ELEVENTH SUPPLEMENTAL INDENTURE
Exhibit 4.1
ELEVENTH SUPPLEMENTAL INDENTURE
ELEVENTH SUPPLEMENTAL INDENTURE, dated as of November 12, 2010 (this “Eleventh Supplemental
Indenture”), by and among AMB PROPERTY, L.P., a Delaware limited partnership (the “Operating
Partnership”), AMB PROPERTY CORPORATION, a Maryland corporation and the sole general partner of the
Operating Partnership (the “Parent Guarantor”), and U.S. BANK NATIONAL ASSOCIATION, a national
association organized and existing under the laws of the United States of America, as
successor-in-interest to State Street Bank and Trust Company of California, N.A. (the “Predecessor
Trustee”), as trustee hereunder (the “Trustee”).
WITNESSETH:
WHEREAS, reference is hereby made to the Indenture dated as of June 30, 1998, by and among the
Operating Partnership, the Parent Guarantor and the Predecessor Trustee (the “Base Indenture”), as
supplemented by that certain First Supplemental Indenture dated as of June 30, 1998, by and among
the Operating Partnership, the Parent Guarantor and the Predecessor Trustee, that certain Second
Supplemental Indenture dated as of June 30, 1998, by and among the Operating Partnership, the
Parent Guarantor and the Predecessor Trustee, that certain Third Supplemental Indenture dated as of
June 30, 1998, by and among the Operating Partnership, the Parent Guarantor and the Predecessor
Trustee, that certain Fourth Supplemental Indenture dated as of August 15, 2000, by and among the
Operating Partnership, the Parent Guarantor and the Predecessor Trustee, that certain Fifth
Supplemental Indenture dated as of May 7, 2002, by and among the Operating Partnership, the Parent
Guarantor and the Trustee , that certain Sixth Supplemental Indenture dated as of July 11, 2005, by
and among the Operating Partnership, the Parent Guarantor and the Trustee, that certain Seventh
Supplemental Indenture dated August 10, 2006, by and among the Operating Partnership, the Parent
Guarantor and the Trustee, that certain Eighth Supplemental Indenture dated November 20, 2009, by
and among the Operating Partnership, the Parent Guarantor and the Trustee, that certain Ninth
Supplemental Indenture dated November 20, 2009, by and among the Operating Partnership, the Parent
Guarantor and the Trustee and that certain Tenth Supplemental Indenture dated August 9, 2010, by
and among the Operating Partnership, the Parent Guarantor and the Trustee (as so supplemented, and
as supplemented by this Eleventh Supplemental Indenture, together, the “Indenture”).
WHEREAS, pursuant to a Board Resolution or authority granted thereby, the Operating
Partnership has authorized the issuance of $175,000,000 in aggregate principal amount of its 4.00%
Notes due 2018 as a new series of Securities under the Indenture (the “Notes”).
WHEREAS, the Operating Partnership desires to establish the terms of the Notes in accordance
with Section 301 of the Base Indenture and to establish the form of the Notes in accordance with
Section 201 of the Base Indenture.
WHEREAS, all things necessary to make this Eleventh Supplemental Indenture a valid agreement
of the Operating Partnership and the Parent Guarantor in accordance with the terms of the Base
Indenture have been done.
NOW THEREFORE, the Operating Partnership and the Trustee hereby deliver this Eleventh
Supplemental Indenture as follows:
ARTICLE I.
TERMS
TERMS
SECTION 101. TERMS OF SECURITIES. There is hereby established and authorized for issuance by
the Operating Partnership a series of Securities (as defined in the Base Indenture), the terms of
which shall be as follows:
(1) The Notes shall constitute a series of Securities having the title “4.00% Notes due 2018.”
(2) The aggregate principal amount of the Notes that may be authenticated and delivered under
the Indenture (except for Notes authenticated and delivered upon registration of transfer of or in
exchange for or in lieu of other Notes pursuant to Section 304, 305, 306, 906 or 1107 of the Base
Indenture) shall be $175,000,000. The Operating Partnership may issue additional Notes from time to
time after the date hereof, and such additional Notes will be treated as a single class with the
previously issued Notes for all purposes under the Indenture.
(3) The entire outstanding principal of the Notes will mature on January 15, 2018 (the “Stated
Maturity Date”).
(4) The rate at which the Notes shall bear interest shall be 4.00% per annum; the date from
which interest shall accrue shall be November 12, 2010; the Interest Payment Dates for the Notes on
which interest will be payable shall be January 15 and July 15 in each year, beginning July 15,
2011; the Regular Record Dates for the interest payable on the Notes on any Interest Payment Date
shall be January 1 or July 1 (whether or not a Business Day), as the
case may be, immediately preceding such Interest Payment Date.
(5) The Place of Payment where the principal of and interest on the Notes shall be payable and
Notes may be surrendered for the registration of transfer or exchange shall be at U.S. Bank
National Association, Corporate Trust Services, 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000. The place where notices or demands to or upon the Operating Partnership
in respect of the Notes and the Indenture may be served shall be U.S. Bank National Association,
Corporate Trust Services, 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000.
(6) The Notes shall not be redeemable at the option of any Holder thereof, upon the occurrence
of any particular circumstances or otherwise. The Notes shall be redeemable at the option of the
Operating Partnership as provided in Article XI of the Base Indenture, except that the redemption
price shall be equal to (A)(x) if the Notes are redeemed prior to the date that is 90 days prior to
the Stated Maturity Date, the greater of (i) 100% of the principal amount of the Notes to be
redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal of
the Notes to be redeemed and interest thereon (exclusive of interest accrued to such redemption
date) discounted to such redemption date on a semiannual basis (assuming a 360-day year consisting
of twelve 30-day months) at the Treasury Rate plus 35 basis points, or (y) if the Notes are
redeemed on or after 90 days prior to the Stated Maturity Date, 100% of the principal amount of the
Notes to be redeemed, plus (B) in each case accrued and unpaid interest on the principal amount
being redeemed to such redemption date; provided that installments of interest on the Notes
which are due and payable on an interest payment date falling on or prior to the relevant
redemption date shall be payable to the holders of such of the Notes registered at the close of
business on the relevant record date according to their terms and the provisions of the Indenture.
(7) The Trustee shall also be the Security Registrar and Paying Agent for the Notes.
(8) The Holders of the Notes shall have no special rights in addition to those provided in the
Indenture upon the occurrence of any particular events.
2
(9) The Notes shall have no additional Events of Default in addition to the Events of Default
set forth in Article V of the Base Indenture.
(10) Interest on any Note shall be payable only to the Person in whose name that Note is
registered at the close of business on the Regular Record Date for such interest payment.
(11) The Notes shall not be subordinated to any other debt of the Operating Partnership, and
shall constitute senior unsecured obligations of the Operating Partnership.
(12) The Notes will be unconditionally guaranteed on an unsecured basis by the Parent
Guarantor and, if required by Section 1013 of the Base Indenture, the Subsidiary Guarantors.
SECTION 102. FORM OF NOTE. The form of the Note is attached hereto as EXHIBIT A.
SECTION 103. FORM OF SUBSIDIARY GUARANTEE. The form of the Subsidiary Guarantee which shall be
executed if required pursuant to Section 1013 of the Base Indenture is attached hereto as
EXHIBIT B.
SECTION 104. FORM OF GUARANTEES. There are hereby authorized for issuance by the Parent
Guarantor Guarantees (as defined in the Indenture) of the Notes, which Guarantees shall be in the
form of, and shall have the terms set forth in, the specimen of “Parent Guarantee” endorsed on the
specimen Note attached hereto as EXHIBIT A.
ARTICLE II.
MISCELLANEOUS
MISCELLANEOUS
SECTION 201. DEFINITIONS. Capitalized terms used but not defined in this Eleventh Supplemental
Indenture shall have the meanings ascribed thereto in the Indenture, except the following terms
shall have the meanings below:
(1) “Independent Investment Banker” shall mean Xxxxx Fargo Securities, LLC or, if such firm is
unwilling or unable to select the Comparable Treasury Issue (as defined in the Indenture), an
independent investment banking institution of national standing appointed by the Trustee after
consultation with the Operating Partnership.
(2) “Reference Treasury Dealer” shall mean a Primary Treasury Dealer (defined herein) selected
by Xxxxx Fargo Securities, LLC and an additional Reference Treasury Dealer appointed by the Trustee
after consultation with the Operating Partnership and their successors; provided, however, that if
any of the foregoing and their successors shall cease to be a primary U.S. Government securities
dealer in New York City (a “Primary Treasury Dealer”), the Operating Partnership will substitute
therefor another Primary Treasury Dealer.
SECTION 202. EFFECTIVENESS. Upon the execution of this Eleventh Supplemental Indenture, the
Indenture shall be modified in accordance therewith and this Eleventh Supplemental Indenture shall
form a part of the Indenture for all purposes; and every Holder of the Notes theretofore
authenticated and delivered under the Indenture shall be bound thereby.
SECTION 203. CONFIRMATION OF INDENTURE. The Base Indenture, as heretofore supplemented and
amended by this Eleventh Supplemental Indenture, is in all respects ratified and confirmed, and the
Base Indenture, this Eleventh Supplemental Indenture and all indentures supplemental
3
thereto shall be read, taken and construed as one and the same instrument. The First Supplemental
Indenture dated as of June 30, 1998, the Second Supplemental Indenture dated as of June 30, 1998,
the Third Supplemental Indenture dated as of June 30, 1998, the Fourth Supplemental Indenture dated
as of August 15, 2000, the Fifth Supplemental Indenture dated as of May 7, 2002, the Sixth
Supplemental Indenture dated as of July 11, 2005, the Seventh Supplement Indenture dated as of
August 10, 2006, the Eighth Supplemental Indenture dated as of November 20, 2009, the Ninth
Supplemental Indenture dated as of November 20, 2009 and the Tenth Supplemental Indenture dated a
of August 9, 2010, by and among the Operating Partnership, the Parent Guarantor and either the
Predecessor Trustee or the Trustee, shall not be binding on, and shall have no force and effect
with respect to, the Notes (as defined herein).
SECTION 204. CONCERNING THE TRUSTEE. The Trustee assumes no duties, responsibilities or
liabilities by reason of this Eleventh 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. The Trustee shall not be
responsible for or in respect of the validity and sufficiency of this Eleventh Supplemental
Indenture or for or in respect of the recitals contained herein, all of which recitals are made by
the Operating Partnership and Parent Guarantor only.
SECTION 205. GOVERNING LAW. This Eleventh 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 206. SEPARABILITY. In case any provision in this Eleventh 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 207. COUNTERPARTS. This Eleventh 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.
SECTION 208. HEADINGS. The headings used for Articles and Sections herein are for
convenience only and shall not affect the construction hereof.
[Intentionally Left Blank]
4
IN WITNESS WHEREOF, the parties hereto have caused this Eleventh Supplemental Indenture to be duly
executed as of the day and year first above written.
| AMB PROPERTY, L.P. |
||||
| By: | AMB PROPERTY CORPORATION, its sole general partner |
|||
| By: | ||||
| Name: | ||||
| Title: | ||||
| AMB PROPERTY CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| U.S. BANK NATIONAL ASSOCIATION, as Trustee |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
EXHIBIT A
Form of Note
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.
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.: 00163M AM6
|
Principal Amount: $175,000,000 |
AMB PROPERTY, L.P.
4.00% Notes due 2018
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 CEDE & CO., or registered assigns, the principal sum of ONE HUNDRED
SEVENTY-FIVE MILLION DOLLARS ($175,000,000) on January 15, 2018, and to pay interest thereon from
November 12, 2010 or from the most recent date to which interest has been paid or duly provided
for, semiannually on January 15 and July 15 of each year (each, an “Interest Payment Date”),
commencing July 15, 2011, and at Maturity, at the rate of 4.00% 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 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 Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be January 1 or July 1
(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 Note (or one or more
A-1
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 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 Security 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 Securities of the Operating Partnership (herein
called the “Notes”) issued and to be issued under an Indenture dated as of June 30, 1998 (herein
called, together with all indentures supplemental thereto, the “Indenture”) among, the Operating
Partnership, AMB Property Corporation and U.S. Bank National Association, as successor-in-interest
to 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 Securities of the series designated on the
face hereof, limited in aggregate principal amount to $175,000,000.
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 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.
A-2
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of
this Note may be registered on the Security 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
Security 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 thereof. 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 Securities,
and satisfies certain other conditions, all as more fully provided in the Indenture.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
Capitalized terms used in this Note 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 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]
A-3
IN WITNESS WHEREOF, the Operating Partnership has caused this instrument to be duly executed.
Dated: November 12, 2010
| AMB PROPERTY, L.P. |
||||
| By: | AMB PROPERTY CORPORATION, its sole general partner |
|||
| By: | ||||
| Name: | ||||
| Title: | ||||
| TRUSTEE’S CERTIFICATE OF AUTHENTICATION This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. U.S. BANK NATIONAL ASSOCIATION, as Trustee |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
A-4
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 4.00% Note due 2018 (the
“Note”) issued by AMB Property, L.P. (the “Operating Partnership”) under an Indenture dated as of
June 30, 1998 (together with the First Supplemental Indenture thereto, the Second Supplemental
Indenture thereto, the Third Supplemental Indenture thereto, the Fourth Supplemental Indenture
thereto, the Fifth Supplemental Indenture thereto, the Sixth Supplemental Indenture thereto, the
Seventh Supplemental Indenture thereto, the Eighth Supplemental Indenture thereto, the Ninth
Supplemental Indenture thereto, the Tenth Supplemental Indenture thereto and the Eleventh
Supplemental Indenture thereto, the “Indenture”) among the Operating Partnership, AMB Property
Corporation, and U.S. Bank National Association, as successor-in-interest to State Street Bank and
Trust Company of California, N.A., as trustee hereunder (the “Trustee”), (a) the full and prompt
payment of the principal of and premium, if any, on such 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 Note when and as the same shall become due and
payable, according to the terms of such 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, 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 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 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 Notes; (d) the modification or
amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the
Indenture or the 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 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 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 Notes; (k) the
invalidity, irregularity or unenforceability of the Indenture or the Notes or any part of any
thereof; (l) any judicial or governmental action affecting the Operating Partnership or any Notes
or consent or indulgence granted to 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
A-5
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 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 Note.
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 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
Note.
An Event of Default under the Indenture or the Notes shall constitute an event of default under
this Parent Guarantee, and shall entitle the Holders of 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 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 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
A-6
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 Notes 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.
A-7
IN WITNESS WHEREOF, the undersigned has caused this Parent Guarantee to be duly executed.
Dated: November 12, 2010
| AMB PROPERTY CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
A-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto:
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE: |
||
this Note and all rights thereunder, hereby irrevocably constituting and appointing:
Attorney, to transfer this Note on the books of the Trustee, with full power of substitution in the
premises.
Dated: |
||||||
| Notice: | The signature(s) on this Assignment must correspond with the name(s) as written upon the face of this Note in every particular, without alteration or enlargement or any change whatsoever. |
A-9
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 | ||||||
| (Cust) | (Minor) |
TEN ENT—as tenants by the entireties
|
Under Uniform Gifts to Minors Act | |||
| (State) |
JT TEN—as joint tenants with right of survivorship
and not as tenants in common
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
A-10
[FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY
TO REFLECT CHANGES IN PRINCIPAL AMOUNT]
TO REFLECT CHANGES IN PRINCIPAL AMOUNT]
Schedule A
Changes to Principal Amount of Global Security
| Principal Amount of Securities by which this | ||||||||||||
| Global Security is to be Reduced or Increased, | Remaining Principal Amount | Notation | ||||||||||
| Date | and Reason for Reduction or Increase | of this Global Security | Made by | |||||||||
A-11
Exhibit B
SUBSIDIARY GUARANTEE
FOR VALUE RECEIVED, 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 4.00% Note due 2018 (the
“Note”) issued by AMB Property, L.P. (the “Operating Partnership”) under an Indenture dated as of
June 30, 1998 (together with the First Supplemental Indenture thereto, the Second Supplemental
Indenture thereto, the Third Supplemental Indenture thereto, the Fourth Supplemental Indenture
thereto, the Fifth Supplemental Indenture thereto, the Sixth Supplemental Indenture thereto, the
Seventh Supplemental Indenture thereto, the Eighth Supplemental Indenture thereto, the Ninth
Supplemental Indenture thereto, the Tenth Supplemental Indenture thereto and the Eleventh
Supplemental Indenture thereto, the “Indenture”) among the Operating Partnership, AMB Property
Corporation, and U.S. Bank National Association, as successor-in-interest to State Street Bank and
Trust Company of California, N.A., as trustee hereunder (the “Trustee”), (a) the full and prompt
payment of the principal of and premium, if any, on such 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 Note when and as the same shall become due and
payable, according to the terms of such Note 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 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 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 Notes; (d) the modification or
amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the
Indenture or the 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 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 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 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 forth in the Indenture or the Notes; (k)
the invalidity, irregularity or unenforceability of the Indenture or the Notes or any part of any
thereof; (l) any judicial or governmental action affecting the Operating Partnership or any Notes
or consent or indulgence granted to 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,
B-1
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 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 Note.
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 Note.
An Event of Default under the Indenture or the Notes shall constitute an event of default under
this Subsidiary Guarantee, and shall entitle the Holders of 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, 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 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. 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 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 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 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
B-2
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 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 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.
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: | ||||
B-3
