Exhibit 10.1
EXCHANGE AGREEMENT
EXCHANGE AGREEMENT
dated as of July 8, 2005 (the “ Agreement
”), entered into by and between AMB Property, L.P., a
Delaware limited partnership (the “ Operating
Partnership ”), and Teachers Insurance and Annuity
Association of America, a New York corporation (the “
Holder ”).
R E C I T A L S
WHEREAS, on
June 30, 1998, the Operating Partnership issued $100,000,000
aggregate principal amount of 6.90% Reset Put Securities Due
June 30, 2015 – Putable/Callable 2005 (the “
Notes ”) pursuant an Indenture dated as of
June 30, 1998, by and among the Operating Partnership, AMB
Property Corporation, a Maryland corporation (the “ Parent
Corporation ,” and together with the Operating
Partnership, the “ Companies ”), and State
Street Bank and Trust Company of California, as trustee thereunder
(the “ Predecessor Trustee ”), as supplemented
by: (a) the First Supplemental Indenture dated as of
June 30, 1998, by and among the Operating Partnership, the
Parent Corporation and the Predecessor Trustee; (b) the Second
Supplemental Indenture dated as of June 30, 1998, by and among
the Operating Partnership, the Parent Corporation and the
Predecessor Trustee; (c) the Third Supplemental Indenture
dated as of June 30, 1998, by and among the Operating
Partnership, the Parent Corporation and the Predecessor Trustee;
(d) the Fourth Supplemental Indenture dated as of
August 15, 2000, by and among the Operating Partnership, the
Parent Corporation and the Predecessor Trustee; and (e) the
Fifth Supplemental Indenture dated as of May 7, 2002, by and
among the Operating Partnership, the Parent Corporation and the
Predecessor Trustee (as so supplemented, and as to be supplemented
by the Sixth Supplemental Indenture (as defined below), together,
the “ Indenture ”).
WHEREAS, pursuant
to and in accordance with the terms of the Indenture, Morgan
Stanley & Co. International Limited (the “
Callholder ”) exercised its right to call the Notes
and accordingly on June 30, 2005 (the “ Coupon Reset
Date ”) purchased the aggregate principal amount of the
Notes issued and outstanding at a price equal to 100% of the
aggregate principal amount thereof.
WHEREAS, pursuant
to and in accordance with the terms of the Indenture, Morgan
Stanley & Co. Incorporated (the “Seller”) obtained
bids for the purchase of the Notes, matched the bid with the lowest
Yield to Maturity (as defined in the Indenture) and accordingly, on
the Coupon Reset Date, purchased the Notes from the
Callholder.
WHEREAS, on the
Coupon Reset Date, pursuant to and in accordance with the terms of
the Purchase Agreement dated as of June 14, 2005, by and among
the Operating Partnership, the Seller, the Callholder and the
Holder (the “ Purchase Agreement ”), the Seller
sold the Notes to the Holder pursuant to the exemptions from the
registration requirements of the Securities Act of 1933, as amended
(the “ Securities Act ”), including but not
limited to the exemption provided by Rule 144A promulgated
under the Securities Act.
WHEREAS, the
Holder and the Operating Partnership desire to cause an exchange of
the Notes in a private placement exempt from the registration
requirements of the Securities Act (the “ Exchange
”), whereby the Holder shall exchange all Notes held by the
Holder for $112,491,000
in aggregate principal amount of
5.094% Notes Due 2015, which shall constitute a new series of
Securities (as defined in the Indenture) of the Operating
Partnership (the “ Exchange Notes ”), which are
to be issued under the Sixth Supplemental Indenture to be dated as
of the Closing Date, by and among the Operating Partnership, the
Parent Corporation and U.S. Bank National Association, a national
banking association organized and existing under the laws of the
United States of America, as successor-in-interest to the
Predecessor Trustee (together with the Predecessor Trustee, as
applicable, the “ Trustee ”), substantially in
the form attached hereto as EXHIBIT A (the “ Sixth
Supplemental Indenture ”).
WHEREAS, the
Operating Partnership and the Holder have executed a Loan
Application and Commitment Agreement, dated July 8, 2005 (as
may be amended from time to time after the date hereof, the
“Loan Commitment Agreement” ), pursuant to
which, subject to the terms thereof, the Holder has agreed to make
one or more first mortgage loans to the Operating Partnership or
one or more of its subsidiaries or affiliated entities (the
“Borrower” ), in accordance with the terms of
the Loan Commitment Agreement (the “Mortgage
Loans” ), in exchange for cancellation of an equal
principal amount of Exchange Notes, to be secured by certain real
property identified by the Operating Partnership and approved by
the Holder in accordance with the terms of the Loan Commitment
Agreement.
WHEREAS, the
Operating Partnership and the Holder desire to provide that the
Operating Partnership, on the terms and subject to the conditions
set forth herein and in the Loan Commitment Agreement, shall have
the right to cancel all or any portion of the aggregate principal
amount of the Exchange Notes for an obligation of equal dollar
amount under the Mortgage Loan.
A G R E E M E N T
NOW, THEREFORE, in
consideration of the premises and of the mutual representations,
warranties, covenants and undertakings contained herein, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Holder and the Operating
Partnership now hereby agree as follows:
1.
Exchange . Subject to the terms and conditions set forth
below, on the Closing Date (as defined below) the Holder shall
assign and transfer to the Operating Partnership all the Notes held
by the Holder and the Operating Partnership shall issue and deliver
to the Holder $112,491,000 in aggregate principal amount of
Exchange Notes.
2.
Delivery of Exchange Notes . Delivery of the Exchange Notes
pursuant to Section 1 of this Agreement shall occur at
10:00 a.m., New York City time, on July 11, 2005, or such
other time or date as shall be designated in writing by each of the
Operating Partnership and the Holder (as applicable, the “
Closing Date ”), and shall be delivered by
“book-entry” with, and credited to the securities
account specified by the Holder at, the Depository Trust Company
(“ DTC ”).
3.
Operating Partnership Condition to Closing . The obligations
of the Operating Partnership to deliver the Exchange Notes to the
Holder on the Closing Date are subject to the following conditions;
provided , however , that the Operating Partnership
may waive such condition in the sole and absolute discretion of the
Operating Partnership.
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(a) The
Holder has assigned and transferred to the Operating Partnership
all Notes held by the Holder; and
(b) The
representations, warranties and covenants of the Holder in
Section 5 of this Agreement shall be true and correct as of
the Closing Date as set out in a certificate dated the Closing Date
executed by any managing director of the Holder.
4. Holder
Conditions to Closing. The obligations of the Holder to
exchange the Exchange Notes for the Notes on the Closing Date are
subject to the following conditions; provided ,
however , that the Holder may waive such conditions in the
sole and absolute discretion of the Holder:
(a) The
representations, warranties and covenants of the Operating
Partnership in Section 5A of this Agreement shall be true and
correct as of the Closing Date as set out in a certificate dated
the Closing Date executed by any executive officer of the Parent
Corporation in the Parent Corporation’s capacity as general
partner of the Operating Partnership; and
(b) The
Operating Partnership shall have executed the Sixth Supplemental
Indenture and the Registration Rights Agreement substantially in
the form attached hereto as EXHIBIT B (the “
Registration Rights Agreement ”).
(c) The
Holder shall have received opinions of counsel from Ballard Spahr
Andrews & Ingersoll LLP and Tamra D. Browne, General Counsel of
the Parent Corporation, substantially in the forms attached hereto
as EXHIBIT C and EXHIBIT D , respectively.
5.
Representations, Warranties and Covenants of the Holder .
The Holder represents, warrants and covenants, as of the date
hereof, as of the Closing Date, and as of any Mortgage Loan Closing
Date, as applicable, as follows:
(a) The
Holder is (i) a “qualified institutional buyer”
within the meaning of Rule 144A under the Securities Act (a
“ QIB ”) and is an institutional
“accredited investor” within the meaning of
Rule 501(a)(1), (2), (3) or (7) of Regulation D
promulgated under the Securities Act, (ii) aware that the
Exchange is a private placement exempt from the registration
requirements of the Securities Act and (iii) acquiring the
Exchange Notes for its own account, for investment only and not
with a view toward their distribution in violation of federal or
state securities laws.
(b) The
Holder understands and agrees that the Exchange is not a
transaction involving any public offering within the meaning of the
Securities Act and that the Exchange Notes have not been registered
under the Securities Act, and that if prior to the expiration of
the applicable holding period specified in Rule 144(k) of the
Securities Act the Holder decides to offer, resell, pledge or
otherwise transfer any of the Exchange Notes, such Exchange Notes
may be offered, resold, pledged or otherwise transferred only
pursuant to and in accordance with the restrictions set forth in
Section 5(c) of this Agreement and the Sixth Supplemental
Indenture; and (ii) no representation is made as to the
availability of any exemption under the Securities Act or any state
securities laws for the resale of the Exchange Notes.
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(c) The
Holder understands that the Exchange Notes will, until the earlier
of the expiration of the applicable holding period set forth in
Rule 144(k) of the Securities Act, unless sold pursuant to a
registration statement that has been declared effective under the
Securities Act or in compliance with Rule 144, bear a legend
substantially to the following effect:
THIS SECURITY HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ SECURITIES ACT ”), AND, ACCORDINGLY, MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF (OR OF A BENEFICIAL INTEREST HEREIN) THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A “ QIB ”), (B) IT IS NOT
A U.S. PERSON, IS NOT ACQUIRING THIS SECURITY FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL “ACCREDITED
INVESTOR” (AS DEFINED IN RULE 501(A)(1), (2), (3) OR
(7) OF REGULATION D UNDER THE SECURITIES ACT) (AN “
IAI ”); (2) AGREES THAT IT WILL NOT, WITHIN THE
TIME PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE
PROVISIONS OF RULE 144(d) UNDER THE SECURITIES ACT, IF APPLICABLE)
UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER
OF THIS SECURITY, RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A
PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE REGISTRATION OF
TRANSFER OF THIS SECURITY, THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE, AND AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT
OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, AND, IN EACH CASE, IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS; AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY OR ANY INTEREST
HEREIN WITHIN THE TIME PERIOD REFERRED TO ABOVE,
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THE
HOLDER MUST CHECK THE APPROPRIATE BOX CONTAINED IN A CERTIFICATE OF
TRANSFER AVAILABLE FROM THE TRUSTEE RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED
HEREIN, THE TERMS “ OFFSHORE TRANSACTION ,”
“ UNITED STATES ” AND “ U.S. PERSON
” HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S
UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
SECURITY IN VIOLATION OF THE FOREGOING RESTRICTIONS.
(d) The
Holder (i) is able to fend for itself in the transactions
contemplated by this Agreement, (ii) has such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of its prospective investment in
the Exchange Notes and (iii) has the ability to bear the
economic risks of its prospective investment and can afford the
complete loss of such investment.
(e) The
Holder acknowledges that (i) it has conducted its own
investigation of the Companies and the terms of the Exchange Notes
and (ii) it has had access to the public filings of the
Companies with the Securities and Exchange Commission (the “
Commission ”) and to such financial and other
information as it deems necessary to make its decision to acquire
the Exchange Notes.
(f) The
Holder understands that the Companies will rely upon the truth and
accuracy of the foregoing representations, acknowledgements and
agreements and agrees that if any of the representations or
acknowledgements deemed to have been made by it in connection with
the Exchange is no longer accurate, the Holder shall promptly
notify the Companies. If the Holder is acquiring the Exchange Notes
as a fiduciary or agent for one or more investor accounts, it
represents that is has sole investment discretion with respect to
each such account and it has full power to make the foregoing
representations, acknowledgements and agreements on behalf of such
account.
(g) The
Holder has full right, power, authority and capacity to enter into
this Agreement and to consummate the transactions contemplated
hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement and the
Exchange.
(h) The
Holder understands that nothing in this Agreement, the public
filings of the Companies with the Commission or any other materials
presented to the Holder in connection with the Exchange constitutes
legal, tax or investment advice. The Holder has consulted such
legal, tax and investment advisors as it, in its sole discretion,
has deemed necessary or appropriate in connection with the Exchange
and its investment in the Exchange Notes and has made its own
assessment and has satisfied itself concerning the relevant tax and
other economic considerations relevant to the Exchange and its
investment in the Exchange Notes.
(i) The
Holder represents and warrants that, to th
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