (iv) pay, or cause DERF 1997 to pay, all reasonable costs and expenses of the Administrative Agent incurred in connection with such acquisition and amendment. So long as no Event of Default then exists and the foregoing requirements have been satisfied, the Borrower may permit DERF 1997 to elect to terminate the Ground Lease for the One Westwood Leasehold Property upon at least thirty (30) days' prior written notice to the Administrative Agent at any time following the end of any preference period, if any, applicable to the encumbrance of the Underlying Fee Estate in favor of the Administrative Agent, without any further consent of the Administrative Agent or any Lender, unless, in the reasonable opinion of the Administrative Agent or the Required Lenders delivered by a written notice to the Borrower prior to the end of such thirty (30) day period, such termination would have any Material Adverse Effect. Provided that there are sufficient Aggregate Commitments for the acquisition of the Underlying Fee Estate, if the requirements set forth above are satisfied and if the Borrower and DERF 1997 comply with the provisions of Section 2.16 pertaining to additions of Borrowing Base Properties with respect to the Underlying Fee Estate, the Allocated Loan Amount of such Borrowing Base Property shall be increased by an amount equal to sixty-five percent (65%) of the Appraised Value of the Underlying Fee Estate.
7.14 Zoning. The Borrower shall not, and shall not permit any Credit Facility Guarantor to, without the Administrative Agent's prior written consent, seek, make, suffer, consent to or acquiesce in any change or variance in any zoning or land use laws or other conditions of any Borrowing Base Property or any portion thereof. Except as disclosed on the Appraisals delivered to the Administrative Agent prior to the Closing Date or any other existing non-conforming use disclosed on Schedule 7.14 , the Borrower shall not use or permit the use of any portion of any Borrowing Base Property in any manner that could result in such use becoming a non-conforming use under any zoning or land use law or any other Applicable Law, or amend or modify any agreements relating to zoning or land use matters or permit the joinder or merger of lots for zoning, land use or other purposes, without the prior written consent of the Administrative Agent. Without limiting the foregoing, in no event shall the Borrower take, or permit any Credit Facility Guarantor to take, any action that would reduce or impair either (a) the number of parking spaces at any Borrowing Base Property or (b) access to any Borrowing Base Property from adjacent public roads. Further, without the Administrative Agent's prior written consent,
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the Borrower shall not, and shall not permit any Credit Facility Guarantor to, file or subject any part of any Borrowing Base Property to any declaration of condominium or co-operative or convert any part of any Borrowing Base Property to a condominium, co-operative or other direct or indirect form of multiple ownership and governance.
7.15 No Joint Assessment; Separate Lots. The Borrower shal l not, and shall not permit any Credit Facility Guarantor to, suffer, permit or initiate the joint assessment of any Borrowing Base Property with any other real property constituting a separate tax lot.
7.16 Foreign Assets Control Regulations. Neither the Borrower nor any Loan Party shall use the proceeds of the Loan in any manner that will violate the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or the Anti-Terrorism Order or any enabling legislation or executive order relating to any of the same. Without limiting the foregoing, neither the Borrower nor any Loan Party will permit itself nor any of its Subsidiaries to (a) become a blocked person described in Section 1 of the Anti-Terrorism Order or (b) knowingly engage in any dealings or transactions or be otherwise associated with any person who is known by such Loan Party or who (after such inquiry as may be required by Applicable Law) should be known by such Loan Party to be a blocked person.
7.17 Amendment of Contribution Agreement or Reimbursement Agreement. No Loan Party shall amend, modify or terminate the Contribution Agreement (other than a joinder thereto by a new Credit Facility Guarantor) or the Reimbursement Agreement without the prior written consent of the Requisite Lenders.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any of the following shall constitute an Event of Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay (including through Borrowings hereunder, if available) (i) when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within five days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within five days after the same becomes due, any other amount payable hereunder or under any other Loan Document and, in each case (other than with respect to amounts owing on the Maturity Date), such failure shall continue for two (2) Business Days after the Administrative Agent delivers notice to the Borrower of the Borrower's failure to make such payment when due; or
(b) Specific Covenants. The Borrower (or, if applicable, any Loan Party) shall default in the performance of any of its obligations under any of Sections 6.07 , 6.12 , 6.16 or Article VII (other than Section 7.06) ; or any Change in Control shall occur; or the Borrower shall make any Restricted Payment while any Event of Default exists; or the Borrower shall make a Restricted Payment while any other Major Default exists unless such Major Default is cured within the applicable cure or grace period therefor;
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(c) Other Defaults. Any Loan Party shall default under any of the other terms, covenants or conditions of this Agreement or any other Loan Document not otherwise set forth above in this Section 8.01 and such default shall continue for thirty (30) days after notice from the Administrative Agent to the Borrower; provided , however , that if (i) such default is susceptible of cure but the Administrative Agent reasonably determines that such non-monetary default cannot be reasonably cured within such thirty (30) day period, (ii) the Administrative Agent determines, in its sole discretion, that such default does not create a material risk of sale or forfeiture of, or substantial impairment in value to, any material portion of the Borrowing Base Properties, and (iii) the Borrower has provided the Administrative Agent with security reasonably satisfactory to the Administrative Agent against any interruption of payment or impairment of Collateral that is reasonably likely to result from such continuing failure, then, so long as the relevant Loan Party shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for the relevant Borrower Party in the exercise of due diligence to cure such default, but in no event shall such period exceed sixty (60) days after the original notice from the Administrative Agent or extend beyond the Maturity Date; or
(d) Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or
(e) Cross-Default. The Borrower or any Credit Facility Guarantor shall default in the payment when due of any principal of or interest on any of its Indebtedness (other than the Obligations) of $5,000,000 or more and such default shall not be cured within any applicable notice or cure period provided with respect to such Indebtedness; or any event specified in any note, agreement, indenture or other document evidencing or relating to any such Indebtedness shall occur if the effect of such event is to cause such Indebtedness to become due, or to be prepaid in full (whether by redemption, purchase, offer to purchase or otherwise), prior to its stated maturity; or
(f) Insolvency Proceedings, Etc. Any Bankruptcy Party institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) Any Bankruptcy Party becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within 30 days after its issue or levy; or
(h) Judgments. One or more (i) judgments for the payment of money (exclusive of judgment amounts fully covered by insurance (other than permitted deductibles) where the insurer has admitted liability in respect of the full amount of such judgment) aggregating in excess of $3,000,000 with respect to the Borrower or any Credit Facility Guarantor, or (ii) non-monetary judgments, orders or decrees shall be entered against the Borrower or any Credit Facility
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Guarantor which have or would reasonably be expected to have a Material Adverse Effect, and, in either case, the same shall remain undischarged for a period of thirty (30) consecutive days during which execution shall not be effectively stayed (or bonded over through the posting of a bond in accordance with a statutory bonding procedure the effect of which is to limit the judgment creditor's claim to recovery under the bond), or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Credit Facility Guarantor to enforce any such judgment; or
(i) ERISA. An ERISA Event occurs that, in the opinion of the Administrative Agent, when taken together with all other such ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party or any Affiliate of any Loan Party contests in any manner the validity or enforceability against any Loan Party of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document;
(k) Liens. The Liens created by the Collateral Documents shall at any time not constitute a valid and perfected first priority Lien (subject to the Permitted Title Exceptions) on the Collateral intended to be covered thereby in favor of the Administrative Agent, free and clear of all other Liens (other than the Permitted Title Exceptions and Liens which are described in clauses (a) , (b), (c), (e) and (g) of the definition of "Permitted Liens" or which are described in clauses (a), (b), (c), (d) , (g) and (h) of Section 7.01 of this Agreement, and which (unless otherwise agreed to by the Administrative Agent) are in the case of Liens described in clause (e) of the definition of "Permitted Liens" and Section 7.01(g) of this Agreement subordinate to the Lien of the Deed of Trust encumbering the affected Borrowing Base Property) or, except for expiration in accordance with its terms or releases or terminations contemplated by this Agreement, any of the Collateral Documents shall for whatever reason be terminated or cease to be in full force and effect; or
(l) Change of Control. There occurs any Change of Control;
(m) Single Purpose Entity. The Borrower breaches its covenant under Section 6.05(c) ; or
8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and
(d) subject to Section 10.20 of this Agreement and Section 30 of the Credit Facility Guaranty, exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it, the Lenders and the L/C Issuer under the Loan Documents;
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provided , however , that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
8.03 Application of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02 ), any amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order:
First , to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III ) payable to the Administrative Agent in its capacity as such;
Second , if the Administrative Agent (or its subsidiary) acquires title to any Borrowing Base Property or is entitled to possession of any Borrowing Base Property during or after foreclosure pursuant to Section 9.10(f) , to the payment of operating expenses, the establishment of reasonable operating reserves, and to fund any capital improvement, leasing and other reserves for such Borrowing Base Property, in each case to the extent permitted by Applicable Law;
Third , to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer and amounts payable under Article III ), ratably among them in proportion to the respective amounts described in this clause Fourth payable to them;
Fourth , to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Third payable to them;
Fifth , to payment of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Fifth held by them;
Sixth , to the Administrative Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit; and
Last , the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Applicable Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Sixth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied in the order set forth above.
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ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authority. Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article (IX) (other than Section 9.06 , which inures to the benefit of the Borrower) are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions.
9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or Applicable Law; and
(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02 ) or (ii) in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
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occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
9.05 Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
9.06 Resignation of Administrative Agent. It is agreed by the Lenders that, subject to the terms of this Loan Agreement, the Administrative Agent will remain the Administrative Agent under this Agreement and the other Loan Documents throughout the term of the Loans; provided , however , that (a) the Administrative Agent may assign all its rights as the Administrative Agent to any Affiliate of Bank of America, and such Affiliate shall assume the obligations of Administrative Agent hereunder arising after the date of such assignment, and (b) subject to the appointment and acceptance of a successor Administrative Agent as provided below, the Administrative Agent may resign at any time by giving at least thirty (30) days' prior written notice thereof to the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Administrative Agent that shall be a Person that, provided that no Event of Default then exists, meets the qualifications of an Eligible Assignee with an office in the United States through which it will act as the servicer of the Loans; who is knowledgeable and experienced in servicing real estate secured syndicated commercial loans in the United States; and who holds (and agrees in writing for the benefit of the Borrower to maintain), for so long as it shall remain the Administrative Agent, and provided no Event of Default has occurred, minimum Commitments aggregating 10% of the Aggregate Commitments and who agrees to act as L/C Issuer and Swing Line Lender in accordance with the provisions of this Agreement and satisfied the requirements with respect thereto contained in this Section, and who agrees in writing for the benefit of the Borrower not to resign except in accordance with the provisions of this Loan Agreement (a " Qualified Servicer "). The determination of whether such successor Administrative Agent is knowledgeable and experienced in servicing real estate secured syndicated commercial loans in the United States shall be made in the sole but reasonable judgment of the Required Lenders. If such successor Administrative Agent is not a Qualified Servicer, as long as no Event of Default exists, the Borrower shall have the right to approve such successor Administrative
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Agent, such approval not to be unreasonably withheld, delayed or conditioned and which consent shall be deemed to have been given unless written notice of disapproval is delivered by the Borrower to the resigning Administrative Agent within five (5) Business Days after notice of such proposed successor Administrative Agent has been delivered to the Borrower. If, in the case of a resignation by the Administrative Agent, no successor Administrative Agent shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent's giving of notice of resignation (or if the Borrower shall have withheld its consent to such successor Administrative Agent, if such consent is required), then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, that shall be a Person that meets the requirements of Qualified Servicer. In such case, the determination of whether such successor Administrative Agent is knowledgeable and experienced in servicing real estate secured syndicated commercial loans in the United States shall be made in the sole but reasonable judgment of the Administrative Agent. If any successor Administrative Agent does not meet the requirements of a Qualified Servicer, the Borrower, as long as no Event of Default exists, shall have the right to approve such successor Administrative Agent, such approval not to be unreasonably withheld, delayed or conditioned and which consent shall be deemed to have been given unless, in the case of a resignation, written notice of disapproval is delivered by the Borrower to the resigning Administrative Agent within five (5) Business Days after notice of such proposed successor Administrative Agent has been delivered to the Borrower. Upon the acceptance of any 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, powers, privileges and duties of the retiring Administrative Agent, and such successor Administrative Agent shall assume all obligations of the Administrative Agent, Swing Line Lender and L/C Issuer hereunder arising after the date of such acceptance, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder as Administrative Agent, Swing Line Lender and L/C Issuer, including any obligation under Section 10.06(b)(i)(C) ; provided , however , that the retiring Administrative Agent shall not be discharged from any liabilities which existed prior to the effective date of such resignation. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After any retiring Administrative Agent's resignation hereunder as the Administrative Agent, the provisions of this Article IX shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a successor's appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.
9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties 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 Lender and the L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
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9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Bookrunners, Arrangers or Co-Syndication Agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.
9.09 Administrative Agent May File Proofs of Claim.
(a) No individual Lender or group of Lenders or L/C Issuer shall have any right to amend or waive, or consent to the departure of any party from any provision of any Loan Document, or secure or enforce the obligations of Borrower or any other party pursuant to the Loan Documents, or otherwise. All such rights, on behalf of Administrative Agent, L/C Issuer or any Lender or Lenders, shall be held and exercised solely by and at the option of Administrative Agent for the pro rata benefit of the Lenders. Such rights, however, are subject to the rights of L/C Issuer, a Lender or Lenders, as expressly set forth in this Agreement, to approve matters or direct Administrative Agent to take or refrain from taking action as set forth in this Agreement. Except as expressly otherwise provided in this Agreement or the other Loan Documents, Administrative Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights, or taking or refraining from taking any actions which Administrative Agent is expressly entitled to exercise or take under this Agreement and the other Loan Documents, including, without limitation, (i) the determination if and to what extent matters or items subject to Administrative Agent's satisfaction are acceptable or otherwise within its discretion, and (ii) the exercise of remedies pursuant to, but subject to, Article 8 or pursuant to any other Loan Document, and any action so taken or not taken shall be deemed consented to by Lenders.
(b) In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, no individual Lender or group of Lenders or L/C Issuer shall have the right, and the Administrative Agent (irrespective of whether the principal of the Loan or any L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be exclusively entitled and empowered on behalf of itself, L/C Issuer and the Lenders, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, any L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03, 2.09 and 10.04 ) allowed in such judicial proceeding; and
(ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 10.04 .
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Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender of the L/C Issuer except as approved by the Required Lenders or to authorize the Administrative Agent to vote in respect of the claims of the Lenders or the L/C Issuer except as approved by the Required Lenders in any such proceeding.
9.10 Defaults.
(a) Except with respect to (i) the nonpayment of principal, interest or any fees that are due and payable under any of the Loan Documents, (ii) Defaults with respect to which the Administrative Agent has actually sent written notice of to the Borrower, and (iii) material Defaults with respect to which the Administrative Agent is given written notice (or copied on such written notice) from a third party specifying such Default, the Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of a Default unless the Administrative Agent has received notice from a Lender or the Borrower specifying such Default and stating that such notice is a "Notice of Default". If the Administrative Agent has such knowledge or receives such a notice from the Borrower or a Lender in accordance with the immediately preceding sentence with respect to the occurrence of a material Default, the Administrative Agent shall give prompt notice thereof to the Lenders. Within ten (10) days of delivery of such notice of Default from the Administrative Agent to the Lenders (or such shorter period of time as the Administrative Agent determines is necessary), the Administrative Agent and the Lenders shall consult with each other to determine a proposed course of action. The Lenders agree that the Administrative Agent shall (subject to Section 9.10(g) ) take such action with respect to such Default as shall be directed by the Required Lenders, provided that, (A) unless and until the Administrative Agent shall have received such directions, the Administrative Agent may while a Event of Default exists (but shall not be obligated to) take such action, or refrain from taking such action, including decisions (1) to make protective advances that the Administrative Agent determines are necessary to protect or maintain the Borrowing Base Properties ( provided, however , that other than with respect to protective advances that are deemed necessary by the Administrative Agent to make payment for taxes or insurance charges, or to make other payments that are deemed necessary by the Administrative Agent to comply with Applicable Law or in connection with any life, health or safety issue, the Administrative Agent shall obtain the consent of the Required Lenders with respect to protective advances aggregating in excess of $2,000,000 in any year); and (2) to foreclose on any of the Borrowing Base Properties or exercise any other remedy, with respect to such Event of Default as it shall deem advisable in the interest of the Lenders, and (B) no actions approved by the Required Lenders shall violate the Loan Documents or Applicable Law. Each of the Lenders acknowledges and agrees that no individual Lender may separately enforce or exercise any of the provisions of any of the Loan Documents (including the Notes) other than through the Administrative Agent. The Administrative Agent shall advise the Lenders of all material actions which the Administrative Agent takes in accordance with the provisions of this Section 9.10(a) and shall continue to consult with the Lenders with respect to all of such actions. Notwithstanding the foregoing, if the Required Lenders shall at any time direct that a different or additional remedial action be taken from that already undertaken by the Administrative Agent, including the commencement of foreclosure proceedings, such different or additional remedial action shall be taken in lieu of or in addition to, the prosecution of such action taken by the Administrative Agent; provided that all actions already taken by the Administrative Agent pursuant to this Section 9.10(a) shall be valid and binding on each Lender. All money (other than money subject to the provisions of Section 9.10(f) ) received from any enforcement actions, including the proceeds of a foreclosure sale of the Borrowing Base Properties, shall be applied pursuant to Section 8.03 .
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(b) All losses with respect to interest (including interest at the Default Rate) and other sums payable pursuant to the Notes or incurred in connection with the Loans, the enforcement thereof or the realization of the security therefor, shall be borne by the Lenders in accordance with their respective Applicable Percentages of the Loan, and the Lenders shall promptly, upon request, remit to the Administrative Agent their respective Applicable Percentages of (i) any expenses incurred by the Administrative Agent in connection with any Default to the extent any expenses have not been paid by the Borrower, (ii) any advances made to pay taxes or insurance or otherwise to preserve the Lien of the Collateral Documents or to preserve and protect the Borrowing Base Properties, whether or not the amount necessary to be advanced for such purposes exceeds the amount of the Obligations, (iii) any other expenses incurred in connection with the enforcement of the Deeds of Trust or other Loan Documents, and (iv) any expenses incurred in connection with the consummation of the Loans not paid or provided for by the Borrower. To the extent any such advances are recovered in connection with the enforcement of the Deeds of Trust or the other Loan Documents, each Lender shall be paid its Applicable Percentage of such recovery after deduction of the expenses of the Administrative Agent and the Lenders.
(c) If, at the direction of the Required Lenders or otherwise as provided in Section 9.10(a) , any action(s) is brought to collect on the Notes or enforce the Collateral Documents or any other Loan Document, such action shall (to the extent permitted under applicable law and the decisions of the court in which such action is brought) be an action brought by the Administrative Agent and the Lenders, collectively, to collect on all or a portion of the Notes or enforce the Collateral Documents or any other Loan Document and counsel selected by the Administrative Agent shall prosecute any such action at the direction of the Administrative Agent on behalf of the Administrative Agent and the Lenders, and the Administrative Agent and the Lenders shall consult and cooperate with each other in the prosecution thereof. All decisions concerning the appointment of a receiver while such action is pending, the conduct of such receivership, the conduct of such action, the collection of any judgment entered in such action and the settlement of such action shall be made by the Administrative Agent. The costs and expenses of any such action shall be borne by the Lenders in accordance with each of their respective Applicable Percentages (without diminishing or releasing any obligation of the Borrower to pay for such costs).
(d) If, at the direction of the Required Lenders or otherwise as provided in Section 9.10(a) , any action(s) is brought to foreclose any Deed of Trust, such action shall (to the extent permitted under Applicable Law and the decisions of the court in which such action is brought) be an action brought by the Administrative Agent and the Lenders, collectively, to foreclose all or a portion of the Deed of Trust and collect on the Notes. Counsel selected by the Administrative Agent shall prosecute any such foreclosure at the direction of the Administrative Agent on behalf of the Administrative Agent and the Lenders and the Administrative Agent and the Lenders shall consult and cooperate with each other in the prosecution thereof. All decisions concerning the appointment of a receiver, the conduct of such foreclosure, the manner of taking and holding title to any such Borrowing Base Property (other than as set forth in clause (e) below), and the commencement and conduct of any deficiency judgment proceeding shall be made by the Administrative Agent (subject to the rights of the Required Lenders under Section 9.10(a) ), and all decisions concerning the acceptance of a deed in lieu of foreclosure and the bid on behalf of the Administrative Agent and the Lenders at the foreclosure sale of any Borrowing Base Property shall be made by the Administrative Agent with the approval of the Required Lenders. The costs and expenses of foreclosure will be borne by the Lenders in accordance with their respective Applicable Percentages.
(e) If title is acquired to any Borrowing Base Property after a foreclosure sale, nonjudicial foreclosure or by a deed in lieu of foreclosure, title shall be held by the Administrative Agent in
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its own name in trust for the Lenders or, at the Administrative Agent's election, in the name of a wholly owned subsidiary of the Administrative Agent on behalf of the Lenders.
(f) If the Administrative Agent (or its subsidiary) acquires title to any Borrowing Base Property or is entitled to possession of any Borrowing Base Property during or after the foreclosure, all material decisions with respect to the possession, ownership, development, construction, control, operation, leasing, management and sale of such Borrowing Base Property shall be made by the Administrative Agent. All income or other money received after so acquiring title to or taking possession of such Borrowing Base Property with respect to the Borrowing Base Property, including income from the operation and management of such Borrowing Base Property and the proceeds of a sale of such Borrowing Base Property, shall be applied, pursuant to Section 8.03 .
(g) Except for action expressly required of the Administrative Agent hereunder and under the other Loan Documents, the Administrative Agent shall in all cases be fully justified in failing or refusing to act hereunder and thereunder unless it shall receive further assurances to its satisfaction from the Lenders of their reimbursement and indemnification obligations under Section 10.04(c) against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action.
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc. Except as otherwise expressly provided in this Agreement or the other Loan Documents, this Agreement and the other Loan Documents may be Modified only by an instrument in writing signed by the Borrower and the Administrative Agent acting with the consent of the Required Lenders; provided that: (a) no Modification or waiver shall, unless by an instrument signed by all of the Lenders or by the Administrative Agent acting with the written consent of all of the Lenders: (i) extend the date fixed for the payment of principal of or interest on any Loan or any fee hereunder or under the Loan Documents, including, without limitation, any extension of the Maturity Date (other than pursuant to Section 2.14 ), (ii) reduce the amount of any such payment of principal, (iii) reduce the rate at which interest is payable thereon or any fee is payable hereunder, (iv) alter the rights or obligations of the Borrower to prepay Loans, (v) alter the manner in which payments or prepayments of principal, interest or other amounts hereunder shall be applied as between the Lenders or Types of Loans, (vi) alter the terms of this Section 10.01 , (vii) Modify the definition of the term "Required Lenders" or Modify in any other manner the number or percentage of the Lenders required to make any determinations or waive any rights hereunder or to Modify any provision hereof, (viii) alter the several nature of the Lenders' obligations hereunder, (ix) release the Borrower, any Collateral or any Guarantor or otherwise terminate any Lien under any Collateral Document providing for collateral security ( provided however , that no such consent shall be required, and the Administrative Agent is hereby authorized, in its sole discretion, to release or subordinate the Lien of the Collateral Documents in respect of any Permitted Lien described in clause (e) or (g) of the definition thereof; and provided further, however , that no such consent shall be required, and the Administrative Agent is hereby authorized, to release any Lien covering the Collateral under the Collateral Documents, and to release (or terminate the liability of) the Borrower under the Loan Documents, and to release a Credit Facility Guarantor under its Credit Facility Guaranty or the Collateral Documents executed by such Credit Facility Guarantor: (A) as expressly provided in the Loan Documents (including pursuant to Section 2.16(e) and Section 6.18(c) , and (B) upon payment of the Obligations in full in accordance with the terms of the Loan Documents, (x) agree to additional obligations being secured by the Collateral, or (xi) alter the relative priorities of the obligations entitled to the benefits of the Liens created under the Collateral Documents; (b) any Modification of Article IX , or of any of the rights or duties of the Administrative Agent hereunder, shall require the consent of the Administrative Agent and the all of
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the Lenders (and, in the case of Section 9.06 , the Borrower, which consent of the Borrower shall not be unreasonably withheld, delayed or conditioned); and (c) no Modification shall increase the Commitment of any Lender without the consent of such Lender. Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, the Administrative Agent is hereby authorized by the Lenders to enter into Modifications to the Loan Documents which are ministerial in nature, including the preparation, execution and Modification of Uniform Commercial Code forms, Assignments and Assumptions, Joinders, SNDA Agreements, Tenant Estoppel Agreements and Ground Lease Estoppel Agreements.
10.02 Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in clause (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i) if to the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line Lender, to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 10.02 ; and
(ii) if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications to the extent provided in clause (b) below, shall be effective as provided in such clause (b) ). The Borrower shall deliver all notices to the Administrative Agent, and shall have no obligation to provide notices to the Lenders directly.
(b) Electronic Communications. Notices and other communications to the Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it in writing, provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes and, with respect to the Borrower, to the extent such procedures have been approved in accordance with clause (b) above, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender's receipt of an acknowledgement from the intended recipient (such as by the "return receipt requested" function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at
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its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the " Agent Parties ") have any liability to the Borrower, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower's or the Administrative Agent's transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided , however , that in no event shall any Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.
(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
10.03 No Waiver; Cumulative Remedies. No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
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10.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses.
(i) The Borrower agrees to pay on demand or reimburse on demand to the applicable party all reasonable out-of-pocket costs and expenses of the Administrative Agent and the Arranger incurred on or prior to the Closing Date or otherwise in connection with the closing of this Agreement and the transactions contemplated hereby and by the Loan Documents (including customary post-closing follow-through), including, but not limited to, (1) the reasonable fees and expenses for Morrison & Foerster LLP, counsel to the Administrative Agent and its Affiliates, which legal fees shall be payable by the Borrower promptly upon the Borrower's receipt of a closing binder and legal invoices prepared by Morrison & Foerster LLP; (2) due diligence expenses, including title insurance reports and policies, surveys, title and lien searches and appraisals (including each Appraisal and any environmental reports); and (3) fees and expenses for the services of an insurance consultant, in connection with: the negotiation, preparation, execution and delivery of this Agreement and the other Loan Documents and initial funding of the Loans hereunder and the creation and perfection of the Liens to be created by the Collateral Documents. Notwithstanding the foregoing, the Borrower shall have the right to approve the cost of any Appraisal before such Appraisal is ordered, such approval not to be unreasonably withheld, provided that, if the Borrower does not so approve such cost, the Administrative Agent shall have no responsibility to order such Appraisal and, if such Appraisal is required as a condition to the extension of the Maturity Date pursuant to Section 2.14 or as a condition to the addition of a Borrowing Base Property pursuant to Section 2.16(a) , the such extension or addition (as applicable) shall be refused.
(ii) The Borrower also agrees to pay on demand or reimburse on demand to the applicable party all reasonable out-of-pocket costs and expenses of the Administrative Agent incurred after the Closing Date (including, but not limited to, the reasonable fees and expenses of legal counsel, but excluding any travel expenses incurred for travel by the personnel of the Administrative Agent (but not any of its consultants when engaged in services for which the Borrower is required to reimburse the Administrative Agent hereunder, with the understanding that the Administrative Agent shall use good faith efforts to attempt to engage qualified local consultants to provide such services) and also excluding the Administrative Agent's internal overhead) in connection with (A) the addition of any Property added as a Borrowing Base Property after the Closing Date pursuant to Section 2.16(a) ; (B) the negotiation or preparation of any amendment, modification, supplement or waiver of any of the terms of this Agreement or any of the other Loan Documents (whether or not consummated); (C) the protection and maintenance of the perfection and priority of the Liens created pursuant to the Collateral Documents; (D) any monitoring or evaluation of environmental conditions occurring at any Borrowing Base Property following the occurrence of (1) any event for which notice is required under Section 6.03 as it relates to any matter of Environmental Law, (2) any violation by the Borrower of any of its covenants contained in Section 6.06 or Section 6.17 as it relates to any matter of Environmental Law, or (3) any act or occurrence for which the Borrower is obligated to indemnify the Administrative Agent or any Lender pursuant to the terms set forth in the Environmental Indemnity Agreement; any review, inspection or evaluation undertaken by the Restoration Consultant; and the preparation of any reports or studies in connection with any of the foregoing; (E) any review of documents or requests, consideration for approval or disapproval or exercise of rights outside of the ordinary day-to-day administration of the Loans and the Loan Documents (excluding those incurred in connection with Lease reviews, requests for SNDA Agreements, releases of Collateral and/or payments or prepayments under the Loan Documents); and (F) any other act, condition, request, delivery or other item, if any other applicable provision
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of this Agreement or the other Loan Documents provides for the costs and expenses of the Administrative Agent in connection therewith to be paid by the Borrower and are not in violation of the limitations contained herein.
(iii) The Borrower also agrees to pay on demand or reimburse on demand to the applicable party all reasonable out-of-pocket costs and expenses of the Lenders and the Administrative Agent (including, but not limited to, the reasonable fees and expenses of legal counsel) in connection with (A) any Default and any enforcement or collection proceedings resulting therefrom, including all manner of participation in or other involvement with (1) bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation proceedings, (2) judicial or regulatory proceedings and (3) workout, restructuring or other negotiations or proceedings (whether or not the workout, restructuring or transaction contemplated thereby is consummated); and (B) the enforcement of this Section 10.04 .
(b) Indemnification by the Borrower. The Borrower hereby agrees to (i) protect and indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Affiliate of any of the foregoing Persons (each such Person being called an " Indemnitee ") from, and hold each of them harmless, from and against all damages, losses, claims, actions, liabilities (or actions, investigations or other proceedings commenced or threatened in respect thereof) penalties, fines, costs and expenses including reasonable attorneys' fees and expenses (collectively and severally, " Losses ") which may be imposed upon, asserted against or incurred or paid by any of them resulting from the claims of any third party relating to or arising out of (A) the Borrowing Base Properties, (B) this Agreement or any of the other Loan Documents or the transactions contemplated hereby and thereby, (C) any ERISA Events, (D) any Environmental Losses, and (E) any act performed or permitted to be performed by any Indemnitee under any of the Loan Documents, except for Losses to the extent determined by a court of competent jurisdiction to be caused by the gross negligence, bad faith or willful misconduct of an Indemnitee (but the effect of this exception only eliminates the liability of the Borrower with respect to the Indemnitee (and if such Indemnitee is not a Lender, the Lender on whose behalf such Indemnitee was acting) to the extent such Indemnitee has been adjudged to have so acted and not with respect to any other Indemnitee); and (ii) reimburse each Indemnitee on demand for any expenses (including the reasonable attorneys' fees and disbursements) reasonably incurred in connection with the investigation of, preparation for or defense of any actual or threatened claim, action or proceeding arising therefrom (excluding any action or proceeding where the Indemnitee is not a party to such action or proceeding out of which any such expenses arise unless such Indemnitee is required to participate or respond in connection with such action or proceeding ( e.g. , by way of deposition, discovery requests, testimony, subpoena or similar reason)). The Obligations shall not be considered to have been paid in full unless all obligations of the Borrower under this Section 10.04(b) shall have been fully performed (except for contingent indemnification obligations for which no claim has actually been made pursuant to this Agreement). This Section 10.04(b) shall survive repayment in full of the Obligations and, as to any Borrowing Base Property, the release of that Borrowing Base Property as Collateral in accordance with Section 2.16 or Section 10.01(a)(ix) , and in addition, shall survive the assignment, sale or other transfer of the Administrative Agent's or any Lender's interest hereunder.
(c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under clause (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Affiliate of any of the foregoing, or to the extent that any Guarantor for any reason fails to indefeasibly pay any amount required to be paid by such Guarantor to the Agent pursuant to Section 15 of each Guaranty, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer or such Affiliate, as the case may be, such Lender's Applicable Percentage (determined as of the
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time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such, or against any Affiliate of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders under this clause (c) are subject to the provisions of Section 2.12(d) .
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by Applicable Law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in clause (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.
(e) Payments. All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation of the Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
10.05 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
10.06 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of clause (b) of this Section, (ii) by way
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of participation in accordance with the provisions of clause (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in clause (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this clause (b) , participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the assigning Lender's Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in clause (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if "Trade Date" is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld, delayed or conditioned); provided , however , that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single assignee (or to an assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.
(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not apply to the Swing Line Lender's rights and obligations in respect of Swing Line Loans;
(iii) Required Consents. No consent shall be required for any assignment except to the extent required by clause (b)(i)(B) of this Section and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;
(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender;
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(C) the consent of the L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and
(D) the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment.
(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided , however , that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v) No Assignment to Borrower. No such assignment shall be made to the Borrower or any of the Borrower's Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment shall be made to a natural person.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01 , 3.04 , 3.05 , and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender, provided that the original Note or Notes in favor of the assigning Lender shall have been delivered to the Borrower, marked "cancelled," or that the assigning Lender shall have executed a commercially reasonable lost note affidavit and indemnity to the Borrower. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with clause (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the Administrative Agent's Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the " Register "). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the Borrower or any of the Borrower's Affiliates or Subsidiaries) (each, a " Participant ") in all or a portion of such Lender's rights and/or obligations under this Agreement (including all
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or a portion of its Commitment and/or the Loans (including such Lender's participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that affects such Participant. Subject to clause (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01 , 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.13 as though it were a Lender.
(e) Limitations upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower's prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution," "signed," "signature," and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
(h) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Commitment and Loans pursuant to clause (b) above and complies with the provisions of Section 9.06 with respect to the appointment of a successor Administrative Agent to act as L/C Issuer and Swing Line Lender, Bank of America may, (i) upon 30 days' notice to the Lenders and the Borrower, resign as L/C Issuer and/or (ii) upon 30 days' notice to the Lenders and the Borrower, resign as Swing Line Lender. If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations
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with respect thereto (including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c) ). If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender in accordance with Section 9.06 , (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates' respective partners, directors, officers, employees, agents, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by Applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower.
For purposes of this Section, " Information " means all non-public information received from the Borrower, the REIT, the Operating Partnership, or any of their respective Subsidiaries or Affiliates relating to the Borrower, the REIT, the Operating Partnership or any of their respective Affiliates or Subsidiaries or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary (and not known to have been disclosed in violation of any confidentiality obligation). Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the Information may include material non-public information concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with Applicable Law, including Federal and state securities laws.
10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to
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time, after obtaining the prior written consent of the Administrative Agent, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower or any other Loan Party against any and all of the obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender or the L/C Issuer different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by Applicable Law (the " Maximum Rate "). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by Applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01 , this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.
10.11 Brokers. The Borrower hereby represents to the Administrative Agent and each Lender that it has not dealt with any broker, underwriter, placement agent, or finder in connection with the transactions contemplated by this Agreement, except for Eastdil Secured. The Borrower hereby agrees that it shall pay any and all brokerage commissions or finders fees owing to Eastdil Secured in connection with the transactions contemplated by this Agreement and agrees and acknowledges that payment of all such brokerage commissions or finders fees shall be the Borrower's sole responsibility. The Borrower hereby agrees to protect and indemnify and hold the Administrative Agent and each Lender harmless from and against any and all claims, liabilities, costs and expenses of any kind in any way relating to or arising from a claim by Eastdil Secured and any Person that such Person acted on behalf of the Borrower in connection with the transactions contemplated by this Agreement.
10.12 Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto
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or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
10.13 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
10.14 Replacement of Lenders. If any Lender requests compensation under Section 3.04 , or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , if any Lender is a Defaulting Lender or if any other circumstance exists hereunder that gives the Borrower the right to replace a Lender as a party hereto (including pursuant to Section 3.06 ), then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06 (such consents not to be unreasonably withheld, conditioned or delayed), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender (without any further consent required), if a Lender accepts such assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent the assignment fee specified in Section 10.06(b) ;
(b) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05 ) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01 , such assignment will result in a reduction in such compensation or payments thereafter; and
(d) such assignment does not conflict with Applicable Laws.
A Lender shall not be required to make any such assignment or delegation if, within ten (10) Business Days after Borrower's request to replace such Lender, as a result of an unconditional waiver by such Lender or otherwise pursuant to arrangements reasonably satisfactory to the Borrower, the circumstances entitling the Borrower to require such assignment and delegation cease to apply; provided, however, the provisions of this paragraph shall not apply to any Lender who reasserts rights that have been previously waived or asserts a similar right to compensation in the future.
10.15 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.
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(b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA SITTING IN LOS ANGELES COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE CENTRAL DISTRICT OF CALIFORNIA, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH CALIFORNIA STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02 . NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.16 Waiver of Jury Trial; Judicial Reference.
(a) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
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(b) IN THE EVENT ANY LEGAL PROCEEDING IS FILED IN A COURT OF THE STATE OF CALIFORNIA (THE "COURT") BY OR AGAINST ANY PARTY IN CONNECTION WITH ANY CONTROVERSY, DISPUTE OR CLAIM DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) (EACH, A "CLAIM") AND THE WAIVER SET FORTH IN THE PRECEDING PARAGRAPH IS NOT ENFORCEABLE IN SUCH ACTION OR PROCEEDING, THE PARTIES HERETO AGREE AS FOLLOWS:
(1) WITH THE EXCEPTION OF THE MATTERS SPECIFIED IN CLAUSE 2 BELOW, ANY CLAIM WILL BE RESOLVED BY A GENERAL REFERENCE PROCEEDING IN ACCORDANCE WITH THE PROVISIONS OF CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 638 THROUGH 645.1.
(2) THE FOLLOWING MATTERS SHALL NOT BE SUBJECT TO A REFERENCE PROCEEDING: (A) NON-JUDICIAL FORECLOSURE OF ANY SECURITY INTERESTS IN REAL OR PERSONAL PROPERTY, (B) EXERCISE OF SELF-HELP REMEDIES (INCLUDING SET-OFF), (C) APPOINTMENT OF A RECEIVER AND (D) TEMPORARY, PROVISIONAL OR ANCILLARY REMEDIES (INCLUDING WRITS OF ATTACHMENT, WRITS OF POSSESSION, TEMPORARY RESTRAINING ORDERS OR PRELIMINARY INJUNCTIONS). THIS AGREEMENT DOES NOT LIMIT THE RIGHT OF ANY PARTY TO EXERCISE OR OPPOSE ANY OF THE RIGHTS AND REMEDIES DESCRIBED IN CLAUSES (A)(D) AND ANY SUCH EXERCISE OR OPPOSITION DOES NOT WAIVE THE RIGHT OF ANY PARTY TO A REFERENCE PROCEEDING PURSUANT TO THIS AGREEMENT.
(3) UPON THE WRITTEN REQUEST OF ANY PARTY, THE PARTIES SHALL SELECT A SINGLE REFEREE, WHO SHALL BE A RETIRED JUDGE OR JUSTICE. IF THE PARTIES DO NOT AGREE UPON A REFEREE WITHIN TEN DAYS OF SUCH WRITTEN REQUEST, THEN, ANY PARTY MAY REQUEST THE COURT TO APPOINT A REFEREE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 640(B). A REQUEST FOR APPOINTMENT OF A REFEREE MAY BE HEARD ON AN EX PARTE OR EXPEDITED BASIS, AND THE PARTIES AGREE THAT IRREPARABLE HARM WOULD RESULT IF EX PARTE RELIEF IS NOT GRANTED.
(4) ALL PROCEEDINGS AND HEARINGS CONDUCTED BEFORE THE REFEREE, EXCEPT FOR TRIAL, SHALL BE CONDUCTED WITHOUT A COURT REPORTER, EXCEPT WHEN ANY PARTY SO REQUESTS, A COURT REPORTER WILL BE USED AND THE REFEREE WILL BE PROVIDED A COURTESY COPY OF THE TRANSCRIPT. THE PARTY MAKING SUCH REQUEST SHALL HAVE THE OBLIGATION TO ARRANGE FOR AND PAY COSTS OF THE COURT REPORTER, PROVIDED THAT SUCH COSTS, ALONG WITH THE REFEREE'S FEES, SHALL ULTIMATELY BE BORNE BY THE PARTY WHO DOES NOT PREVAIL, AS DETERMINED BY THE REFEREE.
(5) THE REFEREE SHALL APPLY THE RULES OF DISCOVERY AND EVIDENCE APPLICABLE TO PROCEEDINGS AT LAW IN THE STATE OF CALIFORNIA TO THE REFERENCE PROCEEDING AND SHALL DETERMINE ALL ISSUES IN ACCORDANCE WITH APPLICABLE LAW. THE REFEREE SHALL BE EMPOWERED TO ENTER EQUITABLE AS WELL AS LEGAL RELIEF AND RULE ON ANY MOTION WHICH WOULD BE AUTHORIZED IN A TRIAL, INCLUDING MOTIONS FOR DEFAULT JUDGMENT OR SUMMARY JUDGMENT. THE REFEREE
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SHALL REPORT HIS DECISION, WHICH REPORT SHALL ALSO INCLUDE FINDINGS OF FACT AND CONCLUSIONS OF LAW.
10.17 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby, the Borrower and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates' understanding, that: (i) the credit facilities provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm's-length commercial transaction between the Borrower, each other Loan Party and their respective Affiliates, on the one hand, and the Administrative Agent and the Arranger, on the other hand, and the Borrower and each other Loan Party is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof); (ii) in connection with the process leading to such transaction, the Administrative Agent and the Arranger, and each other Lead Arranger each is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for the Borrower, any other Loan Party or any of their respective Affiliates, stockholders, creditors or employees or any other Person; (iii) neither the Administrative Agent nor the Arranger has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Borrower or any other Loan Party with respect to any of the transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether the Administrative Agent or the Arranger has advised or is currently advising the Borrower, any other Loan Party or any of their respective Affiliates on other matters) and neither the Administrative Agent nor the Arranger has any obligation to the Borrower, any other Loan Party or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; (iv) the Administrative Agent and the Arranger and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower, the other Loan Parties and their respective Affiliates, and neither the Administrative Agent nor the Arranger has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Administrative Agent and the Arranger have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and each of the Borrower and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. Each of the Borrower and the other Loan Parties hereby waives and releases, to the fullest extent permitted by law, any claims that it may have against the Administrative Agent and the Arranger with respect to any breach or alleged breach of agency or fiduciary duty with respect to the transactions contemplated by the Loan Documents.
10.18 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the " Act "), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the Act.
10.19 Time of the Essence. Time is of the essence of the Loan Documents.
10.20 Limitation Of Liability.
(a) During any period of time that the Borrower owns no Borrowing Base Properties, the Borrower shall be personally liable for amounts due under the Loan Documents. Notwithstanding the foregoing, no past, present or future partner or member in or manager of the Borrower, nor
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any owner of any direct or indirect Equity Interests in the Borrower, shall be personally liable for payments due hereunder or under any other Loan Document or for the performance of any obligation of the Borrower hereunder or thereunder, or breach of any representation or warranty made by the Borrower hereunder or thereunder.
(b) During any period of time that the Borrowing owns a Borrowing Base Property that is subject to a Lien in favor of the Administrative Agent pursuant to the Collateral Documents:
(i) The Administrative Agent, the Lenders, the Swing Line Lender and the L/C Issuer agree that, for repayment of the Loans and the payment and performance of the other Obligations or any claim based therein or otherwise in respect thereof, the Administrative Agent, the Lenders, the Swing Line Lender and the L/C Issuer shall look solely to the Collateral pledged under the Collateral Documents, and no other property or assets of the Borrower or of the Borrower's direct or indirect constituent partners, members or shareholders, or of the past, present or future partners, members, managers, directors, officers, agents or employees of the Borrower or of any such constituent partners, members or shareholders (collectively the "Exculpated Parties") shall be subject to levy, execution or other enforcement procedure for the satisfaction of remedies of the Administrative Agent, the Lenders, the Swing Line Lender or the L/C Issuer, or for the payment or performance of any Obligations or for any claim based thereon or in respect thereof, nor shall any claim be brought against the Exculpated Parties; provided, however, that notwithstanding the foregoing provisions of this clause (i), the Borrower acknowledges that the Borrower shall be personally (and on a full recourse basis) liable for and shall protect, indemnify and defend the Administrative Agent, the Lenders, the Swing Line Lender and the L/C Issuer from and against, and shall hold the Administrative Agent, the Lenders, the Swing Line Lender and the L/C Issuer harmless of, from and against (on a full recourse basis) any deficiency, liability, loss, damage, costs, and expenses (including legal fees and disbursements) suffered by the Administrative Agent, any Lender, the Swing Line Lender or the L/C Issuer and caused by, or related to or as a result of any of the following: (i) the commission of a criminal act by or on behalf of the Borrower; (ii) fraud, intentional misrepresentation or intentionally inaccurate certification made at any time in connection with the Loan Documents or the Loans by or on behalf of the Borrower; (iii) intentional misapplication or misappropriation of cash flow or other revenue derived from or in respect of the Borrowing Base Properties of the Borrower, including security deposits, Insurance Proceeds, Condemnation Awards, or any rental, sales or other income derived directly or indirectly from such Borrowing Base Properties, in violation of the Loan Documents by or on behalf of the Borrower; (iv) intentional or bad faith commission of waste to or of the Borrowing Base Properties of the Borrower or any portion thereof by or on behalf of the Borrower; and/or (v) any violation of Section 6.17 by the Borrower or resulting from a failure of the Borrower to perform under any Environmental Indemnity Agreement to which the Borrower is a party
(ii) Notwithstanding anything to the contrary contained in clause (i) above or in any other Loan Document, the Borrower shall be liable (on a full recourse basis) for the full amount of the Obligations if any obligation of the Borrower under any Loan Document, or any obligation of any Guarantor under any Guarantor Document, or any Lien on the Collateral securing such obligations of the Borrower or any Guarantor, is void as a fraudulent conveyance, fraudulent transfer, preferential transfer or the like under Applicable Law (including the California Uniform Fraudulent Transfer Act or Section 544, 547 or 548 of the United States Bankruptcy Code), and, in addition, the Borrower hereby absolutely, unconditionally and irrevocably assumes liability for, hereby guarantees payment to the Administrative Agent (on behalf of and for the benefit of the Lenders (including the Swing Line Lender) and the L/C Issuer), and agrees to pay, protect, indemnify, defend and save the
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Administrative Agent, the Lenders and the L/C Issuer harmless from and against (on a full recourse basis), any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorney's fees and expenses) causes of action, suits, claims, demands and judgments of any nature or description whatsoever (collectively, " Losses ") (including any such Losses resulting from any stay preventing or delaying the exercise of remedies by the Administrative Agent, any Lender or the L/C Issuer in connection with any proceeding seeking to declare the obligations described above void as a fraudulent conveyance, fraudulent transfer, preferential transfer or the like under Applicable Law (including the California Uniform Fraudulent Transfer Act or Section 544, 547 or 548 of the United States Bankruptcy Code)) which may at any time be imposed upon, incurred by or awarded against the Administrative Agent, any Lender or the L/C Issuer and caused by, or related to or resulting from any allegation or filing of any action, claim or motion by any Person alleging that any obligations of the Borrower under any Loan Document, or any obligations of any Guarantor under any Guarantor Document, or any Lien on the Collateral securing such obligations of the Borrower or any Guarantor, is void as a fraudulent conveyance, fraudulent transfer, preferential transfer or the like under Applicable Law (including the California Uniform Fraudulent Transfer Act or Section 544, 547 or 548 of the United States Bankruptcy Code).
(iii) Notwithstanding the foregoing clauses (i) and (ii), no past, present or future partner or member in, or manager of, the Borrower, nor any owner of any direct or indirect Equity Interests in the Borrower, shall be personally liable for payments due hereunder or under any of the other Loan Documents or for the performance of any obligation of the Borrower hereunder or thereunder, or breach of any representation or warranty made by the Borrower hereunder or thereunder.
(c) Nothing contained in this Section 10.20 shall impair the validity of the indebtedness, obligations or Liens arising under the Loan Documents. Notwithstanding anything to the contrary contained herein, the Administrative Agent may pursue any power of sale, bring any foreclosure action, any action for specific performance, or any other appropriate action or proceedings against Borrower or any other Person for the purpose of enabling the Administrative Agent and the Lenders to realize upon the collateral for the Loans (including, without limitation, any Rents and Net Proceeds to the extent provided for in the Loan Documents) or to obtain the appointment of a receiver.
(d) Notwithstanding anything to the contrary contained herein, the Credit Facility Guarantors and the Operating Partnership shall have personal liability on the terms contained in their respective Guaranty (to the extent provided therein).
10.21 Cooperation with Syndication. The Borrower acknowledges that the Arranger intends to syndicate a portion of the Commitments to one or more Lenders (the " Syndication ") and in connection therewith, the Borrower will take all actions as the Arranger may reasonably request to assist the Arranger in its Syndication effort. Without limiting the generality of the foregoing, the Borrower shall, and shall cause each Credit Facility Guarantor at the request of the Arranger (a) facilitate the review of the Loan and the Borrowing Base Properties by any prospective Lender; (b) assist the Arranger and otherwise cooperate with the Arranger in the preparation of information offering materials (which assistance may include reviewing and commenting on drafts of such information materials and drafting portions thereof); (c) deliver updated information on the Borrower, the other Loan Parties, the REIT, the Operating Partnership and the Borrowing Base Properties that is reasonably requested; (d) make representatives of any Loan Party available to meet with prospective Lenders at tours of the Borrowing Base Properties and bank meetings; (e) facilitate direct contact between the senior management and advisors of the Loan Parties, the Operating Partnership, the REIT and any prospective Lender; and (f) provide the Arranger with all information reasonably deemed necessary by it to complete the
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Syndication successfully. The Borrower agrees to take or cause to be taken such further action, in connection with documents and amendments to the Loan Documents, as may reasonably be required to effect such Syndication. The Borrower shall not be responsible for any costs or expenses incurred by the Administrative Agent, the Arranger, any Lender or any other Person in connection with such Syndication, other than Arranger's attorneys' fees incurred through the Closing Date.
10.22 Entire Agreement. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
10.23 Contribution Agreement and Reimbursement Agreement. The Administrative Agent, the L/C Issuer, the Swing Line Lender and the Lenders acknowledge and agree that (i) the Reimbursement Agreement and the Contribution Agreement are not Loan Documents and are not Collateral, (ii) the Reimbursement Agreement and the Contribution Agreement have not been assigned to the Administrative Agent, the L/C Issuer, the Swing Line Lender or any of the Lenders and the Administrative Agent, the L/C Issuer, the Swing Line Lender and the Lenders have no Lien on, or other right, title or interest in, the Reimbursement Agreement or the Contribution Agreement, or in the rights of any Person thereunder, (iii) the Reimbursement Agreement and Contribution Agreement have been entered into solely for the benefit of the parties thereto, and neither the Administrative Agent, nor the L/C Issuer, the Swing Line Lender or any of the Lenders is a third party beneficiary of the Reimbursement Agreement or the Contribution Agreement, or shall have any right to enforce the Reimbursement Agreement or the Contribution Agreement or the rights or claims of any party thereunder, (iv) neither the Administrative Agent, nor the L/C Issuer, the Swing Line Lender or any of the Lenders shall have any direct or indirect cause of action or claim in connection with the Reimbursement Agreement or the Contribution Agreement, and (v) neither the Administrative Agent, nor the L/C Issuer, the Swing Line Lender or any of the Lenders shall seek to foreclose on, or attach, levy or execute on, the Reimbursement Agreement or the Contribution Agreement, or the rights or claims of any party thereunder, in any foreclosure or other proceeding or to satisfy any judgment against any of the Loan Parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
DOUGLAS EMMETT 2006
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LLC,
a Delaware limited liability company |
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Douglas Emmett Management, Inc., a Delaware corporation,, its Manager |
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Name: | William Kamer | ||
Title: | Chief Financial Officer |
BANK OF AMERICA, N.A., as Administrative Agent | |||
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BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender | |||
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[OTHER LENDERS] |
Douglas Emmett Properties LP, a Delaware limited partnership, as the "Guarantor" of the "OP Guaranty" under the foregoing Credit Agreement, consents to the foregoing Credit Agreement, makes the representations set forth in Article V that apply to such OP Guarantor, and agrees to be bound by the covenants of Section 2.13 Articles VI , VII and X that apply to such OP Guarantor and reaffirms its obligations under its OP Guaranty, dated as of the date of the Credit Agreement. The provisions of this Consent of OP Guarantor are subject to the provisions of Section 10.20 of the Credit Agreement.
Dated as of , 2006.
DOUGLAS EMMETT PROPERTIES, LP. a Delaware limited partnership | |||
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Douglas Emmett Management, Inc., a Delaware corporation, its general partner |
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Name: | William Kamer | ||
Title: | Chief Financial Officer |
CONSENT OF CREDIT FACILITY GUARANTORS
Each of the undersigned, as "Credit Facility Guarantors" under the foregoing Credit Agreement, consents to the foregoing Credit Agreement, makes the representations set forth in Article V that apply to such Credit Facility Guarantor, and agrees to be bound by the covenants of Section 2.13 , Articles VI , VII and X that apply to such Credit Facility Guarantor and reaffirms its obligations under its Credit Facility Guaranty, dated as of the date of the Credit Agreement. The provisions of this Consent of Credit Facility Guarantors are subject to the provisions of Section 10.20 of the Credit Agreement and Section 30 of the Credit Facility Guaranty.
Dated as of , 2006.
[The signature pages follow.]
DOUGLAS EMMETT 1993, LLC
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a Delaware limited liability company |
DOUGLAS EMMETT 1995
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LLC,
a Delaware limited liability company |
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Douglas Emmett Management, Inc., a Delaware corporation, its Manager |
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Douglas Emmett Management, Inc., a Delaware corporation, its Manager |
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Name: | William Kamer | Name: | William Kamer | |||
Title: | Chief Financial Officer | Title: | Chief Financial Officer | |||
DOUGLAS EMMETT 1996 , LLC, a Delaware limited liability company |
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DOUGLAS EMMETT REALTY FUND 1997, a California Limited Partnership |
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Douglas Emmett Management, Inc., a Delaware corporation,, its Manager |
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Douglas Emmett Management, LLC., a Delaware limited liability company, its General Partner, |
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Douglas Emmett Management, |
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Inc., a Delaware corporation, | |||||
Name: | William Kamer | its Manager | ||||
Title: | Chief Financial Officer | |||||
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William Kamer |
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Title: | Chief Financial Officer | |||||
DOUGLAS EMMETT 1998 , LLC , a Delaware limited liability company |
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DOUGLAS EMMETT 2000, LLC, a Delaware limited liability company |
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Douglas Emmett Management, Inc., a Delaware corporation, its Manager |
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Douglas Emmett Management, Inc., a Delaware corporation, its Manager |
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Name: | William Kamer | Name: | William Kamer | |||
Title: | Chief Financial Officer | Title: | Chief Financial Officer |
Exhibit 10.52
Douglas Emmett 1993, LLC
MODIFICATION AGREEMENT
(Long Form)
This Modification Agreement (" Agreement ") is made as of , 2006, by and among Douglas Emmett 1993, LLC, a limited liability company organized under the laws of the State of Delaware (" Borrower "); BRENTWOOD PLAZA A CALIFORNIA LIMITED PARTNERSHIP, a limited partnership organized under the laws of the State of California " New Co-Borrower "); each of the lenders that is a signatory hereto identified under the caption "LENDERS" on the signature pages hereto (individually, a " Lender " and, collectively, the " Lenders "); and EUROHYPO AG, NEW YORK BRANCH, as agent for the Lenders (in such capacity, together with its successors in such capacity, the " Administrative Agent ").
Factual Background
A. Borrower, the Lenders and the Administrative Agent are parties to that certain Loan Agreement dated as of August 25, 2005 (said Loan Agreement, as Modified and in effect from time to time, being herein called the " Loan Agreement "; and except as otherwise herein expressly provided, all terms defined in the Loan Agreement are being used herein as defined therein), whereby the Lenders made Loans to Borrower.
B. The Loans are evidenced by, and repayable with interest thereon in accordance with certain Notes and secured by the Deeds of Trust encumbering the Projects referred to in the Loan Agreement which have not heretofore been released (the " Existing Projects ") and the other Security Documents.
C. Douglas Emmett Realty Advisors, a California corporation (" DERA ") guaranteed certain obligations of Borrower in accordance with a Borrower's Manager's Limited Indemnity and Guarantee dated August 25, 2005.
D. As of the date of this Agreement, and prior to giving effect to the modifications herein, the outstanding principal balance of the Loans is $170,000,000. In connection with the modifications provided for herein, upon the IPO Closing Time described below, the maximum outstanding principal balance of the Loans will be increased to $233,500,000, New Co-Borrower will assume liability, jointly and severally with Borrower, for the Loan, and New Co-Borrower will encumber an additional project owned by New Co-Borrower (the " New Project ") as additional security for the Loans, as modified hereby, and certain other modifications as described herein shall be made to the terms of the Loans.
E. Borrower has represented to the Agent and the Lenders that the "Formation Transactions" (as described in that certain Amendment No. 2 to Form S-11 filed on September 20, 2006 with the United States Securities and Exchange Commission(1)) (the " Original S-11 ") have been consummated. Those transactions include, among other things, an initial public offering (the " IPO ") of shares in Douglas Emmett, Inc., a Maryland corporation (the " REIT "), as part of a series of transactions that are intended to qualify as a Permitted Reorganization and a Permitted Public REIT Transfer. Pursuant to those transactions, Douglas Emmett Properties LP, a Delaware limited partnership (the " OP "), is the operating partnership and principal subsidiary of the REIT; each of the partners of Borrower's Member, through a merger with a directly or indirectly wholly-owned subsidiary of the OP, each pursuant to an Agreement and Plan of Merger (collectively, the " Borrower's Member's Constituent's Merger Agreements "), in which each of the partners of Borrower's Member are the surviving entities, and other contribution transactions involving the REIT or its subsidiaries, have become directly or indirectly wholly-owned Subsidiaries of the OP; Borrower's Manager, through a merger with a directly
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or indirectly wholly-owned subsidiary of the REIT pursuant to an Agreement and Plan of Merger (the " Borrower's Manager Merger Agreement "), in which Borrower's Manager is not the surviving entity, and other contribution transactions involving the REIT or its subsidiaries, has transferred its general partnership interest in each of the partners of Borrower's Member to Douglas Emmett Management, LLC, a Delaware limited liability company (" New General Partner "); Borrower's Manager has resigned as the non-member manager of Borrower and of any existing subsidiaries of Borrower or Borrower's Member that are limited liability companies, and Douglas Emmett Management, Inc., a Delaware corporation (" New Borrower's Manager "), a wholly-owned subsidiary of the REIT, has been appointed as the new non-member manager of Borrower and of any existing subsidiaries of Borrower or Borrower's Member that are limited liability companies; the interests of the member(s) or limited partner(s) in New Co-Borrower have been acquired, pursuant to a merger or acquisition agreement (" New Co-Borrower's Merger Agreement "), and other contribution transactions involving the REIT or its subsidiaries, by the OP; and the interest of the general partner in New Co-Borrower has been acquired, pursuant to New Co-Borrower's Merger Agreement, and other contribution and related transactions involving the REIT or its direct or indirect subsidiaries, by New General Partner; and the Property Management Agreement for each Existing Project or New Project with Douglas, Emmett and Company, a California corporation, has been terminated and new property management agreements for each Existing Project and New Project have been entered into with New General Partner. Borrower's Member's Constituent's Merger Agreements, Borrower's Manager Merger Agreement, New Co-Borrower's Merger Agreement and the other documents entered into in connection with the Formation Transactions are collectively referred to herein as the " Reorganization Documents ." The date and time as of which the proceeds of the IPO have been received by the REIT is sometimes referred to herein as the " IPO Closing Time ."
F. Borrower, New Co-Borrower, the Lenders and the Administrative Agent entered into that certain escrow delivery letter agreement, dated as of September , 2006 (the " Escrow Delivery Letter "), pursuant to which certain documents (including this Agreement) were deposited with counsel to the Administrative Agent in escrow, pending the IPO Closing Time and the satisfaction of certain conditions set forth in such Escrow Delivery Letter.
G. Borrower, New Co-Borrower, the Lenders and the Administrative Agent now wish to modify the Loan Agreement and other Loan Documents as set forth below.
Agreement
Therefore, Borrower, New Co-Borrower, the Lenders and the Administrative Agent agree effective upon the IPO Closing Time as follows:
1. Reaffirmation of Loan. Borrower reaffirms all of its obligations under the Loan Documents, and Borrower and New Co-Borrower acknowledge that they have no claims, offsets or defenses with respect to the payment of sums due under the Notes or any other Loan Document.
2. Joinder. Concurrently herewith Borrower and New Co-Borrower are executing and delivering the Joinder and Supplement Agreement attached hereto, to be effective as of the IPO Closing Time (the " New Co-Borrower Joinder and Supplement "). The New Co-Borrower Joinder and Supplement is a Loan Document. The Co-Borrower Projects referred to in the New Co-Borrower Joinder and Supplement are hereby added to the descriptions contained in Schedule 1A and Schedule 1B of the Loan Agreement. Each such Co-Borrower Project is a Project, as defined in the Loan Agreement. New Co-Borrower is a Borrower Party.
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3. Modification of Loan Documents. Effective upon the IPO Closing Time, the Loan Documents are hereby amended, and additional agreements are hereby made with respect to the Loans, as follows:
(a) Modified Loan Agreement and Loan Documents. All references to the Loan Agreement in the Loan Agreement or in any other Loan Documents shall mean the Loan Agreement as modified by this Modification Agreement, and as supplemented by the New Co-Borrower Joinder and Supplement executed by New Co-Borrower. In addition to the documents identified in the Loan Agreement, the Loan Documents shall include, without limitation, this Agreement and the documents delivered pursuant to Sections 2, 3 and 9(c) of the Escrow Delivery Letter.
(b) Modification to Allocated Loan Amounts, Appraisal Amounts and Title Insurance Amounts. Schedules 1.01(1), 1.01(3) and 1.01(9) , attached to the Loan Agreement are hereby amended and restated in their entireties by Amended and Restated Schedules 1.01(1), 1.01(3) and 1.01(9) attached to this Agreement. Such Amended and Restated Schedules 1.01(1), 1.01(3) and 1.01(9) set forth, respectively, revised Allocated Loan Amounts, Appraisal Amounts and Title Policy amounts for each Project.
(c) Modification to Proportionate Shares and Commitments of the Lenders. Schedule 1.01(4) attached to the Loan Agreement is hereby amended and restated in its entirety by Amended and Restated Schedule 1.01(4) attached to this Agreement. Such Amended and Restated Schedule 1.01(4) sets forth the revised Proportionate Shares and Commitments of the Lenders.
(d) Additional Definitions. The following additional definitions are hereby added to the Loan Agreement:
(i) " Additional Note A " shall mean those certain notes denominated "Additional Advance Note A" dated as of the date hereof, executed by Borrower and New Co-Borrower to the order of the Lender named therein, in the aggregate original principal amount of $36,182,336.19, as the same may be Modified from time to time.
(ii) " Additional Note B " shall mean those certain notes denominated "Additional Advance Note B" dated as of the date hereof, executed by Borrower and New Co-Borrower to the order of the Lender named therein, in the aggregate original principal amount of $23,699,430.19, as the same may be Modified from time to time.
(iii) " Additional Note C " shall mean those certain notes denominated "Additional Advance Note C" dated as of the date hereof, executed by Borrower and New Co-Borrower to the order of the Lender named therein, in the aggregate original principal amount of $3,618,233.62, as the same may be Modified from time to time.
(iv) Reserved.
(v) " Co-Borrower " shall mean the New Co-Borrower named in the Modification Agreement, subject to the New Co-Borrower Joinder and Supplement, until such time (if any) as a Qualified Successor Entity shall acquire all of the Co-Borrower Projects owned by such Person and assume the obligations of such Person under the Loan Documents and such Person shall be released from its obligations under the Loan Documents, in accordance with Section 9.03(a)(iii) of the Loan Agreement, at which time the applicable "Co-Borrower" shall be such Qualified Successor Entity.
(vi) " Co-Borrower Projects " shall mean the Project or Projects owned by New Co-Borrower that are described in the New Co-Borrower Joinder and Supplement attached to the Modification Agreement.
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(vii) " Modification Agreement " shall mean the Modification Agreement entered into by Borrower, New Co-Borrower, the Administrative Agent and the Lenders party thereto effective as of the IPO Closing Time.
(viii) Reserved.
(ix) " OP " means Douglas Emmett Properties, LP, a Delaware limited partnership. All references in the Loan Documents to the Operating Partnership shall mean the OP.
(x) " REIT " means Douglas Emmett, Inc., a Maryland corporation. All references in the Loan Documents to the Permitted Public REIT shall mean the REIT.
(e) Additional Definitions from Modification Agreement. The following terms which are defined in this Modification Agreement (and the definitions thereof set forth herein) are hereby added to the Loan Agreement:
(i) "Additional Advance"
(ii) "Additional Advance Notice"
(iii) Reserved.
(iv) Reserved.
(v) Reserved.
(vi) "IPO Closing Date Commitments"
(vii) "IPO Closing Date Advance"
(viii) "IPO Closing Date Commitment Percentage"
(ix) "IPO Closing Time"
(x) "Pre-IPO Outstanding Balance"
(xi) Reserved.
(xii) "New Co-Borrower"
(xiii) "New Co-Borrower Joinder and Supplement"
(xiv) "New Borrower's Manager"
(xv) "New General Partner"
(f) Amendments to Certain Definitions. The definitions of the following terms in the Loan Agreement are hereby amended and restated in their entireties as follows:
(i) Reserved.
(ii) Reserved.
(iii) " Douglas Emmett Realty Funds " shall mean Douglas Emmett Joint Venture, Douglas Emmett Realty Fund 1995, Douglas Emmett Realty Fund 1996, Douglas Emmett Realty Fund 1997, Douglas Emmett Realty Fund 1998, Douglas Emmett Realty Fund 2000, Douglas Emmett Realty Fund 2002 and Douglas Emmett Realty Fund 2005, each Co-Borrower, and their respective Subsidiaries.
(iv) " Note A " shall mean, collectively, (i) those certain notes denominated "Note A" dated concurrently with the original Loan Agreement (or notes denominated Note A dated September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution for certain of such notes in accordance with the Escrow Delivery
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Agreement), executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $96,866,096.86, as the same may be Modified from time to time, and (ii) each Additional Note A. Each Note A shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(v) " Note B " shall mean, collectively, (i) those certain notes denominated "Note B" dated concurrently with the original Loan Agreement (or notes denominated Note B dated September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution for certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $63,447,293.45, as the same may be Modified from time to time, and (ii) each Additional Note B. Each Note B shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(vi) " Note C " shall mean, collectively, (i) those certain notes denominated "Note C" dated concurrently with the original Loan Agreement (or notes denominated Note C dated September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution for certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $9,686,609.69, as the same may be Modified from time to time, and (ii) each Additional Note C. Each Note C shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(vii) " Qualified Successor Entity " shall mean a Permitted Public REIT Subsidiary of the REIT (other than the OP).
(viii) " Stated Maturity Date " means August 31, 2012, subject to Section 2.10.
(g) Modifications to certain References. The following references in the Loan Documents are hereby replaced as follows:
(i) Each reference in the Loan Documents to Douglas, Emmett & Company as the Property Manager is hereby replaced with a reference to Douglas Emmett Management, LLC, a Delaware limited liability company.
(ii) Each reference in the Loan Documents to DERA as Borrower's Manager is hereby replaced with a reference to Douglas Emmett Management, Inc., a Delaware corporation. Each reference to Borrower's Manager shall mean Douglas Emmett Management, Inc., a Delaware corporation, until such time as a new Borrower's Manager is appointed as permitted by the Loan Agreement. In the case of New Co-Borrower, each reference to Borrower's Manager shall mean and refer to New General Partner.
(iii) Each reference in the Loan Documents to DERA as the sole general partner of Borrower's Member is hereby replaced with a reference to Douglas Emmett Management, LLC, a Delaware limited liability company, and each reference to the general partner of Borrower's Member shall mean Douglas Emmett Management, LLC, a Delaware limited liability company, until such time as a new general partner of Borrower's Member is admitted as permitted by the Loan Agreement.
(iv) Each reference in the Loan Documents to DERA in its capacity as guarantor pursuant to the Guarantor Documents is hereby replaced with a reference to the OP. Each reference in the Loan Documents to "Borrower's Manager's Limited Indemnity and Guarantee" shall mean and refer to the Limited Indemnity and Guarantee delivered by the OP effective upon the IPO Closing Time.
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(v) For purposes of the following provisions of the Loan Agreement, the term "Borrower Party" shall include, without limitation, the OP: the definitions of "ERISA Affiliate," "ERISA Event," "Material Adverse Effect," and "Plan," and Sections 7.02, 7.06, 7.07, 7.30, 7.33, 8.03, 9.16 and 12.01(c) of the Loan Agreement.
(vi) The references to "Borrower Party" in Section 12.02(a) of the Loan Agreement are hereby replaced with "Bankruptcy Party."
(vii) The following Schedules attached to the Loan Agreement are hereby supplemented or amended and restated (as set forth below):
(A) Schedules 1.01(6) , 1.01(7) , 1.01(8) , 7.09 , and 8.11 are hereby supplemented with respect to the New Projects as set forth on Supplemental Schedules 1.01(6) , 1.01(7), 1.01(8) , 7.09 , and 8.11 attached hereto.
(B) Schedules 7.05 , 7.11 and 7.22 are hereby amended and restated as set forth in Amended and Restated Schedules 7.05 , 7.11 , and 7.22 attached hereto.
(viii) The "Primary Credit Facility" referred to in the Loan Agreement shall mean the primary revolving credit facility under which the Permitted REIT (directly or through its Operating Partnership or another Permitted REIT Subsidiary) obtains financing for its general purposes..
(ix) The reference to "Secured Capital" in the Loan Agreement is hereby revised to "Eastdil Secured Capital and affiliates."
(x) The parties acknowledge that the Stub Interest Period ended on (but did not include) September 1, 2005. Accordingly, Section 2.10 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
"Notwithstanding anything to the contrary contained in this Agreement, (i) the Outstanding Principal Amount under all Notes shall become automatically due and payable on September 1, 2010 if on or prior to such date the Borrower has not paid to the Administrative Agent in accordance with the Fee Letter for the benefit of the Lenders an extension fee equal to five (5) basis points (0.05%) times the Outstanding Principal Amount under all Notes as of September 1, 2010 or if on such date an Event of Default exists and (ii) the Outstanding Principal Amount under all Notes shall become automatically due and payable on September 1, 2011 if on such date the Borrower has not paid to the Administrative Agent in accordance with the Fee Letter for the benefit of the Lenders an extension fee equal to five (5) basis points (0.05%) times the Outstanding Principal Amount under all Notes as of September 1, 2011 or if on such date an Event of Default exists."
4. Modification to DSCR for Project Releases. Section 2.09(a)(v) of the Loan Agreement is hereby modified to replace "1.50-to-1.00" with "1.35-to-1.00."
5. Understandings Concerning Hedge Arrangements. Notwithstanding anything to the contrary set forth in the Loan Agreement or the other Loan Documents, the Aggregate Notional Amount as to which Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall apply shall be an amount equal to the outstanding principal balance of the Loans as of the date of this Agreement, without giving effect to any of the Additional Advances made pursuant to this Agreement, whether on or after the IPO Closing Time; provided, however, that in the event the Outstanding Principal Amount is reduced below such amount, the Aggregate Notional Amount as to which Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall apply shall not exceed the Outstanding Principal Amount. For purposes of Section 8.19 of the Loan Agreement only, the All-In Rate shall be determined pursuant to clause (i) of the first sentence of the definition of All-In Rate. In all other
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respects, Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall remain in full force and effect. Notwithstanding the foregoing, Borrower or the Other Swap Pledgor may transfer the Hedge Agreements to the OP or any Permitted REIT Subsidiary substantially concurrently with or following the IPO Closing Time so long as (i) the OP or such Permitted REIT Subsidiary assumes the obligations under the Hedge Agreements and indemnifies the Other Swap Pledgor party thereto from any obligations thereunder arising from and after such assumption (unless the Other Swap Pledgor is released by the Counterparty thereto from its obligations thereunder); (ii) the OP or such Permitted REIT Subsidiary assumes and ratifies all of the obligations of the Other Swap Pledgor under the Hedge Agreement Pledge and delivers such documents and takes such other steps as are deemed reasonably necessary by the Administrative Agent to preserve, protect and maintain, and to assure the first priority of, the security interests arising thereunder from and after such assumption; (iii) prior to such transfer, the Third Party Counterparty thereto confirms that such transfer is permitted and that any acknowledgment previously delivered to the Administrative Agent will remain in effect after such transfer; and (iv) all documentation relating to the foregoing is delivered to the Administrative Agent within ten (10) Business Days after such documentation is fully executed and delivered by the parties thereto.
6. Modification to DSCR for Restoration following Casualty. Section 10.03(c)(iv) of the Loan Agreement is hereby modified to replace "1:50[sic]:1.00" with "1.35-to-1.00."
7. Modifications to Cross-Default Provision relating to Guaranteed Line of Credit. Section 12.01(m) of the Loan Agreement shall not apply if the obligations under the applicable Guarantee thereof furnished by a Borrower or Co-Borrower or any Subsidiary of the Borrower or Co-Borrower in conformity with Section 9.04(h) of the Loan Agreement are secured, in compliance with Section 9.02(k) of the Loan Agreement, exclusively by Liens on one or more Excluded Projects, and the obligations under such Guarantee are non-recourse to the Borrower and Co-Borrower and their respective Subsidiaries (except for "carve-outs" for the Borrower's or Co-Borrower's or their respective Subsidiary's fraud, misrepresentation, misappropriation and other exceptions-from-non-recourse with respect to the acts of such Borrower, Co-Borrower or Subsidiary customary in the real estate finance industry). In addition, to the extent that Section 12.01(m) of the Loan Agreement does apply, it shall not be an Event of Default under the Loans unless and until the obligor under the Guaranteed Line of Credit has failed to cure an event of default under the Guaranteed Line of Credit following applicable notice and cure periods thereunder. References in Sections 9.02(k) and 9.04(h) of the Loan Agreement to the phrase "Borrower or its Subsidiaries" shall be replaced by "Borrower or any Co-Borrower or their respective Subsidiaries".
8. Effect of Consummation of IPO Transactions. It is agreed that the REIT is the Permitted Public REIT described in the Loan Agreement; the OP is the Operating Partnership described in the Loan Agreement; the transactions described in the Final S-11 include transactions which comprise the Permitted Reorganization and the Permitted Public REIT Transfer; and that Borrower shall have no further right, from and after the IPO Closing Time, to consummate any other Permitted Reorganization or Permitted Public REIT Transfer, except for transfers which are permitted under Section 9.03 of the Loan Agreement following a Permitted Public REIT Transfer, the changes to Borrower's Manager that are permitted under Section 14.31(a) of the Loan Agreement, the changes to its fiscal year permitted under Section 14.31(b) of the Loan Agreement, the dissolution of the Borrower's Member and its partners and changes in the Property Manager or management arrangements for the Projects that are permitted under Section 14.31(d) of the Loan Agreement (provided that it is understood for both of these purposes that all references therein to the Permitted Public REIT shall mean and refer to the REIT). Effective upon the IPO Closing Time, (i) the provisions of the Loan Agreement which permit transfers to or acquisitions of interests in Borrower by a Permitted Private REIT or a Permitted Private REIT Subsidiary shall be of no further force or effect;
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(ii) all references in the Loan Agreement to a "Permitted REIT" shall mean the REIT; and (iii) there shall be only one Permitted Public REIT, which shall be the REIT.
9. Participation by DERA or Named Principals Going Forward. It is understood and agreed that the references to the Named Principals in the following provisions of the Loan Documents shall be of no further force or effect: the definitions of "Immaterial Subsidiary," "Permitted Public REIT" and "Principals," and Sections 9.03(a)(iii), 9.03(b), 9.03(c), 9.04(e), 9.04(f), 9.04(g), 9.15 and 12.01(s).
10. Release of DERA and Douglas, Emmett & Company. The Administrative Agent and the Lenders hereby release (i) DERA from any and all obligations and liabilities under the Guarantor Documents arising from and after the IPO Closing Time and (ii) Douglas Emmett & Company from any and all obligations and liabilities under the Property Manager's Consents arising from and after the IPO Closing Time.
11. Reserved.
12. Reserved.
13. Ratification of Liens. Each of the Deeds of Trust and other Security Documents is modified to secure payment and performance of the Obligations of Borrower and New Co-Borrower under the Loan Documents as modified and supplemented pursuant to this Agreement, in addition to all other Obligations stated therein to be secured therein.
14. Additional Advances.
(a) The outstanding balance of the Loans immediately prior to the IPO Closing Time is $170,000,000 (the " Pre-IPO Outstanding Balance ").
(b) On the date on which the IPO Closing Time occurs, each Lender having an IPO Closing Date Commitment (as defined below) severally agrees to make an additional advance to Borrower (each such loan, an " IPO Closing Date Advance ") in an amount identified in Amended and Restated Schedule 1.01(4) as the " IPO Closing Date Commitment " of such Lender in accordance with the terms and conditions set forth in this Section 14 . The " IPO Closing Date Commitment Percentage " means, as to any Lender at any time, the percentage equivalent of such Lender's IPO Closing Date Commitment divided by the IPO Closing Date Commitments of all Lenders at such time.
(c) Reserved.
(d) Reserved.
(e) The IPO Closing Date Advances (collectively, " Additional Advances ") made by each Lender having an IPO Closing Date Commitment shall be evidenced by the Additional Note A, Additional Note B or Additional Note C, as applicable, delivered to such Lender. Once repaid or prepaid, Borrower may not reborrow any Additional Advance.
(f) Additional Advance Notice. Each Additional Advance shall be made upon the irrevocable written notice (including notice via facsimile confirmed immediately by a telephone call) of Borrower in the form of Exhibit A attached hereto (an " Additional Advance Notice ") as more fully provided below:
(i) Rate and Terms. Each Additional Advance shall be a Loan, and shall bear interest and otherwise be subject to the terms and conditions that apply to all other Loans.
(ii) Timing of Notice. Each Additional Advance Notice shall be submitted to and received by the Administrative Agent prior to 9:00 a.m. (New York time) (A) at least three (3) Business Days prior to the specified borrowing date, in the case of Eurodollar Loans; and (B) at least two (2) Business Days prior to the specified borrowing date, in the case of Base Rate Loans. Notwithstanding the foregoing, in the case of the Additional Advance Notice
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delivered in connection with the IPO Closing Date Advance, the time of day by which such notice shall be delivered shall be prior to 12:00 noon (California time).
(iii) Contents of Notice. Each Additional Advance Notice shall set forth the following information with respect to the Loan subject thereto:
(A) a single, specific borrowing date, which shall be a Business Day;
(B) a single, exact amount for the Loan, which for any Eurodollar Loan, shall be in an aggregate minimum principal amount of $1,000,000 or any multiple of $100,000 in excess thereof (or such lesser amount as shall then constitute the remaining amount of the IPO Closing Date Commitments);
(C) whether the Loan is to be made as a Eurodollar Loan or a Base Rate Loan; and
(D) if the Loan is to be made as a Eurodollar Loan, the applicable Interest Period. If an Additional Advance Notice shall fail to specify the applicable Interest Period for any Eurodollar Loan requested, such Loan will be made as a Eurodollar Loan with a one month Interest Period.
(g) Notice to Lenders. Upon receipt of an Additional Advance Notice conforming with the terms of this Section 14 , the Administrative Agent shall promptly notify each Lender thereof and of the amount of such Lender's IPO Closing Date Commitment Percentage of the Loan described therein.
(h) Funding of Commitments.
(i) Each Lender shall make the amount of its IPO Closing Date Commitment Percentage of the IPO Closing Date Advances available to the Administrative Agent for the account of Borrower on the date on which the IPO Closing Time occurs. In furtherance of the foregoing, provided that the Borrower shall have provided to the Administrative Agent prior to 9:00 A.M. New York time on the Business Day before the date on which the IPO Closing Time is scheduled to occur (the " Scheduled Closing Date "), unconditional authorization for closing and funding on the Scheduled Closing Date (including all such authorizations required pursuant to Section 10 of the Escrow Delivery Letter), the Administrative Agent shall provide telephonic or electronic notification thereof to the Lenders on the date the unconditional authorization is received, and each Lender shall initiate by 9:30 a.m. (New York time) the wire transfer of its respective IPO Closing Date Commitment Percentages of the IPO Closing Date Advances to the Administrative Agent for the account of Borrower on the Scheduled Closing Date in Dollars immediately available to the Administrative Agent, and shall otherwise use commercially reasonable efforts to make such funds available to the Administrative Agent for the account of Borrower on the Scheduled Closing Date, with the objective that the Administrative Agent shall have received such funds by such time as to be in a position to make such funds available to Borrower (provided all conditions to funding set forth herein and in the Escrow Delivery Letter have been satisfied) on or prior to 12:00 noon (New York time) on the Scheduled Closing Date, by wire transferring to such account or accounts as shall have been designated to it by Borrower the aggregate of the amounts made available to the Administrative Agent by the Lenders. The Borrower acknowledges that (except for the obligations of the Lenders to initiate wires as provided herein) no assurances have been made by the Lenders or the Administrative Agent that funds necessarily will be available to Borrower by any specific time. If the Borrower provides the above-referenced authorization to the Administrative Agent at least one (1) Business Day before the Scheduled Closing Date, and if for any reason the IPO Closing Time does not occur on the Scheduled Closing Date, the Administrative Agent shall return any funds received from any Lender to such Lender, and the Borrower shall be responsible for all costs and expenses that result from
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the fundings by the Lenders (including interest for the day in question, unless such funds are returned by the time on such day by which a payment would be required to be made pursuant to Section 4.01(a) of the Loan Agreement in order to avoid the accrual of interest for such day, and costs and expenses of the type referred to in Article V of the Loan Agreement). All amounts to be funded pursuant to this Section shall be funded in Dollars.
(ii) Reserved.
(i) Reserved.
(j) Reserved.
(k) Reserved.
15. Modifications of Certain Provisions of the Loan Agreement. The following provisions of the Loan Agreement are hereby modified as follows:
(a) The first sentence of Section 7.10 of the Loan Agreement is hereby deleted. The third sentence of Section 7.10 of the Loan Agreement is hereby replaced by the following: "The sole manager of Borrower is New Borrower's Manager. The sole general partner of Borrower's Member is New General Partner."
(b) The second sentence of Section 7.11 of the Loan Agreement is hereby replaced by the following: "Neither Borrower nor Borrower's Member has any Subsidiaries except for those shown on Schedule 7.11 ."
(c) The second sentence of Section 7.14 of the Loan Agreement is hereby replaced by the following: "The Borrower and the New Borrower's Manager were organized in the State of Delaware, and the Borrower's Member was organized in the State of California."
(d) In Section 7.22 of the Loan Agreement, the reference to "Douglas, Emmett & Company Delinquency/Aging Report (Summarized) dated 7/20/2005" is hereby replaced by "Douglas, Emmett & Company Delinquency/Aging Report (Summarized) dated , 2006".
(e) In Section 7.26 of the Loan Agreement, the reference to the Property Management Agreement shall be to the Property Management Agreement between Borrower or Co-Borrower and New General Partner in effect as of the IPO Closing Time.
(f) Sections 7.35 and 7.37 of the Loan Agreement are hereby deleted.
16. Certain Acknowledgments. Administrative Agent and the Lenders hereby acknowledge and agree as follows:
(a) The Formation Transactions and the other elements of the Permitted Reorganization (including, without limitation, modifications to the organizational documents of the Borrower Parties in effect as of the IPO Closing Time) are approved to the extent required by the Loan Documents.
(b) The transfer of Equity Interests in any existing Subsidiary of Borrower to Borrower's Member or any other Permitted Public REIT Subsidiary will not require the consent of the Administrative Agent or the Lenders. The transfer of Equity Interests in any existing Subsidiary of Borrower's Member (other than Borrower) to any other Permitted Public REIT Subsidiary will not require the consent of the Administrative Agent or the Lenders.
17. Incorporation. This Agreement shall form a part of each Loan Document, and all references in any Loan Document to a given Loan Document shall mean that document as hereby modified.
18. No Prejudice; Reservation of Rights. This Agreement shall not prejudice any rights or remedies of the Administrative Agent or the Lenders under the Loan Documents, as modified hereby.
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19. No Impairment. Except as specifically hereby amended, the Loan Documents shall each remain unaffected by this Agreement and all such documents shall remain in full force and effect. Nothing in this Agreement shall impair the Liens of the Deeds of Trust or other Security Documents. The Deeds of Trust as hereby amended shall remain deeds of trust with power of sale, creating first Liens encumbering each Project.
20. Integration. The Loan Documents, including this Agreement, the Escrow Delivery Letter and the documents delivered concurrently herewith pursuant to the Escrow Delivery Letter: (a) integrate all the terms and conditions mentioned in or incidental to the Loan Documents; (b) supersede all oral negotiations and prior and other writings with respect to their subject matter; and (c) are intended by the parties as the final expression of the agreement with respect to the terms and conditions set forth in those documents and as the complete and exclusive statement of the terms agreed to by the parties. If there is any conflict between the terms, conditions and provisions of this Agreement and those of any other agreement or instrument, including any of the other Loan Documents, the terms, conditions and provisions of this Agreement shall prevail.
21. Miscellaneous. This Agreement and any attached consents or exhibits requiring signatures may be executed in counterparts (and delivered via facsimile or through electronic delivery of a pdf file), and all such counterparts and documents delivered via facsimile or through electronic delivery of a pdf file shall constitute but one and the same document. If any court of competent jurisdiction determines any provision of this Agreement or any of the other Loan Documents to be invalid, illegal or unenforceable, that portion shall be deemed severed from the rest, which shall remain in full force and effect as though the invalid, illegal or unenforceable portion had never been a part of the Loan Documents. This Agreement shall be governed by the laws of the State of California, without regard to the choice of law rules of that State.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written.
BORROWER: | ||||||||
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DOUGLAS EMMETT 1993, LLC, a Delaware limited liability company |
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Douglas Emmett Management, Inc., a Delaware corporation, its Manager |
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William Kamer Chief Financial Officer |
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BRENTWOOD PLAZA A CALIFORNIA LIMITED PARTNERSHIP, a California limited partnership |
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DOUGLAS EMMETT MANAGEMENT, LLC, a Delaware limited liability company, its General Partner |
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DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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NOTE A-1 LENDER: |
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MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY |
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METROPOLITAN LIFE INSURANCE COMPANY, A NEW YORK CORPORATION |
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WACHOVIA BANK, NATIONAL ASSOCIATION |
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HYPO REAL ESTATE BANK INTERNATIONAL AG |
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EUROHYPO AG, NEW YORK BRANCH |
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Exhibit 10.53
Douglas Emmett 1995, LLC
MODIFICATION AGREEMENT
(Long Form)
This Modification Agreement (" Agreement ") is made as of , 2006, by and among Douglas Emmett 1995, LLC, a limited liability company organized under the laws of the State of Delaware (" Borrower "); each of the lenders that is a signatory hereto identified under the caption "LENDERS" on the signature pages hereto (individually, a " Lender " and, collectively, the " Lenders "); and EUROHYPO AG, NEW YORK BRANCH, as agent for the Lenders (in such capacity, together with its successors in such capacity, the " Administrative Agent ").
Factual Background
A. Borrower, the Lenders and the Administrative Agent are parties to that certain Loan Agreement dated as of August 25, 2005 (said Loan Agreement, as Modified and in effect from time to time, being herein called the " Loan Agreement "; and except as otherwise herein expressly provided, all terms defined in the Loan Agreement are being used herein as defined therein), whereby the Lenders made Loans to Borrower.
B. The Loans are evidenced by, and repayable with interest thereon in accordance with certain Notes and secured by the Deeds of Trust encumbering the Projects referred to in the Loan Agreement which have not heretofore been released (the " Existing Projects ") and the other Security Documents.
C. Douglas Emmett Realty Advisors, a California corporation (" DERA ") guaranteed certain obligations of Borrower in accordance with a Borrower's Manager's Limited Indemnity and Guarantee dated August 25, 2005.
D. As of the date of this Agreement, and prior to giving effect to the modifications herein, the outstanding principal balance of the Loans is $260,000,000. In connection with the modifications provided for herein, upon the IPO Closing Time described below, the maximum outstanding principal balance of the Loans will be increased to $319,600,000, and certain other modifications as described herein shall be made to the terms of the Loans.
E. Borrower has represented to the Agent and the Lenders that the "Formation Transactions" (as described in that certain Amendment No. 2 to Form S-11 filed on September 20, 2006 with the United States Securities and Exchange Commission(1)) (the " Original S-11 ") have been consummated. Those transactions include, among other things, an initial public offering (the " IPO ") of shares in Douglas Emmett, Inc., a Maryland corporation (the " REIT "), as part of a series of transactions that are intended to qualify as a Permitted Reorganization and a Permitted Public REIT Transfer. Pursuant to those transactions, Douglas Emmett Properties LP, a Delaware limited partnership (the " OP "), is the operating partnership and principal subsidiary of the REIT; Borrower's Member, through a merger with a directly or indirectly wholly-owned subsidiary of the OP pursuant to an Agreement and Plan of Merger (the " Borrower's Member Merger Agreement "), in which Borrower's Member is the surviving entity, and other contribution transactions involving the REIT or its subsidiaries, has become a directly or indirectly wholly-owned Subsidiary of the OP; Borrower's Manager, through a merger with a directly or indirectly wholly-owned subsidiary of the REIT pursuant to an Agreement and Plan of Merger (the " Borrower's Manager Merger Agreement "), in which Borrower's Manager is not the surviving entity, and other contribution transactions involving the REIT or its subsidiaries, has transferred its general partnership interest in Borrower's Member to Douglas Emmett Management, LLC, a Delaware limited liability company (" New General Partner "); Borrower's Manager has resigned as the non-member
1
manager of Borrower and of any existing subsidiaries of Borrower or Borrower's Member that are limited liability companies, and Douglas Emmett Management, Inc., a Delaware corporation (" New Borrower's Manager "), a wholly-owned subsidiary of the REIT, has been appointed as the new non-member manager of Borrower and of any existing subsidiaries of Borrower or Borrower's Member, and the Property Management Agreement for each Existing Project with Douglas, Emmett and Company, a California corporation, has been terminated and new property management agreements for each Existing Project have been entered into with New General Partner. Borrower's Member Merger Agreement, Borrower's Manager Merger Agreement and the other documents entered into in connection with the Formation Transactions are collectively referred to herein as the " Reorganization Documents ." The date and time as of which the proceeds of the IPO have been received by the REIT is sometimes referred to herein as the " IPO Closing Time ."
F. Borrower, the Lenders and the Administrative Agent entered into that certain escrow delivery letter agreement, dated as of September , 2006 (the " Escrow Delivery Letter "), pursuant to which certain documents (including this Agreement) were deposited with counsel to the Administrative Agent in escrow, pending the IPO Closing Time and the satisfaction of certain conditions set forth in such Escrow Delivery Letter.
G. Borrower, the Lenders and the Administrative Agent now wish to modify the Loan Agreement and other Loan Documents as set forth below.
Agreement
Therefore, Borrower, the Lenders and the Administrative Agent agree effective upon the IPO Closing Time as follows:
1. Reaffirmation of Loan. Borrower reaffirms all of its obligations under the Loan Documents, and Borrower acknowledges that it has no claims, offsets or defenses with respect to the payment of sums due under the Notes or any other Loan Document.
2. Reserved.
3. Modification of Loan Documents. Effective upon the IPO Closing Time, the Loan Documents are hereby amended, and additional agreements are hereby made with respect to the Loans, as follows:
(a) Modified Loan Agreement and Loan Documents. All references to the Loan Agreement in the Loan Agreement or in any other Loan Documents shall mean the Loan Agreement as modified by this Modification Agreement. In addition to the documents identified in the Loan Agreement, the Loan Documents shall include, without limitation, this Agreement and the documents delivered pursuant to Sections 2, 3 and 9(c) of the Escrow Delivery Letter.
(b) Modification to Allocated Loan Amounts, Appraisal Amounts and Title Insurance Amounts. Schedules 1.01(1), 1.01(3) and 1.01(9) , attached to the Loan Agreement are hereby amended and restated in their entireties by Amended and Restated Schedules 1.01(1), 1.01(3) and 1.01(9) attached to this Agreement. Such Amended and Restated Schedules 1.01(1), 1.01(3) and 1.01(9) set forth, respectively, revised Allocated Loan Amounts, Appraisal Amounts and Title Policy amounts for each Project.
(c) Modification to Proportionate Shares and Commitments of the Lenders. Schedule 1.01(4) attached to the Loan Agreement is hereby amended and restated in its entirety by Amended and
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Restated Schedule 1.01(4) attached to this Agreement. Such Amended and Restated Schedule 1.01(4) sets forth the revised Proportionate Shares and Commitments of the Lenders.
(d) Additional Definitions. The following additional definitions are hereby added to the Loan Agreement:
(i) " Additional Note A " shall mean those certain notes denominated "Additional Advance Note A" dated as of the date hereof, executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $33,960,113.96, as the same may be Modified from time to time.
(ii) " Additional Note B " shall mean those certain notes denominated "Additional Advance Note B" dated as of the date hereof, executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $22,243,874.65, as the same may be Modified from time to time.
(iii) " Additional Note C " shall mean those certain notes denominated "Additional Advance Note C" dated as of the date hereof, executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $3,396,011.39, as the same may be Modified from time to time.
(iv) Reserved .
(v) Reserved .
(vi) Reserved .
(vii) " Modification Agreement " shall mean the Modification Agreement entered into by Borrower, the Administrative Agent and the Lenders party thereto effective as of the IPO Closing Time.
(viii) Reserved .
(ix) " OP " means Douglas Emmett Properties, LP, a Delaware limited partnership. All references in the Loan Documents to the Operating Partnership shall mean the OP.
(x) " REIT " means Douglas Emmett, Inc., a Maryland corporation. All references in the Loan Documents to the Permitted Public REIT shall mean the REIT.
(e) Additional Definitions from Modification Agreement. The following terms which are defined in this Modification Agreement (and the definitions thereof set forth herein) are hereby added to the Loan Agreement:
(i) "Additional Advance"
(ii) "Additional Advance Notice"
(iii) Reserved.
(iv) Reserved.
(v) Reserved.
(vi) "IPO Closing Date Commitments"
(vii) "IPO Closing Date Advance"
(viii) "IPO Closing Date Commitment Percentage"
(ix) "IPO Closing Time"
(x) "Pre-IPO Outstanding Balance"
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(xi) Reserved.
(xii) Reserved.
(xiii) Reserved.
(xiv) "New Borrower's Manager"
(xv) "New General Partner"
(f) Amendments to Certain Definitions. The definitions of the following terms in the Loan Agreement are hereby amended and restated in their entireties as follows:
(i) Reserved.
(ii) Reserved.
(iii) " Douglas Emmett Realty Funds " shall mean Douglas Emmett Joint Venture, Douglas Emmett Realty Fund 1995, Douglas Emmett Realty Fund 1996, Douglas Emmett Realty Fund 1997, Douglas Emmett Realty Fund 1998, Douglas Emmett Realty Fund 2000, Douglas Emmett Realty Fund 2002 and Douglas Emmett Realty Fund 2005, each Co-Borrower, and their respective Subsidiaries.
(iv) " Note A " shall mean, collectively, (i) those certain notes denominated "Note A" dated concurrently with the original Loan Agreement (or notes denominated Note A dated September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution for certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $148,148,148.14, as the same may be Modified from time to time, and (ii) each Additional Note A. Each Note A shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(v) " Note B " shall mean, collectively, (i) those certain notes denominated "Note B" dated concurrently with the original Loan Agreement (or notes denominated Note B dated September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution for certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $97,037,037.04, as the same may be Modified from time to time, and (ii) each Additional Note B. Each Note B shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(vi) " Note C " shall mean, collectively, (i) those certain notes denominated "Note C" dated concurrently with the original Loan Agreement (or notes denominated Note C dated September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution for certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $14,814,814.82, as the same may be Modified from time to time, and (ii) each Additional Note C. Each Note C shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(vii) " Qualified Successor Entity " shall mean a Permitted Public REIT Subsidiary of the REIT (other than the OP).
(viii) " Stated Maturity Date " means August 31, 2012, subject to Section 2.10.
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(g) Modifications to certain References. The following references in the Loan Documents are hereby replaced as follows:
(i) Each reference in the Loan Documents to Douglas, Emmett & Company as the Property Manager is hereby replaced with a reference to Douglas Emmett Management, LLC, a Delaware limited liability company.
(ii) Each reference in the Loan Documents to DERA as Borrower's Manager is hereby replaced with a reference to Douglas Emmett Management, Inc., a Delaware corporation. Each reference to Borrower's Manager shall mean Douglas Emmett Management, Inc., a Delaware corporation, until such time as a new Borrower's Manager is appointed as permitted by the Loan Agreement.
(iii) Each reference in the Loan Documents to DERA as the sole general partner of Borrower's Member is hereby replaced with a reference to Douglas Emmett Management, LLC, a Delaware limited liability company, and each reference to the general partner of Borrower's Member shall mean Douglas Emmett Management, LLC, a Delaware limited liability company, until such time as a new general partner of Borrower's Member is admitted as permitted by the Loan Agreement.
(iv) Each reference in the Loan Documents to DERA in its capacity as guarantor pursuant to the Guarantor Documents is hereby replaced with a reference to the OP. Each reference in the Loan Documents to "Borrower's Manager's Limited Indemnity and Guarantee" shall mean and refer to the Limited Indemnity and Guarantee delivered by the OP effective upon the IPO Closing Time.
(v) For purposes of the following provisions of the Loan Agreement, the term "Borrower Party" shall include, without limitation, the OP: the definitions of "ERISA Affiliate," "ERISA Event," "Material Adverse Effect," and "Plan," and Sections 7.02, 7.06, 7.07, 7.30, 7.33, 8.03, 9.16 and 12.01(c) of the Loan Agreement.
(vi) The references to "Borrower Party" in Section 12.02(a) of the Loan Agreement are hereby replaced with "Bankruptcy Party."
(vii) The following Schedules attached to the Loan Agreement are hereby supplemented or amended and restated (as set forth below):
(A) Reserved.
(B) Schedules 7.05 , 7.11 and 7.22 are hereby amended and restated as set forth in Amended and Restated Schedules 7.05 , 7.11 , and 7.22 attached hereto.
(viii) The "Primary Credit Facility" referred to in the Loan Agreement shall mean the primary revolving credit facility under which the Permitted REIT (directly or through its Operating Partnership or another Permitted REIT Subsidiary) obtains financing for its general purposes.
(ix) The reference to "Secured Capital" in the Loan Agreement is hereby revised to "Eastdil Secured Capital and affiliates."
(x) The parties acknowledge that the Stub Interest Period ended on (but did not include) September 1, 2005. Accordingly, Section 2.10 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
"Notwithstanding anything to the contrary contained in this Agreement, (i) the Outstanding Principal Amount under all Notes shall become automatically due and payable on September 1, 2010 if on or prior to such date the Borrower has not paid to
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the Administrative Agent in accordance with the Fee Letter for the benefit of the Lenders an extension fee equal to five (5) basis points (0.05%) times the Outstanding Principal Amount under all Notes as of September 1, 2010 or if on such date an Event of Default exists and (ii) the Outstanding Principal Amount under all Notes shall become automatically due and payable on September 1, 2011 if on such date the Borrower has not paid to the Administrative Agent in accordance with the Fee Letter for the benefit of the Lenders an extension fee equal to five (5) basis points (0.05%) times the Outstanding Principal Amount under all Notes as of September 1, 2011 or if on such date an Event of Default exists."
4. Modification to DSCR for Project Releases . Section 2.09(a)(v) of the Loan Agreement is hereby modified to replace "1.50-to-1.00" with "1.35-to-1.00."
5. Understandings Concerning Hedge Arrangements . Notwithstanding anything to the contrary set forth in the Loan Agreement or the other Loan Documents, the Aggregate Notional Amount as to which Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall apply shall be an amount equal to the outstanding principal balance of the Loans as of the date of this Agreement, without giving effect to any of the Additional Advances made pursuant to this Agreement, whether on or after the IPO Closing Time; provided, however, that in the event the Outstanding Principal Amount is reduced below such amount, the Aggregate Notional Amount as to which Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall apply shall not exceed the Outstanding Principal Amount. For purposes of Section 8.19 of the Loan Agreement only, the All-In Rate shall be determined pursuant to clause (i) of the first sentence of the definition of All-In Rate. In all other respects, Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall remain in full force and effect. Notwithstanding the foregoing, Borrower or the Other Swap Pledgor may transfer the Hedge Agreements to the OP or any Permitted REIT Subsidiary substantially concurrently with or following the IPO Closing Time so long as (i) the OP or such Permitted REIT Subsidiary assumes the obligations under the Hedge Agreements and indemnifies the Other Swap Pledgor party thereto from any obligations thereunder arising from and after such assumption (unless the Other Swap Pledgor is released by the Counterparty thereto from its obligations thereunder); (ii) the OP or such Permitted REIT Subsidiary assumes and ratifies all of the obligations of the Other Swap Pledgor under the Hedge Agreement Pledge and delivers such documents and takes such other steps as are deemed reasonably necessary by the Administrative Agent to preserve, protect and maintain, and to assure the first priority of, the security interests arising thereunder from and after such assumption; (iii) prior to such transfer, the Third Party Counterparty thereto confirms that such transfer is permitted and that any acknowledgment previously delivered to the Administrative Agent will remain in effect after such transfer; and (iv) all documentation relating to the foregoing is delivered to the Administrative Agent within ten (10) Business Days after such documentation is fully executed and delivered by the parties thereto.
6. Modification to DSCR for Restoration following Casualty . Section 10.03(c)(iv) of the Loan Agreement is hereby modified to replace "1:50[sic]:1.00" with "1.35-to-1.00."
7. Modifications to Cross-Default Provision relating to Guaranteed Line of Credit . Section 12.01(m) of the Loan Agreement shall not apply if the obligations under the applicable Guarantee thereof furnished by a Borrower or any Subsidiary of the Borrower in conformity with Section 9.04(h) of the Loan Agreement are secured, in compliance with Section 9.02(k) of the Loan Agreement, exclusively by Liens on one or more Excluded Projects, and the obligations under such Guarantee are non-recourse to the Borrower and its Subsidiaries (except for "carve-outs" for the Borrower's or such Subsidiary's fraud, misrepresentation, misappropriation and other exceptions-from-non-recourse with respect to the acts of such Borrower or Subsidiary customary in the real estate finance industry). In addition, to the extent that Section 12.01(m) of the Loan Agreement does apply, it shall not be an Event of Default under the Loans unless and until the obligor under the Guaranteed Line of Credit has failed to cure
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an event of default under the Guaranteed Line of Credit following applicable notice and cure periods thereunder.
8. Effect of Consummation of IPO Transactions . It is agreed that the REIT is the Permitted Public REIT described in the Loan Agreement; the OP is the Operating Partnership described in the Loan Agreement; the transactions described in the Final S-11 include transactions which comprise the Permitted Reorganization and the Permitted Public REIT Transfer; and that Borrower shall have no further right, from and after the IPO Closing Time, to consummate any other Permitted Reorganization or Permitted Public REIT Transfer, except for transfers which are permitted under Section 9.03 of the Loan Agreement following a Permitted Public REIT Transfer, the changes to Borrower's Manager that are permitted under Section 14.31(a) of the Loan Agreement, the changes to its fiscal year permitted under Section 14.31(b) of the Loan Agreement, the dissolution of the Borrower's Member and changes in the Property Manager or management arrangements for the Projects that are permitted under Section 14.31(d) of the Loan Agreement (provided that it is understood for both of these purposes that all references therein to the Permitted Public REIT shall mean and refer to the REIT). Effective upon the IPO Closing Time, (i) the provisions of the Loan Agreement which permit transfers to or acquisitions of interests in Borrower by a Permitted Private REIT or a Permitted Private REIT Subsidiary shall be of no further force or effect; (ii) all references in the Loan Agreement to a "Permitted REIT" shall mean the REIT; and (iii) there shall be only one Permitted Public REIT, which shall be the REIT.
9. Participation by DERA or Named Principals Going Forward . It is understood and agreed that the references to the Named Principals in the following provisions of the Loan Documents shall be of no further force or effect: the definitions of "Immaterial Subsidiary," "Permitted Public REIT" and "Principals," and Sections 9.03(a)(iii), 9.03(b), 9.03(c), 9.04(e), 9.04(f), 9.04(g), 9.15 and 12.01(s).
10. Release of DERA and Douglas, Emmett & Company . The Administrative Agent and the Lenders hereby release (i) DERA from any and all obligations and liabilities under the Guarantor Documents arising from and after the IPO Closing Time and (ii) Douglas Emmett & Company from any and all obligations and liabilities under the Property Manager's Consents arising from and after the IPO Closing Time.
11. Reserved .
12. Reserved .
13. Ratification of Liens . Each of the Deeds of Trust and other Security Documents is modified to secure payment and performance of the Obligations of Borrower under the Loan Documents as modified and supplemented pursuant to this Agreement, in addition to all other Obligations stated therein to be secured therein.
14. Additional Advances .
(a) The outstanding balance of the Loans immediately prior to the IPO Closing Time is $260,000,000 (the " Pre-IPO Outstanding Balance ").
(b) On the date on which the IPO Closing Time occurs, each Lender having an IPO Closing Date Commitment (as defined below) severally agrees to make an additional advance to Borrower (each such loan, an " IPO Closing Date Advance ") in an amount identified in Amended and Restated Schedule 1.01(4) as the " IPO Closing Date Commitment " of such Lender in accordance with the terms and conditions set forth in this Section 14 . The " IPO Closing Date Commitment Percentage " means, as to any Lender at any time, the percentage equivalent of such Lender's IPO Closing Date Commitment divided by the IPO Closing Date Commitments of all Lenders at such time.
(c) Reserved.
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(d) Reserved.
(e) The IPO Closing Date Advances (collectively, " Additional Advances ") made by each Lender having an IPO Closing Date Commitment shall be evidenced by the Additional Note A, Additional Note B or Additional Note C, as applicable, delivered to such Lender. Once repaid or prepaid, Borrower may not reborrow any Additional Advance.
(f) Additional Advance Notice . Each Additional Advance shall be made upon the irrevocable written notice (including notice via facsimile confirmed immediately by a telephone call) of Borrower in the form of Exhibit A attached hereto (an " Additional Advance Notice ") as more fully provided below:
(i) Rate and Terms . Each Additional Advance shall be a Loan, and shall bear interest and otherwise be subject to the terms and conditions that apply to all other Loans.
(ii) Timing of Notice . Each Additional Advance Notice shall be submitted to and received by the Administrative Agent prior to 9:00 a.m. (New York time) (A) at least three (3) Business Days prior to the specified borrowing date, in the case of Eurodollar Loans; and (B) at least two (2) Business Days prior to the specified borrowing date, in the case of Base Rate Loans. Notwithstanding the foregoing, in the case of the Additional Advance Notice delivered in connection with the IPO Closing Date Advance, the time of day by which such notice shall be delivered shall be prior to 12:00 noon (California time).
(iii) Contents of Notice . Each Additional Advance Notice shall set forth the following information with respect to the Loan subject thereto:
(A) a single, specific borrowing date, which shall be a Business Day;
(B) a single, exact amount for the Loan, which for any Eurodollar Loan, shall be in an aggregate minimum principal amount of $1,000,000 or any multiple of $100,000 in excess thereof (or such lesser amount as shall then constitute the remaining amount of the IPO Closing Date Commitments);
(C) whether the Loan is to be made as a Eurodollar Loan or a Base Rate Loan; and
(D) if the Loan is to be made as a Eurodollar Loan, the applicable Interest Period. If an Additional Advance Notice shall fail to specify the applicable Interest Period for any Eurodollar Loan requested, such Loan will be made as a Eurodollar Loan with a one month Interest Period.
(g) Notice to Lenders . Upon receipt of an Additional Advance Notice conforming with the terms of this Section 14 , the Administrative Agent shall promptly notify each Lender thereof and of the amount of such Lender's IPO Closing Date Commitment Percentage of the Loan described therein.
(h) Funding of Commitments .
(i) Each Lender shall make the amount of its IPO Closing Date Commitment Percentage of the IPO Closing Date Advances available to the Administrative Agent for the account of Borrower on the date on which the IPO Closing Time occurs. In furtherance of the foregoing, provided that the Borrower shall have provided to the Administrative Agent prior to 9:00 A.M. New York time on the Business Day before the date on which the IPO Closing Time is scheduled to occur (the " Scheduled Closing Date "), unconditional authorization for closing and funding on the Scheduled Closing Date (including all such authorizations required pursuant to Section 10 of the Escrow Delivery Letter), the Administrative Agent shall provide telephonic or electronic notification thereof to the Lenders on the date the unconditional authorization is received, and each Lender shall initiate by 9:30 a.m. (New York time) the
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wire transfer of its respective IPO Closing Date Commitment Percentages of the IPO Closing Date Advances to the Administrative Agent for the account of Borrower on the Scheduled Closing Date in Dollars immediately available to the Administrative Agent, and shall otherwise use commercially reasonable efforts to make such funds available to the Administrative Agent for the account of Borrower on the Scheduled Closing Date, with the objective that the Administrative Agent shall have received such funds by such time as to be in a position to make such funds available to Borrower (provided all conditions to funding set forth herein and in the Escrow Delivery Letter have been satisfied) on or prior to 12:00 noon (New York time) on the Scheduled Closing Date, by wire transferring to such account or accounts as shall have been designated to it by Borrower the aggregate of the amounts made available to the Administrative Agent by the Lenders. The Borrower acknowledges that (except for the obligations of the Lenders to initiate wires as provided herein) no assurances have been made by the Lenders or the Administrative Agent that funds necessarily will be available to Borrower by any specific time. If the Borrower provides the above-referenced authorization to the Administrative Agent at least one (1) Business Day before the Scheduled Closing Date, and if for any reason the IPO Closing Time does not occur on the Scheduled Closing Date, the Administrative Agent shall return any funds received from any Lender to such Lender, and the Borrower shall be responsible for all costs and expenses that result from the fundings by the Lenders (including interest for the day in question, unless such funds are returned by the time on such day by which a payment would be required to be made pursuant to Section 4.01(a) of the Loan Agreement in order to avoid the accrual of interest for such day, and costs and expenses of the type referred to in Article V of the Loan Agreement). All amounts to be funded pursuant to this Section shall be funded in Dollars.
(ii) Reserved.
(i) Reserved.
(j) Reserved.
(k) Reserved.
15. Modifications of Certain Provisions of the Loan Agreement . The following provisions of the Loan Agreement are hereby modified as follows:
(a) The first sentence of Section 7.10 of the Loan Agreement is hereby deleted. The third sentence of Section 7.10 of the Loan Agreement is hereby replaced by the following: "The sole manager of Borrower is New Borrower's Manager. The sole general partner of Borrower's Member is New General Partner."
(b) The second sentence of Section 7.11 of the Loan Agreement is hereby replaced by the following: "Neither Borrower nor Borrower's Member has any Subsidiaries except for those shown on Schedule 7.11 ."
(c) The second sentence of Section 7.14 of the Loan Agreement is hereby replaced by the following: "The Borrower and the New Borrower's Manager were organized in the State of Delaware, and the Borrower's Member was organized in the State of California."
(d) In Section 7.22 of the Loan Agreement, the reference to "Douglas, Emmett & Company Delinquency/Aging Report (Summarized) dated 7/20/2005" is hereby replaced by "Douglas, Emmett & Company Delinquency/Aging Report (Summarized) dated , 2006".
(e) In Section 7.26 of the Loan Agreement, the reference to the Property Management Agreement shall be to the Property Management Agreement between Borrower [or Co-Borrower] and New General Partner in effect as of the IPO Closing Time.
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(f) Sections 7.35 and 7.37 of the Loan Agreement are hereby deleted.
16. Certain Acknowledgments . Administrative Agent and the Lenders hereby acknowledge and agree as follows:
(a) The Formation Transactions and the other elements of the Permitted Reorganization (including, without limitation, modifications to the organizational documents of the Borrower Parties in effect as of the IPO Closing Time) are approved to the extent required by the Loan Documents.
(b) The transfer of Equity Interests in any existing Subsidiary of Borrower to Borrower's Member or any other Permitted Public REIT Subsidiary will not require the consent of the Administrative Agent or the Lenders. The transfer of Equity Interests in any existing Subsidiary of Borrower's Member (other than Borrower) to any other Permitted Public REIT Subsidiary will not require the consent of the Administrative Agent or the Lenders.
17. Incorporation . This Agreement shall form a part of each Loan Document, and all references in any Loan Document to a given Loan Document shall mean that document as hereby modified.
18. No Prejudice; Reservation of Rights . This Agreement shall not prejudice any rights or remedies of the Administrative Agent or the Lenders under the Loan Documents, as modified hereby.
19. No Impairment . Except as specifically hereby amended, the Loan Documents shall each remain unaffected by this Agreement and all such documents shall remain in full force and effect. Nothing in this Agreement shall impair the Liens of the Deeds of Trust or other Security Documents. The Deeds of Trust as hereby amended shall remain deeds of trust with power of sale, creating first Liens encumbering each Project.
20. Integration . The Loan Documents, including this Agreement, the Escrow Delivery Letter and the documents delivered concurrently herewith pursuant to the Escrow Delivery Letter: (a) integrate all the terms and conditions mentioned in or incidental to the Loan Documents; (b) supersede all oral negotiations and prior and other writings with respect to their subject matter; and (c) are intended by the parties as the final expression of the agreement with respect to the terms and conditions set forth in those documents and as the complete and exclusive statement of the terms agreed to by the parties. If there is any conflict between the terms, conditions and provisions of this Agreement and those of any other agreement or instrument, including any of the other Loan Documents, the terms, conditions and provisions of this Agreement shall prevail.
21. Miscellaneous . This Agreement and any attached consents or exhibits requiring signatures may be executed in counterparts (and delivered via facsimile or through electronic delivery of a pdf file), and all such counterparts and documents delivered via facsimile or through electronic delivery of a pdf file shall constitute but one and the same document. If any court of competent jurisdiction determines any provision of this Agreement or any of the other Loan Documents to be invalid, illegal or unenforceable, that portion shall be deemed severed from the rest, which shall remain in full force and effect as though the invalid, illegal or unenforceable portion had never been a part of the Loan Documents. This Agreement shall be governed by the laws of the State of California, without regard to the choice of law rules of that State.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written.
BORROWER: | |||
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DOUGLAS EMMETT 1995, LLC, a Delaware limited liability company |
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By: |
Douglas Emmett Management, Inc., a Delaware corporation, its Manager |
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By: |
William Kamer Chief Financial Officer |
LENDERS | ||
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NOTE A-1 LENDER: |
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MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY |
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By: |
Babson Capital Management Inc. |
Its: | Authorized Agent | |
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By: |
Name: Title: |
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NOTE A-2 LENDER: |
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METROPOLITAN LIFE INSURANCE COMPANY, A NEW YORK CORPORATION |
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By: |
Name: Title: |
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NOTE A-3 LENDER: |
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WACHOVIA BANK, NATIONAL ASSOCIATION |
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By: |
Name: Title: |
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NOTE A-4 LENDER: |
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HYPO REAL ESTATE BANK INTERNATIONAL AG |
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By: |
Name: Title: |
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NOTE B-1 LENDER, NOTE B-2A LENDER, NOTE B-9B LENDER AND NOTE B-10B LENDER: |
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EUROHYPO AG, NEW YORK BRANCH |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-2B LENDER: |
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BAYERISCHE LANDESBANK, NEW YORK BRANCH |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-3 LENDER: |
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HYPOTHEKENBANK IN ESSEN AG |
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By: |
Name: Title: |
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NOTE B-4 LENDER: |
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LANDESBANK BADEN-WÜRTTEMBERG, NEW YORK BRANCH |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-5 LENDER: |
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LANDESBANK HESSEN-THÜRINGEN GIROZENTRALE |
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By: |
Name: Title: |
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NOTE B-6 LENDER: |
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LANDESBANK SACHSEN GIROZENTRALE |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-7 LENDER: |
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LRP LANDESBANK RHEINLAND-PFALZ |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-8 LENDER: |
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MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY |
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By: |
Babson Capital Management Inc. |
Its: | Authorized Agent | |
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By: |
Name: Title: |
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NOTE B-9A LENDER: |
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PB CAPITAL CORPORATION |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-10A LENDER: |
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PB (USA) REALTY CORPORATION |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-11 LENDER: |
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PNC BANK, NATIONAL ASSOCIATION |
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By: |
Name: Title: |
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NOTE C-1 LENDER: |
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BARCLAYS CAPITAL REAL ESTATE INC. |
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By: |
Name: Title: |
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NOTE C-2 LENDER: |
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EUROHYPO AG, NEW YORK BRANCH |
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By: |
Name: Title: |
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By: |
Name: Title: |
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ADMINISTRATIVE AGENT: |
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EUROHYPO AG, NEW YORK BRANCH, as Administrative Agent |
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By: |
Name: Title: |
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Name: Title: |
Exhibit 10.54
Douglas Emmett 1996, LLC
MODIFICATION AGREEMENT
(Long Form)
This Modification Agreement (" Agreement ") is made as of , 2006, by and among Douglas Emmett 1996, LLC, a limited liability company organized under the laws of the State of Delaware (" Borrower "); each of the lenders that is a signatory hereto identified under the caption "LENDERS" on the signature pages hereto (individually, a " Lender " and, collectively, the " Lenders "); and EUROHYPO AG, NEW YORK BRANCH, as agent for the Lenders (in such capacity, together with its successors in such capacity, the " Administrative Agent ").
Factual Background
A. Borrower, the Lenders and the Administrative Agent are parties to that certain Loan Agreement dated as of August 25, 2005 (said Loan Agreement, as Modified and in effect from time to time, being herein called the " Loan Agreement "; and except as otherwise herein expressly provided, all terms defined in the Loan Agreement are being used herein as defined therein), whereby the Lenders made Loans to Borrower.
B. The Loans are evidenced by, and repayable with interest thereon in accordance with certain Notes and secured by the Deeds of Trust encumbering the Projects referred to in the Loan Agreement which have not heretofore been released (the " Existing Projects ") and the other Security Documents.
C. Douglas Emmett Realty Advisors, a California corporation (" DERA ") guaranteed certain obligations of Borrower in accordance with a Borrower's Manager's Limited Indemnity and Guarantee dated August 25, 2005.
D. As of the date of this Agreement, and prior to giving effect to the modifications herein, the outstanding principal balance of the Loans is $215,000,000. In connection with the modifications provided for herein, upon the IPO Closing Time described below, the maximum outstanding principal balance of the Loans will be increased to $270,800,000, and certain other modifications as described herein shall be made to the terms of the Loans.
E. Borrower has represented to the Agent and the Lenders that the "Formation Transactions" (as described in that certain Amendment No. 2 to Form S-11 filed on September 20, 2006 with the United States Securities and Exchange Commission(1)) (the " Original S-11 ") have been consummated. Those transactions include, among other things, an initial public offering (the " IPO ") of shares in Douglas Emmett, Inc., a Maryland corporation (the " REIT "), as part of a series of transactions that are intended to qualify as a Permitted Reorganization and a Permitted Public REIT Transfer. Pursuant to those transactions, Douglas Emmett Properties LP, a Delaware limited partnership (the " OP "), is the operating partnership and principal subsidiary of the REIT; Borrower's Member, through a merger with a directly or indirectly wholly-owned subsidiary of the OP pursuant to an Agreement and Plan of Merger (the " Borrower's Member Merger Agreement "), in which Borrower's Member is the surviving entity, and other contribution transactions involving the REIT or its subsidiaries, has become a directly or indirectly wholly-owned Subsidiary of the OP; Borrower's Manager, through a merger with a directly or indirectly wholly-owned subsidiary of the REIT pursuant to an Agreement and Plan of Merger (the " Borrower's Manager Merger Agreement "), in which Borrower's Manager is not the surviving entity, and other contribution transactions involving the REIT or its subsidiaries, has transferred its general partnership interest in Borrower's Member to Douglas Emmett Management, LLC, a Delaware limited
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liability company (" New General Partner "); Borrower's Manager has resigned as the non-member manager of Borrower and of any existing subsidiaries of Borrower or Borrower's Member that are limited liability companies, and Douglas Emmett Management, Inc., a Delaware corporation (" New Borrower's Manager "), a wholly-owned subsidiary of the REIT, has been appointed as the new non-member manager of Borrower and of any existing subsidiaries of Borrower or Borrower's Member that are limited liability companies; and the Property Management Agreement for each Existing Project with Douglas, Emmett and Company, a California corporation, has been terminated and new property management agreements for each Existing Project have been entered into with New General Partner. Borrower's Member Merger Agreement, Borrower's Manager Merger Agreement and the other documents entered into in connection with the Formation Transactions are collectively referred to herein as the " Reorganization Documents ." The date and time as of which the proceeds of the IPO have been received by the REIT is sometimes referred to herein as the " IPO Closing Time ."
F. Borrower, the Lenders and the Administrative Agent entered into that certain escrow delivery letter agreement, dated as of September , 2006 (the " Escrow Delivery Letter "), pursuant to which certain documents (including this Agreement) were deposited with counsel to the Administrative Agent in escrow, pending the IPO Closing Time and the satisfaction of certain conditions set forth in such Escrow Delivery Letter.
G. Borrower, the Lenders and the Administrative Agent now wish to modify the Loan Agreement and other Loan Documents as set forth below.
Agreement
Therefore, Borrower, the Lenders and the Administrative Agent agree effective upon the IPO Closing Time as follows:
1. Reaffirmation of Loan. Borrower reaffirms all of its obligations under the Loan Documents, and Borrower acknowledges that it has no claims, offsets or defenses with respect to the payment of sums due under the Notes or any other Loan Document.
2. Reserved.
3. Modification of Loan Documents. Effective upon the IPO Closing Time, the Loan Documents are hereby amended, and additional agreements are hereby made with respect to the Loans, as follows:
(a) Modified Loan Agreement and Loan Documents. All references to the Loan Agreement in the Loan Agreement or in any other Loan Documents shall mean the Loan Agreement as modified by this Modification Agreement. In addition to the documents identified in the Loan Agreement, the Loan Documents shall include, without limitation, this Agreement and the documents delivered pursuant to Sections 2, 3 and 9(c) of the Escrow Delivery Letter.
(b) Modification to Allocated Loan Amounts, Appraisal Amounts and Title Insurance Amounts. Schedules 1.01(1), 1.01(3) and 1.01(9) , attached to the Loan Agreement are hereby amended and restated in their entireties by Amended and Restated Schedules 1.01(1), 1.01(3) and 1.01(9) attached to this Agreement. Such Amended and Restated Schedules 1.01(1), 1.01(3) and 1.01(9) set forth, respectively, revised Allocated Loan Amounts, Appraisal Amounts and Title Policy amounts for each Project.
(c) Modification to Proportionate Shares and Commitments of the Lenders. Schedule 1.01(4) attached to the Loan Agreement is hereby amended and restated in its entirety by Amended and Restated Schedule 1.01(4) attached to this Agreement. Such Amended and Restated Schedule 1.01(4) sets forth the revised Proportionate Shares and Commitments of the Lenders.
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(d) Additional Definitions. The following additional definitions are hereby added to the Loan Agreement:
(i) " Additional Note A " shall mean those certain notes denominated "Additional Advance Note A" dated as of the date hereof, executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $31,794,871.79, as the same may be Modified from time to time.
(ii) " Additional Note B " shall mean those certain notes denominated "Additional Advance Note B" dated as of the date hereof, executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $20,825,641.03, as the same may be Modified from time to time.
(iii) " Additional Note C " shall mean those certain notes denominated "Additional Advance Note C" dated as of the date hereof, executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $3,179,487.18, as the same may be Modified from time to time.
(iv) Reserved .
(v) Reserved .
(vi) Reserved .
(vii) " Modification Agreement " shall mean the Modification Agreement entered into by Borrower, the Administrative Agent and the Lenders party thereto effective as of the IPO Closing Time.
(viii) Reserved .
(ix) " OP " means Douglas Emmett Properties, LP, a Delaware limited partnership. All references in the Loan Documents to the Operating Partnership shall mean the OP.
(x) " REIT " means Douglas Emmett, Inc., a Maryland corporation. All references in the Loan Documents to the Permitted Public REIT shall mean the REIT.
(e) Additional Definitions from Modification Agreement. The following terms which are defined in this Modification Agreement (and the definitions thereof set forth herein) are hereby added to the Loan Agreement:
(i) "Additional Advance"
(ii) "Additional Advance Notice"
(iii) Reserved
(iv) Reserved
(v) Reserved
(vi) "IPO Closing Date Commitments"
(vii) "IPO Closing Date Advance"
(viii) "IPO Closing Date Commitment Percentage"
(ix) "IPO Closing Time"
(x) "Pre-IPO Outstanding Balance"
(xi) Reserved.
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(xii) Reserved.
(xiii) Reserved.
(xiv) "New Borrower's Manager"
(xv) "New General Partner"
(f) Amendments to Certain Definitions. The definitions of the following terms in the Loan Agreement are hereby amended and restated in their entireties as follows:
(i) Reserved.
(ii) Reserved.
(iii) " Douglas Emmett Realty Funds " shall mean Douglas Emmett Joint Venture, Douglas Emmett Realty Fund 1995, Douglas Emmett Realty Fund 1996, Douglas Emmett Realty Fund 1997, Douglas Emmett Realty Fund 1998, Douglas Emmett Realty Fund 2000, Douglas Emmett Realty Fund 2002 and Douglas Emmett Realty Fund 2005, each Co-Borrower, and their respective Subsidiaries.
(iv) " Note A " shall mean, collectively, (i) those certain notes denominated "Note A" dated concurrently with the original Loan Agreement (or notes denominated Note A dated September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution for certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $122,507,122.51, as the same may be Modified from time to time, and (ii) each Additional Note A. Each Note A shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(v) " Note B " shall mean, collectively, (i) those certain notes denominated "Note B" dated concurrently with the original Loan Agreement (or notes denominated Note B dated September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution for certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $80,242,165.24, as the same may be Modified from time to time, and (ii) each Additional Note B. Each Note B shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(vi) " Note C " shall mean, collectively, (i) those certain notes denominated "Note C" dated concurrently with the original Loan Agreement (or notes denominated Note C dated September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution for certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $12,250,712.25, as the same may be Modified from time to time, and (ii) each Additional Note C. Each Note C shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(vii) " Qualified Successor Entity " shall mean a Permitted Public REIT Subsidiary of the REIT (other than the OP).
(viii) " Stated Maturity Date " means August 31, 2012, subject to Section 2.10.
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(g) Modifications to certain References. The following references in the Loan Documents are hereby replaced as follows:
(i) Each reference in the Loan Documents to Douglas, Emmett & Company as the Property Manager is hereby replaced with a reference to Douglas Emmett Management, LLC, a Delaware limited liability company.
(ii) Each reference in the Loan Documents to DERA as Borrower's Manager is hereby replaced with a reference to Douglas Emmett Management, Inc., a Delaware corporation. Each reference to Borrower's Manager shall mean Douglas Emmett Management, Inc., a Delaware corporation, until such time as a new Borrower's Manager is appointed as permitted by the Loan Agreement.
(iii) Each reference in the Loan Documents to DERA as the sole general partner of Borrower's Member is hereby replaced with a reference to Douglas Emmett Management, LLC, a Delaware limited liability company, and each reference to the general partner of Borrower's Member shall mean Douglas Emmett Management, LLC, a Delaware limited liability company, until such time as a new general partner of Borrower's Member is admitted as permitted by the Loan Agreement.
(iv) Each reference in the Loan Documents to DERA in its capacity as guarantor pursuant to the Guarantor Documents is hereby replaced with a reference to the OP. Each reference in the Loan Documents to "Borrower's Manager's Limited Indemnity and Guarantee" shall mean and refer to the Limited Indemnity and Guarantee delivered by the OP effective upon the IPO Closing Time.
(v) For purposes of the following provisions of the Loan Agreement, the term "Borrower Party" shall include, without limitation, the OP: the definitions of "ERISA Affiliate," "ERISA Event," "Material Adverse Effect," and "Plan," and Sections 7.02, 7.06, 7.07, 7.30, 7.33, 8.03, 9.16 and 12.01(c) of the Loan Agreement.
(vi) The references to "Borrower Party" in Section 12.02(a) of the Loan Agreement are hereby replaced with "Bankruptcy Party."
(vii) The following Schedules attached to the Loan Agreement are hereby supplemented or amended and restated (as set forth below):
(A) Reserved.
(B) Schedules 7.05 , 7.11 and 7.22 are hereby amended and restated as set forth in Amended and Restated Schedules 7.05 , 7.11 , and 7.22 attached hereto.
(viii) The "Primary Credit Facility" referred to in the Loan Agreement shall mean the primary revolving credit facility under which the Permitted REIT (directly or through its Operating Partnership or another Permitted REIT Subsidiary) obtains financing for its general purposes.
(ix) The reference to "Secured Capital" in the Loan Agreement is hereby revised to "Eastdil Secured Capital and affiliates."
(x) The parties acknowledge that the Stub Interest Period ended on (but did not include) September 1, 2005. Accordingly, Section 2.10 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
"Notwithstanding anything to the contrary contained in this Agreement, (i) the Outstanding Principal Amount under all Notes shall become automatically due and payable on September 1, 2010 if on or prior to such date the Borrower has not paid to
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the Administrative Agent in accordance with the Fee Letter for the benefit of the Lenders an extension fee equal to five (5) basis points (0.05%) times the Outstanding Principal Amount under all Notes as of September 1, 2010 or if on such date an Event of Default exists and (ii) the Outstanding Principal Amount under all Notes shall become automatically due and payable on September 1, 2011 if on such date the Borrower has not paid to the Administrative Agent in accordance with the Fee Letter for the benefit of the Lenders an extension fee equal to five (5) basis points (0.05%) times the Outstanding Principal Amount under all Notes as of September 1, 2011 or if on such date an Event of Default exists."
4. Modification to DSCR for Project Releases. Section 2.09(a)(v) of the Loan Agreement is hereby modified to replace "1.50-to-1.00" with "1.35-to-1.00."
5. Understandings Concerning Hedge Arrangements. Notwithstanding anything to the contrary set forth in the Loan Agreement or the other Loan Documents, the Aggregate Notional Amount as to which Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall apply shall be an amount equal to the outstanding principal balance of the Loans as of the date of this Agreement, without giving effect to any of the Additional Advances made pursuant to this Agreement, whether on or after the IPO Closing Time; provided, however, that in the event the Outstanding Principal Amount is reduced below such amount, the Aggregate Notional Amount as to which Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall apply shall not exceed the Outstanding Principal Amount. For purposes of Section 8.19 of the Loan Agreement only, the All-In Rate shall be determined pursuant to clause (i) of the first sentence of the definition of All-In Rate. In all other respects, Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall remain in full force and effect. Notwithstanding the foregoing, Borrower or the Other Swap Pledgor may transfer the Hedge Agreements to the OP or any Permitted REIT Subsidiary substantially concurrently with or following the IPO Closing Time so long as (i) the OP or such Permitted REIT Subsidiary assumes the obligations under the Hedge Agreements and indemnifies the Other Swap Pledgor party thereto from any obligations thereunder arising from and after such assumption (unless the Other Swap Pledgor is released by the Counterparty thereto from its obligations thereunder); (ii) the OP or such Permitted REIT Subsidiary assumes and ratifies all of the obligations of the Other Swap Pledgor under the Hedge Agreement Pledge and delivers such documents and takes such other steps as are deemed reasonably necessary by the Administrative Agent to preserve, protect and maintain, and to assure the first priority of, the security interests arising thereunder from and after such assumption; (iii) prior to such transfer, the Third Party Counterparty thereto confirms that such transfer is permitted and that any acknowledgment previously delivered to the Administrative Agent will remain in effect after such transfer; and (iv) all documentation relating to the foregoing is delivered to the Administrative Agent within ten (10) Business Days after such documentation is fully executed and delivered by the parties thereto.
6. Modification to DSCR for Restoration following Casualty. Section 10.03(c)(iv) of the Loan Agreement is hereby modified to replace "1:50[sic]:1.00" with "1.35-to-1.00."
7. Modifications to Cross-Default Provision relating to Guaranteed Line of Credit. Section 12.01(m) of the Loan Agreement shall not apply if the obligations under the applicable Guarantee thereof furnished by a Borrower or any Subsidiary of the Borrower in conformity with Section 9.04(h) of the Loan Agreement are secured, in compliance with Section 9.02(k) of the Loan Agreement, exclusively by Liens on one or more Excluded Projects, and the obligations under such Guarantee are non-recourse to the Borrower and its Subsidiaries (except for "carve-outs" for the Borrower's or such Subsidiary's fraud, misrepresentation, misappropriation and other exceptions-from-non-recourse with respect to the acts of such Borrower or Subsidiary customary in the real estate finance industry). In addition, to the extent that Section 12.01(m) of the Loan Agreement does apply, it shall not be an Event of Default under the Loans unless and until the obligor under the Guaranteed Line of Credit has failed to cure
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an event of default under the Guaranteed Line of Credit following applicable notice and cure periods thereunder.
8. Effect of Consummation of IPO Transactions. It is agreed that the REIT is the Permitted Public REIT described in the Loan Agreement; the OP is the Operating Partnership described in the Loan Agreement; the transactions described in the Final S-11 include transactions which comprise the Permitted Reorganization and the Permitted Public REIT Transfer; and that Borrower shall have no further right, from and after the IPO Closing Time, to consummate any other Permitted Reorganization or Permitted Public REIT Transfer, except for transfers which are permitted under Section 9.03 of the Loan Agreement following a Permitted Public REIT Transfer, the changes to Borrower's Manager that are permitted under Section 14.31(a) of the Loan Agreement, the changes to its fiscal year permitted under Section 14.31(b) of the Loan Agreement, the dissolution of the Borrower's Member and changes in the Property Manager or management arrangements for the Projects that are permitted under Section 14.31(d) of the Loan Agreement (provided that it is understood for both of these purposes that all references therein to the Permitted Public REIT shall mean and refer to the REIT). Effective upon the IPO Closing Time, (i) the provisions of the Loan Agreement which permit transfers to or acquisitions of interests in Borrower by a Permitted Private REIT or a Permitted Private REIT Subsidiary shall be of no further force or effect; (ii) all references in the Loan Agreement to a "Permitted REIT" shall mean the REIT; and (iii) there shall be only one Permitted Public REIT, which shall be the REIT.
9. Participation by DERA or Named Principals Going Forward. It is understood and agreed that the references to the Named Principals in the following provisions of the Loan Documents shall be of no further force or effect: the definitions of "Immaterial Subsidiary," "Permitted Public REIT" and "Principals," and Sections 9.03(a)(iii), 9.03(b), 9.03(c), 9.04(e), 9.04(f), 9.04(g), 9.15 and 12.01(s).
10. Release of DERA and Douglas, Emmett & Company. The Administrative Agent and the Lenders hereby release (i) DERA from any and all obligations and liabilities under the Guarantor Documents arising from and after the IPO Closing Time and (ii) Douglas Emmett & Company from any and all obligations and liabilities under the Property Manager's Consents arising from and after the IPO Closing Time.
11. Reserved.
12. Reserved.
13. Ratification of Liens. Each of the Deeds of Trust and other Security Documents is modified to secure payment and performance of the Obligations of Borrower under the Loan Documents as modified and supplemented pursuant to this Agreement, in addition to all other Obligations stated therein to be secured therein.
14. Additional Advances.
(a) The outstanding balance of the Loans immediately prior to the IPO Closing Time is $215,000,000 (the " Pre-IPO Outstanding Balance ").
(b) On the date on which the IPO Closing Time occurs, each Lender having an IPO Closing Date Commitment (as defined below) severally agrees to make an additional advance to Borrower (each such loan, an " IPO Closing Date Advance ") in an amount identified in Amended and Restated Schedule 1.01(4) as the " IPO Closing Date Commitment " of such Lender in accordance with the terms and conditions set forth in this Section 14 . The " IPO Closing Date Commitment Percentage " means, as to any Lender at any time, the percentage equivalent of such Lender's IPO Closing Date Commitment divided by the IPO Closing Date Commitments of all Lenders at such time.
(c) Reserved.
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(d) Reserved.
(e) The IPO Closing Date Advances (collectively, " Additional Advances ") made by each Lender having an IPO Closing Date Commitment shall be evidenced by the Additional Note A, Additional Note B or Additional Note C, as applicable, delivered to such Lender. Once repaid or prepaid, Borrower may not reborrow any Additional Advance.
(f) Additional Advance Notice. Each Additional Advance shall be made upon the irrevocable written notice (including notice via facsimile confirmed immediately by a telephone call) of Borrower in the form of Exhibit A attached hereto (an " Additional Advance Notice ") as more fully provided below:
(i) Rate and Terms. Each Additional Advance shall be a Loan, and shall bear interest and otherwise be subject to the terms and conditions that apply to all other Loans.
(ii) Timing of Notice. Each Additional Advance Notice shall be submitted to and received by the Administrative Agent prior to 9:00 a.m. (New York time) (A) at least three (3) Business Days prior to the specified borrowing date, in the case of Eurodollar Loans; and (B) at least two (2) Business Days prior to the specified borrowing date, in the case of Base Rate Loans. Notwithstanding the foregoing, in the case of the Additional Advance Notice delivered in connection with the IPO Closing Date Advance, the time of day by which such notice shall be delivered shall be prior to 12:00 noon (California time).
(iii) Contents of Notice. Each Additional Advance Notice shall set forth the following information with respect to the Loan subject thereto:
(A) a single, specific borrowing date, which shall be a Business Day;
(B) a single, exact amount for the Loan, which for any Eurodollar Loan, shall be in an aggregate minimum principal amount of $1,000,000 or any multiple of $100,000 in excess thereof (or such lesser amount as shall then constitute the remaining amount of the IPO Closing Date Commitments);
(C) whether the Loan is to be made as a Eurodollar Loan or a Base Rate Loan; and
(D) if the Loan is to be made as a Eurodollar Loan, the applicable Interest Period. If an Additional Advance Notice shall fail to specify the applicable Interest Period for any Eurodollar Loan requested, such Loan will be made as a Eurodollar Loan with a one month Interest Period.
(g) Notice to Lenders. Upon receipt of an Additional Advance Notice conforming with the terms of this Section 14 , the Administrative Agent shall promptly notify each Lender thereof and of the amount of such Lender's IPO Closing Date Commitment Percentage of the Loan described therein.
(h) Funding of Commitments.
(i) Each Lender shall make the amount of its IPO Closing Date Commitment Percentage of the IPO Closing Date Advances available to the Administrative Agent for the account of Borrower on the date on which the IPO Closing Time occurs. In furtherance of the foregoing, provided that the Borrower shall have provided to the Administrative Agent prior to 9:00 A.M. New York time on the Business Day before the date on which the IPO Closing Time is scheduled to occur (the " Scheduled Closing Date "), unconditional authorization for closing and funding on the Scheduled Closing Date (including all such authorizations required pursuant to Section 10 of the Escrow Delivery Letter), the Administrative Agent shall provide telephonic or electronic notification thereof to the Lenders on the date the unconditional authorization is received, and each Lender shall initiate by 9:30 a.m. (New York time) the
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wire transfer of its respective IPO Closing Date Commitment Percentages of the IPO Closing Date Advances to the Administrative Agent for the account of Borrower on the Scheduled Closing Date in Dollars immediately available to the Administrative Agent, and shall otherwise use commercially reasonable efforts to make such funds available to the Administrative Agent for the account of Borrower on the Scheduled Closing Date, with the objective that the Administrative Agent shall have received such funds by such time as to be in a position to make such funds available to Borrower (provided all conditions to funding set forth herein and in the Escrow Delivery Letter have been satisfied) on or prior to 12:00 noon (New York time) on the Scheduled Closing Date, by wire transferring to such account or accounts as shall have been designated to it by Borrower the aggregate of the amounts made available to the Administrative Agent by the Lenders. The Borrower acknowledges that (except for the obligations of the Lenders to initiate wires as provided herein) no assurances have been made by the Lenders or the Administrative Agent that funds necessarily will be available to Borrower by any specific time. If the Borrower provides the above-referenced authorization to the Administrative Agent at least one (1) Business Day before the Scheduled Closing Date, and if for any reason the IPO Closing Time does not occur on the Scheduled Closing Date, the Administrative Agent shall return any funds received from any Lender to such Lender, and the Borrower shall be responsible for all costs and expenses that result from the fundings by the Lenders (including interest for the day in question, unless such funds are returned by the time on such day by which a payment would be required to be made pursuant to Section 4.01(a) of the Loan Agreement in order to avoid the accrual of interest for such day, and costs and expenses of the type referred to in Article V of the Loan Agreement). All amounts to be funded pursuant to this Section shall be funded in Dollars.
(ii) Reserved.
(i) Reserved.
(j) Reserved.
(k) Reserved.
15. Modifications of Certain Provisions of the Loan Agreement. The following provisions of the Loan Agreement are hereby modified as follows:
(a) The first sentence of Section 7.10 of the Loan Agreement is hereby deleted. The third sentence of Section 7.10 of the Loan Agreement is hereby replaced by the following: "The sole manager of Borrower is New Borrower's Manager. The sole general partner of Borrower's Member is New General Partner."
(b) The second sentence of Section 7.11 of the Loan Agreement is hereby replaced by the following: "Neither Borrower nor Borrower's Member has any Subsidiaries except for those shown on Schedule 7.11 ."
(c) The second sentence of Section 7.14 of the Loan Agreement is hereby replaced by the following: "The Borrower and the New Borrower's Manager were organized in the State of Delaware, and the Borrower's Member was organized in the State of California."
(d) In Section 7.22 of the Loan Agreement, the reference to "Douglas, Emmett & Company Delinquency/Aging Report (Summarized) dated 7/20/2005" is hereby replaced by "Douglas, Emmett & Company Delinquency/Aging Report (Summarized) dated , 2006".
(e) In Section 7.26 of the Loan Agreement, the reference to the Property Management Agreement shall be to the Property Management Agreement between Borrower [or Co-Borrower] and New General Partner in effect as of the IPO Closing Time.
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(f) Sections 7.35 and 7.37 of the Loan Agreement are hereby deleted.
16. Certain Acknowledgments. Administrative Agent and the Lenders hereby acknowledge and agree as follows:
(a) The Formation Transactions and the other elements of the Permitted Reorganization (including, without limitation, modifications to the organizational documents of the Borrower Parties in effect as of the IPO Closing Time) are approved to the extent required by the Loan Documents.
(b) The transfer of Equity Interests in any existing Subsidiary of Borrower to Borrower's Member or any other Permitted Public REIT Subsidiary will not require the consent of the Administrative Agent or the Lenders. The transfer of Equity Interests in any existing Subsidiary of Borrower's Member (other than Borrower) to any other Permitted Public REIT Subsidiary will not require the consent of the Administrative Agent or the Lenders.
17. Incorporation. This Agreement shall form a part of each Loan Document, and all references in any Loan Document to a given Loan Document shall mean that document as hereby modified.
18. No Prejudice; Reservation of Rights. This Agreement shall not prejudice any rights or remedies of the Administrative Agent or the Lenders under the Loan Documents, as modified hereby.
19. No Impairment. Except as specifically hereby amended, the Loan Documents shall each remain unaffected by this Agreement and all such documents shall remain in full force and effect. Nothing in this Agreement shall impair the Liens of the Deeds of Trust or other Security Documents. The Deeds of Trust as hereby amended shall remain deeds of trust with power of sale, creating first Liens encumbering each Project.
20. Integration. The Loan Documents, including this Agreement, the Escrow Delivery Letter and the documents delivered concurrently herewith pursuant to the Escrow Delivery Letter: (a) integrate all the terms and conditions mentioned in or incidental to the Loan Documents; (b) supersede all oral negotiations and prior and other writings with respect to their subject matter; and (c) are intended by the parties as the final expression of the agreement with respect to the terms and conditions set forth in those documents and as the complete and exclusive statement of the terms agreed to by the parties. If there is any conflict between the terms, conditions and provisions of this Agreement and those of any other agreement or instrument, including any of the other Loan Documents, the terms, conditions and provisions of this Agreement shall prevail.
21. Miscellaneous. This Agreement and any attached consents or exhibits requiring signatures may be executed in counterparts (and delivered via facsimile or through electronic delivery of a pdf file), and all such counterparts and documents delivered via facsimile or through electronic delivery of a pdf file shall constitute but one and the same document. If any court of competent jurisdiction determines any provision of this Agreement or any of the other Loan Documents to be invalid, illegal or unenforceable, that portion shall be deemed severed from the rest, which shall remain in full force and effect as though the invalid, illegal or unenforceable portion had never been a part of the Loan Documents. This Agreement shall be governed by the laws of the State of California, without regard to the choice of law rules of that State.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written.
BORROWER: | |||
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DOUGLAS EMMETT 1996, LLC, a Delaware limited liability company |
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By: |
Douglas Emmett Management, Inc., a Delaware corporation, its Manager |
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By: |
William Kamer Chief Financial Officer |
LENDERS | |||
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NOTE A-1 LENDER: |
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MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY |
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By: |
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Babson Capital Management Inc. |
Its: | Authorized Agent | ||
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By: |
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Name: Title: |
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NOTE A-2 LENDER: |
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METROPOLITAN LIFE INSURANCE COMPANY, A NEW YORK CORPORATION |
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Name: Title: |
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NOTE A-3 LENDER: |
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WACHOVIA BANK, NATIONAL ASSOCIATION |
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Name: Title: |
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NOTE A-4 LENDER: |
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HYPO REAL ESTATE BANK INTERNATIONAL AG |
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NOTE B-1 LENDER, NOTE B-2A LENDER, NOTE B-9B LENDER AND NOTE B-10B LENDER: |
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EUROHYPO AG, NEW YORK BRANCH |
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Name: Title: |
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NOTE B-2B LENDER: |
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BAYERISCHE LANDESBANK, NEW YORK BRANCH |
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Name: Title: |
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NOTE B-3 LENDER: |
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HYPOTHEKENBANK IN ESSEN AG |
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NOTE B-4 LENDER: |
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LANDESBANK BADEN-WÜRTTEMBERG, NEW YORK BRANCH |
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NOTE B-5 LENDER: |
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LANDESBANK HESSEN-THÜRINGEN GIROZENTRALE |
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Name: Title: |
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NOTE B-6 LENDER: |
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LANDESBANK SACHSEN GIROZENTRALE |
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NOTE B-7 LENDER: |
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LRP LANDESBANK RHEINLAND-PFALZ |
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NOTE B-8 LENDER: |
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MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY |
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Babson Capital Management Inc. |
Its: | Authorized Agent | ||
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Name: Title: |
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NOTE B-9A LENDER: |
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PB CAPITAL CORPORATION |
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Name: Title: |
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Name: Title: |
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NOTE B-10A LENDER: |
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PB (USA) REALTY CORPORATION |
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NOTE B-11 LENDER: |
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PNC BANK, NATIONAL ASSOCIATION |
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NOTE C-1 LENDER: |
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BARCLAYS CAPITAL REAL ESTATE INC. |
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NOTE C-2 LENDER: |
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EUROHYPO AG, NEW YORK BRANCH |
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Name: Title: |
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ADMINISTRATIVE AGENT: |
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EUROHYPO AG, NEW YORK BRANCH, as Administrative Agent |
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Name: Title: |
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Name: Title: |
Exhibit 10.55
Douglas Emmett 1997, LLC
MODIFICATION AGREEMENT
(Long Form)
This Modification Agreement (" Agreement ") is made as of , 2006, by and among Douglas Emmett 1997, LLC, a limited liability company organized under the laws of the State of Delaware (" Borrower "); Westwood Place Investors, LLC, a Delaware limited liability company (" Westwood Place Borrower "); each of the lenders that is a signatory hereto identified under the caption "LENDERS" on the signature pages hereto (individually, a " Lender " and, collectively, the " Lenders "); and EUROHYPO AG, NEW YORK BRANCH, as agent for the Lenders (in such capacity, together with its successors in such capacity, the " Administrative Agent ").
Factual Background
A. Borrower, Westwood Place Borrower, the Lenders and the Administrative Agent are parties to that certain Loan Agreement dated as of August 25, 2005 (said Loan Agreement, as Modified and in effect from time to time, being herein called the " Loan Agreement "; and except as otherwise herein expressly provided, all terms defined in the Loan Agreement are being used herein as defined therein), whereby the Lenders made Loans to Borrower and Westwood Place Borrower.
B. The Loans to Borrower and Westwood Place Borrower are evidenced by, and repayable with interest thereon in accordance with certain Notes and secured by (i) in the case of Loans to Borrower, the Deeds of Trust encumbering the Projects referred to in the Loan Agreement which have not heretofore been released and (ii) in the case of the Loans to Westwood Place Borrower, the Deed of Trust encumbering the Westwood Place Project, and the other Security Documents entered into by Borrower or the Westwood Place Borrower, respectively. The foregoing Projects and Westwood Place Project are referred to herein collectively as the " Existing Projects . "
C. Douglas Emmett Realty Advisors, a California corporation (" DERA ") guaranteed certain obligations of Borrower and Westwood Place Borrower in accordance with a Borrower's Manager's Limited Indemnity and Guarantee dated August 25, 2005.
D. As of the date of this Agreement, and prior to giving effect to the modifications herein, the outstanding principal balance of the Loans is $425,000,000. In connection with the modifications provided for herein, upon the IPO Closing Time described below, the maximum outstanding principal balance of the Loans will be increased to $531,800,000, and certain other modifications as described herein shall be made to the terms of the Loans.
E. Borrower has represented to the Agent and the Lenders that the "Formation Transactions" (as described in that certain Amendment No. 2 to Form S-11 filed on September 20, 2006 with the United States Securities and Exchange Commission(1)) (the " Original S-11 ") have been consummated. Those transactions include, among other things, an initial public offering (the " IPO ") of shares in Douglas Emmett, Inc., a Maryland corporation (the " REIT "), as part of a series of transactions that are intended to qualify as a Permitted Reorganization and a Permitted Public REIT Transfer. Pursuant to those transactions, Douglas Emmett Properties LP, a Delaware limited partnership (the " OP "), is the operating partnership and principal subsidiary of the REIT; Borrower's Member, which is also the sole member of Westwood Place Borrower, through a merger with a directly or indirectly wholly-owned subsidiary of the OP pursuant to an Agreement and Plan of Merger (the " Borrower's Member Merger Agreement "), in which Borrower's Member is the surviving entity, and other contribution transactions
1
involving the REIT or its subsidiaries, has become a directly or indirectly wholly-owned Subsidiary of the OP; Borrower's Manager, through a merger with a directly or indirectly wholly-owned subsidiary of the REIT pursuant to an Agreement and Plan of Merger (the " Borrower's Manager Merger Agreement "), in which Borrower's Manager is not the surviving entity, and other contribution transactions involving the REIT or its subsidiaries, has transferred its general partnership interest in Borrower's Member to Douglas Emmett Management, LLC, a Delaware limited liability company (" New General Partner "); Borrower's Manager has resigned as the non-member manager of Borrower and of any existing subsidiaries of Borrower or Borrower's Member other than Westwood Place Borrower that are limited liability companies, and Douglas Emmett Management, Inc., a Delaware corporation (" New Borrower's Manager "), a wholly-owned subsidiary of the REIT, has been appointed as the new non-member manager of Borrower and of any existing subsidiaries of Borrower or Borrower's Member other than Westwood Place Borrower that are limited liability companies; and the Property Management Agreement for each Existing Project with Douglas, Emmett and Company, a California corporation, has been terminated and new property management agreements for each Existing Project have been entered into with New General Partner. Borrower's Member Merger Agreement, Borrower's Manager Merger Agreement and the other documents entered into in connection with the Formation Transactions are collectively referred to herein as the " Reorganization Documents ." The date and time as of which the proceeds of the IPO have been received by the REIT is sometimes referred to herein as the " IPO Closing Time ."
F. Borrower, Westwood Place Borrower, the Lenders and the Administrative Agent entered into that certain escrow delivery letter agreement, dated as of September , 2006 (the " Escrow Delivery Letter "), pursuant to which certain documents (including this Agreement) were deposited with counsel to the Administrative Agent in escrow, pending the IPO Closing Time and the satisfaction of certain conditions set forth in such Escrow Delivery Letter.
G. Borrower, Westwood Place Borrower, the Lenders and the Administrative Agent now wish to modify the Loan Agreement and other Loan Documents as set forth below.
Agreement
Therefore, Borrower, Westwood Place Borrower, the Lenders and the Administrative Agent agree effective upon the IPO Closing Time as follows:
1. Reaffirmation of Loan. Borrower and Westwood Place Borrower reaffirm all of their respective obligations under the Loan Documents, and Borrower and Westwood Place Borrower acknowledge that they have no claims, offsets or defenses with respect to the payment of sums due under the Notes or any other Loan Document.
2. Reserved.
3. Modification of Loan Documents. Effective upon the IPO Closing Time, the Loan Documents are hereby amended, and additional agreements are hereby made with respect to the Loans, as follows:
(a) Modified Loan Agreement and Loan Documents. All references to the Loan Agreement in the Loan Agreement or in any other Loan Documents shall mean the Loan Agreement as modified by this Modification Agreement. In addition to the documents identified in the Loan Agreement, the Loan Documents shall include, without limitation, this Agreement and the documents delivered pursuant to Sections 2, 3 and 9(c) of the Escrow Delivery Letter.
(b) Modification to Allocated Loan Amounts, Appraisal Amounts and Title Insurance Amounts. Schedules 1.01(1), 1.01(3) and 1.01(9) , attached to the Loan Agreement are hereby amended and restated in their entireties by Amended and Restated Schedules 1.01(1), 1.01(3) and 1.01(9) attached to this Agreement. Such Amended and Restated Schedules 1.01(1), 1.01(3) and 1.01(9) set forth,
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respectively, revised Allocated Loan Amounts, Appraisal Amounts and Title Policy amounts for each Project.
(c) Modification to Proportionate Shares and Commitments of the Lenders. Schedule 1.01(4) attached to the Loan Agreement is hereby amended and restated in its entirety by Amended and Restated Schedule 1.01(4) attached to this Agreement. Such Amended and Restated Schedule 1.01(4) sets forth the revised Proportionate Shares and Commitments of the Lenders.
(d) Additional Definitions. The following additional definitions are hereby added to the Loan Agreement:
(i) " Additional Note A " shall mean those certain notes denominated "Additional Advance Note A" dated as of the date hereof, executed by Borrower and Westwood Place Borrower to the order of the Lender named therein, in the aggregate original principal amount of $60,854,700.83, as the same may be Modified from time to time.
(ii) " Additional Note B " shall mean those certain notes denominated "Additional Advance Note B" dated as of the date hereof, executed by Borrower and Westwood Place Borrower to the order of the Lender named therein, in the aggregate original principal amount of $39,859,829.06, as the same may be Modified from time to time.
(iii) " Additional Note C " shall mean those certain notes denominated "Additional Advance Note C" dated as of the date hereof, executed by Borrower and Westwood Place Borrower to the order of the Lender named therein, in the aggregate original principal amount of $6,085,470.11, as the same may be Modified from time to time.
(iv) " Allocated Loan Percentage " means at any time with respect to any Project a percentage determined by multiplying one hundred percent (100%) by a fraction, the numerator of which is the Allocated Loan Amount for such Project and the denominator of which is the Allocated Loan Amounts for all Projects which, at such time, are collateral for the Loans.
(v) Reserved .
(vi) Reserved .
(vii) " Modification Agreement " shall mean the Modification Agreement entered into by Borrower, Westwood Place Borrower, the Administrative Agent and the Lenders party thereto effective as of the IPO Closing Time.
(viii) " Project-Specific Deferred Funding Allocable Share " shall mean, with respect to any Project at any time, a percentage determined by multiplying one hundred percent (100%) by a fraction, the numerator of which is the Allocated Loan Percentage for such Project and the denominator of which is the aggregate of the Allocated Loan Percentages for all Projects which, at such time, are collateral for the Loans.
(ix) " OP " means Douglas Emmett Properties, LP, a Delaware limited partnership. All references in the Loan Documents to the Operating Partnership shall mean the OP.
(x) " REIT " means Douglas Emmett, Inc., a Maryland corporation. All references in the Loan Documents to the Permitted Public REIT shall mean the REIT.
(e) Additional Definitions from Modification Agreement. The following terms which are defined in this Modification Agreement (and the definitions thereof set forth herein) are hereby added to the Loan Agreement:
(i) "Additional Advance"
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(ii) "Additional Advance Notice"
(iii) "Allocated Loan Percentage"
(iv) "Deferred Funding Advance"
(v) "Deferred Funding Commitment Percentage"
(vi) "IPO Closing Date Commitments"
(vii) "IPO Closing Date Advance"
(viii) "IPO Closing Date Commitment Percentage"
(ix) "IPO Closing Time"
(x) "Pre-IPO Outstanding Balance"
(xi) Reserved
(xii) Reserved
(xiii) Reserved
(xiv) "New Borrower's Manager"
(xv) "New General Partner"
(f) Amendments to Certain Definitions. The definitions of the following terms in the Loan Agreement are hereby amended and restated in their entireties as follows:
(i) Reserved .
(ii) Reserved .
(iii) " Douglas Emmett Realty Funds " shall mean Douglas Emmett Joint Venture, Douglas Emmett Realty Fund 1995, Douglas Emmett Realty Fund 1996, Douglas Emmett Realty Fund 1997, Douglas Emmett Realty Fund 1998, Douglas Emmett Realty Fund 2000, Douglas Emmett Realty Fund 2002 and Douglas Emmett Realty Fund 2005, each Co-Borrower, and their respective Subsidiaries."
(iv) " Note A " shall mean, collectively, (i) those certain notes denominated "Note A" dated concurrently with the original Loan Agreement (or notes denominated Note A dated September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution for certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower or Westwood Place Borrower to the order of the Lender named therein, in the aggregate original principal amount of $242,165,242.18, as the same may be Modified from time to time, and (ii) each Additional Note A. Each Note A shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(v) " Note B " shall mean, collectively, (i) those certain notes denominated "Note B" dated concurrently with the original Loan Agreement (or notes denominated Note B dated September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution for certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower or Westwood Place Borrower to the order of the Lender named therein, in the aggregate original principal amount of $158,618,233.62, as the same may be Modified from time to time, and (ii) each Additional Note B. Each Note B shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(vi) " Note C " shall mean, collectively, (i) those certain notes denominated "Note C" dated concurrently with the original Loan Agreement (or notes denominated Note C dated
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September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution for certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower or Westwood Place Borrower to the order of the Lender named therein, in the aggregate original principal amount of $24,216,524.20, as the same may be Modified from time to time, and (ii) each Additional Note C. Each Note C shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(vii) " Qualified Successor Entity " shall mean a Permitted Public REIT Subsidiary of the REIT (other than the OP).
(viii) " Stated Maturity Date " means August 31, 2012, subject to Section 2.10.
(g) Modifications to certain References. The following references in the Loan Documents are hereby replaced as follows:
(i) Each reference in the Loan Documents to Douglas, Emmett & Company as the Property Manager is hereby replaced with a reference to Douglas Emmett Management, LLC, a Delaware limited liability company.
(ii) Each reference in the Loan Documents to DERA as Borrower's Manager is hereby replaced with a reference to Douglas Emmett Management, Inc., a Delaware corporation. Each reference to Borrower's Manager shall mean Douglas Emmett Management, Inc., a Delaware corporation, until such time as a new Borrower's Manager is appointed as permitted by the Loan Agreement.
(iii) Each reference in the Loan Documents to DERA as the sole general partner of Borrower's Member is hereby replaced with a reference to Douglas Emmett Management, LLC, a Delaware limited liability company, and each reference to the general partner of Borrower's Member shall mean Douglas Emmett Management, LLC, a Delaware limited liability company, until such time as a new general partner of Borrower's Member is admitted as permitted by the Loan Agreement.
(iv) Each reference in the Loan Documents to DERA in its capacity as guarantor pursuant to the Guarantor Documents is hereby replaced with a reference to the OP. Each reference in the Loan Documents to "Borrower's Manager's Limited Indemnity and Guarantee" shall mean and refer to the Limited Indemnity and Guarantee delivered by the OP effective upon the IPO Closing Time.
(v) For purposes of the following provisions of the Loan Agreement, the term "Borrower Party" shall include, without limitation, the OP: the definitions of "ERISA Affiliate," "ERISA Event," "Material Adverse Effect," and "Plan," and Sections 7.02, 7.06, 7.07, 7.30, 7.33, 8.03, 9.16 and 12.01(c) of the Loan Agreement.
(vi) The references to "Borrower Party" in Section 12.02(a) of the Loan Agreement are hereby replaced with "Bankruptcy Party."
(vii) The following Schedules attached to the Loan Agreement are hereby supplemented or amended and restated (as set forth below):
(A) Reserved.
(B) Schedules 7.05 , 7.11 and 7.22 are hereby amended and restated as set forth in Amended and Restated Schedules 7.05 , 7:05A , 7.11 , 7.11A , 7.22 and 7.22A attached hereto.
(viii) The "Primary Credit Facility" referred to in the Loan Agreement shall mean the primary revolving credit facility under which the Permitted REIT (directly or through its
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Operating Partnership or another Permitted REIT Subsidiary) obtains financing for its general purposes.
(ix) The reference to "Secured Capital" in the Loan Agreement is hereby revised to "Eastdil Secured Capital and affiliates."
(x) The parties acknowledge that the Stub Interest Period ended on (but did not include) September 1, 2005. Accordingly, Section 2.10 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
"Notwithstanding anything to the contrary contained in this Agreement, (i) the Outstanding Principal Amount under all Notes shall become automatically due and payable on September 1, 2010 if on or prior to such date the Borrower has not paid to the Administrative Agent in accordance with the Fee Letter for the benefit of the Lenders an extension fee equal to five (5) basis points (0.05%) times the Outstanding Principal Amount under all Notes as of September 1, 2010 or if on such date an Event of Default exists and (ii) the Outstanding Principal Amount under all Notes shall become automatically due and payable on September 1, 2011 if on such date the Borrower has not paid to the Administrative Agent in accordance with the Fee Letter for the benefit of the Lenders an extension fee equal to five (5) basis points (0.05%) times the Outstanding Principal Amount under all Notes as of September 1, 2011 or if on such date an Event of Default exists."
4. Modification to DSCR for Project Releases. Section 2.09(a)(v) of the Loan Agreement is hereby modified to replace "1.50-to-1.00" with "1.35-to-1.00."
5. Understandings Concerning Hedge Arrangements. Notwithstanding anything to the contrary set forth in the Loan Agreement or the other Loan Documents, the Aggregate Notional Amount as to which Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall apply shall be an amount equal to the outstanding principal balance of the Loans as of the date of this Agreement, without giving effect to any of the Additional Advances made pursuant to this Agreement, whether on or after the IPO Closing Time; provided, however, that in the event the Outstanding Principal Amount is reduced below such amount, the Aggregate Notional Amount as to which Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall apply shall not exceed the Outstanding Principal Amount. For purposes of Section 8.19 of the Loan Agreement only, the All-In Rate shall be determined pursuant to clause (i) of the first sentence of the definition of All-In Rate. In all other respects, Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall remain in full force and effect. Notwithstanding the foregoing, Borrower or the Other Swap Pledgor may transfer the Hedge Agreements to the OP or any Permitted REIT Subsidiary substantially concurrently with or following the IPO Closing Time so long as (i) the OP or such Permitted REIT Subsidiary assumes the obligations under the Hedge Agreements and indemnifies the Other Swap Pledgor party thereto from any obligations thereunder arising from and after such assumption (unless the Other Swap Pledgor is released by the Counterparty thereto from its obligations thereunder); (ii) the OP or such Permitted REIT Subsidiary assumes and ratifies all of the obligations of the Other Swap Pledgor under the Hedge Agreement Pledge and delivers such documents and takes such other steps as are deemed reasonably necessary by the Administrative Agent to preserve, protect and maintain, and to assure the first priority of, the security interests arising thereunder from and after such assumption; (iii) prior to such transfer, the Third Party Counterparty thereto confirms that such transfer is permitted and that any acknowledgment previously delivered to the Administrative Agent will remain in effect after such transfer; and (iv) all documentation relating to the foregoing is delivered to the Administrative Agent within ten (10) Business Days after such documentation is fully executed and delivered by the parties thereto.
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6. Modification to DSCR for Restoration following Casualty. Section 10.03(c)(iv) of the Loan Agreement is hereby modified to replace "1:50[sic]:1.00" with "1.35-to-1.00."
7. Modifications to Cross-Default Provision relating to Guaranteed Line of Credit. Section 12.01(m) of the Loan Agreement shall not apply if the obligations under the applicable Guarantee thereof furnished by a Borrower or the Westwood Place Borrower or any Subsidiary of the Borrower or the Westwood Place Borrower in conformity with Section 9.04(h) of the Loan Agreement are secured, in compliance with Section 9.02(k) of the Loan Agreement, exclusively by Liens on one or more Excluded Projects, and the obligations under such Guarantee are non-recourse to the Borrower or the Westwood Place Borrower and their respective Subsidiaries (except for "carve-outs" for the Borrower's or the Westwood Place Borrower's or their respective Subsidiary's fraud, misrepresentation, misappropriation and other exceptions-from-non-recourse with respect to the acts of such Borrower or the Westwood Place Borrower or Subsidiary customary in the real estate finance industry). In addition, to the extent that Section 12.01(m) of the Loan Agreement does apply, it shall not be an Event of Default under the Loans unless and until the obligor under the Guaranteed Line of Credit has failed to cure an event of default under the Guaranteed Line of Credit following applicable notice and cure periods thereunder.
8. Effect of Consummation of IPO Transactions. It is agreed that the REIT is the Permitted Public REIT described in the Loan Agreement; the OP is the Operating Partnership described in the Loan Agreement; the transactions described in the Final S-11 include transactions which comprise the Permitted Reorganization and the Permitted Public REIT Transfer; and that Borrower shall have no further right, from and after the IPO Closing Time, to consummate any other Permitted Reorganization or Permitted Public REIT Transfer, except for transfers which are permitted under Section 9.03 of the Loan Agreement following a Permitted Public REIT Transfer, the changes to Borrower's Manager that are permitted under Section 14.31(a) of the Loan Agreement, the changes to its fiscal year permitted under Section 14.31(b) of the Loan Agreement, the dissolution of the Borrower's Member and changes in the Property Manager or management arrangements for the Projects that are permitted under Section 14.31(d) of the Loan Agreement (provided that it is understood for both of these purposes that all references therein to the Permitted Public REIT shall mean and refer to the REIT). Effective upon the IPO Closing Time, (i) the provisions of the Loan Agreement which permit transfers to or acquisitions of interests in Borrower by a Permitted Private REIT or a Permitted Private REIT Subsidiary shall be of no further force or effect; (ii) all references in the Loan Agreement to a "Permitted REIT" shall mean the REIT; and (iii) there shall be only one Permitted Public REIT, which shall be the REIT.
9. Participation by DERA or Named Principals Going Forward. It is understood and agreed that the references to the Named Principals in the following provisions of the Loan Documents shall be of no further force or effect: the definitions of "Immaterial Subsidiary," "Permitted Public REIT" and "Principals," and Sections 9.03(a)(iii), 9.03(b), 9.03(c), 9.04(e), 9.04(f), 9.04(g), 9.15 and 12.01(s).
10. Release of DERA and Douglas, Emmett & Company. The Administrative Agent and the Lenders hereby release (i) DERA from any and all obligations and liabilities under the Guarantor Documents arising from and after the IPO Closing Time and (ii) Douglas Emmett & Company from any and all obligations and liabilities under the Property Manager's Consents arising from and after the IPO Closing Time.
11. Westwood Place Now Joint and Several. Borrower and Westwood Place Borrower hereby agree that: (i) Borrower and Westwood Place Borrower are (subject to Section 14.23 of the Loan Agreement) jointly and severally liable for all of the obligations of the Borrower and the Westwood Place Borrower set forth in the Loan Agreement and the other Loan Documents; (ii) the occurrence of any Event of Default shall be a Westwood Place Event of Default; (iii) the Obligations which are secured by all Security Documents shall include both the Obligations of the Borrower under the Loan Documents and the Obligations of the Westwood Place Borrower under the Loan Documents to which it is a party].
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Borrower and Westwood Place Borrower shall execute such documents and take such actions as may be requested by the Administrative Agent further to confirm the foregoing. The applicable provisions governing the recourse and exceptions therefrom applicable to the Borrower with respect to both the Loans made to the Borrower and the Loans originally made to the Westwood Place Borrower shall be as set forth in Section 14.23(a) (and not Section 14.23(b) of the Loan Agreement ). The Pledge Agreement, and the Liens granted to Administrative Agent thereunder, are hereby terminated and of no further force or effect, and the Administrative Agent shall, at the Borrower's sole cost and expense, execute such documents and take such other actions as may be necessary to confirm such termination or to terminate any financing statement relating to the collateral covered thereby.
12. Reserved.
13. Ratification of Liens. Each of the Deeds of Trust and other Security Documents is modified to secure payment and performance of the Obligations of Borrower and Westwood Place Borrower under the Loan Documents as modified and supplemented pursuant to this Agreement, in addition to all other Obligations stated therein to be secured therein.
14. Additional Advances.
(a) The outstanding balance of the Loans immediately prior to the IPO Closing Time is $425,000,000 (the " Pre-IPO Outstanding Balance ").
(b) On the date on which the IPO Closing Time occurs, each Lender having an IPO Closing Date Commitment (as defined below) severally agrees to make an additional advance to Borrower (each such loan, an " IPO Closing Date Advance ") in an amount identified in Amended and Restated Schedule 1.01(4) as the " IPO Closing Date Commitment " of such Lender in accordance with the terms and conditions set forth in this Section 14 . The " IPO Closing Date Commitment Percentage " means, as to any Lender at any time, the percentage equivalent of such Lender's IPO Closing Date Commitment divided by the IPO Closing Date Commitments of all Lenders at such time.
(c) At any time on or subsequent to the date on which the IPO Closing Time occurs, each Lender having a Deferred Funding Commitment (as defined below) severally agrees, on the terms and conditions hereinafter set forth in this Section 14 , to advance from time to time loans to Borrower (each such loan, a " Deferred Funding Advance "), in an aggregate amount not to exceed (subject to adjustment pursuant to Section 14(j) of this Agreement) the amount identified in Amended and Restated Schedule 1.01(4) as the " Deferred Funding Commitment " of such Lender. The Deferred Funding Commitments of all Lenders having Deferred Funding Commitments on the date hereof (prior to any Deferred Funding Advances, if any, made on the date hereof) shall equal $100,250,000. Subject to adjustment pursuant to Section 14(j) of this Agreement, the " Deferred Funding Commitment Percentage " means, as to any Lender at any time, the percentage equivalent of such Lender's Deferred Funding Commitment divided by the Deferred Funding Commitments of all Lenders at such time.
(d) Notwithstanding anything to the contrary contained in this Agreement, not more than $50,000,000 in Deferred Funding Advances (or such lesser sum as shall then represent the Deferred Funding Commitments of the Lenders having Deferred Funding Commitments) shall be advanced by all Lenders having Deferred Funding Commitments in the aggregate from and after December 31, 2006. The Deferred Funding Commitments of the Lenders having Deferred Funding Commitments shall expire, and be of no further force and effect, if not drawn on or before the first anniversary date of the date on which the IPO Closing Time occurs.
(e) The IPO Closing Date Advances and Deferred Funding Advances (collectively, " Additional Advances ") made by each Lender having an IPO Closing Date Commitment or Deferred Funding Commitment, respectively, shall be evidenced by the Additional Note A,
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Additional Note B or Additional Note C, as applicable, delivered to such Lender. Once repaid or prepaid, Borrower may not reborrow any Additional Advance.
(f) Additional Advance Notice. Each Additional Advance shall be made upon the irrevocable written notice (including notice via facsimile confirmed immediately by a telephone call) of Borrower in the form of Exhibit A attached hereto (an " Additional Advance Notice ") as more fully provided below:
(i) Rate and Terms. Each Additional Advance shall be a Loan, and shall bear interest and otherwise be subject to the terms and conditions that apply to all other Loans.
(ii) Timing of Notice. Each Additional Advance Notice shall be submitted to and received by the Administrative Agent prior to 9:00 a.m. (New York time) (A) at least three (3) Business Days prior to the specified borrowing date, in the case of Eurodollar Loans; and (B) at least two (2) Business Days prior to the specified borrowing date, in the case of Base Rate Loans. Notwithstanding the foregoing, in the case of the Additional Advance Notice delivered in connection with the IPO Closing Date Advance, the time of day by which such notice shall be delivered shall be prior to 12:00 noon (California time).
(iii) Contents of Notice. Each Additional Advance Notice shall set forth the following information with respect to the Loan subject thereto:
(A) a single, specific borrowing date, which shall be a Business Day;
(B) a single, exact amount for the Loan, which for any Eurodollar Loan, shall be in an aggregate minimum principal amount of $1,000,000 or any multiple of $100,000 in excess thereof (or such lesser amount as shall then constitute the remaining amount of the Deferred Funding Commitments);
(C) whether the Loan is to be made as a Eurodollar Loan or a Base Rate Loan; and
(D) if the Loan is to be made as a Eurodollar Loan, the applicable Interest Period. If an Additional Advance Notice shall fail to specify the applicable Interest Period for any Eurodollar Loan requested, such Loan will be made as a Eurodollar Loan with a one month Interest Period.
(g) Notice to Lenders. Upon receipt of an Additional Advance Notice conforming with the terms of this Section 14 , the Administrative Agent shall promptly notify each Lender thereof and of the amount of such Lender's IPO Closing Date Commitment Percentage or Deferred Funding Commitment Percentage (as applicable) of the Loan described therein.
(h) Funding of Commitments.
(i) Each Lender shall make the amount of its IPO Closing Date Commitment Percentage of the IPO Closing Date Advances available to the Administrative Agent for the account of Borrower on the date on which the IPO Closing Time occurs. In furtherance of the foregoing, provided that the Borrower shall have provided to the Administrative Agent prior to 9:00 A.M. New York time on the Business Day before the date on which the IPO Closing Time is scheduled to occur (the " Scheduled Closing Date "), unconditional authorization for closing and funding on the Scheduled Closing Date (including all such authorizations required pursuant to Section 10 of the Escrow Delivery Letter), the Administrative Agent shall provide telephonic or electronic notification thereof to the Lenders on the date the unconditional authorization is received, and each Lender shall initiate by 9:30 a.m. (New York time) the wire transfer of its respective IPO Closing Date Commitment Percentages of the IPO Closing Date Advances to the Administrative Agent for the account of Borrower on the Scheduled Closing Date in Dollars immediately available to the Administrative Agent, and shall
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otherwise use commercially reasonable efforts to make such funds available to the Administrative Agent for the account of Borrower on the Scheduled Closing Date, with the objective that the Administrative Agent shall have received such funds by such time as to be in a position to make such funds available to Borrower (provided all conditions to funding set forth herein and in the Escrow Delivery Letter have been satisfied) on or prior to 12:00 noon (New York time) on the Scheduled Closing Date, by wire transferring to such account or accounts as shall have been designated to it by Borrower the aggregate of the amounts made available to the Administrative Agent by the Lenders. The Borrower acknowledges that (except for the obligations of the Lenders to initiate wires as provided herein) no assurances have been made by the Lenders or the Administrative Agent that funds necessarily will be available to Borrower by any specific time. If the Borrower provides the above- referenced authorization to the Administrative Agent at least one (1) Business Day before the Scheduled Closing Date, and if for any reason the IPO Closing Time does not occur on the Scheduled Closing Date, the Administrative Agent shall return any funds received from any Lender to such Lender, and the Borrower shall be responsible for all costs and expenses that result from the fundings by the Lenders (including interest for the day in question, unless such funds are returned by the time on such day by which a payment would be required to be made pursuant to Section 4.01(a) of the Loan Agreement in order to avoid the accrual of interest for such day, and costs and expenses of the type referred to in Article V of the Loan Agreement). All amounts to be funded pursuant to this Section shall be funded in Dollars.
(ii) Each Lender shall make the amount of its Deferred Funding Commitment Percentage of the Loan described in any Additional Advance Notice available to the Administrative Agent for the account of Borrower by 12:00 p.m. (New York time) on the borrowing date specified therein in Dollars immediately available to the Administrative Agent. Unless, in the case of any Deferred Funding Advance, any applicable condition specified in this Section 14 has not been satisfied, such funds shall then be made available to Borrower by the Administrative Agent by wire transferring to such account as shall have been designated to it by Borrower the aggregate of the amounts made available to the Administrative Agent by the Lenders (in like funds as received by the Administrative Agent). All amounts to be funded pursuant to this Section shall be funded in Dollars.
(i) Frequency of Borrowings. No more than one (1) Additional Advance Notice on account of any Deferred Funding Advance may be given in any calendar month.
(j) Effect of Deferred Funding Commitments on Allocated Loan Amounts.
(i) Upon the IPO Closing Time, the Allocated Loan Amounts shall be increased to the amounts set forth in Amended and Restated Schedule 1.01(4) attached to this Modification Agreement to reflect the allocation of the outstanding principal balances of the Loans after giving effect to the IPO Closing Date Advances.
(ii) Upon the making of each Deferred Funding Advance pursuant hereto, the Allocated Loan Amount for each Project shall be increased by an amount equal to such Deferred Funding Advance multiplied by the Project-Specific Deferred Funding Allocable Share for such Project as determined immediately prior to such advance.
(iii) If any Project is released in accordance with Section 2.09 of the Loan Agreement prior to the advance to Borrower of the full amount of the Deferred Funding Commitments, the Deferred Funding Commitments of the Lenders shall be reduced in the aggregate by an amount equal to that Project's Project-Specific Deferred Funding Allocable Share, as determined immediately prior to such release, of the portion of the Deferred Funding Commitments which, as determined immediately prior to such release, have not been funded.
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(k) Conditions to Each Additional Advance. The obligation of each Lender to make any Deferred Funding Advance is subject to the satisfaction of the following conditions precedent:
(i) Additional Advance Notice. The Administrative Agent shall have received an Additional Advance Notice in compliance with the terms of this Section 14 ;
(ii) Representations and Warranties. The representations and warranties made by Borrower, the OP and the other Borrower Parties contained in the Loan Documents shall be true and correct on and as of the date such Additional Advance is made, with the same effect as if made on and as of such date;
(iii) No Existing Default. No Event of Default shall exist or shall result from the making of such Additional Advance;
(iv) Title Insurance. If required by the Administrative Agent, the Title Company shall have issued (at Borrower's expense) an endorsement to the Title Policy which insures the priority of such Additional Advance over all items other than Permitted Title Exceptions.
Each Additional Advance Notice submitted by Borrower hereunder shall constitute a representation and warranty by Borrower hereunder, as of the date of such notice and as of the date of the making of the corresponding Additional Advance, that the conditions in this Section 14 have been satisfied.
15. Modifications of Certain Provisions of the Loan Agreement. The following provisions of the Loan Agreement are hereby modified as follows:
(a) The first sentence of Section 7.10 and Section 7.10A of the Loan Agreement is hereby deleted. The third sentence of Section 7.10 of the Loan Agreement is hereby replaced by the following: "The sole manager of Borrower is New Borrower's Manager. The sole general partner of Borrower's Member is New General Partner."
(b) The second sentence of Section 7.11 of the Loan Agreement is hereby replaced by the following: "Neither Borrower nor Borrower's Member has any Subsidiaries except for those shown on Schedule 7.11 ."
(c) The second sentence of Section 7.14 of the Loan Agreement is hereby replaced by the following: "The Borrower and the New Borrower's Manager were organized in the State of Delaware, and the Borrower's Member was organized in the State of California."
(d) In Section 7.22 and Section 7.22A of the Loan Agreement, the reference to "Douglas, Emmett & Company Delinquency/Aging Report (Summarized) dated 7/20/2005" is hereby replaced by "Douglas, Emmett & Company Delinquency/Aging Report (Summarized) dated , 2006".
(e) In Section 7.26 of the Loan Agreement, the reference to the Property Management Agreement shall be to the Property Management Agreement between Borrower and New General Partner in effect as of the IPO Closing Time. In Section 7.26A of the Loan Agreement, the reference to the Property Management Agreement shall be to the Property Management Agreement between Westwood Place Borrower and New General Partner in effect as of the IPO Closing Time.
(f) Sections 7.35 and 7.37 of the Loan Agreement are hereby deleted. Sections 7.35A and 7.37A of the Loan Agreement are hereby deleted.
16. Certain Acknowledgments. Administrative Agent and the Lenders hereby acknowledge and agree as follows:
(a) The Formation Transactions and the other elements of the Permitted Reorganization (including, without limitation, modifications to the organizational documents of the Borrower Parties in effect as of the IPO Closing Time) are approved to the extent required by the Loan Documents.
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(b) The transfer of Equity Interests in any existing Subsidiary of Borrower to Borrower's Member or any other Permitted Public REIT Subsidiary will not require the consent of the Administrative Agent or the Lenders. The transfer of Equity Interests in any existing Subsidiary of Borrower's Member (other than Borrower) to any other Permitted Public REIT Subsidiary will not require the consent of the Administrative Agent or the Lenders.
17. Incorporation. This Agreement shall form a part of each Loan Document, and all references in any Loan Document to a given Loan Document shall mean that document as hereby modified.
18. No Prejudice; Reservation of Rights. This Agreement shall not prejudice any rights or remedies of the Administrative Agent or the Lenders under the Loan Documents, as modified hereby.
19. No Impairment. Except as specifically hereby amended, the Loan Documents shall each remain unaffected by this Agreement and all such documents shall remain in full force and effect. Nothing in this Agreement shall impair the Liens of the Deeds of Trust or other Security Documents. The Deeds of Trust as hereby amended shall remain deeds of trust with power of sale, creating first Liens encumbering each Project.
20. Integration. The Loan Documents, including this Agreement, the Escrow Delivery Letter and the documents delivered concurrently herewith pursuant to the Escrow Delivery Letter: (a) integrate all the terms and conditions mentioned in or incidental to the Loan Documents; (b) supersede all oral negotiations and prior and other writings with respect to their subject matter; and (c) are intended by the parties as the final expression of the agreement with respect to the terms and conditions set forth in those documents and as the complete and exclusive statement of the terms agreed to by the parties. If there is any conflict between the terms, conditions and provisions of this Agreement and those of any other agreement or instrument, including any of the other Loan Documents, the terms, conditions and provisions of this Agreement shall prevail.
21. Miscellaneous. This Agreement and any attached consents or exhibits requiring signatures may be executed in counterparts (and delivered via facsimile or through electronic delivery of a pdf file), and all such counterparts and documents delivered via facsimile or through electronic delivery of a pdf file shall constitute but one and the same document. If any court of competent jurisdiction determines any provision of this Agreement or any of the other Loan Documents to be invalid, illegal or unenforceable, that portion shall be deemed severed from the rest, which shall remain in full force and effect as though the invalid, illegal or unenforceable portion had never been a part of the Loan Documents. This Agreement shall be governed by the laws of the State of California, without regard to the choice of law rules of that State.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written.
BORROWER: | |||||
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DOUGLAS EMMETT 1997, LLC, a Delaware limited liability company |
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By: |
Douglas Emmett Management, Inc., a Delaware corporation, its Manager |
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By: |
William Kamer Chief Financial Officer |
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WESTWOOD PLACE BORROWER: |
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WESTWOOD PLACE INVESTORS, LLC, a Delaware limited liability company |
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By: |
DOUGLAS EMMETT REALTY FUND 1997, A CALIFORNIA LIMITED PARTNERSHIP, its Manager |
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By: |
Douglas Emmett Management, LLC, a Delaware limited liability company, its General Partner |
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By: |
Douglas Emmett Management, Inc., a Delaware corporation, its Manager |
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By: |
William Kamer Chief Financial Officer |
LENDERS | ||
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NOTE A-1 LENDER: |
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MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY |
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By: |
Babson Capital Management Inc. |
Its: | Authorized Agent | |
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By: |
Name: Title: |
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NOTE A-2 LENDER: |
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METROPOLITAN LIFE INSURANCE COMPANY, A NEW YORK CORPORATION |
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By: |
Name: Title: |
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NOTE A-3 LENDER: |
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WACHOVIA BANK, NATIONAL ASSOCIATION |
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By: |
Name: Title: |
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NOTE A-4 LENDER: |
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HYPO REAL ESTATE BANK INTERNATIONAL AG |
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By: |
Name: Title: |
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NOTE B-1 LENDER, NOTE B-2A LENDER, NOTE B-9B LENDER AND NOTE B-10B LENDER: |
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EUROHYPO AG, NEW YORK BRANCH |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-2B LENDER: |
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BAYERISCHE LANDESBANK, NEW YORK BRANCH |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-3 LENDER: |
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HYPOTHEKENBANK IN ESSEN AG |
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By: |
Name: Title: |
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NOTE B-4 LENDER: |
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LANDESBANK BADEN-WÜRTTEMBERG, NEW YORK BRANCH |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-5 LENDER: |
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LANDESBANK HESSEN-THÜRINGEN GIROZENTRALE |
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By: |
Name: Title: |
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NOTE B-6 LENDER: |
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LANDESBANK SACHSEN GIROZENTRALE |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-7 LENDER: |
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LRP LANDESBANK RHEINLAND-PFALZ |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-8 LENDER: |
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MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY |
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By: |
Babson Capital Management Inc. |
Its: | Authorized Agent | |
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By: |
Name: Title: |
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NOTE B-9A LENDER: |
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PB CAPITAL CORPORATION |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-10A LENDER: |
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PB (USA) REALTY CORPORATION |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-11 LENDER: |
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PNC BANK, NATIONAL ASSOCIATION |
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By: |
Name: Title: |
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NOTE C-1 LENDER: |
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BARCLAYS CAPITAL REAL ESTATE INC. |
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By: |
Name: Title: |
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NOTE C-2 LENDER: |
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EUROHYPO AG, NEW YORK BRANCH |
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By: |
Name: Title: |
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By: |
Name: Title: |
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ADMINISTRATIVE AGENT: |
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EUROHYPO AG, NEW YORK BRANCH, as Administrative Agent |
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By: |
Name: Title: |
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By: |
Name: Title: |
Douglas Emmett 1998, LLC
MODIFICATION AGREEMENT
(Long Form)
This Modification Agreement (" Agreement ") is made as of , 2006, by and among Douglas Emmett 1998, LLC, a limited liability company organized under the laws of the State of Delaware (" Borrower "); Brentwood Court, a California limited partnership, and Brentwood-San Vicente Medical, Ltd., a California limited partnership (individually a " New Co-Borrower " and collectively, " New Co-Borrowers "); each of the lenders that is a signatory hereto identified under the caption "LENDERS" on the signature pages hereto (individually, a " Lender " and, collectively, the " Lenders "); and EUROHYPO AG, NEW YORK BRANCH, as agent for the Lenders (in such capacity, together with its successors in such capacity, the " Administrative Agent ").
Factual Background
A. Borrower, the Lenders and the Administrative Agent are parties to that certain Loan Agreement dated as of August 25, 2005 (said Loan Agreement, as Modified and in effect from time to time, being herein called the " Loan Agreement "; and except as otherwise herein expressly provided, all terms defined in the Loan Agreement are being used herein as defined therein), whereby the Lenders made Loans to Borrower.
B. The Loans are evidenced by, and repayable with interest thereon in accordance with certain Notes and secured by the Deeds of Trust encumbering the Projects referred to in the Loan Agreement which have not heretofore been released (the " Existing Projects ") and the other Security Documents.
C. Douglas Emmett Realty Advisors, a California corporation (" DERA ") guaranteed certain obligations of Borrower in accordance with a Borrower's Manager's Limited Indemnity and Guarantee dated August 25, 2005.
D. As of the date of this Agreement, and prior to giving effect to the modifications herein, the outstanding principal balance of the Loans is $150,000,000. In connection with the modifications provided for herein, upon the IPO Closing Time described below, the maximum outstanding principal balance of the Loans will be increased to $245,600,000, each New Co-Borrower will assume liability, jointly and severally with Borrower, for the Loan, and each New Co-Borrower will encumber an additional project owned by it (each, a " New Project ") as additional security for the Loans, as modified hereby, and certain other modifications as described herein shall be made to the terms of the Loans.
E. Borrower has represented to the Agent and the Lenders that the "Formation Transactions" (as described in that certain Amendment No. 2 to Form S-11 filed on September 20, 2006 with the United States Securities and Exchange Commission 1 ) (the " Original S-11 ") have been consummated. Those transactions include, among other things, an initial public offering (the " IPO ") of shares in Douglas Emmett, Inc., a Maryland corporation (the " REIT "), as part of a series of transactions that are intended to qualify as a Permitted Reorganization and a Permitted Public REIT Transfer. Pursuant to those transactions, Douglas Emmett Properties LP, a Delaware limited partnership (the " OP "), is the operating partnership and principal subsidiary of the REIT; Borrower's Member, through a merger with a directly or indirectly wholly-owned subsidiary of the OP pursuant to an Agreement and Plan of Merger (the " Borrower's Member Merger Agreement "), in which Borrower's Member is the surviving entity, and other contribution transactions involving the REIT or its subsidiaries, has become a directly or indirectly wholly-owned Subsidiary of the OP; Borrower's Manager, through a merger with a directly or indirectly wholly-owned subsidiary of the REIT pursuant to an Agreement and Plan of Merger (the " Borrower's Manager Merger Agreement "), in which Borrower's Manager is not the surviving entity, and
1
other contribution transactions involving the REIT or its subsidiaries, has transferred its general partnership interest in Borrower's Member to Douglas Emmett Management, LLC, a Delaware limited liability company (" New General Partner "); Borrower's Manager has resigned as the non-member manager of Borrower and of any existing subsidiaries of Borrower or Borrower's Member that are limited liability companies, and Douglas Emmett Management, Inc., a Delaware corporation (" New Borrower's Manager "), a wholly-owned subsidiary of the REIT, has been appointed as the new non-member manager of Borrower and of any existing subsidiaries of Borrower or Borrower's Member that are limited liability companies; the interests of the member(s) or limited partner(s) in New Co-Borrower have been acquired, pursuant to a merger or acquisition agreement (" New Co-Borrower's Merger Agreement "), and other contribution transactions involving the REIT or its subsidiaries, by the OP; and the interest of the general partner in New Co-Borrower has been acquired, pursuant to New Co-Borrower's Merger Agreement, and other contribution and related transactions involving the REIT or its direct or indirect subsidiaries, by New General Partner; and the Property Management Agreement for each Existing Project or New Project with Douglas, Emmett and Company, a California corporation, has been terminated and new property management agreements for each Existing Project and New Project have been entered into with New General Partner. Borrower's Member Merger Agreement, Borrower's Manager Merger Agreement, New Co-Borrower's Merger Agreement and the other documents entered into in connection with the Formation Transactions are collectively referred to herein as the " Reorganization Documents ." The date and time as of which the proceeds of the IPO have been received by the REIT is sometimes referred to herein as the " IPO Closing Time ."
F. Borrower, each New Co-Borrower, the Lenders and the Administrative Agent entered into that certain escrow delivery letter agreement, dated as of September , 2006 (the " Escrow Delivery Letter "), pursuant to which certain documents (including this Agreement) were deposited with counsel to the Administrative Agent in escrow, pending the IPO Closing Time and the satisfaction of certain conditions set forth in such Escrow Delivery Letter.
G. Borrower, Original Co-Borrower, each New Co-Borrower, the Lenders and the Administrative Agent now wish to modify the Loan Agreement and other Loan Documents as set forth below.
Agreement
Therefore, Borrower, each New Co-Borrower, the Lenders and the Administrative Agent agree effective upon the IPO Closing Time as follows:
1. Reaffirmation of Loan . Borrower reaffirms all of its obligations under the Loan Documents, and Borrower and each New Co-Borrower acknowledge that they have no claims, offsets or defenses with respect to the payment of sums due under the Notes or any other Loan Document.
2. Joinder . Concurrently herewith Borrower and New Co-Borrowers are executing and delivering the Joinder and Supplement Agreement attached hereto, to be effective as of the IPO Closing Time (the " New Co-Borrower Joinder and Supplement "). The New Co-Borrower Joinder and Supplement is a Loan Document. The Co-Borrower Projects referred to in the New Co-Borrower Joinder and Supplement are hereby added to the descriptions contained in Schedule 1A and Schedule 1B of the Loan Agreement. Each such Co-Borrower Project is a Project, as defined in the Loan Agreement. Each New Co-Borrower is a Borrower Party.
3. Modification of Loan Documents . Effective upon the IPO Closing Time, the Loan Documents are hereby amended, and additional agreements are hereby made with respect to the Loans, as follows:
(a) Modified Loan Agreement and Loan Documents . All references to the Loan Agreement in the Loan Agreement or in any other Loan Documents shall mean the Loan Agreement as
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modified by this Modification Agreement, and as supplemented by the New Co-Borrower Joinder and Supplement executed by each New Co-Borrower. In addition to the documents identified in the Loan Agreement, the Loan Documents shall include, without limitation, this Agreement and the documents delivered pursuant to Sections 2, 3 and 9(c) of the Escrow Delivery Letter.
(b) Modification to Allocated Loan Amounts, Appraisal Amounts and Title Insurance Amounts . Schedules 1.01(1), 1.01(3) and 1.01(9) , attached to the Loan Agreement are hereby amended and restated in their entireties by Amended and Restated Schedules 1.01(1), 1.01(3) and 1.01(9) attached to this Agreement. Such Amended and Restated Schedules 1.01(1), 1.01(3) and 1.01(9) set forth, respectively, revised Allocated Loan Amounts, Appraisal Amounts and Title Policy amounts for each Project.
(c) Modification to Proportionate Shares and Commitments of the Lenders . Schedule 1.01(4) attached to the Loan Agreement is hereby amended and restated in its entirety by Amended and Restated Schedule 1.01(4) attached to this Agreement. Such Amended and Restated Schedule 1.01(4) sets forth the revised Proportionate Shares and Commitments of the Lenders.
(d) Additional Definitions . The following additional definitions are hereby added to the Loan Agreement:
(i) " Additional Note A " shall mean those certain notes denominated "Additional Advance Note A" dated as of the date hereof, executed by Borrower and each New Co-Borrower to the order of the Lender named therein, in the aggregate original principal amount of $54,472,934.47, as the same may be Modified from time to time.
(ii) " Additional Note B " shall mean those certain notes denominated "Additional Advance Note B" dated as of the date hereof, executed by Borrower and each New Co-Borrower to the order of the Lender named therein, in the aggregate original principal amount of $35,679,772.09, as the same may be Modified from time to time.
(iii) " Additional Note C " shall mean those certain notes denominated "Additional Advance Note C" dated as of the date hereof, executed by Borrower and each New Co-Borrower to the order of the Lender named therein, in the aggregate original principal amount of $5,447,293.44, as the same may be Modified from time to time.
(iv) Reserved.
(v) " Co-Borrower " shall mean each of the New Co-Borrowers named in the Modification Agreement, subject to the New Co-Borrower Joinder and Supplement, until such time (if any) as a Qualified Successor Entity shall acquire all of the Co-Borrower Projects owned by such Person and assume the obligations of such Person under the Loan Documents and such Person shall be released from its obligations under the Loan Documents, in accordance with Section 9.03(a)(iii) of the Loan Agreement, at which time the applicable "Co-Borrower" shall be such Qualified Successor Entity.
(vi) " Co-Borrower Projects " shall mean the Projects owned by each New Co-Borrower that are described in the New Co-Borrower Joinder and Supplement attached to the Modification Agreement.
(vii) " Modification Agreement " shall mean the Modification Agreement entered into by Borrower, each New Co-Borrower, the Administrative Agent and the Lenders party thereto effective as of the IPO Closing Time.
(viii) Reserved.
(ix) " OP " means Douglas Emmett Properties, LP, a Delaware limited partnership. All references in the Loan Documents to the Operating Partnership shall mean the OP.
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(x) " REIT " means Douglas Emmett, Inc., a Maryland corporation. All references in the Loan Documents to the Permitted Public REIT shall mean the REIT.
(e) Additional Definitions from Modification Agreement . The following terms which are defined in this Modification Agreement (and the definitions thereof set forth herein) are hereby added to the Loan Agreement:
(i) "Additional Advance"
(ii) "Additional Advance Notice"
(iii) Reserved.
(iv) Reserved.
(v) Reserved.
(vi) "IPO Closing Date Commitments"
(vii) "IPO Closing Date Advance"
(viii) "IPO Closing Date Commitment Percentage"
(ix) "IPO Closing Time"
(x) "Pre-IPO Outstanding Balance"
(xi) Reserved.
(xii) "New Co-Borrower"
(xiii) "New Co-Borrower Joinder and Supplement"
(xiv) "New Borrower's Manager"
(xv) "New General Partner"
(f) Amendments to Certain Definitions . The definitions of the following terms in the Loan Agreement are hereby amended and restated in their entireties as follows:
(i) Reserved.
(ii) Reserved.
(iii) " Douglas Emmett Realty Funds " shall mean Douglas Emmett Joint Venture, Douglas Emmett Realty Fund 1995, Douglas Emmett Realty Fund 1996, Douglas Emmett Realty Fund 1997, Douglas Emmett Realty Fund 1998, Douglas Emmett Realty Fund 2000, Douglas Emmett Realty Fund 2002 and Douglas Emmett Realty Fund 2005, each Co-Borrower, and their respective Subsidiaries."
(iv) " Note A " shall mean, collectively, (i) those certain notes denominated "Note A" dated concurrently with the original Loan Agreement (or notes denominated Note A dated September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution for certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $85,470,085.47, as the same may be Modified from time to time, and (ii) each Additional Note A. Each Note A shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(v) " Note B " shall mean, collectively, (i) those certain notes denominated "Note B" dated concurrently with the original Loan Agreement (or notes denominated Note B dated September 7, 2005, given in substitution for certain of such original notes or replacement
4
notes given in substitution for certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $55,982,905.98, as the same may be Modified from time to time, and (ii) each Additional Note B. Each Note B shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(vi) " Note C " shall mean, collectively, (i) those certain notes denominated "Note C" dated concurrently with the original Loan Agreement (or notes denominated Note C dated September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution for certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $8,547,008.55, as the same may be Modified from time to time, and (ii) each Additional Note C. Each Note C shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(vii) " Qualified Successor Entity " shall mean a Permitted Public REIT Subsidiary of the REIT (other than the OP).
(viii) " Stated Maturity Date " means August 31, 2012, subject to Section 2.10.
(g) Modifications to certain References . The following references in the Loan Documents are hereby replaced as follows:
(i) Each reference in the Loan Documents to Douglas, Emmett & Company as the Property Manager is hereby replaced with a reference to Douglas Emmett Management, LLC, a Delaware limited liability company.
(ii) Each reference in the Loan Documents to DERA as Borrower's Manager is hereby replaced with a reference to Douglas Emmett Management, Inc., a Delaware corporation. Each reference to Borrower's Manager shall mean Douglas Emmett Management, Inc., a Delaware corporation, until such time as a new Borrower's Manager is appointed as permitted by the Loan Agreement. In the case of New Co-Borrower, each reference to Borrower's Manager shall mean and refer to New General Partner.
(iii) Each reference in the Loan Documents to DERA as the sole general partner of Borrower's Member is hereby replaced with a reference to Douglas Emmett Management, LLC, a Delaware limited liability company, and each reference to the general partner of Borrower's Member shall mean Douglas Emmett Management, LLC, a Delaware limited liability company, until such time as a new general partner of Borrower's Member is admitted as permitted by the Loan Agreement.
(iv) Each reference in the Loan Documents to DERA in its capacity as guarantor pursuant to the Guarantor Documents is hereby replaced with a reference to the OP. Each reference in the Loan Documents to "Borrower's Manager's Limited Indemnity and Guarantee" shall mean and refer to the Limited Indemnity and Guarantee delivered by the OP effective upon the IPO Closing Time.
(v) For purposes of the following provisions of the Loan Agreement, the term "Borrower Party" shall include, without limitation, the OP: the definitions of "ERISA Affiliate," "ERISA Event," "Material Adverse Effect," and "Plan," and Sections 7.02, 7.06, 7.07, 7.30, 7.33, 8.03, 9.16 and 12.01(c) of the Loan Agreement.
(vi) The references to "Borrower Party" in Section 12.02(a) of the Loan Agreement are hereby replaced with "Bankruptcy Party."
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(vii) The following Schedules attached to the Loan Agreement are hereby supplemented or amended and restated (as set forth below):
(A) Schedules 1.01(6) , 1.01(7) , 1.01(8) , 7.09 , 8.11 and 8.21 are hereby supplemented with respect to the New Projects as set forth on Supplemental Schedules 1.01(6) , 1.01(7), 1.01(8) , 7.09 , 8.11 and 8.21 attached hereto.
(B) Schedules 7.05 , 7.11 and 7.22 are hereby amended and restated as set forth in Amended and Restated Schedules 7.05 , 7.11 , and 7.22 attached hereto.
(viii) The "Primary Credit Facility" referred to in the Loan Agreement shall mean the primary revolving credit facility under which the Permitted REIT (directly or through its Operating Partnership or another Permitted REIT Subsidiary) obtains financing for its general purposes.
(ix) The reference to "Secured Capital" in the Loan Agreement is hereby revised to "Eastdil Secured Capital and affiliates."
(x) The parties acknowledge that the Stub Interest Period ended on (but did not include) September 1, 2005. Accordingly, Section 2.10 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
"Notwithstanding anything to the contrary contained in this Agreement, (i) the Outstanding Principal Amount under all Notes shall become automatically due and payable on September 1, 2010 if on or prior to such date the Borrower has not paid to the Administrative Agent in accordance with the Fee Letter for the benefit of the Lenders an extension fee equal to five (5) basis points (0.05%) times the Outstanding Principal Amount under all Notes as of September 1, 2010 or if on such date an Event of Default exists and (ii) the Outstanding Principal Amount under all Notes shall become automatically due and payable on September 1, 2011 if on such date the Borrower has not paid to the Administrative Agent in accordance with the Fee Letter for the benefit of the Lenders an extension fee equal to five (5) basis points (0.05%) times the Outstanding Principal Amount under all Notes as of September 1, 2011 or if on such date an Event of Default exists."
4. Modification to DSCR for Project Releases . Section 2.09(a)(v) of the Loan Agreement is hereby modified to replace "1.50-to-1.00" with "1.35-to-1.00."
5. Understandings Concerning Hedge Arrangements . Notwithstanding anything to the contrary set forth in the Loan Agreement or the other Loan Documents, the Aggregate Notional Amount as to which Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall apply shall be an amount equal to the outstanding principal balance of the Loans as of the date of this Agreement, without giving effect to any of the Additional Advances made pursuant to this Agreement, whether on or after the IPO Closing Time; provided, however, that in the event the Outstanding Principal Amount is reduced below such amount, the Aggregate Notional Amount as to which Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall apply shall not exceed the Outstanding Principal Amount. For purposes of Section 8.19 of the Loan Agreement only, the All-In Rate shall be determined pursuant to clause (i) of the first sentence of the definition of All-In Rate. In all other respects, Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall remain in full force and effect. Notwithstanding the foregoing, Borrower or the Other Swap Pledgor may transfer the Hedge Agreements to the OP or any Permitted REIT Subsidiary substantially concurrently with or following the IPO Closing Time so long as (i) the OP or such Permitted REIT Subsidiary assumes the obligations under the Hedge Agreements and indemnifies the Other Swap Pledgor party thereto from any obligations thereunder arising from and after such assumption (unless the Other Swap Pledgor is released by the Counterparty thereto from its obligations thereunder); (ii) the OP or such Permitted
6
REIT Subsidiary assumes and ratifies all of the obligations of the Other Swap Pledgor under the Hedge Agreement Pledge and delivers such documents and takes such other steps as are deemed reasonably necessary by the Administrative Agent to preserve, protect and maintain, and to assure the first priority of, the security interests arising thereunder from and after such assumption; (iii) prior to such transfer, the Third Party Counterparty thereto confirms that such transfer is permitted and that any acknowledgment previously delivered to the Administrative Agent will remain in effect after such transfer; and (iv) all documentation relating to the foregoing is delivered to the Administrative Agent within ten (10) Business Days after such documentation is fully executed and delivered by the parties thereto.
6. Modification to DSCR for Restoration following Casualty . Section 10.03(c)(iv) of the Loan Agreement is hereby modified to replace "1:50[sic]:1.00" with "1.35-to-1.00."
7. Modifications to Cross-Default Provision relating to Guaranteed Line of Credit . Section 12.01(m) of the Loan Agreement shall not apply if the obligations under the applicable Guarantee thereof furnished by a Borrower or Co-Borrower or any Subsidiary of the Borrower or Co-Borrower in conformity with Section 9.04(h) of the Loan Agreement are secured, in compliance with Section 9.02(k) of the Loan Agreement, exclusively by Liens on one or more Excluded Projects, and the obligations under such Guarantee are non-recourse to the Borrower and Co-Borrower and their respective Subsidiaries (except for "carve-outs" for the Borrower's or Co-Borrower's or their respective Subsidiary's fraud, misrepresentation, misappropriation and other exceptions-from-non-recourse with respect to the acts of such Borrower, Co-Borrower or Subsidiary customary in the real estate finance industry). In addition, to the extent that Section 12.01(m) of the Loan Agreement does apply, it shall not be an Event of Default under the Loans unless and until the obligor under the Guaranteed Line of Credit has failed to cure an event of default under the Guaranteed Line of Credit following applicable notice and cure periods thereunder. References in Sections 9.02(k) and 9.04(h) of the Loan Agreement to the phrase "Borrower or its Subsidiaries" shall be replaced by "Borrower or any Co-Borrower or their respective Subsidiaries".
8. Effect of Consummation of IPO Transactions . It is agreed that the REIT is the Permitted Public REIT described in the Loan Agreement; the OP is the Operating Partnership described in the Loan Agreement; the transactions described in the Final S-11 include transactions which comprise the Permitted Reorganization and the Permitted Public REIT Transfer; and that Borrower shall have no further right, from and after the IPO Closing Time, to consummate any other Permitted Reorganization or Permitted Public REIT Transfer, except for transfers which are permitted under Section 9.03 of the Loan Agreement following a Permitted Public REIT Transfer, the changes to Borrower's Manager that are permitted under Section 14.31(a) of the Loan Agreement, the changes to its fiscal year permitted under Section 14.31(b) of the Loan Agreement, the dissolution of the Borrower's Member and changes in the Property Manager or management arrangements for the Projects that are permitted under Section 14.31(d) of the Loan Agreement (provided that it is understood for both of these purposes that all references therein to the Permitted Public REIT shall mean and refer to the REIT). Effective upon the IPO Closing Time, (i) the provisions of the Loan Agreement which permit transfers to or acquisitions of interests in Borrower by a Permitted Private REIT or a Permitted Private REIT Subsidiary shall be of no further force or effect; (ii) all references in the Loan Agreement to a "Permitted REIT" shall mean the REIT; and (iii) there shall be only one Permitted Public REIT, which shall be the REIT.
9. Participation by DERA or Named Principals Going Forward . It is understood and agreed that the references to the Named Principals in the following provisions of the Loan Documents shall be of no further force or effect: the definitions of "Immaterial Subsidiary," "Permitted Public REIT" and "Principals," and Sections 9.03(a)(iii), 9.03(b), 9.03(c), 9.04(e), 9.04(f), 9.04(g), 9.15 and 12.01(s).
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10. Release of DERA and Douglas, Emmett & Company . The Administrative Agent and the Lenders hereby release (i) DERA from any and all obligations and liabilities under the Guarantor Documents arising from and after the IPO Closing Time and (ii) Douglas Emmett & Company from any and all obligations and liabilities under the Property Manager's Consents arising from and after the IPO Closing Time.
11. Reserved.
12. Reserved.
13. Ratification of Liens . Each of the Deeds of Trust and other Security Documents is modified to secure payment and performance of the Obligations of Borrower and each New Co-Borrower under the Loan Documents as modified and supplemented pursuant to this Agreement, in addition to all other Obligations stated therein to be secured therein.
14. Additional Advances .
(a) The outstanding balance of the Loans immediately prior to the IPO Closing Time is $150,000,000 (the " Pre-IPO Outstanding Balance ").
(b) On the date on which the IPO Closing Time occurs, each Lender having an IPO Closing Date Commitment (as defined below) severally agrees to make an additional advance to Borrower (each such loan, an " IPO Closing Date Advance ") in an amount identified in Amended and Restated Schedule 1.01(4) as the " IPO Closing Date Commitment " of such Lender in accordance with the terms and conditions set forth in this Section 14 . The " IPO Closing Date Commitment Percentage " means, as to any Lender at any time, the percentage equivalent of such Lender's IPO Closing Date Commitment divided by the IPO Closing Date Commitments of all Lenders at such time.
(c) Reserved.
(d) Reserved.
(e) The IPO Closing Date Advances (collectively, " Additional Advances ") made by each Lender having an IPO Closing Date Commitment or Deferred Funding Commitment, respectively, shall be evidenced by the Additional Note A, Additional Note B or Additional Note C, as applicable, delivered to such Lender. Once repaid or prepaid, Borrower may not reborrow any Additional Advance.
(f) Additional Advance Notice . Each Additional Advance shall be made upon the irrevocable written notice (including notice via facsimile confirmed immediately by a telephone call) of Borrower in the form of Exhibit A attached hereto (an " Additional Advance Notice ") as more fully provided below:
(i) Rate and Terms . Each Additional Advance shall be a Loan, and shall bear interest and otherwise be subject to the terms and conditions that apply to all other Loans.
(ii) Timing of Notice . Each Additional Advance Notice shall be submitted to and received by the Administrative Agent prior to 9:00 a.m. (New York time) (A) at least three (3) Business Days prior to the specified borrowing date, in the case of Eurodollar Loans; and (B) at least two (2) Business Days prior to the specified borrowing date, in the case of Base Rate Loans. Notwithstanding the foregoing, in the case of the Additional Advance Notice delivered in connection with the IPO Closing Date Advance, the time of day by which such notice shall be delivered shall be prior to 12:00 noon (California time).
(iii) Contents of Notice . Each Additional Advance Notice shall set forth the following information with respect to the Loan subject thereto:
(A) a single, specific borrowing date, which shall be a Business Day;
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(B) a single, exact amount for the Loan, which for any Eurodollar Loan, shall be in an aggregate minimum principal amount of $1,000,000 or any multiple of $100,000 in excess thereof (or such lesser amount as shall then constitute the remaining amount of the IPO Closing Date Commitments);
(C) whether the Loan is to be made as a Eurodollar Loan or a Base Rate Loan; and
(D) if the Loan is to be made as a Eurodollar Loan, the applicable Interest Period. If an Additional Advance Notice shall fail to specify the applicable Interest Period for any Eurodollar Loan requested, such Loan will be made as a Eurodollar Loan with a one month Interest Period.
(g) Notice to Lenders . Upon receipt of an Additional Advance Notice conforming with the terms of this Section 14 , the Administrative Agent shall promptly notify each Lender thereof and of the amount of such Lender's IPO Closing Date Commitment Percentage of the Loan described therein.
(h) Funding of Commitments .
(i) Each Lender shall make the amount of its IPO Closing Date Commitment Percentage of the IPO Closing Date Advances available to the Administrative Agent for the account of Borrower on the date on which the IPO Closing Time occurs. In furtherance of the foregoing, provided that the Borrower shall have provided to the Administrative Agent prior to 9:00 A.M. New York time on the Business Day before the date on which the IPO Closing Time is scheduled to occur (the " Scheduled Closing Date "), unconditional authorization for closing and funding on the Scheduled Closing Date (including all such authorizations required pursuant to Section 10 of the Escrow Delivery Letter), the Administrative Agent shall provide telephonic or electronic notification thereof to the Lenders on the date the unconditional authorization is received, and each Lender shall initiate by 9:30 a.m. (New York time) the wire transfer of its respective IPO Closing Date Commitment Percentages of the IPO Closing Date Advances to the Administrative Agent for the account of Borrower on the Scheduled Closing Date in Dollars immediately available to the Administrative Agent, and shall otherwise use commercially reasonable efforts to make such funds available to the Administrative Agent for the account of Borrower on the Scheduled Closing Date, with the objective that the Administrative Agent shall have received such funds by such time as to be in a position to make such funds available to Borrower (provided all conditions to funding set forth herein and in the Escrow Delivery Letter have been satisfied) on or prior to 12:00 noon (New York time) on the Scheduled Closing Date, by wire transferring to such account or accounts as shall have been designated to it by Borrower the aggregate of the amounts made available to the Administrative Agent by the Lenders. The Borrower acknowledges that (except for the obligations of the Lenders to initiate wires as provided herein) no assurances have been made by the Lenders or the Administrative Agent that funds necessarily will be available to Borrower by any specific time. If the Borrower provides the above-referenced authorization to the Administrative Agent at least one (1) Business Day before the Scheduled Closing Date, and if for any reason the IPO Closing Time does not occur on the Scheduled Closing Date, the Administrative Agent shall return any funds received from any Lender to such Lender, and the Borrower shall be responsible for all costs and expenses that result from the fundings by the Lenders (including interest for the day in question, unless such funds are returned by the time on such day by which a payment would be required to be made pursuant to Section 4.01(a) of the Loan Agreement in order to avoid the accrual of interest for such day, and costs and expenses of the type referred to in Article V of the Loan Agreement). All amounts to be funded pursuant to this Section shall be funded in Dollars.
(ii) Reserved.
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(i) Reserved.
(j) Reserved.
(k) Reserved.
15. Modifications of Certain Provisions of the Loan Agreement . The following provisions of the Loan Agreement are hereby modified as follows:
(a) The first sentence of Section 7.10 of the Loan Agreement is hereby deleted. The third sentence of Section 7.10 of the Loan Agreement is hereby replaced by the following: "The sole manager of Borrower is New Borrower's Manager. The sole general partner of Borrower's Member is New General Partner."
(b) The second sentence of Section 7.11 of the Loan Agreement is hereby replaced by the following: "Neither Borrower nor Borrower's Member has any Subsidiaries except for those shown on Schedule 7.11 ."
(c) The second sentence of Section 7.14 of the Loan Agreement is hereby replaced by the following: "The Borrower and the New Borrower's Manager were organized in the State of Delaware, and the Borrower's Member was organized in the State of California."
(d) In Section 7.22 of the Loan Agreement, the reference to "Douglas, Emmett & Company Delinquency/Aging Report (Summarized) dated 7/20/2005" is hereby replaced by "Douglas, Emmett & Company Delinquency/Aging Report (Summarized) dated , 2006".
(e) In Section 7.26 of the Loan Agreement, the reference to the Property Management Agreement shall be to the Property Management Agreement between Borrower or Co-Borrower and New General Partner in effect as of the IPO Closing Time.
(f) Sections 7.35 and 7.37 of the Loan Agreement are hereby deleted.
16. Certain Acknowledgments . Administrative Agent and the Lenders hereby acknowledge and agree as follows:
(a) The Formation Transactions and the other elements of the Permitted Reorganization (including, without limitation, modifications to the organizational documents of the Borrower Parties in effect as of the IPO Closing Time) are approved to the extent required by the Loan Documents.
(b) The transfer of Equity Interests in any existing Subsidiary of Borrower to Borrower's Member or any other Permitted Public REIT Subsidiary will not require the consent of the Administrative Agent or the Lenders. The transfer of Equity Interests in any existing Subsidiary of Borrower's Member (other than Borrower) to any other Permitted Public REIT Subsidiary will not require the consent of the Administrative Agent or the Lenders.
17. Incorporation . This Agreement shall form a part of each Loan Document, and all references in any Loan Document to a given Loan Document shall mean that document as hereby modified.
18. No Prejudice; Reservation of Rights . This Agreement shall not prejudice any rights or remedies of the Administrative Agent or the Lenders under the Loan Documents, as modified hereby.
19. No Impairment . Except as specifically hereby amended, the Loan Documents shall each remain unaffected by this Agreement and all such documents shall remain in full force and effect. Nothing in this Agreement shall impair the Liens of the Deeds of Trust or other Security Documents. The Deeds of Trust as hereby amended shall remain deeds of trust with power of sale, creating first Liens encumbering each Project.
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20. Integration . The Loan Documents, including this Agreement, the Escrow Delivery Letter and the documents delivered concurrently herewith pursuant to the Escrow Delivery Letter: (a) integrate all the terms and conditions mentioned in or incidental to the Loan Documents; (b) supersede all oral negotiations and prior and other writings with respect to their subject matter; and (c) are intended by the parties as the final expression of the agreement with respect to the terms and conditions set forth in those documents and as the complete and exclusive statement of the terms agreed to by the parties. If there is any conflict between the terms, conditions and provisions of this Agreement and those of any other agreement or instrument, including any of the other Loan Documents, the terms, conditions and provisions of this Agreement shall prevail.
21. Miscellaneous . This Agreement and any attached consents or exhibits requiring signatures may be executed in counterparts (and delivered via facsimile or through electronic delivery of a pdf file), and all such counterparts and documents delivered via facsimile or through electronic delivery of a pdf file shall constitute but one and the same document. If any court of competent jurisdiction determines any provision of this Agreement or any of the other Loan Documents to be invalid, illegal or unenforceable, that portion shall be deemed severed from the rest, which shall remain in full force and effect as though the invalid, illegal or unenforceable portion had never been a part of the Loan Documents. This Agreement shall be governed by the laws of the State of California, without regard to the choice of law rules of that State.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written.
BORROWER: | |||
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DOUGLAS EMMETT 1998, LLC, a Delaware limited liability company |
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By: |
Douglas Emmett Management, Inc., a Delaware corporation, its Manager |
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By: |
William Kamer Chief Financial Officer |
NEW CO-BORROWERS: | ||||
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BRENTWOOD COURT, a California limited partnership |
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By: |
DOUGLAS EMMETT MANAGEMENT, LLC, a Delaware limited liability company, its General Partner |
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By: |
DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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By: |
William Kamer Chief Financial Officer |
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BRENTWOOD-SAN VICENTE MEDICAL, LTD., a California limited partnership |
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By: |
DOUGLAS EMMETT MANAGEMENT, LLC, a Delaware limited liability company, its General Partner |
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By: |
DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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By: |
William Kamer Chief Financial Officer |
LENDERS | ||
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NOTE A-1 LENDER: |
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MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY |
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By: |
Babson Capital Management Inc. |
Its: | Authorized Agent | |
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By: |
Name: Title: |
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NOTE A-2 LENDER: |
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METROPOLITAN LIFE INSURANCE COMPANY, A NEW YORK CORPORATION |
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By: |
Name: Title: |
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NOTE A-3 LENDER: |
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WACHOVIA BANK, NATIONAL ASSOCIATION |
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By: |
Name: Title: |
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NOTE A-4 LENDER: |
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HYPO REAL ESTATE BANK INTERNATIONAL AG |
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By: |
Name: Title: |
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NOTE B-1 LENDER, NOTE B-2A LENDER, NOTE B-9B LENDER AND NOTE B-10B LENDER: |
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EUROHYPO AG, NEW YORK BRANCH |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-2B LENDER: |
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BAYERISCHE LANDESBANK, NEW YORK BRANCH |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-3 LENDER: |
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HYPOTHEKENBANK IN ESSEN AG |
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By: |
Name: Title: |
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NOTE B-4 LENDER: |
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LANDESBANK BADEN-WÜRTTEMBERG, NEW YORK BRANCH |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-5 LENDER: |
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LANDESBANK HESSEN-THÜRINGEN GIROZENTRALE |
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By: |
Name: Title: |
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NOTE B-6 LENDER: |
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LANDESBANK SACHSEN GIROZENTRALE |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-7 LENDER: |
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LRP LANDESBANK RHEINLAND-PFALZ |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-8 LENDER: |
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MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY |
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By: |
Babson Capital Management Inc. |
Its: | Authorized Agent | |
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By: |
Name: Title: |
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NOTE B-9A LENDER: |
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PB CAPITAL CORPORATION |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-10A LENDER: |
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PB (USA) REALTY CORPORATION |
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By: |
Name: Title: |
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By: |
Name: Title: |
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NOTE B-11 LENDER: |
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PNC BANK, NATIONAL ASSOCIATION |
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By: |
Name: Title: |
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NOTE C-1 LENDER: |
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BARCLAYS CAPITAL REAL ESTATE INC. |
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By: |
Name: Title: |
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NOTE C-2 LENDER: |
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EUROHYPO AG, NEW YORK BRANCH |
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By: |
Name: Title: |
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By: |
Name: Title: |
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ADMINISTRATIVE AGENT: |
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EUROHYPO AG, NEW YORK BRANCH, as Administrative Agent |
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By: |
Name: Title: |
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By: |
Name: Title: |
Douglas Emmett 2000, LLC
MODIFICATION AGREEMENT
(Long Form)
v]This Modification Agreement (" Agreement ") is made as of , 2006, by and among Douglas Emmett 2000, LLC, a limited liability company organized under the laws of the State of Delaware (" Borrower "); each of the lenders that is a signatory hereto identified under the caption "LENDERS" on the signature pages hereto (individually, a " Lender " and, collectively, the " Lenders "); and EUROHYPO AG, NEW YORK BRANCH, as agent for the Lenders (in such capacity, together with its successors in such capacity, the " Administrative Agent ").
Factual Background
A. Borrower, the Lenders and the Administrative Agent are parties to that certain Loan Agreement dated as of August 25, 2005 (said Loan Agreement, as Modified and in effect from time to time, being herein called the " Loan Agreement "; and except as otherwise herein expressly provided, all terms defined in the Loan Agreement are being used herein as defined therein), whereby the Lenders made Loans to Borrower.
B. The Loans are evidenced by, and repayable with interest thereon in accordance with certain Notes and secured by the Deeds of Trust encumbering the Projects referred to in the Loan Agreement which have not heretofore been released (the " Existing Projects ") and the other Security Documents.
C. Douglas Emmett Realty Advisors, a California corporation (" DERA ") guaranteed certain obligations of Borrower in accordance with a Borrower's Manager's Limited Indemnity and Guarantee dated August 25, 2005.
D. As of the date of this Agreement, and prior to giving effect to the modifications herein, the outstanding principal balance of the Loans is $425,000,000. In connection with the modifications provided for herein, upon the IPO Closing Time described below, the maximum outstanding principal balance of the Loans will be increased to $534,500,000, and certain other modifications as described herein shall be made to the terms of the Loans.
E. Borrower has represented to the Agent and the Lenders that the "Formation Transactions" (as described in that certain Amendment No. 2 to Form S-11 filed on September 20, 2006 with the United States Securities and Exchange Commission 1 ) (the " Original S-11 ") have been consummated. Those transactions include, among other things, an initial public offering (the " IPO ") of shares in Douglas Emmett, Inc., a Maryland corporation (the " REIT "), as part of a series of transactions that are intended to qualify as a Permitted Reorganization and a Permitted Public REIT Transfer. Pursuant to those transactions, Douglas Emmett Properties LP, a Delaware limited partnership (the " OP "), is the operating partnership and principal subsidiary of the REIT; Borrower's Member, through a merger with a directly or indirectly wholly-owned subsidiary of the OP pursuant to an Agreement and Plan of Merger (the " Borrower's Member Merger Agreement "), in which Borrower's Member is the surviving entity, and other contribution transactions involving the REIT or its subsidiaries, has become a directly or indirectly wholly-owned Subsidiary of the OP; Borrower's Manager, through a merger with a directly or indirectly wholly-owned subsidiary of the REIT pursuant to an Agreement and Plan of Merger (the " Borrower's Manager Merger Agreement "), in which Borrower's Manager is not the surviving entity, and other contribution transactions involving the REIT or its subsidiaries, has transferred its general partnership interest in Borrower's Member to Douglas Emmett Management, LLC, a Delaware limited liability company (" New General Partner "); Borrower's Manager has resigned as the non-member manager of Borrower and of any existing subsidiaries of Borrower or Borrower's Member that are
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limited liability companies, and Douglas Emmett Management, Inc., a Delaware corporation (" New Borrower's Manager "), a wholly-owned subsidiary of the REIT, has been appointed as the new non-member manager of Borrower and of any existing subsidiaries of Borrower or Borrower's Member that are limited liability companies; and the Property Management Agreement for each Existing Project with Douglas, Emmett and Company, a California corporation, has been terminated and new property management agreements for each Existing Project have been entered into with New General Partner. Borrower's Member Merger Agreement, Borrower's Manager Merger Agreement and the other documents entered into in connection with the Formation Transactions are collectively referred to herein as the " Reorganization Documents ." The date and time as of which the proceeds of the IPO have been received by the REIT is sometimes referred to herein as the " IPO Closing Time ."
F. Borrower, the Lenders and the Administrative Agent entered into that certain escrow delivery letter agreement, dated as of September , 2006 (the " Escrow Delivery Letter "), pursuant to which certain documents (including this Agreement) were deposited with counsel to the Administrative Agent in escrow, pending the IPO Closing Time and the satisfaction of certain conditions set forth in such Escrow Delivery Letter.
G. Borrower, the Lenders and the Administrative Agent now wish to modify the Loan Agreement and other Loan Documents as set forth below.
Agreement
Therefore, Borrower, the Lenders and the Administrative Agent agree effective upon the IPO Closing Time as follows:
1. Reaffirmation of Loan . Borrower reaffirms all of its obligations under the Loan Documents, and Borrower acknowledges that it has no claims, offsets or defenses with respect to the payment of sums due under the Notes or any other Loan Document.
2. Reserved .
3. Modification of Loan Documents . Effective upon the IPO Closing Time, the Loan Documents are hereby amended, and additional agreements are hereby made with respect to the Loans, as follows:
(a) Modified Loan Agreement and Loan Documents . All references to the Loan Agreement in the Loan Agreement or in any other Loan Documents shall mean the Loan Agreement as modified by this Modification Agreement. In addition to the documents identified in the Loan Agreement, the Loan Documents shall include, without limitation, this Agreement and the documents delivered pursuant to Sections 2, 3 and 9(c) of the Escrow Delivery Letter.
(b) Modification to Allocated Loan Amounts, Appraisal Amounts and Title Insurance Amounts . Schedules 1.01(1), 1.01(3) and 1.01(9) , attached to the Loan Agreement are hereby amended and restated in their entireties by Amended and Restated Schedules 1.01(1), 1.01(3) and 1.01(9) attached to this Agreement. Such Amended and Restated Schedules 1.01(1), 1.01(3) and 1.01(9) set forth, respectively, revised Allocated Loan Amounts, Appraisal Amounts and Title Policy amounts for each Project.
(c) Modification to Proportionate Shares and Commitments of the Lenders . Schedule 1.01(4) attached to the Loan Agreement is hereby amended and restated in its entirety by Amended and Restated Schedule 1.01(4) attached to this Agreement. Such Amended and Restated Schedule 1.01(4) sets forth the revised Proportionate Shares and Commitments of the Lenders.
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(d) Additional Definitions . The following additional definitions are hereby added to the Loan Agreement:
(i) " Additional Note A " shall mean those certain notes denominated "Additional Advance Note A" dated as of the date hereof, executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $62,393,162.40, as the same may be Modified from time to time.
(ii) " Additional Note B " shall mean those certain notes denominated "Additional Advance Note B" dated as of the date hereof, executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $40,867,521.36, as the same may be Modified from time to time.
(iii) " Additional Note C " shall mean those certain notes denominated "Additional Advance Note C" as of the date hereof, executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $6,239,316.24, as the same may be Modified from time to time.
(iv) " Allocated Loan Percentage " means at any time with respect to any Project a percentage determined by multiplying one hundred percent (100%) by a fraction, the numerator of which is the Allocated Loan Amount for such Project and the denominator of which is the Allocated Loan Amounts for all Projects which, at such time, are collateral for the Loans.
(v) Reserved .
(vi) Reserved .
(vii) " Modification Agreement " shall mean the Modification Agreement entered into by Borrower, the Administrative Agent and the Lenders party thereto effective as of the IPO Closing Time.
(viii) " Project-Specific Deferred Funding Allocable Share " shall mean, with respect to any Project at any time, a percentage determined by multiplying one hundred percent (100%) by a fraction, the numerator of which is the Allocated Loan Percentage for such Project and the denominator of which is the aggregate of the Allocated Loan Percentages for all Projects which, at such time, are collateral for the Loans.
(ix) " OP " means Douglas Emmett Properties, LP, a Delaware limited partnership. All references in the Loan Documents to the Operating Partnership shall mean the OP.
(x) " REIT " means Douglas Emmett, Inc., a Maryland corporation. All references in the Loan Documents to the Permitted Public REIT shall mean the REIT.
(e) Additional Definitions from Modification Agreement . The following terms which are defined in this Modification Agreement (and the definitions thereof set forth herein) are hereby added to the Loan Agreement:
(i) "Additional Advance"
(ii) "Additional Advance Notice"
(iii) "Allocated Loan Percentage"
(iv) "Deferred Funding Advance"
(v) "Deferred Funding Commitment Percentage"
(vi) "IPO Closing Date Commitments"
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(vii) "IPO Closing Date Advance"
(viii) "IPO Closing Date Commitment Percentage"
(ix) "IPO Closing Time"
(x) "Pre-IPO Outstanding Balance"
(xi) Reserved.
(xii) Reserved.
(xiii) Reserved.
(xiv) "New Borrower's Manager"
(xv) "New General Partner"
(f) Amendments to Certain Definitions . The definitions of the following terms in the Loan Agreement are hereby amended and restated in their entireties as follows:
(i) Reserved.
(ii) Reserved.
(iii) " Douglas Emmett Realty Funds " shall mean Douglas Emmett Joint Venture, Douglas Emmett Realty Fund 1995, Douglas Emmett Realty Fund 1996, Douglas Emmett Realty Fund 1997, Douglas Emmett Realty Fund 1998, Douglas Emmett Realty Fund 2000, Douglas Emmett Realty Fund 2002 and Douglas Emmett Realty Fund 2005, each Co-Borrower, and their respective Subsidiaries.
(iv) " Note A " shall mean, collectively, (i) those certain notes denominated "Note A" dated concurrently with the original Loan Agreement (or notes denominated Note A dated September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution of certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $242,165,242.16, as the same may be Modified from time to time, and (ii) each Additional Note A. Each Note A shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(v) " Note B " shall mean, collectively, (i) those certain notes denominated "Note B" dated concurrently with the original Loan Agreement (or notes denominated Note B dated September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution of certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $158,618,233.62, as the same may be Modified from time to time, and (ii) each Additional Note B. Each Note B shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(vi) " Note C " shall mean, collectively, (i) those certain notes denominated "Note C" dated concurrently with the original Loan Agreement (or notes denominated Note C dated September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution of certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower to the order of the Lender named therein, in the aggregate original principal amount of $24,216,524.22, as the same may be Modified from time to time, and (ii) each Additional Note C. Each Note C shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
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(vii) " Qualified Successor Entity " shall mean a Permitted Public REIT Subsidiary of the REIT (other than the OP).
(viii) " Stated Maturity Date " means August 31, 2012, subject to Section 2.10.
(g) Modifications to certain References . The following references in the Loan Documents are hereby replaced as follows:
(i) Each reference in the Loan Documents to Douglas, Emmett & Company as the Property Manager is hereby replaced with a reference to Douglas Emmett Management, LLC, a Delaware limited liability company.
(ii) Each reference in the Loan Documents to DERA as Borrower's Manager is hereby replaced with a reference to Douglas Emmett Management, Inc., a Delaware corporation. Each reference to Borrower's Manager shall mean Douglas Emmett Management, Inc., a Delaware corporation, until such time as a new Borrower's Manager is appointed as permitted by the Loan Agreement.
(iii) Each reference in the Loan Documents to DERA as the sole general partner of Borrower's Member is hereby replaced with a reference to Douglas Emmett Management, LLC, a Delaware limited liability company, and each reference to the general partner of Borrower's Member shall mean Douglas Emmett Management, LLC, a Delaware limited liability company, until such time as a new general partner of Borrower's Member is admitted as permitted by the Loan Agreement.
(iv) Each reference in the Loan Documents to DERA in its capacity as guarantor pursuant to the Guarantor Documents is hereby replaced with a reference to the OP. Each reference in the Loan Documents to "Borrower's Manager's Limited Indemnity and Guarantee" shall mean and refer to the Limited Indemnity and Guarantee delivered by the OP effective upon the IPO Closing Time.
(v) For purposes of the following provisions of the Loan Agreement, the term "Borrower Party" shall include, without limitation, the OP: the definitions of "ERISA Affiliate," "ERISA Event," "Material Adverse Effect," and "Plan," and Sections 7.02, 7.06, 7.07, 7.30, 7.33, 8.03, 9.16 and 12.01(c) of the Loan Agreement.
(vi) The references to "Borrower Party" in Section 12.02(a) of the Loan Agreement are hereby replaced with "Bankruptcy Party."
(vii) The following Schedules attached to the Loan Agreement are hereby supplemented or amended and restated (as set forth below):
(A) Reserved.
(B) Schedules 7.05 , 7.11 and 7.22 are hereby amended and restated as set forth in Amended and Restated Schedules 7.05 , 7.11 , and 7.22 attached hereto.
(viii) The "Primary Credit Facility" referred to in the Loan Agreement shall mean the primary revolving credit facility under which the Permitted REIT (directly or through its Operating Partnership or another Permitted REIT Subsidiary) obtains financing for its general purposes.
(ix) The reference to "Secured Capital" in the Loan Agreement is hereby revised to "Eastdil Secured Capital and affiliates."
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(x) The parties acknowledge that the Stub Interest Period ended on (but did not include) September 1, 2005. Accordingly, Section 2.10 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
"Notwithstanding anything to the contrary contained in this Agreement, (i) the Outstanding Principal Amount under all Notes shall become automatically due and payable on September 1, 2010 if on or prior to such date the Borrower has not paid to the Administrative Agent in accordance with the Fee Letter for the benefit of the Lenders an extension fee equal to five (5) basis points (0.05%) times the Outstanding Principal Amount under all Notes as of September 1, 2010 or if on such date an Event of Default exists and (ii) the Outstanding Principal Amount under all Notes shall become automatically due and payable on September 1, 2011 if on such date the Borrower has not paid to the Administrative Agent in accordance with the Fee Letter for the benefit of the Lenders an extension fee equal to five (5) basis points (0.05%) times the Outstanding Principal Amount under all Notes as of September 1, 2011 or if on such date an Event of Default exists."
4. Modification to DSCR for Project Releases . Section 2.09(a)(v) of the Loan Agreement is hereby modified to replace "1.50-to-1.00" with "1.35-to-1.00."
5. Understandings Concerning Hedge Arrangements . Notwithstanding anything to the contrary set forth in the Loan Agreement or the other Loan Documents, the Aggregate Notional Amount as to which Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall apply shall be an amount equal to the outstanding principal balance of the Loans as of the date of this Agreement, without giving effect to any of the Additional Advances made pursuant to this Agreement, whether on or after the IPO Closing Time; provided, however, that in the event the Outstanding Principal Amount is reduced below such amount, the Aggregate Notional Amount as to which Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall apply shall not exceed the Outstanding Principal Amount. For purposes of Section 8.19 of the Loan Agreement only, the All-In Rate shall be determined pursuant to clause (i) of the first sentence of the definition of All-In Rate. In all other respects, Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall remain in full force and effect. Notwithstanding the foregoing, Borrower or the Other Swap Pledgor may transfer the Hedge Agreements to the OP or any Permitted REIT Subsidiary substantially concurrently with or following the IPO Closing Time so long as (i) the OP or such Permitted REIT Subsidiary assumes the obligations under the Hedge Agreements and indemnifies the Other Swap Pledgor party thereto from any obligations thereunder arising from and after such assumption (unless the Other Swap Pledgor is released by the Counterparty thereto from its obligations thereunder); (ii) the OP or such Permitted REIT Subsidiary assumes and ratifies all of the obligations of the Other Swap Pledgor under the Hedge Agreement Pledge and delivers such documents and takes such other steps as are deemed reasonably necessary by the Administrative Agent to preserve, protect and maintain, and to assure the first priority of, the security interests arising thereunder from and after such assumption; (iii) prior to such transfer, the Third Party Counterparty thereto confirms that such transfer is permitted and that any acknowledgment previously delivered to the Administrative Agent will remain in effect after such transfer; and (iv) all documentation relating to the foregoing is delivered to the Administrative Agent within ten (10) Business Days after such documentation is fully executed and delivered by the parties thereto.
6. Modification to DSCR for Restoration following Casualty . Section 10.03(c)(iv) of the Loan Agreement is hereby modified to replace "1:50[sic]:1.00" with "1.35-to-1.00."
7. Modifications to Cross-Default Provision relating to Guaranteed Line of Credit . Section 12.01(m) of the Loan Agreement shall not apply if the obligations under the applicable Guarantee thereof furnished by a Borrower or any Subsidiary of the Borrower in conformity with Section 9.04(h) of the Loan Agreement are secured, in compliance with Section 9.02(k) of the Loan Agreement, exclusively by
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Liens on one or more Excluded Projects, and the obligations under such Guarantee are non-recourse to the Borrower and its Subsidiaries (except for "carve-outs" for the Borrower's or such Subsidiary's fraud, misrepresentation, misappropriation and other exceptions-from-non-recourse with respect to the acts of such Borrower or Subsidiary customary in the real estate finance industry). In addition, to the extent that Section 12.01(m) of the Loan Agreement does apply, it shall not be an Event of Default under the Loans unless and until the obligor under the Guaranteed Line of Credit has failed to cure an event of default under the Guaranteed Line of Credit following applicable notice and cure periods thereunder.
8. Effect of Consummation of IPO Transactions . It is agreed that the REIT is the Permitted Public REIT described in the Loan Agreement; the OP is the Operating Partnership described in the Loan Agreement; the transactions described in the Final S-11 include transactions which comprise the Permitted Reorganization and the Permitted Public REIT Transfer; and that Borrower shall have no further right, from and after the IPO Closing Time, to consummate any other Permitted Reorganization or Permitted Public REIT Transfer, except for transfers which are permitted under Section 9.03 of the Loan Agreement following a Permitted Public REIT Transfer, the changes to Borrower's Manager that are permitted under Section 14.31(a) of the Loan Agreement, the changes to its fiscal year permitted under Section 14.31(b) of the Loan Agreement, the dissolution of the Borrower's Member and changes in the Property Manager or management arrangements for the Projects that are permitted under Section 14.31(d) of the Loan Agreement (provided that it is understood for both of these purposes that all references therein to the Permitted Public REIT shall mean and refer to the REIT). Effective upon the IPO Closing Time, (i) the provisions of the Loan Agreement which permit transfers to or acquisitions of interests in Borrower by a Permitted Private REIT or a Permitted Private REIT Subsidiary shall be of no further force or effect; (ii) all references in the Loan Agreement to a "Permitted REIT" shall mean the REIT; and (iii) there shall be only one Permitted Public REIT, which shall be the REIT.
9. Participation by DERA or Named Principals Going Forward . It is understood and agreed that the references to the Named Principals in the following provisions of the Loan Documents shall be of no further force or effect: the definitions of "Immaterial Subsidiary," "Permitted Public REIT" and "Principals," and Sections 9.03(a)(iii), 9.03(b), 9.03(c), 9.04(e), 9.04(f), 9.04(g), 9.15 and 12.01(s).
10. Release of DERA and Douglas, Emmett & Company . The Administrative Agent and the Lenders hereby release (i) DERA from any and all obligations and liabilities under the Guarantor Documents arising from and after the IPO Closing Time and (ii) Douglas Emmett & Company from any and all obligations and liabilities under the Property Manager's Consents arising from and after the IPO Closing Time.
11. Reserved .
12. Reserved .
13. Ratification of Liens . Each of the Deeds of Trust and other Security Documents is modified to secure payment and performance of the Obligations of Borrower under the Loan Documents as modified and supplemented pursuant to this Agreement, in addition to all other Obligations stated therein to be secured therein.
14. Additional Advances .
(a) The outstanding balance of the Loans immediately prior to the IPO Closing Time is $425,000,000 (the " Pre-IPO Outstanding Balance ").
(b) On the date on which the IPO Closing Time occurs, each Lender having an IPO Closing Date Commitment (as defined below) severally agrees to make an additional advance to Borrower (each such loan, an " IPO Closing Date Advance ") in an amount identified in Amended and Restated
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Schedule 1.01(4) as the " IPO Closing Date Commitment " of such Lender in accordance with the terms and conditions set forth in this Section 14 . The " IPO Closing Date Commitment Percentage " means, as to any Lender at any time, the percentage equivalent of such Lender's IPO Closing Date Commitment divided by the IPO Closing Date Commitments of all Lenders at such time.
(c) At any time on or subsequent to the date on which the IPO Closing Time occurs, each Lender having a Deferred Funding Commitment (as defined below) severally agrees, on the terms and conditions hereinafter set forth in this Section 14 , to advance from time to time loans to Borrower (each such loan, a " Deferred Funding Advance "), in an aggregate amount not to exceed (subject to adjustment pursuant to Section 14(j) of this Agreement) the amount identified in Amended and Restated Schedule 1.01(4) as the " Deferred Funding Commitment " of such Lender. The Deferred Funding Commitments of all Lenders having Deferred Funding Commitments on the date hereof (prior to any Deferred Funding Advances, if any, made on the date hereof) shall equal $100,250,000. Subject to adjustment pursuant to Section 14(j) of this Agreement, the " Deferred Funding Commitment Percentage " means, as to any Lender at any time, the percentage equivalent of such Lender's Deferred Funding Commitment divided by the Deferred Funding Commitments of all Lenders at such time.
(d) Notwithstanding anything to the contrary contained in this Agreement, not more than $50,000,000 in Deferred Funding Advances (or such lesser sum as shall then represent the Deferred Funding Commitments of the Lenders having Deferred Funding Commitments) shall be advanced by all Lenders having Deferred Funding Commitments in the aggregate from and after December 31, 2006. The Deferred Funding Commitments of the Lenders having Deferred Funding Commitments shall expire, and be of no further force and effect, if not drawn on or before the first anniversary date of the date on which the IPO Closing Time occurs.
(e) The IPO Closing Date Advances and Deferred Funding Advances (collectively, " Additional Advances ") made by each Lender having an IPO Closing Date Commitment or Deferred Funding Commitment, respectively, shall be evidenced by the Additional Note A, Additional Note B or Additional Note C, as applicable, delivered to such Lender. Once repaid or prepaid, Borrower may not reborrow any Additional Advance.
(f) Additional Advance Notice . Each Additional Advance shall be made upon the irrevocable written notice (including notice via facsimile confirmed immediately by a telephone call) of Borrower in the form of Exhibit A attached hereto (an " Additional Advance Notice ") as more fully provided below:
(i) Rate and Terms . Each Additional Advance shall be a Loan, and shall bear interest and otherwise be subject to the terms and conditions that apply to all other Loans.
(ii) Timing of Notice . Each Additional Advance Notice shall be submitted to and received by the Administrative Agent prior to 9:00 a.m. (New York time) (A) at least three (3) Business Days prior to the specified borrowing date, in the case of Eurodollar Loans; and (B) at least two (2) Business Days prior to the specified borrowing date, in the case of Base Rate Loans. Notwithstanding the foregoing, in the case of the Additional Advance Notice delivered in connection with the IPO Closing Date Advance, the time of day by which such notice shall be delivered shall be prior to 12:00 noon (California time).
(iii) Contents of Notice . Each Additional Advance Notice shall set forth the following information with respect to the Loan subject thereto:
(A) a single, specific borrowing date, which shall be a Business Day;
(B) a single, exact amount for the Loan, which for any Eurodollar Loan, shall be in an aggregate minimum principal amount of $1,000,000 or any multiple of $100,000 in
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excess thereof (or such lesser amount as shall then constitute the remaining amount of the Deferred Funding Commitments);
(C) whether the Loan is to be made as a Eurodollar Loan or a Base Rate Loan; and
(D) if the Loan is to be made as a Eurodollar Loan, the applicable Interest Period. If an Additional Advance Notice shall fail to specify the applicable Interest Period for any Eurodollar Loan requested, such Loan will be made as a Eurodollar Loan with a one month Interest Period.
(g) Notice to Lenders . Upon receipt of an Additional Advance Notice conforming with the terms of this Section 14 , the Administrative Agent shall promptly notify each Lender thereof and of the amount of such Lender's IPO Closing Date Commitment Percentage or Deferred Funding Commitment Percentage (as applicable) of the Loan described therein.
(h) Funding of Commitments .
(i) Each Lender shall make the amount of its IPO Closing Date Commitment Percentage of the IPO Closing Date Advances available to the Administrative Agent for the account of Borrower on the date on which the IPO Closing Time occurs. In furtherance of the foregoing, provided that the Borrower shall have provided to the Administrative Agent prior to 9:00 A.M. New York time on the Business Day before the date on which the IPO Closing Time is scheduled to occur (the " Scheduled Closing Date "), unconditional authorization for closing and funding on the Scheduled Closing Date (including all such authorizations required pursuant to Section 10 of the Escrow Delivery Letter), the Administrative Agent shall provide telephonic or electronic notification thereof to the Lenders on the date the unconditional authorization is received, and each Lender shall initiate by 9:30 a.m. (New York time) the wire transfer of its respective IPO Closing Date Commitment Percentages of the IPO Closing Date Advances to the Administrative Agent for the account of Borrower on the Scheduled Closing Date in Dollars immediately available to the Administrative Agent, and shall otherwise use commercially reasonable efforts to make such funds available to the Administrative Agent for the account of Borrower on the Scheduled Closing Date, with the objective that the Administrative Agent shall have received such funds by such time as to be in a position to make such funds available to Borrower (provided all conditions to funding set forth herein and in the Escrow Delivery Letter have been satisfied) on or prior to 12:00 noon (New York time) on the Scheduled Closing Date, by wire transferring to such account or accounts as shall have been designated to it by Borrower the aggregate of the amounts made available to the Administrative Agent by the Lenders. The Borrower acknowledges that (except for the obligations of the Lenders to initiate wires as provided herein) no assurances have been made by the Lenders or the Administrative Agent that funds necessarily will be available to Borrower by any specific time. If the Borrower provides the above-referenced authorization to the Administrative Agent at least one (1) Business Day before the Scheduled Closing Date, and if for any reason the IPO Closing Time does not occur on the Scheduled Closing Date, the Administrative Agent shall return any funds received from any Lender to such Lender, and the Borrower shall be responsible for all costs and expenses that result from the fundings by the Lenders (including interest for the day in question, unless such funds are returned by the time on such day by which a payment would be required to be made pursuant to Section 4.01(a) of the Loan Agreement in order to avoid the accrual of interest for such day, and costs and expenses of the type referred to in Article V of the Loan Agreement). All amounts to be funded pursuant to this Section shall be funded in Dollars.
(ii) Each Lender shall make the amount of its Deferred Funding Commitment Percentage of the Loan described in any Additional Advance Notice available to the Administrative Agent for the account of Borrower by 12:00 p.m. (New York time) on the
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borrowing date specified therein in Dollars immediately available to the Administrative Agent. Unless, in the case of any Deferred Funding Advance, any applicable condition specified in this Section 14 has not been satisfied, such funds shall then be made available to Borrower by the Administrative Agent by wire transferring to such account as shall have been designated to it by Borrower the aggregate of the amounts made available to the Administrative Agent by the Lenders (in like funds as received by the Administrative Agent). All amounts to be funded pursuant to this Section shall be funded in Dollars.
(i) Frequency of Borrowings . No more than one (1) Additional Advance Notice on account of any Deferred Funding Advance may be given in any calendar month.
(j) Effect of Deferred Funding Commitments on Allocated Loan Amounts .
(i) Upon the IPO Closing Time, the Allocated Loan Amounts shall be increased to the amounts set forth in Amended and Restated Schedule 1.01(4) attached to this Modification Agreement to reflect the allocation of the outstanding principal balances of the Loans after giving effect to the IPO Closing Date Advances.
(ii) Upon the making of each Deferred Funding Advance pursuant hereto, the Allocated Loan Amount for each Project shall be increased by an amount equal to such Deferred Funding Advance multiplied by the Project-Specific Deferred Funding Allocable Share for such Project as determined immediately prior to such advance.
(iii) If any Project is released in accordance with Section 2.09 of the Loan Agreement prior to the advance to Borrower of the full amount of the Deferred Funding Commitments, the Deferred Funding Commitments of the Lenders shall be reduced in the aggregate by an amount equal to that Project's Project-Specific Deferred Funding Allocable Share, as determined immediately prior to such release, of the portion of the Deferred Funding Commitments which, as determined immediately prior to such release, have not been funded.
(k) Conditions to Each Additional Advance . The obligation of each Lender to make any Deferred Funding Advance is subject to the satisfaction of the following conditions precedent:
(i) Additional Advance Notice . The Administrative Agent shall have received an Additional Advance Notice in compliance with the terms of this Section 14 ;
(ii) Representations and Warranties . The representations and warranties made by Borrower, the OP and the other Borrower Parties contained in the Loan Documents shall be true and correct on and as of the date such Additional Advance is made, with the same effect as if made on and as of such date;
(iii) No Existing Default . No Event of Default shall exist or shall result from the making of such Additional Advance;
(iv) Title Insurance . If required by the Administrative Agent, the Title Company shall have issued (at Borrower's expense) an endorsement to the Title Policy which insures the priority of such Additional Advance over all items other than Permitted Title Exceptions.
Each Additional Advance Notice submitted by Borrower hereunder shall constitute a representation and warranty by Borrower hereunder, as of the date of such notice and as of the date of the making of the corresponding Additional Advance, that the conditions in this Section 14 have been satisfied.
15. Modifications of Certain Provisions of the Loan Agreement . The following provisions of the Loan Agreement are hereby modified as follows:
(a) The first sentence of Section 7.10 of the Loan Agreement is hereby deleted. The third sentence of Section 7.10 of the Loan Agreement is hereby replaced by the following: "The sole
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manager of Borrower is New Borrower's Manager. The sole general partner of Borrower's Member is New General Partner."
(b) The second sentence of Section 7.11 of the Loan Agreement is hereby replaced by the following: "Neither Borrower nor Borrower's Member has any Subsidiaries except for those shown on Schedule 7.11 ."
(c) The second sentence of Section 7.14 of the Loan Agreement is hereby replaced by the following: "The Borrower and the New Borrower's Manager were organized in the State of Delaware, and the Borrower's Member was organized in the State of California."
(d) In Section 7.22 of the Loan Agreement, the reference to "Douglas, Emmett & Company Delinquency/Aging Report (Summarized) dated 7/20/2005" is hereby replaced by "Douglas, Emmett & Company Delinquency/Aging Report (Summarized) dated , 2006".
(e) In Section 7.26 of the Loan Agreement, the reference to the Property Management Agreement shall be to the Property Management Agreement between Borrower [or Co-Borrower] and New General Partner in effect as of the IPO Closing Time.
(f) Sections 7.35 and 7.37 of the Loan Agreement are hereby deleted.
16. Certain Acknowledgments . Administrative Agent and the Lenders hereby acknowledge and agree as follows:
(a) The Formation Transactions and the other elements of the Permitted Reorganization (including, without limitation, modifications to the organizational documents of the Borrower Parties in effect as of the IPO Closing Time) are approved to the extent required by the Loan Documents.
(b) The transfer of Equity Interests in any existing Subsidiary of Borrower to Borrower's Member or any other Permitted Public REIT Subsidiary will not require the consent of the Administrative Agent or the Lenders. The transfer of Equity Interests in any existing Subsidiary of Borrower's Member (other than Borrower) to any other Permitted Public REIT Subsidiary will not require the consent of the Administrative Agent or the Lenders.
17. Incorporation . This Agreement shall form a part of each Loan Document, and all references in any Loan Document to a given Loan Document shall mean that document as hereby modified.
18. No Prejudice; Reservation of Rights . This Agreement shall not prejudice any rights or remedies of the Administrative Agent or the Lenders under the Loan Documents, as modified hereby.
19. No Impairment . Except as specifically hereby amended, the Loan Documents shall each remain unaffected by this Agreement and all such documents shall remain in full force and effect. Nothing in this Agreement shall impair the Liens of the Deeds of Trust or other Security Documents. The Deeds of Trust as hereby amended shall remain deeds of trust with power of sale, creating first Liens encumbering each Project.
20. Integration . The Loan Documents, including this Agreement, the Escrow Delivery Letter and the documents delivered concurrently herewith pursuant to the Escrow Delivery Letter: (a) integrate all the terms and conditions mentioned in or incidental to the Loan Documents; (b) supersede all oral negotiations and prior and other writings with respect to their subject matter; and (c) are intended by the parties as the final expression of the agreement with respect to the terms and conditions set forth in those documents and as the complete and exclusive statement of the terms agreed to by the parties. If there is any conflict between the terms, conditions and provisions of this Agreement and those of any other agreement or instrument, including any of the other Loan Documents, the terms, conditions and provisions of this Agreement shall prevail.
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21. Miscellaneous . This Agreement and any attached consents or exhibits requiring signatures may be executed in counterparts (and delivered via facsimile or through electronic delivery of a pdf file), and all such counterparts and documents delivered via facsimile or through electronic delivery of a pdf file shall constitute but one and the same document. If any court of competent jurisdiction determines any provision of this Agreement or any of the other Loan Documents to be invalid, illegal or unenforceable, that portion shall be deemed severed from the rest, which shall remain in full force and effect as though the invalid, illegal or unenforceable portion had never been a part of the Loan Documents. This Agreement shall be governed by the laws of the State of California, without regard to the choice of law rules of that State.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written.
BORROWER: | ||||||||
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DOUGLAS EMMETT 2000, LLC, a Delaware limited liability company |
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Douglas Emmett Management, Inc., a Delaware corporation, its Manager |
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William Kamer Chief Financial Officer |
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MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY |
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METROPOLITAN LIFE INSURANCE COMPANY, A NEW YORK CORPORATION |
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WACHOVIA BANK, NATIONAL ASSOCIATION |
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HYPO REAL ESTATE BANK INTERNATIONAL AG |
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EUROHYPO AG, NEW YORK BRANCH |
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LANDESBANK BADEN-WÜRTTEMBERG, NEW YORK BRANCH |
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EUROHYPO AG, NEW YORK BRANCH, as Administrative Agent |
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Exhibit 10.58
Douglas Emmett 2002, LLC
MODIFICATION AGREEMENT
(Long Form)
This Modification Agreement (" Agreement ") is made as of , 2006, by and among Douglas Emmett 2002, LLC, a limited liability company organized under the laws of the State of Delaware (" Borrower "); DEG, LLC, a limited liability company organized under the laws of the State of Delaware (" Original Co-Borrower "); San Vicente Plaza, a California limited partnership, and Owensmouth/Warner, LLC, a California limited liability company (individually, a " New Co-Borrower " and, collectively, the " New Co-Borrowers "); each of the lenders that is a signatory hereto identified under the caption "LENDERS" on the signature pages hereto (individually, a " Lender " and, collectively, the " Lenders "); and EUROHYPO AG, NEW YORK BRANCH, as agent for the Lenders (in such capacity, together with its successors in such capacity, the " Administrative Agent ").
Factual Background
A. Borrower, Original Co-Borrower, the Lenders and the Administrative Agent are parties to that certain Loan Agreement dated as of August 25, 2005 (said Loan Agreement, as Modified by that certain Joinder and Supplement Agreement dated as of August 25, 2005, and as Modified and in effect from time to time, being herein called the " Loan Agreement "; and except as otherwise herein expressly provided, all terms defined in the Loan Agreement are being used herein as defined therein), whereby the Lenders made Loans to Borrower and Original Co-Borrower.
B. The Loans are evidenced by, and repayable with interest thereon in accordance with certain Notes and secured by the Deeds of Trust encumbering the Projects referred to in the Loan Agreement which have not heretofore been released (the " Existing Projects ") and the other Security Documents.
C. Douglas Emmett Realty Advisors, a California corporation (" DERA ") guaranteed certain obligations of Borrower and Original Co-Borrower in accordance with a Borrower's Manager's Limited Indemnity and Guarantee dated August 25, 2005.
D. As of the date of this Agreement, and prior to giving effect to the modifications herein, the outstanding principal balance of the Loans is $110,000,000. In connection with the modifications provided for herein, upon the IPO Closing Time described below, the maximum outstanding principal balance of the Loans will be increased to $164,200,000, each New Co-Borrower will assume liability, jointly and severally with Borrower and Original Co-Borrower, for the Loan, and each New Co-Borrower will encumber an additional project owned by it (each, a " New Project ") as additional security for the Loans, as modified hereby, and certain other modifications as described herein shall be made to the terms of the Loans.
E. Borrower has represented to the Agent and the Lenders that the "Formation Transactions" (as described in that certain Amendment No. 2 to Form S-11 filed on September 20, 2006 with the United States Securities and Exchange Commission(1)) (the " Original S-11 ") have been consummated. Those transactions include, among other things, an initial public offering (the " IPO ") of shares in Douglas Emmett, Inc., a Maryland corporation (the " REIT "), as part of a series of transactions that are intended to qualify as a Permitted Reorganization and a Permitted Public REIT Transfer. Pursuant to those transactions, Douglas Emmett Properties LP, a Delaware limited partnership (the " OP "), is the operating partnership and principal subsidiary of the REIT; Borrower's Member, which is also a member of Original Co-Borrower, through a merger with a directly or indirectly wholly-owned subsidiary of the OP pursuant to an Agreement and Plan of Merger (the " Borrower's Member Merger
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Agreement "), in which Borrower's Member is the surviving entity, and other contribution transactions involving the REIT or its subsidiaries, has become a directly or indirectly wholly-owned Subsidiary of the OP; Borrower's Manager, through a merger with a directly or indirectly wholly-owned subsidiary of the REIT pursuant to an Agreement and Plan of Merger (the " Borrower's Manager Merger Agreement "), in which Borrower's Manager is not the surviving entity, and other contribution transactions involving the REIT or its subsidiaries, has transferred its general partnership interest in Borrower's Member to Douglas Emmett Management, LLC, a Delaware limited liability company (" New General Partner "); Borrower's Manager has resigned as the non-member manager of Borrower and Original Co-Borrower and of any existing subsidiaries of Borrower or Borrower's Member that are limited liability companies, and Douglas Emmett Management, Inc., a Delaware corporation (" New Borrower's Manager "), a wholly-owned subsidiary of the REIT, has been appointed as the new non-member manager of Borrower and Original Co-Borrower and of any existing subsidiaries of Borrower or Borrower's Member that are limited liability companies; and the remaining membership interest of HBRCT in Original Co-Borrower has been contributed to the OP and distributed to Borrower's Member resulting in Original Co-Borrower becoming a wholly-owned Subsidiary of Borrower's Member; and the interests of the member(s) or limited partner(s) in New Co-Borrower have been acquired, pursuant to a merger or acquisition agreement (" New Co-Borrower's Merger Agreement "), and other contribution transactions involving the REIT or its subsidiaries, by the OP; and the interest of the general partner in New Co-Borrower has been acquired, pursuant to New Co-Borrower's Merger Agreement, and other contribution and related transactions involving the REIT or its direct or indirect subsidiaries, by New General Partner; and the Property Management Agreement for each Existing Project or New Project with Douglas, Emmett and Company, a California corporation, has been terminated and new property management agreements for each Existing Project and New Project have been entered into with New General Partner. Borrower's Member Merger Agreement, Borrower's Manager Merger Agreement, New Co-Borrower's Merger Agreement and the other documents entered into in connection with the Formation Transactions are collectively referred to herein as the " Reorganization Documents ." The date and time as of which the proceeds of the IPO have been received by the REIT is sometimes referred to herein as the " IPO Closing Time ."
F. Borrower, Original Co-Borrower, each New Co-Borrower, the Lenders and the Administrative Agent entered into that certain escrow delivery letter agreement, dated as of September , 2006 (the " Escrow Delivery Letter "), pursuant to which certain documents (including this Agreement) were deposited with counsel to the Administrative Agent in escrow, pending the IPO Closing Time and the satisfaction of certain conditions set forth in such Escrow Delivery Letter.
G. Borrower, Original Co-Borrower, each New Co-Borrower, the Lenders and the Administrative Agent now wish to modify the Loan Agreement and other Loan Documents as set forth below.
Agreement
Therefore, Borrower, Original Co-Borrower, each New Co-Borrower, the Lenders and the Administrative Agent agree effective upon the IPO Closing Time as follows:
1. Reaffirmation of Loan. Borrower and Original Co-Borrower reaffirm all of their respective obligations under the Loan Documents, and Borrower, Original Co-Borrower and each New Co-Borrower acknowledge that they have no claims, offsets or defenses with respect to the payment of sums due under the Notes or any other Loan Document.
2. Joinder. Concurrently herewith Borrower, Original Co-Borrower and New Co-Borrowers are executing and delivering the Joinder and Supplement Agreement attached hereto, to be effective as of
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the IPO Closing Time (the " New Co-Borrower Joinder and Supplement "). The New Co-Borrower Joinder and Supplement is a Loan Document. The Co-Borrower Projects referred to in the New Co-Borrower Joinder and Supplement are hereby added to the descriptions contained in Schedule 1A and Schedule 1B of the Loan Agreement. Each such Co-Borrower Project is a Project, as defined in the Loan Agreement. New Co-Borrower is a Borrower Party.
3. Modification of Loan Documents. Effective upon the IPO Closing Time, the Loan Documents are hereby amended, and additional agreements are hereby made with respect to the Loans, as follows:
(a) Modified Loan Agreement and Loan Documents. All references to the Loan Agreement in the Loan Agreement or in any other Loan Documents shall mean the Loan Agreement as modified by this Modification Agreement, and as supplemented by the New Co-Borrower Joinder and Supplement executed by each New Co-Borrower. In addition to the documents identified in the Loan Agreement, the Loan Documents shall include, without limitation, this Agreement and the documents delivered pursuant to Sections 2, 3 and 9(c) of the Escrow Delivery Letter.
(b) Modification to Allocated Loan Amounts, Appraisal Amounts and Title Insurance Amounts. Schedules 1.01(1), 1.01(3) and 1.01(9) , attached to the Loan Agreement are hereby amended and restated in their entireties by Amended and Restated Schedules 1.01(1), 1.01(3) and 1.01(9) attached to this Agreement. Such Amended and Restated Schedules 1.01(1), 1.01(3) and 1.01(9) set forth, respectively, revised Allocated Loan Amounts, Appraisal Amounts and Title Policy amounts for each Project.
(c) Modification to Proportionate Shares and Commitments of the Lenders. Schedule 1.01(4) attached to the Loan Agreement is hereby amended and restated in its entirety by Amended and Restated Schedule 1.01(4) attached to this Agreement. Such Amended and Restated Schedule 1.01(4) sets forth the revised Proportionate Shares and Commitments of the Lenders.
(d) Additional Definitions. The following additional definitions are hereby added to the Loan Agreement:
(i) " Additional Note A " shall mean those certain notes denominated "Additional Advance Note A" dated as of the date hereof, executed by Borrower, Original Co-Borrower and each New Co-Borrower to the order of the Lender named therein, in the aggregate original principal amount of $30,883,190.89, as the same may be Modified from time to time.
(ii) " Additional Note B " shall mean those certain notes denominated "Additional Advance Note B" dated as of the date hereof, executed by Borrower, Original Co-Borrower and each New Co-Borrower to the order of the Lender named therein, in the aggregate original principal amount of $20,228,490.02, as the same may be Modified from time to time.
(iii) " Additional Note C " shall mean those certain notes denominated "Additional Advance Note C" dated as of the date hereof, executed by Borrower, Original Co-Borrower and each New Co-Borrower to the order of the Lender named therein, in the aggregate original principal amount of $3,088,319.09, as the same may be Modified from time to time.
(iv) Reserved.
(v) Reserved.
(vi) Reserved.
(vii) " Modification Agreement " shall mean the Modification Agreement entered into by Borrower, Original Co-Borrower, each New Co-Borrower, the Administrative Agent and the Lenders party thereto effective as of the IPO Closing Time.
(viii) Reserved.
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(ix) " OP " means Douglas Emmett Properties, LP, a Delaware limited partnership. All references in the Loan Documents to the Operating Partnership shall mean the OP.
(x) " REIT " means Douglas Emmett, Inc., a Maryland corporation. All references in the Loan Documents to the Permitted Public REIT shall mean the REIT.
(e) Additional Definitions from Modification Agreement. The following terms which are defined in this Modification Agreement (and the definitions thereof set forth herein) are hereby added to the Loan Agreement:
(i) "Additional Advance"
(ii) "Additional Advance Notice"
(iii) Reserved.
(iv) Reserved.
(v) Reserved.
(vi) "IPO Closing Date Commitments"
(vii) "IPO Closing Date Advance"
(viii) "IPO Closing Date Commitment Percentage"
(ix) "IPO Closing Time"
(x) "Pre-IPO Outstanding Balance"
(xi) "Original Co-Borrower"
(xii) "New Co-Borrower"
(xiii) "New Co-Borrower Joinder and Supplement"
(xiv) "New Borrower's Manager"
(xv) "New General Partner"
(f) Amendments to Certain Definitions. The definitions of the following terms in the Loan Agreement are hereby amended and restated in their entireties as follows:
(i) " Co-Borrower " shall mean each New Co-Borrower named in the Modification Agreement as well as the Original Co-Borrower named in the original Loan Agreement, subject in each case to the Joinder and Supplement delivered by such New Co-Borrower or Original Co-Borrower, until such time (if any) as a Qualified Successor Entity shall acquire all of the Co-Borrower Projects owned by such Person and assume the obligations of such Person under the Loan Documents and such Person shall be released from its respective obligations under the Loan Documents, in accordance with Section 9.03(a)(iii) of the Loan Agreement, at which time the applicable "Co-Borrower" shall be such Qualified Successor Entity.
(ii) " Co-Borrower Projects " shall mean the Projects owned by the Co-Borrowers that are described in the Joinders and Supplements delivered by Original Co-Borrower and New Co-Borrowers as contemplated by the Loan Agreement and the Modification Agreement, respectively.
(iii) " Douglas Emmett Realty Funds " shall mean Douglas Emmett Joint Venture, Douglas Emmett Realty Fund 1995, Douglas Emmett Realty Fund 1996, Douglas Emmett Realty Fund 1997, Douglas Emmett Realty Fund 1998, Douglas Emmett Realty Fund 2000, Douglas
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Emmett Realty Fund 2002 and Douglas Emmett Realty Fund 2005, each Co-Borrower, and their respective Subsidiaries."
(iv) " Note A " shall mean, collectively, (i) those certain notes denominated "Note A" dated concurrently with the original Loan Agreement (or notes denominated Note A dated September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution for certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower and Original Co-Borrower to the order of the Lender named therein, in the aggregate original principal amount of $62,678,062.68, as the same may be Modified from time to time, and (ii) each Additional Note A. Each Note A shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(v) " Note B " shall mean, collectively, (i) those certain notes denominated "Note B" dated concurrently with the original Loan Agreement (or notes denominated Note B dated September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution for certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower and Original Co-Borrower to the order of the Lender named therein, in the aggregate original principal amount of $41,054.131.05, as the same may be Modified from time to time, and (ii) each Additional Note B. Each Note B shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(vi) " Note C " shall mean, collectively, (i) those certain notes denominated "Note C" dated concurrently with the original Loan Agreement (or notes denominated Note C dated September 7, 2005, given in substitution for certain of such original notes or replacement notes given in substitution for certain of such notes in accordance with the Escrow Delivery Agreement), executed by Borrower and Original Co-Borrower to the order of the Lender named therein, in the aggregate original principal amount of $6,267,806.27, as the same may be Modified from time to time, and (ii) each Additional Note C. Each Note C shall constitute a "Note" for all purposes under this Agreement and the other Loan Documents.
(vii) " Qualified Successor Entity " shall mean a Permitted Public REIT Subsidiary of the REIT (other than the OP).
(viii) " Stated Maturity Date " means August 31, 2012, subject to Section 2.10.
(g) Modifications to certain References. The following references in the Loan Documents are hereby replaced as follows:
(i) Each reference in the Loan Documents to Douglas, Emmett & Company as the Property Manager is hereby replaced with a reference to Douglas Emmett Management, LLC, a Delaware limited liability company.
(ii) Each reference in the Loan Documents to DERA as Borrower's Manager is hereby replaced with a reference to Douglas Emmett Management, Inc., a Delaware corporation. Each reference to Borrower's Manager shall mean Douglas Emmett Management, Inc., a Delaware corporation, until such time as a new Borrower's Manager is appointed as permitted by the Loan Agreement. In the case of New Co-Borrower, each reference to Borrower's Manager shall mean and refer to New General Partner.
(iii) Each reference in the Loan Documents to DERA as the sole general partner of Borrower's Member is hereby replaced with a reference to Douglas Emmett Management, LLC, a Delaware limited liability company, and each reference to the general partner of Borrower's Member shall mean Douglas Emmett Management, LLC, a Delaware limited liability company, until such time as a new general partner of Borrower's Member is admitted as permitted by the Loan Agreement.
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(iv) Each reference in the Loan Documents to DERA in its capacity as guarantor pursuant to the Guarantor Documents is hereby replaced with a reference to the OP. Each reference in the Loan Documents to "Borrower's Manager's Limited Indemnity and Guarantee" shall mean and refer to the Limited Indemnity and Guarantee delivered by the OP effective upon the IPO Closing Time.
(v) For purposes of the following provisions of the Loan Agreement, the term "Borrower Party" shall include, without limitation, the OP: the definitions of "ERISA Affiliate," "ERISA Event," "Material Adverse Effect," and "Plan," and Sections 7.02, 7.06, 7.07, 7.30, 7.33, 8.03, 9.16 and 12.01(c) of the Loan Agreement.
(vi) The references to "Borrower Party" in Section 12.02(a) of the Loan Agreement are hereby replaced with "Bankruptcy Party."
(vii) The following Schedules attached to the Loan Agreement are hereby supplemented or amended and restated (as set forth below):
(A) Schedules 1.01(6) , 1.01(7) , 1.01(8) , 7.09 , and 8.11 are hereby supplemented with respect to the New Projects as set forth on Supplemental Schedules 1.01(6) , 1.01(7), 1.01(8) , 7.09 , and 8.11 attached hereto.
(B) Schedules 7.05 , 7.11 and 7.22 are hereby amended and restated as set forth in Amended and Restated Schedules 7.05 , 7.11 , and 7.22 attached hereto.
(viii) The "Primary Credit Facility" referred to in the Loan Agreement shall mean the primary revolving credit facility under which the Permitted REIT (directly or through its Operating Partnership or another Permitted REIT Subsidiary) obtains financing for its general purposes.
(ix) The reference to "Secured Capital" in the Loan Agreement is hereby revised to "Eastdil Secured Capital and affiliates."
(x) The parties acknowledge that the Stub Interest Period ended on (but did not include) September 1, 2005. Accordingly, Section 2.10 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
"Notwithstanding anything to the contrary contained in this Agreement, (i) the Outstanding Principal Amount under all Notes shall become automatically due and payable on September 1, 2010 if on or prior to such date the Borrower has not paid to the Administrative Agent in accordance with the Fee Letter for the benefit of the Lenders an extension fee equal to five (5) basis points (0.05%) times the Outstanding Principal Amount under all Notes as of September 1, 2010 or if on such date an Event of Default exists and (ii) the Outstanding Principal Amount under all Notes shall become automatically due and payable on September 1, 2011 if on such date the Borrower has not paid to the Administrative Agent in accordance with the Fee Letter for the benefit of the Lenders an extension fee equal to five (5) basis points (0.05%) times the Outstanding Principal Amount under all Notes as of September 1, 2011 or if on such date an Event of Default exists."
4. Modification to DSCR for Project Releases. Section 2.09(a)(v) of the Loan Agreement is hereby modified to replace "1.50-to-1.00" with "1.35-to-1.00."
5. Understandings Concerning Hedge Arrangements. Notwithstanding anything to the contrary set forth in the Loan Agreement or the other Loan Documents, the Aggregate Notional Amount as to which Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall apply shall be an amount equal to the outstanding principal balance of the Loans as of the date of this Agreement,
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without giving effect to any of the Additional Advances made pursuant to this Agreement, whether on or after the IPO Closing Time; provided, however, that in the event the Outstanding Principal Amount is reduced below such amount, the Aggregate Notional Amount as to which Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall apply shall not exceed the Outstanding Principal Amount. For purposes of Section 8.19 of the Loan Agreement only, the All-In Rate shall be determined pursuant to clause (i) of the first sentence of the definition of All-In Rate. In all other respects, Borrower's obligations set forth in Section 8.19 of the Loan Agreement shall remain in full force and effect. Notwithstanding the foregoing, Borrower or the Other Swap Pledgor may transfer the Hedge Agreements to the OP or any Permitted REIT Subsidiary substantially concurrently with or following the IPO Closing Time so long as (i) the OP or such Permitted REIT Subsidiary assumes the obligations under the Hedge Agreements and indemnifies the Other Swap Pledgor party thereto from any obligations thereunder arising from and after such assumption (unless the Other Swap Pledgor is released by the Counterparty thereto from its obligations thereunder); (ii) the OP or such Permitted REIT Subsidiary assumes and ratifies all of the obligations of the Other Swap Pledgor under the Hedge Agreement Pledge and delivers such documents and takes such other steps as are deemed reasonably necessary by the Administrative Agent to preserve, protect and maintain, and to assure the first priority of, the security interests arising thereunder from and after such assumption; (iii) prior to such transfer, the Third Party Counterparty thereto confirms that such transfer is permitted and that any acknowledgment previously delivered to the Administrative Agent will remain in effect after such transfer; and (iv) all documentation relating to the foregoing is delivered to the Administrative Agent within ten (10) Business Days after such documentation is fully executed and delivered by the parties thereto.
6. Modification to DSCR for Restoration following Casualty. Section 10.03(c)(iv) of the Loan Agreement is hereby modified to replace "1:50[sic]:1.00" with "1.35-to-1.00."
7. Modifications to Cross-Default Provision relating to Guaranteed Line of Credit. Section 12.01(m) of the Loan Agreement shall not apply if the obligations under the applicable Guarantee thereof furnished by a Borrower or Co-Borrower or any Subsidiary of the Borrower or Co-Borrower in conformity with Section 9.04(h) of the Loan Agreement are secured, in compliance with Section 9.02(k) of the Loan Agreement, exclusively by Liens on one or more Excluded Projects, and the obligations under such Guarantee are non-recourse to the Borrower and Co-Borrower and their respective Subsidiaries (except for "carve-outs" for the Borrower's or Co-Borrower's or their respective Subsidiary's fraud, misrepresentation, misappropriation and other exceptions-from-non-recourse with respect to the acts of such Borrower, Co-Borrower or Subsidiary customary in the real estate finance industry). In addition, to the extent that Section 12.01(m) of the Loan Agreement does apply, it shall not be an Event of Default under the Loans unless and until the obligor under the Guaranteed Line of Credit has failed to cure an event of default under the Guaranteed Line of Credit following applicable notice and cure periods thereunder. References in Sections 9.02(k) and 9.04(h) of the Loan Agreement to the phrase "Borrower or its Subsidiaries" shall be replaced by "Borrower or any Co-Borrower or their respective Subsidiaries".
8. Effect of Consummation of IPO Transactions. It is agreed that the REIT is the Permitted Public REIT described in the Loan Agreement; the OP is the Operating Partnership described in the Loan Agreement; the transactions described in the Final S-11 include transactions which comprise the Permitted Reorganization and the Permitted Public REIT Transfer; and that Borrower shall have no further right, from and after the IPO Closing Time, to consummate any other Permitted Reorganization or Permitted Public REIT Transfer, except for transfers which are permitted under Section 9.03 of the Loan Agreement following a Permitted Public REIT Transfer, the changes to Borrower's Manager that are permitted under Section 14.31(a) of the Loan Agreement, the changes to its fiscal year permitted under Section 14.31(b) of the Loan Agreement, the dissolution of the Borrower's Member and changes in the Property Manager or management arrangements for the
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Projects that are permitted under Section 14.31(d) of the Loan Agreement (provided that it is understood for both of these purposes that all references therein to the Permitted Public REIT shall mean and refer to the REIT). Effective upon the IPO Closing Time, (i) the provisions of the Loan Agreement which permit transfers to or acquisitions of interests in Borrower by a Permitted Private REIT or a Permitted Private REIT Subsidiary shall be of no further force or effect; (ii) all references in the Loan Agreement to a "Permitted REIT" shall mean the REIT; and (iii) there shall be only one Permitted Public REIT, which shall be the REIT.
9. Participation by DERA or Named Principals Going Forward. It is understood and agreed that the references to the Named Principals in the following provisions of the Loan Documents shall be of no further force or effect: the definitions of "Immaterial Subsidiary," "Permitted Public REIT" and "Principals," and Sections 9.03(a)(iii), 9.03(b), 9.03(c), 9.04(e), 9.04(f), 9.04(g), 9.15 and 12.01(s).
10. Release of DERA and Douglas, Emmett & Company. The Administrative Agent and the Lenders hereby release (i) DERA from any and all obligations and liabilities under the Guarantor Documents arising from and after the IPO Closing Time and (ii) Douglas Emmett & Company from any and all obligations and liabilities under the Property Manager's Consents arising from and after the IPO Closing Time.
11. Reserved.
12. Accordion Feature Eliminated. The provisions of Section 2.11 of the Loan Agreement (and any references thereto or to any Joinder to be delivered pursuant thereto in any Loan Document) shall be null, void and of no further force or effect.
13. Ratification of Liens. Each of the Deeds of Trust and other Security Documents is modified to secure payment and performance of the Obligations of Borrower, Original Co-Borrower and each New Co-Borrower under the Loan Documents as modified and supplemented pursuant to this Agreement, in addition to all other Obligations stated therein to be secured therein.
14. Additional Advances.
(a) The outstanding balance of the Loans immediately prior to the IPO Closing Time is $110,000,000 (the " Pre-IPO Outstanding Balance ").
(b) On the date on which the IPO Closing Time occurs, each Lender having an IPO Closing Date Commitment (as defined below) severally agrees to make an additional advance to Borrower (each such loan, an " IPO Closing Date Advance ") in an amount identified in Amended and Restated Schedule 1.01(4) as the " IPO Closing Date Commitment " of such Lender in accordance with the terms and conditions set forth in this Section 14 . The " IPO Closing Date Commitment Percentage " means, as to any Lender at any time, the percentage equivalent of such Lender's IPO Closing Date Commitment divided by the IPO Closing Date Commitments of all Lenders at such time.
(c) Reserved.
(d) Reserved.
(e) The IPO Closing Date Advances (" Additional Advances ") made by each Lender having an IPO Closing Date Commitment or Deferred Funding Commitment, respectively, shall be evidenced by the Additional Note A, Additional Note B or Additional Note C, as applicable, delivered to such Lender. Once repaid or prepaid, Borrower may not reborrow any Additional Advance.
(f) Additional Advance Notice. Each Additional Advance shall be made upon the irrevocable written notice (including notice via facsimile confirmed immediately by a telephone
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call) of Borrower in the form of Exhibit A attached hereto (an " Additional Advance Notice ") as more fully provided below:
(i) Rate and Terms. Each Additional Advance shall be a Loan, and shall bear interest and otherwise be subject to the terms and conditions that apply to all other Loans.
(ii) Timing of Notice. Each Additional Advance Notice shall be submitted to and received by the Administrative Agent prior to 9:00 a.m. (New York time) (A) at least three (3) Business Days prior to the specified borrowing date, in the case of Eurodollar Loans; and (B) at least two (2) Business Days prior to the specified borrowing date, in the case of Base Rate Loans. Notwithstanding the foregoing, in the case of the Additional Advance Notice delivered in connection with the IPO Closing Date Advance, the time of day by which such notice shall be delivered shall be prior to 12:00 noon (California time).
(iii) Contents of Notice. Each Additional Advance Notice shall set forth the following information with respect to the Loan subject thereto:
(A) a single, specific borrowing date, which shall be a Business Day;
(B) a single, exact amount for the Loan, which for any Eurodollar Loan, shall be in an aggregate minimum principal amount of $1,000,000 or any multiple of $100,000 in excess thereof (or such lesser amount as shall then constitute the remaining amount of the IPO Closing Date Commitments);
(C) whether the Loan is to be made as a Eurodollar Loan or a Base Rate Loan; and
(D) if the Loan is to be made as a Eurodollar Loan, the applicable Interest Period. If an Additional Advance Notice shall fail to specify the applicable Interest Period for any Eurodollar Loan requested, such Loan will be made as a Eurodollar Loan with a one month Interest Period.
(g) Notice to Lenders. Upon receipt of an Additional Advance Notice conforming with the terms of this Section 14 , the Administrative Agent shall promptly notify each Lender thereof and of the amount of such Lender's IPO Closing Date Commitment Percentage of the Loan described therein.
(h) Funding of Commitments.
(i) Each Lender shall make the amount of its IPO Closing Date Commitment Percentage of the IPO Closing Date Advances available to the Administrative Agent for the account of Borrower on the date on which the IPO Closing Time occurs. In furtherance of the foregoing, provided that the Borrower shall have provided to the Administrative Agent prior to 9:00 A.M. New York time on the Business Day before the date on which the IPO Closing Time is scheduled to occur (the " Scheduled Closing Date "), unconditional authorization for closing and funding on the Scheduled Closing Date (including all such authorizations required pursuant to Section 10 of the Escrow Delivery Letter), the Administrative Agent shall provide telephonic or electronic notification thereof to the Lenders on the date the unconditional authorization is received, and each Lender shall initiate by 9:30 a.m. (New York time) the wire transfer of its respective IPO Closing Date Commitment Percentages of the IPO Closing Date Advances to the Administrative Agent for the account of Borrower on the Scheduled Closing Date in Dollars immediately available to the Administrative Agent, and shall otherwise use commercially reasonable efforts to make such funds available to the Administrative Agent for the account of Borrower on the Scheduled Closing Date, with the objective that the Administrative Agent shall have received such funds by such time as to be in a position to make such funds available to Borrower (provided all conditions to funding set forth herein and in the Escrow Delivery Letter have been satisfied) on or prior to 12:00 noon
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(New York time) on the Scheduled Closing Date, by wire transferring to such account or accounts as shall have been designated to it by Borrower the aggregate of the amounts made available to the Administrative Agent by the Lenders. The Borrower acknowledges that (except for the obligations of the Lenders to initiate wires as provided herein) no assurances have been made by the Lenders or the Administrative Agent that funds necessarily will be available to Borrower by any specific time. If the Borrower provides the above-referenced authorization to the Administrative Agent at least one (1) Business Day before the Scheduled Closing Date, and if for any reason the IPO Closing Time does not occur on the Scheduled Closing Date, the Administrative Agent shall return any funds received from any Lender to such Lender, and the Borrower shall be responsible for all costs and expenses that result from the fundings by the Lenders (including interest for the day in question, unless such funds are returned by the time on such day by which a payment would be required to be made pursuant to Section 4.01(a) of the Loan Agreement in order to avoid the accrual of interest for such day, and costs and expenses of the type referred to in Article V of the Loan Agreement). All amounts to be funded pursuant to this Section shall be funded in Dollars.
(ii) Reserved.
(i) Reserved.
(j) Reserved.
(k) Reserved.
15. Modifications of Certain Provisions of the Loan Agreement. The following provisions of the Loan Agreement are hereby modified as follows:
(a) The first sentence of Section 7.10 of the Loan Agreement is hereby deleted. The third sentence of Section 7.10 of the Loan Agreement is hereby replaced by the following: "The sole manager of Borrower is New Borrower's Manager. The sole general partner of Borrower's Member is New General Partner."
(b) The second sentence of Section 7.11 of the Loan Agreement is hereby replaced by the following: "Neither Borrower nor Borrower's Member has any Subsidiaries except for those shown on Schedule 7.11 ."
(c) The second sentence of Section 7.14 of the Loan Agreement is hereby replaced by the following: "The Borrower and the New Borrower's Manager were organized in the State of Delaware, and the Borrower's Member was organized in the State of California."
(d) In Section 7.22 of the Loan Agreement, the reference to "Douglas, Emmett & Company Delinquency/Aging Report (Summarized) dated 7/20/2005" is hereby replaced by "Douglas, Emmett & Company Delinquency/Aging Report (Summarized) dated , 2006".
(e) In Section 7.26 of the Loan Agreement, the reference to the Property Management Agreement shall be to the Property Management Agreement between Borrower or Co-Borrower and New General Partner in effect as of the IPO Closing Time.
(f) Sections 7.35 and 7.37 of the Loan Agreement are hereby deleted.
16. Certain Acknowledgments. Administrative Agent and the Lenders hereby acknowledge and agree as follows:
(a) The Formation Transactions and the other elements of the Permitted Reorganization (including, without limitation, modifications to the organizational documents of the Borrower Parties in effect as of the IPO Closing Time) are approved to the extent required by the Loan Documents.
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(b) The transfer of Equity Interests in any existing Subsidiary of Borrower to Borrower's Member or any other Permitted Public REIT Subsidiary will not require the consent of the Administrative Agent or the Lenders. The transfer of Equity Interests in any existing Subsidiary of Borrower's Member (other than Borrower) to any other Permitted Public REIT Subsidiary will not require the consent of the Administrative Agent or the Lenders.
17. Incorporation. This Agreement shall form a part of each Loan Document, and all references in any Loan Document to a given Loan Document shall mean that document as hereby modified.
18. No Prejudice; Reservation of Rights. This Agreement shall not prejudice any rights or remedies of the Administrative Agent or the Lenders under the Loan Documents, as modified hereby.
19. No Impairment. Except as specifically hereby amended, the Loan Documents shall each remain unaffected by this Agreement and all such documents shall remain in full force and effect. Nothing in this Agreement shall impair the Liens of the Deeds of Trust or other Security Documents. The Deeds of Trust as hereby amended shall remain deeds of trust with power of sale, creating first Liens encumbering each Project.
20. Integration. The Loan Documents, including this Agreement, the Escrow Delivery Letter and the documents delivered concurrently herewith pursuant to the Escrow Delivery Letter: (a) integrate all the terms and conditions mentioned in or incidental to the Loan Documents; (b) supersede all oral negotiations and prior and other writings with respect to their subject matter; and (c) are intended by the parties as the final expression of the agreement with respect to the terms and conditions set forth in those documents and as the complete and exclusive statement of the terms agreed to by the parties. If there is any conflict between the terms, conditions and provisions of this Agreement and those of any other agreement or instrument, including any of the other Loan Documents, the terms, conditions and provisions of this Agreement shall prevail.
21. Miscellaneous. This Agreement and any attached consents or exhibits requiring signatures may be executed in counterparts (and delivered via facsimile or through electronic delivery of a pdf file), and all such counterparts and documents delivered via facsimile or through electronic delivery of a pdf file shall constitute but one and the same document. If any court of competent jurisdiction determines any provision of this Agreement or any of the other Loan Documents to be invalid, illegal or unenforceable, that portion shall be deemed severed from the rest, which shall remain in full force and effect as though the invalid, illegal or unenforceable portion had never been a part of the Loan Documents. This Agreement shall be governed by the laws of the State of California, without regard to the choice of law rules of that State.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written.
BORROWER: | ||||||||
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DOUGLAS EMMETT 2002, LLC, a Delaware limited liability company |
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Douglas Emmett Management, Inc., a Delaware corporation, its Manager |
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William Kamer Chief Financial Officer |
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NOTE A-1 LENDER: |
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MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY |
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Babson Capital Management Inc. |
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METROPOLITAN LIFE INSURANCE COMPANY, A NEW YORK CORPORATION |
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WACHOVIA BANK, NATIONAL ASSOCIATION |
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HYPO REAL ESTATE BANK INTERNATIONAL AG |
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EUROHYPO AG, NEW YORK BRANCH |
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BAYERISCHE LANDESBANK, NEW YORK BRANCH |
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HYPOTHEKENBANK IN ESSEN AG |
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LANDESBANK BADEN-WÜRTTEMBERG, NEW YORK BRANCH |
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Exhibit 10.59
Douglas Emmett
1993, LLC
JOINDER AND SUPPLEMENT AGREEMENT
This JOINDER AND SUPPLEMENT AGREEMENT (this " Joinder Agreement ") dated as of , 2006, is made and executed by Douglas Emmett 1993, LLC, a limited liability company organized under the laws of the State of Delaware (the " Borrower ") and BRENTWOOD PLAZA A CALIFORNIA LIMITED PARTNERSHIP (the " Co-Borrower "), and is made with reference to and is attached to that certain Modification Agreement, of even date herewith (the " Modification Agreement "), which modifies that certain Loan Agreement dated as of August 25, 2005, as Modified by the Modification Agreement (as further Modified and in effect from time to time, the " Loan Agreement ") by and among the Borrower, the lenders from time to time party thereto (the " Lenders ") and Eurohypo AG, New York Branch, as agent for the Lenders (together with its successors and assigns, the " Administrative Agent "). Capitalized terms used herein and not otherwise defined have the meanings ascribed to such terms in the Loan Agreement, as modified by the Modification Agreement.
R E C I T A L S
WHEREAS, the Co-Borrower is the owner of a fee interest in the Brentwood Plaza Project (as such term is defined in the Supplement to Joinder Agreement which is attached hereto and forms a part hereof (the " Joinder Supplement ")) (the Co-Borrower's right, title and interests in and to the foregoing project is referred to herein as the " Co-Borrower Project "); and
WHEREAS, a portion of the proceeds of the Loans will be used to repay certain indebtedness of the Co-Borrower secured by the Co-Borrower Project and otherwise to benefit Co-Borrower and the Co-Borrower Project; and
WHEREAS, the Borrower and the Co-Borrower are affiliates, and the Borrower and the Co-Borrower will benefit from the provision of credit to the Borrower and the Co-Borrower on the terms set forth in the Loan Agreement and the other Loan Documents.
NOW, THEREFORE, THE BORROWER AND CO-BORROWER HEREBY AGREE AS FOLLOWS FOR THE BENEFIT OF THE ADMINISTRATIVE AGENT AND THE LENDERS, EFFECTIVE AT THE IPO CLOSING TIME CONCURRENTLY WITH THE EFFECTIVENESS OF THE MODIFICATION AGREEMENT:
1. Joinder and Assumption by Co-Borrower. The Co-Borrower acknowledges and agrees to the terms, conditions and provisions of the Loan Agreement and the other Loan Documents (as supplemented by this Joinder Agreement and the Joinder Supplement); agrees to become a co-borrower under the Loan Agreement and the other Loan Documents (as supplemented by this Joinder Agreement and the Joinder Supplement) with liability thereunder (subject to the terms of the Loan Agreement, including, without limitation, Section 14.23 of the Loan Agreement) joint and several with the Borrower; assumes, on a joint and several basis with the Borrower, all of the agreements, acknowledgements, liabilities, indemnities and obligations of the "Borrower" under the Loan Agreement and the other Loan Documents (as supplemented by this Joinder Agreement and the Joinder Supplement); makes all of the representations and warranties of and grants all of the rights, remedies and waivers granted by the "Borrower" under the Loan Agreement and the other Loan Documents; agrees that the Administrative Agent and the Lender, shall have, with respect to the Co-Borrower and the Co-Borrower Project, all of the rights, remedies, powers, privileges and immunities which they have with respect to the Borrower and the Projects under the Loan Agreement
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and the Loan Documents; IN EACH OF THE FOREGOING CASES, as if (A) each reference in the Loan Agreement and the other Loan Documents to the "Borrower" or any "Borrower Party" or "Borrower Parties" (except (i) references to such terms contained in the definitions in Section 1.01 of the Loan Agreement (except as expressly provided in the Joinder Supplement), (ii) references to such terms contained in Loan Documents to which the Co-Borrower is not a party or has not assumed obligations thereunder pursuant to this Agreement (including any Environmental Indemnity to which the Co-Borrower is not a party) and (iii) as otherwise expressly provided to the contrary in any of the Loan Documents), shall include, in addition to the parties named therein, Co-Borrower, jointly and severally with the Borrower; (B) each reference in the Loan Agreement and the other Loan Documents to any "Project" (including, without limitation, in any defined term therein, but excluding references to such term contained in any Environmental Indemnity to which the Co-Borrower is not a party or any of the other Loan Documents to which the Co-Borrower is not a party or as otherwise expressly provided to the contrary in any of the Loan Documents) shall, where the applicable context requires, mean and include both each Project and the Co-Borrower Project; and (C) each reference in the Loan Agreement and the other Loan Documents (including, without limitation, any defined term therein) to any Loan Document shall mean any applicable Loan Document to which the Borrower or the Co-Borrower is a party, if any. The Co-Borrower further agrees that an "Event of Default" shall occur with respect to the Co-Borrower if any Event of Default as defined in Article XII of the Loan Agreement shall occur with respect to the Borrower or shall occur as if each reference to the "Borrower" contained in such Article XII included both the Borrower and the Co-Borrower, individually and collectively. The Borrower agrees that it has joint and several liability for all of the Obligations of the Co-Borrower under the Loan Agreement, as supplemented by this Joinder Agreement and the Joinder Supplement, and the other Loan Documents.
2. Certain Terms and References.
(a) All references to "Borrower" in the definitions of the following terms shall include a reference both to the Borrower and the Co-Borrower, individually or collectively, as the context shall require:
(i) "Authorized Officer"
(ii) "Condemnation Awards"
(iii) "Environmental Liens"
(iv) "Excess Cash"
(v) "Excluded Taxes"
(vi) "GAAP"
(vii) "Immaterial Subsidiary"
(viii) "Interest Period"
(ix) "Leases"
(x) " Loan " and " Loans "
(xi) "Obligations"
(xii) "Operating Expenses"
(xiii) "Operating Income"
(xiv) "Permitted Liens"
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(xv) " Permitted Public REIT Transfe r". In addition, the following sentence is hereby added at the end of the definition of " Permitted Public REIT Transfe r": Nothing in this definition or in Section 9.03(a)(iii) shall prohibit the transfer by the Co-Borrower of the Co-Borrower Project owned by the Co-Borrower to Borrower or to a separate Qualified Successor Entity provided that, in the case of a transfer to a Qualified Successor Entity, (i) the Borrower shall transfer the Projects owned by the Borrower to the same Qualified Successor Entity or to another Qualified Successor Entity that qualifies as such pursuant to the same clause (i.e., clause (I), (II) or (III) of the definition of Qualified Successor Entity set forth in Section 9.03(a)(iii) ), or (ii) direct or indirect Equity Interests in the Borrower are transferred to a Person that controls, is controlled by or is under common control with the Qualified Successor Entity to which the Co-Borrower Project is transferred and such transfer of Equity Interests is otherwise permitted by this Agreement.
(xvi) "Property Management Agreement"
(xvii) "Real Estate Taxes"
(xviii) "Rents"
(xix) "Transactions"
(b) The references to "Borrower" in the definitions of each of the documents that comprise the Loan Documents and the Security Documents (including, without limitation, "Cash Trap Account Security Agreement," "Deed of Trust" "Environmental Indemnity," "General Assignment," "Notes," "Project-Level Account Security Agreement" and "Property Manager's Consent") shall include a reference both to the Borrower and the Co-Borrower, as the context shall require, such that all such documents delivered by the Borrower or the Co-Borrower pursuant to the Loan Agreement or the Modification Agreement shall be included within the meanings of "Loan Documents" and "Security Documents."
(c) All references to "Borrower" in the following Sections of the Loan Agreement shall include a reference both to the Borrower and the Co-Borrower, individually or collectively, as the context shall require:
(i) Section 2.01
(ii) Section 2.02
(iii) Section 2.04
(iv) Section 2.05
(v) Section 2.06
(vi) Section 2.08
(vii) Section 2.09
(viii) Section 2.10
(ix) Section 4.01
(x) Section 4.02
(xi) Section 4.05
(xii) Section 4.06
(xiii) Section 5.01
(xiv) Section 5.02
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(xv) Section 5.04
(xvi) Section 5.06
(xvii) Section 9.02
(xviii) Section 14.05
(xix) Section 14.13
(xx) Section 14.23
(xxi) Section 14.30
(xxii) Section 14.31
3. California Civil Code Section 2954.10 Waiver. By initialing this provision where indicated below, the Co-Borrower hereby makes each of the acknowledgments set forth in Section 2.06(d) of the Loan Agreement. By initialing this provision where indicated below, the Co-Borrower waives any rights it may have under California Civil Code Section 2954.10, or any successor statute, and the Co-Borrower confirms that the Lenders' agreement to make the Loans at the interest rate and on the other terms set forth in the Loan Agreement constitutes adequate and valuable consideration, given individual weight by the Co-Borrower, for the prepayment provisions set forth in Section 2.06 of the Loan Agreement and hereby waives its rights under California Civil Code Section 2954.10 as set forth in Section 2.06(d) of the Loan Agreement.
Co-Borrower's Initials |
4. Execution and Delivery of Documents by the Co-Borrower; Assumption of Notes and other Obligations. Without releasing the Borrower from any of its obligations thereunder, the Co-Borrower hereby assumes, jointly and severally with the Borrower, all of the obligations of the Borrower under each of the Notes which evidence Loans advanced by each Lender or its predecessor in interest prior to the IPO Closing Time. Pursuant to the Modification Agreement, the Borrower and the Co-Borrower shall jointly and severally execute the Additional Notes for each Lender, which shall evidence the amounts advanced by each Lender on or subsequent to the IPO Closing Time.
5. Joinder Supplement. The provisions set forth in the Supplement to Joinder Agreement attached hereto as Exhibit A are made a part hereof and incorporated by reference herein.
6.. Suretyship Provisions.
6.1 Definitions and Background. The Borrower and the Co-Borrower acknowledge that they will each receive substantial benefits from the Lenders' extension of credit pursuant to the Loan Agreement to the Borrower and the Co-Borrower on the joint and several, cross-collateralized basis provided for herein and in the Loan Documents, which benefits are reasonably equivalent consideration for their respective incurrence of liability on account of the Obligations arising under the Loan Documents, and which benefits include, without limitation, the refinancing of certain existing indebtedness of the Borrower and the Co-Borrower and the ability to refinance that indebtedness at a lower interest rate and otherwise on more favorable terms than would be available if the Projects owned by the Borrower and the Co-Borrower were being financed on a stand-alone basis and not as part of a pool of assets comprising the security for the Obligations; and that each is joining in this Agreement, the Joinder and Supplement and the other Loan Documents in consideration of those benefits. The parties to this Joinder Agreement acknowledge and agree that the intention of the parties is that both the Borrower and the Co-Borrower shall be direct, primary, joint and several obligors with respect to all Obligations (except to the extent expressly provided to the contrary in this Joinder Agreement). However, in the event that for any reason either the Borrower or the Co-Borrower (in such event, such party is referred
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to herein as the " Secondary Obligor ") is held or deemed to be a guarantor of or surety for the payment and performance of the obligations of the other (in such event, such other party is referred to herein as the " Primary Obligor ") under this Agreement, the Loan Agreement or any of the other Loan Documents (such obligations are collectively referred to herein as the " Primary Obligor Obligations " and all documents evidencing, securing or relating to the Primary Obligor Obligation are referred to herein as the " Primary Obligor Documents "), the Primary Obligor and Secondary Obligor hereby agree as follows.
6.2 Rights of the Administrative Agent and Lenders. Without modifying or otherwise limiting any of the Primary Obligor's rights under the Loan Agreement or the other Loan Documents with respect to any or all of the following acts, the Secondary Obligor authorizes the Administrative Agent and the Lenders to perform any or all of the following acts at any time in their sole discretion, all without notice to the Secondary Obligor and without affecting the rights of the Administrative Agent or the Lenders or the Secondary Obligor's obligations under the Loan Agreement and the Loan Documents:
(a) The Administrative Agent or the Lenders may alter any terms of the Primary Obligor Obligations or any part thereof, including renewing, compromising, extending or accelerating, or otherwise changing the time for payment of, or increasing or decreasing the rate of interest on, the Primary Obligor Obligations or any part thereof.
(b) The Administrative Agent or the Lenders may take and hold security for the Primary Obligor Obligations, accept additional or substituted security therefor, and subordinate, exchange, enforce, waive, release, compromise, fail to perfect and sell or otherwise dispose of any such security.
(c) The Administrative Agent or the Lenders may direct the order and manner of any sale of all or any part of any security now or later to be held for the Primary Obligor Obligations, and the Administrative Agent or the Lenders may also bid at any such sale.
(d) The Administrative Agent or the Lenders may apply any payments or recoveries from the Primary Obligor, the Secondary Obligor or any other source, and any proceeds of any security, to the Primary Obligor Obligations in such manner, order and priority as the Administrative Agent or the Lenders may elect.
(e) The Administrative Agent or the Lenders may release the Primary Obligor from its liability for the Primary Obligor Obligations or any part thereof.
(f) The Administrative Agent or the Lenders may substitute, add or release any one or more guarantors or endorsers.
6.3 Obligations of Secondary Obligor to be Absolute. The Secondary Obligor expressly agrees that, until all Obligations have been paid and performed in full, the Secondary Obligor shall not be released by or because of:
(a) Any act or event which might otherwise discharge, reduce, limit or modify the Secondary Obligor's obligations under the Loan Agreement or the other Loan Documents;
(b) Any waiver, extension, modification, forbearance, delay or other act or omission of the Administrative Agent or the Lenders, or any failure to proceed promptly or otherwise against the Primary Obligor, the Secondary Obligor or any security;
(c) Any action, omission or circumstance which might increase the likelihood that the Secondary Obligor may be called upon to perform under this Agreement or the other Loan Documents or which might affect the rights or remedies of the Secondary Obligor against the Primary Obligor; or
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(d) Any dealings occurring at any time between the Primary Obligor and the Administrative Agent or the Lenders, whether relating to the Primary Obligor Obligations or otherwise.
The Secondary Obligor hereby acknowledges that, absent this Section 5.3, the Secondary Obligor might have a defense to its Obligations as a result of one or more of the foregoing acts, omissions, agreements, waivers or matters. The Secondary Obligor hereby expressly waives and surrenders any defense to any liability on account of its Obligations based upon any of such acts, omissions, agreements, waivers or matters.
6.4 Waivers of Defenses. The Secondary Obligor waives:
(a) Any right it may have to require the Administrative Agent or the Lenders to proceed against the Primary Obligor, proceed against or exhaust any security held from the Primary Obligor, or pursue any other remedy in the Administrative Agent's or Lenders' power to pursue;
(b) Any defense based on any claim that the Secondary Obligor's obligations exceed or are more burdensome than those of the Primary Obligor;
(c) Any defense based on: (i) any legal disability of the Primary Obligor; (ii) any release, discharge, modification, impairment or limitation of the liability of the Primary Obligor to the Administrative Agent or the Lenders from any cause, whether consented to by the Administrative Agent or the Lenders or arising by operation of law or from any bankruptcy or other voluntary or involuntary proceeding, in or out of court, for the adjustment of debtor-creditor relationships (" Insolvency Proceeding ") and (iii) any rejection or disaffirmance, of the Primary Obligor Obligations, or any part thereof, or any security held therefor, in any such Insolvency Proceedings;
(d) Any defense based on any action taken or omitted by the Administrative Agent or the Lenders in any Insolvency Proceeding involving the Primary Obligor, including any election to have their claim allowed as being secured, partially secured or unsecured, any extension of credit by the Administrative Agent or the Lenders to the Primary Obligor in any Insolvency Proceeding and the taking and holding by the Administrative Agent or the Lenders of any security for any such extension of credit;
(e) All presentments, demands for performance, notice of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of the Obligations and of the existence, creation, or incurring of new or additional indebtedness, and demands and notices of every kind, but only in Secondary Obligor's capacity as Secondary Obligor and not in its capacity as Primary Obligor or as otherwise provided in the Loan Documents; and
(f) Any defense based on or arising out of any action of the Administrative Agent or the Lenders described in Sections 5.2 or 5.3 above, subject to the provisions of Section 5.2 and 5.3 above.
6.5 Impairment of Subrogation Rights.
(a) Upon an Event of Default by the Primary Obligor, the Administrative Agent in its sole discretion, without prior notice (except as required by the Loan Documents or Applicable Law) to or consent of the Secondary Obligor, may elect to foreclose either judicially or nonjudicially against any real or personal property security it may hold for the Primary Obligor Obligations, or accept a transfer of any such security in lieu of foreclosure, or compromise or adjust the Primary Obligor Obligations or any part thereof or make any other accommodation with the Primary Obligor, or exercise any other remedy against the Primary Obligor or any security. No such action by the Administrative Agent shall release or limit the liability of the Secondary Obligor, who shall, subject to the provisions of Section 14.23(a) of the Loan Agreement, remain liable for the Obligations after the action, even if the affect of the action is to deprive the Secondary Obligor of any subrogation rights, rights of indemnity, or other rights to collect reimbursement from the
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Primary Obligor for any sums paid to the Administrative Agent or any Lender, whether contractual or arising by operation of law or otherwise. The Secondary Obligor expressly agrees that under no circumstances shall it be deemed to have any right, title, interest or claim in or to any real or personal property held by the Administrative Agent or any third party after any foreclosure or transfer in lieu of foreclosure of any security for the Primary Obligor Obligations.
(b) Regardless of whether the Secondary Obligor may have made any payments to the Administrative Agent or the Lenders, the Secondary Obligor hereby waives: (i) all rights of subrogation, indemnification, contribution and any other rights to collect reimbursement from the Primary Obligor or any other party for any sums paid to the Administrative Agent or the Lenders whether contractual or arising by operation of law (including, without limitation, under Sections 2847 or 2848 of the California Civil Code, under any provisions of the United States Bankruptcy Code, or any successor or similar statutes) or otherwise, (ii) all rights to enforce any remedy that the Administrative Agent or the Lenders may have against the Primary Obligor, and (iii) all rights to participate in any security now or later held by the Administrative Agent or the Lenders for the Primary Obligor Obligations. The Secondary Obligor further agrees that, to the extent the foregoing waiver is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation, reimbursement, contribution and indemnification the Secondary Obligor may have against the Primary Obligor or against any collateral or security, shall be junior and subordinate to any rights the Administrative Agent or the Lenders may have against the Primary Obligor, and to all right, title and interest the Administrative Agent or the Lenders may have in any such collateral or security. If any amount shall be paid to the Secondary Obligor on account of any such subrogation, reimbursement, contribution or indemnification rights at any time when all the Primary Obligor Obligations have not been paid in full, such amount shall be held in trust by the Secondary Obligor and shall forthwith be paid over to the Administrative Agent to be credited and applied against the Primary Obligor Obligations, whether matured or unmatured, in accordance with the terms of the Primary Obligor Documents. The waivers given in this Section 5.5(b) shall be effective until the Primary Obligor Obligations have been paid and performed in full.
(c) The Secondary Obligor understands and acknowledges that, if the Administrative Agent forecloses judicially or nonjudicially against any real property security for the Primary Obligor Obligations, that foreclosure could impair or destroy the ability that the Secondary Obligor may have to seek reimbursement, contribution or indemnification from the Primary Obligor. The Secondary Obligor further understands and acknowledges that in the absence of this Section 5.5, such potential impairment or destruction of the Secondary Obligor's rights, if any, may entitle the Secondary Obligor to assert a defense to its liability on account of the Obligations based on Section 580d of the California Code of Civil Procedure as interpreted in Union Bank v. Gradsky , 286 Cal.App.2d 40 (1968). The Secondary Obligor freely, irrevocably and unconditionally: (i) waives and relinquishes that defense and agrees that the Secondary Obligor will be fully liable for the Obligations even though the Administrative Agent may foreclose judicially or nonjudicially against any real property security for the Primary Obligor Obligations; (ii) agrees that the Secondary Obligor will not assert that defense in any action or proceeding which the Administrative Agent may commence to enforce the Secondary Obligor's liability on account of the Obligations, (iii) acknowledges and agrees that the rights and defenses waived by the Secondary Obligor hereunder on account of the Primary Obligor Obligations include any right or defense that the Secondary Obligor may have or be entitled to assert based upon or arising out of any one or more of Sections 580a, 580b or 726 of the California Code of Civil Procedure or Section 2848 of the California Civil Code; and (iv) acknowledges and agrees that the Lenders are relying on this waiver in extending the credit to the Primary Obligor and the Secondary Obligor, and that this waiver is a material part of the consideration which the Administrative Agent and the Lenders are receiving for providing the credit facilities under the Loan Agreement to the Primary Obligor.
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(d) The Secondary Obligor waives any rights and defenses that are or may become available to the Secondary Obligor on account of the Primary Obligor Obligations by reason of Sections 2787 to 2855, inclusive, of the California Civil Code.
(e) The Secondary Obligor waives all rights and defenses that the Secondary Obligor may have because the Primary Obligor Obligations are secured by real property. This means, among other things, (i) the Lender may collect from the Secondary Obligor and pursue any real or personal property pledged by the Secondary Obligor without first foreclosing on any real or personal property collateral pledged by the Primary Obligor; (ii) the amount of the Obligations for which Secondary Obligor is liable may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price; and (iii) the Administrative Agent and the Lenders may collect from the Secondary Obligor even if the Administrative Agent, by foreclosing on the real property collateral, has destroyed any right the Secondary Obligor may have to collect from the Primary Obligor. This is an unconditional and irrevocable waiver of any rights and defenses the Secondary Obligor may have because the Primary Obligor Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the Code of Civil Procedure. In addition, Secondary Obligor waives all rights and defenses arising out of an election of remedies by the Administrative Agent or the Lenders, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the guaranteed obligation, has destroyed the Secondary Obligor's rights of subrogation and reimbursement against the Primary Obligor by the operation of Section 580d of the Code of Civil Procedure or otherwise.
6.6 Revival and Reinstatement. If the Administrative Agent or any Lender is required to pay, return or restore to the Primary Obligor or any other person any amounts previously paid on the Primary Obligor Obligations because of any Insolvency Proceeding of the Primary Obligor, any stop notice or any other reason, the obligation of the Secondary Obligor shall be reinstated and revived and the rights of the Administrative Agent and the Lenders shall continue with regard to such amounts, all as though they had never been paid.
6.7 The Primary Obligor's Financial Condition. The Secondary Obligor assumes full responsibility for keeping informed of the Primary Obligor's financial condition and business operations and all other circumstances affecting the Primary Obligor's ability to pay and perform its obligations to the Administrative Agent, and agrees that the Administrative Agent shall have no duty to disclose to the Secondary Obligor any information which the Administrative Agent may receive about the Primary Obligor's financial condition, business operations, or any other circumstances bearing on its ability to perform.
6.7 Intent of Waivers. The waivers and other provisions of this Section 5 are made by the Secondary Obligor solely for itself and not on behalf of the Primary Obligor. Furthermore, the waivers and other provisions of this Section 5 are made by the Secondary Obligor solely in its capacity as a Secondary Obligor and not in its capacity as a Primary Obligor. Nothing herein is intended to, or shall, modify, or constitute a waiver or surrender by the Secondary Obligor of, any right, remedy or defense that would otherwise be available to the Secondary Obligor on account of its Obligations in its capacity as a Primary Obligor.
7. Miscellaneous. For all purposes of the Loan Agreement and the other Loan Documents, this Joinder Agreement and the Joinder Supplement are "Loan Documents." The Loan Agreement contains certain provisions which apply to the Loan Documents, and those provisions apply to this Joinder Agreement and the Joinder Supplement, and are incorporated herein by this reference. Those incorporated provisions include, without limitation, those relating to manner of delivering notice, certain waivers (including waiver of jury trial), submission to jurisdiction, the Borrower's and Co-Borrower's responsibility for certain expenses, severability, manner for amendment and modification
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of this Agreement, governing law and other matters. This Joinder Agreement may be executed in any number of counterparts, each of which shall be an original, and all of which, when taken together, shall constitute one and the same agreement. Delivery of an executed signature page of this Joinder Agreement by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.
8. Limitation of Liability. The provisions of Section 14.23(a) of the Loan Agreement shall apply to the terms of this Joinder Agreement. All references to the "Borrower" in Section 14.23 of the Loan Agreement shall mean the Borrower and each Co-Borrower, individually or collectively, as the context shall require. Also, if Co-Borrower is a limited partnership, all references in Section 14.23(a) of the Loan Agreement to "manager" or "member" shall mean "general and/or limited partner."
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.
DOUGLAS EMMETT 1993, LLC, a Delaware limited liability company | ||||||||
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DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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BRENTWOOD PLAZA A CALIFORNIA LIMITED PARTNERSHIP, a California limited partnership |
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DOUGLAS EMMETT MANAGEMENT, LLC, a Delaware limited liability company, its General Partner |
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DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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SUPPLEMENT TO JOINDER AGREEMENT
This SUPPLEMENT TO JOINDER AGREEMENT (this " Supplement ") is attached to and forms a part of the JOINDER AND SUPPLEMENT AGREEMENT (the " Joinder Agreement ") dated as of , 2006, executed by BRENTWOOD PLAZA A CALIFORNIA LIMITED PARTNERSHIP (the " Co Borrower ") and Douglas Emmett 1993, LLC, a limited liability company organized under the laws of the State of Delaware (the " Borrower ") for the benefit of Eurohypo AG, New York Branch, as Administrative Agent, and the Lenders from time to time party to that certain Loan Agreement dated as of August 25, 2005, as Modified by that certain Modification Agreement, of even date herewith (the " Modification Agreement "), and as further Modified and in effect from time to time, the " Loan Agreement "). Capitalized terms used but not defined herein shall have the meanings assigned them in the Loan Agreement as modified by the Modification Agreement, and the Joinder Agreement.
IN ADDITION TO AND WITHOUT LIMITING THE COVENANTS AND REPRESENTATIONS AND WARRANTIES OF BORROWER AND CO-BORROWER CONTAINED IN THE JOINDER AGREEMENT AND THE LOAN AGREEMENT, BORROWER AND CO-BORROWER FURTHER AGREE AS FOLLOWS:
1. Modifications to the Loan Agreement. The Loan Agreement is hereby Modified as follows:
(a) The RECITALS shall be supplemented as follows:
"The Co-Borrower is the owner of a fee simple interest in and to that certain office building listed in Schedule 1A-1 attached to the Supplement attached to the New Co-Borrower's Joinder and Supplement known as the Brentwood Plaza Project, in the City of Los Angeles, County of Los Angeles, State of California, on certain land more fully described in Schedule 1B-1 attached to the Supplement attached to the New Co-Borrower's Joinder and Supplement (the " Brentwood Plaza Project ") (the rights of the Co-Borrower with respect to such building and to the land on which each such building is located, together with the rights of the Co-Borrower with respect to any air rights and other rights, privileges, easements, hereditaments and appurtenances thereunto relating or appertaining thereto, all Improvements thereon, together with all fixtures and equipment required for the operation thereof, all personal property related to the foregoing and all other items described in the granting clause of the Deed of Trust relating to such building and interest in land are included within the term " Project " as defined in the Loan Agreement).
(b) The following new definitions shall be added to the Loan Agreement:
(i) "" Brentwood Plaza Project " has the meaning assigned to such term in the Recitals as supplemented by the Supplement to Joinder Agreement attached to the New Co-Borrower's Joinder and Supplement.";
(ii) Reserved.
(iii) Reserved.
(c) The following definitions shall be Modified as set forth below:
(i) The following sentence is added to the definition of Authorized Officer: "Authorized Officer," in the case of a Co-Borrower who is a limited partnership, shall mean any of the individual officers serving as the Chief Executive Officer, President, Vice President, Chief Financial Officer, Secretary, Treasurer or Assistant Treasurer of New General Partner, in its capacity as the general partner of Co-Borrower, and whose name appears on a certificate of incumbency executed by the Secretary of New Borrower's Manager, in its respective capacity as the manager of Borrower and/or the manager of New General Partner, and delivered concurrently with the effectiveness of the Modification Agreement, as such certificate of incumbency may be amended from time to time to identify the names of the individuals then
holding such offices and certified by the Secretary of New Borrower's Manager, in its respective capacity as the manager of Borrower and/or the manager of New General Partner.
(ii) "The definition of Obligations shall not, with respect to any Co-Borrower, include the Obligations of Borrower or any other Co-Borrower under any Environmental Indemnity to which the Co-Borrower is not a party.
(d) The following Sections shall be Modified as follows:
(i) Add the following sentences to the end of Section 7.10 : "The sole limited partner of Co-Borrower on the date hereof is the OP. The sole general partner of Co-Borrower on the date hereof is New General Partner."
(e) Reserved.
[signatures appear on the next page]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.
DOUGLAS EMMETT 1993, LLC, a Delaware limited liability company | ||||||||
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DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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BRENTWOOD PLAZA A CALIFORNIA LIMITED PARTNERSHIP, a California limited partnership |
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DOUGLAS EMMETT MANAGEMENT, LLC, a Delaware limited liability company, its General Partner |
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DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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Exhibit 10.60
Douglas Emmett
1998, LLC
JOINDER AND SUPPLEMENT AGREEMENT
This JOINDER AND SUPPLEMENT AGREEMENT (this " Joinder Agreement ") dated as of , 2006, is made and executed by Douglas Emmett 1998, LLC, a limited liability company organized under the laws of the State of Delaware (the " Borrower ") and Brentwood Court, a California limited partnership (" Brentwood Court "), and Brentwood-San Vicente Medical, Ltd., a California limited partnership (" BSVM ") (Brentwood Court and BSVM, individually and collectively, the " Co-Borrower "), and is made with reference to and is attached to that certain Modification Agreement, of even date herewith (the " Modification Agreement "), which modifies that certain Loan Agreement dated as of August 25, 2005, as Modified by the Modification Agreement (as further Modified and in effect from time to time, the " Loan Agreement ") by and among the Borrower, the lenders from time to time party thereto (the " Lenders ") and Eurohypo AG, New York Branch, as agent for the Lenders (together with its successors and assigns, the " Administrative Agent "). Capitalized terms used herein and not otherwise defined have the meanings ascribed to such terms in the Loan Agreement, as modified by the Modification Agreement.
R E C I T A L S
WHEREAS, Brentwood Court is the owner of a fee simple interest in and to that certain office building listed in Schedule 1A-1 attached to the Supplement attached to the New Co-Borrower's Joinder and Supplement known as the Brentwood Court Project, in the City of Los Angeles, County of Los Angeles, State of California, on certain land more fully described in Schedule 1B-1 attached to the Supplement attached to the New Co-Borrower's Joinder and Supplement (the " Brentwood Court Project ") and BSVM is the owner of a fee simple interest in and to that certain office building listed in Schedule 1A-2 attached to the Supplement attached to the New Co-Borrower's Joinder and Supplement known as the Brentwood San Vicente Medical Building Project, in the City of Los Angeles, County of Los Angeles, State of California, on certain land more fully described in Schedule 1B-2 attached to the Supplement attached to the New Co-Borrower's Joinder and Supplement (the " Brentwood San Vicente Medical Building Project ") (the applicable Co-Borrower's respective right, title and interests in and to the foregoing project or projects is referred to herein individually as a " Co-Borrower Project " and collectively as the " Co-Borrower Projects "); and
WHEREAS, a portion of the proceeds of the Loans will be used to repay certain indebtedness of the Co-Borrower secured by the Co-Borrower Projects and otherwise to benefit Co-Borrower and the Co-Borrower Projects; and
WHEREAS, the Borrower and the Co-Borrower are affiliates, and the Borrower and the Co-Borrower will benefit from the provision of credit to the Borrower and the Co-Borrower on the terms set forth in the Loan Agreement and the other Loan Documents.
NOW, THEREFORE, THE BORROWER AND CO-BORROWER HEREBY AGREE AS FOLLOWS FOR THE BENEFIT OF THE ADMINISTRATIVE AGENT AND THE LENDERS, EFFECTIVE AT THE IPO CLOSING TIME CONCURRENTLY WITH THE EFFECTIVENESS OF THE MODIFICATION AGREEMENT:
1. Joinder and Assumption by Co-Borrower. Each Co-Borrower acknowledges and agrees to the terms, conditions and provisions of the Loan Agreement and the other Loan Documents (as supplemented by this Joinder Agreement and the Joinder Supplement); agrees to become a co-borrower under the Loan Agreement and the other Loan Documents (as supplemented by this
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Joinder Agreement and the Joinder Supplement) with liability thereunder (subject to the terms of the Loan Agreement, including, without limitation, Section 14.23 of the Loan Agreement) joint and several with the Borrower and any other Co-Borrower; assumes, on a joint and several basis with the Borrower and any other Co-Borrower, all of the agreements, acknowledgements, liabilities, indemnities and obligations of the "Borrower" under the Loan Agreement and the other Loan Documents (as supplemented by this Joinder Agreement and the Joinder Supplement); makes all of the representations and warranties of and grants all of the rights, remedies and waivers granted by the "Borrower" under the Loan Agreement and the other Loan Documents; agrees that the Administrative Agent and the Lender, shall have, with respect to each Co-Borrower and each of the Co-Borrower Projects, all of the rights, remedies, powers, privileges and immunities which they have with respect to the Borrower and the Projects under the Loan Agreement and the Loan Documents; IN EACH OF THE FOREGOING CASES, as if (A) each reference in the Loan Agreement and the other Loan Documents to the "Borrower" or any "Borrower Party" or "Borrower Parties" (except (i) references to such terms contained in the definitions in Section 1.01 of the Loan Agreement (except as expressly provided in the Joinder Supplement), (ii) references to such terms contained in Loan Documents to which such Co-Borrower is not a party or has not assumed obligations thereunder pursuant to this Agreement (including any Environmental Indemnity to which such Co-Borrower is not a party) and (iii) as otherwise expressly provided to the contrary in any of the Loan Documents), shall include, in addition to the parties named therein, each Co-Borrower, jointly and severally with the Borrower and any other Co-Borrower; (B) each reference in the Loan Agreement and the other Loan Documents to any "Project" (including, without limitation, in any defined term therein, but excluding references to such term contained in any Environmental Indemnity to which such Co-Borrower is not a party or any of the other Loan Documents to which such Co-Borrower is not a party or as otherwise expressly provided to the contrary in any of the Loan Documents) shall, where the applicable context requires, mean and include both each Project and each Co-Borrower Project; and (C) each reference in the Loan Agreement and the other Loan Documents (including, without limitation, any defined term therein) to any Loan Document shall mean any applicable Loan Document to which the Borrower or such Co-Borrower is a party, if any. Each Co-Borrower further agrees that an "Event of Default" shall occur with respect to such Co-Borrower if any Event of Default as defined in Article XII of the Loan Agreement shall occur with respect to the Borrower or shall occur as if each reference to the "Borrower" contained in such Article XII included both the Borrower and such Co-Borrower or any other Co-Borrower, individually and collectively. The Borrower agrees that it has joint and several liability for all of the Obligations of each Co-Borrower under the Loan Agreement, as supplemented by this Joinder Agreement and the Joinder Supplement, and the other Loan Documents.
2. Certain Terms and References.
(a) All references to "Borrower" in the definitions of the following terms shall include a reference both to the Borrower and the applicable Co-Borrower, individually or collectively, as the context shall require:
(i) "Authorized Officer"
(ii) "Condemnation Awards"
(iii) "Environmental Liens"
(iv) "Excess Cash"
(v) "Excluded Taxes"
(vi) "GAAP"
(vii) "Immaterial Subsidiary"
(viii) "Interest Period"
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(ix) "Leases"
(x) " Loan " and " Loans "
(xi) "Obligations"
(xii) "Operating Expenses"
(xiii) "Operating Income"
(xiv) "Permitted Liens"
(xv) " Permitted Public REIT Transfe r". In addition, the following sentence is hereby added at the end of the definition of " Permitted Public REIT Transfe r": Nothing in this definition or in Section 9.03(a)(iii) shall prohibit the transfer by the applicable Co-Borrower of any Co-Borrower Project owned by such Co-Borrower to Borrower or to a separate Qualified Successor Entity provided that, in the case of a transfer to a Qualified Successor Entity, (i) the Borrower shall transfer the Projects owned by the Borrower to the same Qualified Successor Entity or to another Qualified Successor Entity that qualifies as such pursuant to the same clause (i.e., clause (I), (II) or (III) of the definition of Qualified Successor Entity set forth in Section 9.03(a)(iii) ), or (ii) direct or indirect Equity Interests in the Borrower are transferred to a Person that controls, is controlled by or is under common control with the Qualified Successor Entity to which such Co-Borrower Project is transferred and such transfer of Equity Interests is otherwise permitted by this Agreement.
(xvi) "Property Management Agreement"
(xvii) "Real Estate Taxes"
(xviii) "Rents"
(xix) "Transactions"
(b) The references to "Borrower" in the definitions of each of the documents that comprise the Loan Documents and the Security Documents (including, without limitation, "Cash Trap Account Security Agreement," "Deed of Trust" "Environmental Indemnity," "General Assignment," "Notes," "Project-Level Account Security Agreement" and "Property Manager's Consent") shall include a reference both to the Borrower and the applicable Co-Borrower, as the context shall require, such that all such documents delivered by the Borrower or the applicable Co-Borrower pursuant to the Loan Agreement or the Modification Agreement shall be included within the meanings of "Loan Documents" and "Security Documents."
(c) All references to "Borrower" in the following Sections of the Loan Agreement shall include a reference both to the Borrower and the applicable Co-Borrower, individually or collectively, as the context shall require:
(i) Section 2.01
(ii) Section 2.02
(iii) Section 2.04
(iv) Section 2.05
(v) Section 2.06
(vi) Section 2.08
(vii) Section 2.09
(viii) Section 2.10
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(ix) Section 4.01
(x) Section 4.02
(xi) Section 4.05
(xii) Section 4.06
(xiii) Section 5.01
(xiv) Section 5.02
(xv) Section 5.04
(xvi) Section 5.06
(xvii) Section 9.02
(xviii) Section 14.05
(xix) Section 14.13
(xx) Section 14.23
(xxi) Section 14.30
(xxii) Section 14.31
3. California Civil Code Section 2954.10 Waiver. By initialing this provision where indicated below, each Co-Borrower hereby makes each of the acknowledgments set forth in Section 2.06(d) of the Loan Agreement. By initialing this provision where indicated below, each Co-Borrower waives any rights it may have under California Civil Code Section 2954.10, or any successor statute, and such Co-Borrower confirms that the Lenders' agreement to make the Loans at the interest rate and on the other terms set forth in the Loan Agreement constitutes adequate and valuable consideration, given individual weight by such Co-Borrower, for the prepayment provisions set forth in Section 2.06 of the Loan Agreement and hereby waives its rights under California Civil Code Section 2954.10 as set forth in Section 2.06(d) of the Loan Agreement.
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4. Execution and Delivery of Documents by the Co-Borrower; Assumption of Notes and other Obligations. Without releasing the Borrower from any of its obligations thereunder, each Co-Borrower hereby assumes, jointly and severally with the Borrower and any other Co-Borrower, all of the obligations of the Borrower under each of the Notes which evidence Loans advanced by each Lender or its predecessor in interest prior to the IPO Closing Time. Pursuant to the Modification Agreement, the Borrower and each Co-Borrower shall jointly and severally execute the Additional Notes for each Lender, which shall evidence the amounts advanced by each Lender on or subsequent to the IPO Closing Time.
5. Joinder Supplement. The provisions set forth in the Supplement to Joinder Agreement attached hereto as Exhibit A are made a part hereof and incorporated by reference herein.
6.. Suretyship Provisions.
6.1 Definitions and Background. The Borrower and each Co-Borrower acknowledge that they will each receive substantial benefits from the Lenders' extension of credit pursuant to the Loan
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Agreement to the Borrower and the Co-Borrowers on the joint and several, cross-collateralized basis provided for herein and in the Loan Documents, which benefits are reasonably equivalent consideration for their respective incurrence of liability on account of the Obligations arising under the Loan Documents, and which benefits include, without limitation, the refinancing of certain existing indebtedness of the Borrower and the Co-Borrowers and the ability to refinance that indebtedness at a lower interest rate and otherwise on more favorable terms than would be available if the Projects owned by the Borrower and the Co-Borrowers were being financed on a stand-alone basis and not as part of a pool of assets comprising the security for the Obligations; and that each is joining in this Agreement, the Joinder and Supplement and the other Loan Documents in consideration of those benefits. The parties to this Joinder Agreement acknowledge and agree that the intention of the parties is that both the Borrower and the Co-Borrowers shall be direct, primary, joint and several obligors with respect to all Obligations (except to the extent expressly provided to the contrary in this Joinder Agreement). However, in the event that for any reason either the Borrower or any Co-Borrower (in such event, such party is referred to herein as the " Secondary Obligor ") is held or deemed to be a guarantor of or surety for the payment and performance of the obligations of the other (in such event, such other party is referred to herein as the " Primary Obligor ") under this Agreement, the Loan Agreement or any of the other Loan Documents (such obligations are collectively referred to herein as the " Primary Obligor Obligations " and all documents evidencing, securing or relating to the Primary Obligor Obligation are referred to herein as the " Primary Obligor Documents "), the Primary Obligor and Secondary Obligor hereby agree as follows.
6.2 Rights of the Administrative Agent and Lenders. Without modifying or otherwise limiting any of the Primary Obligor's rights under the Loan Agreement or the other Loan Documents with respect to any or all of the following acts, the Secondary Obligor authorizes the Administrative Agent and the Lenders to perform any or all of the following acts at any time in their sole discretion, all without notice to the Secondary Obligor and without affecting the rights of the Administrative Agent or the Lenders or the Secondary Obligor's obligations under the Loan Agreement and the Loan Documents:
(a) The Administrative Agent or the Lenders may alter any terms of the Primary Obligor Obligations or any part thereof, including renewing, compromising, extending or accelerating, or otherwise changing the time for payment of, or increasing or decreasing the rate of interest on, the Primary Obligor Obligations or any part thereof.
(b) The Administrative Agent or the Lenders may take and hold security for the Primary Obligor Obligations, accept additional or substituted security therefor, and subordinate, exchange, enforce, waive, release, compromise, fail to perfect and sell or otherwise dispose of any such security.
(c) The Administrative Agent or the Lenders may direct the order and manner of any sale of all or any part of any security now or later to be held for the Primary Obligor Obligations, and the Administrative Agent or the Lenders may also bid at any such sale.
(d) The Administrative Agent or the Lenders may apply any payments or recoveries from the Primary Obligor, the Secondary Obligor or any other source, and any proceeds of any security, to the Primary Obligor Obligations in such manner, order and priority as the Administrative Agent or the Lenders may elect.
(e) The Administrative Agent or the Lenders may release the Primary Obligor from its liability for the Primary Obligor Obligations or any part thereof.
(f) The Administrative Agent or the Lenders may substitute, add or release any one or more guarantors or endorsers.
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6.3 Obligations of Secondary Obligor to be Absolute. The Secondary Obligor expressly agrees that, until all Obligations have been paid and performed in full, the Secondary Obligor shall not be released by or because of:
(a) Any act or event which might otherwise discharge, reduce, limit or modify the Secondary Obligor's obligations under the Loan Agreement or the other Loan Documents;
(b) Any waiver, extension, modification, forbearance, delay or other act or omission of the Administrative Agent or the Lenders, or any failure to proceed promptly or otherwise against the Primary Obligor, the Secondary Obligor or any security;
(c) Any action, omission or circumstance which might increase the likelihood that the Secondary Obligor may be called upon to perform under this Agreement or the other Loan Documents or which might affect the rights or remedies of the Secondary Obligor against the Primary Obligor; or
(d) Any dealings occurring at any time between the Primary Obligor and the Administrative Agent or the Lenders, whether relating to the Primary Obligor Obligations or otherwise.
The Secondary Obligor hereby acknowledges that, absent this Section 5.3, the Secondary Obligor might have a defense to its Obligations as a result of one or more of the foregoing acts, omissions, agreements, waivers or matters. The Secondary Obligor hereby expressly waives and surrenders any defense to any liability on account of its Obligations based upon any of such acts, omissions, agreements, waivers or matters.
6.4 Waivers of Defenses. The Secondary Obligor waives:
(a) Any right it may have to require the Administrative Agent or the Lenders to proceed against the Primary Obligor, proceed against or exhaust any security held from the Primary Obligor, or pursue any other remedy in the Administrative Agent's or Lenders' power to pursue;
(b) Any defense based on any claim that the Secondary Obligor's obligations exceed or are more burdensome than those of the Primary Obligor;
(c) Any defense based on: (i) any legal disability of the Primary Obligor; (ii) any release, discharge, modification, impairment or limitation of the liability of the Primary Obligor to the Administrative Agent or the Lenders from any cause, whether consented to by the Administrative Agent or the Lenders or arising by operation of law or from any bankruptcy or other voluntary or involuntary proceeding, in or out of court, for the adjustment of debtor-creditor relationships (" Insolvency Proceeding ") and (iii) any rejection or disaffirmance, of the Primary Obligor Obligations, or any part thereof, or any security held therefor, in any such Insolvency Proceedings;
(d) Any defense based on any action taken or omitted by the Administrative Agent or the Lenders in any Insolvency Proceeding involving the Primary Obligor, including any election to have their claim allowed as being secured, partially secured or unsecured, any extension of credit by the Administrative Agent or the Lenders to the Primary Obligor in any Insolvency Proceeding and the taking and holding by the Administrative Agent or the Lenders of any security for any such extension of credit;
(e) All presentments, demands for performance, notice of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of the Obligations and of the existence, creation, or incurring of new or additional indebtedness, and demands and notices of every kind, but only in Secondary Obligor's capacity as Secondary Obligor and not in its capacity as Primary Obligor or as otherwise provided in the Loan Documents; and
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(f) Any defense based on or arising out of any action of the Administrative Agent or the Lenders described in Sections 5.2 or 5.3 above, subject to the provisions of Section 5.2 and 5.3 above.
6.5 Impairment of Subrogation Rights.
(a) Upon an Event of Default by the Primary Obligor, the Administrative Agent in its sole discretion, without prior notice (except as required by the Loan Documents or Applicable Law) to or consent of the Secondary Obligor, may elect to foreclose either judicially or nonjudicially against any real or personal property security it may hold for the Primary Obligor Obligations, or accept a transfer of any such security in lieu of foreclosure, or compromise or adjust the Primary Obligor Obligations or any part thereof or make any other accommodation with the Primary Obligor, or exercise any other remedy against the Primary Obligor or any security. No such action by the Administrative Agent shall release or limit the liability of the Secondary Obligor, who shall, subject to the provisions of Section 14.23(a) of the Loan Agreement, remain liable for the Obligations after the action, even if the affect of the action is to deprive the Secondary Obligor of any subrogation rights, rights of indemnity, or other rights to collect reimbursement from the Primary Obligor for any sums paid to the Administrative Agent or any Lender, whether contractual or arising by operation of law or otherwise. The Secondary Obligor expressly agrees that under no circumstances shall it be deemed to have any right, title, interest or claim in or to any real or personal property held by the Administrative Agent or any third party after any foreclosure or transfer in lieu of foreclosure of any security for the Primary Obligor Obligations.
(b) Regardless of whether the Secondary Obligor may have made any payments to the Administrative Agent or the Lenders, the Secondary Obligor hereby waives: (i) all rights of subrogation, indemnification, contribution and any other rights to collect reimbursement from the Primary Obligor or any other party for any sums paid to the Administrative Agent or the Lenders whether contractual or arising by operation of law (including, without limitation, under Sections 2847 or 2848 of the California Civil Code, under any provisions of the United States Bankruptcy Code, or any successor or similar statutes) or otherwise, (ii) all rights to enforce any remedy that the Administrative Agent or the Lenders may have against the Primary Obligor, and (iii) all rights to participate in any security now or later held by the Administrative Agent or the Lenders for the Primary Obligor Obligations. The Secondary Obligor further agrees that, to the extent the foregoing waiver is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation, reimbursement, contribution and indemnification the Secondary Obligor may have against the Primary Obligor or against any collateral or security, shall be junior and subordinate to any rights the Administrative Agent or the Lenders may have against the Primary Obligor, and to all right, title and interest the Administrative Agent or the Lenders may have in any such collateral or security. If any amount shall be paid to the Secondary Obligor on account of any such subrogation, reimbursement, contribution or indemnification rights at any time when all the Primary Obligor Obligations have not been paid in full, such amount shall be held in trust by the Secondary Obligor and shall forthwith be paid over to the Administrative Agent to be credited and applied against the Primary Obligor Obligations, whether matured or unmatured, in accordance with the terms of the Primary Obligor Documents. The waivers given in this Section 5.5(b) shall be effective until the Primary Obligor Obligations have been paid and performed in full.
(c) The Secondary Obligor understands and acknowledges that, if the Administrative Agent forecloses judicially or nonjudicially against any real property security for the Primary Obligor Obligations, that foreclosure could impair or destroy the ability that the Secondary Obligor may have to seek reimbursement, contribution or indemnification from the Primary Obligor. The Secondary Obligor further understands and acknowledges that in the absence of this Section 5.5, such potential impairment or destruction of the Secondary Obligor's rights, if any, may entitle the
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Secondary Obligor to assert a defense to its liability on account of the Obligations based on Section 580d of the California Code of Civil Procedure as interpreted in Union Bank v. Gradsky , 286 Cal.App.2d 40 (1968). The Secondary Obligor freely, irrevocably and unconditionally: (i) waives and relinquishes that defense and agrees that the Secondary Obligor will be fully liable for the Obligations even though the Administrative Agent may foreclose judicially or nonjudicially against any real property security for the Primary Obligor Obligations; (ii) agrees that the Secondary Obligor will not assert that defense in any action or proceeding which the Administrative Agent may commence to enforce the Secondary Obligor's liability on account of the Obligations, (iii) acknowledges and agrees that the rights and defenses waived by the Secondary Obligor hereunder on account of the Primary Obligor Obligations include any right or defense that the Secondary Obligor may have or be entitled to assert based upon or arising out of any one or more of Sections 580a, 580b or 726 of the California Code of Civil Procedure or Section 2848 of the California Civil Code; and (iv) acknowledges and agrees that the Lenders are relying on this waiver in extending the credit to the Primary Obligor and the Secondary Obligor, and that this waiver is a material part of the consideration which the Administrative Agent and the Lenders are receiving for providing the credit facilities under the Loan Agreement to the Primary Obligor.
(d) The Secondary Obligor waives any rights and defenses that are or may become available to the Secondary Obligor on account of the Primary Obligor Obligations by reason of Sections 2787 to 2855, inclusive, of the California Civil Code.
(e) The Secondary Obligor waives all rights and defenses that the Secondary Obligor may have because the Primary Obligor Obligations are secured by real property. This means, among other things, (i) the Lender may collect from the Secondary Obligor and pursue any real or personal property pledged by the Secondary Obligor without first foreclosing on any real or personal property collateral pledged by the Primary Obligor; (ii) the amount of the Obligations for which Secondary Obligor is liable may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price; and (iii) the Administrative Agent and the Lenders may collect from the Secondary Obligor even if the Administrative Agent, by foreclosing on the real property collateral, has destroyed any right the Secondary Obligor may have to collect from the Primary Obligor. This is an unconditional and irrevocable waiver of any rights and defenses the Secondary Obligor may have because the Primary Obligor Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the Code of Civil Procedure. In addition, Secondary Obligor waives all rights and defenses arising out of an election of remedies by the Administrative Agent or the Lenders, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the guaranteed obligation, has destroyed the Secondary Obligor's rights of subrogation and reimbursement against the Primary Obligor by the operation of Section 580d of the Code of Civil Procedure or otherwise.
6.6 Revival and Reinstatement. If the Administrative Agent or any Lender is required to pay, return or restore to the Primary Obligor or any other person any amounts previously paid on the Primary Obligor Obligations because of any Insolvency Proceeding of the Primary Obligor, any stop notice or any other reason, the obligation of the Secondary Obligor shall be reinstated and revived and the rights of the Administrative Agent and the Lenders shall continue with regard to such amounts, all as though they had never been paid.
6.7 The Primary Obligor's Financial Condition. The Secondary Obligor assumes full responsibility for keeping informed of the Primary Obligor's financial condition and business operations and all other circumstances affecting the Primary Obligor's ability to pay and perform its obligations to the Administrative Agent, and agrees that the Administrative Agent shall have no duty to disclose to the Secondary Obligor any information which the Administrative Agent may receive about the Primary
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Obligor's financial condition, business operations, or any other circumstances bearing on its ability to perform.
6.7 Intent of Waivers. The waivers and other provisions of this Section 5 are made by the Secondary Obligor solely for itself and not on behalf of the Primary Obligor. Furthermore, the waivers and other provisions of this Section 5 are made by the Secondary Obligor solely in its capacity as a Secondary Obligor and not in its capacity as a Primary Obligor. Nothing herein is intended to, or shall, modify, or constitute a waiver or surrender by the Secondary Obligor of, any right, remedy or defense that would otherwise be available to the Secondary Obligor on account of its Obligations in its capacity as a Primary Obligor.
7. Miscellaneous. For all purposes of the Loan Agreement and the other Loan Documents, this Joinder Agreement and the Joinder Supplement are "Loan Documents." The Loan Agreement contains certain provisions which apply to the Loan Documents, and those provisions apply to this Joinder Agreement and the Joinder Supplement, and are incorporated herein by this reference. Those incorporated provisions include, without limitation, those relating to manner of delivering notice, certain waivers (including waiver of jury trial), submission to jurisdiction, the Borrower's and applicable Co-Borrower's responsibility for certain expenses, severability, manner for amendment and modification of this Agreement, governing law and other matters. This Joinder Agreement may be executed in any number of counterparts, each of which shall be an original, and all of which, when taken together, shall constitute one and the same agreement. Delivery of an executed signature page of this Joinder Agreement by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.
8. Limitation of Liability. The provisions of Section 14.23(a) of the Loan Agreement shall apply to the terms of this Joinder Agreement. All references to the "Borrower" in Section 14.23 of the Loan Agreement shall mean the Borrower and each Co-Borrower, individually or collectively, as the context shall require. Also, if any Co-Borrower is a limited partnership, all references in Section 14.23(a) of the Loan Agreement to "manager" or "member" shall mean "general and/or limited partner."
[signatures appear on the next page]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.
DOUGLAS EMMETT 1998, LLC,
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BRENTWOOD COURT, a California limited partnership |
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DOUGLAS EMMETT MANAGEMENT, LLC, a Delaware limited liability company, its General Partner |
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DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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BRENTWOOD-SAN VICENTE MEDICAL, LTD., a California limited partnership |
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DOUGLAS EMMETT MANAGEMENT, LLC, a Delaware limited liability company, its General Partner |
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DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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SUPPLEMENT TO JOINDER AGREEMENT
This SUPPLEMENT TO JOINDER AGREEMENT (this " Supplement ") is attached to and forms a part of the JOINDER AND SUPPLEMENT AGREEMENT (the " Joinder Agreement ") dated as of , 2006, executed by Brentwood Court, a California limited partnership (" Brentwood Court "), and Brentwood-San Vicente Medical, Ltd., a California limited partnership (" BSVM ") (Brentwood Court and BSVM, individually and collectively, the " Co-Borrower "), and Douglas Emmett 1998, LLC, a limited liability company organized under the laws of the State of Delaware (the " Borrower ") for the benefit of Eurohypo AG, New York Branch, as Administrative Agent, and the Lenders from time to time party to that certain Loan Agreement dated as of August 25, 2005, as Modified by that certain Modification Agreement, of even date herewith (the " Modification Agreement "), and as further Modified and in effect from time to time, the " Loan Agreement "). Capitalized terms used but not defined herein shall have the meanings assigned them in the Loan Agreement as modified by the Modification Agreement, and the Joinder Agreement.
IN ADDITION TO AND WITHOUT LIMITING THE COVENANTS AND REPRESENTATIONS AND WARRANTIES OF BORROWER AND CO-BORROWER CONTAINED IN THE JOINDER AGREEMENT AND THE LOAN AGREEMENT, BORROWER AND CO-BORROWER FURTHER AGREE AS FOLLOWS:
1. Modifications to the Loan Agreement. The Loan Agreement is hereby Modified as follows:
(a) The RECITALS shall be supplemented as follows:
"The Co-Borrower known as Brentwood Court, a California limited partnership (" Brentwood Court "), is the owner of a fee simple interest in and to that certain office building listed in Schedule 1A-1 attached to the Supplement attached to the New Co-Borrower's Joinder and Supplement known as the Brentwood Court Project, in the City of Los Angeles, County of Los Angeles, State of California, on certain land more fully described in Schedule 1B-1 attached to the Supplement attached to the New Co-Borrower's Joinder and Supplement (the "Brentwood Court Project"), and the Co-Borrower known as Brentwood-San Vicente Medical, Ltd., a California limited partnership (" BSVM "), is the owner of a fee simple interest in and to that certain office building listed in Schedule 1A-2 attached to the Supplement attached to the New Co-Borrower's Joinder and Supplement known as the Brentwood San Vicente medical Building Project, in the City of Los Angeles, County of Los Angeles, State of California, on certain land more fully described in Schedule 1B-2 attached to the Supplement attached to the New Co-Borrower's Joinder and Supplement (the " Brentwood San Vicente Medical Building Project ") (the rights of each such Co-Borrower with respect to each such building and to the land on which each such building is located, together with the rights of such Co-Borrower with respect to any air rights and other rights, privileges, easements, hereditaments and appurtenances thereunto relating or appertaining thereto, all Improvements thereon, together with all fixtures and equipment required for the operation thereof, all personal property related to the foregoing and all other items described in the granting clause of the Deed of Trust relating to such building and interest in land are included within the term " Project " as defined in the Loan Agreement).
(b) The following new definitions shall be added to the Loan Agreement:
(i) ""Brentwood Court Project" and "Brentwood San Vicente Medical Building Project" have the respective meanings assigned to such terms in the Recitals as supplemented by the Supplement to Joinder Agreement attached to the New Co-Borrower's Joinder and Supplement.";
(ii) Reserved.
(iii) Reserved.
(c) The following definitions shall be Modified as set forth below:
(i) The following sentence is added to the definition of Authorized Officer: "Authorized Officer," in the case of a Co-Borrower who is a limited partnership, shall mean any of the individual officers serving as the Chief Executive Officer, President, Vice President, Chief Financial Officer, Secretary, Treasurer or Assistant Treasurer of New General Partner, in its capacity as the general partner of Co-Borrower, and whose name appears on a certificate of incumbency executed by the Secretary of New Borrower's Manager, in its respective capacity as the manager of Borrower and/or the manager of New General Partner, and delivered concurrently with the effectiveness of the Modification Agreement, as such certificate of incumbency may be amended from time to time to identify the names of the individuals then holding such offices and certified by the Secretary of New Borrower's Manager, in its respective capacity as the manager of Borrower and/or the manager of New General Partner.
(ii) "The definition of Obligations shall not, with respect to any Co-Borrower, include the Obligations of Borrower or any other Co-Borrower under any Environmental Indemnity to which such Co-Borrower is not a party.
(d) The following Sections shall be Modified as follows:
(i) Add the following sentences to the end of Section 7.10 : "The sole limited partner of Co-Borrower on the date hereof is the OP. The sole general partner of Co-Borrower on the date hereof is New General Partner."
(e) Reserved.
[signatures appear on the next page]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.
DOUGLAS EMMETT 1998, LLC, a Delaware limited liability company | ||||||||
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DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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William Kamer Chief Financial Officer |
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BRENTWOOD COURT, a California limited partnership |
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DOUGLAS EMMETT MANAGEMENT, LLC, a Delaware limited liability company, its General Partner |
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DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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William Kamer Chief Financial Officer |
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BRENTWOOD-SAN VICENTE MEDICAL, LTD., a California limited partnership |
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DOUGLAS EMMETT MANAGEMENT, LLC, a Delaware limited liability company, its General Partner |
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DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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Exhibit 10.61
Douglas Emmett
2002, LLC
JOINDER AND SUPPLEMENT AGREEMENT
This JOINDER AND SUPPLEMENT AGREEMENT (this " Joinder Agreement ") dated as of , 2006, is made and executed by Douglas Emmett 2002, LLC, a limited liability company organized under the laws of the State of Delaware, together with DEG, LLC, a limited liability company organized under the laws of the State of Delaware (individually and collectively, the " Borrower ") and San Vicente Plaza, a California limited partnership (" San Vicente "), and Owensmouth/Warner, LLC, a California limited liability company (" Owensmouth ") (San Vicente and Owensmouth, individually and collectively, the " Co-Borrower "), and is made with reference to and is attached to that certain Modification Agreement, of even date herewith (the " Modification Agreement "), which modifies that certain Loan Agreement dated as of August 25, 2005, as Modified by the Joinder and Supplement Agreement dated as of August 25, 2005, as Modified by the Modification Agreement (as further Modified and in effect from time to time, the " Loan Agreement ") by and among the Borrower, the lenders from time to time party thereto (the " Lenders ") and Eurohypo AG, New York Branch, as agent for the Lenders (together with its successors and assigns, the " Administrative Agent "). Capitalized terms used herein and not otherwise defined have the meanings ascribed to such terms in the Loan Agreement, as modified by the Modification Agreement.
R E C I T A L S
WHEREAS, San Vicente is the owner of a fee simple interest in and to that certain office building listed in Schedule 1A-1 attached to the Supplement attached to the New Co-Borrower's Joinder and Supplement known as the San Vicente Plaza Project, in the City of Los Angeles, County of Los Angeles, State of California, on certain land more fully described in Schedule 1B-1 attached to the Supplement attached to the New Co-Borrower's Joinder and Supplement (the " San Vicente Project "), and Owensmouth is the owner of a fee simple interest, subject to the Ground Lease described below, in and to that certain real property listed in Schedule 1A-2 attached to the Supplement attached to the New Co-Borrower's Joinder and Supplement known as the Owensmouth Project, in the City of Los Angeles, County of Los Angeles, State of California, more fully described in Schedule 1B-2 attached to the Supplement attached to the New Co-Borrower's Joinder and Supplement (the " Owensmouth Project ") (the applicable Co-Borrower's respective right, title and interests in and to the foregoing project or projects is referred to herein individually as a " Co-Borrower Project " and collectively as the " Co-Borrower Projects "); and
WHEREAS, a portion of the proceeds of the Loans will be used to repay certain indebtedness of the Co-Borrower secured by the Co-Borrower Projects and otherwise to benefit Co-Borrower and the Co-Borrower Projects; and
WHEREAS, the Borrower and the Co-Borrower are affiliates, and the Borrower and the Co-Borrower will benefit from the provision of credit to the Borrower and the Co-Borrower on the terms set forth in the Loan Agreement and the other Loan Documents.
NOW, THEREFORE, THE BORROWER AND CO-BORROWER HEREBY AGREE AS FOLLOWS FOR THE BENEFIT OF THE ADMINISTRATIVE AGENT AND THE LENDERS, EFFECTIVE AT THE IPO CLOSING TIME CONCURRENTLY WITH THE EFFECTIVENESS OF THE MODIFICATION AGREEMENT:
1. Joinder and Assumption by Co-Borrower. Each Co-Borrower acknowledges and agrees to the terms, conditions and provisions of the Loan Agreement and the other Loan Documents (as
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supplemented by this Joinder Agreement and the Joinder Supplement); agrees to become a co-borrower under the Loan Agreement and the other Loan Documents (as supplemented by this Joinder Agreement and the Joinder Supplement) with liability thereunder (subject to the terms of the Loan Agreement, including, without limitation, Section 14.23 of the Loan Agreement) joint and several with the Borrower and any other Co-Borrower; assumes, on a joint and several basis with the Borrower and any other Co-Borrower, all of the agreements, acknowledgements, liabilities, indemnities and obligations of the "Borrower" under the Loan Agreement and the other Loan Documents (as supplemented by this Joinder Agreement and the Joinder Supplement); makes all of the representations and warranties of and grants all of the rights, remedies and waivers granted by the "Borrower" under the Loan Agreement and the other Loan Documents; agrees that the Administrative Agent and the Lender, shall have, with respect to each Co-Borrower and each of the Co-Borrower Projects, all of the rights, remedies, powers, privileges and immunities which they have with respect to the Borrower and the Projects under the Loan Agreement and the Loan Documents; IN EACH OF THE FOREGOING CASES, as if (A) each reference in the Loan Agreement and the other Loan Documents to the "Borrower" or any "Borrower Party" or "Borrower Parties" (except (i) references to such terms contained in the definitions in Section 1.01 of the Loan Agreement (except as expressly provided in the Joinder Supplement), (ii) references to such terms contained in Loan Documents to which such Co-Borrower is not a party or has not assumed obligations thereunder pursuant to this Agreement (including any Environmental Indemnity to which such Co-Borrower is not a party) and (iii) as otherwise expressly provided to the contrary in any of the Loan Documents), shall include, in addition to the parties named therein, each Co-Borrower, jointly and severally with the Borrower and any other Co-Borrower; (B) each reference in the Loan Agreement and the other Loan Documents to any "Project" (including, without limitation, in any defined term therein, but excluding references to such term contained in any Environmental Indemnity to which such Co-Borrower is not a party or any of the other Loan Documents to which such Co-Borrower is not a party or as otherwise expressly provided to the contrary in any of the Loan Documents) shall, where the applicable context requires, mean and include both each Project and each Co-Borrower Project; and (C) each reference in the Loan Agreement and the other Loan Documents (including, without limitation, any defined term therein) to any Loan Document shall mean any applicable Loan Document to which the Borrower or such Co-Borrower is a party, if any. Each Co-Borrower further agrees that an "Event of Default" shall occur with respect to such Co-Borrower if any Event of Default as defined in Article XII of the Loan Agreement shall occur with respect to the Borrower or shall occur as if each reference to the "Borrower" contained in such Article XII included both the Borrower and such Co-Borrower or any other Co-Borrower, individually and collectively. The Borrower agrees that it has joint and several liability for all of the Obligations of each Co-Borrower under the Loan Agreement, as supplemented by this Joinder Agreement and the Joinder Supplement, and the other Loan Documents.
2. Certain Terms and References.
(a) All references to "Borrower" in the definitions of the following terms shall include a reference both to the Borrower and the applicable Co-Borrower, individually or collectively, as the context shall require:
(i) "Authorized Officer"
(ii) "Condemnation Awards"
(iii) "Environmental Liens"
(iv) "Excess Cash"
(v) "Excluded Taxes"
(vi) "GAAP"
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(vii) "Immaterial Subsidiary"
(viii) "Interest Period"
(ix) "Leases"
(x) " Loan " and " Loans "
(xi) "Obligations"
(xii) "Operating Expenses"
(xiii) "Operating Income"
(xiv) "Permitted Liens"
(xv) " Permitted Public REIT Transfer ". In addition, the following sentence is hereby added at the end of the definition of " Permitted Public REIT Transfer ": Nothing in this definition or in Section 9.03(a)(iii) shall prohibit the transfer by the applicable Co-Borrower of any Co-Borrower Project owned by such Co-Borrower to Borrower or to a separate Qualified Successor Entity provided that, in the case of a transfer to a Qualified Successor Entity, (i) the Borrower shall transfer the Projects owned by the Borrower to the same Qualified Successor Entity or to another Qualified Successor Entity that qualifies as such pursuant to the same clause (i.e., clause (I), (II) or (III) of the definition of Qualified Successor Entity set forth in Section 9.03(a)(iii) ), or (ii) direct or indirect Equity Interests in the Borrower are transferred to a Person that controls, is controlled by or is under common control with the Qualified Successor Entity to which such Co-Borrower Project is transferred and such transfer of Equity Interests is otherwise permitted by this Agreement.
(xvi) "Property Management Agreement"
(xvii) "Real Estate Taxes"
(xviii) "Rents"
(xix) "Transactions"
(b) The references to "Borrower" in the definitions of each of the documents that comprise the Loan Documents and the Security Documents (including, without limitation, "Cash Trap Account Security Agreement," "Deed of Trust" "Environmental Indemnity," "General Assignment," "Notes," "Project-Level Account Security Agreement" and "Property Manager's Consent") shall include a reference both to the Borrower and the applicable Co-Borrower, as the context shall require, such that all such documents delivered by the Borrower or the applicable Co-Borrower pursuant to the Loan Agreement or the Modification Agreement shall be included within the meanings of "Loan Documents" and "Security Documents."
(c) All references to "Borrower" in the following Sections of the Loan Agreement shall include a reference both to the Borrower and the applicable Co-Borrower, individually or collectively, as the context shall require:
(i) Section 2.01
(ii) Section 2.02
(iii) Section 2.04
(iv) Section 2.05
(v) Section 2.06
(vi) Section 2.08
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(vii) Section 2.09
(viii) Section 2.10
(ix) Section 4.01
(x) Section 4.02
(xi) Section 4.05
(xii) Section 4.06
(xiii) Section 5.01
(xiv) Section 5.02
(xv) Section 5.04
(xvi) Section 5.06
(xvii) Section 9.02
(xviii) Section 14.05
(xix) Section 14.13
(xx) Section 14.23
(xxi) Section 14.30
(xxii) Section 14.31
3. California Civil Code Section 2954.10 Waiver. By initialing this provision where indicated below, each Co-Borrower hereby makes each of the acknowledgments set forth in Section 2.06(d) of the Loan Agreement. By initialing this provision where indicated below, each Co-Borrower waives any rights it may have under California Civil Code Section 2954.10, or any successor statute, and such Co-Borrower confirms that the Lenders' agreement to make the Loans at the interest rate and on the other terms set forth in the Loan Agreement constitutes adequate and valuable consideration, given individual weight by such Co-Borrower, for the prepayment provisions set forth in Section 2.06 of the Loan Agreement and hereby waives its rights under California Civil Code Section 2954.10 as set forth in Section 2.06(d) of the Loan Agreement.
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4. Execution and Delivery of Documents by the Co-Borrower; Assumption of Notes and other Obligations. Without releasing the Borrower from any of its obligations thereunder, each Co-Borrower hereby assumes, jointly and severally with the Borrower and any other Co-Borrower, all of the obligations of the Borrower under each of the Notes which evidence Loans advanced by each Lender or its predecessor in interest prior to the IPO Closing Time. Pursuant to the Modification Agreement, the Borrower and each Co-Borrower shall jointly and severally execute the Additional Notes for each Lender, which shall evidence the amounts advanced by each Lender on or subsequent to the IPO Closing Time.
5. Joinder Supplement. The provisions set forth in the Supplement to Joinder Agreement attached hereto as Exhibit A are made a part hereof and incorporated by reference herein.
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6. Suretyship Provisions.
6.1 Definitions and Background. The Borrower and each Co-Borrower acknowledge that they will each receive substantial benefits from the Lenders' extension of credit pursuant to the Loan Agreement to the Borrower and the Co-Borrowers on the joint and several, cross-collateralized basis provided for herein and in the Loan Documents, which benefits are reasonably equivalent consideration for their respective incurrence of liability on account of the Obligations arising under the Loan Documents, and which benefits include, without limitation, the refinancing of certain existing indebtedness of the Borrower and the Co-Borrowers and the ability to refinance that indebtedness at a lower interest rate and otherwise on more favorable terms than would be available if the Projects owned by the Borrower and the Co-Borrower were being financed on a stand-alone basis and not as part of a pool of assets comprising the security for the Obligations; and that each is joining in this Agreement, the Joinder and Supplement and the other Loan Documents in consideration of those benefits. The parties to this Joinder Agreement acknowledge and agree that the intention of the parties is that both the Borrower and the Co-Borrowers shall be direct, primary, joint and several obligors with respect to all Obligations (except to the extent expressly provided to the contrary in this Joinder Agreement). However, in the event that for any reason either the Borrower or any Co-Borrower (in such event, such party is referred to herein as the " Secondary Obligor ") is held or deemed to be a guarantor of or surety for the payment and performance of the obligations of the other (in such event, such other party is referred to herein as the " Primary Obligor ") under this Agreement, the Loan Agreement or any of the other Loan Documents (such obligations are collectively referred to herein as the " Primary Obligor Obligations " and all documents evidencing, securing or relating to the Primary Obligor Obligation are referred to herein as the " Primary Obligor Documents "), the Primary Obligor and Secondary Obligor hereby agree as follows.
6.2 Rights of the Administrative Agent and Lenders. Without modifying or otherwise limiting any of the Primary Obligor's rights under the Loan Agreement or the other Loan Documents with respect to any or all of the following acts, the Secondary Obligor authorizes the Administrative Agent and the Lenders to perform any or all of the following acts at any time in their sole discretion, all without notice to the Secondary Obligor and without affecting the rights of the Administrative Agent or the Lenders or the Secondary Obligor's obligations under the Loan Agreement and the Loan Documents:
(a) The Administrative Agent or the Lenders may alter any terms of the Primary Obligor Obligations or any part thereof, including renewing, compromising, extending or accelerating, or otherwise changing the time for payment of, or increasing or decreasing the rate of interest on, the Primary Obligor Obligations or any part thereof.
(b) The Administrative Agent or the Lenders may take and hold security for the Primary Obligor Obligations, accept additional or substituted security therefor, and subordinate, exchange, enforce, waive, release, compromise, fail to perfect and sell or otherwise dispose of any such security.
(c) The Administrative Agent or the Lenders may direct the order and manner of any sale of all or any part of any security now or later to be held for the Primary Obligor Obligations, and the Administrative Agent or the Lenders may also bid at any such sale.
(d) The Administrative Agent or the Lenders may apply any payments or recoveries from the Primary Obligor, the Secondary Obligor or any other source, and any proceeds of any security, to the Primary Obligor Obligations in such manner, order and priority as the Administrative Agent or the Lenders may elect.
(e) The Administrative Agent or the Lenders may release the Primary Obligor from its liability for the Primary Obligor Obligations or any part thereof.
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(f) The Administrative Agent or the Lenders may substitute, add or release any one or more guarantors or endorsers.
6.3 Obligations of Secondary Obligor to be Absolute. The Secondary Obligor expressly agrees that, until all Obligations have been paid and performed in full, the Secondary Obligor shall not be released by or because of:
(a) Any act or event which might otherwise discharge, reduce, limit or modify the Secondary Obligor's obligations under the Loan Agreement or the other Loan Documents;
(b) Any waiver, extension, modification, forbearance, delay or other act or omission of the Administrative Agent or the Lenders, or any failure to proceed promptly or otherwise against the Primary Obligor, the Secondary Obligor or any security;
(c) Any action, omission or circumstance which might increase the likelihood that the Secondary Obligor may be called upon to perform under this Agreement or the other Loan Documents or which might affect the rights or remedies of the Secondary Obligor against the Primary Obligor; or
(d) Any dealings occurring at any time between the Primary Obligor and the Administrative Agent or the Lenders, whether relating to the Primary Obligor Obligations or otherwise.
The Secondary Obligor hereby acknowledges that, absent this Section 5.3, the Secondary Obligor might have a defense to its Obligations as a result of one or more of the foregoing acts, omissions, agreements, waivers or matters. The Secondary Obligor hereby expressly waives and surrenders any defense to any liability on account of its Obligations based upon any of such acts, omissions, agreements, waivers or matters.
6.4 Waivers of Defenses. The Secondary Obligor waives:
(a) Any right it may have to require the Administrative Agent or the Lenders to proceed against the Primary Obligor, proceed against or exhaust any security held from the Primary Obligor, or pursue any other remedy in the Administrative Agent's or Lenders' power to pursue;
(b) Any defense based on any claim that the Secondary Obligor's obligations exceed or are more burdensome than those of the Primary Obligor;
(c) Any defense based on: (i) any legal disability of the Primary Obligor; (ii) any release, discharge, modification, impairment or limitation of the liability of the Primary Obligor to the Administrative Agent or the Lenders from any cause, whether consented to by the Administrative Agent or the Lenders or arising by operation of law or from any bankruptcy or other voluntary or involuntary proceeding, in or out of court, for the adjustment of debtor-creditor relationships (" Insolvency Proceeding ") and (iii) any rejection or disaffirmance, of the Primary Obligor Obligations, or any part thereof, or any security held therefor, in any such Insolvency Proceedings;
(d) Any defense based on any action taken or omitted by the Administrative Agent or the Lenders in any Insolvency Proceeding involving the Primary Obligor, including any election to have their claim allowed as being secured, partially secured or unsecured, any extension of credit by the Administrative Agent or the Lenders to the Primary Obligor in any Insolvency Proceeding and the taking and holding by the Administrative Agent or the Lenders of any security for any such extension of credit;
(e) All presentments, demands for performance, notice of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of the Obligations and of the existence, creation, or incurring of new or additional indebtedness, and demands and notices of every kind, but only in Secondary Obligor's capacity as Secondary Obligor and not in its capacity as Primary Obligor or as otherwise provided in the Loan Documents; and
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(f) Any defense based on or arising out of any action of the Administrative Agent or the Lenders described in Sections 5.2 or 5.3 above, subject to the provisions of Section 5.2 and 5.3 above.
6.5 Impairment of Subrogation Rights.
(a) Upon an Event of Default by the Primary Obligor, the Administrative Agent in its sole discretion, without prior notice (except as required by the Loan Documents or Applicable Law) to or consent of the Secondary Obligor, may elect to foreclose either judicially or nonjudicially against any real or personal property security it may hold for the Primary Obligor Obligations, or accept a transfer of any such security in lieu of foreclosure, or compromise or adjust the Primary Obligor Obligations or any part thereof or make any other accommodation with the Primary Obligor, or exercise any other remedy against the Primary Obligor or any security. No such action by the Administrative Agent shall release or limit the liability of the Secondary Obligor, who shall, subject to the provisions of Section 14.23(a) of the Loan Agreement, remain liable for the Obligations after the action, even if the affect of the action is to deprive the Secondary Obligor of any subrogation rights, rights of indemnity, or other rights to collect reimbursement from the Primary Obligor for any sums paid to the Administrative Agent or any Lender, whether contractual or arising by operation of law or otherwise. The Secondary Obligor expressly agrees that under no circumstances shall it be deemed to have any right, title, interest or claim in or to any real or personal property held by the Administrative Agent or any third party after any foreclosure or transfer in lieu of foreclosure of any security for the Primary Obligor Obligations.
(b) Regardless of whether the Secondary Obligor may have made any payments to the Administrative Agent or the Lenders, the Secondary Obligor hereby waives: (i) all rights of subrogation, indemnification, contribution and any other rights to collect reimbursement from the Primary Obligor or any other party for any sums paid to the Administrative Agent or the Lenders whether contractual or arising by operation of law (including, without limitation, under Sections 2847 or 2848 of the California Civil Code, under any provisions of the United States Bankruptcy Code, or any successor or similar statutes) or otherwise, (ii) all rights to enforce any remedy that the Administrative Agent or the Lenders may have against the Primary Obligor, and (iii) all rights to participate in any security now or later held by the Administrative Agent or the Lenders for the Primary Obligor Obligations. The Secondary Obligor further agrees that, to the extent the foregoing waiver is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation, reimbursement, contribution and indemnification the Secondary Obligor may have against the Primary Obligor or against any collateral or security, shall be junior and subordinate to any rights the Administrative Agent or the Lenders may have against the Primary Obligor, and to all right, title and interest the Administrative Agent or the Lenders may have in any such collateral or security. If any amount shall be paid to the Secondary Obligor on account of any such subrogation, reimbursement, contribution or indemnification rights at any time when all the Primary Obligor Obligations have not been paid in full, such amount shall be held in trust by the Secondary Obligor and shall forthwith be paid over to the Administrative Agent to be credited and applied against the Primary Obligor Obligations, whether matured or unmatured, in accordance with the terms of the Primary Obligor Documents. The waivers given in this Section 5.5(b) shall be effective until the Primary Obligor Obligations have been paid and performed in full.
(c) The Secondary Obligor understands and acknowledges that, if the Administrative Agent forecloses judicially or nonjudicially against any real property security for the Primary Obligor Obligations, that foreclosure could impair or destroy the ability that the Secondary Obligor may have to seek reimbursement, contribution or indemnification from the Primary Obligor. The Secondary Obligor further understands and acknowledges that in the absence of this Section 5.5, such potential impairment or destruction of the Secondary Obligor's rights, if any, may entitle the
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Secondary Obligor to assert a defense to its liability on account of the Obligations based on Section 580d of the California Code of Civil Procedure as interpreted in Union Bank v. Gradsky , 286 Cal.App.2d 40 (1968). The Secondary Obligor freely, irrevocably and unconditionally: (i) waives and relinquishes that defense and agrees that the Secondary Obligor will be fully liable for the Obligations even though the Administrative Agent may foreclose judicially or nonjudicially against any real property security for the Primary Obligor Obligations; (ii) agrees that the Secondary Obligor will not assert that defense in any action or proceeding which the Administrative Agent may commence to enforce the Secondary Obligor's liability on account of the Obligations, (iii) acknowledges and agrees that the rights and defenses waived by the Secondary Obligor hereunder on account of the Primary Obligor Obligations include any right or defense that the Secondary Obligor may have or be entitled to assert based upon or arising out of any one or more of Sections 580a, 580b or 726 of the California Code of Civil Procedure or Section 2848 of the California Civil Code; and (iv) acknowledges and agrees that the Lenders are relying on this waiver in extending the credit to the Primary Obligor and the Secondary Obligor, and that this waiver is a material part of the consideration which the Administrative Agent and the Lenders are receiving for providing the credit facilities under the Loan Agreement to the Primary Obligor.
(d) The Secondary Obligor waives any rights and defenses that are or may become available to the Secondary Obligor on account of the Primary Obligor Obligations by reason of Sections 2787 to 2855, inclusive, of the California Civil Code.
(e) The Secondary Obligor waives all rights and defenses that the Secondary Obligor may have because the Primary Obligor Obligations are secured by real property. This means, among other things, (i) the Lender may collect from the Secondary Obligor and pursue any real or personal property pledged by the Secondary Obligor without first foreclosing on any real or personal property collateral pledged by the Primary Obligor; (ii) the amount of the Obligations for which Secondary Obligor is liable may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price; and (iii) the Administrative Agent and the Lenders may collect from the Secondary Obligor even if the Administrative Agent, by foreclosing on the real property collateral, has destroyed any right the Secondary Obligor may have to collect from the Primary Obligor. This is an unconditional and irrevocable waiver of any rights and defenses the Secondary Obligor may have because the Primary Obligor Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the Code of Civil Procedure. In addition, Secondary Obligor waives all rights and defenses arising out of an election of remedies by the Administrative Agent or the Lenders, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the guaranteed obligation, has destroyed the Secondary Obligor's rights of subrogation and reimbursement against the Primary Obligor by the operation of Section 580d of the Code of Civil Procedure or otherwise.
6.6 Revival and Reinstatement. If the Administrative Agent or any Lender is required to pay, return or restore to the Primary Obligor or any other person any amounts previously paid on the Primary Obligor Obligations because of any Insolvency Proceeding of the Primary Obligor, any stop notice or any other reason, the obligation of the Secondary Obligor shall be reinstated and revived and the rights of the Administrative Agent and the Lenders shall continue with regard to such amounts, all as though they had never been paid.
6.7 The Primary Obligor's Financial Condition. The Secondary Obligor assumes full responsibility for keeping informed of the Primary Obligor's financial condition and business operations and all other circumstances affecting the Primary Obligor's ability to pay and perform its obligations to the Administrative Agent, and agrees that the Administrative Agent shall have no duty to disclose to the Secondary Obligor any information which the Administrative Agent may receive about the Primary
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Obligor's financial condition, business operations, or any other circumstances bearing on its ability to perform.
6.7 Intent of Waivers. The waivers and other provisions of this Section 5 are made by the Secondary Obligor solely for itself and not on behalf of the Primary Obligor. Furthermore, the waivers and other provisions of this Section 5 are made by the Secondary Obligor solely in its capacity as a Secondary Obligor and not in its capacity as a Primary Obligor. Nothing herein is intended to, or shall, modify, or constitute a waiver or surrender by the Secondary Obligor of, any right, remedy or defense that would otherwise be available to the Secondary Obligor on account of its Obligations in its capacity as a Primary Obligor.
7. Miscellaneous. For all purposes of the Loan Agreement and the other Loan Documents, this Joinder Agreement and the Joinder Supplement are "Loan Documents." The Loan Agreement contains certain provisions which apply to the Loan Documents, and those provisions apply to this Joinder Agreement and the Joinder Supplement, and are incorporated herein by this reference. Those incorporated provisions include, without limitation, those relating to manner of delivering notice, certain waivers (including waiver of jury trial), submission to jurisdiction, the Borrower's and applicable Co-Borrower's responsibility for certain expenses, severability, manner for amendment and modification of this Agreement, governing law and other matters. This Joinder Agreement may be executed in any number of counterparts, each of which shall be an original, and all of which, when taken together, shall constitute one and the same agreement. Delivery of an executed signature page of this Joinder Agreement by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.
8. Limitation of Liability. The provisions of Section 14.23(a) of the Loan Agreement shall apply to the terms of this Joinder Agreement. All references to the "Borrower" in Section 14.23 of the Loan Agreement shall mean the Borrower and each Co-Borrower, individually or collectively, as the context shall require. Also, if any Co-Borrower is a limited partnership, all references in Section 14.23(a) of the Loan Agreement to "manager" or "member" shall mean "general and/or limited partner."
[signatures appear on the next page]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.
DOUGLAS EMMETT 2002, LLC,
a Delaware limited liability company |
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DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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William Kamer Chief Financial Officer |
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DEG, LLC, a Delaware limited liability company |
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By: |
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DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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By: |
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William Kamer Chief Financial Officer |
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SAN VICENTE PLAZA, a California limited partnership |
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By: |
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DOUGLAS EMMETT MANAGEMENT, LLC, a Delaware limited liability company, its General Partner |
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By: |
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DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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By: |
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William Kamer Chief Financial Officer |
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OWENSMOUTH/WARNER LLC, a California limited liability company |
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By: |
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DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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William Kamer Chief Financial Officer |
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SUPPLEMENT TO JOINDER AGREEMENT
This SUPPLEMENT TO JOINDER AGREEMENT (this " Supplement ") is attached to and forms a part of the JOINDER AND SUPPLEMENT AGREEMENT (the "Joinder Agreement") dated as of , 2006, executed by San Vicente Plaza, a California limited partnership (" San Vicente "), and Owensmouth/ Warner, LLC, a California limited liability company (" Owensmouth "); San Vicente and Owensmouth, individually and collectively, the " Co-Borrower "), Douglas Emmett 2002, LLC, a limited liability company organized under the laws of the State of Delaware (" Douglas Emmett "), and DEG, LLC, a limited liability company organized under the laws of the State of Delaware (" DEG ") (Douglas Emmett and DEG, individually and collectively, the " Borrower ") for the benefit of Eurohypo AG, New York Branch, as Administrative Agent, and the Lenders from time to time party to that certain Loan Agreement dated as of August 25, 2005, as Modified by the Joinder and Supplement Agreement dated as of August 25, 2005, and as Modified by that certain Modification Agreement, of even date herewith (the " Modification Agreement "), and as further Modified and in effect from time to time, the " Loan Agreement "). Capitalized terms used but not defined herein shall have the meanings assigned them in the Loan Agreement as modified by the Modification Agreement, and the Joinder Agreement.
IN ADDITION TO AND WITHOUT LIMITING THE COVENANTS AND REPRESENTATIONS AND WARRANTIES OF BORROWER AND CO-BORROWER CONTAINED IN THE JOINDER AGREEMENT AND THE LOAN AGREEMENT, BORROWER AND CO-BORROWER FURTHER AGREE AS FOLLOWS:
1. Modifications to the Loan Agreement. The Loan Agreement is hereby Modified as follows:
(a) The RECITALS shall be supplemented as follows:
"The Co-Borrower known as San Vicente Plaza, a California limited partnership (" San Vicente "), is the owner of a fee simple interest in and to that certain office building listed in Schedule 1A-1 attached to the Supplement attached to the New Co-Borrower's Joinder and Supplement known as the San Vicente Plaza Project, in the City of Los Angeles, County of Los Angeles, State of California, on certain land more fully described in Schedule 1B-1 attached to the Supplement attached to the New Co-Borrower's Joinder and Supplement (the " San Vicente Project ") and the Co-Borrower known as Owensmouth/Warner, LLC, a California limited liability company (" Owensmouth "), is the owner of a fee simple interest, subject to the Ground Lease described below, in and to that certain real property listed in Schedule 1A-2 attached to the Supplement attached to the New Co-Borrower's Joinder and Supplement known as the Owensmouth Project, in the City of Los Angeles, County of Los Angeles, State of California, more fully described in Schedule 1B-2 attached to the Supplement attached to the New Co-Borrower's Joinder and Supplement (the " Owensmouth Project ") (the rights of each such Co-Borrower with respect to each such building and to the land on which each such building is located, together with the rights of such Co-Borrower with respect to any air rights and other rights, privileges, easements, hereditaments and appurtenances thereunto relating or appertaining thereto, all Improvements thereon, together with all fixtures and equipment required for the operation thereof, all personal property related to the foregoing and all other items described in the granting clause of the Deed of Trust relating to such building and interest in land are included within the term " Project " as defined in the Loan Agreement).
(b) The following new definitions shall be added to the Loan Agreement:
(i) ""San Vicente Plaza Project" and "Owensmouth Project" have the respective meanings assigned to such terms in the Recitals as supplemented by the Supplement to Joinder Agreement attached to the New Co-Borrower's Joinder and Supplement.";
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(ii) " Ground Lease " shall mean that certain Ground Lease identified on Schedule 1 attached hereto.
(iii) " Ground Lessee " shall mean the ground lessee under the Ground Lease, its successors and assigns.
(c) The following definitions shall be Modified as set forth below:
(i) The following sentence is added to the definition of Authorized Officer: "Authorized Officer," in the case of a Co-Borrower who is a limited partnership, shall mean any of the individual officers serving as the Chief Executive Officer, President, Vice President, Chief Financial Officer, Secretary, Treasurer or Assistant Treasurer of New General Partner, in its capacity as the general partner of Co-Borrower, and whose name appears on a certificate of incumbency executed by the Secretary of New Borrower's Manager, in its respective capacity as the manager of Borrower and/or the manager of New General Partner, and delivered concurrently with the effectiveness of the Modification Agreement, as such certificate of incumbency may be amended from time to time to identify the names of the individuals then holding such offices and certified by the Secretary of New Borrower's Manager, in its respective capacity as the manager of Borrower and/or the manager of New General Partner.
(ii) "The definition of Obligations shall not, with respect to any Co-Borrower, include the Obligations of Borrower or any other Co-Borrower under any Environmental Indemnity to which such Co-Borrower is not a party.
(d) The following Sections shall be Modified as follows:
(i) Add the following sentences to the end of Section 7.10 : "The sole limited partner of San Vicente on the date hereof is the OP. The sole general partner of San Vicente on the date hereof is New General Partner. The sole member of Owensmouth on the date hereof is the OP. The sole manager of Owensmouth on the date hereof is New Borrower's Manager.
(e) The Administrative Agent and the Lenders acknowledge that Owensmouth's fee interest in the Owensmouth Project is subject to the Ground Lease. For all purposes of this Agreement and the other Loan Documents, the Ground Lease is a "Lease," an "Approved Lease," and a "Major Lease." Accordingly, notwithstanding anything to the contrary contained in the Loan Agreement or any of the other Loan Documents (including, without limitation, the Deed of Trust encumbering the Owensmouth Project), the following provisions shall apply with respect to the Owensmouth Project and Owensmouth (but not with respect to any other Project or the Borrower or any other Co-Borrower):
(i) No representation or warranty in Article 7 of the Loan Agreement pertaining to any Person or any Project shall be interpreted as a representation or warranty concerning (a) the Ground Lessee or the interest of the Ground Lessee (or any subtenant or licensee of the Owensmouth Project), (b) title to any property owned by the Ground Lessee, (c) except as to Borrower's Knowledge, the physical or other condition of the Improvements located on the Owensmouth Project or the compliance of such Improvements, or the Ground Lessee (or any subtenant or licensee of the Owensmouth Project), with Applicable Laws or Governmental Approvals, (d) except as to Borrower's Knowledge, Governmental Approvals pertaining to the Owensmouth Project, or (e) any Lease other than the Ground Lease.
(ii) Solely as to Owensmouth and the Owensmouth Project, the provisions of Section 7.22 shall read as follows:
"7.22 Ground Lease. The representations and warranties in Schedule 7.22 attached hereto are true and correct."
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Schedule 7.22, in the form attached hereto, is hereby added to the Loan Agreement.
(iii) The following new subsection (j) is added to Section 8.05 :
"(j) Owensmouth Insurance Program. Solely as to the Owensmouth Project, the Borrower Parties shall be deemed in compliance with their obligations to maintain casualty insurance pursuant to Section 8.05 of the Loan Agreement provided that (i) the Ground Lessee maintains the casualty insurance required pursuant to the provisions of the Ground Lease and (ii) the Administrative Agent is named as an additional insured or loss payee thereunder in accordance with the provisions of the Ground Lease.
(iv) Solely as to Owensmouth and the Owensmouth Project, the provisions of Section 8.04(a) shall read as follows:
"(a) Owensmouth shall comply in all material respects (subject to such more stringent requirements as may be set forth elsewhere herein) with all Applicable Laws (other than those Applicable Laws that specifically and exclusively relate to the interest of the Ground Lessee under the Ground Lease), and shall use commercially reasonable efforts to enforce the provisions of the Ground Lease to cause the Ground Lessee to comply with its obligations under the Ground Lease to comply with Applicable Laws to the extent within Owensmouth's reasonable control. Owensmouth shall maintain in full force and effect all required Government Approvals that are applicable to it and shall comply, in all material respects, with all such Government Approvals and keep them in full force and effect. Owensmouth shall use commercially reasonable efforts to enforce the provisions of the Ground Lease to cause the Ground Lessee to comply with its obligations under the Ground Lease to obtain all Government Approvals as shall now or hereafter be necessary under Applicable Law in connection with the operation or maintenance of the Owensmouth Project to the extent within Owensmouth's reasonable control. Upon request from time to time, Owensmouth shall promptly furnish a true, correct and complete copy of each Government Approval required to be maintained by Owensmouth to the Administrative Agent, and shall use commercially reasonable efforts to enforce the provisions of the Ground Lease to cause the Ground Lessee to comply with its obligations under the Ground Lease to deliver a copy of each Governmental Approval necessary under Applicable Law in connection with the operation or maintenance of the Owensmouth Project to Owensmouth, and shall thereafter deliver a true, correct and complete copy thereof to the Administrative Agent. Owensmouth shall, unless otherwise approved by the Administrative Agent in writing or prohibited under the terms of the Ground Lease, use its reasonable efforts to contest any proceedings before any Governmental Authority and to resist any proposed adverse changes in Applicable Law to the extent that such proceedings or changes are directed specifically toward the Owensmouth Project or could reasonably be expected to have a Material Adverse Effect, but only to the extent that Owensmouth deems such action to be in the best interests of the Owensmouth Project in the exercise of its business judgment. Owensmouth shall be permitted to permit the Ground Lessee to contest the applicability of such Applicable Law or Governmental Approval on the terms set forth in Section 8.05(b) . In the event that the Ground Lessee breaches with any of its obligations under the Ground Lease that are referenced in this Section in any material respect, Owensmouth shall provide the Administrative Agent with notice promptly upon becoming aware thereof, and, if such breach could reasonably be expected either to have a Material Adverse Effect on the Owensmouth Project (determined as if the Owensmouth Project were the sole collateral for the Allocated Loan Amount that is allocated to the Owensmouth Project) or otherwise to have a Material Adverse Effect (either, an "Owensmouth MAE Effect"), Owensmouth shall (unless Owensmouth shall be exercising its rights to contest the
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applicability of such Applicable Law or Governmental Approval in accordance with Section 8.05(b) ) furnish to the Administrative Agent for the benefit of the Lenders such security as may be reasonably requested by the Administrative Agent, to ensure that the failure of the Ground Lessee to comply with such Applicable Law or to maintain in effect such Governmental Approval shall not have an Owensmouth MAE Effect."
(v) Solely as to Owensmouth and the Owensmouth Project, the provisions of Section 8.06(a) shall read as follows:
"(a) Subject to the provisions of subsection (b) of this Section 8.06 , Owensmouth shall pay all Real Estate Taxes and Other Charges now or hereafter levied or assessed or imposed against the Owensmouth Project or any part thereof before fine, penalty, interest or cost attaches thereto, unless the Ground Lessee shall have timely paid such Real Estate Taxes and Other Charges in accordance with the terms of the Ground Lease. Subject to the provisions of subsection (b) of this Section 8.06 , upon the request of the Administrative Agent, Owensmouth shall furnish to the Administrative Agent receipts for, or other evidence reasonably satisfactory to the Administrative Agent of, the payment of Real Estate Taxes and Other Charges in compliance with this Section 8.06 ."
(vi) Solely as to Owensmouth and the Owensmouth Project, the provisions of Section 8.07 shall read as follows:
"8.07 Maintenance of Projects; Alterations. Owensmouth shall:
(i) use commercially reasonable efforts to enforce the provisions of the Ground Lease requiring the Ground Lessee to maintain or cause to be maintained the Owensmouth Project in good condition and repair in a manner consistent with the requirements of the Ground Lease;
(ii) use commercially reasonable efforts to enforce the provisions of the Ground Lease that require the Ground Lessee to obtain the consent of Owensmouth for any removal, demolition or structural alteration of, any of the Improvements on the Owensmouth Project or the making of any alteration thereto, and Owensmouth shall not grant any such consent without the prior consent of the Administrative Agent (which consent shall not be unreasonably withheld for any alterations that are required by Applicable Law) if such removal, demolition or alteration would (A) have a Material Adverse Effect or (B) involve a cost in the aggregate for such alteration and all other alterations involving a single work of improvement (or related group of improvements) which is anticipated to exceed the lesser of (1) $5,000,000 or (2) ten percent (10%) of the Appraised Value of the Owensmouth Project; provided , however , that the Administrative Agent's consent shall not be required for any such removal, demolition or alteration that (x) does not require Owensmouth's consent under the Ground Lease or (y) pertains to tenant improvement work which (upon completion of such work) does not adversely affect any structural component of any Improvements, any utility or HVAC system contained in any Improvements on the Owensmouth Project or the exterior of any building (excluding signage or other alterations that would not otherwise require the consent of the Administrative Agent under this Section 8.07(ii) in the absence of this proviso) constituting a part of any Improvements at the Owensmouth Project;
(iii) use commercially reasonable efforts to enforce the provisions of the Ground Lease that require the Ground Lessee to complete promptly and in a good and workmanlike manner any Improvements on the Owensmouth Project which may be hereafter constructed and promptly to restore in like manner any portion of such
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Improvements which may be damaged or destroyed thereon from any cause whatsoever, and to pay when due all claims for labor performed and material furnished therefor, subject to the right of the Ground Lessee under any applicable provisions of the Ground Lease to contest such claims and further subject to Owensmouth's right to contest any such claims (as long as, with respect to any such claim for which a mechanic's lien has been filed (other than one that solely and exclusively encumbers the interest of the Ground Lessee under the Ground Lease and does not affect in any respect any portion of Owensmouth's right, title or interest in the Owensmouth Project), such contested claims have been bonded over to the satisfaction of the Administrative Agent within thirty (30) days of the date of filing); and
(iv) not itself commit any waste to the Owensmouth Project, and to use commercially reasonable efforts to enforce any applicable provisions of the Ground Lease and Owensmouth's rights under Applicable Law that prohibit the commission of waste by the Ground Lessee, and in the event that the Ground Lessee breaches any of its obligations under the Ground Lease that are referenced in this Section in any material respect, Owensmouth shall provide the Administrative Agent with notice promptly upon becoming aware thereof, and, if such breach could reasonably be expected to have an Owensmouth MAE Effect, Owensmouth shall furnish to the Administrative Agent for the benefit of the Lenders such security as may be reasonably requested by the Administrative Agent, to ensure that the failure of the Ground Lessee to comply with such obligation shall not have an Owensmouth MAE Effect."
(vii) Section 8.10 of the Loan Agreement (and any similar provision of the Loan Agreement or other Loan Documents granting any rights of entry to, or inspection of, the Owensmouth Project) shall be subject to the provisions of the Ground Lease and the rights of the Ground Lessee and other occupants thereof.
(viii) Solely as to Owensmouth and the Owensmouth Project, the provisions of Section 8.11 shall read as follows:
"8.11 Environmental Compliance. Owensmouth covenants and agrees that:
(i) all uses and operations on or of the Owensmouth Project by Owensmouth shall be in compliance with all Environmental Laws and permits issued pursuant thereto, and Owensmouth shall use commercially reasonable efforts to enforce the provisions of the Ground Lease that relate to the obligations of the Ground Lessee to comply with all Environmental Laws;
(ii) except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, Owensmouth shall not permit a Release of Hazardous Substances in, on, under or from the Owensmouth Project, and shall use commercially reasonable efforts to enforce any applicable provisions of the Ground Lease and Owensmouth's rights under Applicable Law that prohibit any such Release by the Ground Lessee;
(iii) Owensmouth shall not knowingly permit Hazardous Substances in, on, or under the Owensmouth Project, except those that are in compliance with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Owensmouth Project (i.e., materials used in cleaning and other building operations) and shall
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(to the extent within Owensmouth's reasonable control) undertake to supervise and inspect activities occurring on the Owensmouth Project as may be reasonably prudent to comply with the foregoing obligation, and shall use commercially reasonable efforts to enforce the provisions of the Ground Lease and Owensmouth's rights under Applicable Law that relate to the use of Hazardous Substances by the Ground Lessee;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, Owensmouth shall not permit any underground storage tanks to be placed or installed in, on, or under the Owensmouth Project, and shall (to the extent within Owensmouth's reasonable control) cause any such underground storage tank to be operated, maintained, repaired and replaced in compliance with Applicable Law;
(v) Reserved;
(vi) Owensmouth shall keep the Owensmouth Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law (collectively, " Environmental Liens ") due to any act or omission of Owensmouth or any other Person (to the extent within Owensmouth's reasonable control), and shall use commercially reasonable efforts to enforce any applicable provisions of the Ground Lease that prohibit any Environmental Liens due to any act or omission of the Ground Lessee or its subtenants or licensees;
(vii) notwithstanding clause (iii) above, Owensmouth shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on the Owensmouth Project, and shall upon and following the Closing Date use commercially reasonable efforts to enforce any applicable provisions of the Ground Lease or its rights under Applicable Law that require the Ground Lessee to implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at the Owensmouth Project;
(viii) Owensmouth shall cause (or shall use commercially reasonable efforts to enforce the provisions of the Ground Lease so as to cause) the Remediation of such Hazardous Substances present on, under or emanating from the Owensmouth Project, or migrating onto or into the Owensmouth Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) Owensmouth shall provide and shall use commercially reasonable efforts to enforce the provisions of the Ground Lease so as to provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of the Owensmouth Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of the Owensmouth Project or the tenants or occupants thereof, and shall be subject to the rights of the Ground Lessee under the Ground Lease and the rights of subtenants or other occupants under their subleases, and Owensmouth shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, using commercially reasonable efforts to provide all relevant information and making knowledgeable persons available for interviews and
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(B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of Owensmouth in relation to the Owensmouth Project, whether heretofore or hereafter obtained.
In the event that the Ground Lessee breaches any of its obligations under the Ground Lease that are referenced in this Section in any material respect, Owensmouth shall provide the Administrative Agent with notice promptly upon becoming aware thereof, and, if such breach could reasonably be expected to have an Owensmouth MAE Effect, Owensmouth shall furnish to the Administrative Agent for the benefit of the Lenders such security as may be reasonably requested by the Administrative Agent, to ensure that the failure of the Ground Lessee to comply with such obligation shall not have an Owensmouth MAE Effect. Nothing contained in this Section shall limit the rights of the Administrative Agent or any Lender for indemnification under the terms of the Environmental Indemnity Agreement.
(ix) Solely as to Owensmouth and the Owensmouth Project, the provisions of Section 8.13 shall read as follows:
"8.13 Leases. Owensmouth shall (a) upon the Closing Date, assign to the Administrative Agent (on behalf of the Lenders) the Ground Lease, and/or all Rents payable thereunder pursuant to the Deed of Trust, (b) promptly perform and fulfill, or cause to be performed and fulfilled, each and every material term and provision of Owensmouth's obligations under the Ground Lease, (c) give to the Administrative Agent a copy of each notice of default given to the Ground Lessee or sent by the Ground Lessee to Owensmouth, (d) consistent with good business practices and in the best interests of the Owensmouth Project, enforce its rights under the Ground Lease unless otherwise approved by the Administrative Agent, and (e) diligently enforce the terms of the Ground Lease with respect to any construction work to be performed by the Ground Lessee thereunder."
(x) Solely as to Owensmouth and the Owensmouth Project, the provisions of Section 8.17 shall read as follows:
"8.17 Operating Expenses. Owensmouth shall pay all known costs and expenses of operating, maintaining, leasing and otherwise owning the Owensmouth Project (except for such costs that specifically and exclusively relate to the interest of the Ground Lessee under the Ground Lease or that are the responsibility of the Ground Lessee under the Ground Lease) on a current basis and before same become delinquent (subject however to the other provisions of this Agreement and the other Loan Documents), including all interest, principal (when due) and other sums required to be paid under this Agreement, the other Loan Documents and the Hedge Agreement, before utilizing any revenues derived or to be derived from or in respect of the Owensmouth Project for any other purpose, including distributions or other payments to Owensmouth's Member."
(xi) Solely as to Owensmouth and the Owensmouth Project, the provisions of Section 9.09(a) shall read as follows:
"(a) Negative Covenants. Owensmouth shall not (i) accept from the Ground Tenant, nor permit the Ground Tenant to pay, Rent for more than
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one pay period under the Ground Lease in advance except for payment in the nature of security for performance of a tenant's obligations, escalations, percentage rents, taxes, insurance and other pass-throughs paid by the Ground Tenant pursuant to the Ground Lease, (ii) Modify, terminate, or accept surrender of, the Ground Lease, without the prior written consent of the Administrative Agent, except in accordance with any existing rights of termination exercisable by the Ground Lessee pursuant to the terms of the Ground Lease as in effect on the date hereof, (iii) except for the Deed of Trust, assign, transfer (except for a Transfer permitted by the Loan Agreement), pledge, subordinate or mortgage any of Owensmouth's interest in the Ground Lease or in or to any Rent without the prior written consent of the Administrative Agent and the Required Lenders, (iv) waive or release any nonperformance of any material covenant under the Ground Lease without the Administrative Agent's prior written consent, or (v) release any guarantor from its obligations under any guaranty of the Ground Lease or any letter of credit or other credit support for a tenant's performance under the Ground Lease, except as expressly permitted pursuant to the terms of the Ground Lease. Notwithstanding the foregoing or anything to the contrary contained herein, Owensmouth shall have the right, at its option, to terminate or accept the surrender of the Ground Lease, and to pursue any other rights and remedies Owensmouth may have under the Ground Lease or Applicable Laws, following an uncured material default by the Ground Lessee."
(xii) Solely as to Owensmouth and the Owensmouth Project, Section 9.12 of the Loan Agreement (and any similar provision of the Loan Agreement or other Loan Documents restricting changes in zoning or entitlements, or pertaining to any restrictions on use), shall be subject to the provisions of the Ground Lease and the rights of the Ground Lessee thereunder. Owensmouth shall deliver to the Administrative Agent notice of any such change promptly after becoming aware of it.
(xiii) Solely as to Owensmouth and the Owensmouth Project, the provisions of Article 10 of the Loan Agreement (and any similar provision of the Loan Agreement or other Loan Documents pertaining to Casualty Events, Insurance Proceeds, Takings, Condemnation Awards or Restoration) shall be subject to the provisions of the Ground Lease and the rights of the Ground Lessee thereunder.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.
DOUGLAS EMMETT 2002, LLC,
a Delaware limited liability company |
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DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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William Kamer Chief Financial Officer |
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DEG, LLC, a Delaware limited liability company |
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DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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William Kamer Chief Financial Officer |
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SAN VICENTE PLAZA, a California limited partnership |
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DOUGLAS EMMETT MANAGEMENT, LLC, a Delaware limited liability company, its General Partner |
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DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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William Kamer Chief Financial Officer |
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OWENSMOUTH/WARNER LLC, a California limited liability company |
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DOUGLAS EMMETT MANAGEMENT, INC., a Delaware corporation, its Manager |
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William Kamer Chief Financial Officer |
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Subsidiaries of Douglas Emmett, Inc.
Name
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Jurisdiction of Formation / Incorporation
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Barrington/Kiowa Properties | California | |
Barrington Pacific, LLC | California | |
Barry Properties, Ltd. | California | |
Brentwood Court | California | |
Brentwood Plaza | California | |
Brentwood-San Vicente Medical, Ltd. | California | |
Douglas Emmett Residential 2005, LLC | Delaware | |
Douglas Emmett 2006, LLC | Delaware | |
Douglas Emmett 2002, LLC | Delaware | |
Douglas Emmett 2000, LLC | Delaware | |
Douglas Emmett 1993, LLC | Delaware | |
Douglas Emmett 1995, LLC | Delaware | |
Douglas Emmett 1996, LLC | Delaware | |
Douglas Emmett 1997, LLC | Delaware | |
Douglas Emmett 1998, LLC | Delaware | |
DECO Acquisition, LLC | California | |
DEG, LLC | Delaware | |
DEG Residential, LLC | Delaware | |
DEGA, LLC | Delaware | |
Douglas Emmett Joint Venture | California | |
DERA Acquisition, LLC | California | |
DERF 2005 Acquisition, LLC | Maryland | |
Douglas Emmett Management, Inc. | Delaware | |
Douglas Emmett Management, LLC | Delaware | |
Douglas Emmett Properties, LP | Delaware | |
Douglas Emmett Realty Fund | California | |
Douglas Emmett Realty Fund 1995 | California | |
Douglas Emmett Realty Fund 1996 | California | |
Douglas Emmett Realty Fund 1997 | California | |
Douglas Emmett Realty Fund 1998 | California | |
Douglas Emmett Realty Fund 2000 | California | |
Douglas Emmett Realty Fund 2002 | California | |
Douglas Emmett Realty Fund No. 2 | California | |
Kiowa Properties, Ltd. | California | |
Owensmouth/Warner, LLC | California | |
P.L.E. Builders, Inc. | California | |
San Vicente Plaza | California | |
Shores Barrington, LLC | Delaware | |
Triangle Lenders, LLC | California | |
Westwood Place Investors, LLC | Delaware |
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the captions "Experts" and to the use of our report dated July 31, 2006 with respect to the balance sheet of Douglas Emmett, Inc. and Subsidiaries; our report dated April 28, 2006 with respect to the consolidated financial statements and schedule of Douglas Emmett Realty Advisors, Inc. and Subsidiaries; our report dated March 31, 2006 with respect to the financial statements of Douglas, Emmett and Company; and our report dated March 31, 2006 with respect to the combined statements of revenues and certain expenses of the Douglas Emmett Single Asset Entities, all included in Amendment No. 3 to the Registration Statement (Form S-11 No. 333-135082) and related Prospectus of Douglas Emmett, Inc. for the registration 63,250,000 shares of its common stock.
/s/ Ernst & Young LLP
Los
Angeles, California
October 2, 2006