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EXHIBIT 4.4
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE, dated as of June ___, 1998 (this "Third
Supplemental Indenture"), among AMB PROPERTY, L.P., a Delaware limited
partnership (the "Operating Partnership"), AMB PROPERTY CORPORATION (the
"Guarantor") AND STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., as
Trustee hereunder (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Operating Partnership, the Guarantor and the Trustee
executed and delivered an Indenture, dated as of June ___, 1998 (as supplemented
hereby, the "Indenture"), to provide for the issuance by the Operating
Partnership of securities evidencing its unsecured indebtedness;
WHEREAS, pursuant to Board Resolution, the Operating Partnership has
authorized the issuance of $________ of its ______% Reset Put Securities ("REPS"
SM) due 2015-Putable/Callable 2005;
WHEREAS, the Operating Partnership desires to establish the terms of the
REPS in accordance with Section 301 of the Indenture and to establish the form
of the REPS in accordance with Section 201 of the Indenture.
ARTICLE 1
TERMS
SECTION 101. TERMS OF REPS. The following terms relating to the REPS are
hereby established:
(1) The REPS shall constitute a series of Securities having the title
"______% Reset Put Securities due June ___, 2015-Putable/Callable 2005."
(2) The aggregate principal amount of the REPS that may be authenticated
and delivered under the Indenture (except for REPS authenticated and delivered
upon registration of transfer of, or exchange for, or in lieu of, other REPS
pursuant to Sections 304, 305, 306, 906, or 1107 of the Indenture) shall be up
to $__________. All of the REPS must be issued at the same time (except for REPS
authenticated and delivered upon registration of transfer of, or exchange for,
or in lieu of, other REPS pursuant to Sections 304, 305, 306, 906, or 1107 of
the Indenture). Without the consent of the Holders, the REPS may not be reopened
for the issuance of additional REPS after the date hereof.
(3) The entire outstanding principal of the REPS shall be payable on
June ___, 2015 (the "Stated Maturity Date"). On the Coupon Reset Date (as
defined below), the Holders shall be entitled to receive 100% of the principal
amount from either (i) the Callholder (as defined
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below), if the Callholder purchases the REPS pursuant to the Call Option (as
defined below), or (ii) the Operating Partnership, by exercise of the Mandatory
Put (as defined below) by the Trustee for and on behalf of the Holders thereof,
if the Callholder does not purchase the REPS pursuant to the Call Option.
(4) Subject to adjustment upon the exercise of the Call Option, the rate
at which the REPS shall bear interest shall be ___% per annum; the date from
which interest shall accrue shall be June ___, 1998 and shall accrue until June
___, 2005 (the "Coupon Reset Date"); the Interest Payment Dates for the REPS on
which interest shall be payable shall be June ___ and December ___ in each year,
beginning December ___, 1998; the Regular Record Dates for the interest payable
on the REPS on any Interest Payment Date shall be the 15th calendar day
preceding the applicable Interest Payment Date. Beginning on the Coupon Reset
Date (x) if all of the REPS are purchased on such date by the Callholder
pursuant to its Call Option, the REPS shall bear interest from and including the
Coupon Reset Date to but excluding June ___, 2015 (the "Final Maturity Date") at
the Coupon Reset Rate determined in accordance with the Coupon Reset Process
described below, or (y) the REPS shall be purchased by the Operating Partnership
pursuant to the exercise of the Mandatory Put by the Trustee on behalf of the
holders of the REPS. If the Callholder (as defined below) elects to purchase the
REPS pursuant to the Call Option (as defined below), the Calculation Agent (as
defined below) shall reset the interest rate for the REPS effective on the
Coupon Reset Date, pursuant to the Coupon Reset Process described below. In such
circumstances, (i) the REPS shall be purchased by the Callholder at 100% of the
principal amount hereof on the Coupon Reset Date, on the terms and subject to
the conditions described herein (interest accrued to but excluding the Coupon
Reset Date shall be paid by the Operating Partnership on such date to the Holder
hereof on the most recent Regular Record Date), and (ii) from and including the
Coupon Reset Date, the REPS shall bear interest at the rate determined by the
Calculation Agent in accordance with the procedures set forth below.
(5) The Place of Payment where the principal of and interest on the REPS
shall be payable and REPS may be surrendered for the registration of transfer or
exchange shall be the office of the Trustee's affiliate, State Street Bank and
Trust Company, at 00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. The place
where notices or demands to or upon the Operating Partnership in respect of the
REPS and the Indenture may be served shall be the Corporate Trust Office of the
Trustee at 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
(6) Subject to the Call Option and the Mandatory Put described below,
the REPS are not redeemable prior to maturity as provided in Article XI of the
Indenture.
The Callholder, by giving notice to the Trustee (the "Call Notice"), has
the right to purchase the aggregate principal amount of REPS outstanding, in
whole but not in part (the "Call Option"), on the Coupon Reset Date, at a price
equal to 100% of the principal amount thereof (the "Call Price") (interest
accrued to but excluding the Coupon Reset Date shall be paid by the Operating
Partnership on such date to the Holders thereof on the most recent Regular
Record Date). The Call Notice shall be given to the Trustee, in writing, prior
to 4:00 p.m., New York
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time, no later than 15 calendar days prior to the Coupon Reset Date. The Call
Notice must contain the requisite delivery details, including the identity of
the Callholder's DTC account.
For the purposes hereof, the "Callholder" means the Operating
Partnership or its Assignees. The Callholder may at any time assign its rights
and obligations under its Call Option; provided, however, that (i) such rights
and obligations are assigned in whole and not in part and (ii) it provides the
Trustee and the Operating Partnership with notice of such assignment
contemporaneously with such assignment.
Xxxxxx Xxxxxxx & Co. International Limited, a corporation organized
under the laws of England ("Xxxxxx Xxxxxxx"), has made a payment to the
Operating Partnership on the date hereof, which amount represents a reasonable
payment for Xxxxxx Xxxxxxx'x acquiring the Call Option from the Operating
Partnership. To this end, the Operating Partnership hereby assigns all its
right, title and interest in, to and under the Call Option to Xxxxxx Xxxxxxx and
Xxxxxx Xxxxxxx hereby assumes all the obligations and liabilities of the
Operating Partnership under the Call Option.
Upon receipt of notice of assignment, the Trustee shall treat the
assignee as Callholder for all purposes hereunder. The Callholder may assign its
rights under the Call Option without notice to, or consent of, the holders of
the REPS (including, if applicable, the Holder hereof).
If the Callholder exercises the Call Option, unless terminated in
accordance with its terms, (i) not later than 2:00 p.m., New York Time, on the
Business Day prior to the Coupon Reset Date, the Callholder shall deliver the
Call Price in immediately available funds to the Trustee for payment thereof to
the Holders of the REPS on the Coupon Reset Date and (ii) the Holders shall
deliver and, as long as the REPS are represented by a Global Security, shall be
deemed to have delivered the REPS to the Callholder against payment therefor on
the Coupon Reset Date through the facilities of DTC. The Callholder is not
required to exercise the Call Option, and no holder of the REPS or any interest
therein shall have any right or claim against the Callholder as a result of the
Callholder's decision whether or not to exercise the Call Option or performance
or non-performance of its obligations with respect thereto.
If the Calculation Agent determines that (i) at any time prior to the
sale of the REPS on the Bid Date, an Event of Default has occurred and is
continuing under Sections 501(1), (2), (3), (4) or (5) of the Indenture (in such
event termination is at the Callholder's option), (ii) at any time prior to the
sale of the REPS on the Bid Date, an Event of Default has occurred and is
continuing under Sections 501(6) or (7) of the Indenture (in such event
termination is automatic), (iii) a Market Disruption Event (as defined below)
has occurred and is continuing following the exercise of the Call Option, (iv)
the Callholder fails to deliver the Call Notice to the Trustee prior to 4:00
p.m., New York time, on the fifteenth calendar day prior to the Coupon Reset
Date or revokes the Call Notice, (v) the Callholder fails to pay the Call Price
by 2:00 p.m., New York time, on the Business Day prior to the Coupon Reset Date,
(vi) a defeasance or a convent defeasance pursuant to Article 12 of the
Indenture shall have occurred, or (vii) two or more of the Dealers have failed
to provide Bids in a timely manner substantially as provided herein, such Call
Option shall automatically be revoked, provided that with respect to clause (i)
above, the
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Callholder can elect to waive any such Event of Default and prevent the Call
Option from terminating. For purposes of the foregoing, "Market Disruption
Event" shall mean any of the following if, in the judgment of the Calculation
Agent, such events occur and are continuing on any day from and including the
date of the Call Notice to and including the Bid Date: (i) a suspension or
material limitation in trading in securities generally on the New York Stock
Exchange or the establishment of minimum prices on such exchange; (ii) a general
moratorium on commercial banking activities declared by either federal or New
York State authorities, (iii) any material adverse change in the existing
financial, political or economic conditions in the United States of America;
(iv) an outbreak or escalation of major hostilities involving the United States
of America or the declaration of a national emergency or war by the United
States of America; or (v) any material disruption of the U.S. government
securities market, U.S. corporate bond market or U.S. federal wire system;
provided, in each case that in the judgment of the Calculation Agent the effect
of the foregoing makes it impractical to conduct the Coupon Reset Process.
If the Call Option is not exercised or if the Call Option otherwise
terminates, the Trustee shall exercise the right of the holders of the REPS to
require the Operating Partnership to purchase the aggregate principal amount of
REPS, in whole but not in part, (the "Mandatory Put") on the Coupon Reset Date
at a price equal to 100% of the principal amount thereof (the "Put Price"), plus
accrued but unpaid interest to but excluding the Coupon Reset Date, in each
case, to be paid by the Operating Partnership to the Holders of the REPS as of
the immediately preceding Regular Record Date in immediately available funds on
the Coupon Reset Date. In such event, the Operating Partnership shall deliver
the Put Price in immediately available funds to the Trustee by no later than
12:00 noon, New York time, on the Coupon Reset Date and the Holders shall
deliver and, as long as the REPS are represented by a Global Security, shall be
deemed to have delivered the REPS to the Operating Partnership against payment
therefor on the Coupon Reset Date through the facilities of DTC. By its purchase
of the REPS, each Holder shall be deemed to have irrevocably agreed that the
Trustee shall exercise the Mandatory Put relating to the REPS for or on behalf
of the holders of the REPS as provided herein and in the REPS. By purchasing
REPS, each Holder of any REPS or any interest therein shall be deemed to waived
the right to consent or object to the exercise of the Trustee's duties under the
Mandatory Put.
In anticipation of the exercise of the Call Option or the Mandatory Put
on the Coupon Reset Date, the Trustee shall notify the Holders of the REPS, not
less than 30 days nor more than 60 days prior to the Coupon Reset Date, that all
REPS shall be delivered on the Coupon Reset Date through the facilities of DTC
against payment of the Call Price by the Callholder under the Call Option or
payment of the Put Price by the Operating Partnership under the Mandatory Put.
The Trustee shall notify the Holders once it is determined whether the Call
Price or the Put Price shall be delivered in accordance with the provisions
hereof.
Pursuant to and subject to the terms of a calculation agency agreement,
dated as of June ___, 1998, between the Operating Partnership and Xxxxxx Xxxxxxx
& Co. Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated (or its successors or
assigns) shall be the Calculation Agent. If the Callholder timely exercises the
Call Option and the Call Option does not otherwise terminate in
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accordance with the terms of this Third Supplemental Indenture, then the
Operating Partnership and the Calculation Agent shall use reasonable efforts to
cause the actions contemplated below (the "Coupon Reset Process") to be
completed in as timely a manner as possible in order to determine the interest
rate ("Coupon Reset Rate") to be paid on the REPS from and including the Coupon
Reset Date to but excluding the Final Maturity Date:
(i) no later than five Business Days prior to the Coupon Reset Date, the
Operating Partnership shall provide the Calculation Agent with (a) a list (a
"Dealer List"), containing the names and addresses of between three and five
dealers (which shall include Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx, Sachs &
Co. and X.X. Xxxxxx Securities, Inc.) from whom the Operating Partnership
desires the Calculation Agent to obtain the Bids for the purchase of the REPS
and (b) such other material as may reasonably be requested by the Calculation
Agent to facilitate a successful Coupon Reset Process.
(ii) Within one Business Day following receipt by the Calculation Agent
of the Dealer List, the Calculation Agent shall provide to each dealer
("Dealer") on the Dealer List (a) a copy of the Prospectus relating to the REPS,
(b) a copy of the form of the REPS and (c) a written request that each such
Dealer submit a Bid to the Calculation Agent not later than 3:00 p.m., New York
time, on the third Business Day prior to the Coupon Reset Date (the "Bid Date").
The time on the Bid Date upon which Bids shall be requested may be changed by
the Calculation Agent to as late as 3:00 p.m., New York Time. As used herein and
in the REPS, "Bid" shall mean an irrevocable written offer given by a Dealer for
the purchase of all of the REPS, settling on the Coupon Reset Date, and shall be
quoted by such Dealer as a stated yield to maturity on the REPS ("Yield to
Maturity"). Each Dealer shall be provided with (a) the name of the Operating
Partnership, (b) an estimate of the Purchase Price (which shall be stated as a
U.S. dollar amount and be calculated by the Calculation Agent in accordance with
clause (iii) below), (c) the principal amount and maturity of the REPS and (d)
the method by which interest shall be calculated on the REPS.
(iii) The purchase price to be paid by any Dealer for the REPS (the
"Purchase Price") shall be equal to (a) the principal amount of the REPS plus
(b) a premium (the "Notes Premium") which shall be equal to the excess on the
Coupon Reset Date, if any, of (x) the discounted present value to the Coupon
Reset Date of a bond with a maturity of June ___, 2015 which has an interest
rate equal to ________%, semi-annual interest payments on each June ___ and
December ___, commencing June ___, 2005, and a principal amount equal to the
principal amount of the REPS, and assuming a discount rate equal to the Call
Option Treasury Rate over (y) such principal amount of REPS. For the purposes
hereof, "Call Option Treasury Rate" means the per annum rate equal to the offer
side yield to maturity of the current on-the-run 10-year United States Treasury
Security per Telerate page 500 (or any successor or substitute page as may
replace such page on such service) not later than 3:00 p.m., New York time, on
the Bid Date (or such other date or time that may be agreed upon by the
Operating Partnership and the Calculation Agent) or, if such rate does not
appear on Telerate page 500 (or any successor or substitute page as may replace
such page on such service) at such time, the rates on GovPX End-of-Day Pricing
at 3:00 p.m., New York time, on the Bid Date (or such other date that may be
agreed upon by the Operating Partnership and the Calculation Agent).
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(iv) The Calculation Agent shall provide written notice to the
Operating Partnership as soon as practicable on the Bid Date, setting forth, (a)
the names of each of the Dealers from whom the Calculation Agent received Bids
on the Bid Date, (b) the Bid submitted by each such Dealer and (c) the Purchase
Price as determined pursuant to clause (iii) hereof. Unless the Call Option has
terminated in accordance with the terms of the Indenture, the Calculation Agent
shall thereafter select from the Bids received the Bid with the lowest Yield to
Maturity (the "Selected Bid") and set the Coupon Reset Rate equal to the
interest rate which would amortize the Notes Premium fully over the term of the
REPS at the Yield to Maturity indicated by the Selected Bid, provided, however,
that if the Calculation Agent has not received a timely Bid from a Dealer, the
Selected Bid shall be the lowest of all Bids received by such time and, provided
further, that if any two or more of the lowest Bids submitted are equivalent,
the Operating Partnership shall in its sole discretion select any of such
equivalent Bids (and such selected Bid shall be the Selected Bid). In all cases,
Xxxxxx Xxxxxxx & Co. Incorporated, in its capacity as a Dealer has the right to
match the Bid with the lowest Yield to Maturity, whereby Xxxxxx Xxxxxxx & Co.
Incorporated's Bid becomes the Selected Bid. The Calculation Agent shall notify
the Dealer that submitted the Selected Bid as soon as practicable, on the
Bid Date.
(v) Immediately after calculating the Coupon Reset Rate for the REPS,
the Calculation Agent shall provide written notice to the Operating Partnership
and the Trustee, setting forth the Coupon Reset Rate. At the request of Holders
as of the immediately preceding Record Date, the Calculation Agent shall provide
such holders the Coupon Reset Rate. Thereafter, the Coupon Reset Rate shall be
the new interest Rate on the REPS, effective from and including the Coupon Reset
Date and shall be established by the delivery of an Officer's Certificate to the
Trustee.
(vi) The Callholder shall sell the REPS to the Dealer that made the
Selected Bid at the Purchase Price, such sale to be settled on the Coupon Reset
Date in immediately available funds.
(7) The Trustee shall also be the Security Registrar and Paying Agent
for the REPS.
(8) The Holders shall have no special rights in addition to those
provided in the Indenture upon the occurrence of any particular events.
(9) The REPS shall have no additional Events of Default in addition to
the Events of Default set forth in Article Five of the Indenture.
(10) Interest on any REPS shall be payable only to the Person in whose
name any such REPS are registered at the close of business on the Regular Record
Date for such interest payment.
(11) The REPS shall not be subordinated to any other debt of the
Operating Partnership, and shall constitute senior unsecured obligations of the
Operating Partnership.
SECTION 102. FORM OF REPS. The form of the REPS is attached hereto as
Exhibit A.
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SECTION 103. FORM OF SUBSIDIARY GUARANTEE. The form of the Subsidiary
Guarantee which shall be executed if required pursuant to Section 1013 of the
Indenture is attached hereto as Exhibit B.
ARTICLE II
MISCELLANEOUS
SECTION 201. DEFINITIONS. Capitalized terms used but not defined in this
Third Supplemental Indenture shall have the meanings ascribed thereto in the
Indenture.
SECTION 202. CONFIRMATION OF INDENTURE. The Indenture, as heretofore
supplemented and amended by this Third Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture, this Third Supplemental
Indenture and all indentures supplemental thereto shall be read, taken and
construed as one and the same instrument.
SECTION 203. CONCERNING THE TRUSTEE. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Third Supplemental Indenture
other than as set forth in the Indenture and, in carrying out its
responsibilities hereunder, shall have all of the rights, protections and
immunities which it possesses under the Indenture.
SECTION 204. GOVERNING LAW. This Third Supplemental Indenture, the
Indenture and the Notes shall be governed by and construed in accordance with
the internal laws of the State of New York.
SECTION 205. SEPARABILITY. In case any provision in this Third
Supplemental Indenture shall for any reason be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 206. COUNTERPARTS. This Third Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed as of the day and year first above
written.
AMB PROPERTY, L.P.
By: AMB PROPERTY CORPORATION,
as General Partner
By:
-------------------------
Name:
Title:
AMB PROPERTY CORPORATION.
By:
-------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A., as Trustee
By:
-------------------------
Name:
Title:
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EXHIBIT A
Form of REPS
[LEGEND FOR INCLUSION IN GLOBAL SECURITIES-- THIS SECURITY IS A GLOBAL SECURITY
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM,
THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
[LEGEND FOR INCLUSION IN GLOBAL SECURITIES -- UNLESS THIS SECURITY IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE OPERATING PARTNERSHIP (AS DEFINED BELOW) OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
No.:
CUSIP No.: Principal Amount: $___________
AMB PROPERTY, L.P.
______% Reset Put Securities (REPS (SM)) Due 2015-Putable/Callable 2005
AMB Property, L.P., a Delaware limited partnership (hereinafter called
the "Operating Partnership", which term includes any successor under the
Indenture referred to below), for value received, hereby promises to pay to
__________, or registered assigns, [the principal sum of ____________ DOLLARS
($_____________)][the principal amount then shown on Schedule A hereto] on June
___ 2015, and to pay interest thereon from June ___ or from the most recent date
to which interest has been paid or duly provided for, semiannually on June ___
and December ___ of each year (each, an "Interest Payment Date"), commencing
December ___ to but
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excluding June ___, 2005 (the "Coupon Reset Date"), at the rate of ______% per
annum, until the principal hereof is paid or duly made available for payment,
whereupon (x) if all of the REPS are purchased on such date by the Callholder
pursuant to its Call Option, the REPS shall bear interest from and including the
Coupon Reset Date to but excluding June __, 2015 (the "Final Maturity Date") at
the Coupon Reset Rate determined in accordance with the Coupon Reset Process
described below, or (y) the REPS shall be purchased by the Operating Partnership
pursuant to the exercise of the Mandatory Put by the Trustee on behalf of the
holders of the REPS. If the Callholder (as defined below) elects to purchase the
REPS pursuant to the Call Option (as defined below), the Calculation Agent (as
defined below) shall reset the interest rate for the REPS effective on the
Coupon Reset Date, pursuant to the Coupon Reset Process described below. In such
circumstances, (i) the REPS shall be purchased by the Callholder at 100% of the
principal amount hereof on the Coupon Reset Date, on the terms and subject to
the conditions described herein (interest accrued to but excluding the Coupon
Reset Date shall be paid by the Operating Partnership on such date to the Holder
hereof on the most recent Regular Record Date), and (ii) from and including the
Coupon Reset Date, the REPS shall bear interest at the rate determined by the
Calculation Agent in accordance with the procedures set forth below. Interest on
this security shall be calculated on the basis of a 360-day year consisting of
twelve 30-day months. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date shall, as provided in such Indenture,
be paid to the Person in whose name this security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the May 31 or November 30 (whether or not a
Business Day), as the case may be, immediately preceding such Interest Payment
Date. Any such interest which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date shall forthwith cease to be payable
to the registered Holder hereof on the relevant Regular Record Date by virtue of
having been such Holder, and may be paid to the Person in whose name this
security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to the Holder of this
Security not less than 10 days prior to such Special Record Date, or may be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the REPS may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in such Indenture.
On the Coupon Reset Date, the Holder hereof shall be entitled to receive 100% of
the principal amount hereof from either (i) the Callholder, if the Callholder
purchases the REPS pursuant to the Call Option, or (ii) the Operating
Partnership, by exercise of the Mandatory Put (as defined below) by the Trustee
for and on behalf of the Holder hereof, if the Callholder does not purchase the
REPS pursuant to the Call Option.
Payment of the principal of and the interest on this security shall be
made at the office or agency of the Operating Partnership maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that, at the
option of the Operating Partnership, interest may be paid by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by wire transfer to an account maintained by the payee
located in the United States of America.
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This security is one of a duly authorized issue of Securities of the
Operating Partnership (herein called the "REPS") issued and to be issued under
an Indenture dated as of June ___,1998 (herein called, together with all
indentures supplemental thereto, the "Indenture") among, the Operating
Partnership, AMB Property Corporation and State Street Bank and Trust Company of
California, N.A., as trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Operating Partnership, the Trustee and the Holders of the REPS, and the
terms upon which the REPS are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof, limited in
aggregate principal amount to $___________. Subject to the Call Option and the
Mandatory Put described below, the REPS are not redeemable prior to maturity.
For the purposes hereof, the "Callholder" means the Operating
Partnership or any of its assignees. The Callholder may at any time assign its
rights and obligations under its Call Option; provided, however, that (i) such
rights and obligations are assigned in whole and not in part and (ii) it
provides the Trustee and the Operating Partnership with notice of such
assignment contemporaneously with such assignment.
Xxxxxx Xxxxxxx & Co. International Limited, a corporation organized
under the laws of England ("Xxxxxx Xxxxxxx"), has made a payment to the
Operating Partnership on the date hereof, which amount represents a reasonable
payment for Xxxxxx Xxxxxxx'x acquiring the Call Option from the Operating
Partnership. To this end, the Operating Partnership hereby assigns all its
right, title and interest in, to and under the Call Option to Xxxxxx Xxxxxxx and
Xxxxxx Xxxxxxx hereby assumes all the obligations and liabilities of the
Operating Partnership under the Call Option.
The Callholder, by giving notice to the Trustee (the "Call Notice"), has
the right to purchase the aggregate principal amount of this security, in whole
but not in part (the "Call Option"), on the Coupon Reset Date, at a price equal
to 100% of the principal amount hereof (the "Call Price") (interest accrued to
but excluding the Coupon Reset Date shall be paid by the Operating Partnership
on such date to the Holder hereof on the most recent Regular Record Date). The
Call Notice shall be given to the Trustee, in writing, prior to 4:00 p.m., New
York time, no later than fifteen calendar days prior to the Coupon Reset Date.
The Call Notice must contain the requisite delivery details, including the
identity of the Callholder's DTC account. The Call Notice may be revoked by the
Callholder at any time prior to 2:00 p.m., New York time, on the Business Day
prior to the Coupon Reset Date.
If the Callholder exercises the Call Option, unless terminated in
accordance with its terms, (i) not later than 2:00 p.m., New York Time, on the
Business Day prior to the Coupon Reset Date, the Callholder shall deliver the
Call Price in immediately available funds to the Trustee for payment thereof to
the Holders (including, if applicable, the Holder hereof) on the Coupon Reset
Date and (ii) the Holder hereof shall be required to deliver and shall be deemed
to have delivered this security to the Callholder against payment therefor on
the Coupon Reset Date through the facilities of DTC. The Callholder is not
required to exercise the Call Option, and no
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holder of the REPS or any interest therein shall have any right or claim against
the Callholder as a result of the Callholder's decision whether or not to
exercise the Call Option or performance or non-performance of its obligations
with respect thereto.
The Callholder may at any time assign its rights and obligations under
its Call Option; provided, however, that (i) such rights and obligations are
assigned in whole and not in part and (ii) it provides the Trustee and the
Operating Partnership with notice of such assignment contemporaneously with such
assignment.
Upon receipt of notice of assignment, the Trustee shall treat the
assignee as Callholder for all purposes hereunder. The Callholder may assign its
rights under the Call Option without notice to, or consent of, the holders of
the REPS (including, if applicable, the Holder hereof).
The Indenture sets forth certain circumstances in which the Call Option
shall automatically be terminated.
If the Call Option is not exercised or if the Call Option otherwise
terminates, the Trustee shall exercise the right of the Holders (including, if
applicable, the Holder hereof) to require the Operating Partnership to purchase
the aggregate principal amount of REPS, in whole but not in part (the "Mandatory
Put"), on the Coupon Reset Date at a price equal to 100% of the principal amount
thereof (the "Put Price"), plus accrued but unpaid interest to but excluding the
Coupon Reset Date, in each case, to be paid by the Operating Partnership to the
Holders (including the Holder hereof) in immediately available funds on the
Coupon Reset Date. If the Trustee exercises the Mandatory Put then the Operating
Partnership shall deliver the Put Price in immediately available funds to the
Trustee by no later than 12:00 noon, New York time, on the Coupon Reset Date and
the holders of the REPS shall be required to deliver and shall be deemed to have
delivered the REPS to the Operating Partnership against payment therefor on the
Coupon Reset Date through the facilities of DTC. By its purchase of the REPS,
each Holder irrevocably agrees that the Trustee shall exercise the Mandatory Put
relating to such REPS for or on behalf of the holders of the REPS as provided
herein. No Holder or any interest therein has the right to consent or object to
the exercise of the Trustee's duties under the Mandatory Put.
In anticipation of the exercise of the Call Option or the Mandatory Put
on the Coupon Reset Date, the Trustee shall notify the Holder hereof, not less
than 30 days nor more than 60 days prior to the Coupon Reset Date, that all REPS
shall be delivered on the Coupon Reset Date through the facilities of DTC
against payment of the Call Price by the Callholder under the Call Option or
payment of the Put Price by the Operating Partnership under the Mandatory Put.
The Trustee shall notify the Holder hereof once it is determined whether the
Call Price or the Put Price shall be delivered in accordance with the provisions
hereof.
Pursuant to and subject to the terms of a calculation agency agreement,
dated as of June ___, 1998, between the Operating Partnership and Xxxxxx Xxxxxxx
& Co. Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated (or its successors or
assigns) shall be the Calculation Agent. If the Callholder timely exercises its
Call Option and the Call Option does not otherwise terminate in accordance with
the terms of the Indenture, then the Operating Partnership and the Calculation
Agent shall complete the following steps (the "Coupon Reset Process") in order
to determine the
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interest rate ("Coupon Reset Rate") to be paid on the REPS from and including
the Coupon Reset Date to but excluding the Final Maturity Date:
(i) The Operating Partnership shall provide the Calculation Agent with
(a) a list (a "Dealer List"), no later than five Business Days prior to the
Coupon Reset Date, containing the names and addresses of between three and five
dealers (which shall include Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx, Sachs &
Co. and X.X. Xxxxxx Securities, Inc.) from whom the Operating Partnership
desires the Calculation Agent to obtain the Bids for the purchase of the REPS
and (b) such other material as may reasonably be requested by the Calculation
Agent to facilitate a successful Coupon Reset Process.
(ii) Within one Business Day following receipt by the Calculation Agent
of the Dealer List, the Calculation Agent shall provide to each dealer
("Dealer") on the Dealer List (a) a copy of the Prospectus relating to the REPS,
(b) a copy of the form of the REPS and (c) a written request that each such
Dealer submit a Bid to the Calculation Agent not later than 3:00 p.m., New York
time, on the third Business Day prior to the Coupon Reset Date (the "Bid Date").
The time on the Bid Date upon which Bids shall be requested may be changed by
the Calculation Agent to as late as 3:00 p.m., New York Time. As used herein,
"Bid" shall mean an irrevocable written offer given by a Dealer for the purchase
of the REPS, settling on the Coupon Reset Date, and shall be quoted by such
Dealer as a stated yield to maturity on the REPS ("Yield to Maturity"). Each
Dealer shall be provided with (a) the name of the Operating Partnership, (b) an
estimate of the Purchase Price (which shall be stated as a U.S. dollar amount
and be calculated by the Calculation Agent in accordance with clause (iii)
below), (c) the principal amount and maturity of the REPS and (d) the method by
which interest shall be calculated on the REPS.
(iii) The purchase price to be paid by any Dealer for the REPS (the
"Purchase Price") shall be equal to (a) the principal amount of the REPS plus
(b) a premium (the "Notes Premium") which shall be equal to the excess on the
Coupon Reset Date, if any, of (x) the discounted present value to the Coupon
Reset Date of a bond with a maturity of June ___, 2015 which has an interest
rate equal to ________%, semi-annual interest payments on each June ____ and
December ____, commencing December ____, 2005, and a principal amount of
$____________, and assuming a discount rate equal to the Treasury Rate over (y)
$_________. For the purposes hereof, "Treasury Rate" means the per annum rate
equal to the offer side yield to maturity of the current on-the-run ten-year
United States Treasury Security per Telerate page 500 (or any successor or
substitute page as may replace such page on such service) not later than 3:00
p.m., New York time, on the Bid Date (or such other date or time that may be
agreed upon by the Operating Partnership and the Calculation Agent) or, if such
rate does not appear on Telerate page 500 (or any successor or substitute page
as may replace such page on such service) at such time, the rates on GovPx
End-of-Day Pricing at 3:00 p.m., New York time, on the Bid Date (or such other
date that may be agreed upon by the Operating Partnership and the Calculation
Agent).
(iv) The Calculation Agent shall provide written notice to the
Operating Partnership as soon as practicable on the Bid Date, setting forth, (a)
the names of each of the Dealers from whom the Calculation Agent received Bids
on the Bid Date, (b) the Bid submitted by each such Dealer and (c) the Purchase
Price as determined
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pursuant to clause (iii) hereof. Unless the Call Option has terminated in
accordance with the terms of the Indenture, the Calculation Agent shall
thereafter select from the Bids received the Bid with the lowest Yield to
Maturity (the "Selected Bid") and set the Coupon Reset Rate equal to the
interest rate which would amortize the Notes Premium fully over the term of the
REPS at the Yield to Maturity indicated by the Selected Bid, provided, however,
that if the Calculation Agent has not received a timely Bid from a Dealer, the
Selected Bid shall be the lowest of all Bids received by such time and provided,
further that if any two or more of the lowest Bids submitted are equivalent, the
Operating Partnership shall in its sole discretion select any of such equivalent
Bids (and such selected Bid shall be the Selected Bid). In all cases, Xxxxxx
Xxxxxxx & Co. Incorporated, in its capacity as a Dealer has the right to match
the Bid with the lowest Yield to Maturity, whereby Xxxxxx Xxxxxxx & Co.
Incorporated's Bid becomes the Selected Bid. The Calculation Agent shall notify
the Dealer that submitted the Selected Bid as soon as practicable, on the
Bid Date.
If an Event of Default with respect to the REPS shall occur and be
continuing, the principal of the REPS may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Operating Partnership and the rights of the Holders of the REPS of each series
issued under the Indenture at any time by the Operating Partnership and the
Trustee with the consent of the Holders of not less than a majority in aggregate
principal amount of the REPS at the time Outstanding of each series affected
thereby. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the REPS of any series at
the time Outstanding, on behalf of the Holders of all REPS of such series, to
waive compliance by the Operating Partnership with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the holder of this security shall be conclusive
and binding upon such Holder and upon all future Holders of this security and of
any REPS issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this security.
No reference herein to the Indenture and no provision of this security
or of the Indenture shall alter or impair the obligation of the Operating
Partnership, which is absolute and unconditional, to pay the principal of and
interest on this security, at the time, place and rate, and in the coin or
currency, herein and in the Indenture prescribed.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this security may be registered on the Security
Register upon surrender of this security for registration of transfer at the
office or agency of the Operating Partnership maintained for the purpose in any
place where the principal of and interest on this security are payable, duly
endorsed, or accompanied by a written instrument of transfer in form
satisfactory to the Operating Partnership and the Security Registrar duly
executed by the Holder hereof or by his attorney duly authorized in writing, and
thereupon one or more new REPS, of authorized denominations and for the same
aggregate principal amount, shall be issued to the designated
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transferee or transferees. The REPS are issuable only in registered form without
coupons in the denominations of $1,000 and integral multiples of $1,000. As
provided in the Indenture and subject to certain limitations set forth therein,
the REPS are exchangeable for a like aggregate principal amount of REPS of
authorized denominations as requested by the Holders surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Operating Partnership may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith,
other than in certain cases provided in the Indenture.
Prior to due presentment of this security for registration of transfer,
the Operating Partnership, the Trustee and any agent of the Operating
Partnership or the Trustee may treat the Person in whose name this security is
registered as the owner hereof for all purposes, whether or not this security be
overdue, and neither the Operating Partnership, the Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture contains provisions whereby (i) the Operating Partnership
may be discharged from its obligations with respect to the REPS (subject to
certain exceptions) or (ii) the Operating Partnership may be released from its
obligations under specified covenants and agreements in the Indenture, in each
case if the Operating Partnership irrevocably deposits with the Trustee money or
Government Obligations sufficient to pay and discharge the entire indebtedness
on all Notes (including the REPS), and satisfies certain other conditions, all
as more fully provided in the Indenture.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
Capitalized terms used in this security which are not defined herein
shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee under the Indenture by the manual signature of one of
its authorized signatories, this security shall not be entitled to any benefits
under the Indenture or be valid or obligatory for any purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Operating Partnership has caused this instrument
to be duly executed.
Dated:
AMB PROPERTY, L.P.
[Seal] By AMB PROPERTY CORPORATION,
as General Partner
Attest: By:
--------------------
President
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A., as Trustee
By:
------------------------------
Authorized Signatory
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PARENT GUARANTEE
FOR VALUE RECEIVED, the undersigned hereby, jointly and severally with
the Subsidiary Guarantors, if any, unconditionally guarantees to the Holder of
the accompanying ______% Reset Put Securities ("REPS" SM) due
2015-Putable/Callable 2005 (the "REPS") issued by AMB Property, L.P. (the
"Operating Partnership") under an Indenture dated as of June ___, 1998 (together
with the Third Supplemental Indenture thereto, the "Indenture") among the
Operating Partnership, AMB Property Corporation, and State Street Bank and Trust
Company of California, N.A., as trustee (the "Trustee"), (a) the full and prompt
payment of the principal of and premium, if any, on such REPS when and as the
same shall become due and payable, whether at Stated Maturity, by acceleration,
by redemption or otherwise, and (b) the full and prompt payment of the interest
on such REPS when and as the same shall become due and payable, according to the
terms of such REPS and of the Indenture. In case of the failure of the Operating
Partnership punctually to pay any such principal, premium or interest, the
undersigned hereby agrees to cause any such payment to be made punctually when
and as the same shall become due and payable, whether at Stated Maturity, upon
acceleration, by redemption or otherwise, and as if such payment were made by
the Operating Partnership. The undersigned hereby agrees, jointly and severally
with the Subsidiary Guarantors, if any, that its obligations hereunder shall be
as principal and not merely as surety, and shall be absolute and unconditional,
and shall not be affected, modified or impaired by the following: (a) the
failure to give notice to the Guarantors of the occurrence of an Event of
Default under the Indenture; (b) the waiver, surrender, compromise, settlement,
release or termination of the payment, performance or observance by the
Operating Partnership or the Guarantors of any or all of the obligations,
covenants or agreements of either of them contained in the Indenture or the
REPS; (c) the acceleration, extension or any other changes in the time for
payment of any principal of or interest or any premium on any REPS or for any
other payment under the Indenture or of the time for performance of any other
obligations, covenants or agreements under or arising out of the Indenture or
the REPS; (d) the modification or amendment (whether material or otherwise) of
any obligation, covenant or agreement set forth in the Indenture or the REPS;
(e) the taking or the omission of any of the actions referred to in the
Indenture and in any of the actions under the REPS; (f) any failure, omission,
delay or lack on the part of the Trustee to enforce, assert or exercise any
right, power or remedy conferred on the Trustee in the Indenture, or any other
action or acts on the part of the Trustee or any of the Holders from time to
time of the REPS; (g) the voluntary or involuntary liquidation, dissolution,
sale or other disposition of all or substantially all the assets, marshaling of
assets and liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition with creditors or
readjustment of, or other similar proceedings affecting the Guarantors or the
Operating Partnership or any of the assets of any of them, or any allegation or
contest of the validity of the Parent Guarantee in any such proceeding; (h) to
the extent permitted by law, the release or discharge by operation of law of the
Guarantors from the performance or observance of any obligation, covenant or
agreement contained in the Indenture; (i) to the extent permitted by law, the
release or discharge by operation of law of the Operating Partnership from the
performance or observance of any obligation, covenant or agreement contained in
the Indenture; (j) the default or failure of the Operating Partnership or the
Trustee fully to perform any of its obligations set forth in the Indenture or
the REPS; (k) the invalidity, irregularity or unenforceability of the
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Indenture or the REPS or any part of any thereof; (l) any judicial or
governmental action affecting the Operating Partnership or any REPS or consent
or indulgence granted by the Operating Partnership by the Holders or by the
Trustee; or (m) the recovery of any judgment against the Operating Partnership
or any action to enforce the same or any other circumstance which might
constitute a legal or equitable discharge of a surety or guarantor. The
undersigned hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger, sale, lease or conveyance of all or
substantially all of its assets, insolvency or bankruptcy of the Operating
Partnership, any right to require a proceeding first against the Operating
Partnership, protest or notice with respect to such Notice or the indebtedness
evidenced thereby and all demands whatsoever, and covenants that this Parent
Guarantee will not be discharged except by complete performance of the
obligations contained in such REPS and in this Parent Guarantee.
No reference herein to such Indenture and no provision of this Parent
Guarantee or of such Indenture shall alter or impair the guarantee of the
undersigned, which is absolute and unconditional, of the full and prompt payment
of the principal of and premium, if any, and interest on the REPS.
THIS PARENT GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
This Parent Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the REPS shall have been executed by
the Trustee under the Indenture referred to above by the manual signature of one
of its authorized officers. The validity and enforceability of this Parent
Guarantee shall not be affected by the fact that it is not affixed to any
particular REPS.
An Event of Default under the Indenture or the REPS shall constitute an
event of default under this Parent Guarantee, and shall entitle the Holders of
REPS to accelerate the obligations of the undersigned hereunder in the same
manner and to the same extent as the obligations of the Operating Partnership.
Notwithstanding any other provision of this Parent Guarantee to the
contrary, the undersigned hereby waives any claims or other rights which it may
now have or hereafter acquire against the Operating Partnership that arise from
the existence or performance of its obligations under this Parent Guarantee (all
such claims and rights are referred to as "Guarantor's Conditional Rights"),
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, or indemnification, any right to participate in any
claim or remedy against the Operating Partnership, whether or not such claim,
remedy or right arises in equity or under contract, statute or common law, by
any payment made hereunder or otherwise, including without limitation, the right
to take or receive from the Operating Partnership, directly or indirectly, in
cash or other property or by setoff or in any other manner, payment or security
on account of such claim or other rights. Guarantor hereby agrees not to
exercise any rights which may be acquired by way of contribution under this
Parent Guarantee or any other agreement, by any payment made hereunder or
otherwise, including, without limitation, the right to take or
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receive from any other guarantor, directly or indirectly, in cash or other
property or by setoff or in any other manner, payment or security on account of
such contribution rights. If, notwithstanding the foregoing provisions, any
amount shall be paid to the undersigned on account of the Guarantor's
Conditional Rights and either (i) such amount is paid to such undersigned party
at any time when the indebtedness shall not have been paid or performed in full,
or (ii) regardless of when such amount is paid to such undersigned party, any
payment made by the Operating Partnership to a Holder that is at any time
determined to be a Preferential Payment (as defined below), then such amount
paid to the undersigned shall be held in trust for the benefit of Holder and
shall forthwith be paid such Holder to be credited and applied upon the
indebtedness, whether matured or unmatured. Any such payment is herein referred
to as a "Preferential Payment" to the extent the Operating Partnership makes any
payment to Holder in connection with the Note, and any or all of such payment is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid or paid over to a trustee, receiver or any other
entity, whether under any bankruptcy act or otherwise.
To the extent that any of the provisions of the immediately preceding
paragraph shall not be enforceable, the undersigned agrees that until such time
as the indebtedness has been paid and performed in full and the period of time
has expired during which any payment made by the Operating Partnership or the
undersigned to a Holder may be determined to be a Preferential Payment,
Guarantor's Conditional Rights to the extent not validly waived shall be
subordinate to Holders' right to full payment and performance of the
indebtedness and the undersigned shall not enforce any of Guarantor's
Conditional Rights until such time as the indebtedness has been paid and
performed in full and the period of time has expired during which any payment
made by the Operating Partnership or the undersigned to Holders may be
determined to be a Preferential Payment.
The obligations of the undersigned to the Holders of the REPS and to the
Trustee pursuant to this Parent Guarantee and the Indenture are expressly set
forth in Article 14 of the Indenture and reference is hereby made to the
Indenture for the precise terms of this Parent Guarantee and all of the other
provisions of the Indenture to which this Parent Guarantee relates.
Capitalized terms used in this Parent Guarantee which are not defined
herein shall have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the undersigned has caused this Parent Guarantee to
be duly executed.
Dated: .June ___, 1998
AMB PROPERTY CORPORATION
By:______________________________________
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[Name]
Its: [title]
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, 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 Act__________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
---------------------------
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FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
-----------------------------------
-----------------------------------
---------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
---------------------------------------------------------
the within security and all rights thereunder, hereby irrevocably constituting
and appointing
-----------------------------------------------------------------------
Attorney to transfer said security on the books of the Operating Partnership
with full power of substitution in the premises.
Dated:
---------------------------
Notice: The signature to this assignment must correspond with the name as it
appears upon the face of the within security in every particular, without
alteration or enlargement or any change whatever.
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[FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL REPS
TO REFLECT CHANGES IN PRINCIPAL AMOUNT]
Schedule A
Changes to Principal Amount of Global REPS
Principal Amount of REPS
by which this Global REPS
is to be Reduced or
Increased, and
Reason for Remaining Principal Notation
Date Reduction or Increase Amount of this Global REPS Made by
------------- -------------------------- -------------------------- -------
------------- -------------------------- -------------------------- -------
------------- -------------------------- -------------------------- -------
------------- -------------------------- -------------------------- -------
------------- -------------------------- -------------------------- -------
------------- -------------------------- -------------------------- -------
------------- -------------------------- -------------------------- -------
------------- -------------------------- -------------------------- -------
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Exhibit B
SUBSIDIARY GUARANTEE
FOR VALUE RECEIVED, each of the undersigned hereby jointly and severally
with the Parent Guarantor pursuant to the Parent Guarantee and any other
Subsidiary Guarantors under their respective Subsidiary Guarantees,
unconditionally guarantees to the Holder of the accompanying ______% Reset Put
Securities ("REPS" SM) due 2015-Putable/Callable 2005 (the "REPS") issued by AMB
Property, L.P. (the "Operating Partnership") under an Indenture dated as of June
___, 1998 (together with the Third Supplemental Indenture thereto, the
"Indenture") among the Operating Partnership, AMB Property Corporation, and
State Street Bank and Trust Company, as trustee (the "Trustee"), (a) the full
and prompt payment of the principal of and premium, if any, on such REPS when
and as the same shall become due and payable, whether at Stated Maturity, by
acceleration, by redemption or otherwise, and (b) the full and prompt payment of
the interest on such REPS when and as the same shall become due and payable,
according to the terms of such REPS and of the Indenture. The undersigned hereby
agrees, jointly and severally with the Parent Guarantor pursuant to the Parent
Guarantee and any other Subsidiary Guarantors under their respective Subsidiary
Guarantees, that its obligations hereunder shall be as principal and not merely
as surety, and shall be absolute and unconditional, and shall not be affected,
modified or impaired by the following: (a) the failure to give notice to the
Guarantors of the occurrence of an Event of Default under the Indenture; (b) the
waiver, surrender, compromise, settlement, release or termination of the
payment, performance or observance by the Operating Partnership or the
Guarantors of any or all of the obligations, covenants or agreements of either
of them contained in the Indenture or the REPS; (c) the acceleration, extension
or any other changes in the time for payment of any principal of or interest or
any premium on any REPS or for any other payment under the Indenture or of the
time for performance of any other obligations, covenants or agreements under or
arising out of the Indenture or the REPS; (d) the modification or amendment
(whether material or otherwise) of any obligation, covenant or agreement set
forth in the Indenture or the REPS; (e) the taking or the omission of any of the
actions referred to in the Indenture and in any of the actions under the REPS;
(f) any failure, omission, delay or lack on the part of the Trustee to enforce,
assert or exercise any right, power or remedy conferred on the Trustee in the
Indenture, or any other action or acts on the part of the Trustee or any of the
Holders from time to time of the REPS; (g) the voluntary or involuntary
liquidation, dissolution, sale or other disposition of all or substantially all
the assets, marshaling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition with creditors or readjustment of, or other similar
proceedings affecting the Guarantors or the Operating Partnership or any of the
assets of any of them, or any allegation or contest of the validity of this
Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law,
the release or discharge by operation of law of the Guarantors from the
performance or observance of any obligation, covenant or agreement contained in
the Indenture; (i) to the extent permitted by law, the release or discharge by
operation of law of the Operating Partnership from the performance or observance
of any obligation, covenant or agreement contained in the Indenture; (j) the
default or failure of the Operating Partnership or the Trustee fully to perform
any of its obligations set
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forth in the Indenture or the REPS; (k) the invalidity, irregularity or
unenforceability of the Indenture or the REPS or any part of any thereof; (l)
any judicial or governmental action affecting the Operating Partnership or any
REPS or consent or indulgence granted by the Operating Partnership by the
Holders or by the Trustee; or (m) the recovery of any judgment against the
Operating Partnership or any action to enforce the same or any other
circumstance which might constitute a legal or equitable discharge of a surety
or guarantor. The undersigned hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger, sale, lease or
conveyance of all or substantially all of its assets, insolvency or bankruptcy
of the Operating Partnership, any right to require a proceeding first against
the Operating Partnership, protest or notice with respect to such Notice or the
indebtedness evidenced thereby and all demands whatsoever, and covenants that
this Subsidiary Guarantee will not be discharged except by complete performance
of the obligations contained in such REPS and in this Subsidiary Guarantee.
No reference herein to such Indenture and no provision of this
Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of
the undersigned, which is absolute and unconditional, of the full and prompt
payment of the principal of and premium, if any, and interest on the REPS.
THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
The validity and enforceability of this Subsidiary Guarantee shall not
be affected by the fact that it is not affixed to any particular REPS.
An Event of Default under the Indenture or the REPS shall constitute an
event of default under this Subsidiary Guarantee, and shall entitle the Holders
of REPS to accelerate the obligations of the undersigned hereunder in the same
manner and to the same extent as the obligations of the Operating Partnership.
Notwithstanding any other provision of this Subsidiary Guarantee to the
contrary, each of the undersigned hereby waives any claims or other rights which
it may now have or hereafter acquire against the Operating Partnership that
arise from the existence or performance of its obligations under this Subsidiary
Guarantee (all such claims and rights are referred to as "Guarantor's
Conditional Rights"), including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, or indemnification, any right to
participate in any claim or remedy against the Operating Partnership, whether or
not such claim, remedy or right arises in equity or under contract, statute or
common law, by any payment made hereunder or otherwise, including without
limitation, the right to take or receive from Operating Partnership, directly or
indirectly, in cash or other property or by setoff or in any other manner,
payment or security on account of such claim or other rights. The Subsidiary
Guarantor hereby agrees not to exercise any rights which may be acquired by way
of contribution under this Subsidiary Guarantee or any other agreement, by any
payment made hereunder or otherwise, including, without limitation, the right to
take or receive from any other guarantor, directly or indirectly, in cash or
other property or by setoff or in any other manner, payment or security on
account of
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such contribution rights. If, notwithstanding the foregoing provisions, any
amount shall be paid to the undersigned on account of any such Guarantor's
Conditional Rights and either (i) such amount is paid to such undersigned party
at any time when the indebtedness shall not have been paid or performed in full,
or (ii) regardless of when such amount is paid to such undersigned party, any
payment made by Operating Partnership to a Holder that is at any time determined
to be a Preferential Payment (as defined below), then such amount paid to any of
the undersigned shall be held in trust for the benefit of the Holders and shall
forthwith be paid such Holder to be credited and applied upon the indebtedness,
whether matured or unmatured. Any such payment is herein referred to as a
"Preferential Payment" to the extent the Operating Partnership makes any payment
to the Holders in connection with the REPS, and any or all of such payment is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid or paid over to a trustee, receiver or any other
entity, whether under any bankruptcy act or otherwise.
To the extent that any of the provisions of the immediately preceding
paragraph shall not be enforceable, each of the undersigned agrees that until
such time as the indebtedness has been paid and performed in full and the period
of time has expired during which any payment made by the Operating Partnership
or the undersigned to a Holder may be determined to be a Preferential Payment,
Guarantor's Conditional Rights to the extent not validly waived shall be
subordinate to Holders' right to full payment and performance of the
indebtedness and each of the undersigned shall not enforce any of its respective
portion of the Guarantors' Conditional Rights until such time as the
indebtedness has been paid and performed in full and the period of time has
expired during which any payment made by the Operating Partnership or the
undersigned to Holders may be determined to be a Preferential Payment.
The undersigned's liability (the "Base Guaranty Liability") shall be
that amount from time to time equal to the aggregate liability of the
undersigned hereunder, but shall be limited to the lesser of (A) the aggregate
amount of the obligation as stated in the second sentence of Section 1401 of the
Indenture, and (B) the amount, if any, which would not have (i) rendered the
undersigned "insolvent" (as such term is defined in Section 101(29) of the
Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the
State of New York, as each is in effect at the date of the Indenture) or (ii)
left the undersigned with unreasonably small capital at the time its Guarantee
was entered into, after giving effect to the incurrence of existing Debt (as
defined in the Indenture) immediately prior to such time, provided that, it
shall be a presumption in any lawsuit or other proceeding in which the
undersigned is a party that the amount guaranteed is the amount set forth in (A)
above unless a creditor, or representative of creditors of the undersigned or a
trustee in bankruptcy of the undersigned, as debtor in possession, otherwise
proves in such a lawsuit that the aggregate liability of the undersigned is
limited to the amount set forth in (B). In making any determination as to the
solvency or sufficiency of capital of the undersigned in accordance with the
previous sentence, the right of the undersigned to contribution from other
Guarantors, to subrogation and any other rights the undersigned may have,
contractual or otherwise, shall be taken into account.
The obligations of the undersigned to the Holders of the REPS and to the
Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set
forth in Article 14 of the
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Indenture and reference is hereby made to the Indenture for the precise terms of
the Subsidiary Guarantee and all of the other provisions of the Indenture to
which this Subsidiary Guarantee relates.
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Capitalized terms in this Subsidiary Guarantee which are not defined
herein shall have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the undersigned has caused this Subsidiary Guarantee
to be duly executed.
Dated: __________
[NAME OF SUBSIDIARY]
By:_________________________________
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