Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION
RIGHTS AGREEMENT, dated as of July 8, 2005 (this “
Agreement ”), is entered into by and among AMB
Property, L.P., a Delaware limited partnership (the “
Operating Partnership ”), and Teachers Insurance and
Annuity Association of America, a New York corporation (“
Teachers ”).
RECITALS
WHEREAS, pursuant
to the Exchange Agreement between the Operating Partnership, AMB
Property Corporation, a Maryland corporation, and Teachers of even
date herewith, Teachers has agreed to assign and transfer to the
Operating Partnership all of the Operating Partnership’s
$5.094% Notes due 2015 (the “ Notes ”) held by
Teachers, and the Operating Partnership has agreed to issue in
exchange (the “ Exchange ”) the Operating
Partnership’s $100,000,000 6.9% Reset Put Securities due 2015
(“Putable/Callable 2005”);
WHEREAS, the
Operating Partnership has agreed to provide the registration rights
set forth herein to Teachers and any subsequent holder or holders
of the Notes.
NOW, THEREFORE, in
consideration of the premises and the mutual agreements herein
contained, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01
Definitions . In addition to the definitions set forth
above, the following terms, as used herein, have the following
meanings:
“
Affiliate ” of any Person means any other Person
directly or indirectly controlling or controlled by or under common
control with such Person. For the purposes of this definition,
“control” when used with respect to any Person, means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the
foregoing.
“
Agreement ” has the meaning given to such term in the
preamble hereto.
“
Business Day ” means any day except a Saturday, Sunday
or other day on which commercial banks in New York, New York or San
Francisco, California are authorized by law to close.
“
Commission ” means the Securities and Exchange
Commission.
“
Exchange ” has the meaning set forth in the preamble
to this Agreement.
“
Exchange Act ” means the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
“
Holder ” means any Person who is the record or
beneficial owner of any Registrable Security or any assignee or
transferee of such Registrable Security (including assignments or
transfers of Registrable Securities to such assignees or
transferees as a result of the foreclosure on any loans secured by
such Registrable Securities) unless such Registrable Security is
acquired in a public distribution pursuant to a registration
statement under the Securities Act or pursuant to transactions
exempt from registration under the Securities Act, in each such
case where securities sold in such transaction may be resold
without subsequent registration under the Securities
Act.
“
Person ” means an individual or a corporation,
partnership, limited liability company, association, trust, or any
other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
“
Registrable Securities ” means Notes at any time
owned, either of record or beneficially, by any Holder until
(i) a registration statement covering such securities has been
declared effective by the Commission and such securities have been
sold or transferred pursuant to such effective registration
statement, (ii) such securities are sold under circumstances
in which all of the applicable conditions of Rule 144
promulgated under the Securities Act (“Rule 144”)
are met or under which such securities may be sold pursuant to Rule
144(k) or (iii) such securities have been otherwise
transferred in a transaction that would constitute a sale thereof
under the Securities Act, the Operating Partnership has delivered a
new certificate or other evidence of ownership for such securities
not bearing the Securities Act restricted stock legend and such
securities may be resold without subsequent registration under the
Securities Act.
“
Securities Act ” means the Securities Act of 1933, as
amended.
“ Selling
Holder ” means a Holder who is selling Registrable
Securities pursuant to a registration statement under the
Securities Act pursuant to this Agreement.
“
Underwriter ” means a securities dealer who purchases
any Registrable Securities as principal and not as part of such
dealer’s market-making activities.
ARTICLE II.
REGISTRATION RIGHTS
Section 2.01
Shelf Registration . Upon written notice from Teachers, the
Operating Partnership shall use its commercially reasonable efforts
to prepare and file with the Commission as promptly as practicable
a “shelf” registration statement on any form for which
the Operating Partnership then qualifies or which counsel for the
Operating Partnership shall deem appropriate and which form shall
be available for the resale of the Registrable Securities by the
Holders for an offering to be made on a continuous or delayed basis
pursuant to Rule 415 under the Securities Act (the “
Shelf Registration Statement ”), and shall use its
commercially reasonable efforts to cause such Shelf Registration
Statement to be declared effective as promptly as practicable after
such filing date; provided that in no event shall the
Operating Partnership be required to file the Shelf Registration
Statement with the Commission prior to eighteen (18)
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months after the Exchange. The
Operating Partnership shall use its commercially reasonable efforts
to keep such Shelf Registration Statement continuously effective
until the earliest of (A) 24 months following the
effective date of the Shelf Registration Statement, (B) such time
as all of the Registrable Securities have been sold pursuant to the
Shelf Registration Statement or Rule 144 and (C) the date
on which the Registrable Securities may be sold without volume
restrictions in accordance with Rule 144.
Section 2.02
Registration Procedures; Filings; Information . In
connection with the Shelf Registration Statement, the Operating
Partnership will use its best efforts to effect the registration
and the sale of such Registrable Securities in accordance with the
Selling Holders’ intended method of disposition thereof as
quickly as practicable, and in connection therewith:
(a) The
Operating Partnership will, if requested, prior to filing a
registration statement or prospectus or any amendment or supplement
thereto, furnish to each Selling Holder and each Underwriter, if
any, of the Registrable Securities covered by such registration
statement or prospectus copies of such registration statement or
prospectus or any amendment or supplement thereto as proposed to be
filed, and thereafter furnish to such Selling Holder and
Underwriter, if any, one conformed copy of such registration
statement, each amendment thereof and supplement thereto (in each
case including all exhibits thereto and documents incorporated by
reference therein; provided, that each such exhibit need
only be provided once), and such number of copies of the prospectus
included in such registration statement (including each preliminary
prospectus) and such other documents as such Selling Holder or
Underwriter may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such Selling
Holder; subject to the limitations and provisions contained herein,
the Operating Partnership consents to the use of any such
prospectus, including each preliminary prospectus, by such Selling
Holder in connection with the offering and sale of the Registrable
Securities covered by such prospectus.
(b) After the
filing of the registration statement, the Operating Partnership
will promptly notify each Selling Holder of Registrable Securities
covered by such registration statement (i) when a registration
statement has become effective and when any post-effective
amendments and supplements thereto become effective, and
(ii) of any stop order issued or threatened by the Commission,
and the Operating Partnership will take all reasonable actions
required to prevent the entry of such stop order or to remove it if
entered; in the event the Operating Partnership shall give notice
of any issued stop order under Section 2.02(b)(ii)
hereof, the Operating Partnership shall extend the period during
which such registration statement shall be maintained effective
(including the period referred to in Section 2.01
hereof) by the number of days during the period from and including
the date of giving of notice pursuant to Section 2.02(b)(ii)
hereof to the date the Operating Partnership shall give notice to
the Selling Holders of the removal of such stop order.
(c) The
Operating Partnership will use its best efforts to
(i) register or qualify the Registrable Securities under such
other state securities or blue sky laws of such jurisdictions in
the United States (where an exemption is not available) as any
Selling Holder or managing Underwriter or Underwriters, if any,
reasonably (in light of such Selling Holder’s intended plan
of distribution) requests and (ii) cause such Registrable
Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue
of
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the business and operations of
the Operating Partnership and do any and all other acts and things
that may be reasonably necessary or advisable to enable such
Selling Holder to consummate the disposition of the Registrable
Securities owned by such Selling Holder; provided that the
Operating Partnership will not be required to (A) qualify
generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this paragraph (c), (B)
subject itself to taxation in any such jurisdiction or
(C) consent to general service of process in any such
jurisdiction.
(d) The
Operating Partnership will promptly notify each Selling Holder of
such Registrable Securities, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of
the occurrence of an event requiring the preparation of a
supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances then existing, not misleading and promptly make
available to each Selling Holder a reasonable number of copies of
any such supplement or amendment.
(e) The
Operating Partnership will enter into customary agreements
(including an underwriting agreement, if any, in customary form)
and take such other actions as are reasonably required in order to
expedite or facilitate the disposition of such Registrable
Securities.
(f) The
Operating Partnership will make available for inspection by any
Selling Holder of such Registrable Securities, any Underwriter
participating in any disposition pursuant to such registration
statement and any attorney, accountant or other professional
retained by any such Selling Holder or Underwriter (collectively,
the “ Inspectors ”), all financial and other
records, pertinent corporate documents and properties of the
Operating Partnership (collectively, the “ Records
”) as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the
Operating Partnership’s officers, directors and employees to
supply all information reasonably requested by any Inspectors in
connection with such registration statement. Records which the
Operating Partnership determines, in good faith, to be confidential
and which it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission
in such registration statement, (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction or (iii) such Records have
been generally made available to the public. Each Selling Holder of
such Registrable Securities agrees that information obtained by it
as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in
the securities of the Operating Partnership or its Affiliates or
otherwise disclosed by it unless and until such is made generally
available to the public. Each Selling Holder of such Registrable
Securities further agrees that it will, upon learning that
disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Operating Partnership and allow
the Operating Partnership, at its expense, to undertake appropriate
action to prevent disclosure of the Records deemed
confidential.
The
Operating Partnership may require, as a condition precedent to the
obligations of the Operating Partnership under the Agreement, each
Selling Holder of Registrable Securities to
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promptly furnish in writing to
the Operating Partnership such information regarding such Selling
Holder, the Registrable Securities held by it and the intended
method of distribution of the Registrable Securities as the
Operating Partnership may from time to time reasonably request and
such other information as may be legally required in connection
with such registration.
Each Selling
Holder agrees that, upon receipt of any notice from the Operating
Partnership of, or such Selling Holder obtains knowledge of, the
happening of any event of the kind described in
Section 2.02(d) hereof, such Selling Holder will
forthwith discontinue disposition of Registrable Securities
pursuant to the registration statement and prospectus covering such
Registrable Securities until such Selling Holder’s receipt of
the copies of the supplemented or amended prospectus contemplated
by Section 2.02(d) hereof, and, if so directed by the
Operating Partnership, such Selling Holder will deliver to the
Operating
