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EXHIBIT 4.3
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of June ___, 1998 (this "Second
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 notes evidencing its unsecured indebtedness;
WHEREAS, pursuant to Board Resolution, the Operating Partnership has
authorized the issuance of $________ of its ______% Notes due June ___, 2018
(the "2018 Notes");
WHEREAS, the Operating Partnership desires to establish the terms of the
2018 Notes in accordance with Section 301 of the Indenture and to establish the
form of the 2018 Notes in accordance with Section 201 of the Indenture.
ARTICLE 1
TERMS
SECTION 101. TERMS OF SECURITIES. The following terms relating to the
2018 Notes are hereby established:
(1) The 2018 Notes shall constitute a series of Securities having the
title "______% Notes due June ___, 2018."
(2) The aggregate principal amount of the 2018 Notes that may be
authenticated and delivered under the Indenture (except for 2018 Notes
authenticated and delivered upon registration of transfer of, or exchange for,
or in lieu of, other 2018 Notes pursuant to Sections 304, 305, 306, 906, or 1107
of the Indenture) shall be up to $__________. All 2018 Notes must be issued at
the same time (except for 2018 Notes authenticated and delivered upon
registration of transfer of, or exchange for, or in lieu of, other 2018 Notes
pursuant to Sections 304, 305, 306, 906, or 1107 of the Indenture). Without the
consent of the Holders, the 2018 Notes may not be reopened for the issuance of
additional 2018 Notes after the date hereof.
(3) The entire outstanding principal of the 2018 Notes will mature on
June ___, 2018 (the "Stated Maturity Date").
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(4) The rate at which the 2018 Notes shall bear interest shall be ___%
per annum; the date from which interest shall accrue shall be June ___, 1998;
the Interest Payment Dates for the 2018 Notes on which interest will be payable
shall be June ___ and December ___ in each year, beginning December ___, 1998;
the Regular Record Dates for the interest payable on the 2018 Notes on any
Interest Payment Date shall be the 15th calendar day preceding the applicable
Interest Payment Date.
(5) The Place of Payment where the principal of and interest on the 2018
Notes shall be payable and 2018 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 2018 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 2018 Notes shall not be redeemable at the option of any Holder
thereof, upon the occurrence of any particular circumstances or otherwise. The
2008 Notes shall be redeemable at the option of the Operating Partnership as
provided in Article XI of the Indenture.
(7) The Trustee shall also be the Security Registrar and Paying Agent
for the 2018 Notes.
(8) The Holders of the 2018 Notes shall have no special rights in
addition to those provided in the Indenture upon the occurrence of any
particular events.
(9) The 2018 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 2018 Note shall be payable only to the Person in
whose name that 2018 Note is registered at the close of business on the Regular
Record Date for such interest payment.
(11) The 2018 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 2018 NOTE. The form of the 2018 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
Indenture is attached hereto as Exhibit B.
ARTICLE II
MISCELLANEOUS
SECTION 201. DEFINITIONS. Capitalized terms used but not defined in this
Second Supplemental Indenture shall have the meanings ascribed thereto in the
Indenture.
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SECTION 202. CONFIRMATION OF INDENTURE. The Indenture, as heretofore
supplemented and amended by this Second Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture, this Second 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 Second 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 Second Supplemental Indenture, the
Indenture and the 2018 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 Second
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 Second 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 Second
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 2018 Note
[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: $___________
AMB PROPERTY, L.P.
______% Notes due 2018
AMB Property, L.P., a Delaware limited partnership (hereinafter called
the "Operating Partnership", which term includes any successor under the
Indenture referred to below), for value received, hereby promises to pay to
__________, or registered assigns, [the principal sum of ____________ DOLLARS
($_____________)][the principal amount then shown on Schedule A hereto] on June
___ 2018, and to pay interest thereon from June __, 1998 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 ___, and
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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 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
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 Note (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 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 ___,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 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 $___________.
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.
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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.
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 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.
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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]
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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 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 _____% Note Due June ___, 2018 (the "2018 Note") issued by AMB
Property, L.P. (the "Operating Partnership") under an Indenture dated as of June
___, 1998 (together with the Second 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 2018 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 2018 Note when and as the
same shall become due and payable, according to the terms of such 2018 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 2018 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 2018 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 2018 Notes; (d) the
modification or amendment (whether material or otherwise) of any obligation,
covenant or agreement set forth in the Indenture or the 2018 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 2018 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 2018
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 2018 Notes; (k) the invalidity, irregularity or
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unenforceability of the Indenture or the 2018 Notes or any part of any thereof;
(l) any judicial or governmental action affecting the Operating Partnership or
any 2018 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 2018 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 2018 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 2018 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 2018 Note.
An Event of Default under the Indenture or the 2018 Notes shall
constitute an event of default under this Parent Guarantee, and shall entitle
the Holders of 2018 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
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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 2018 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 2018 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.
IN WITNESS WHEREOF, the undersigned has caused this Parent Guarantee to
be duly executed.
Dated: __________, 1998
AMB PROPERTY CORPORATION
By:
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[Name]
Its:[title]
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
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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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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 Under Uniform Gifts to Minors
of 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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[FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY
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, and
Reason for Remaining Principal Amount of Notation
Date Reduction or Increase this Global Securities Made by
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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 _____% Note Due June ___, 2018 (the
"2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an
Indenture dated as of June ___, 1998 (together with the Second 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 2018 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 2018 Note when and as the same shall become due and payable, according to
the terms of such 2018 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 2018 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 2018 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 2018 Notes; (d) the
modification or amendment (whether material or otherwise) of any obligation,
covenant or agreement set forth in the Indenture or the 2018 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 2018 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 2018
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
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Indenture or the 2018 Notes; (k) the invalidity, irregularity or
unenforceability of the Indenture or the 2018 Notes or any part of any thereof;
(l) any judicial or governmental action affecting the Operating Partnership or
any 2018 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 Subsidiary Guarantee will not be discharged except by complete performance
of the obligations contained in such 2018 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 2018 Note.
THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE 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 2018 Note.
An Event of Default under the Indenture or the 2018 Notes shall
constitute an event of default under this Subsidiary Guarantee, and shall
entitle the Holders of 2018 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 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,
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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 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 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 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 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 2018 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
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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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