Exhibit 1.1
AMB PROPERTY, L.P.
4.00% Notes due 2018
Unconditionally Guaranteed by AMB Property Corporation
UNDERWRITING AGREEMENT
November 9, 2010
Wells Fargo Securities, LLC
J.P. Morgan Securities LLC
Morgan Stanley & Co. Incorporated
Merrill Lynch, Pierce, Fenner & Smith Incorporated
As the representatives of the several underwriters
named in
Schedule I
hereto
c/o Wells Fargo Securities, LLC
301
S. College Street
Charlotte,
NC 28288
J.P. Morgan Securities LLC
383
Madison Avenue
New
York, New York 10179
Morgan Stanley & Co. Incorporated
1585
Broadway
New
York, New York 10036
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
One
Bryant Park
New
York, New York 10036
Dear Sirs and Mesdames:
AMB Property, L.P., a Delaware limited partnership (the “
Operating Partnership
”), proposes to
issue and sell to the several underwriters named in
Schedule I
hereto (each, an
“
Underwriter
,” and, collectively, the “
Underwriters
”) $175,000,000 aggregate principal amount of
its 4.00% notes due 2018 (the “
Notes
”), to be issued under the Indenture, dated as of June 30, 1998
(the “
Indenture
”), by and among the Operating Partnership, AMB Property Corporation, a Maryland
corporation (the “
REIT
”), and U.S. Bank, National Association, as trustee (the “
Trustee
”), and the
Eleventh Supplemental Indenture, to be dated November 12, 2010 (the “
Supplemental Indenture
”), by
and among the Operating Partnership, the REIT and the Trustee. The Notes will be fully and
unconditionally guaranteed (the “
Guarantees
” and, with the Notes, the “
Securities
”) by the REIT
pursuant to the Indenture and the Supplemental Indenture. Wells Fargo Securities, LLC, J.P. Morgan
Securities LLC, Morgan Stanley & Co. Incorporated and Merrill Lynch, Pierce, Fenner & Smith
Incorporated have agreed to act as the representatives of the several Underwriters (in such
capacity, the “
Representatives
”) in connection with the offering and sale of the Securities. As
used herein, the “
Company
” shall include the REIT, the Operating Partnership, and each of the
subsidiaries of the REIT or the
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Operating Partnership which is a significant subsidiary as defined in Rule 405 of Regulation C
of the Securities Act of 1933, as amended (together with the rules and regulations of the
Commission thereunder, the “
Securities Act
”) (each, a “
Subsidiary
,” and, collectively, the
“
Subsidiaries
”).
The REIT and the Operating Partnership have prepared and filed with the Securities and
Exchange Commission (the “
Commission
”) under the Securities Act an “automatic shelf registration
statement,” as defined under Rule 405 under the Securities Act, on Form S-3 (Registration No.
333-161347), including a prospectus, relating to the Securities. Such registration statement,
including the exhibits thereto, as amended (or deemed to have been amended pursuant to Rules 430A,
430B or 430C under the Securities Act) from time to time, is hereinafter referred to as the
“
Registration Statement
.” The prospectus in the form in which it appears in the Registration
Statement, including the documents, if any, incorporated by reference therein, is hereinafter
referred to as the “
Basic Prospectus.
” The REIT and the Operating Partnership filed on November 9,
2010 with the Commission pursuant to Rule 424(b) under the Securities Act a preliminary prospectus
supplement to the Basic Prospectus relating to the Securities (the “
Preliminary Prospectus
Supplement
”) and propose to file with the Commission pursuant to Rule 424(b) under the Securities
Act a final prospectus supplement to the Basic Prospectus relating to the Securities and in the
form first used (or made available upon the request of the purchasers pursuant to Rule 173 of the
Securities Act) in connection with the confirmation of sales (the “
Prospectus Supplement
”). The
term “
Prospectus
” means the Basic Prospectus together with the Preliminary Prospectus Supplement
and the Prospectus Supplement and the documents, if any, incorporated by reference therein. The
terms “
supplement
”, “
amendment
” and “
amend
” as used herein with respect to the Basic Prospectus,
the Preliminary Prospectus Supplement, the Prospectus Supplement and the Prospectus shall include
all documents incorporated by reference, or deemed to be incorporated by reference, therein that
are filed subsequent to the date of the Basic Prospectus by the REIT or the Operating Partnership
with the Commission pursuant to the Securities Exchange Act of 1934, as amended (together with the
rules and regulations of the Commission thereunder, the “
Exchange Act
”) or the Securities Act.
As used herein, the term “
General Disclosure Package
” means (i) the Basic Prospectus and the
Preliminary Prospectus Supplement immediately prior to the Applicable Time (as defined below),
including any document incorporated by reference, or deemed to be incorporated by reference,
therein, or any amendment or supplement thereto and (ii) a pricing term sheet in the form attached
hereto as
Exhibit E
(the “
Pricing Term Sheet
”). As used herein, the term “
Issuer
Represented Free Writing Prospectus
” means any “issuer free writing prospectus” as defined in Rule
433 of the Securities Act relating to the Securities, including without limitation any Permitted
Free Writing Prospectus. As used herein, the term “
Applicable Time
” means at or immediately prior
to the time when sales of the Securities were first made. As used herein, the term “
Subsequent
8-Ks
” means any current report on Form 8-K filed by the Company with the Commission after the date
hereof and on or prior to the Closing Date.
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1.
Representations and Warranties
.
The REIT and Operating Partnership, jointly and
severally, represent and warrant to and agree with each of the Underwriters as of the date hereof,
at the Applicable Time and on the Closing Date (as defined in Section 5 below) that:
(a) The Registration Statement has become effective; the Registration Statement is an
“automatic effective registration statement” as defined under Rule 405 of the Securities Act
that has been filed with the Commission not earlier than three years prior to the date
hereof; and no notice of objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Securities Act has been received by the REIT or the Operating Partnership; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no proceedings
for such purpose or pursuant to Section 8A of the Securities Act are pending before or, to
the knowledge of the REIT or the Operating Partnership, threatened by the Commission.
Neither the REIT nor the Operating Partnership is an ineligible issuer, and each of the REIT
and the Operating Partnership is a well-known seasoned issuer, in each case, as defined
under the Securities Act, in each case, at the times specified in the Securities Act in
connection with the offering of the Securities. The REIT and the Operating Partnership have
paid the registration fee for this offering pursuant to Rule 456(b)(1) under the Securities
Act or will pay such fees within the time period required by such rule (without giving
effect to the proviso therein) and in any event prior to the Closing Date.
(b) Except for statements in such documents which do not constitute part of the
Registration Statement or the Prospectus or the General Disclosure Package pursuant to Rule
412 of Regulation C under the Securities Act, (i) each document filed pursuant to the
Exchange Act or the Securities Act and incorporated by reference or deemed to be
incorporated by reference in the Prospectus complied when filed or will comply when so filed
in all material respects with the Exchange Act or the Securities Act, as the case may be,
and the applicable rules and regulations of the Commission thereunder, (ii) each part of the
Registration Statement, when such part became or becomes effective, did not contain any
untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (iii) each part of the
Registration Statement, when such part became or becomes effective, and the Prospectus, when
originally filed, complied and, as amended or supplemented, will comply in all material
respects with the Securities Act and the applicable rules and regulations of the Commission
thereunder, (iv) the Prospectus, on the date of filing with the Commission, did not contain
and, as amended or supplemented at each of the Applicable Time and the Closing Date, will
not contain, any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading, and (v) each of the General Disclosure Package and any Issuer
Represented Free Writing Prospectus (when considered together with the General Disclosure
Package), at the Applicable Time did not, and at the Closing Date will not, contain any
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made, not
misleading. Each of the Subsequent 8-Ks, at the Applicable Time did not, and at the Closing
Date will not, contain any untrue statement of a material fact or omit to state a material
fact necessary to make the
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statements therein, in light of the circumstances under with they were made, not
misleading. The representations and warranties set forth in this Section 1(b) do not apply
to statements in or omissions from the Registration Statement, the Permitted Free Writing
Prospectus or the Prospectus, or any amendment or supplement thereto, based upon and in
conformity with information relating to any Underwriter furnished to the REIT and the
Operating Partnership in writing by any Underwriter expressly for use in the Registration
Statement, the Permitted Free Writing Prospectus or the Prospectus, which information is
limited to the information set forth in
Exhibit A
hereto.
(c) The REIT has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Maryland, and has all power and authority
necessary to own, lease and operate its properties and to conduct the businesses in which it
is engaged or proposes to engage as described in the Prospectus and the General Disclosure
Package and to enter into and perform its obligations under this Agreement, the Indenture,
the Supplemental Indenture and the Guarantees. The REIT is duly qualified or registered as
a foreign corporation and is in good standing in California and is in good standing in each
other jurisdiction in which such qualification or registration is required, whether by
reason of the ownership or leasing of property or the conduct of business, except where the
failure so to qualify or be registered or to be in good standing in such other jurisdiction
would not result in a material adverse effect on the consolidated financial position,
results of operations or business of the REIT, the Operating Partnership and their
subsidiaries, taken as a whole (a “
Material Adverse Effect
”).
(d) The Operating Partnership is a limited partnership duly formed and existing under
and by virtue of the laws of the State of Delaware and is in good standing under the
Delaware Revised Uniform Limited Partnership Act with partnership power and authority to
own, lease and operate its properties, to conduct the business in which it is engaged or
proposes to engage as described in the Prospectus and the General Disclosure Package and to
enter into and perform its obligations under this Agreement, the Indenture, the Supplemental
Indenture and the Notes. The Operating Partnership is duly qualified or registered as a
foreign partnership and is in good standing in California and is in good standing in each
other jurisdiction in which such qualification or registration is required, whether by
reason of the ownership or leasing of property or the conduct of business, except where the
failure so to qualify or be registered or to be in good standing in such other jurisdiction
would not have Material Adverse Effect. The REIT is the sole general partner of the
Operating Partnership and owns the percentage interest in the Operating Partnership as set
forth or incorporated by reference in the Prospectus and the General Disclosure Package.
(e) Each Subsidiary is, as the case may be, duly incorporated or organized, and is
validly existing as a partnership, corporation or limited liability company in good standing
under the laws of its respective jurisdiction of organization, and has the corporate,
partnership or other power and authority to own its property and to conduct its business as
described in the Prospectus and the General Disclosure Package. Each Subsidiary is duly
qualified to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
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requires such qualification, except to the extent that the failure to be so qualified
or be in good standing would not have a Material Adverse Effect; all of the issued shares of
capital stock or other ownership interests of each Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable and, except as set forth or
incorporated by reference in the Prospectus and the General Disclosure Package, are owned
directly or indirectly by the REIT or the Operating Partnership, free and clear of all
liens, encumbrances, equities or claims.
(f) Each of the joint venture partnerships, limited liability companies or other
entities that is consolidated in the consolidated financial statements of the Company or
that is listed in the REIT’s and the Operating Partnership’s jointly-filed annual report on
Form 10-K (the “
Annual Report
”) for the year ended December 31, 2009 and/or the REIT’s and
the Operating Partnership’s jointly-filed quarterly reports on Form 10-Q (the “
Quarterly
Reports
”) for the three months ended March 31, 2010, June 30, 2010 and September 30, 2010
(collectively, the “
Joint Ventures
”) has been duly formed and is validly existing as a
limited partnership, limited liability company or other entity in good standing under the
laws of its jurisdiction, with power and authority to own, lease and operate its properties
and to conduct the business in which it is engaged, except where the failure to be duly
formed, validly existing or in good standing or where to own, lease and operate its
properties and to conduct its business would not have a Material Adverse Effect. Each Joint
Venture is duly qualified or registered as a foreign limited partnership, limited liability
company or other entity to transact business in each jurisdiction in which such
qualification or registration is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or be registered
would not have a Material Adverse Effect. Except as would not have a Material Adverse
Effect, the REIT, the Operating Partnership or a subsidiary of the REIT or the Operating
Partnership owns the percentage of the partnership or other equity interest in each of the
Joint Ventures as set forth in the Annual Report and/or Quarterly Report, as applicable (the
“
Joint Venture Interests
”), and each of the Joint Venture Interests is validly issued and
fully paid and free and clear of any security interest, mortgage, pledge, lien encumbrance,
claim or equity, except for any security interest, mortgage, pledge, lien, encumbrance,
claim or equity which would not, singly or in the aggregate, have a Material Adverse Effect.
The Company has no other interests in joint venture partnerships, limited liability
companies or other entities in which unrelated third parties have interests which are,
individually or in the aggregate, material to the consolidated financial position, results
of operations or business of the REIT, the Operating Partnership and their subsidiaries,
taken as a whole, other than as set forth in the Annual Report or Quarterly Report or as
reflected in the financial statements and schedules therein.
(g) Each of the REIT and the Operating Partnership has full right, power and authority
to execute and deliver this Agreement and to perform its obligations hereunder; and all
action required to be taken for the due and proper authorization, execution and delivery by
it of this Agreement and the consummation by it of the transactions contemplated hereby has
been duly and validly taken. This Agreement has been duly authorized, executed and
delivered by the REIT and the Operating Partnership.
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(h) Each of the REIT and the Operating Partnership had at the time the Indenture was
entered into, and has, full right, power and authority to execute and deliver the Indenture
and to perform its obligations thereunder; and all action required to be taken for the due
and proper authorization, execution and delivery by it of the Indenture and the consummation
by it of the transactions contemplated thereby has been duly and validly taken.
(i) Each of the REIT and the Operating Partnership has full right, power and authority
to execute and deliver the Supplemental Indenture and to perform its obligations thereunder;
and all action required to be taken for the due and proper authorization, execution and
delivery by it of the Supplemental Indenture and the consummation by it of the transactions
contemplated thereby has been duly and validly taken.
(j) The Indenture is and the Supplemental Indenture, when executed and delivered as
contemplated by this Agreement and the General Disclosure Package, will be a valid and
binding obligation of each of the REIT and the Operating Partnership, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors’ rights generally and general principles of
equity.
(k) The Notes have been duly authorized by the Operating Partnership and, when executed
and authenticated in accordance with the provisions of the Indenture and the Supplemental
Indenture and delivered to and paid for by the Underwriters in accordance with the terms of
this Agreement, will be valid and binding obligations of the Operating Partnership,
enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors’ rights generally and
general principles of equity, and will be entitled to the benefits of the Indenture and
Supplemental Indenture pursuant to which such Notes will be issued.
(l) The Guarantees have been duly authorized by the REIT and, when the Notes are
executed and authenticated in accordance with the provisions of the Indenture and the
Supplemental Indenture and delivered to and paid for by the Underwriters in accordance with
this Agreement, the Guarantees will have been duly executed, issued and delivered and will
be valid and legally binding obligations of the REIT, enforceable in accordance with their
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar
laws affecting creditors’ rights generally and general principles of equity.
(m) The Indenture and the Supplemental Indenture conform, and the Securities conform,
in all material respects, to the descriptions thereof contained in the Prospectus and the
General Disclosure Package.
(n) The REIT has an authorized capitalization as set forth in the Prospectus and the
General Disclosure Package, and the authorized capital stock of the REIT conforms in all
material respects to the description thereof contained in the Prospectus and the General
Disclosure Package. The outstanding shares of capital stock of the REIT
6
described in the Prospectus and the General Disclosure Package have been duly and
validly authorized and issued and are fully paid and non-assessable.
(o) All of the issued and outstanding partnership units of the Operating Partnership
(the “
Units
”) have been duly and validly authorized and issued and conform to the
description thereof contained or incorporated by reference in the Prospectus and the General
Disclosure Package. The Units owned by the REIT are owned directly by the REIT, free and
clear of all liens, encumbrances, equities or claims.
(p) The execution and delivery by the REIT and the Operating Partnership of, and the
performance by each of the REIT and the Operating Partnership of its respective obligations
under, this Agreement, the Indenture, the Supplemental Indenture, the Securities, and the
consummation of the transactions contemplated hereby and thereby, as described in the
Prospectus and the General Disclosure Package, including any potential use of proceeds, will
not (i) conflict with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement,
joint venture agreement, partnership agreement, limited liability company agreement or any
other agreement or instrument to which the Company is a party or by which the Company is
bound or to which any of the property or assets of the Company is subject, except for such
conflicts, breaches or violations which would not, singly or in the aggregate, have a
Material Adverse Effect, (ii) result in any violation of the provisions of the charter,
by-laws, certificate of limited partnership, partnership agreement or other organizational
documents of the REIT, the Operating Partnership, or any Subsidiary, as the case may be, or
(iii) result in any violation of any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company, except where such
noncompliance or violation of any such statute, order, rule or regulation would not, singly
or in the aggregate, have a Material Adverse Effect. No consent, approval, authorization or
order of, or filing or registration with, any such court or governmental agency or body is
required for the execution and delivery by the REIT or the Operating Partnership of, and the
performance by each of the REIT and the Operating Partnership of its respective obligations
under, this Agreement, the Indenture, the Supplemental Indenture, the Securities and the
consummation of the transactions contemplated hereby and thereby, including any potential
use of proceeds, except for (A) the registration of the Securities under the Securities Act
or the rules and regulations thereunder and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Securities Act, the Exchange
Act, or the rules and regulations thereunder, and applicable state and foreign securities
laws in connection with issuance, offer and sale of the Securities, (B) the qualification of
the Indenture and the Supplemental Indenture under the Trust Indenture Act of 1939, as
amended (the “
Trust Indenture Act
”), or the rules and regulations thereunder, and such
consents, approvals, authorizations, registrations or qualifications as may be required
under the Trust Indenture Act, or the rules and regulations thereunder, or (C) consents,
approvals, authorizations, orders, filings or registrations that will be completed on or
prior to the Closing Date.
(q) There are no legal or governmental proceedings pending or, to the knowledge of the
REIT and the Operating Partnership, threatened, to which the Company
7
is a party or to which any of the properties of the Company is subject that are
required to be described in the Registration Statement, the Prospectus or the General
Disclosure Package and are not so described or incorporated by reference, or any statutes,
regulations, contracts or other documents that are required to be described in the
Registration Statement, the Prospectus or the General Disclosure Package or to be filed as
exhibits to the Registration Statement that are not described, incorporated by reference or
filed as required.
(r) The Preliminary Prospectus Supplement and any Issuer Represented Free Writing
Prospectus when so filed with the Commission complied in all material respects with the
Securities Act and the applicable rules and regulations of the Commission thereunder.
(s) The Indenture is duly qualified under and conforms with the requirements of, and,
on the Closing Date, the Indenture and the Supplemental Indenture will be duly qualified
under and will conform with the requirements of, the Trust Indenture Act and the rules and
regulations of the Commission applicable to an indenture that is qualified thereunder.
(t) None of the REIT, the Operating Partnership or any Subsidiary is, and after giving
effect to the offering and sale of the Notes, including the issuance of the Guarantees, and
the application of the proceeds thereof as described in the Prospectus and the General
Disclosure Package, none will be, an “investment company” as such term is defined in the
Investment Company Act of 1940, as amended.
(u) Other than as contemplated by the General Disclosure Package and the Prospectus,
there are no contracts, agreements or understandings between the REIT and/or the Operating
Partnership and any person granting such person the right to require the REIT and/or the
Operating Partnership to file a registration statement under the Securities Act with respect
to any securities of the REIT and/or the Operating Partnership, or to require the REIT
and/or the Operating Partnership to include such securities with the Securities registered
pursuant to the Registration Statement.
(v) There has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise, or in the
earnings, business or operations of the REIT, the Operating Partnership, and their
respective subsidiaries, taken as a whole, from that set forth or incorporated by reference
in the Prospectus and the General Disclosure Package. Subsequent to the respective dates as
of which information is given in the Registration Statement, the Prospectus and the General
Disclosure Package, except as described in or contemplated by the Prospectus or the General
Disclosure Package or a document incorporated therein by reference, (i) the Company has not
incurred any liability or obligation, direct or contingent, nor entered into any transaction
not in the ordinary course of business that is material with respect to the REIT, the
Operating Partnership and their subsidiaries, taken as a whole; (ii) the REIT has not
purchased any of its outstanding capital stock other than pursuant to its stock repurchase
program, nor declared, paid or otherwise made any dividend or distribution of any kind on
its capital stock other than regular quarterly cash dividends; (iii) the Operating
Partnership has not purchased any of its outstanding Units,
8
nor declared, paid or otherwise made any dividend or distribution of any kind on its
Units other than in the normal course of business and (iv) there has not been any change in
the capital stock or increase in the short-term debt or long-term debt that is, in either
case, material with respect to the Company taken as a whole (excluding debt resulting from a
draw down on the credit facilities of the REIT, the Operating Partnership or any of their
subsidiaries).
(w) Except as otherwise disclosed in the General Disclosure Package and the Prospectus,
the REIT, the Operating Partnership and their respective subsidiaries each has good and
marketable title to, or valid and enforceable leasehold estates in, all items of real and
personal property referred to therein as owned or leased by them, in each case free and
clear of all liens, encumbrances, claims, security interests and defects, other than those
referred to therein or which would not materially affect the value thereof or materially
interfere with the use made or to be made by them.
(x) Except as disclosed or incorporated by reference in the General Disclosure Package
and the Prospectus, the REIT and the Operating Partnership each has no knowledge of any of
the following which could have a Material Adverse Effect: (1) the unlawful presence of any
hazardous substances, hazardous materials, toxic substances or waste materials
(collectively, “
Hazardous Materials
”) on any of the properties currently owned by it or any
of its subsidiaries or any of the properties previously owned by it or any of its
subsidiaries for which it retains any liability with respect to Hazardous Materials or (2)
any unlawful spills, releases, discharges or disposal of Hazardous Materials that have
occurred or are presently occurring off such properties as a result of any construction on
or operation and use of such properties. In connection with the construction on or operation
and use of the properties owned by the REIT, the Operating Partnership or any of their
respective subsidiaries, the REIT and the Operating Partnership each represents that it has
no knowledge of any material failure to comply with all applicable local, state and federal
environmental laws, regulations, ordinances and administrative and judicial orders relating
to the generation, recycling, reuse, sale, storage, handling, transport and disposal of any
Hazardous Materials.
(y) The independent auditors of the Company, who have certified certain financial
statements incorporated by reference in the Registration Statement, the Prospectus and the
General Disclosure Package, whose report appears in the Prospectus and the General
Disclosure Package, are independent public accountants as required by the Securities Act and
the rules and regulations of the Commission thereunder during the periods covered by the
financial statements on which they reported contained in the Prospectus and the General
Disclosure Package.
(z) The Company is insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary in the businesses in
which they are engaged; the Company has not been refused any insurance coverage sought or
applied for; and the Company does not have any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business at a cost that
would not have a Material Adverse Effect, except as
9
described in or contemplated by the Prospectus and the General Disclosure Package, or
in a document incorporated by reference therein.
(aa) The Company possesses all certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities necessary to conduct its
businesses, except where the failure to possess such certificates, authorizations and
permits, singly or in the aggregate, would not result in a Material Adverse Effect, and the
Company has not received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect, except as described in or contemplated by the Prospectus and the
General Disclosure Package.
(bb) The Company has filed all Federal, state, and local income tax returns which have
been required to be filed and has paid all taxes required to be paid and any other
assessment, fine or penalty levied against it, to the extent that any of the foregoing is
due and payable, except, in all cases, for any such tax, assessment, fine or penalty that is
being contested in good faith (and except in any case in which the failure to so file or pay
would not have a Material Adverse Effect).
(cc) The financial statements (including the notes thereto) included or incorporated by
reference in the Registration Statement, the Prospectus and the General Disclosure Package
present fairly in all material respects the financial position of the respective entity or
entities presented therein at the respective dates indicated and the results of their
operations for the respective periods specified, and except as otherwise stated or
incorporated by reference in the Registration Statement, the Prospectus and the General
Disclosure Package, said financial statements have been prepared in conformity with
generally accepted accounting principles (“
GAAP
”) applied on a consistent basis. The
supporting schedules included in the Registration Statement present fairly in all material
respects the information required to be stated or incorporated by reference therein. The
financial information and data included in the Registration Statement, the Prospectus and
the General Disclosure Package present fairly in all material respects the information
included therein and have been prepared on a basis consistent with that of the books and
records of the respective entities presented therein. The Company’s ratios of earnings to
fixed charges set forth in the Prospectus under the caption “Ratio of Earnings to Fixed
Charges” and in Exhibit 12 to the Registration Statement have been calculated in compliance
with Item 503(d) of Regulation S-K under the Securities Act. Pro forma financial
information included or incorporated by reference in the Prospectus and the General
Disclosure Package has been prepared in accordance with the applicable requirements of Rules
11-01 and 11-02 of Regulation S-X under the Securities Act, and the necessary pro forma
adjustments have been properly applied to the historical amounts in the compilation of such
information, and, in management’s opinion, the assumptions used in the preparation thereof
are reasonable and the adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(dd) There is and has been no failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such, to comply with any provision
of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in
10
connection therewith, including Section 402 related to loans and Sections 302 and 906
related to certifications.
(ee) The Company maintains an effective system of “disclosure controls and procedures”
(as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that
information required to be disclosed by the Company in reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported within the time
periods specified in the Commission’s rules and forms, including controls and procedures
designed to ensure that such information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding required disclosure and as
required. The Company and its subsidiaries have carried out evaluations of the
effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the
Exchange Act.
(ff) The Company maintains systems of “internal control over financial reporting” (as
defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the
Exchange Act and have been designed by, or under the supervision of, their respective
principal executive and principal financial officers, or persons performing similar
functions, to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with
generally accepted accounting principles, including, but not limited to internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences. Except as disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, there are no material weaknesses in the Company’s internal
controls.
(gg) The Company is currently in compliance with all presently applicable provisions of
the Americans with Disabilities Act, except for such noncompliance which would not, singly
or in the aggregate, have a Material Adverse Effect, and no failure of the Company to comply
with all presently applicable provisions of the Americans with Disabilities Act would have a
Material Adverse Effect.
(hh) The REIT has elected to be taxed as a “real estate investment trust” under the
Internal Revenue Code of 1986, as amended (the “
Code
”), commencing with its taxable year
ended December 31, 1997; the REIT has qualified and expects that it will continue to qualify
as a “real estate investment trust” under the Code beginning with its taxable year ended
December 31, 1997, and will continue to qualify as a “real estate investment trust” under
the Code after consummation of the transactions contemplated by the Prospectus and the
General Disclosure Package; and the REIT’s present and contemplated operations, assets and
income will enable it to meet the requirements for qualification as a “real estate
investment trust” under the Code.
11
(ii) Neither the REIT, the Operating Partnership, nor any Subsidiary, nor any of their
directors, officers or controlling persons, has taken or will take, directly or indirectly,
any action designed to cause or result under the Exchange Act, or otherwise in, or which has
constituted or which reasonably might be expected to constitute, the unlawful stabilization
or manipulation of the price of any security of the REIT to facilitate the sale or resale of
the Securities.
2.
Representations and Warranties Regarding Free Writing Prospectuses
. The Company
represents and agrees that, unless it obtains the prior consent of the Representatives on behalf of
the several Underwriters, and each Underwriter represents and agrees that, unless it obtains the
prior consent of the Company and the Representatives on behalf of other Underwriters, it has not
made and will not make any offer relating to the Securities that would constitute an “issuer free
writing prospectus,” as defined in Rule 433 under the Securities Act, or that would otherwise
constitute a “free writing prospectus,” as defined in Rule 405 under the Securities Act, required
to be filed with the Commission. Any such free writing prospectus consented to by the Company and
the Representatives on behalf of several Underwriters is referred to herein as a “
Permitted Free
Writing Prospectus,
” each of which Permitted Free Writing Prospectus as of the date hereof is
attached as
Exhibit E
. The Company represents that it has treated, and agrees that it will
treat, each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in
Rule 433, and has complied and will comply with the requirements of Rules 164 and 433 applicable to
any Permitted Free Writing Prospectus, including timely filing with the Commission where required,
legending and record keeping. The Company represents that each Issuer Represented Free Writing
Prospectus, if any, as of its issue date and at all subsequent times through the completion of the
public offer and sale of the Securities did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the Registration Statement
or the Prospectus, including any information in the Preliminary Prospectus Supplement or any other
prospectus deemed to be a part of the Prospectus that has not been superseded or modified,
provided
that this representation does not apply to information contained in the Permitted
Free Writing Prospectus based upon and in conformity with information relating to any Underwriter
furnished to the REIT in writing by any Underwriter expressly for use in the Permitted Free Writing
Prospectus, which information is limited to the information set forth in
Exhibit A
hereto.
3.
Agreement to Sell and Purchase
.
The Operating Partnership and the REIT hereby
agree to issue and sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained and upon the terms and subject to the conditions
herein set forth, agrees, severally and not jointly, to purchase from the Operating Partnership and
the REIT, the respective aggregate principal amounts of Securities set forth in
Schedule I
hereto opposite its name. The purchase price of the Securities shall be 98.682% of the principal
amount thereof with respect to the Notes (the “
Purchase Price
”), plus accrued and unpaid interest,
if any, to the Closing Date (as defined below).
During the period commencing on the date hereof and ending on the Closing Date, the Company
will not, without the prior written consent of the Representatives (which consent may be withheld
at the sole discretion of the Representatives), directly or indirectly, sell, offer, contract or
grant any option to sell, pledge, transfer or establish an open “put equivalent position” within
the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of
12
or transfer, or announce the offering of, or file any registration statement under the
Securities Act in respect of, any debt securities of the Company similar to any of the Securities
or securities exchangeable for or convertible into debt securities similar to any of the Securities
(other than as contemplated by this Agreement with respect to the Securities).
4.
Terms of Public Offering
. Each of the REIT and the Operating Partnership is
advised by you that the Underwriters propose to make a public offering of their respective portions
of the Securities as soon after this Agreement has become effective as in your judgment is
advisable. Each of the REIT and the Operating Partnership is further advised by you that the Notes
and accompanying Guarantees are to be offered to the public initially at a price equal to 99.307%
of the aggregate principal amount of the Notes (the “
Public Offering Price
”), and to certain
dealers selected by you at a price that represents a concession not in excess of 0.375% of the
aggregate principal amount thereof.
5.
Payment and Delivery
. Payment of the aggregate Purchase Price for the Securities
shall be made to the Operating Partnership in federal or other funds immediately available in New
York City against delivery of such Notes to the Representatives for the respective accounts of the
several Underwriters at 10:00 A.M., New York City time, on the second full business day following
the date of this Agreement, or at such other time on the same or such other date as shall be agreed
to in writing by the REIT, the Operating Partnership and the Representatives. The time and date of
such payment are hereinafter referred to as the “
Closing Date
.”
The Company will deliver the Securities to the Representatives for the respective accounts of
the Underwriters in book-entry form through the facilities of the Depository Trust Company on the
Closing Date, with any transfer taxes payable in connection with the transfer of the Securities to
the Underwriters duly paid, against payment of the Purchase Price therefor.
6.
Conditions to the Underwriters’ Obligations
.
The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and warranties on the
part of the REIT and the Operating Partnership herein, to the accuracy of the statements of the
Company’s officers made in each certificate furnished pursuant to the provisions hereof and to the
performance and observance by the Company of all covenants and agreements herein contained on its
part to be performed and observed and to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the
Applicable Time and the Closing Date, as the case may be:
(i) there shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the earnings,
business or operations of the REIT, the Operating Partnership and their
subsidiaries, taken as a whole, from that set forth in the Prospectus and the
General Disclosure Package (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to market the Securities
on the terms and in the manner contemplated in the Prospectus and the General
Disclosure Package; and
13
(ii) there shall not have occurred any downgrading, nor shall any notice have
been given of any intended or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible change, in the rating
accorded the REIT, the Operating Partnership, any of their subsidiaries, any of
their respective securities or in the rating outlook for any of them by any
“nationally recognized statistical rating organization,” as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the
Closing Date, and signed by an executive officer of the REIT on behalf of the REIT and in
the REIT’s capacity as general partner of the Operating Partnership, to the effect set forth
in subsection (a) and subsection (c) of this Section 6, and to the effect that:
(i) the representations and warranties of the REIT and the Operating Partnership
contained in this Agreement are true and correct at the Applicable Time and on the Closing
Date, as if made at the Applicable Time and on the Closing Date; and
(ii) all of the covenants and agreements contained herein to be performed on the part
of the Company and all conditions contained herein to be fulfilled or complied with by the
Company at or prior to the Applicable Time or the Closing Date, as the case may be, shall
have been duly performed, fulfilled or complied with in all material respects at or prior to
the time such performance, fulfillment or compliance was required.
The officer signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Prospectus and any Issuer Represented Free Writing Prospectus required to be
filed shall have been filed with the Commission as required by the Securities Act and/or
this Agreement and no stop order suspending the effectiveness of the Registration Statement
or any order preventing or suspending the use of the Prospectus or the General Disclosure
Package shall have been issued and no proceedings for that purpose, pursuant to Rule
401(g)(2) or pursuant to Section 8A under the Securities Act, shall be pending or threatened
by the Commission.
(d) The Underwriters shall have received on the Closing Date (i) an opinion or opinions
of Latham & Watkins LLP, special counsel for the REIT and the Operating Partnership, dated
the Closing Date, in form and substance satisfactory to the Underwriters, as to the matters
set forth in
Exhibit B-1
attached hereto, (ii) an opinion or opinions of Latham &
Watkins LLP, special tax counsel for the REIT and the Operating Partnership, dated the
Closing Date, in form and substance satisfactory to the Underwriters, as to the matters set
forth in
Exhibit B-2
attached hereto, and (iii) a letter of Latham & Watkins LLP,
special counsel for the REIT and the Operating Partnership, dated the Closing Date, in form
and substance satisfactory to the Underwriters, as to the matters set forth in
Exhibit
B-3
attached hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Tamra D.
Browne, General Counsel to the REIT and the Operating Partnership, dated the
14
Closing Date, in form and substance satisfactory to the Underwriters, as to the matters
set forth in
Exhibit C
attached hereto.
(f) The Underwriters shall have received on the Closing Date an opinion of Ballard
Spahr LLP, Maryland corporate counsel for the REIT, dated the Closing Date, in form and
substance satisfactory to the Underwriters, as to the matters set forth in
Exhibit D
attached hereto.
(g) The Underwriters shall have received on the Closing Date an opinion(s) of Gibson,
Dunn & Crutcher LLP, counsel for the Underwriters, dated the Closing Date, in form and
substance satisfactory to the Underwriters.
(h) The Underwriters shall have received on the date hereof a letter(s) dated the date
hereof, in form and substance reasonably satisfactory to the Underwriters, from
PricewaterhouseCoopers LLP, the Company’s independent registered public accounting firm,
containing statements and information of the type ordinarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the Prospectus. On the
Closing Date, PricewaterhouseCoopers LLP shall have furnished to the Underwriters a letter,
dated the Closing Date, which shall confirm, on the basis of a review in accordance with the
procedures set forth in the letter from PricewaterhouseCoopers LLP, that nothing has come to
their attention during the period from the date of the letter referred to in the prior
sentence to a date (specified in the letter) not more than three days prior to the Closing
Date which would require any change in their letter dated the date hereof if it were
required to be dated and delivered at the Closing Date.
(i) The Underwriters shall have received on the Closing Date a certificate, dated the
Closing Date, and signed by the chief financial officer of the REIT on behalf of the REIT
and in the REIT’s capacity as general partner of the Operating Partnership, covering the
matters set forth in
Exhibit F
attached hereto.
(j) The Securities shall be qualified for sale in such states as the Underwriters may
reasonably request, and each such qualification shall be in effect and not subject to any
stop order or other proceeding at the Applicable Time and on the Closing Date.
(k) At the Applicable Time and on the Closing Date, the Company shall have furnished to
the Underwriters such appropriate further information, certificates and documents as they
may reasonably request.
7.
Covenants of the REIT and the Operating Partnership
. In further consideration of
the agreements of the Underwriters herein contained, the REIT and the Operating Partnership
covenant with each Underwriter as follows:
(a) The Company will advise the Representatives promptly of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration Statement or
an order preventing or suspending the use of the Preliminary Prospectus Supplement, the
Prospectus Supplement, the Prospectus or any Issuer Represented Free
15
Writing Prospectus or of the institution or threatening of any proceedings for that
purpose or pursuant to Section 8A of the Securities Act, and will use their best efforts to
prevent the issuance of any such order and to obtain as soon as possible the lifting
thereof, if issued, and will advise the Representatives promptly of any examination pursuant
to 8(e) of the Securities Act or of the REIT or Operating Partnership becoming the subject
of a proceeding pursuant to 8A of the Securities Act in connection with any offering of the
Securities. The Company will advise the Representatives promptly of the receipt by the
Company of any notice of objection of the Commission to the use of the Registration
Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Securities Act. The REIT and the Operating Partnership will advise the Representatives
promptly of any request by the Commission for any amendment of or supplement to the
Registration Statement or the Prospectus or any Issuer Represented Free Writing Prospectus
or the receipt of any comments from the Commission relating to the Registration Statement or
the Prospectus or any Issuer Represented Free Writing Prospectus or any other request by the
Commission for additional information. Prior to the termination of the offering of the
Securities and at any time during which the Underwriters have a prospectus delivery
requirement under the Commission’s rules and regulations, the Company will not at any time
file any amendment to the Registration Statement or supplement to the Prospectus or any
Issuer Represented Free Writing Prospectus which shall not previously have been submitted to
the Representatives a reasonable time prior to the proposed filing or use thereof or to
which the Representatives shall reasonably object or which is not in compliance with the
Securities Act and the rules and regulations thereunder. The REIT and the Operating
Partnership will cause the Preliminary Prospectus Supplement, the Prospectus Supplement and
any Issuer Represented Free Writing Prospectus to be filed within the required time periods,
and will advise you promptly when the Prospectus has been filed pursuant to Rule 424(b) and
Rule 430A, 430B or 430C under the Securities Act and any Issuer Represented Free Writing
Prospectus has been filed pursuant to Rule 433 under the Securities Act, and will file
promptly all reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a
prospectus is required in connection with the offering or sale of the Securities. The
Company will pay the registration fees for this offering within the time period required by
Rule 456(b)(i) under the Securities Act prior to the Closing Date.
(b) To furnish to you, upon request and without charge, a signed copy of the
Registration Statement as originally filed and each amendment thereto (including exhibits
and consents filed therewith) and for delivery to each other Underwriter a conformed copy of
the Registration Statement as originally filed and each amendment thereto (without exhibits
thereto) and to furnish to you in New York City, without charge, prior to 10:00 A.M. New
York City time on the business day next succeeding the date of this Agreement and during the
period mentioned in Section 7(c) below, as many copies of the General Disclosure Package and
Prospectus and any supplements and amendments thereto or to the Registration Statement as
you may reasonably request. The Company will, pursuant to reasonable procedures developed
in good faith, retain copies of each Issuer Represented Free Writing Prospectus that is not
filed with the Commission in accordance with Rule 433 under the Securities Act.
16
(c) If, at any time prior to the Closing Date or during such period after the first
date of the public offering of the Securities, in the opinion of counsel for the
Underwriters, the Prospectus or the General Disclosure Package is required by law to be
delivered in connection with sales of Notes or Guarantees by an Underwriter or dealer, any
event shall occur or condition exist as a result of which it is necessary to amend or
supplement the General Disclosure Package or the Prospectus in order to ensure that the
General Disclosure Package or the Prospectus do not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading when
the General Disclosure Package or the Prospectus is delivered to a purchaser, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend or supplement the
Prospectus or the General Disclosure Package to comply with applicable law, the Company will
immediately notify the Underwriters and forthwith prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers (whose names and
addresses you will furnish to the REIT and the Operating Partnership) to which Notes or
Guarantees may have been sold by you on behalf of the Underwriters and to any other dealers
upon request, either amendments or supplements to the Prospectus and/or the General
Disclosure Package so that the statements in the Prospectus and the General Disclosure
Package as so amended or supplemented will not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading when the
Prospectus or the General Disclosure Package is delivered to a purchaser, or so that the
Prospectus and the General Disclosure Package, as amended or supplemented, will comply with
law.
(d) To endeavor to qualify the Securities for offer and sale under the securities or
Blue Sky laws and real estate syndication laws of such jurisdictions as you shall reasonably
request. The Company will advise the Representatives promptly of the receipt by the Company
of any notice with respect to any suspension of the qualification of the Securities for
offer and sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and the Company will use its best efforts to prevent the issuance of any such
order suspending any such qualification of the Securities and, if any such order is issued,
will obtain as soon as possible the withdrawal thereof.
(e) To make generally available to the REIT’s and the Operating Partnership’s security
holders and to you as soon as practicable (but no event later than the last day of the
fifteenth full calendar month following the end of the REIT’s and the Operating
Partnership’s current fiscal quarter), an earnings statement covering the twelve-month
period beginning after the date upon which the Prospectus Supplement is filed pursuant to
Rule 424 under the Securities Act that satisfies the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission thereunder.
(f) Whether or not the transactions contemplated in this Agreement are consummated or
this Agreement is terminated, to pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including: (i) the fees, disbursements
and expenses of counsel for the Company and the Company’s accountants in connection with the
registration and delivery of the Securities under the
17
Securities Act and all other fees or expenses in connection with the preparation and
filing of the Registration Statement, the Preliminary Prospectus Supplement, the Prospectus
Supplement, the Prospectus and any Issuer Represented Free Writing Prospectus, and any
amendments and supplements to any of the foregoing, including all printing costs associated
therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers,
in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer
and delivery of the Securities to the Underwriters, including any transfer or other taxes
payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment
memorandum in connection with the offer and sale of the Securities under state securities
laws and all expenses in connection with the qualification of the Securities for offer and
sale under state securities laws as provided in Section 7(d) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv)
all filing fees and the reasonable fees and disbursements of counsel to the Underwriters
incurred in connection with the review and qualification of the offering of the Securities
by the Financial Industry Regulatory Authority, Inc., if any, (v) all costs and expenses
incident to preparing or printing the Indenture or Supplemental Indenture or qualifying
either of them under the Trust Indenture Act or the rules and regulations of the Commission
thereunder, (vi) the cost of printing certificates representing the Securities, if
applicable, (vii) the fees and expenses of any transfer agent, registrar, trustee or
depositary in connection with the issuance of the Securities, (viii) the costs and expenses
of the Company relating to investor presentations on any “road show” undertaken in
connection with the marketing of the offering of the Securities, including, without
limitation, expenses associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road show presentations with
the prior approval of the Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and, with the prior approval of the
Company, the cost of any aircraft chartered in connection with the road show and (ix) all
other costs and expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 8 entitled “Indemnity and
Contribution” and the last paragraph of Section 10 below, the Underwriters will pay all of
their costs and expenses, including fees and disbursements of their counsel and any
advertising expenses connected with any offers they may make.
(g) The Operating Partnership will use the net proceeds received by it from the sale of
the Notes sold by it in the manner specified in the Prospectus and the General Disclosure
Package under the caption “Use of Proceeds.”
(h) Except for the authorization of actions permitted to be taken by the Underwriters
as contemplated herein or in the Prospectus or the General Disclosure Package, neither the
REIT nor the Operating Partnership will, within 30 days of the date of the Prospectus,
directly or indirectly, (i) take any action designed to cause or to result in, or that might
reasonably be expected to constitute, the stabilization or manipulation of the price of any
security of the REIT or the Operating Partnership to facilitate the sale or resale of the
Securities, (ii) sell, bid for or purchase the Securities or pay any person any compensation
for soliciting purchases of the Securities or (iii) pay or agree to pay to any
18
person any compensation for soliciting another to purchase any other securities of the
REIT or the Operating Partnership, which payment or agreement is designed to cause or to
result in the stabilization or manipulation of the price of the Securities.
(i) The Company acknowledges and agrees that (i) the purchase and sale of the
Securities pursuant to this Agreement, including the determination of the public offering
price of the Securities and any related discounts and commissions, is an arm’s-length
commercial transaction between the Company, on the one hand, and the several Underwriters,
on the other hand, (ii) in connection with the offering contemplated hereby and the process
leading to such transaction each Underwriter is and has been acting solely as a principal
and is not the agent or fiduciary of the Company, or its stockholders, creditors, employees
or any other party, (iii) no Underwriter has assumed or will assume an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or
the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and no Underwriter has any obligation to
the Company with respect to the offering contemplated hereby except the obligations
expressly set forth in this Agreement, (iv) the Underwriters and their respective affiliates
may be engaged in a broad range of transactions that involve interests that differ from
those of the Company, and (v) the Underwriters have not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby and the Company
has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed
appropriate.
8.
Indemnity and Contribution
.
(a) The REIT and the Operating Partnership, jointly and severally, agree to indemnify and hold
harmless each Underwriter and their respective affiliates and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities and expenses
(including, without limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) arising out of or caused by (i) any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement or
any amendment thereof, the Preliminary Prospectus Supplement, Prospectus Supplement, the
Prospectus, the Subsequent 8-Ks, or any Issuer Represented Free Writing Prospectus (in each case,
as amended or supplemented if the REIT and the Operating Partnership shall have furnished any
amendments or supplements thereto) or in any documents filed under the Securities Act or the
Exchange Act and incorporated by reference or deemed to be incorporated by reference into the
Registration Statement, the Preliminary Prospectus Supplement, Prospectus Supplement, the
Prospectus or the General Disclosure Package or in any application or other document executed by or
on behalf of the Company or based on written information furnished by or on behalf of the Company
filed in any jurisdiction in order to qualify the Securities under the securities or Blue Sky laws
thereof or filed with the Commission, (ii) any omission or alleged omission to state in the
Registration Statement, the Prospectus, or the General Disclosure Package, the Subsequent 8-Ks, or
any Issuer Represented Free Writing Prospectus a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (iii) any act or failure to act or any
alleged act or failure to act by any Underwriter in connection with, or relating in any manner to,
the Securities or the offering
19
contemplated hereby, and which is included as part of or referred to in any loss, claim,
damage, liability or expense arising out of or based upon matters covered by clause (i) or (ii)
above (
provided
,
however
, that the REIT and the Operating Partnership shall not be
liable under this clause (iii) to the extent it is finally judicially determined by a court of
competent jurisdiction that such loss, claim, damage, liability or expense resulted directly from
any such acts or failures to act undertaken or omitted to be taken by such Underwriter through its
gross negligence or willful misconduct), except insofar as such losses, claims, damage, liabilities
or expenses are caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Underwriter furnished to the REIT and the Operating
Partnership in writing by such Underwriter through you expressly for use in the Registration
Statement, the Permitted Free Writing Prospectus or the Prospectus, which information is limited to
that set forth on
Exhibit A
hereof. This indemnity agreement will be in addition to any
liability that the REIT or the Operating Partnership might otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
REIT, the Operating Partnership and the REIT’s directors, its officers who sign the Registration
Statement and each person, if any, who controls the REIT or the Operating Partnership within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnities from the REIT and the Operating Partnership to such
Underwriter, but only with reference to information relating to such Underwriter furnished to the
REIT in writing by such Underwriter through you expressly for use in the Registration Statement,
the Permitted Free Writing Prospectus or the Prospectus, which information is limited to that set
forth on
Exhibit A
hereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b),
such person (the “
indemnified party
”) shall promptly notify the person against whom such indemnity
may be sought (the “
indemnifying party
”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the indemnified party (who shall
not, without the consent of the indemnified party, be counsel to the indemnifying party) to
represent the indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to such proceeding,
provided
that the failure to notify the indemnifying party shall not relieve it from any
liability that it may have under paragraph (a) or (b) above except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure;
and
provided
,
further
, that the failure to notify the indemnifying party shall not
relieve it from any liability that it may have to an indemnified party otherwise than under
paragraph (a) or (b) above. In any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified parties and that all such
20
fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in
writing by the Representatives, in the case of parties indemnified pursuant to Section 8(a), and by
the REIT or the Operating Partnership, in the case of parties indemnified pursuant to Section 8(b).
The indemnifying party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an indemnifying party in writing
to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No indemnifying party shall, without the prior
written consent of each indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such settlement (x) includes an
unconditional release of such indemnified party from all liability on claims that are the subject
matter of such proceeding and (y) does not include any statement as to or any admission of fault,
culpability or a failure to act by or on behalf of any indemnified person.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to
an indemnified party or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion
as is appropriate to reflect the relative benefits received by the REIT and the Operating
Partnership on the one hand and the Underwriters on the other hand from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the REIT and the Operating Partnership on the one
hand and of the Underwriters on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the REIT and the Operating Partnership on the
one hand and the Underwriters on the other hand in connection with the offering of the Securities
shall be deemed to be in the same respective proportions as the net proceeds from the offering of
the Securities (before deducting expenses) received by the REIT and the total underwriting
discounts and commissions received by the Underwriters, in each case as set forth in the table on
the cover of the Prospectus, bear to the aggregate Public Offering Price of the Securities. The
relative fault of the REIT and the Operating Partnership on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the REIT or the Operating Partnership or by the
Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters’ respective obligations to
contribute pursuant to this Section 8 are several in
21
proportion to the respective principal amount of Notes (including Guarantees) they have
purchased hereunder, and not joint.
(e) The REIT, the Operating Partnership and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred to in Section 8(d).
The amount paid or payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the REIT and the Operating Partnership
contained in this Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter
or any person controlling any Underwriter or by or on behalf of the REIT, the Operating Partnership
or the REIT’s officers or directors or any person controlling the REIT or the Operating
Partnership, and (iii) acceptance of and payment for any of the Securities.
9.
Termination
.
The obligations of the Underwriters under this Agreement may be
terminated at any time on or prior to the Closing Date, by notice to the REIT and the Operating
Partnership from the Underwriters, without liability on the part of the Underwriters to the REIT
and the Operating Partnership, if, prior to delivery and payment for the Securities, in the sole
judgment of the Underwriters, (i) trading in any of the securities of the REIT or the Operating
Partnership shall have been suspended by the Commission, by any exchange that lists such securities
or in any over-the-counter market, (ii) trading in securities generally on the NYSE shall have been
suspended or limited or minimum or maximum prices shall have been generally established on such
exchange, or additional material governmental restrictions, not in force on the date of this
Agreement, shall have been imposed upon trading in securities generally by such exchange or by
order of the Commission or any court or other governmental authority, (iii) a general banking
moratorium shall have been declared by either Federal or New York State authorities, (iv) any major
disruption of settlements of securities or clearance services in the United States shall have
occurred, or (v) any material adverse change in the financial or securities markets within or
outside the United States or in political, financial or economic conditions within or outside the
United States or any material outbreak or material escalation of hostilities within or outside the
United States or declaration by the United States of a national emergency or war or other material
calamity or crisis within or outside the United States,
22
including, without limitation, an act of terrorism, shall have occurred the effect of any of
which is such as to make it, in the judgment of the Underwriters, impracticable or inadvisable to
proceed with the offering, sale or delivery of the Securities on the terms and in the manner
contemplated by the Prospectus, the General Disclosure Package and this Agreement.
10
.
Effectiveness; Defaulting Underwriters
.
This Agreement shall become effective
upon the execution and delivery hereof by the parties hereto. If, on the Closing Date, any one or
more of the Underwriters shall fail or refuse to purchase Notes (including Guarantees) that it has
or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes
(including Guarantees) which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate principal amount of the Notes
(including Guarantees) to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the aggregate principal amount of Notes (including Guarantees)
set forth opposite their respective names in
Schedule I
bears to the aggregate principal
amount of Notes (including Guarantees) set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the Notes (including
Guarantees) which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date;
provided
that in no event shall the aggregate principal amount of
Notes (including Guarantees) that any Underwriter has agreed to purchase pursuant to this Agreement
be increased pursuant to this Section 10 by an amount in excess of one-ninth of such aggregate
principal amount of Notes (including Guarantees) without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Notes
(including Guarantees) and the aggregate principal amount of Notes (including Guarantees) with
respect to which such default occurs is more than one-tenth of the aggregate principal amount of
Notes (including Guarantees) to be purchased and arrangements satisfactory to the Representatives
and the Company for the purchase of such Notes (including Guarantees) are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case, either the Representatives or the
Company shall have the right to postpone the Closing Date, but in no event for longer than seven
(7) days, in order that the required changes, if any, in the Registration Statement, the Prospectus
and the General Disclosure Package or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of the REIT or the Operating Partnership to comply with the terms or
to fulfill any of the conditions of this Agreement, or if for any reason the REIT or the Operating
Partnership shall be unable to perform their obligations under this Agreement, the REIT and the
Operating Partnership will, jointly and severally, reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated hereunder.
11.
Representations and Agreements to Survive Delivery
.
All representations,
warranties, agreements and covenants of the REIT and the Operating Partnership herein or in
23
certificates delivered pursuant hereto and the agreements of the Underwriters in Section 8
herein shall remain operative and in full force and effect regardless of any investigation made by
or on behalf of any Underwriter or any controlling persons, or the REIT or the Operating
Partnership or any of its officers, trustees, or any controlling persons, and shall survive (i)
termination of this Agreement and (ii) delivery of and payment for the Securities hereunder.
12.
Notices
.
All communications hereunder will be in writing and effective only on
receipt, and, with respect to any party hereto, will be mailed, delivered or telefaxed and
confirmed as follows:
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if to the Company:
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AMB Property Corporation
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Pier 1, Bay 1
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San Francisco, California 94111
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Attention: General Counsel
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Telefax number: (415) 394-9001
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with a copy to:
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Latham & Watkins LLP
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505 Montgomery St., Suite 2000
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San Francisco, California 94111
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Attention: Laura L. Gabriel
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Telefax number: (415) 395-8095
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if to the Underwriters:
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Wells Fargo Securities, LLC
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301 S. College Street
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Charlotte, NC 28288
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Attention: Transaction Management
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Telefax: (704) 383-9165
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J.P. Morgan Securities LLC
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383 Madison Avenue
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New York, NY 10179
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Attention: High Grade Syndicate Desk — 3rd floor
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Telefax number: (212) 834-6081
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Morgan Stanley & Co. Incorporated
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1585 Broadway
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New York, New York 10036
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Telefax: (212) 507-4254
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Merrill Lynch, Pierce, Fenner
& Smith Incorporated
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One Bryant Park
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NY1-100-18-03
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New York, New York 10036
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Attention: High Grade Transaction
Management/Legal
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Telefax: (646) 855-5958
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24
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with a copy to:
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Gibson, Dunn & Crutcher LLP
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555 Mission Street, Suite 3000
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San Francisco, California 94105
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Attention: Douglas D. Smith
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Telefax number: (415) 374-8411
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13.
Counterparts
.
This Agreement may be signed in two or more counterparts (which may
include counterparts delivered by any standard form of telecommunication), each of which shall be
an original, with the same effect as if the signatures thereto and hereto were upon the same
instrument.
14.
Applicable Law
.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
15.
Parties
.
This Agreement has been and is made solely for the benefit of the
Underwriters and the REIT and the Operating Partnership and of the controlling persons, directors,
trustees, and officers referred to in Section 8, and their respective successors and assigns, and
no other person shall acquire or have any right under or by virtue of this Agreement. The term
“successors and assigns” as used in this Agreement shall not include a purchaser, as such
purchaser, of Notes or Guarantees from the Underwriters.
16.
Amendments
.
This Agreement may be amended or supplemented if, but only if, such
amendment or supplement is in writing and is signed by the REIT, the Operating Partnership and the
Representatives.
17.
Severability
.
In case any provision in this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
18.
Waiver of Trial by Jury
.
The REIT and each of the Underwriters each hereby
irrevocably waive any right they may have to a trial by jury in respect of any claim based upon or
arising out of this Agreement or the transactions contemplated hereby.
19.
Headings
.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
[
Signature Page Follows
]
25
Please confirm that the foregoing correctly sets forth the agreement among the REIT, the
Operating Partnership and the Underwriters.
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Very truly yours,
AMB PROPERTY CORPORATION
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By:
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/s/ Timothy D. Arndt
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Name:
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Timothy D. Arndt
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Title:
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Vice President, Finance and Strategy
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AMB PROPERTY, L.P.
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By:
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AMB PROPERTY CORPORATION
,
its sole general partner
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By:
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/s/ Timothy D. Arndt
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Name:
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Timothy D. Arndt
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Title:
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Vice President, Finance and Strategy
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[
Signature Page to AMB Underwriting Agreement
]
Accepted as of the date hereof:
WELLS FARGO SECURITIES, LLC
J.P. MORGAN SECURITIES LLC
MORGAN STANLEY & CO. INCORPORATED
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
Acting on behalf of themselves and the
several Underwriters named in
Schedule I
hereto.
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WELLS FARGO SECURITIES, LLC
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By:
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/s/ Carolyn Hurley
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Name:
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Carolyn Hurley
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Title:
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Director
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J.P. MORGAN SECURITIES LLC
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By:
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/s/ Maria Sramek
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Name:
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Maria Sramek
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Title:
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Executive Director
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MORGAN STANLEY & CO. INCORPORATED
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By:
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/s/ Yurij Slyz
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Name:
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Yurij Slyz
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Title:
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Executive Director
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MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
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By:
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/s/ Doug Fink
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Name:
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Doug Fink
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Title:
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Managing Director
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[
Signature Page to AMB Underwriting Agreement
]
Schedule I
Underwriters
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Principal Amount of
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Notes
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Underwriter
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to be Purchased
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Wells Fargo Securities, LLC
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$
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43,750,000
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J.P. Morgan Securities LLC
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$
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43,750,000
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Morgan Stanley & Co. Incorporated
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$
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43,750,000
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Merrill
Lynch, Pierce, Fenner & Smith
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Incorporated
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$
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43,750,000
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Principal Amount of All Notes
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$
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175,000,000
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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
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, 633 West Fifth Street, 24
th
Floor, Los
Angeles, California 90071. 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, 633 West Fifth Street, 24
th
Floor, Los Angeles, California
90071.
(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
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 Wells 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 Wells 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
]
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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.
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AMB PROPERTY, L.P.
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By:
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AMB PROPERTY CORPORATION,
its sole general partner
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By:
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Name:
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Title:
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AMB PROPERTY CORPORATION
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By:
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Name:
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Title:
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U.S. BANK NATIONAL ASSOCIATION
,
as Trustee
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By:
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Name:
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Title:
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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.
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No.:
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CUSIP No.: 00163M AM6
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Principal Amount: $175,000,000
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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
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AMB PROPERTY, L.P.
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By:
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AMB PROPERTY CORPORATION,
its sole general partner
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By:
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Name:
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Title:
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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
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By:
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Name:
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Title:
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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
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AMB PROPERTY CORPORATION
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By:
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Name:
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Title:
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A-8
ASSIGNMENT
FOR VALUE RECEIVED
, the undersigned hereby sell(s), assign(s) and transfer(s) unto:
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PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE:
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(Please print or typewrite name and address of assignee, including postal zip code 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.
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Dated:
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Notice:
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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.
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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:
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TEN COM—as tenants in common
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UNIF GIFT MIN ACT—
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Custodian
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(Cust)
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(Minor)
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TEN ENT—as tenants by the entireties
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Under Uniform Gifts to Minors Act
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(State)
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JT TEN—as joint tenants with right of survivorship
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]
Schedule A
Changes to Principal Amount of Global Security
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Principal Amount of Securities by which this
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Global Security is to be Reduced or Increased,
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Remaining Principal Amount
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Notation
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Date
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and Reason for Reduction or Increase
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of this Global Security
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Made by
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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,
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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
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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: __________
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Exhibit 4.2
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.
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No.:
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CUSIP No.: 00163M AM6
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Principal Amount: $175,000,000
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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 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
1
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.
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
2
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]
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IN WITNESS WHEREOF, the Operating Partnership has caused this instrument to be duly executed.
Dated: November 12, 2010
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AMB PROPERTY, L.P.
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By:
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AMB PROPERTY CORPORATION,
its sole general partner
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By:
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Name:
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Title:
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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
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By:
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Name:
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Title:
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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
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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
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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.
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IN WITNESS WHEREOF, the undersigned has caused this Parent Guarantee to be duly executed.
Dated: November 12, 2010
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AMB PROPERTY CORPORATION
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By:
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Name:
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Title:
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8
ASSIGNMENT
FOR VALUE RECEIVED
, the undersigned hereby sell(s), assign(s) and transfer(s) unto:
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PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE:
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(Please print or typewrite name and address of assignee, including postal zip code 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.
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Dated:
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Notice:
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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.
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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:
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TEN COM—as tenants in common
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UNIF GIFT MIN ACT—
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Custodian
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(Cust)
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(Minor)
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TEN ENT—as tenants by the entireties
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Under Uniform Gifts to Minors Act
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(State)
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JT TEN—as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
10
[FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY
TO REFLECT CHANGES IN PRINCIPAL AMOUNT]
Schedule A
Changes to Principal Amount of Global Security
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Principal Amount of Securities by which this
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Global Security is to be Reduced or Increased,
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Remaining Principal Amount
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Notation
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Date
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and Reason for Reduction or Increase
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of this Global Security
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Made by
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11
Exhibit 5.1
November 10, 2010
AMB Property Corporation
Pier 1, Bay 1
San Francisco, California 94111
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Re:
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AMB Property Corporation, a Maryland corporation (the
“Company”) — Issuance and sale of up to $175,000,000 aggregate principal
amount of the 4.00% Notes due 2018 (the “Debt Securities”) of AMB Property,
L.P., a Delaware limited partnership of which the Company is the sole general
partner (the “Operating Partnership”), together with the Guarantee (as defined
herein) of the Debt Securities by the Company, pursuant to a Registration
Statement on Form S-3 (Registration No. 333-161347) filed with the United
States Securities and Exchange Commission (the “Commission”), as amended to
date (the “Registration Statement”)
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Ladies and Gentlemen:
We have acted as Maryland corporate counsel to the Company in connection with the registration
of the Debt Securities and the Guarantee under the Securities Act of 1933, as amended (the “Act”),
pursuant to the Registration Statement filed by the Company and the Operating Partnership with the
Commission on or about August 14, 2009. You have requested our opinion with respect to the matters
set forth below.
In our capacity as Maryland corporate counsel to the Company and for the purposes of this
opinion, we have examined originals, or copies certified or otherwise identified to our
satisfaction, of the following documents (collectively, the “Documents”):
(i) the corporate charter of the Company (the “Charter”), represented by Articles of
Incorporation filed with the Maryland State Department of Assessments and Taxation (the
“Department”) on November 24, 1997 (the “Articles of Incorporation”), Articles Supplementary filed
with the Department on July 23, 1998 (the “July 1998 Articles Supplementary”), Articles
Supplementary filed with the Department on November 12, 1998, Articles Supplementary filed with the
Department on November 25, 1998, Certificate of Correction filed with the Department on March 18,
1999, correcting the July 1998 Articles Supplementary, Articles Supplementary filed with the
Department on May 5, 1999, Articles Supplementary filed with the Department on August 31, 1999,
Articles Supplementary filed
Atlanta | Baltimore | Bethesda | Denver | Las Vegas | Los Angeles | New Jersey | Philadelphia | Phoenix | Salt Lake City | Washington, DC | Wilmington
AMB Property Corporation
November 10, 2010
Page 2
with the Department on March 23, 2000, Articles Supplementary filed with the Department on
August 30, 2000, Articles Supplementary filed with the Department on September 1, 2000, Articles
Supplementary filed with the Department on March 21, 2001, Articles Supplementary filed with the
Department on September 24, 2001, Articles Supplementary filed with the Department on December 6,
2001, Articles Supplementary filed with the Department on April 17, 2002, Articles Supplementary
filed with the Department on August 7, 2002, Articles Supplementary filed with the Department on
June 20, 2003, Articles Supplementary filed with the Department on November 24, 2003, Articles
Supplementary filed with the Department on December 8, 2003, Articles Supplementary filed with the
Department on December 12, 2005, Articles Supplementary filed with the Department on February 17,
2006, Articles Supplementary filed with the Department on March 22, 2006, Articles Supplementary
filed with the Department on August 24, 2006, Articles Supplementary filed with the Department on
October 3, 2006, Articles Supplementary filed with the Department on February 22, 2007, Articles
Supplementary filed with the Department on May 15, 2007 and Articles Supplementary filed with the
Department on December 21, 2009;
(ii) the Bylaws of the Company, as adopted as of November 24, 1997 and as amended and restated
pursuant to the First Amended and Restated Bylaws of the Company, on or as of March 5, 1999, the
Second Amended and Restated Bylaws of the Company, on or as of February 27, 2001, the Third Amended
and Restated Bylaws of the Company, on or as of May 15, 2003, the Fourth Amended and Restated
Bylaws of the Company, on or as of August 16, 2004, the Fifth Amended and Restated Bylaws of the
Company, on or as of February 16, 2007, and the Sixth Amended and Restated Bylaws of the Company,
on or as of September 23, 2008 (the “Bylaws”);
(iii) resolutions adopted, and actions taken, by the Board of Directors of the Company, or a
committee thereof, on or as of November 24, 1997, December 10, 2009 and November 9, 2010
(collectively, the “Directors’ Resolutions”);
(iv) the Twelfth Amended and Restated Agreement of Limited Partnership of the Operating
Partnership, dated as of August 25, 2006 (the “Partnership Agreement”);
(v) the Registration Statement and the related prospectus and form of prospectus supplement,
in substantially the form filed or to be filed with the Commission pursuant to the Act (the
“Registration Statement”);
(vi) the Indenture dated as of June 30, 1998 (the “Base Indenture”), by and among the
Operating Partnership, the Company and State Street Bank and Trust Company of California, N.A. (the
“Predecessor Trustee”), together with a fully executed counterpart of the First Supplemental
Indenture dated as of June 30, 1998 (the “First Supplemental Indenture”), by and among the
Operating Partnership, the Company and the Predecessor Trustee, the Second Supplemental Indenture
dated as of June 30, 1998 (the “Second Supplemental Indenture”), by and among the Operating
Partnership, the Company and the Predecessor Trustee, the Third Supplemental Indenture dated as of
June 30, 1998 (the “Third Supplemental Indenture”), by and among the Operating Partnership, the
Company and the Predecessor Trustee, the Fourth Supplemental Indenture dated as of August 15, 2000
(the
AMB Property Corporation
November 10, 2010
Page 3
“Fourth Supplemental Indenture”), by and among the Operating Partnership, the Company and the
Predecessor Trustee, the Fifth Supplemental Indenture dated as of May 7, 2002 (the “Fifth
Supplemental Indenture”), by and among the Operating Partnership, the Company and the Predecessor
Trustee, the Sixth Supplemental Indenture dated as of July 11, 2005 (the “Sixth Supplemental
Indenture”), by and among the Operating Partnership, the Company and U.S. Bank National
Association, as successor-in-interest to the Predecessor Trustee (the “Trustee”), the Seventh
Supplemental Indenture dated as of August 10, 2006 (the “Seventh Supplemental Indenture”), by and
among the Operating Partnership, the Company and the Trustee, the Eighth Supplemental Indenture
dated as of November 20, 2009 (the “Eighth Supplemental Indenture”), by and among the Operating
Partnership, the Company and the Trustee, the Ninth Supplemental Indenture dated as of November 20,
2009 (the “Ninth Supplemental Indenture”), by and among the Operating Partnership, the Company and
the Trustee, and the Tenth Supplemental Indenture dated as of August 9, 2010 (the “Tenth Supplemental
Indenture”), by and among the Operating Partnership, the Company and the Trustee, and the form of
Eleventh Supplemental Indenture expected to be dated on or about November 12, 2010 (the “Eleventh
Supplemental Indenture”), by and among the Operating Partnership, the Company and the Trustee (the
Base Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental Indenture, the
Sixth Supplemental Indenture, the Seventh Supplemental Indenture, the Eighth Supplemental
Indenture, the Ninth Supplemental Indenture, the Tenth Supplemental Indenture and the Eleventh
Supplemental Indenture are hereinafter referred to collectively as the “Indenture”);
(vii) the form of Guarantee, expected to be dated on or about November 12, 2010, to be made by
the Company with respect to the Debt Securities (the “Guarantee”);
(viii) the form of global note, expected to be dated on or about November 12, 2010, to be
registered in the name of The Depository Trust Company or its nominee Cede & Co., representing the
Debt Securities (the “Global Note”);
(ix) a certificate of Tamra D. Browne, Senior Vice President, General Counsel and Secretary of
the Company, and Timothy D. Arndt, Vice President, Finance and Strategy of the Company, dated as of
November 10, 2010 (the “Officers’ Certificate”), to the effect that, among other things, the
Charter, the Bylaws and the Directors’ Resolutions are true, correct and complete and have not been
rescinded or modified and are in full force and effect as of the date of the Officers’ Certificate,
and certifying as to the manner of adoption or approval of the Directors’ Resolutions, and the
form, execution and delivery of the Partnership Agreement and the Indenture (other than the
Eleventh Supplemental Indenture), and the form of the Eleventh Supplemental Indenture, the
Guarantee and the Global Note;
(x) a status certificate of the Department, dated as of a recent date, to the effect that the
Company is duly incorporated and existing under the laws of the State of Maryland; and
(xi) such other laws, records, documents, certificates, opinions and instruments as we have
deemed necessary to render this opinion, subject to the limitations, assumptions and qualifications
noted below.
AMB Property Corporation
November 10, 2010
Page 4
In reaching the opinions set forth below, we have assumed the following:
(a) each person executing any of the Documents on behalf of any party (other than the Company)
is duly authorized to do so;
(b) each natural person executing any of the Documents is legally competent to do so;
(c) all of the Documents submitted to us as originals are authentic; the form and content of
any Documents submitted to us as unexecuted drafts do not, and will not, differ in any respect
relevant to this opinion from the form and content of such documents as executed and delivered; any
of the Documents submitted to us as certified, facsimile or photostatic copies conform to the
original document; all signatures on all of the Documents are genuine; all public records reviewed
or relied upon by us or on our behalf are true and complete; all statements and information
contained in the Documents are true and complete; there has been no modification of, or amendment
to, any of the Documents, and there has been no waiver of any provision of any of the Documents by
action or omission of the parties or otherwise;
(d) all certificates submitted to us, including, without limitation, the Officers’
Certificate, are true, correct and complete both when made and as of the date hereof;
(e) the actions documented by the Directors’ Resolutions were taken at duly called meetings of
directors at which a quorum of the incumbent members of the Board of Directors or a committee
thereof, as the case may be, was present and acting throughout, by the affirmative vote of a
majority of the entire Board of Directors, or a committee thereof, as the case may be, or by
unanimous written consent by all incumbent members of the Board of Directors, or a committee
thereof, as the case may be, all in accordance with the Charter and Bylaws and applicable law;
(f) the Indenture will remain in full force and effect for so long as the Debt Securities are
outstanding; and
(g) prior to the issuance of the Debt Securities, each of the Eleventh Supplemental Indenture,
the Guarantee and the Global Note will be duly executed and delivered to the Trustee (as defined in
the Indenture) by one or more Authorized Officers (as defined in the Directors’ Resolutions) of the
Company, acting in its individual capacity and in its capacity as general partner of the Operating
Partnership, as the case may be, in accordance with the Indenture and the Directors’ Resolutions.
AMB Property Corporation
November 10, 2010
Page 5
Based on the foregoing, and subject to the assumptions and qualifications set forth herein, it
is our opinion that, as of the date of this letter:
1. The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Maryland.
2. The execution, delivery and performance of the Indenture and the Guarantee have been duly
authorized by all necessary corporate action on the part of the Company acting in its individual
capacity and in its capacity as general partner of the Operating Partnership, as the case may be,
and the issuance of the Debt Securities has been duly authorized by all necessary corporate action
on the part of the Company acting in its capacity as general partner of the Operating Partnership.
The foregoing opinion is limited to the corporation laws of the State of Maryland, and we do
not express any opinion herein concerning any other law. We express no opinion as to the
applicability or effect of any federal or state securities laws, including the securities laws of
the State of Maryland, or as to federal or state laws regarding fraudulent transfers, or with
respect to the actions required for the Operating Partnership to authorize, execute or deliver, or
perform its obligations under, the Indenture, the Global Note or any other document, instrument or
agreement. To the extent that any matter as to which our opinion is expressed herein would be
governed by any jurisdiction other than the State of Maryland, we do not express any opinion on
such matter.
This opinion letter is issued as of the date hereof and is necessarily limited to laws now in
effect and facts and circumstances presently existing and brought to our attention. We assume no
obligation to supplement this opinion letter if any applicable laws change after the date hereof,
or if we become aware of any facts or circumstances that now exist or that occur or arise in the
future and may change the opinions expressed herein after the date hereof.
We consent to your filing this opinion as an exhibit to the Registration Statement and further
consent to the filing of this opinion as an exhibit to the applications to securities commissioners
for the various states of the United States for registration of the Debt Securities. We also
consent to the identification of our firm as Maryland counsel to the Company in the section of the
Registration Statement entitled “Legal Matters”. In giving this consent, we do not admit that we
are within the category of persons whose consent is required by Section 7 of the Act.
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Very truly yours,
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/s/ Ballard Spahr LLP
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