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EXHIBIT 4.2
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of __________, 1998 (this "First
Supplemental Indenture"), among AMB PROPERTY, L.P., a Delaware limited
partnership (the "Operating Partnership"), AMB PROPERTY CORPORATION (the "Parent
Guarantor"), each of the Operating Partnership's Subsidiaries that either now or
in the future are parties hereto as guarantors (the "Subsidiary Guarantors" and
together with the Parent Guarantor, the "Guarantors") 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 Guarantors and the Trustee
executed and delivered an Indenture, dated as of ___________, 1998 (as
supplemented hereby, the "Indenture"), to provide for the issuance by the
Operating Partnership of notes evidencing its unsecured indebtedness;
WHEREAS, pursuant to Board Resolution, the Operating Partnership has
authorized the issuance of $________ of its ______% Notes due________, 2008 (the
"2008 Notes");
WHEREAS, the Operating Partnership desires to establish the terms of the
2008 Notes in accordance with Section 301 of the Indenture and to establish the
form of the 2008 Notes in accordance with Section 201 of the Indenture.
ARTICLE 1
TERMS
SECTION 101. TERMS OF NOTES. The following terms relating to the 2008
Notes are hereby established:
(1) The 2008 Notes shall constitute a series of Notes having the title
"______% Notes due __________, 2008."
(2) The aggregate principal amount of the 2008 Notes that may be
authenticated and delivered under the Indenture (except for 2008 Notes
authenticated and delivered upon registration of transfer of, or exchange for,
or in lieu of, other 2008 Notes pursuant to Sections 304, 305, 306, 906, or 1107
of the Indenture) shall be up to $__________.
(3) The entire outstanding principal of the 2008 Notes will mature on
_________, 2008 (the "Stated Maturity Date").
(4) The rate at which the 2008 Notes shall bear interest shall be ___%
per annum; the date from which interest shall accrue shall be ________, 1998;
the Interest Payment Dates for the 2008 Notes on which interest will be payable
shall be _______ and ______ in each year, beginning _____, 1998; the Regular
Record Dates for the interest payable on the 2008 Notes on any Interest Payment
Date shall be the 15th calendar day preceding the applicable Interest Payment
Date.
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(5) The Place of Payment where the principal of and interest on the 2008
Notes shall be payable and 2008 Notes 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 2008 Notes 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) The 2008 Notes shall not be redeemable at the option of any Holder
thereof, upon the occurrence of any particular circumstances or otherwise.
(7) The Trustee shall also be the Security Registrar and Paying Agent
for the 2008 Notes.
(8) The Holders of the 2008 Notes shall have no special rights in
addition to those provided in the Indenture upon the occurrence of any
particular events.
(9) The 2008 Notes 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 2008 Note shall be payable only to the Person in
whose name that 2008 Note is registered at the close of business on the Regular
Record Date for such interest.
(11) The 2008 Notes 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 2008 NOTE. The form of the 2008 Note is attached
hereto as Exhibit A.
ARTICLE II
MISCELLANEOUS
SECTION 201. DEFINITIONS. Capitalized terms used but not defined in this
First 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 First Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture, this First 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 First 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 First Supplemental Indenture, the
Indenture and the Notes shall be governed by and construed in accordance with
the law of the State of New York.
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SECTION 205. SEPARABILITY. In case any provision in this First
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 First 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 First
Supplemental Indenture to be duly executed, and the corporate seal of the
General Partner to be hereunto affixed and attested, as of the day and year
first above written.
AMB PROPERTY, L.P.
By: AMB PROPERTY CORPORATION,
as General Partner
By:
-------------------------
AMB PROPERTY CORPORATION.
By:
-------------------------
AMB PROPERTY II, L.P.
By: AMB PROPERTY CORPORATION,
as General Partner
By:
-------------------------
LONG GATE LLC.
By: AMB PROPERTY CORPORATION,
as Manager
By:
-------------------------
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XXXXX XXXXXX BANK AND TRUST
COMPANY OF CALIFORNIA, N.A., as Trustee
By:
-------------------------
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EXHIBIT A
Form of Note
[LEGEND FOR INCLUSION IN GLOBAL NOTES-- THIS NOTE IS A GLOBAL NOTE WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE IS EXCHANGEABLE FOR NOTES
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 NOTES IN DEFINITIVE FORM, THIS NOTE 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 NOTES -- UNLESS THIS NOTE 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 NOTE 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: $___________
AMB PROPERTY, L.P.
______% Notes due 2008
AMB Property, L.P., a Delaware limited partnership (hereinafter called
the "Operating Partnership", which term includes any successor under the
Indenture referred to below), for value received, hereby promises to pay to
__________, or registered assigns, [the principal sum of ____________ DOLLARS
($_____________)][the principal amount then shown on Schedule A hereto] on
__________ 2008, and to pay interest thereon from _________ or from the most
recent date to which interest has been paid or duly provided for, semiannually
on __________ and __________ of each year (each, an "Interest Payment Date"),
commencing ___________, and at Maturity, at the rate of ______% per annum, until
the principal hereof is paid or duly made available for payment. Interest on
this Note 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
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provided for on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Note (or one or more Predecessor Notes)
is registered at the close of business on the Regular Record Date for such
interest, which shall be the ________ or ________ (whether or not a Business
Day), as the case may be, next 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 Note (or one or more
Predecessor Notes) 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 Note 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 Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in such Indenture.
Payment of the principal of and the interest on this Note will 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 Note Register
or by wire transfer to an account maintained by the payee located in the United
States of America.
This Note is one of a duly authorized issue of Notes of the Operating
Partnership (herein called the "Notes") issued and to be issued in multiple
series under an Indenture dated as of _______,1998 (herein called, together with
all indentures supplemental thereto, the "Indenture") among, the Operating
Partnership, AMB Property Corporation, each of the Operating Partnership's
Subsidiaries that either now or in the future is a party thereto as guarantors
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 Notes, and the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the series designated on the
face hereof, limited in aggregate principal amount to $___________.
The Notes are subject to redemption prior to the Stated Maturity of the
principal thereof as provided in the Indenture.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes 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 Notes 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
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in aggregate principal amount of the Notes 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 Notes of
any series at the time Outstanding, on behalf of the Holders of all Notes 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 Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Notes 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 Note.
No reference herein to the Indenture and no provision of this Note 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 Note, 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 Note may be registered on the Note Register
upon surrender of this Note 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 Note are payable, duly endorsed, or
accompanied by a written instrument of transfer in form satisfactory to the
Operating Partnership and the Note Registrar duly executed by the Holder hereof
or by his attorney duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees. The Notes 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 Notes are exchangeable for a like
aggregate principal amount of Notes 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 Note 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 Note is registered as the
owner hereof for all purposes, whether or not this Note 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 Notes (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, and satisfies certain other conditions, all as more fully provided
in the Indenture.
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This Note shall be governed by and construed in accordance with the laws
of the State of New York.
All terms used in this Note which are defined in the Indenture 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 Note 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.
By AMB PROPERTY CORPORATION,
as General Partner
By:
-------------------------------
President
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes 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 pursuant to the Subsidiary Guarantee of even date,
unconditionally guarantees to the Holder of the accompanying _____% Note Due
________, 2008 (the "2008 Note") issued by AMB Property, L.P. (the "Operating
Partnership") under an Indenture dated as of _________, 1998 (together with the
First Supplemental Indenture thereto, the "Indenture") among the Operating
Partnership, AMB Property Corporation, certain of the Operating Partnership's
subsidiaries and __________, as trustee (the "Trustee"), (a) the full and prompt
payment of the principal of and premium, if any, on such 2008 Note 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 2008 Note when and as the same shall become due and
payable, according to the terms of such 2008 Note 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, 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 2008 Notes; (c) the acceleration, extension or any other
changes in the time for payment of any principal of or interest or any premium
on any 2008 Note 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 2008 Notes; (d) the modification or amendment
(whether material or otherwise) of any obligation, covenant or agreement set
forth in the Indenture or the 2008 Notes; (e) the taking or the omission of any
of the actions referred to in the Indenture and in any of the actions under the
2008 Notes; (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 2008 Notes; (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 2008 Notes; (k) the invalidity, irregularity or unenforceability of the
Indenture or the 2008 Notes or any part of any thereof; (l) any judicial or
governmental action affecting the
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Operating Partnership or any 2008 Notes 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 2008 Note 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 2008 Note.
THIS PARENT GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE 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 2008 Note 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 2008 Note.
An Event of Default under the Indenture or the 2008 Notes shall
constitute an event of default under this Parent Guarantee, and shall entitle
the Holders of 2008 Notes 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 Operating Partnership that arise from the
existence or performance of its obligations under this Parent Guarantee or any
other agreement (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 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. 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
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 any of the undersigned on
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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 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, 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 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 Holder's 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 Operating Partnership or the
undersigned to Holder may be determined to be a Preferential Payment.
The obligations of the undersigned to the Holders of the 2008 Notes and
to the Trustee pursuant to the 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 the Parent Guarantee and all of the other
provisions of the Indenture to which this Parent Guarantee relates.
All terms in this Parent Guarantee which are defined in the Indenture
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: .__________, 1998
AMB PROPERTY CORPORATION
By:______________________________________
[Name]
Its:[title]
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SUBSIDIARY GUARANTEE
FOR VALUE RECEIVED, each of the undersigned hereby jointly and
severally, and jointly and severally with the Parent Guarantor pursuant to the
Parent Guarantee of even date, unconditionally guarantees to the Holder of the
accompanying _____% Note Due ________, 2008 (the "2008 Note") issued by AMB
Property, L.P. (the "Operating Partnership") under an Indenture dated as of
_________, 1998 (together with the First Supplemental Indenture thereto, the
"Indenture") among the Operating Partnership, AMB Property Corporation, certain
of the Operating Partnership's subsidiaries and __________, as trustee (the
"Trustee"), (a) the full and prompt payment of the principal of and premium, if
any, on such 2008 Note 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 2008 Note when and as the
same shall become due and payable, according to the terms of such 2008 Note and
of the Indenture. Each of the undersigned hereby agrees, jointly and severally,
and jointly and severally with the Parent Guarantor, 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 2008
Notes; (c) the acceleration, extension or any other changes in the time for
payment of any principal of or interest or any premium on any 2008 Note 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 2008 Notes; (d) the modification or amendment (whether material or
otherwise) of any obligation, covenant or agreement set forth in the Indenture
or the 2008 Notes; (e) the taking or the omission of any of the actions referred
to in the Indenture and in any of the actions under the 2008 Notes; (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 2008 Notes; (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
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 forth in the Indenture or the 2008 Notes; (k) the
invalidity, irregularity or unenforceability of the Indenture or the 2008 Notes
or any part of any thereof; (l) any judicial or governmental action affecting
the Operating Partnership or any 2008 Notes 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
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constitute a legal or equitable discharge of a surety or guarantor. Each of the
undersigned hereby waive 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 2008 Note 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 2008 Note.
THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the 2008 Note 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 Subsidiary Guarantee shall not be affected by the fact that it is not
affixed to any particular 2008 Note.
An Event of Default under the Indenture or the 2008 Notes shall
constitute an event of default under this Subsidiary Guarantee, and shall
entitle the Holders of 2008 Notes 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 Operating Partnership that arise
from the existence or performance of its obligations under this Subsidiary
Guarantee or any other agreement (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 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. Each
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 such contribution rights. If, notwithstanding the foregoing
provisions, any amount shall be paid to any of 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
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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 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, 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 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 Holder's 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 Operating Partnership or the
undersigned to Holder may be determined to be a Preferential Payment.
Each of the undersigned's liability (an undersigned's "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 this
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 2008 Notes and
to the Trustee pursuant to the Subsidiary 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 the Subsidiary Guarantee and all of
the other provisions of the Indenture to which this Subsidiary Guarantee
relates.
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All terms in this Subsidiary Guarantee which are defined in the
Indenture 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: .__________, 1998
AMB PROPERTY II, L.P.
LONG GATE LLC.
AMB PROPERTY CORPORATION, as general
partner and manager
By:______________________________________
[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 Note and all rights thereunder, hereby irrevocably constituting and
appointing
______________________________________________________________________ Attorney
to transfer said Note 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 Note in every particular, without
alteration or enlargement or any change whatever.
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[FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL NOTE
TO REFLECT CHANGES IN PRINCIPAL AMOUNT]
Schedule A
Changes to Principal Amount of Global Note
========================================================================================
Principal Amount of Notes
by which this Global Note
is to be Reduced or
Increased, and Reason for Remaining Principal Amount Notation
Date Reduction or Increase of this Global Notes Made by
------------ ------------------------- -------------------------- ----------
------------ ------------------------- -------------------------- ----------
------------ ------------------------- -------------------------- ----------
------------ ------------------------- -------------------------- ----------
------------ ------------------------- -------------------------- ----------
------------ ------------------------- -------------------------- ----------
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========================================================================================
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