EXHIBIT 10.2
--------------------------------
ELEVENTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
AMB PROPERTY II, L.P.
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TABLE OF CONTENTS
PAGE
ARTICLE 1. DEFINED TERMS AND RULES OF CONSTRUCTION.................................................... 2
Section 1.1. Definitions........................................................................ 2
ARTICLE 2. ORGANIZATIONAL MATTERS..................................................................... 20
Section 2.1. Organization....................................................................... 20
Section 2.2. Name............................................................................... 20
Section 2.3. Resident Agent; Principal Office................................................... 21
Section 2.4. Power of Attorney.................................................................. 21
Section 2.5. Term............................................................................... 22
Section 2.6. Number of Partners................................................................. 22
ARTICLE 3. PURPOSE.................................................................................... 23
Section 3.1. Purpose and Business............................................................... 23
Section 3.2. Powers............................................................................. 23
Section 3.3. Partnership Only for Purposes Specified............................................ 23
Section 3.4. Representations and Warranties by the Parties...................................... 24
Section 3.5. Certain ERISA Matters.............................................................. 26
ARTICLE 4. CAPITAL CONTRIBUTIONS...................................................................... 26
Section 4.1. Capital Contributions of the Partners.............................................. 26
Section 4.2. Loans.............................................................................. 26
Section 4.3. Additional Funding and Capital Contributions....................................... 26
Section 4.4. No Preemptive Rights............................................................... 27
Section 4.5. Other Contribution Provisions...................................................... 27
ARTICLE 5. DISTRIBUTIONS.............................................................................. 28
Section 5.1. Requirement and Characterization of Distributions.................................. 28
Section 5.2. Distributions in Kind.............................................................. 28
Section 5.3. Distributions Upon Liquidation..................................................... 29
Section 5.4. Distributions to Reflect Issuance of Additional Partnership Interests.............. 29
ARTICLE 6. ALLOCATIONS................................................................................ 29
Section 6.1. Timing and Amount of Allocations of Net Income and Net Loss........................ 29
Section 6.2. General Allocations................................................................ 29
Section 6.3. Additional Allocation Provisions................................................... 31
Section 6.4. Tax Allocations.................................................................... 33
ARTICLE 7. MANAGEMENT AND OPERATIONS OF BUSINESS...................................................... 34
Section 7.1. Management......................................................................... 34
Section 7.2. Certificate of Limited Partnership................................................. 37
Section 7.3. Restrictions on General Partner's Authority........................................ 38
Section 7.4. Reimbursement of the General Partner............................................... 40
Section 7.5. Outside Activities of the General Partner.......................................... 40
Section 7.6. Employee Benefit Plans............................................................. 41
Section 7.7. Indemnification.................................................................... 41
Section 7.8. Liability of the General Partner................................................... 43
Section 7.9. Other Matters Concerning the General Partner....................................... 44
Section 7.10. Title to Partnership Assets........................................................ 44
Section 7.11. Reliance by Third Parties.......................................................... 45
ARTICLE 8. RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS................................................. 45
Section 8.1. Limitation of Liability............................................................ 45
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Section 8.2. Management of Business............................................................. 45
Section 8.3. Outside Activities of Limited Partners............................................. 46
Section 8.4. Return of Capital.................................................................. 46
Section 8.5. Rights of Limited Partners Relating to the Partnership............................. 46
ARTICLE 9. BOOKS, RECORDS, ACCOUNTING AND REPORTS..................................................... 47
Section 9.1. Records and Accounting............................................................. 47
Section 9.2. Fiscal Year........................................................................ 47
Section 9.3. Reports............................................................................ 48
Section 9.4. Nondisclosure of Certain Information............................................... 48
ARTICLE 10. TAX MATTERS............................................................................... 48
Section 10.1. Preparation of Tax Returns......................................................... 48
Section 10.2. Tax Elections...................................................................... 48
Section 10.3. Tax Matters Partner................................................................ 49
Section 10.4. Organizational Expenses............................................................ 50
Section 10.5. Withholding........................................................................ 50
ARTICLE 11. TRANSFERS AND WITHDRAWALS................................................................. 51
Section 11.1. Transfer........................................................................... 51
Section 11.2. Transfer of General Partner's and Common Limited Partner's Partnership
Interest........................................................................... 51
Section 11.3. Preferred Limited Partners' Rights to Transfer..................................... 52
Section 11.4. Substituted Limited Partners....................................................... 53
Section 11.5. Assignees.......................................................................... 54
Section 11.6. General Provisions................................................................. 55
ARTICLE 12. ADMISSION OF PARTNERS..................................................................... 57
Section 12.1. Admission of Successor General Partner............................................. 57
Section 12.2. Admission of Additional Limited Partners........................................... 57
Section 12.3. Amendment of Agreement and Certificate of Limited Partnership...................... 58
ARTICLE 13. DISSOLUTION AND LIQUIDATION............................................................... 58
Section 13.1. Dissolution........................................................................ 58
Section 13.2. Winding Up......................................................................... 59
Section 13.3. Compliance with Timing Requirements of Regulations................................. 60
Section 13.4. Deemed Distribution and Recontribution............................................. 60
Section 13.5. Rights of Limited Partners......................................................... 61
Section 13.6. Notice of Dissolution.............................................................. 61
Section 13.7. Cancellation of Certificate of Limited Partnership................................. 61
Section 13.8. Reasonable Time for Winding-Up..................................................... 61
Section 13.9. Waiver of Partition................................................................ 61
ARTICLE 14. AMENDMENT OF PARTNERSHIP AGREEMENT; CONSENTS.............................................. 62
Section 14.1. Amendments......................................................................... 62
Section 14.2. Action by the Partners............................................................. 62
ARTICLE 15. GENERAL PROVISIONS........................................................................ 63
Section 15.1. Addresses and Notice............................................................... 63
Section 15.2. Titles and Captions................................................................ 63
Section 15.3. Pronouns and Plurals............................................................... 63
Section 15.4. Further Action..................................................................... 63
Section 15.5. Binding Effect..................................................................... 63
Section 15.6. Creditors.......................................................................... 64
Section 15.7. Waiver............................................................................. 64
Section 15.8. Counterparts....................................................................... 64
Section 15.9. Applicable Law..................................................................... 64
Section 15.10. Invalidity of Provisions........................................................... 64
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Section 15.11. Entire Agreement................................................................... 64
Section 15.12. No Rights as Stockholders.......................................................... 64
ARTICLE 16. INTENTIONALLY OMITTED..................................................................... 65
ARTICLE 17. SERIES D PREFERRED UNITS.................................................................. 65
Section 17.1. Designation and Number............................................................. 65
Section 17.2. Ranking............................................................................ 65
Section 17.3. Distributions...................................................................... 65
Section 17.4. Liquidation Proceeds............................................................... 67
Section 17.5. Series D Redemption................................................................ 67
Section 17.6. Voting and Certain Management Rights............................................... 69
Section 17.7. Transfer Restrictions.............................................................. 71
Section 17.8. Exchange Rights.................................................................... 71
Section 17.9. No Conversion Rights............................................................... 75
Section 17.10. No Sinking Fund.................................................................... 75
ARTICLE 18. SERIES E PREFERRED UNITS.................................................................. 76
Section 18.1. Designation and Number............................................................. 76
Section 18.2. Ranking............................................................................ 76
Section 18.3. Distributions...................................................................... 76
Section 18.4. Liquidation Proceeds............................................................... 78
Section 18.5. Series E Redemption................................................................ 78
Section 18.6. Voting and Certain Management Rights............................................... 80
Section 18.7. Transfer Restrictions.............................................................. 82
Section 18.8. Exchange Rights.................................................................... 82
Section 18.9. No Conversion Rights............................................................... 86
Section 18.10. No Sinking Fund.................................................................... 86
ARTICLE 19. SERIES F PREFERRED UNITS.................................................................. 87
Section 19.1. Designation and Number............................................................. 87
Section 19.2. Ranking............................................................................ 87
Section 19.3. Distributions...................................................................... 87
Section 19.4. Liquidation Proceeds............................................................... 89
Section 19.5. Series F Redemption................................................................ 89
Section 19.6. Voting and Certain Management Rights............................................... 91
Section 19.7. Transfer Restrictions.............................................................. 93
Section 19.8. Exchange Rights.................................................................... 93
Section 19.9. No Conversion Rights............................................................... 98
Section 19.10. No Sinking Fund.................................................................... 98
ARTICLE 20. INTENTIONALLY OMITTED..................................................................... 98
ARTICLE 21. SERIES H PREFERRED UNITS.................................................................. 98
Section 21.1. Designation and Number............................................................. 98
Section 21.2. Ranking............................................................................ 99
Section 21.3. Distributions...................................................................... 99
Section 21.4. Liquidation Proceeds...............................................................101
Section 21.5. Series H Redemption................................................................101
Section 21.6. Voting and Certain Management Rights...............................................102
Section 21.7. Transfer Restrictions..............................................................105
Section 21.8. Exchange Rights....................................................................105
Section 21.9. No Conversion Rights...............................................................109
Section 21.10. No Sinking Fund....................................................................109
ARTICLE 22. SERIES I PREFERRED UNITS..................................................................110
Section 22.1. Designation and Number.............................................................110
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Section 22.2. Ranking............................................................................110
Section 22.3. Distributions......................................................................110
Section 22.4. Liquidation Proceeds...............................................................112
Section 22.5. Series I Redemption................................................................112
Section 22.6. Voting and Certain Management Rights...............................................114
Section 22.7. Transfer Restrictions..............................................................116
Section 22.8. Exchange Rights....................................................................116
Section 22.9. No Conversion Rights...............................................................120
Section 22.10. No Sinking Fund....................................................................121
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ELEVENTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
AMB PROPERTY II, L.P.
THIS ELEVENTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP, dated
as of July 31, 2002, is entered into by and among AMB Property Holding
Corporation, a Maryland corporation (the "Company"), as the General Partner, and
the Persons whose names are set forth on Exhibit A attached hereto, as the
Limited Partners (the "Existing Limited Partners"), together with any other
Persons who become Partners in the Partnership as provided herein.
WHEREAS, the General Partner and the Existing Limited Partners are
parties to that certain Tenth Amended and Restated Agreement of
Limited Partnership, dated December 6, 2001, as amended;
WHEREAS, on November 24, 1998, Belcrest Realty Corporation, a
Delaware corporation and Belair Real Estate Corporation, a Delaware corporation
(each a "Contributor" and, together the "Contributors") made an aggregate
Capital Contribution of $110,000,000, in cash, to the Partnership in exchange
for which the Contributors received an aggregate of 2,200,000 Series C Preferred
Units in the Partnership;
WHEREAS, on May 5, 1999, ▇.▇. ▇▇▇▇▇▇ Mosaic Fund, LLC, a Delaware
limited liability company (the "Series D Contributor") made a
Capital Contribution of $79,766,850, in cash, to the Partnership in
exchange for which the Series D Contributor received 1,595,337 Series D
Preferred Units in the Partnership;
WHEREAS, on August 31, 1999, Fifth Third Equity Exchange Fund 1999,
LLC, a Delaware limited liability company (the "Series E Contributor") made a
Capital Contribution of $11,022,000, in cash, to the Partnership in exchange for
which the Series E Contributor received 220,440 Series E Preferred Units in the
Partnership;
WHEREAS, on March 22, 2000, Bailard, ▇▇▇▇▇ & ▇▇▇▇▇▇ Technology
Exchange Fund, LLC, a Delaware limited liability company (the "Series F
Contributor") made a Capital Contribution of $19,871,950, in cash, to the
Partnership in exchange for which the Series F Contributor received 397,439
Series F Preferred Units in the Partnership;
WHEREAS, on August 29, 2000, Bailard, ▇▇▇▇▇ & ▇▇▇▇▇▇ Technology
Exchange Fund, LLC, a Delaware limited liability company (the "Series G
Contributor") made a Capital Contribution of $1,000,000, in cash, to the
Partnership in exchange for which the Series G Contributor received 20,000
Series G Preferred Units in the Partnership;
WHEREAS, on September 1, 2000, ▇.▇. ▇▇▇▇▇▇ Mosaic Fund IV, LLC, a
Delaware limited liability company (the "Series H Contributor") made a Capital
Contribution of $42,000,000, in cash, to the Partnership in exchange for which
the Series H Contributor received 840,000 Series H Preferred Units in the
Partnership;
WHEREAS, on March 21, 2001, ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Mosaic Fund V, LLC, a
Delaware limited liability company (the "Series I Contributor") made a Capital
Contribution of $25,500,000, in cash, to the Partnership in exchange for which
the Series I Contributor received 510,000 Series I Preferred Units in the
Partnership;
WHEREAS, pursuant to Section 7.3D(ii), this Agreement may be amended
by the General Partner to reflect the termination of or reduction in Partnership
Units or the withdrawal of Partners; and
WHEREAS, on the date hereof, the Partnership has repurchased and
redeemed 130,000 of the Series F Preferred Units and all 20,000 of the
outstanding Series G Preferred Units from the Series F and G Limited Partner
pursuant to the terms of a Preferred Unit Repurchase Agreement, entered into by
and among the Partnership, the General Partner and the Series F and G Limited
Partner.
WHEREAS, pursuant to the authority granted to the General Partner
under this Agreement, the General Partner desires to amend and restate this
Agreement to reflect the reduction of outstanding Series F Preferred Units and
the elimination of the Series G Preferred Units reflected on Exhibit A hereto;
and
WHEREAS, by virtue of the execution of this Agreement by the Company
in its capacity as General Partner of the Partnership, the General Partner
hereby consents to the amendment and restatement of the Tenth Amended and
Restated Agreement of Limited Partnership.
NOW, THEREFORE, for good and adequate consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1.
DEFINED TERMS AND RULES OF CONSTRUCTION
Section 1.1. Definitions
The following definitions shall be for all purposes, unless
otherwise clearly indicated to the contrary, applied to the terms used in this
Agreement.
"Act" means the Delaware Revised Uniform Limited Partnership Act, as
it may be amended from time to time, and any successor to such statute.
"Additional Funds" shall have the meaning set forth in Section
4.3.A.
"Additional Limited Partner" means a Person admitted to the
Partnership as a Limited Partner pursuant to Section 12.2 and who is shown as
such on the books and records of the Partnership.
"Adjusted Capital Account Deficit" means, with respect to any
Partner, the deficit balance, if any, in such Partner's Capital Account as of
the end of the relevant fiscal year, after giving effect to the following
adjustments:
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(i) decrease such deficit by any amounts which such Partner is
obligated to restore pursuant to this Agreement or is deemed
to be obligated to restore pursuant to Regulations Section
1.704-1(b)(2)(ii)(c) or the penultimate sentence of each of
Regulations Sections 1.704-2(i)(5) and 1.704-2(g); and
(ii) increase such deficit by the items described in Regulations
Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
The foregoing definition of Adjusted Capital Account Deficit is
intended to comply with the provisions of Regulations Section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
"Adjustment Date" shall have the meaning set forth in Section 4.3.D.
"Affiliate" means, with respect to any Person, any Person directly
or indirectly controlling, controlled by or under common control with such
Person.
"Agreed Value" means (i) in the case of any Contributed Property set
forth in Exhibit A and as of the time of its contribution to the Partnership,
the Agreed Value of such property as set forth in Exhibit A; (ii) in the case of
any Contributed Property not set forth in Exhibit A and as of the time of its
contribution to the Partnership, the fair market value of such property or other
consideration as determined by the General Partner, reduced by any liabilities
either assumed by the Partnership upon such contribution or to which such
property is subject when contributed; and (iii) in the case of any property
distributed to a Partner by the Partnership, the fair market value of such
property as determined by the General Partner at the time such property is
distributed, reduced by any indebtedness either assumed by such Partner upon
such distribution or to which such property is subject at the time of the
distribution as determined under Section 752 of the Code and the Regulations
thereunder.
"Agreement" means this Eleventh Amended and Restated Agreement of
Limited Partnership, as it may be amended, modified, supplemented or restated
from time to time.
"AMB" means AMB Property Corporation, a Maryland corporation, in its
capacity as the owner of 100% of the common stock of the General Partner and as
the sole general partner of the Operating Partnership.
"Appraisal" means with respect to any assets, the opinion of an
independent third party experienced in the valuation of similar assets, selected
by the General Partner in good faith; such opinion may be in the form of an
opinion by such independent third party that the value for such asset as set by
the General Partner is fair, from a financial point of view, to the Partnership.
"Assignee" means a Person to whom one or more Partnership Units have
been transferred in a manner permitted under this Agreement, but who has not
become a Substituted Limited Partner, and who has the rights set forth in
Section 11.5.
"Available Cash" means, with respect to any period for which such
calculation is being made, (i) the sum of:
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(a) the Partnership's Net Income or Net Loss (as the case may
be) for such period,
(b) Depreciation and all other noncash charges deducted in
determining Net Income or Net Loss for such period,
(c) the amount of any reduction in reserves of the Partnership
referred to in clause (ii)(f) below (including, without limitation,
reductions resulting because the General Partner determines such
amounts are no longer necessary),
(d) the excess of the net proceeds from the sale, exchange,
disposition, or refinancing of Partnership property for such period
over the gain (or loss, as the case may be) recognized from any such
sale, exchange, disposition, or refinancing during such period, and
(e) all other cash received by the Partnership for such period
that was not included in determining Net Income or Net Loss for such
period;
(ii) less the sum of:
(a) all principal debt payments made during such period by the
Partnership,
(b) capital expenditures made by the Partnership during such
period,
(c) investments in any entity (including loans made thereto)
to the extent that such investments are not otherwise described in
clauses (ii)(a) or (b),
(d) all other expenditures and payments not deducted in
determining Net Income or Net Loss for such period,
(e) any amount included in determining Net Income or Net Loss
for such period that was not received by the Partnership during such
period,
(f) the amount of any increase in reserves established during
such period which the General Partner determines are necessary or
appropriate in its sole and absolute discretion, and
(g) the amount of any working capital accounts and other cash
or similar balances which the General Partner determines to be
necessary or appropriate in its sole and absolute discretion.
Notwithstanding the foregoing, Available Cash shall not include any
cash received or reductions in reserves, or take into account any disbursements
made or reserves established, after commencement of the dissolution and
liquidation of the Partnership.
"Board of Directors" means the Board of Directors of AMB.
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"Business Day" means each day, other than a Saturday or a Sunday,
which is not a day on which banking institutions in Los Angeles, California or
New York, New York are authorized or required by law, regulation or executive
order to close.
"Capital Account" means, with respect to any Partner, the Capital
Account maintained for such Partner in accordance with the following provisions:
(i) To each Partner's Capital Account there shall be added such
Partner's Capital Contributions, such Partner's share of Net Income and any
items in the nature of income or gain which are specially allocated pursuant to
Section 6.3, and the amount of any Partnership liabilities assumed by such
Partner or which are secured by any property distributed to such Partner.
(ii) From each Partner's Capital Account there shall be subtracted
the amount of cash and the Gross Asset Value of any property distributed to such
Partner pursuant to any provision of this Agreement, such Partner's distributive
share of Net Losses and any items in the nature of expenses or losses which are
specially allocated pursuant to Section 6.3 hereof, and the amount of any
liabilities of such Partner assumed by the Partnership or which are secured by
any property contributed by such Partner to the Partnership.
(iii) In the event any interest in the Partnership is transferred in
accordance with the terms of this Agreement, the transferee shall succeed to the
Capital Account of the transferor to the extent it relates to the transferred
interest.
(iv) In determining the amount of any liability for purposes of
subsections (i) and (ii) hereof, there shall be taken into account Code Section
752(c) and any other applicable provisions of the Code and Regulations.
(v) The foregoing provisions and the other provisions of this
Agreement relating to the maintenance of Capital Accounts are intended to comply
with Regulations Sections 1.704-1(b) and 1.704-2, and shall be interpreted and
applied in a manner consistent with such Regulations. In the event the General
Partner shall determine that it is prudent to modify the manner in which the
Capital Accounts, or any debits or credits thereto (including, without
limitation, debits or credits relating to liabilities which are secured by
contributed or distributed property or which are assumed by the Partnership, the
General Partner, or the Limited Partners) are computed in order to comply with
such Regulations, the General Partner may make such modification; provided that,
it is not likely to have a material effect on the amounts distributable to any
Person pursuant to Article 13 of this Agreement upon the dissolution of the
Partnership. The General Partner also shall (a) make any adjustments that are
necessary or appropriate to maintain equality between the Capital Accounts of
the Partners and the amount of Partnership capital reflected on the
Partnership's balance sheet, as computed for book purposes, in accordance with
Regulations Section 1.704-1(b)(2)(iv)(q) and (b) make any appropriate
modifications in the event unanticipated events might otherwise cause this
Agreement not to comply with Regulations Section 1.704-1(b) or Section 1.704-2.
"Capital Contribution" means, with respect to any Partner, the
amount of money and the initial Gross Asset Value of any property (other than
money) contributed to the Partnership by such Partner.
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"Certificate" means the Certificate of Limited Partnership relating
to the Partnership filed in the office of the Secretary of State of Delaware, as
amended from time to time in accordance with the terms hereof and the Act.
"Charter" means the Company's Articles of Incorporation, as filed
with the Maryland Department of Assessments and Taxation on November 24, 1997.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time or any successor statute thereto, as interpreted by the applicable
regulations thereunder. Any reference herein to a specific section or sections
of the Code shall be deemed to include a reference to any corresponding
provision of future law.
"Common Unit" means each Partnership Unit that is not entitled to
any preference with respect to any other Partnership Unit as to distribution or
voluntary or involuntary liquidation, dissolution or winding up of the
Partnership.
"Common Limited Partner" means any Person holding Common Units, and
named as a Common Limited Partner in Exhibit A attached hereto, as such Exhibit
may be amended from time to time, or any Substituted Limited Partner or
Additional Limited Partner, in such Person's capacity as a Common Limited
Partner in the Partnership.
"Consent" means the consent to, approval of, or vote on a proposed
action by a Partner given in accordance with Article 14 hereof.
"Consent of the Limited Partners" means the Consent of a Majority in
Interest of the Limited Partners, other than the Preferred Limited Partners,
which Consent shall be obtained prior to the taking of any action for which it
is required by this Agreement and may be given or withheld by a Majority in
Interest of the Limited Partners, unless otherwise expressly provided herein, in
their sole and absolute discretion.
"Consent of the Partners" means the Consent of Partners, other than
the Preferred Limited Partners, holding Percentage Interests that in the
aggregate are equal to or greater than a majority of the aggregate Percentage
Interests of all Partners, other than the Preferred Limited Partners, which
Consent shall be obtained prior to the taking of any action for which it is
required by this Agreement and may be given or withheld by such Partners, in
their sole and absolute discretion.
"Constructively Own" means ownership under the constructive
ownership rules described in Exhibit C.
"Contributed Property" means each property or other asset, in such
form as may be permitted by the Act, but excluding cash, contributed or deemed
contributed to the Partnership (or, to the extent provided in applicable
regulations, deemed contributed by the Partnership on termination and
reconstitution thereof pursuant to Section 708 of the Code).
"Contributor" shall have the meaning given to such term in the
recitals hereto.
"Debt" means, as to any Person, as of any date of determination: (i)
all indebtedness of such Person for borrowed money or for the deferred purchase
price of property
6
or services; (ii) all amounts owed by such Person to banks or other Persons in
respect of reimbursement obligations under letters of credit, surety bonds and
other similar instruments guaranteeing payment or other performance of
obligations by such Person; (iii) all indebtedness for borrowed money or for the
deferred purchase price of property or services secured by any lien on any
property owned by such Person, to the extent attributable to such Person's
interest in such property, even though such Person has not assumed or become
liable for the payment thereof; and (iv) lease obligations of such Person which,
in accordance with generally accepted accounting principles, should be
capitalized.
"Depreciation" means, for each fiscal year or other period, an
amount equal to the depreciation, amortization or other cost recovery deduction
allowable with respect to an asset for such year or other period, except that if
the Gross Asset Value of an asset differs from its adjusted basis for Federal
income tax purposes at the beginning of such year or other period, Depreciation
shall be an amount which bears the same ratio to such beginning Gross Asset
Value as the Federal income tax depreciation, amortization or other cost
recovery deduction for such year or other period bears to such beginning
adjusted tax basis; provided, however, that if the Federal income tax
depreciation, amortization or other cost recovery deduction for such year is
zero, Depreciation shall be determined with reference to such beginning Gross
Asset Value using any reasonable method selected by the General Partner.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
"Funding Debt" means the incurrence of any Debt by or on behalf of
the General Partner for the purpose of providing funds to the Partnership.
"Future Parity Preferred Capital" means, with respect to any series
of Parity Preferred Units issued to Future Parity Preferred Unitholders
following the date hereof, the product of (i) the number of Parity Preferred
Units within such series then held by Preferred Limited Partners (other than the
General Partner and the Operating Partnership) and (ii) the sum of the amount
contributed to the Partnership per such Parity Preferred Unit by Preferred
Limited Partners and the Preferred Distribution Shortfall with respect to each
such Parity Preferred Unit, if any.
"Future Parity Preferred Unitholders" shall have the meaning set
forth in Section 17.6.D.
"General Partner" means the Company or its successors as general
partner of the Partnership.
"General Partner Interest" means a Partnership Interest held by the
General Partner. A General Partner Interest may be expressed as a number of
Partnership Units.
"Gross Asset Value" means, with respect to any asset, the asset's
adjusted basis for Federal income tax purposes, except as follows:
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(i) The initial Gross Asset Value of any asset contributed by a
Partner to the Partnership shall be the gross fair market value of such asset,
as determined by the contributing Partner and the General Partner (as set forth
on Exhibit A attached hereto, as such Exhibit may be amended from time to time);
provided, that if the contributing Partner is the General Partner then, except
with respect to the General Partner's initial Capital Contribution which shall
be determined as set forth on Exhibit A, or capital contributions of cash, the
determination of the fair market value of the contributed asset shall be
determined by (a) the price paid by the General Partner if the asset is acquired
by the General Partner contemporaneously with its contribution to the
Partnership or (b) by Appraisal if otherwise acquired by the General Partner.
(ii) Immediately prior to the times listed below, the Gross Asset
Values of all Partnership assets shall be adjusted to equal their respective
gross fair market values, as determined by the General Partner using such
reasonable method of valuation as it may adopt:
(a) the acquisition of an additional interest in the Partnership
by a new or existing Partner in exchange for more than a de
minimis Capital Contribution, if the General Partner
reasonably determines that such adjustment is necessary or
appropriate to reflect the relative economic interests of the
Partners in the Partnership;
(b) the distribution by the Partnership to a Partner of more than
a de minimis amount of Partnership property as consideration
for an interest in the Partnership if the General Partner
reasonably determines that such adjustment is necessary or
appropriate to reflect the relative economic interests of the
Partners in the Partnership;
(c) the liquidation of the Partnership within the meaning of
Regulations Section 1.704-1(b)(2)(ii)(g); and
(d) at such other times as the General Partner shall reasonably
determine necessary or advisable in order to comply with
Regulations Sections 1.704-1(b) and 1.704-2.
(iii) The Gross Asset Value of any Partnership asset distributed to
a Partner shall be the gross fair market value of such asset on the date of
distribution as determined by the distributee and the General Partner; provided,
that if the distributee is the General Partner, or if the distributee and the
General Partner cannot agree on such a determination, by Appraisal.
(iv) The Gross Asset Values of Partnership assets shall be increased
(or decreased) to reflect any adjustments to the adjusted basis of such assets
pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent
that such adjustments are taken into account in determining Capital Accounts
pursuant to Regulations Section 1.704-1(b)(2)(iv)(m); provided, however, that
Gross Asset Values shall not be adjusted pursuant to this subparagraph (iv) to
the extent that the General Partner reasonably determines that an adjustment
pursuant to subparagraph (ii) is necessary or appropriate in connection with a
transaction that would otherwise result in an adjustment pursuant to this
subparagraph (iv).
(v) If the Gross Asset Value of a Partnership asset has been
determined or adjusted pursuant to subparagraph (i), (ii) or (iv), such Gross
Asset Value shall thereafter be
8
adjusted by the Depreciation taken into account with respect to such asset for
purposes of computing Net Income and Net Losses.
"Holder" means either the Partner or Assignee owning a Partnership
Unit.
"Immediate Family" means, with respect to any natural Person, such
natural Person's estate or heirs or current spouse or former spouse, parents,
parents-in-law, children, siblings and grandchildren and any trust or estate,
all of the beneficiaries of which consist of such Person or such Person's
spouse, former spouse, parents, parents-in-law, children, siblings or
grandchildren.
"Incapacity" or "Incapacitated" means: (i) as to any individual
Partner, death, total physical disability or entry by a court of competent
jurisdiction adjudicating him or her incompetent to manage his or her Person or
his or her estate; (ii) as to any corporation which is a Partner, the filing of
a certificate of dissolution, or its equivalent, for the corporation or the
revocation of its charter; (iii) as to any partnership which is a Partner, the
dissolution and commencement of winding up of the partnership; (iv) as to any
estate which is a Partner, the distribution by the fiduciary of the estate's
entire interest in the Partnership; (v) as to any trustee of a trust which is a
Partner, the termination of the trust (but not the substitution of a new
trustee); or (vi) as to any Partner, the bankruptcy of such Partner. For
purposes of this definition, bankruptcy of a Partner shall be deemed to have
occurred when (a) the Partner commences a voluntary proceeding seeking
liquidation, reorganization or other relief under any bankruptcy, insolvency or
other similar law now or hereafter in effect, (b) the Partner is adjudged as
bankrupt or insolvent, or a final and nonappealable order for relief under any
bankruptcy, insolvency or similar law now or hereafter in effect has been
entered against the Partner, (c) the Partner executes and delivers a general
assignment for the benefit of the Partner's creditors, (d) the Partner files an
answer or other pleading admitting or failing to contest the material
allegations of a petition filed against the Partner in any proceeding of the
nature described in clause (b) above, (e) the Partner seeks, consents to or
acquiesces in the appointment of a trustee, receiver or liquidator for the
Partner or for all or any substantial part of the Partner's properties, (f) any
proceeding seeking liquidation, reorganization or other relief under any
bankruptcy, insolvency or other similar law now or hereafter in effect has not
been dismissed within one hundred and twenty (120) days after the commencement
thereof, (g) the appointment without the Partner's consent or acquiescence of a
trustee, receiver or liquidator has not been vacated or stayed within ninety
(90) days of such appointment or (h) an appointment referred to in clause (g) is
not vacated within ninety (90) days after the expiration of any such stay.
"Indemnitee" means (i) any Person subject to a claim or demand or
made or threatened to be made a party to, or involved or threatened to be
involved in, an action, suit or proceeding by reason of his or her status as (a)
the General Partner or (b) a director, officer, employee or agent of the
Partnership or the General Partner and (ii) such other Persons (including
Affiliates of the General Partner or the Partnership) as the General Partner may
designate from time to time, in its sole and absolute discretion.
"IRS" means the Internal Revenue Service, which administers the
internal revenue laws of the United States.
9
"Junior Stock" means shares of capital stock of AMB representing any
class or series of equity interest ranking, as to distributions and voluntary or
involuntary liquidation, dissolution or winding up of AMB, junior to the Series
D Preferred Shares, the Series E Preferred Shares, the Series F Preferred
Shares, the Series H Preferred Shares and the Series I Preferred Shares.
"Junior Units" means Partnership Units representing any class or
series of Partnership Interest ranking, as to distributions and voluntary or
involuntary liquidation, dissolution or winding up of the Partnership, junior to
the Series D Preferred Units, the Series E Preferred Units, the Series F
Preferred Units, the Series H Preferred Units and the Series I Preferred Units.
"Limited Partner" means any Person named as a Limited Partner in
Exhibit A attached hereto, as such Exhibit may be amended from time to time, any
Substituted Limited Partner or Additional Limited Partner, in such Person's
capacity as a Limited Partner in the Partnership.
"Limited Partnership Interest" means a Partnership Interest of a
Limited Partner representing a fractional part of the Partnership Interests of
all Limited Partners and includes any and all benefits to which the holder of
such a Partnership Interest may be entitled as provided in this Agreement,
together with all obligations of such Person to comply with the terms and
provisions of this Agreement. A Limited Partnership Interest may be expressed as
a number of Partnership Units.
"Liquidating Events" shall have the meaning set forth in Section
13.1.
"Liquidator" shall have the meaning set forth in Section 13.2.A.
"Majority in Interest of the Limited Partners" means Limited
Partners (other than any Preferred Limited Partner) holding Percentage Interests
that in the aggregate are greater than fifty percent (50%) of the aggregate
Percentage Interests of all Limited Partners (other than any Preferred Limited
Partner).
"Majority in Interest of Partners" means Partners (other than
Preferred Limited Partners) holding Percentage Interests that are greater than
fifty percent (50%) of the aggregate Percentage Interests of all Partners (other
than Preferred Limited Partners).
"Net Income" or "Net Loss" means for each fiscal year of the
Partnership, an amount equal to the Partnership's taxable income or loss for
such fiscal year, determined in accordance with Code Section 703(a) (for this
purpose, all items of income, gain, loss or deduction required to be stated
separately pursuant to Code Section 703(a)(1) shall be included in taxable
income or loss), with the following adjustments:
(i) Any income of the Partnership that is exempt from Federal income
tax and not otherwise taken into account in computing Net Income or Net Loss
pursuant to this definition of Net Income or Net Loss shall be added to such
taxable income or loss;
(ii) Any expenditures of the Partnership described in Code Section
705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to
Regulations
10
Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing
Net Income or Net Loss pursuant to this definition of Net Income or Net Loss
shall be subtracted from such taxable income or loss;
(iii) In the event the Gross Asset Value of any Partnership asset is
adjusted pursuant to subparagraph (ii) or (iii) of the definition of Gross Asset
Value, the amount of such adjustment shall be taken into account as gain or loss
from the disposition of such asset for purposes of computing Net Income or Net
Loss;
(iv) Gain or loss resulting from any disposition of property with
respect to which gain or loss is recognized for Federal income tax purposes
shall be computed by reference to the Gross Asset Value of the property disposed
of, notwithstanding that the adjusted tax basis of such property differs from
its Gross Asset Value;
(v) In lieu of the depreciation, amortization, and other cost
recovery deductions taken into account in computing such taxable income or loss,
there shall be taken into account Depreciation for such fiscal year;
(vi) To the extent an adjustment to the adjusted tax basis of any
Partnership asset pursuant to Code Section 734(b) or Code Section 743(b) is
required pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(4) to be taken
into account in determining Capital Accounts as a result of a distribution other
than in liquidation of a Partner's interest in the Partnership, the amount of
such adjustment shall be treated as an item of gain (if the adjustment increases
the basis of the asset) or loss (if the adjustment decreases the basis of the
asset) from the disposition of the asset and shall be taken into account for
purposes of computing Net Income or Net Loss; and
(vii) Notwithstanding any other provision of this definition of Net
Income or Net Loss, any items which are specially allocated pursuant to Section
6.3 shall not be taken into account in computing Net Income or Net Loss. The
amounts of the items of Partnership income, gain, loss, or deduction available
to be specially allocated pursuant to Section 6.3 shall be determined by
applying rules analogous to those set forth in this definition of Net Income or
Net Loss.
Solely for purposes of allocating Net Income or Net Loss in any
Fiscal Year to the Holders of the Series D Preferred Units, the Series E
Preferred Units, the Series F Preferred Units, the Series H Preferred Units and
the Series I Preferred Units pursuant to Sections 6.2.B.1(c) and (e), and
Section 6.2.B.2(b), items of Net Income and Net Loss, as the case may be, shall
not include Depreciation with respect to properties that are "ceiling limited"
in respect of Preferred Limited Partners. For purposes of the preceding
sentence, Partnership property shall be considered ceiling limited in respect of
a Preferred Limited Partner if Depreciation attributable to such Partnership
property which would otherwise be allocable to such Partner, without regard to
this paragraph, exceeded depreciation determined for federal income tax purposes
attributable to such Partnership property which would otherwise be allocable to
such Partner by more than 5%.
11
"Nonrecourse Deductions" shall have the meaning set forth in
Regulations Section 1.704-2(b)(1), and the amount of Nonrecourse Deductions for
a Partnership Year shall be determined in accordance with the rules of
Regulations Section 1.704-2(c).
"Nonrecourse Liability" shall have the meaning set forth in
Regulations Section 1.752-1(a)(2).
"Notice of Redemption" means the Notice of Redemption substantially
in the form of Exhibit B to this Agreement.
"Operating Partnership" means AMB Property, L.P., a Delaware limited
partnership.
"Parity Preferred Capital" means the sum of (i) the aggregate Series
D Preferred Capital for all Holders of Series D Preferred Units (other than the
General Partner and the Operating Partnership), (ii) the aggregate Series E
Preferred Capital for all Holders of Series E Preferred Units (other than the
General Partner and the Operating Partnership), (iii) the aggregate Series F
Preferred Capital for all Holders of Series F Preferred Units (other than the
General Partner and the Operating Partnership), (iv) the aggregate Series H
Preferred Capital for all Holders of Series H Preferred Units (other than the
General Partner and the Operating Partnership), (v) the aggregate Series I
Preferred Capital for all Holders of Series I Preferred Units (other than the
General Partner and the Operating Partnership) and (vi) the aggregate Future
Parity Preferred Capital for each series of Preferred Units issued following the
date hereof.
"Parity Preferred Stock" means any class or series of equity
interest of AMB now or hereafter authorized, issued or outstanding expressly
designated by AMB to rank on a parity with the Series D Preferred Shares, the
Series E Preferred Shares, the Series F Preferred Shares, the Series H Preferred
Shares and the Series I Preferred Shares with respect to distributions and
rights upon voluntary or involuntary liquidation, winding up or dissolution of
AMB.
"Parity Preferred Unit" means any class or series of Partnership
Interests of the Partnership now or hereafter authorized, issued or outstanding
expressly designated by the Partnership to rank on a parity with the Series D
Preferred Units, the Series E Preferred Units, the Series F Preferred Units, the
Series H Preferred Units and the Series I Preferred Units with respect to
distributions and rights upon voluntary or involuntary liquidation, winding up
or dissolution of the Partnership.
"Partner" means a General Partner or a Limited Partner, and
"Partners" means the General Partner and the Limited Partners.
"Partner Minimum Gain" means an amount, with respect to each Partner
Nonrecourse Debt, equal to the Partnership Minimum Gain that would result if
such Partner Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Regulations Section 1.704-2(i)(3).
"Partner Nonrecourse Debt" shall have the meaning set forth in
Regulations Section 1.704-2(b)(4).
12
"Partner Nonrecourse Deductions" shall have the meaning set forth in
Regulations Section 1.704-2(i)(2), and the amount of Partner Nonrecourse
Deductions with respect to a Partner Nonrecourse Debt for a Partnership Year
shall be determined in accordance with the rules of Regulations Section
1.704-2(i)(2).
"Partnership" means the limited partnership formed under the Act and
pursuant to this Agreement, and any successor thereto.
"Partnership Interest" means an ownership interest in the
Partnership of either a Limited Partner or the General Partner and includes any
and all benefits to which the holder of such a Partnership Interest may be
entitled as provided in this Agreement, together with all obligations of such
Person to comply with the terms and provisions of this Agreement. There may be
one or more classes of Partnership Interests as provided in Section 4.3. A
Partnership Interest may be expressed as a number of Partnership Units. Unless
otherwise expressly provided for by the General Partner at the time of the
original issuance of any Partnership Interests, all Partnership Interests
(whether of a Limited Partner or a General Partner) shall be of the same class.
The Partnership Interests represented by the Common Units, the Series D
Preferred Units, the Series E Preferred Units, the Series F Preferred Units, the
Series H Preferred Units and the Series I Preferred Units are the only
Partnership Interests and each such type of unit is a separate class of
Partnership Interest for all purposes of this Agreement.
"Partnership Minimum Gain" shall have the meaning set forth in
Regulations Section 1.704-2(b)(2), and the amount of Partnership Minimum Gain,
as well as any net increase or decrease in Partnership Minimum Gain, for a
Partnership Year shall be determined in accordance with the rules of Regulations
Section 1.704-2(d).
"Partnership Record Date" means the record date established by the
General Partner for the distribution of Available Cash with respect to Common
Units pursuant to Section 5.1 which record date shall be the same as the record
date established by AMB for a distribution to its stockholders of some or all of
its portion of such distribution.
"Partnership Unit" means, with respect to any class of Partnership
Interest, a fractional, undivided share of such class of Partnership Interest
issued pursuant to Sections 4.1 and 4.3. The ownership of Partnership Units may
be evidenced by a certificate for units substantially in the form of Exhibit D-1
hereto or as the General Partner may determine with respect to any class of
Partnership Units issued from time to time under Sections 4.1 and 4.3.
"Partnership Year" means the fiscal year of the Partnership, which
shall be the calendar year.
"Percentage Interest" means, as to a Partner holding a class of
Partnership Interests, its interest in the Partnership as determined by dividing
the Partnership Units of such class owned by such Partner by the total number of
Partnership Units of such class then outstanding as specified in Exhibit A
attached hereto, as such Exhibit may be amended from time to time. If the
Partnership issues more than one class of Partnership Interest, the interest in
the Partnership among the classes of Partnership Interests shall be determined
as set forth in the amendment to the Partnership Agreement setting forth the
rights and privileges of such additional classes of Partnership Interest, if
any, as contemplated by Section 4.3.B.
13
"Person" means an individual or a corporation, partnership, limited
liability company, trust, unincorporated organization, association or other
entity.
"Plan Asset Regulation" means the regulations promulgated by the
United States Department of Labor in Title 29, Code of Federal Regulations, Part
2510, Section 101-3, and any successor regulations thereto.
"Pledge" shall have the meaning set forth in Section 11.3.A.
"Preferred Distribution Shortfall" shall have the meaning given to
such term in Section 5.1 hereof.
"Preferred Limited Partner" means any Person holding a Preferred
Unit, and named as a Preferred Limited Partner in Exhibit A attached hereto, as
such Exhibit may be amended from time to time, or any Substitute Limited Partner
or Additional Limited Partner, in such Person's capacity as a Preferred Limited
Partner in the Partnership.
"Preferred Share" means a share of AMB preferred stock, par value
$.01 per share, with such rights, priorities and preferences as shall be
designated by the Board of Directors in accordance with the REIT Charter.
"Preferred Unit" means a Partnership Unit representing a Limited
Partnership Interest, with such preferential rights and priorities as shall be
designated by the General Partner pursuant to Section 4.3.C hereof including,
without limitation, the Series D Preferred Units, the Series E Preferred Units,
the Series F Preferred Units, the Series H Preferred Units and the Series I
Preferred Units.
"Priority Return" means with respect to (i) the Series D Preferred
Units, the Series D Priority Return, (ii) the Series E Preferred Units, the
Series E Priority Return, (iii) the Series F Preferred Units, the Series F
Priority Return, (iv) the Series H Preferred Units, the Series H Priority Return
and (v) the Series I Preferred Units, the Series I Priority Return.
"Properties" means such interests in real property and personal
property including without limitation, fee interests, interests in ground
leases, interests in joint ventures, interests in mortgages, and Debt
instruments as the Partnership may hold from time to time.
"PTP" shall have the meaning set forth in Section 17.8.
"Qualified REIT Subsidiary" means any Subsidiary of AMB that is a
"qualified REIT subsidiary" within the meaning of Section 856(i) of the Code.
"Qualified Transferee" means an "Accredited Investor" as defined in
Rule 501 promulgated under the Securities Act.
"Regulations" means the Income Tax Regulations promulgated under the
Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Regulatory Allocations" shall have the meaning set forth in Section
6.3.A(viii).
14
"REIT" means a real estate investment trust under Sections 856
through 860 of the Code.
"REIT Charter" means the Articles of Incorporation of AMB as of
November 24, 1997, as amended by the Articles Supplementary filed with the
Maryland Department of Assessments and Taxation on July 23, 1998 designating the
8 1/2% Series A Cumulative Redeemable Preferred Stock, the Articles
Supplementary filed with the Maryland Department of Assessments and Taxation on
November 12, 1998 designating the 8M% Series B Cumulative Redeemable Preferred
Stock, the Articles Supplementary filed with the Maryland Department of
Assessments and Taxation on November 24, 1998 designating the 8 3/4% Series C
Cumulative Redeemable Preferred Stock, the Articles Supplementary filed with the
Maryland Department of Assessments and Taxation on May 5, 1999 designating the
7.75% Series D Cumulative Redeemable Preferred Stock, the Articles Supplementary
filed with the Maryland Department of Assessments and Taxation on August 31,
1999 designating the 7.75% Series E Cumulative Redeemable Preferred Stock, the
Articles Supplementary filed with the Maryland Department of Assessments and
Taxation on March 23, 2000 designating the 7.95% Series F Cumulative Redeemable
Preferred Stock, the Articles Supplementary filed with the Maryland Department
of Assessments and Taxation on August 30, 2000 designating the 7.95% Series G
Cumulative Redeemable Preferred Stock, the Articles Supplementary filed with the
Maryland Department of Assessments and Taxation on September 1, 2000 designating
the 8.125% Series H Cumulative Redeemable Preferred Stock, the Articles
Supplementary filed with the Maryland Department of Assessments and Taxation on
March 21, 2001 designating the 8.00% Series I Cumulative Redeemable Preferred
Stock, the Articles Supplementary filed with the Maryland Department of
Assessments and Taxation on December 6, 2001 redesignating and reclassifying the
8 3/4% Series C Cumulative Redeemable Preferred Stock, the Articles
Supplementary to be filed with the Maryland Department of Assessments and
Taxation on August 7, 2002 redesignating and reclassifying the 130,000 shares of
7.95% Series F Cumulative Redeemable Preferred Stock and the Articles
Supplementary to be filed with the Maryland Department of Assessments and
Taxation on August 7, 2002 redesignating and reclassifying the 7.95% Series G
Cumulative Redeemable Preferred Stock, and as further amended or restated from
time to time.
"REIT Requirements" shall have the meaning set forth in Section 5.1.
"REIT Share" means a share of common stock, par value $.01 per
share, of AMB.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Securities and Exchange Commission promulgated
thereunder.
"Series B Preferred Units" means the 8 5/8% Series B Cumulative
Redeemable Partnership Units of the Operating Partnership.
"Series C Limited Partner" means any Person holding Series C
Preferred Units, which were repurchased and redeemed by the Partnership on
December 5, 2001.
"Series C Preferred Units" means the Partnership's 8 3/4% Series C
Cumulative Redeemable Partnership Units, which were repurchased and redeemed by
the Partnership on December 5, 2001.
15
"Series D Articles Supplementary" means the Articles Supplementary
of AMB in connection with its Series D Preferred Shares, as filed with the
Maryland Department of Assessments and Taxation on May 5, 1999.
"Series D Limited Partner" means any Person holding Series D
Preferred Units and named as a Series D Limited Partner in Exhibit A attached
hereto, as such Exhibit may be amended from time to time, or any Substitute
Limited Partner, in such Person's capacity as a Limited Partner in the
Partnership.
"Series D Preferred Capital" means a Capital Account balance equal
to the product of (i) the number of Series D Preferred Units then held by the
Series D Limited Partner (including the General Partner and the Operating
Partnership to the extent either of them holds Series C Preferred Units)
multiplied by (ii) the sum of $50 and any Preferred Distribution Shortfall per
Series D Preferred Unit.
"Series D Preferred Share" means a share of 7.75% Series D
Cumulative Redeemable Preferred Stock, par value $.01 per share, liquidation
preference $50 per share, of AMB.
"Series D Preferred Units" means the Partnership's 7.75% Series D
Cumulative Redeemable Membership Units.
"Series D Preferred Unit Distribution Payment Date" shall have the
meaning set forth in Section 17.3.A hereof.
"Series D Priority Return" shall mean an amount equal to 7.75% per
annum on an amount equal to $50 per Series D Preferred Unit then outstanding
(equivalent to $3.875 per annum). Such amount shall be determined on a daily
basis computed on the basis of a 360-day year of twelve 30-day months (or actual
days for any month which is shorter than a full monthly period), cumulative from
May 5, 1999 to the extent not distributed for any given distribution period
pursuant to Sections 5.1 and 17.3 hereof. Notwithstanding the foregoing,
distributions on the Series D Preferred Units will accrue whether or not the
terms and provisions of any agreement of the Partnership at any time prohibit
the current payment of distributions, whether or not the Partnership has
earnings, whether or not there are funds legally available for the payment of
such distributions and whether or not such distributions are authorized. Accrued
but unpaid distributions on the Series D Preferred Units will accumulate as of
the Series D Preferred Unit Distribution Payment Date on which they first become
payable.
"Series D Redemption" shall have the meaning set forth in Section
17.5.A.
"Series E Articles Supplementary" means the Articles Supplementary
of AMB in connection with its Series E Preferred Shares, as filed with the
Maryland Department of Assessments and Taxation on August 31, 1999.
"Series E Limited Partner" means any Person holding Series E
Preferred Units and named as a Series E Limited Partner in Exhibit A attached
hereto, as such Exhibit may be amended from time to time, or any Substitute
Limited Partner, in such Person's capacity as a Limited Partner in the
Partnership.
16
"Series E Preferred Capital" means a Capital Account balance equal
to the product of (i) the number of Series E Preferred Units then held by the
Holder (including the General Partner and the Operating Partnership to the
extent either of them holds Series E Preferred Units) multiplied by (ii) the sum
of $50 and any Preferred Distribution Shortfall per Series E Preferred Unit.
"Series E Preferred Share" means a share of 7.75% Series E
Cumulative Redeemable Preferred Stock, par value $.01 per share, liquidation
preference $50.00 per share, of AMB.
"Series E Preferred Units" means the Partnership's 7.75% Series E
Cumulative Redeemable Partnership Units.
"Series E Preferred Unit Distribution Payment Date" shall have the
meaning set forth in Section 18.3.A hereof.
"Series E Priority Return" shall mean an amount equal to 7.75% per
annum on an amount equal to $50.00 per Series E Preferred Unit then outstanding
(equivalent to $3.875 per annum). Such amount shall be determined on a daily
basis computed on the basis of a 360-day year of twelve 30-day months (or actual
days for any month which is shorter than a full monthly period), cumulative from
August 31, 1999 to the extent not distributed for any given distribution period
pursuant to Sections 5.1 and 18.3 hereof. Notwithstanding the foregoing,
distributions on the Series E Preferred Units will accrue whether or not the
terms and provisions of any agreement of the Partnership at any time prohibit
the current payment of distributions, whether or not the Partnership has
earnings, whether or not there are funds legally available for the payment of
such distributions and whether or not such distributions are authorized. Accrued
but unpaid distributions on the Series E Preferred Units will accumulate as of
the Series E Preferred Unit Distribution Payment Date on which they first become
payable.
"Series E Redemption" shall have the meaning set forth in Section
18.5.A.
"Series F Articles Supplementary" means the Articles Supplementary
of AMB in connection with its Series F Preferred Shares, as filed with the
Maryland Department of Assessments and Taxation on March 23, 2000 and the
Articles Supplementary to be filed with the Maryland Department of Assessments
and Taxation on August 7, 2002 redesignating and reclassifying the 130,000
shares of 7.95% Series F Cumulative Redeemable Preferred Stock.
"Series F Limited Partner" means any Person holding Series F
Preferred Units and named as a Series F Limited Partner in Exhibit A attached
hereto, as such Exhibit may be amended from time to time, or any Substitute
Limited Partner, in such Person's capacity as a Limited Partner in the
Partnership.
"Series F Preferred Capital" means a Capital Account balance equal
to the product of (i) the number of Series F Preferred Units then held by the
Holder (including the General Partner and the Operating Partnership to the
extent either of them holds Series F Preferred Units) multiplied by (ii) the sum
of $50 and any Preferred Distribution Shortfall per Series F Preferred Unit.
17
"Series F Preferred Share" means a share of 7.95% Series F
Cumulative Redeemable Preferred Stock, par value $.01 per share, liquidation
preference $50.00 per share, of AMB.
"Series F Preferred Units" means the Partnership's 7.95% Series F
Cumulative Redeemable Partnership Units.
"Series F Preferred Unit Distribution Payment Date" shall have the
meaning set forth in Section 19.3.A hereof.
"Series F Priority Return" shall mean an amount equal to 7.95% per
annum on an amount equal to $50.00 per Series F Preferred Unit then outstanding
(equivalent to $3.975 per annum). Such amount shall be determined on a daily
basis computed on the basis of a 360-day year of twelve 30-day months (or actual
days for any month which is shorter than a full monthly period), cumulative from
March 22, 2000 to the extent not distributed for any given distribution period
pursuant to Sections 5.1 and 19.3 hereof. Notwithstanding the foregoing,
distributions on the Series F Preferred Units will accrue whether or not the
terms and provisions of any agreement of the Partnership at any time prohibit
the current payment of distributions, whether or not the Partnership has
earnings, whether or not there are funds legally available for the payment of
such distributions and whether or not such distributions are authorized. Accrued
but unpaid distributions on the Series F Preferred Units will accumulate as of
the Series F Preferred Unit Distribution Payment Date on which they first become
payable.
"Series F Redemption" shall have the meaning set forth in Section
19.5.A.
"Series G Limited Partner" means any Person holding Series G
Preferred Units which were repurchased and redeemed by the Partnership on July
31, 2002.
"Series G Preferred Units" means the Partnership's 7.95% Series G
Cumulative Redeemable Partnership Units which were repurchased and redeemed by
the Partnership on July 31, 2002.
"Series H Articles Supplementary" means the Articles Supplementary
of AMB in connection with its Series H Preferred Shares, as filed with the
Maryland Department of Assessments and Taxation on September 1, 2000.
"Series H Limited Partner" means any Person holding Series H
Preferred Units and named as a Series H Limited Partner in Exhibit A attached
hereto, as such Exhibit may be amended from time to time, or any Substitute
Limited Partner, in such Person's capacity as a Limited Partner in the
Partnership.
"Series H Preferred Capital" means a Capital Account balance equal
to the product of (i) the number of Series H Preferred Units then held by the
Holder (including the General Partner and the Operating Partnership to the
extent either of them holds Series H Preferred Units) multiplied by (ii) the sum
of $50 and any Preferred Distribution Shortfall per Series H Preferred Unit.
18
"Series H Preferred Share" means a share of 8.125% Series H
Cumulative Redeemable Preferred Stock, par value $.01 per share, liquidation
preference $50.00 per share, of AMB.
"Series H Preferred Units" means the Partnership's 8.125% Series H
Cumulative Redeemable Partnership Units.
"Series H Preferred Unit Distribution Payment Date" shall have the
meaning set forth in Section 21.3.A hereof.
"Series H Priority Return" shall mean an amount equal to 8.125% per
annum on an amount equal to $50.00 per Series H Preferred Unit then outstanding
(equivalent to $4.0625 per annum). Such amount shall be determined on a daily
basis computed on the basis of a 360-day year of twelve 30-day months (or actual
days for any month which is shorter than a full monthly period), cumulative from
September 1, 2000 to the extent not distributed for any given distribution
period pursuant to Sections 5.1 and 21.3 hereof. Notwithstanding the foregoing,
distributions on the Series H Preferred Units will accrue whether or not the
terms and provisions of any agreement of the Partnership at any time prohibit
the current payment of distributions, whether or not the Partnership has
earnings, whether or not there are funds legally available for the payment of
such distributions and whether or not such distributions are authorized. Accrued
but unpaid distributions on the Series H Preferred Units will accumulate as of
the Series H Preferred Unit Distribution Payment Date on which they first become
payable.
"Series H Redemption" shall have the meaning set forth in Section
21.5.A.
"Series I Articles Supplementary" means the Articles Supplementary
of AMB in connection with its Series I Preferred Shares, as filed with the
Maryland Department of Assessments and Taxation on March 21, 2001.
"Series I Limited Partner" means any Person holding Series I
Preferred Units and named as a Series I Limited Partner in Exhibit A attached
hereto, as such Exhibit may be amended from time to time, or any Substitute
Limited Partner, in such Person's capacity as a Limited Partner in the
Partnership.
"Series I Preferred Capital" means a Capital Account balance equal
to the product of (i) the number of Series I Preferred Units then held by the
Holder (including the General Partner and the Operating Partnership to the
extent either of them holds Series I Preferred Units) multiplied by (ii) the sum
of $50 and any Preferred Distribution Shortfall per Series I Preferred Unit.
"Series I Preferred Share" means a share of 8.00% Series I
Cumulative Redeemable Preferred Stock, par value $.01 per share, liquidation
preference $50.00 per share, of AMB.
"Series I Preferred Units" means the Partnership's 8.00% Series I
Cumulative Redeemable Partnership Units.
"Series I Preferred Unit Distribution Payment Date" shall have the
meaning set forth in Section 22.3.A hereof.
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"Series I Priority Return" shall mean an amount equal to 8.00% per
annum on an amount equal to $50.00 per Series I Preferred Unit then outstanding
(equivalent to $4.00 per annum). Such amount shall be determined on a daily
basis computed on the basis of a 360-day year of twelve 30-day months (or actual
days for any month which is shorter than a full monthly period), cumulative from
March 21, 2001 to the extent not distributed for any given distribution period
pursuant to Sections 5.1 and 22.3 hereof. Notwithstanding the foregoing,
distributions on the Series I Preferred Units will accrue whether or not the
terms and provisions of any agreement of the Partnership at any time prohibit
the current payment of distributions, whether or not the Partnership has
earnings, whether or not there are funds legally available for the payment of
such distributions and whether or not such distributions are authorized. Accrued
but unpaid distributions on the Series I Preferred Units will accumulate as of
the Series I Preferred Unit Distribution Payment Date on which they first become
payable.
"Series I Redemption" shall have the meaning set forth in Section
22.5.A.
"Specified Redemption Date" means the day of receipt by the General
Partner of a Notice of Redemption.
"Subsidiary" shall mean, with respect to any person, any
corporation, partnership, limited liability company, joint venture or other
entity of which a majority of (i) the voting power of the voting equity
securities or (ii) the outstanding equity interests, is owned, directly or
indirectly, by such person.
"Subsidiary Partnership" means any partnership or limited liability
company that is a Subsidiary of the Partnership or the Operating Partnership.
"Substituted Limited Partner" means a Person who is admitted as a
Limited Partner to the Partnership pursuant to Section 11.4.
"Tax Items" shall have the meaning set forth in Section 6.4.A.
"Tenant" means any tenant from which AMB derives rent either
directly or indirectly through partnerships, including the Partnership.
ARTICLE 2.
ORGANIZATIONAL MATTERS
Section 2.1. Organization
The Partnership is a limited partnership formed pursuant to the
provisions of the Act and upon the terms and conditions set forth in this
Agreement. Except as expressly provided herein, the rights and obligations of
the Partners and the administration and termination of the Partnership shall be
governed by the Act. The Partnership Interest of each Partner shall be personal
property for all purposes.
Section 2.2. Name
The name of the Partnership is AMB Property II, L.P. The
Partnership's business may be conducted under any other name or names deemed
advisable by the General Partner,
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including the name of the General Partner or any Affiliate thereof. The words
"Limited Partnership," "L.P.," "Ltd." or similar words or letters shall be
included in the Partnership's name where necessary for the purposes of complying
with the laws of any jurisdiction that so requires. The General Partner in its
sole and absolute discretion may change the name of the Partnership at any time
and from time to time and shall notify the Limited Partners of such change in
the next regular communication to the Limited Partners.
Section 2.3. Resident Agent; Principal Office
The name and address of the resident agent of the Partnership in the
State of Delaware is The Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The address of the principal office of the
Partnership in the State of Delaware is The Corporation Trust Company, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at such address. The principal office
of the Partnership is located at ▇▇▇▇ ▇, ▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
or such other place as the General Partner may from time to time designate by
notice to the Limited Partners. The Partnership may maintain offices at such
other place or places within or outside the State of Delaware as the General
Partner deems advisable.
Section 2.4. Power of Attorney
A. Each Limited Partner and each Assignee constitutes and appoints
the General Partner, any Liquidator, and authorized officers and
attorneys-in-fact of each, and each of those acting singly, in each case with
full power of substitution, as its true and lawful agent and attorney-in-fact,
with full power and authority in its name, place and stead to:
(i) execute, swear to, acknowledge, deliver, file and record in
the appropriate public offices: (a) all certificates,
documents and other instruments (including, without
limitation, this Agreement and the Certificate and all
amendments or restatements thereof) that the General Partner
or the Liquidator deems appropriate or necessary to form,
qualify or continue the existence or qualification of the
Partnership as a limited partnership (or a partnership in
which the Limited Partners have limited liability) in the
State of Delaware and in all other jurisdictions in which the
Partnership may conduct business or own property; (b) all
instruments that the General Partner or any Liquidator deems
appropriate or necessary to reflect any amendment, change,
modification or restatement of this Agreement in accordance
with its terms; (c) all conveyances and other instruments or
documents that the General Partner or any Liquidator deems
appropriate or necessary to reflect the dissolution and
liquidation of the Partnership pursuant to the terms of this
Agreement, including, without limitation, a certificate of
cancellation; (d) all instruments relating to the admission,
withdrawal, removal or substitution of any Partner pursuant
to, or other events described in, Articles 11, 12 and 13 or
the Capital Contribution of any Partner; and (e) all
certificates, documents and other instruments relating to the
determination of the rights, preferences and privileges of
Partnership Interests; and
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(ii) execute, swear to, acknowledge and file all ballots, consents,
approvals, waivers, certificates and other instruments
appropriate or necessary, in the sole and absolute discretion
of the General Partner or any Liquidator, to make, evidence,
give, confirm or ratify any vote, consent, approval, agreement
or other action which is made or given by the Partners
hereunder or is consistent with the terms of this Agreement or
appropriate or necessary, in the sole discretion of the
General Partner or any Liquidator, to effectuate the terms or
intent of this Agreement.
Nothing contained herein shall be construed as authorizing the General Partner
or any Liquidator to amend this Agreement except in accordance with Article 14
or as may be otherwise expressly provided for in this Agreement.
B. The foregoing power of attorney is hereby declared to be
irrevocable and a power coupled with an interest, in recognition of the fact
that each of the Partners will be relying upon the power of the General Partner
and any Liquidator to act as contemplated by this Agreement in any filing or
other action by it on behalf of the Partnership, and it shall survive and not be
affected by the subsequent Incapacity of any Limited Partner or Assignee and the
transfer of all or any portion of such Limited Partner's or Assignee's
Partnership Units and shall extend to such Limited Partner's or Assignee's
heirs, successors, assigns and personal representatives. Each such Limited
Partner or Assignee hereby agrees to be bound by any representation made by the
General Partner or any Liquidator, acting in good faith pursuant to such power
of attorney; and each such Limited Partner or Assignee hereby waives any and all
defenses which may be available to contest, negate or disaffirm the action of
the General Partner or any Liquidator, taken in good faith under such power of
attorney. Each Limited Partner or Assignee shall execute and deliver to the
General Partner or any Liquidator, within fifteen (15) days after receipt of the
General Partner's or Liquidator's request therefor, such further designation,
powers of attorney and other instruments as the General Partner or the
Liquidator, as the case may be, deems necessary to effectuate this Agreement and
the purposes of the Partnership.
Section 2.5. Term
The term of the Partnership commenced on October 15, 1997 and shall
continue until October 15, 2096 unless it is dissolved sooner pursuant to the
provisions of Article 13 or as otherwise provided by law.
Section 2.6. Number of Partners
Without the consent of the General Partner which may be given or
withheld in its sole discretion, the Partnership shall not at any time have more
than one hundred (100) partners (including as partners those persons indirectly
owning an interest in the Partnership through a partnership, limited liability
company, S corporation or grantor trust (such entity, a "flow through entity"),
but only if substantially all of the value of such person's interest in the flow
through entity is attributable to the flow through entity's interest (direct or
indirect) in the Partnership).
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ARTICLE 3.
PURPOSE
Section 3.1. Purpose and Business
The purpose and nature of the business to be conducted by the
Partnership is (i) to conduct any business that may be lawfully conducted by a
limited partnership organized pursuant to the Act; provided, however, that such
business shall be limited to and conducted in such a manner as to permit AMB, in
its capacity as the owner of 100% of the Common Stock of the General Partner and
as the sole General Partner of the Operating Partnership, at all times to be
classified as a REIT for Federal income tax purposes, unless AMB ceases to
qualify as a REIT for reasons other than the conduct of the business of the
Partnership, (ii) to enter into any partnership, joint venture or other similar
arrangement to engage in any of the foregoing or to own interests in any entity
engaged, directly or indirectly, in any of the foregoing and (iii) to do
anything necessary or incidental to the foregoing. In connection with the
foregoing, and without limiting AMB's right in its sole discretion to cease
qualifying as a REIT, the Partners acknowledge that AMB's current status as a
REIT inures to the benefit of all the Partners and not solely the General
Partner.
Section 3.2. Powers
The Partnership is empowered to do any and all acts and things
necessary, appropriate, proper, advisable, incidental to or convenient for the
furtherance and accomplishment of the purposes and business described herein and
for the protection and benefit of the Partnership, including, without
limitation, full power and authority, directly or through its ownership interest
in other entities, to enter into, perform and carry out contracts of any kind,
borrow money and issue evidences of indebtedness, whether or not secured by
mortgage, deed of trust, pledge or other lien, acquire and develop real
property, and manage, lease, sell, transfer and dispose of real property;
provided, however, not withstanding anything to the contrary in this Agreement,
the Partnership shall not take, or refrain from taking, any action which, in the
judgment of AMB, in its sole and absolute discretion, (i) could adversely affect
the ability of AMB, in its capacity as the owner of 100% of the Common Stock of
the General Partner and as the sole general partner of the Operating
Partnership, to continue to qualify as a REIT, (ii) absent the consent of the
General Partner, which may be given or withheld in its sole and absolute
discretion, and except with respect to the distribution of Available Cash to the
Series D Limited Partners, the Series E Limited Partners, the Series F Limited
Partners, the Series H Limited Partners and the Series I Limited Partners in
accordance with Sections 17.3, 18.3, 19.3, 21.3 and 22.3, respectively, could
subject AMB to any taxes under Section 857 or Section 4981 of the Code, or (iii)
could violate any law or regulation of any governmental body or agency having
jurisdiction over AMB or its securities, unless any such action (or inaction)
under the foregoing clauses (i), (ii) or (iii) shall have been specifically
consented to by AMB in writing.
Section 3.3. Partnership Only for Purposes Specified
The Partnership shall be a partnership only for the purposes
specified in Section 3.1, and this Agreement shall not be deemed to create a
partnership among the Partners with respect to any activities whatsoever other
than the activities within the purposes of the Partnership as specified in
Section 3.1. Except as otherwise provided in this Agreement, no
23
Partner shall have any authority to act for, bind, commit or assume any
obligation or responsibility on behalf of the Partnership, its properties or any
other Partner. No Partner, in its capacity as a Partner under this Agreement,
shall be responsible or liable for any indebtedness or obligation of another
Partner, nor shall the Partnership be responsible or liable for any indebtedness
or obligation of any Partner, incurred either before or after the execution and
delivery of this Agreement by such Partner, except as to those responsibilities,
liabilities, indebtedness or obligations incurred pursuant to and as limited by
the terms of this Agreement and the Act.
Section 3.4. Representations and Warranties by the Parties
A. Each Partner that is an individual represents and warrants to
each other Partner that (i) such Partner has in the case of any Person other
than an individual, the power and authority, and in the case of an individual,
the legal capacity, to enter into this Agreement and perform such Partner's
obligations hereunder, (ii) the consummation of the transactions contemplated by
this Agreement to be performed by such Partner will not result in a breach or
violation of, or a default under, any agreement by which such Partner or any of
such Partner's property is or are bound, or any statute, regulation, order or
other law to which such Partner is subject, (iii) such Partner is neither a
"foreign person" within the meaning of Section 1445(f) of the Code nor a
"foreign partner" within the meaning of Section 1446(e) of the Code and (iv)
this Agreement has been duly executed and delivered by such Partner and is
binding upon, and enforceable against, such Partner in accordance with its
terms.
B. Each Partner that is not an individual represents and warrants to
each other Partner that (i) its execution and delivery of this Agreement and all
transactions contemplated by this Agreement to be performed by it have been duly
authorized by all necessary action, including without limitation, that of its
general partner(s), committee(s), trustee(s), beneficiaries, directors and/or
stockholder(s), as the case may be, as required, (ii) the consummation of such
transactions shall not result in a breach or violation of, or a default under,
its certificate of limited partnership, partnership agreement, trust agreement,
limited liability company operating agreement, charter or by-laws, as the case
may be, any agreement by which such Partner or any of such Partner's properties
or any of its partners, beneficiaries, trustees or stockholders, as the case may
be, is or are bound, or any statute, regulation, order or other law to which
such Partner or any of its partners, trustees, beneficiaries or stockholders, as
the case may be, is or are subject, (iii) such Partner is neither a "foreign
person" within the meaning of Section 1445(f) of the Code nor a "foreign
partner" within the meaning of Section 1446(e) of the Code and (iv) this
Agreement has been duly executed and delivered by such Partner and is binding
upon, and enforceable against, such Partner in accordance with its terms.
C. Each Partner represents, warrants and agrees that it has acquired
and continues to hold its interest in the Partnership for its own account for
investment only and not for the purpose of, or with a view toward, the resale or
distribution of all or any part thereof, nor with a view toward selling or
otherwise distributing such interest or any part thereof at any particular time
or under any predetermined circumstances. Each Partner further represents and
warrants that it is a sophisticated investor, able and accustomed to handling
sophisticated financial matters for itself, particularly real estate
investments, and that it has a sufficiently high net worth that it does not
anticipate a need for the funds it has invested in the Partnership in what it
understands to be a highly speculative and illiquid investment.
24
D. Each Partner further represents, warrants and agrees as follows:
(i) Except as provided in Exhibit E, at any time such Partner
actually or Constructively owns a 25% or greater capital interest or
profits interest in the Partnership, it does not and will not, without the
prior written consent of the General Partner, actually own or
Constructively Own (a) with respect to any Tenant that is a corporation,
any stock of such Tenant and (b) with respect to any Tenant that is not a
corporation, any interests in either the assets or net profits of such
Tenant.
(ii) Except as provided in Exhibit F, at any time such Partner
actually or Constructively owns a 25% or greater capital interest or
profits interest in the Partnership, it does not, and agrees that it will
not without the prior written consent of the General Partner, actually own
or Constructively Own, any stock in AMB, other than any shares of capital
stock of AMB that such Partner may acquire pursuant to Sections 17.8,
18.8, 19.8, 21.8 or 22.8, subject to the ownership limitations set forth
in the REIT Charter.
(iii) Upon request of the General Partner, it will disclose to
the General Partner the amount of shares of capital stock of AMB that it
actually owns or Constructively Owns.
(iv) It understands that if, for any reason, (a) the
representations, warranties or agreements set forth in Section 3.4.D(i) or
(ii) are violated or (b) the Partnership's actual or Constructive
Ownership of the REIT Shares or other shares of capital stock of AMB
violates the limitations set forth in the REIT Charter, then (x) some or
all of the Series D Redemption rights or rights to exchange Partnership
Interests for Series D Preferred Shares, some or all of the Series E
Redemption rights or rights to exchange Partnership Interests for Series E
Preferred Shares, some or all of the Series F Redemption rights or rights
to exchange Partnership Interests for Series F Preferred Shares, some or
all of the Series H Redemption rights or rights to exchange Partnership
Interests for Series H Preferred Shares or some or all of the Series I
Redemption rights or rights to exchange Partnership Interests for Series I
Preferred Shares of the Limited Partners may become non-exercisable, and
(y) some or all of such shares owned by the Partners and/or some or all of
the Partnership Interests owned by the Limited Partners may be
automatically transferred to a trust for the benefit of a charitable
beneficiary, as provided in the REIT Charter and Exhibit I of this
Agreement, respectively.
E. The representations and warranties contained in Sections 3.4.A,
3.4.B, 3.4.C and 3.4.D shall survive the execution and delivery of this
Agreement by each Partner and the dissolution and winding up of the Partnership.
F. Each Partner hereby acknowledges that no representations as to
potential profit, cash flows, funds from operations or yield, if any, in respect
of the Partnership or the General Partner have been made by any Partner or any
employee or representative or Affiliate of any Partner, and that projections and
any other information, including, without limitation, financial and descriptive
information and documentation, which may have been in any manner submitted to
such Partner shall not constitute any representation or warranty of any kind or
nature, express or implied.
25
Section 3.5. Certain ERISA Matters
Each Partner acknowledges that the Partnership is intended to
qualify as a "real estate operating company" (as such term is defined in the
Plan Asset Regulation). The General Partner will use its reasonable best efforts
to structure the investments in, relationships with and conduct with respect to
Properties and any other assets of the Partnership so that the Partnership will
be a "real estate operating company" (as such term is defined in the Plan Asset
Regulation).
ARTICLE 4.
CAPITAL CONTRIBUTIONS
Section 4.1. Capital Contributions of the Partners
At the time of their respective execution of this Agreement, the
Partners shall make or shall have made Capital Contributions as set forth in
Exhibit A to this Agreement. The Partners shall own Partnership Units of the
class and in the amounts set forth in Exhibit A and shall have a Percentage
Interest in the Partnership as set forth in Exhibit A, which Percentage Interest
shall be adjusted in Exhibit A from time to time by the General Partner to the
extent necessary to accurately reflect exchanges, redemptions, Capital
Contributions, the issuance of additional Partnership Units or similar events
having an effect on a Partner's Percentage Interest. Except as required by law
or as otherwise provided in Sections 4.3 and 10.5, no Partner shall be required
or permitted to make any additional Capital Contributions or loans to the
Partnership.
Section 4.2. Loans
Subject to Section 4.3, the Partnership may incur Debt, or enter
into other similar credit, guarantee, financing or refinancing arrangements for
any purpose (including, without limitation, in connection with any further
acquisition of Properties) with any Person, including the General Partner, the
Operating Partnership and their affiliates, upon such terms as the General
Partner determines appropriate; provided, that the Partnership shall not incur
any Debt that is recourse to the General Partner, except to the extent otherwise
agreed to by the General Partner in its sole discretion.
Section 4.3. Additional Funding and Capital Contributions
A. General. The General Partner may, at any time and from time to
time, determine that the Partnership requires additional funds ("Additional
Funds") for the acquisition of additional Properties or for such other
Partnership purposes as the General Partner may determine. Additional Funds may
be raised by the Partnership, at the election of the General Partner, in any
manner provided in, and in accordance with, the terms of this Section 4.3. No
Person shall have any preemptive, preferential or similar right or rights to
subscribe for or acquire any Partnership Interest.
B. Issuance of Additional Partnership Interests. The General Partner
may raise all or any portion of the Additional Funds by accepting additional
Capital Contributions of cash. The General Partner may also accept additional
Capital Contributions of real property or other non-cash assets. In connection
with any such additional Capital Contributions (of cash or property), and
subject to Sections 17.6, 18.6, 19.6, 21.6 and 22.6 hereof, the General Partner
is hereby authorized to cause the Partnership from time to time to issue to
Partners (including the
26
General Partner) or other Persons (including, without limitation, in connection
with the contribution of property to the Partnership) additional Partnership
Units or other Partnership Interests in one or more classes, or one or more
series of any of such classes, with such designations, preferences and relative,
participating, optional or other special rights, powers, and duties, including
rights, powers, and duties senior to then existing Limited Partnership
Interests, all as shall be determined by the General Partner in its sole and
absolute discretion subject to Delaware law, and as set forth by amendment to
this Agreement, including without limitation: (i) the allocations of items of
Partnership income, gain, loss, deduction, and credit to such class or series of
Partnership Interests; (ii) the right of each such class or series of
Partnership Interests to share in Partnership distributions; (iii) the rights of
each such class or series of Partnership Interests upon dissolution and
liquidation of the Partnership; and (iv) the right to vote. In the event that
the Partnership issues additional Partnership Interests pursuant to this Section
4.3.B, the General Partner shall make such revisions to this Agreement
(including but not limited to the revisions described in Sections 5.4 and 6.2.C)
as it determines are necessary to reflect the issuance of such additional
Partnership Interests.
C. Percentage Interest Adjustments in the Case of Capital
Contributions for Partnership Units. Upon the acceptance of additional Capital
Contributions in exchange for Partnership Units, the Percentage Interest related
thereto, and the Percentage Interest of each other Partner, shall be equal to
the amounts agreed to by the Partnership and the contributors.
D. AMB agrees to comply with Section 4.3.D of the Third Amended and
Restated Agreement of Limited Partnership of the Operating Partnership, as
amended or waived from time to time.
Section 4.4. No Preemptive Rights
Except to the extent expressly granted by the Partnership pursuant
to another agreement, no Person shall have any preemptive, preferential or other
similar right with respect to (i) making additional Capital Contributions or
loans to the Partnership or (ii) issuance or sale of any Partnership Units or
other Partnership Interests.
Section 4.5. Other Contribution Provisions
In the event that any Partner is admitted to the Partnership and is
given (or is treated as having received) a Capital Account in exchange for
services rendered to the Partnership, such transaction shall be treated by the
Partnership and the affected Partner as if the Partnership had compensated such
Partner in cash, and the Partner had contributed such cash to the capital of the
Partnership. In addition, with the consent of the General Partner, in its sole
discretion, one or more Limited Partners may enter into contribution agreements
with the Partnership which have the effect of providing a guarantee of certain
obligations of the Partnership.
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ARTICLE 5.
DISTRIBUTIONS
Section 5.1. Requirement and Characterization of Distributions
The General Partner shall cause the Partnership to distribute all,
or such portion as the General Partner may in its discretion determine,
Available Cash generated by the Partnership (i) first, to the extent that the
amount of cash distributed with respect to any Partnership Interests that are
entitled to any preference in distribution for any prior distribution period was
less than the required distribution for such outstanding Partnership Interests
for such prior distribution period, and to the extent such deficiency has not
been subsequently distributed pursuant to this Section 5.1 (a "Preferred
Distribution Shortfall"), in accordance with the rights of such class of
Partnership Interests (and within such class, pro rata in proportion to the
respective Percentage Interests on the applicable record date) and to the
Partners who are Partners on the applicable record date with respect to such
distribution, (ii) second, with respect to any Partnership Interests that are
entitled to any preference in distribution, in accordance with the rights of
such class of Partnership Interests (and within such class, pro rata in
proportion to the respective Percentage Interests on the applicable record date)
and (iii) third, with respect to Partnership Interests that are not entitled to
any preference in distribution, pro rata to each such class on a quarterly basis
and in accordance with the terms of such class to Partners who are Partners of
such class on the Partnership Record Date with respect to such distribution (and
within each such class, pro rata in proportion with the respective Percentage
Interests on such Partnership Record Date). Except as expressly provided for in
Article 17 with respect to the Series D Preferred Units, in Article 18 with
respect to the Series E Preferred Units, in Article 19 with respect to the
Series F Preferred Units, in Article 21 with respect to the Series H Preferred
Units, in Article 22 with respect to the Series I Preferred Units and in an
agreement, if any, entered into in connection with the creation of a new class
of Partnership Interests in accordance with Article 4, no Partnership Interest
shall be entitled to a distribution in preference to any other Partnership
Interest. The General Partner shall take such reasonable efforts, as determined
by it in its sole and absolute discretion and consistent with AMB's
qualification as a REIT, to cause the Partnership to distribute sufficient
amounts to enable AMB, in its capacity of general partner of the Operating
Partnership, and the sole stockholder of the General Partner, to pay stockholder
dividends that will, so long as AMB has determined to qualify as a REIT (a)
satisfy the requirements for qualifying as a REIT under the Code and Regulations
("REIT Requirements") and (b) except to the extent otherwise determined by the
General Partner, avoid any Federal income or excise tax liability of the AMB,
except to the extent that a distribution pursuant to clause (b) would prevent
the Partnership from making a distribution to the holders of Series D Preferred
Units, Series E Preferred Units, Series F Preferred Units, or Series H Preferred
Units in accordance with Sections 17.3, 18.3, 19.3, 21.3 and 22.3, respectively.
Section 5.2. Distributions in Kind
No right is given to any Partner to demand and receive property
other than cash. The General Partner may determine, in its sole and absolute
discretion, to make a distribution in kind to the Partners of Partnership
assets, and such assets shall be distributed in such a fashion as to ensure that
the fair market value is distributed and allocated in accordance with Articles
5, 6 and 10; provided, however, that, in such case, the General Partners shall
distribute only cash to
28
the Series D Limited Partners, the Series E Limited Partners, the Series F
Limited Partners, the Series H Limited Partners and Series I Limited Partners.
Section 5.3. Distributions Upon Liquidation
Proceeds from a Liquidating Event shall be distributed to the
Partners in accordance with Section 13.2.
Section 5.4. Distributions to Reflect Issuance of Additional Partnership
Interests
In the event that the Partnership issues additional Partnership
Interests to the General Partner or any Additional Limited Partner pursuant to
Section 4.3.B or 4.4, the General Partner shall make such revisions to this
Article 5 as it determines are necessary to reflect the issuance of such
additional Partnership Interests. In the absence of any agreement to the
contrary, an Additional Limited Partner shall be entitled to the distributions
set forth in Section 5.1 (without regard to this Section 5.4) with respect to
the quarter during which the closing of its contribution to the Partnership
occurs, multiplied by a fraction the numerator of which is the number of days
from and after the date of such closing through the end of the applicable
quarter, and the denominator of which is the total number of days in such
quarter.
ARTICLE 6.
ALLOCATIONS
Section 6.1. Timing and Amount of Allocations of Net Income and Net Loss
Net Income and Net Loss of the Partnership shall be determined and
allocated with respect to each fiscal year of the Partnership as of the end of
each such year. Subject to the other provisions of this Article 6, an allocation
to a Holder of a share of Net Income or Net Loss shall be treated as an
allocation of the same share of each item of income, gain, loss or deduction
that is taken into account in computing Net Income or Net Loss.
Section 6.2. General Allocations
A. In General. Except as otherwise provided in this Article 6, Net
Income and Net Loss allocable with respect to a class of Partnership Interests,
shall be allocated to each of the Holders holding such class of Partnership
Interests in accordance with their respective Percentage Interest of such class.
B. B.1. Net Income. Except as provided in Section 6.3, Net Income
for any Partnership Year shall be allocated in the following manner and order of
priority:
(a) First, 100% to the General Partner in an amount equal to the
remainder, if any, of the cumulative Net Losses allocated to
the General Partner pursuant to Section 6.2.B.2(d) for all
prior Partnership Years minus the cumulative Net Income
allocated to the General Partner pursuant to this Section
6.2.B.1(a) for all prior Partnership Years;
(b) Second, 100% to each Holder of Partnership Interests in an
amount equal to the remainder, if any, of the cumulative Net
Losses allocated to each
29
such Holder pursuant to Section 6.2.B.2(c) for all prior
Partnership Years minus the cumulative Net Income allocated to
such Holder pursuant to this Section 6.2.B.1(b) for all prior
Partnership Years;
(c) Third, 100% to the Holders of Preferred Units in an amount
equal to the remainder, if any, of the cumulative Net Losses
allocated to such Holders pursuant to Section 6.2.B.2(b) for
all prior Partnership Years minus the cumulative Net Income
allocated to such Holders pursuant to this Section 6.2.B.1(c)
for all prior Partnership Years;
(d) Fourth, 100% to the Holders of Common Units in an amount equal
to the remainder, if any, of the cumulative Net Losses
allocated to each such Holder pursuant to Section 6.2.B.2(a)
for all prior Partnership Years minus the cumulative Net
Income allocated to each Holder pursuant to this Section
6.2.B.1(d) for all prior Partnership Years;
(e) Fifth, 100% to the Holders of Preferred Units, with respect to
each series of Preferred Units, in an amount equal to the
excess of (i) the cumulative Priority Return to the last day
of the current Partnership Year or to the date of redemption
of such Preferred Units, to the extent such Preferred Units
are redeemed during such year, over (ii) the cumulative Net
Income allocated to the Holders of such Preferred Units,
pursuant to this Section 6.2.B.1(e) for all prior Partnership
Years; and
(f) Sixth, 100% to the Holders of Common Units in accordance with
their respective Percentage Interests in the Common Units.
To the extent the allocations of Net Income set forth above in any
paragraph of this Section 6.2.B.1 are not sufficient to entirely satisfy the
allocation set forth in such paragraph, such allocation shall be made in
proportion to the total amount that would have been allocated pursuant to such
paragraph without regard to such shortfall.
B.2. Net Losses. Except as provided in Section 6.3, Net Losses for
any Partnership Year shall be allocated in the following manner and order of
priority:
(a) First, 100% to the Holders of Common Units in accordance with
their respective Percentage Interests in the Common Units (to
the extent consistent with this Section 6.2.B.2(a)) until the
Adjusted Capital Account (ignoring for this purpose any
amounts a Holder is obligated to contribute to the capital of
the Partnership or is deemed obligated to contribute pursuant
to Regulations Section 1.704-1(b)(2)(ii)(c)(2) and ignoring
the Holder's Series D Preferred Capital, Series E Preferred
Capital, Series F Preferred Capital, Series H Preferred
Capital and Series I Preferred Capital) of each such Holder is
zero;
(b) Second, 100% to the Holders of Preferred Units, pro rata to
each such Holder's Adjusted Capital Account (ignoring for this
purpose any amounts a Holder is obligated to contribute to the
capital of the Partnership or is deemed obligated to
contribute pursuant to Regulations Section 1.704-
30
1(b)(2)(ii)(c)(2)), until the Adjusted Capital Account (as so
modified) of each such Holder is zero;
(c) Third, 100% to the Holders of Partnership Interests to the
extent of, and in proportion to, the positive balance (if any) in their Adjusted
Capital Accounts; and
(d) Fourth, 100% to the General Partner.
C. Allocations to Reflect Issuance of Additional Partnership
Interests. In the event that the Partnership issues additional Partnership
Interests to the General Partner or any Additional Limited Partner pursuant to
Section 4.3 or 4.4, the General Partner shall make such revisions to this
Section 6.2 or to Section 12.2.B as it determines are necessary to reflect the
terms of the issuance of such additional Partnership Interests, including making
preferential allocations to certain classes of Partnership Interests, subject to
the terms of the Series D Preferred Units, the Series E Preferred Units, the
Series F Preferred Units, the Series H Preferred Units and the Series I
Preferred Units.
Section 6.3. Additional Allocation Provisions
Notwithstanding the foregoing provisions of this Article 6:
A. Regulatory Allocations.
(i) Minimum Gain Chargeback. Except as otherwise provided in
Regulations Section 1.704-2(f), notwithstanding the provisions of Section
6.2, or any other provision of this Article 6, if there is a net decrease
in Partnership Minimum Gain during any fiscal year, each Holder shall be
specially allocated items of Partnership income and gain for such year
(and, if necessary, subsequent years) in an amount equal to such Holder's
share of the net decrease in Partnership Minimum Gain, as determined under
Regulations Section 1.704-2(g). Allocations pursuant to the previous
sentence shall be made in proportion to the respective amounts required to
be allocated to each Holder pursuant thereto. The items to be allocated
shall be determined in accordance with Regulations Sections 1.704-2(f)(6)
and 1.704-2(j)(2). This Section 6.3.A(i) is intended to qualify as a
"minimum gain chargeback" within the meaning of Regulation Section
1.704-2(f) which shall be controlling in the event of a conflict between
such Regulation and this Section 6.3.A(i).
(ii) Partner Minimum Gain Chargeback. Except as otherwise
provided in Regulations Section 1.704-2(i)(4), and notwithstanding the
provisions of Section 6.2, or any other provision of this Article 6
(except Section 6.3.A(i)), if there is a net decrease in Partner Minimum
Gain attributable to a Partner Nonrecourse Debt during any fiscal year,
each Holder who has a share of the Partner Minimum Gain attributable to
such Partner Nonrecourse Debt, determined in accordance with Regulations
Section 1.704-2(i)(5), shall be specially allocated items of Partnership
income and gain for such year (and, if necessary, subsequent years) in an
amount equal to such Holder's share of the net decrease in Partner Minimum
Gain attributable to such Partner Nonrecourse Debt, determined in
accordance with Regulations Section 1.704-2(i)(4). Allocations pursuant to
the previous sentence shall be made in proportion to the respective
amounts required to be allocated to each Holder pursuant thereto. The
items to be so allocated shall be
31
determined in accordance with Regulations Sections 1.704-2(i)(4) and
1.704-2(j)(2). This Section 6.3.A(ii) is intended to qualify as a
"chargeback of partner nonrecourse debt minimum gain" within the meaning
of Regulation Section 1.704-2(i) which shall be controlling in the event
of a conflict between such Regulation and this Section 6.3.A(ii).
(iii) Nonrecourse Deductions and Partner Nonrecourse
Deductions. Any Nonrecourse Deductions for any fiscal year shall be
specially allocated to the Holders in accordance with their respective
Percentage Interest in Common Units. Any Partner Nonrecourse Deductions
for any fiscal year shall be specially allocated to the Holder(s) who
bears the economic risk of loss with respect to the Partner Nonrecourse
Debt to which such Partner Nonrecourse Deductions are attributable, in
accordance with Regulations Sections 1.704-2(b)(4) and 1.704-2(i).
(iv) Qualified Income Offset. If any Holder unexpectedly
receives an adjustment, allocation or distribution described in
Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of
Partnership income and gain shall be allocated, in accordance with
Regulations Section 1.704-1(b)(2)(ii)(d), to the Holder in an amount and
manner sufficient to eliminate, to the extent required by such
Regulations, the Adjusted Capital Account Deficit of the Holder as quickly
as possible provided that an allocation pursuant to this Section 6.3.A(iv)
shall be made if and only to the extent that such Holder would have an
Adjusted Capital Account Deficit after all other allocations provided in
this Article 6 have been tentatively made as if this Section 6.3.A(iv)
were not in the Agreement. It is intended that this Section 6.3.A(iv)
qualify and be construed as a "qualified income offset" within the meaning
of Regulations 1.704-1(b)(2)(ii)(d), which shall be controlling in the
event of a conflict between such Regulations and this Section 6.3.A(iv).
(v) Gross Income Allocation. In the event any Holder has a
deficit Capital Account at the end of any fiscal year which is in excess
of the sum of (a) the amount (if any) such Holder is obligated to restore
to the Partnership and (b) the amount such Holder is deemed to be
obligated to restore pursuant to Regulations Section 1.704-1(b)(2)(ii)(c)
or the penultimate sentences of Regulations Sections 1.704-2(g)(1) and
1.704-2(i)(5), each such Holder shall be specially allocated items of
Partnership income and gain in the amount of such excess as quickly as
possible; provided, that an allocation pursuant to this Section 6.3.A(v)
shall be made if and only to the extent that such Holder would have a
deficit Capital Account in excess of such sum after all other allocations
provided in this Article 6 have been tentatively made as if this Section
6.3.A(v) and Section 6.3.A(iv) were not in the Agreement.
(vi) Limitation on Allocation of Net Loss. To the extent any
allocation of Net Loss would cause or increase an Adjusted Capital Account
Deficit as to any Holder, such allocation of Net Loss shall be reallocated
among the other Holders in accordance with their respective Percentage
Interests in Common Units, subject to the limitations of this Section
6.3.A(vi).
(vii) Section 754 Adjustment. To the extent an adjustment to
the adjusted tax basis of any Partnership asset pursuant to Code Section
734(b) or Code Section 743(b) is required, pursuant to Regulations Section
1.704-1(b)(2)(iv)(m)(2) or
32
Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in
determining Capital Accounts as the result of a distribution to a Holder
in complete liquidation of his interest in the Partnership, the amount of
such adjustment to the Capital Accounts shall be treated as an item of
gain (if the adjustment increases the basis of the asset) or loss (if the
adjustment decreases such basis) and such gain or loss shall be specially
allocated to the Holders in accordance with their interests in the
Partnership in the event that Regulations Section 1.704-1(b)(2)(iv)(m)(2)
applies, or to the Holders to whom such distribution was made in the event
that Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.
(viii) Curative Allocation. The allocations set forth in
Sections 6.3.A(i), (ii), (iii), (iv), (v), (vi), and (vii) (the
"Regulatory Allocations") are intended to comply with certain regulatory
requirements, including the requirements of Regulations Sections
1.704-1(b) and 1.704-2. Notwithstanding the provisions of Sections 6.1 and
6.2, the Regulatory Allocations shall be taken into account in allocating
other items of income, gain, loss and deduction among the Holders so that,
to the extent possible, the net amount of such allocations of other items
and the Regulatory Allocations to each Holder shall be equal to the net
amount that would have been allocated to each such Holder if the
Regulatory Allocations had not occurred.
B. For purposes of determining a Holder's proportional share of the
"excess nonrecourse liabilities" of the Partnership within the meaning of
Regulations Section 1.752-3(a)(3), each Holder's interest in Partnership profits
shall be such Holder's Percentage Interest in Common Units.
Section 6.4. Tax Allocations
A. In General. Except as otherwise provided in this Section 6.4, for
income tax purposes each item of income, gain, loss and deduction (collectively,
"Tax Items") shall be allocated among the Holders in the same manner as its
correlative item of "book" income, gain, loss or deduction is allocated pursuant
to Sections 6.2 and 6.3.
B. Allocations Respecting Section 704(c) Revaluations.
Notwithstanding Section 6.4.A, Tax Items with respect to Partnership property
that is contributed to the Partnership by a Partner shall be shared among the
Holders for income tax purposes pursuant to Regulations promulgated under
Section 704(c) of the Code, so as to take into account the variation, if any,
between the basis of the property to the Partnership and its initial Gross Asset
Value. With respect to Partnership property that is initially contributed to the
Partnership upon its formation pursuant to Section 4.1, such variation between
basis and initial Gross Asset Value shall be taken into account under the
"traditional method" as described in Regulations Section 1.704-3(b). With
respect to properties subsequently contributed to the Partnership, the
Partnership shall account for such variation under any method approved under
Section 704(c) of the Code and the applicable regulations as chosen by the
General Partner. In the event the Gross Asset Value of any Partnership asset is
adjusted pursuant to subparagraph (ii) of the definition of Gross Asset Value
(provided in Article 1), subsequent allocations of Tax Items with respect to
such asset shall take account of the variation, if any, between the adjusted
basis of such asset and its Gross Asset Value in the same manner as under
Section 704(c) of the Code and the applicable regulations consistent with the
requirements of Regulations Section 1.704-1(b)(2)(iv)(g) using
33
any method approved under 704(c) of the Code and the applicable regulations as
chosen by the General Partner.
ARTICLE 7.
MANAGEMENT AND OPERATIONS OF BUSINESS
Section 7.1. Management
A. Except as otherwise expressly provided in this Agreement, all
management powers over the business and affairs of the Partnership are
exclusively vested in the General Partner, and no Limited Partner shall have any
right to participate in or exercise control or management power over the
business and affairs of the Partnership; provided, however, that the General
Partner may be removed by the Majority in Interest of the Limited Partners, with
or without cause, such removal effective upon the delivery of written notice
thereof by the Limited Partners to the General Partner. In addition to the
powers now or hereafter granted a general partner of a limited partnership under
the Act and other applicable law or which are granted to the General Partner
under any other provision of this Agreement, the General Partner, subject to the
other provisions hereof including Section 7.3, shall have full power and
authority to do all things deemed necessary or desirable by it to conduct the
business of the Partnership, to exercise all powers set forth in Section 3.2 and
to effectuate the purposes set forth in Section 3.1, including, without
limitation:
(i) the making of any expenditures, the lending or borrowing of
money (including, without limitation, making prepayments on
loans and borrowing money to permit the Partnership to make
distributions to its Partners in such amounts as will permit
AMB, in its capacity as the sole general partner of the
Operating Partnership and as sole stockholder of the General
Partner (for so long as AMB has determined to qualify as a
REIT), to avoid the payment of any Federal income tax
(including, for this purpose, any excise tax pursuant to
Section 4981 of the Code) and to make distributions to its
stockholders sufficient to permit AMB to maintain REIT
status), the assumption or guarantee of, or other contracting
for, indebtedness and other liabilities, the issuance of
evidences of indebtedness (including the securing of same by
mortgage, deed of trust or other lien or encumbrance on all or
any of the Partnership's assets) and the incurring of any
obligations it deems necessary for the conduct of the
activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering
of periodic or other reports to governmental or other agencies
having jurisdiction over the business or assets of the
Partnership;
(iii) subject to the provisions of Section 7.3.D, the acquisition,
disposition, mortgage, pledge, encumbrance, hypothecation or
exchange of any assets of the Partnership or the merger or
other combination of the Partnership with or into another
entity;
34
(iv) the mortgage, pledge, encumbrance or hypothecation of all or
any assets of the Partnership, and the use of the assets of
the Partnership (including, without limitation, cash on
hand) for any purpose consistent with the terms of this
Agreement and on any terms it sees fit, including, without
limitation, the financing of the conduct or the operations
of the General Partner or the Partnership, the lending of
funds to other Persons (including, without limitation, the
General Partner (if necessary to permit the financing or
capitalization of a subsidiary of the General Partner or the
Partnership) and any Subsidiaries of the Partnership) and
the repayment of obligations of the Partnership, any of its
Subsidiaries and any other Person in which it has an equity
investment;
(v) the negotiation, execution, and performance of any
contracts, leases, conveyances or other instruments that the
General Partner considers useful or necessary to the conduct
of the Partnership's operations or the implementation of the
General Partner's powers under this Agreement;
(vi) the distribution of Partnership cash or other Partnership
assets in accordance with this Agreement;
(vii) the selection and dismissal of employees of the Partnership
(including, without limitation, employees having titles such
as "president," "vice president," "secretary" and
"treasurer"), and agents, outside attorneys, accountants,
consultants and contractors of the Partnership, the
determination of their compensation and other terms of
employment or hiring, including waivers of conflicts of
interest and the payment of their expenses and compensation
out of the Partnership's assets;
(viii) the maintenance of such insurance for the benefit of the
Partnership and the Partners as it deems necessary or
appropriate;
(ix) the formation of, or acquisition of an interest in, and the
contribution of property to, any further limited or general
partnerships, joint ventures or other relationships that it
deems desirable (including, without limitation, the
acquisition of interests in, and the contributions of
property to any Subsidiary and any other Person in which it
has an equity investment from time to time); provided that
as long as AMB, in its capacity as the sole stockholder of
the General Partner and as the sole general partner of the
Operating Partnership, has determined to continue to qualify
as a REIT, the Partnership may not engage in any such
formation, acquisition or contribution that would cause AMB
to fail to qualify as a REIT;
(x) the control of any matters affecting the rights and
obligations of the Partnership, including the conduct of
litigation and the incurring of legal expense and the
settlement of claims and litigation, and the indemnification
of any Person against liabilities and contingencies to the
extent permitted by law;
35
(xi) the undertaking of any action in connection with the
Partnership's direct or indirect investment in any Person
(including, without limitation, contributing or loaning
Partnership funds to, incurring indebtedness on behalf of,
or guarantying the obligations of any such Persons);
(xii) subject to the other provisions in this Agreement, the
determination of the fair market value of any Partnership
property distributed in kind using such reasonable method of
valuation as it may adopt; provided that, such methods are
otherwise consistent with requirements of this Agreement;
(xiii) the management, operation, leasing, landscaping, repair,
alteration, demolition or improvement of any real property
or improvements owned by the Partnership or any Subsidiary
of the Partnership or any Person in which the Partnership
has made a direct or indirect equity investment;
(xiv) holding, managing, investing and reinvesting cash and other
assets of the Partnership;
(xv) the collection and receipt of revenues and income of the
Partnership;
(xvi) the exercise, directly or indirectly through any
attorney-in-fact acting under a general or limited power of
attorney, of any right, including the right to vote,
appurtenant to any asset or investment held by the
Partnership;
(xvii) the exercise of any of the powers of the General Partner
enumerated in this Agreement on behalf of or in connection
with any Subsidiary of the Partnership or any other Person
in which the Partnership has a direct or indirect interest,
or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner
enumerated in this Agreement on behalf of any Person in
which the Partnership does not have an interest, pursuant to
contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds,
leases, notes, deeds to secure debt, mortgages, deeds of
trust, security agreements, conveyances, contracts,
guarantees, warranties, indemnities, waivers, releases or
legal instruments or other agreements in writing necessary
or appropriate in the judgment of the General Partner for
the accomplishment of any of the powers of the General
Partner enumerated in this Agreement; and
(xx) the making of loans by the Partnership to its Partners, for
any purpose, provided that such loans be upon arm's-length
terms.
B. Each of the Limited Partners agrees that the General Partner is
authorized to execute, deliver and perform the above-mentioned agreements and
transactions on behalf of the Partnership without any further act, approval or
vote of the Partners, notwithstanding any
36
other provisions of this Agreement (except as provided in Section 7.3), the Act
or any applicable law, rule or regulation. The execution, delivery or
performance by the General Partner or the Partnership of any agreement
authorized or permitted under this Agreement shall not constitute a breach by
the General Partner of any duty that the General Partner may owe the Partnership
or the Limited Partners or any other Persons under this Agreement or of any duty
stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner
may cause the Partnership to obtain and maintain (i) casualty, liability and
other insurance (including, without limitation, earthquake insurance) on the
properties of the Partnership and (ii) liability insurance for the Indemnities
hereunder.
D. At all times from and after the date hereof, the General Partner
may cause the Partnership to establish and maintain working capital and other
reserves in such amounts as the General Partner, in its sole and absolute
discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General
Partner may, but other than as set forth in the following sentence and as
expressly set forth in the agreements listed on Exhibit H hereto, shall be under
no obligation to, take into account the tax consequences to any Partner
(including the General Partner) of any action taken by the General Partner. The
General Partner and the Partnership shall not have liability to a Limited
Partner under any circumstances as a result of an income tax liability incurred
by such Limited Partner as a result of an action (or inaction) by the General
Partner pursuant to its authority under this Agreement.
F. Except as otherwise provided herein, to the extent the duties of
the General Partner require expenditures of funds to be paid to third parties,
the General Partner shall not have any obligations hereunder except to the
extent that Partnership funds are reasonably available to it for the performance
of such duties, and nothing herein contained shall be deemed to authorize or
require the General Partner, in its capacity as such, to expend its individual
funds for payment to third parties or to undertake any individual liability or
obligation on behalf of the Partnership.
Section 7.2. Certificate of Limited Partnership
To the extent that such action is determined by the General Partner
to be reasonable and necessary or appropriate, the General Partner shall file
amendments to and restatements of the Certificate and do all the things to
maintain the Partnership as a limited partnership (or a partnership in which the
limited partners have limited liability) under the laws of the State of Delaware
and to maintain the Partnership's qualification to do business as a foreign
limited partnership in each other state, the District of Columbia or other
jurisdiction, in which the Partnership may elect to do business or own property.
Subject to the terms of Section 8.5.A(iv), the General Partner shall not be
required, before or after filing, to deliver or mail a copy of the Certificate
or any amendment thereto to any Limited Partner. The General Partner shall use
all reasonable efforts to cause to be filed such other certificates or documents
as may be reasonable and necessary or appropriate for the formation,
continuation, qualification and operation of a limited partnership (or a
partnership in which the limited partners have limited
37
liability) in the State of Delaware, and any other state, or the District of
Columbia or other jurisdiction, in which the Partnership may elect to do
business or own property.
Section 7.3. Restrictions on General Partner's Authority
A. The General Partner may not take any action in contravention of
this Agreement, including, without limitation:
(i) take any action that would make it impossible to carry on the
ordinary business of the Partnership, except as otherwise
provided in this Agreement;
(ii) possess Partnership property, or assign any rights in specific
Partnership property, for other than a Partnership purpose
except as otherwise provided in this Agreement;
(iii) admit a Person as a Partner, except as otherwise provided in
this Agreement;
(iv) perform any act that would subject a Limited Partner to
liability as a general partner in any jurisdiction or any
other liability except as provided herein or under the Act; or
(v) perform any act that would subject the Partnership to
regulation as an "investment company" as such term is defined
under the Investment Company Act of 1940, as amended.
B. The General Partner shall not, without the prior Consent of the
Partners (in addition to any Consent of the Limited Partners required by any
other provision hereof), undertake, on behalf of the Partnership, any of the
following actions or enter into any transaction which would have the effect of
such transactions:
(i) except as provided in Section 7.3.D below, amend, modify or
terminate this Agreement other than to reflect the admission,
substitution, termination or withdrawal of partners pursuant
to Article 12;
(ii) make a general assignment for the benefit of creditors or
appoint or acquiesce in the appointment of a custodian,
receiver or trustee for all or any part of the assets of the
Partnership;
(iii) institute any proceeding for bankruptcy on behalf of the
Partnership;
(iv) confess a judgment against the Partnership; or
(v) enter into a merger (including a triangular merger),
consolidation or other combination of the Partnership with or
into another entity.
C. Except in the case of a Liquidating Event pursuant to Section
13.1 (other than Section 13.1.F), the General Partner shall not, without the
prior Consent of the Limited
38
Partners, undertake, on behalf of the Partnership, any actions or enter into any
transaction which would have the effect of a dissolution of the Partnership,
including a sale, exchange, transfer or other disposition of all or
substantially all of the Partnership's assets in a single transaction or a
series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section
7.3.E, the General Partner shall have the power, without the Consent of the
Partners, to amend this Agreement as may be required to facilitate or implement
any of the following purposes:
(i) to add to the obligations of the General Partner or surrender
any right or power granted to the General Partner or any
Affiliate of the General Partner for the benefit of the
Limited Partners;
(ii) to reflect the issuance of additional Partnership Interests
pursuant to Section 4.3.B, or the admission, substitution,
termination, reduction in Partnership Units or withdrawal of
Partners in accordance with this Agreement (which may be
effected through the replacement of Exhibit A with an amended
Exhibit A);
(iii) to set forth or amend the designations, rights, powers,
duties, and preferences of the holders of any additional
Partnership Interests issued pursuant to Article 4;
(iv) to reflect a change that is of an inconsequential nature and
does not adversely affect the Limited Partners in any material
respect, or to cure any ambiguity in, correct or supplement
any provision, or make other changes with respect to matters
arising under, this Agreement that will not be inconsistent
with law or with the provisions of this Agreement;
(v) to satisfy any requirements, conditions, or guidelines
contained in any order, directive, opinion, ruling or
regulation of a Federal, state of local agency or contained in
Federal, state or local law.
(vi) to reflect such changes as are reasonably necessary for AMB,
in its capacity as the sole stockholder of the General Partner
and as the sole general partner of the Operating Partnership,
to maintain its status as a REIT, including changes which may
be necessitated due to a change in applicable law (or an
authoritative interpretation thereof) or a ruling of the IRS;
and
(vii) to modify, as set forth in the definition of "Capital
Account," the manner in which Capital Accounts are computed.
The General Partner will provide notice to the Limited Partners when any action
under this Section 7.3.D is taken.
E. Notwithstanding Sections 7.3.B, 7.3.C and 7.3.D, this Agreement
shall not be amended, and no action may be taken by the General Partner,
including in either case through merger or sale of assets of the Partnership or
otherwise, without the Consent of each Common
39
Limited Partner or Preferred Limited Partner adversely affected if such
amendment or action would (i) convert a Limited Partner's interest in the
Partnership into a general partner's interest (except as the result of the
General Partner acquiring such interest), (ii) modify the limited liability of a
Limited Partner, (iii) alter rights of the Partner to receive distributions
pursuant to Article 5 or Section 13.2.A(4) or Articles 17, 18 or 19 or the
allocations specified in Article 6 (except as permitted pursuant to Sections 4.3
and 7.3.D), (iv) alter the Series D Redemption or exchange rights as set forth
in Sections 17.5 and 17.8, respectively, the Series E Redemption or exchange
rights as set forth in Sections 18.5 and 18.8, respectively, the Series F
Redemption or exchange rights as set forth in Sections 19.5 and 19.8,
respectively, the Series H Redemption or exchange rights as set forth in
Sections 21.5 and 21.8, respectively, or the Series I Redemption or exchange
rights as set forth in Sections 22.5 and 22.8, respectively, or (v) amend this
Section 7.3.E. Further, no amendment may alter the restrictions on the General
Partner's authority set forth elsewhere in this Section 7.3 without the Consent
specified in such section.
F. The General Partner shall not undertake to dispose of any
Partnership Property specified in the agreements listed in Exhibit G in a
taxable sale or taxable exchange prior to the dates specified in such agreements
without the prior consent of each Limited Partner which contributed all or any
portion of an interest in such Property to the Partnership, as set forth in such
agreements.
Section 7.4. Reimbursement of the General Partner
A. Except as provided in this Section 7.4 and elsewhere in this
Agreement (including the provisions of Articles 5 and 6 regarding distributions,
payments and allocations to which it may be entitled), the General Partner shall
not be compensated for its services as general partner of the Partnership.
B. The General Partner shall be reimbursed on a monthly basis, or
such other basis as the General Partner may determine in its sole and absolute
discretion, for all expenses it incurs relating to the ownership of interests in
and operation of, or for the benefit of, the Partnership. Such reimbursements
shall be in addition to any reimbursement to the General Partner as a result of
indemnification pursuant to Section 7.7.
C. If and to the extent any reimbursements to the General Partner
pursuant to this Section 7.4 constitute gross income of the General Partner (as
opposed to the repayment of advances made by the General Partner on behalf of
the Partnership), such amounts shall constitute guaranteed payments within the
meaning of Section 707(c) of the Code, shall be treated consistently therewith
by the Partnership and all Partners, and shall not be treated as distributions
for purposes of computing the Partners' Capital Accounts.
Section 7.5. Outside Activities of the General Partner
Without the Consent of the Limited Partners, the General Partner
shall not, directly or indirectly, enter into or conduct any business, other
than in connection with the ownership, acquisition and disposition of
Partnership Interests as a General Partner and the management of the business of
the Partnership and such activities as are incidental to the same and activities
incidental to the ownership of interests permitted by the next succeeding
sentence. Without the Consent of the Limited Partners, the General Partner shall
not, directly or indirectly,
40
participate in or otherwise acquire any interest in any real or personal
property, except its General Partner Interest, its interest in any Subsidiary
Partnership(s) (held directly or indirectly through a Qualified REIT Subsidiary)
that the General Partner holds in order to maintain such Subsidiary
Partnership's status as a partnership, and such bank accounts, similar
instruments or other short-term investments as it deems necessary to carry out
its responsibilities contemplated under this Agreement and the REIT Charter. The
General Partner's General Partner Interest in the Partnership, and interests in
such short-term liquid investments, bank accounts or similar instruments as the
General Partner deems necessary to carry out its responsibilities contemplated
under this Agreement and the Charter are interests which the General Partner is
permitted to acquire and hold for purposes of this Section 7.5.
Section 7.6. Employee Benefit Plans
The General Partner, in its sole and absolute discretion and without
the approval of the Limited Partners, may propose and adopt on behalf of the
Partnership employee benefit plans funded by the Partnership for the benefit of
employees of the General Partner, the Partnership, Subsidiaries of the
Partnership or any Affiliate of any of them in respect of services performed,
directly or indirectly, for the benefit of the Partnership, the General Partner,
or any of the Partnership's Subsidiaries.
Section 7.7. Indemnification
A. The Partnership shall indemnify an Indemnitee from and against
any and all losses, claims, damages, liabilities, joint or several, expenses
(including legal fees and expenses), judgments, fines, settlements, and other
amounts arising from any and all claims, demands, actions, suits or proceedings,
civil, criminal, administrative or investigative, that relate to the operations
of the Partnership as set forth in this Agreement in which any Indemnitee may be
involved, or is threatened to be involved, as a party or otherwise, unless it is
established that: (i) the act or omission of the Indemnitee was material to the
matter giving rise to the proceeding and either was committed in bad faith or
was the result of active and deliberate dishonesty; (ii) the Indemnitee actually
received an improper personal benefit in money, property or services; or (iii)
in the case of any criminal proceeding, the Indemnitee had reasonable cause to
believe that the act or omission was unlawful. Without limitation, the foregoing
indemnity shall extend to any liability of any Indemnitee, pursuant to a loan
guaranty or otherwise, for any indebtedness of the Partnership or any Subsidiary
of the Partnership (including, without limitation, any indebtedness which the
Partnership or any Subsidiary of the Partnership has assumed or taken subject
to), and the General Partner is hereby authorized and empowered, on behalf of
the Partnership, to enter into one or more indemnity agreements consistent with
the provisions of this Section 7.7 in favor of any Indemnitee having or
potentially having liability for any such indebtedness. The termination of any
proceeding by judgment, order or settlement does not create a presumption that
the Indemnitee did not meet the requisite standard of conduct set forth in this
Section 7.7.A. The termination of any proceeding by conviction or upon a plea of
nolo contendere or its equivalent, or any entry of an order of probation prior
to judgment, creates a rebuttable presumption that the Indemnitee acted in a
manner contrary to that specified in this Section 7.7.A. Any indemnification
pursuant to this Section 7.7 shall be made only out of the assets of the
Partnership, and any insurance proceeds from the liability policy covering the
General Partner and any Indemnitee, and neither the General Partner nor any
Limited Partner
41
shall have any obligation to contribute to the capital of the Partnership or
otherwise provide funds to enable the Partnership to fund its obligations under
this Section 7.7.
B. Reasonable expenses incurred by an Indemnitee who is a party to a
proceeding may be paid or reimbursed by the Partnership in advance of the final
disposition of the proceeding upon receipt by the Partnership of (i) a written
affirmation by the Indemnitee of the Indemnitee's good faith belief that the
standard of conduct necessary for indemnification by the Partnership as
authorized in Section 7.7.A has been met and (ii) a written undertaking by or on
behalf of the Indemnitee to repay the amount if it shall ultimately be
determined that the standard of conduct has not been met.
C. The indemnification provided by this Section 7.7 shall be in
addition to any other rights to which an Indemnitee or any other Person may be
entitled under any agreement, pursuant to any vote of the Partners, as a matter
of law or otherwise, and shall continue as to an Indemnitee who has ceased to
serve in such capacity.
D. The Partnership may purchase and maintain insurance, on behalf of
the Indemnitees and such other Persons as the General Partner shall determine,
against any liability that may be asserted against or expenses that may be
incurred by any such Person in connection with the Partnership's activities,
regardless of whether the Partnership would have the power to indemnify such
Person against such liability under the provisions of this Agreement.
E. For purposes of this Section 7.7, the Partnership shall be deemed
to have requested an Indemnitee to serve as fiduciary of an employee benefit
plan whenever the performance by it of its duties to the Partnership also
imposes duties on, or otherwise involves services by, it to the plan or
participants or beneficiaries of the plan; excise taxes assessed on an
Indemnitee with respect to an employee benefit plan pursuant to applicable law
shall constitute fines within the meaning of Section 7.7; and actions taken or
omitted by the Indemnitee with respect to an employee benefit plan in the
performance of its duties for a purpose reasonably believed by it to be in the
interest of the participants and beneficiaries of the plan shall be deemed to be
for a purpose which is not opposed to the best interests of the Partnership.
F. In no event may an Indemnitee subject the Limited Partners to
personal liability by reason of the indemnification provisions set forth in this
Agreement.
G. An Indemnitee shall not be denied indemnification in whole or in
part under this Section 7.7 because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if the transaction
was otherwise permitted by the terms of this Agreement.
H. The provisions of this Section 7.7 are for the benefit of the
Indemnitees, their heirs, successors, assigns and administrators and shall not
be deemed to create any rights for the benefit of any other Persons. Any
amendment, modification or repeal of this Section 7.7 or any provision hereof
shall be prospective only and shall not in any way affect the limitations on the
Partnership's liability to any Indemnitee under this Section 7.7 as in effect
immediately prior to such amendment, modification or repeal with respect to
claims arising from or relating to matters occurring, in whole or in part, prior
to such amendment, modification or repeal, regardless of when such claims may
arise or be asserted.
42
I. If and to the extent any reimbursements to the General Partner
pursuant to this Section 7.7 constitute gross income of the General Partner (as
opposed to the repayment of advances made by the General Partner on behalf of
the Partnership) such amounts shall constitute guaranteed payments within the
meaning of Section 707(c) of the Code, shall be treated consistently therewith
by the Partnership and all Partners, and shall not be treated as distributions
for purposes of computing the Partners' Capital Accounts.
J. Any indemnification hereunder is subject to, and limited by, the
provisions of Section 17-108 of the Act.
K. In the event the Partnership is made a party to any litigation or
otherwise incurs any loss or expense as a result of or in connection with any
Partner's personal obligations or liabilities unrelated to Partnership business,
such Partner shall indemnify and reimburse the Partnership for all such loss and
expense incurred, including legal fees, and the Partnership Interest of such
Partner may be charged therefor. The liability of a Partner under this Section
7.7.K shall not be limited to such Partner's Partnership Interest, but shall be
enforceable against such Partner personally.
Section 7.8. Liability of the General Partner
A. Notwithstanding anything to the contrary set forth in this
Agreement, none of the General Partner and any of its officers, directors,
agents and employees shall be liable or accountable in damages or otherwise to
the Partnership, any Partners or any Assignees, or their successors or assigns,
for losses sustained, liabilities incurred or benefits not derived as a result
of errors in judgment or mistakes of fact or law or any act or omission if the
General Partner acted in good faith.
B. The Limited Partners expressly acknowledge that the General
Partner is acting for the benefit of the Partnership, the Limited Partners and
the General Partner's stockholders collectively, that the General Partner is
under no obligation to give priority to the separate interests of the Limited
Partners or the General Partner's stockholders (including, without limitation,
the tax consequences to Limited Partners or Assignees or to stockholders) in
deciding whether to cause the Partnership to take (or decline to take) any
actions and that the General Partner shall not be liable to the Partnership or
to any Limited Partner for monetary damages for losses sustained, liabilities
incurred, or benefits not derived by Limited Partners in connection with such
decisions; provided, that the General Partner has acted in good faith.
C. Subject to its obligations and duties as General Partner set
forth in Section 7.1.A, the General Partner may exercise any of the powers
granted to it by this Agreement and perform any of the duties imposed upon it
hereunder either directly or by or through its agents. The General Partner shall
not be responsible for any misconduct or negligence on the part of any such
agent appointed by it in good faith.
D. Any amendment, modification or repeal of this Section 7.8 or any
provision hereof shall be prospective only and shall not in any way affect the
limitations on the liability of the General Partner and any of its officers,
directors, agents and employees to the Partnership and the Limited Partners
under this Section 7.8 as in effect immediately prior to such amendment,
modification or repeal with respect to claims arising from or relating to
matters
43
occurring, in whole or in part, prior to such amendment, modification or repeal,
regardless of when such claims may arise or be asserted.
Section 7.9. Other Matters Concerning the General Partner
A. The General Partner may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
B. The General Partner may consult with legal counsel, accountants,
appraisers, management consultants, investment bankers and other consultants and
advisers selected by it, and any act taken or omitted to be taken in reliance
upon the opinion of such Persons as to matters which such General Partner
reasonably believes to be within such Person's professional or expert competence
shall be conclusively presumed to have been done or omitted in good faith and in
accordance with such opinion.
C. The General Partner shall have the right, in respect of any of
its powers or obligations hereunder, to act through any of its duly authorized
officers and a duly appointed attorney or attorneys-in-fact. Each such attorney
shall, to the extent provided by the General Partner in the power of attorney,
have full power and authority to do and perform all and every act and duty which
is permitted or required to be done by the General Partner hereunder.
D. Notwithstanding any other provisions of this Agreement or any
non-mandatory provision of the Act, any action of the General Partner on behalf
of the Partnership or any decision of the General Partner to refrain from acting
on behalf of the Partnership, undertaken in the good faith belief that such
action or omission is necessary or advisable in order to protect the ability of
AMB, in its capacity as the sole stockholder of the General Partner and as the
sole general partner of the Operating Partnership, for so long as AMB has
determined to qualify as a REIT, to (i) continue to qualify as a REIT or (ii)
except with respect to the distribution of Available Cash to the Series D
Limited Partners, the Series E Limited Partners, the Series F Limited Partners,
the Series H Limited Partners and the Series I Limited Partners in accordance in
accordance with Sections 17.3, 18.3, 19.3, 21.3 and 22.3, respectively, avoid
AMB incurring any taxes under Section 857 or Section 4981 of the Code, is
expressly authorized under this Agreement and is deemed approved by all of the
Limited Partners.
E. So long as the General Partner holds any interest in the
Partnership (as either a General Partner or Limited Partner), the General
Partner shall have "management rights" (as such term is defined in the Plan
Asset Regulation) with respect to the Partnership and its Properties to the
extent necessary to qualify AMB as a "venture capital operating company" (as
such term is defined in the Plan Asset Regulation).
Section 7.10. Title to Partnership Assets
Title to Partnership assets, whether real, personal or mixed and
whether tangible or intangible, shall be deemed to be owned by the Partnership
as an entity, and no Partners, individually or collectively, shall have any
ownership interest in such Partnership assets or any portion thereof. Title to
any or all of the Partnership assets may be held in the name of the Partnership,
the General Partner or one or more nominees, as the General Partner may
determine,
44
including Affiliates of the General Partner. The General Partner hereby declares
and warrants that any Partnership assets for which legal title is held in the
name of the General Partner or any nominee or Affiliate of the General Partner
shall be deemed held by the General Partner or such nominee or Affiliate for the
use and benefit of the Partnership in accordance with the provisions of this
Agreement; provided, however, that the General Partner shall use its best
efforts to cause beneficial and record title to such assets to be vested in the
Partnership as soon as reasonably practicable. All Partnership assets shall be
recorded as the property of the Partnership in its books and records,
irrespective of the name in which legal title to such Partnership assets is
held.
Section 7.11. Reliance by Third Parties
Notwithstanding anything to the contrary in this Agreement, any
Person dealing with the Partnership shall be entitled to assume that the General
Partner has full power and authority to encumber, sell or otherwise use in any
manner any and all assets of the Partnership and to enter into any contracts on
behalf of the Partnership, and such Person shall be entitled to deal with the
General Partner as if it were the Partnership's sole party in interest, both
legally and beneficially. Each Limited Partner hereby waives any and all
defenses or other remedies which may be available against such Person to
contest, negate or disaffirm any action of the General Partner in connection
with any such dealing. In no event shall any Person dealing with the General
Partner or its representatives be obligated to ascertain that the terms of this
Agreement have been complied with or to inquire into the necessity or expedience
of any act or action of the General Partner or its representatives. Each and
every certificate, document or other instrument executed on behalf of the
Partnership by the General Partner or its representatives shall be conclusive
evidence in favor of any and every Person relying thereon or claiming thereunder
that (i) at the time of the execution and delivery of such certificate, document
or instrument, this Agreement was in full force and effect, (ii) the Person
executing and delivering such certificate, document or instrument was duly
authorized and empowered to do so for and on behalf of the Partnership and (iii)
such certificate, document or instrument was duly executed and delivered in
accordance with the terms and provisions of this Agreement and is binding upon
the Partnership.
ARTICLE 8.
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
Section 8.1. Limitation of Liability
The Limited Partners shall have no liability under this Agreement
except as expressly provided in this Agreement or under the Act.
Section 8.2. Management of Business
No Limited Partner or Assignee (other than the General Partner, any
of its Affiliates or any officer, director, employee, general partner, agent or
trustee of the General Partner, the Partnership or any of their Affiliates, in
their capacity as such) shall take part in the operations, management or control
(within the meaning of the Act) of the Partnership's business, transact any
business in the Partnership's name or have the power to sign documents for or
otherwise bind the Partnership. Notwithstanding the foregoing, the General
Partner may be removed by the Limited Partners, pursuant to and in accordance
with Section 7.1. Upon the removal of the General Partner, the Common Limited
Partners shall select a successor General
45
Partner, who shall upon the acceptance of such selection be admitted as a
successor General Partner pursuant to Section 12.1 hereof. The transaction of
any such business by the General Partner, any of its Affiliates or any officer,
director, employee, general partner, agent or trustee of the General Partner,
the Partnership or any of their Affiliates, in their capacity as such, shall not
affect, impair or eliminate the limitations on the liability of the Limited
Partners or Assignees under this Agreement.
Section 8.3. Outside Activities of Limited Partners
Subject to any agreements entered into by a Limited Partner or its
Affiliates with the General Partner, Partnership or a Subsidiary, any Limited
Partner and any officer, director, employee, agent, trustee, Affiliate or
stockholder of any Limited Partner shall be entitled to and may have business
interests and engage in business activities in addition to those relating to the
Partnership, including business interests and activities in direct competition
with the Partnership or that are enhanced by the activities of the Partnership.
Neither the Partnership nor any Partners shall have any rights by virtue of this
Agreement in any business ventures of any Limited Partner or Assignee. Subject
to such agreements, none of the Limited Partners nor any other Person shall have
any rights by virtue of this Agreement or the partnership relationship
established hereby in any business ventures of any other Person, other than the
Limited Partners benefiting from the business conducted by the General Partner,
and such other Person shall have no obligation pursuant to this Agreement to
offer any interest in any such business ventures to the Partnership, any Limited
Partner or any such other Person, even if such opportunity is of a character
which, if presented to the Partnership, any Limited Partner or such other
Person, could be taken by such other Person.
Section 8.4. Return of Capital
Except pursuant to the Series D Redemption and exchange rights set
forth in Sections 17.5 and 17.8, the Series E Redemption and exchange rights set
forth in Sections 18.5 and 18.8, the Series F Redemption and exchange rights set
forth in Sections 19.5 and 19.8, the Series H Redemption and exchange rights set
forth in Sections 21.5 and 21.8 and the Series I Redemption and exchange rights
set forth in Sections 22.5 and 22.8 no Limited Partner shall be entitled to the
withdrawal or return of his or her Capital Contribution, except to the extent of
distributions made pursuant to this Agreement or upon termination of the
Partnership as provided herein. Except as expressly set forth herein with
respect to the rights, priorities and preferences of the Preferred Limited
Partners holding any series of Preferred Units, no Limited Partner or Assignee
shall have priority over any other Limited Partner or Assignee either as to the
return of Capital Contributions, or as otherwise expressly provided in this
Agreement, as to profits, losses, distributions or credits.
Section 8.5. Rights of Limited Partners Relating to the Partnership
A. In addition to other rights provided by this Agreement or by the
Act, and except as limited by Section 8.5.B, each Limited Partner shall have the
right, for a purpose reasonably related to such Limited Partner's interest as a
limited partner in the Partnership, upon written demand with a statement of the
purpose of such demand and at the Partnership's expense:
46
(i) to obtain a copy of the most recent annual and quarterly
reports filed with the Securities and Exchange Commission by
AMB pursuant to the Exchange Act, and each communication sent
to the stockholders of AMB;
(ii) to obtain a copy of the Partnership's Federal, state and local
income tax returns for each Partnership Year;
(iii) to obtain a current list of the name and last known business,
residence or mailing address of each Partner;
(iv) to obtain a copy of this Agreement and the Certificate and all
amendments thereto, together with executed copies of all
powers of attorney pursuant to which this Agreement, the
Certificate and all amendments thereto have been executed; and
(v) to obtain true and full information regarding the amount of
cash and a description and statement of any other property or
services contributed by each Partner and which each Partner
has agreed to contribute in the future, and the date on which
each became a Partner.
B. Notwithstanding any other provision of this Section 8.5, the
General Partner may keep confidential from the Limited Partners, for such period
of time as the General Partner determines in its sole and absolute discretion to
be reasonable, any information that (i) the General Partner believes to be in
the nature of trade secrets or other information the disclosure of which the
General Partner in good faith believes is not in the best interests of the
Partnership or (ii) the Partnership or the General Partner is required by law or
by agreements with unaffiliated third parties to keep confidential.
ARTICLE 9.
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1. Records and Accounting
The General Partner shall keep or cause to be kept at the principal
office of the Partnership appropriate books and records with respect to the
Partnership's business, including without limitation, all books and records
necessary to provide to the Limited Partners any information, lists and copies
of documents required to be provided pursuant to Section 9.3. Any records
maintained by or on behalf of the Partnership in the regular course of its
business may be kept on, or be in the form of, punch cards, magnetic tape,
photographs, micrographics or any other information storage device; provided,
that the records so maintained are convertible into clearly legible written form
within a reasonable period of time. The books of the Partnership shall be
maintained, for financial and tax reporting purposes, on an accrual basis in
accordance with generally accepted accounting principles.
Section 9.2. Fiscal Year
The fiscal year of the Partnership shall be the calendar year.
47
Section 9.3. Reports
A. (1) As soon as practicable, but in no event later than the
earlier to occur of (a) 105 days after the close of each Partnership Year and
(b) five (5) business days following the date on which Company files its annual
report in respect of a fiscal year on Form 10-K, or such other applicable form
("Form 10-K"), with the Securities and Exchange Commission (the "Commission"), a
complete copy of AMB's audited financial statements for such fiscal year
including a balance sheet, income statement and cash flow statement for such
fiscal year prepared and audited by an independent nationally recognized firm of
certified public accountants in accordance with GAAP and (2) not later than
fifteen (15) days after the date documents are delivered in clause (A)(1) above,
the consolidating balance sheet, cash flow statement and income statement of the
Operating Partnership for such fiscal year, prepared by AMB; and
B. (1) As soon as practicable, but in no event later than five (5)
business days following the date on which AMB files its quarterly report in
respect of a fiscal quarter on Form 10-Q, or such other applicable form ("Form
10-Q"), with the Commission, a complete copy of AMB's unaudited quarterly
financial statements for such fiscal quarter including a balance sheet, income
statement and cash flow statement for such fiscal quarter prepared in accordance
with GAAP and (2) not later than fifteen (15) days after the date documents are
delivered in clause (B)(1) above, the consolidating balance sheet, cash flow
statement and income statement of the Operating Partnership for such fiscal
quarter, prepared and certified by AMB.
Section 9.4. Nondisclosure of Certain Information
Notwithstanding the provisions of Sections 9.1 and 9.3, the General
Partner may keep confidential from the Limited Partners any information that the
General Partner believes to be in the nature of trade secrets or other
information the disclosure of which the General Partner in good faith believes
is not in the best interests of the Partnership or which the Partnership is
required by law or by agreements with unaffiliated third parties to keep
confidential.
ARTICLE 10.
TAX MATTERS
Section 10.1. Preparation of Tax Returns
The General Partner shall arrange for the preparation and timely
filing of all returns of Partnership income, gains, deductions, losses and other
items required of the Partnership for Federal and state income tax purposes and
shall use all reasonable efforts to furnish, within ninety (90) days of the
close of each taxable year, the tax information reasonably required by Limited
Partners for Federal and state income tax reporting purposes. Each Limited
Partner shall promptly provide the General Partner with such information
relating to any Contributed Property contributed by such Limited Partner to the
Partnership.
Section 10.2. Tax Elections
Except as otherwise provided herein, the General Partner shall, in
its sole and absolute discretion, determine whether to make any available
election pursuant to the Code, including the election under Section 754 of the
Code. The General Partner shall have the right to
48
seek to revoke any such election (including without limitation, any election
under Section 754 of the Code) upon the General Partner's determination in its
sole and absolute discretion that such revocation is the best interests of the
Partners.
Section 10.3. Tax Matters Partner
A. The General Partner shall be the "tax matters partner" of the
Partnership for Federal income tax purposes. Pursuant to Section 6223(c) of the
Code, upon receipt of notice from the IRS of the beginning of an administrative
proceeding with respect to the Partnership, the tax matters partner shall
furnish the IRS with the name, address and profit interest of each of the
Limited Partners and Assignees; provided, however, that such information is
provided to the Partnership by the Limited Partners and Assignees.
B. The tax matters partner is authorized, but not required:
(i) to enter into any settlement with the IRS with respect to any
administrative or judicial proceedings for the adjustment of
Partnership items required to be taken into account by a
Partner for income tax purposes (such administrative
proceedings being referred to as a "tax audit" and such
judicial proceedings being referred to as "judicial review"),
and in the settlement agreement the tax matters partner may
expressly state that such agreement shall bind all Partners,
except that such settlement agreement shall not bind any
Partner (a) who (within the time prescribed pursuant to the
Code and Regulations) files a statement with the IRS providing
that the tax matters partner shall not have the authority to
enter into a settlement agreement on behalf of such Partner or
(b) who is a "notice partner" (as defined in Section 6231 of
the Code) or a member of a "notice group" (as defined in
Section 6223(b)(2) of the Code);
(ii) in the event that a notice of a final administrative
adjustment at the Partnership level of any item required to be
taken into account by a Partner for tax purposes (a "final
adjustment") is mailed to the tax matters partner, to seek
judicial review of such final adjustment, including the filing
of a petition for readjustment with the Tax Court or the
United States Claims Court, or the filing of a complaint for
refund with the District Court of the United States for the
district in which the Partnership's principal place of
business is located;
(iii) to intervene in any action brought by any other Partner for
judicial review of a final adjustment;
(iv) to file a request for an administrative adjustment with the
IRS at any time and, if any part of such request is not
allowed by the IRS, to file an appropriate pleading (petition
or complaint) for judicial review with respect to such
request;
(v) to enter into an agreement with the IRS to extend the period
for assessing any tax which is attributable to any item
required to be taken into account by a Partner for tax
purposes, or an item affected by such item; and
49
(vi) to take any other action on behalf of the Partners of the
Partnership in connection with any tax audit or judicial
review proceeding to the extent permitted by applicable law or
regulations.
The taking of any action and the incurring of any expense by the tax
matters partner in connection with any such proceeding, except to the extent
required by law, is a matter in the sole and absolute discretion of the tax
matters partner and the provisions relating to indemnification of the General
Partner set forth in Section 7.7 shall be fully applicable to the tax matters
partner in its capacity as such.
C. The tax matters partner shall receive no compensation for its
services. All third party costs and expenses incurred by the tax matters partner
in performing its duties as such (including legal and accounting fees) shall be
borne by the Partnership. Nothing herein shall be construed to restrict the
Partnership from engaging an accounting firm to assist the tax matters partner
in discharging its duties hereunder, so long as the compensation paid by the
Partnership for such services is reasonable.
Section 10.4. Organizational Expenses
The Partnership shall elect to deduct expenses, if any, incurred by
it in organizing the Partnership ratably over a sixty (60) month period as
provided in Section 709 of the Code.
Section 10.5. Withholding
Each Limited Partner hereby authorizes the Partnership to withhold
from or pay on behalf of or with respect to such Limited Partner any amount of
Federal, state, local, or foreign taxes that the General Partner determines that
the Partnership is required to withhold or pay with respect to any amount
distributable or allocable to such Limited Partner pursuant to this Agreement,
including, without limitation, any taxes required to be withheld or paid by the
Partnership pursuant to Sections 1441, 1442, 1445 or 1446 of the Code. Any
amount paid on behalf of or with respect to a Limited Partner shall constitute a
loan by the Partnership to such Limited Partner, which loan shall be repaid by
such Limited Partner within fifteen (15) days after notice from the General
Partner that such payment must be made unless (i) the Partnership withholds such
payment from a distribution which would otherwise be made to the Limited Partner
or (ii) the General Partner determines, in its sole and absolute discretion,
that such payment may be satisfied out of the available funds of the Partnership
which would, but for such payment, be distributed to the Limited Partner. Any
amounts withheld pursuant to the foregoing clauses (i) or (ii) shall be treated
as having been distributed to such Limited Partner. Each Limited Partner hereby
unconditionally and irrevocably grants to the Partnership a security interest in
such Limited Partner's Partnership Interest to secure such Limited Partner's
obligation to pay to the Partnership any amounts required to be paid pursuant to
this Section 10.5. In the event that a Limited Partner fails to pay any amounts
owed to the Partnership pursuant to this Section 10.5 when due, the General
Partner may, in its sole and absolute discretion, elect to make the payment to
the Partnership on behalf of such defaulting Limited Partner, and in such event
shall be deemed to have loaned such amount to such defaulting Limited Partner
and shall succeed to all rights and remedies of the Partnership as against such
defaulting Limited Partner (including, without limitation, the right to receive
distributions and the holding of a security interest in such Limited Partner's
Partnership Interest). Any amounts payable by a Limited
50
Partner hereunder shall bear interest at the base rate on corporate loans at
large United States money center commercial banks, as published from time to
time in the Wall Street Journal, plus two percentage points (but not higher than
the maximum lawful rate) from the date such amount is due (i.e., 15 days after
demand) until such amount is paid in full. Each Limited Partner shall take such
actions as the Partnership or the General Partner shall request in order to
perfect or enforce the security interest created hereunder.
ARTICLE 11.
TRANSFERS AND WITHDRAWALS
Section 11.1. Transfer
A. The term "transfer," when used in this Article 11 with respect to
a Partnership Interest, shall be deemed to refer to a transaction by which the
General Partner purports to assign its General Partner Interest to another
Person or by which a Limited Partner purports to assign its Limited Partnership
Interest to another Person, and includes a sale, assignment, gift (outright or
in trust), pledge, encumbrance, hypothecation, mortgage, exchange or any other
disposition by law or otherwise. Except to the extent otherwise specified, the
term "transfer" when used in this Article 11 does not include any exchange for
Series D Preferred Shares pursuant to Section 17.8, any exchange for Series E
Preferred Shares pursuant to Section 18.8, any exchange for Series F Preferred
Shares pursuant to Section 19.8, any exchange for Series H Preferred Shares
pursuant to Section 21.8, or any exchange for Series I Preferred Shares pursuant
to Section 22.8. No part of the interest of a Limited Partner shall be subject
to the claims of any creditor, any spouse for alimony or support, or to legal
process, and may not be voluntarily or involuntarily alienated or encumbered,
except as may be specifically provided for in this Agreement.
B. No Partnership Interest shall be transferred, in whole or in
part, except in accordance with the terms and conditions set forth in this
Article 11. Any transfer or purported transfer of a Partnership Interest not
made in accordance with this Article 11 shall be null and void ab initio unless
otherwise consented by the General Partner in its sole and absolute discretion.
Section 11.2. Transfer of General Partner's and Common Limited Partner's
Partnership Interest
A. The General Partner shall not withdraw from the Partnership and
shall not transfer all or any portion of its interest in the Partnership
(whether by sale, statutory merger, consolidation, liquidation or otherwise).
Any attempted transfer of the General Partner Interest shall be void ab initio.
To the extent the prior sentence does not have the effect of preventing any such
proposed transfer, the transfer shall cause the dissolution of the Partnership.
B. Except as otherwise provided in this Section 11.2.B, no Common
Limited Partner shall withdraw from or transfer all or any portion of its
interest in the Partnership (whether by sale, statutory merger, consolidation,
liquidation or otherwise). Any attempted transfer of a Common Limited Partner
Interest contrary to this Section 11.2.B shall be void ab initio. To the extent
the prior sentence does not have the effect of preventing any such proposed
transfer, the transfer shall cause the dissolution of the Partnership.
51
C. Notwithstanding Section 11.2.B, any Common Limited Partner other
than the Operating Partnership shall be permitted to transfer, with the consent
of the General Partner (which consent may be given or withheld in the General
Partner's sole and absolute discretion), all or any portion of its Partnership
Interest to the Operating Partnership.
Section 11.3. Preferred Limited Partners' Rights to Transfer
A. Any Preferred Limited Partner may, at any time without the
consent of the General Partner, (i) transfer all or any portion of its
Partnership Interest to the General Partner, (ii) transfer all or any portion of
its Partnership Interest to an Affiliate controlled thereby or to an Immediate
Family member, subject to the provisions of Section 11.6, (iii) transfer all or
any portion of its Partnership Interest to a trust for the benefit of a
charitable beneficiary or to a charitable foundation, subject to the provisions
of Section 11.6 and (iv) subject to the provisions of Section 11.6, (a) pledge
(a "Pledge") all or any portion of its Partnership Interest to a lending
institution, which is not an Affiliate of such Preferred Limited Partner, as
collateral or security for a bona fide loan or other extension of credit, or (b)
transfer such pledged Partnership Interest to such lending institution in
connection with the exercise of remedies under such loan or extension of credit.
In addition, each Preferred Limited Partner or Assignee (resulting from a
transfer made pursuant to clauses (i)-(iv) of the preceding sentence) shall have
the right to transfer all or any portion of its Partnership Interest, subject to
the provisions of Section 11.6, provided that any transfer of a Partnership
Interest shall be made only to Qualified Transferees.
It is a condition to any transfer otherwise permitted hereunder that
the transferee assumes by operation of law or express agreement all of the
obligations of the transferor Preferred Limited Partner under this Agreement
with respect to such transferred Partnership Interest and no such transfer
(other than pursuant to a statutory merger or consolidation wherein all
obligations and liabilities of the transferor Partner are assumed by a successor
corporation by operation of law) shall relieve the transferor Partner of its
obligations under this Agreement without the approval of the General Partner, in
its reasonable discretion. Notwithstanding the foregoing, any transferee of any
transferred Partnership Interest shall be subject to any and all ownership
limitations contained in the REIT Charter, which may limit or restrict such
transferee's ability to exercise its Series D Redemption rights or the exchange
rights set forth in Sections 17.5 or 17.8, respectively, its Series E Redemption
rights or the exchange rights set forth in Sections 18.5 or 18.8, respectively,
its Series F Redemption rights or the exchange rights set forth in Sections 19.5
or 19.8, respectively, its Series H Redemption rights or the exchange rights set
forth in Sections 21.5 or 21.8, respectively, or its Series I Redemption rights
or the exchange rights set forth in Sections 22.5 or 22.8, respectively, and to
the representations set forth in Section 3.4.D. Any transferee, whether or not
admitted as a Substituted Limited Partner, shall take subject to the obligations
of the transferor hereunder. Unless admitted as a Substituted Limited Partner,
no transferee, whether by a voluntary transfer, by operation of law or
otherwise, shall have any rights hereunder, other than the rights of an Assignee
as provided in Section 11.5.
B. If a Preferred Limited Partner is subject to Incapacity, the
executor, administrator, trustee, committee, guardian, conservator, or receiver
of such Limited Partner's estate shall have all the rights of a Preferred
Limited Partner, but not more rights than those enjoyed by other Preferred
Limited Partners, for the purpose of settling or managing the estate, and such
power as the Incapacitated Preferred Limited Partner possessed to transfer all
or any
52
part of his or its interest in the Partnership. The Incapacity of a Limited
Partner, in and of itself, shall not dissolve or terminate the Partnership.
C. The General Partner may prohibit any transfer otherwise permitted
under this Section 11.3 by a Preferred Limited Partner of his or her Partnership
Units if, in the opinion of legal counsel to the Partnership, such transfer
would require the filing of a registration statement under the Securities Act by
the Partnership or would otherwise violate any Federal or state securities laws
or regulations applicable to the Partnership or the Partnership Unit.
D. No transfer by a Preferred Limited Partner of his or her
Partnership Units (including any Series D Redemption or exchange rights set
forth in Sections 17.5 and 17.8, respectively, any Series E Redemption or
exchange rights set forth in Sections 18.5 and 18.8, respectively, any Series F
Redemption or exchange rights set forth in Sections 19.5 and 19.8, respectively,
any Series H Redemption or exchange rights set forth in Sections 21.5 and 21.8,
respectively, any Series I Redemption or exchange rights set forth in Sections
22.5 and 22.8, respectively, or any other acquisition of Common Units, Series D
Preferred Units, Series E Preferred Units, Series F Preferred Units, Series H
Preferred Units or Series I Preferred Units by the General Partner, AMB or the
Partnership) may be made to any person if (i) in the opinion of legal counsel
for the Partnership, it could result in the Partnership being treated as an
association taxable as a corporation or (ii) absent the consent of the General
Partner, which may be given or withheld in its sole and absolute discretion,
such transfer could be treated as effectuated through an "established securities
market" or a "secondary market (or the substantial equivalent thereof)" within
the meaning of Section 7704 of the Code.
E. No transfer of any Preferred Partnership Units may be made to a
lender to the Partnership or any Person who is related (within the meaning of
Section 1.752-4(b) of the Regulations) to any lender to the Partnership whose
loan constitutes a Nonrecourse Liability, without the consent of the General
Partner, in its sole and absolute discretion; provided, that as a condition to
such consent, the lender will be required to enter into an arrangement with the
Partnership and the General Partner to redeem or exchange for the specified
amount of Series D Preferred Shares, Series E Preferred Shares, Series F
Preferred Shares, Series H Preferred Shares and/or Series I Preferred Shares (as
the case may be) any Partnership Units in which a security interest is held
simultaneously with the time at which such lender would be deemed to be a
partner in the Partnership for purposes of allocating liabilities to such lender
under Section 752 of the Code.
F. No Preferred Limited Partner may withdraw from the Partnership
except as a result of transfer, Series D Redemption, Series E Redemption, Series
F Redemption, Series H Redemption, Series I Redemption or exchange of all of its
Partnership Units pursuant hereto.
Section 11.4. Substituted Limited Partners
A. Any Preferred Limited Partner shall have the right to substitute
a transferee permitted by this Agreement as a Limited Partner in his or her
place. The General Partner shall have the right to consent to the admission of a
permitted transferee of the interest of any other Limited Partner, as a
Substituted Limited Partner, pursuant to this Section 11.4, which consent may be
given or withheld by the General Partner in its sole and absolute discretion.
The General Partner's failure or refusal to permit a transferee of any such
interests to become a
53
Substituted Limited Partner shall not give rise to any cause of action against
the Partnership or any Partner.
B. A transferee who has been admitted as a Substituted Limited
Partner in accordance with this Article 11 shall have all the rights and powers
and be subject to all the restrictions and liabilities of a Limited Partner
under this Agreement. The admission of any transferee as a Substituted Limited
Partner shall be subject to the transferee executing and delivering to the
Partnership an acceptance of all of the terms and conditions of this Agreement
(including, without limitation, the provisions of Section 2.4 and such other
documents or instruments as may be required to effect the admission, each in
form and substance satisfactory to the General Partner) and the acknowledgment
by such transferee that each of the representations and warranties set forth in
Section 3.4 are true and correct with respect to such transferee as of the date
of the transfer of the Partnership Interest to such transferee and will continue
to be true to the extent required by such representations and warranties.
C. Upon the admission of a Substituted Limited Partner, the General
Partner shall amend Exhibit A to reflect the name, address, number of
Partnership Units, and Percentage Interest of such Substituted Limited Partner
and to eliminate or adjust, if necessary, the name, address and interest of the
predecessor of such Substituted Limited Partner.
Section 11.5. Assignees
If the General Partner, with respect to a transferee requiring the
General Partner's consent, does not consent, in its sole and absolute
discretion, to the admission of any permitted transferee under Section 11.3 as a
Substituted Limited Partner, as described in Section 11.4, such transferee shall
be considered an Assignee for purposes of this Agreement. An Assignee shall be
entitled to all the rights of an assignee of a limited partnership interest
under the Act, including the right to receive distributions from the Partnership
and the share of Net Income, Net Losses, gain and loss attributable to the
Partnership Units assigned to such transferee, the rights to transfer the
Partnership Units provided in this Article 11, the right of exchange for Series
D Preferred Shares set forth in Section 17.8, the right of exchange for Series E
Preferred Shares set forth in Section 18.8, the right of exchange for Series F
Preferred Shares set forth in Section 19.8, the right of exchange for Series H
Preferred Shares set forth in Section 21.8, and the right of exchange for Series
I Preferred Shares set forth in Section 22.8, but shall not be deemed to be a
holder of Partnership Units for any other purpose under this Agreement, and
shall not be entitled to effect a Consent with respect to such Partnership Units
on any matter presented to the Limited Partners for approval (such Consent
remaining with the transferor Limited Partner). In the event any such transferee
desires to make a further assignment of any such Partnership Units, such
transferee shall be subject to all the provisions of this Article 11 to the same
extent and in the same manner as any Limited Partner desiring to make an
assignment of Partnership Units. Notwithstanding anything contained in this
Agreement to the contrary, as a condition to becoming an Assignee, any
prospective Assignee must first execute and deliver to the Partnership an
acknowledgment that each of the representations and warranties set forth in
Section 3.4 hereof are true and correct with respect to such prospective
Assignee as of the date of the prospective assignment of the Partnership
Interest to such prospective Assignee and will continue to be true to the extent
required by such representations or warranties.
54
Section 11.6. General Provisions
A. No Limited Partner may withdraw from the Partnership other than
as a result of (i) a transfer of all of such Limited Partner's Partnership Units
as permitted in accordance with this Article 11 and the transferee(s) of such
Units being admitted to the Partnership as a Substituted Limited Partner(s),
(ii) pursuant to the Series D Redemption or exchange of all of such Limited
Partner's Series D Preferred Units pursuant to Section 17.8, (iii) pursuant to
the Series E Redemption or exchange of all of such Limited Partner's Series E
Preferred Units pursuant to Section 18.8, (iv) pursuant to the Series F
Redemption or exchange of all such Limited Partner's Series F Preferred Units
pursuant to Section 19.8, (v) pursuant to the Series H Redemption or exchange of
all such Limited Partner's Series H Preferred Units pursuant to Section 21.8, or
(vi) pursuant to the Series I Redemption or exchange of all such Limited
Partner's Series I Preferred Units pursuant to Section 22.8; provided further
that in connection with any such redemption or exchange, the applicable Limited
Partner thereafter owns no Partnership Interest.
B. Any Limited Partner who shall transfer all of such Limited
Partner's Partnership Units in a transfer permitted pursuant to this Article 11
where such transferee was admitted as a Substituted Limited Partner or pursuant
to the exercise of its rights of Series D Redemption or exchange of all of such
Limited Partner's Series D Preferred Units pursuant to Section 17.8, pursuant to
the exercise of its rights of Series E Redemption or exchange of all of such
Limited Partner's Series E Preferred Units pursuant to Section 18.8, pursuant to
the exercise of its rights of Series F Redemption or exchange of all of such
Limited Partner's Series F Preferred Units pursuant to Section 19.8, pursuant to
the exercise of its rights of Series H Redemption or exchange of all of such
Limited Partner's Series H Preferred Units pursuant to Section 21.8, or pursuant
to the exercise of its rights of Series I Redemption or exchange of all of such
Limited Partner's Series I Preferred Units pursuant to Section 22.8, shall cease
to be a Limited Partner; provided the Limited Partner owns no other Partnership
Interest.
C. Transfers pursuant to this Article 11 may only be made effective
on the last day of the month set forth on the written instrument of transfer,
unless the General Partner otherwise agrees.
D. If any Partnership Interest is transferred, assigned or redeemed
during any quarterly segment of the Partnership's fiscal year in compliance with
the provisions of this Article 11 or transferred or redeemed pursuant to
Sections 17.5, 18.5, 19.5, 21.5 or 22.5, on any day other than the first day of
a Partnership Year, then Net Income, Net Losses, each item thereof and all other
items attributable to such Partnership Interest for such fiscal year shall be
divided and allocated between the transferor Partner and the transferee Partner
by taking into account their varying interests during the fiscal year in
accordance with Section 706(d) of the Code, using the interim closing of the
books method. Except as otherwise required by Section 706(d) of the Code or as
otherwise specified in this Agreement or as otherwise determined by the General
Partner (to the extent consistent with Section 706(d) of the Code), solely for
purposes of making such allocations, each of such items for the calendar month
in which the transfer, assignment or redemption occurs shall be allocated among
all the Partners and Assignees in a manner determined by the General Partner in
its sole discretion.
55
E. In addition to any other restrictions on transfer herein
contained, including without limitation the provisions of this Article 11 and
Section 2.6, in no event may any transfer or assignment of a Partnership
Interest by any Partner (including by way of a Series D Redemption or exchange
for Series D Preferred Shares, a Series E Redemption or exchange for Series E
Preferred Shares, a Series F Redemption or exchange for Series F Preferred
Shares, a Series H Redemption or exchange for Series H Preferred Shares, a
Series I Redemption or exchange for Series I Preferred Shares or any other
acquisition of Common Units, Series D Preferred Units, Series E Preferred Units,
Series F Preferred Units, Series H Preferred Units or Series I Preferred Units
by the Partnership, AMB or the General Partner) be made (i) to any person or
entity who lacks the legal right, power or capacity to own a Partnership
Interest; (ii) in violation of applicable law; (iii) except with the consent of
the General Partner, which may be given or withheld in its sole and absolute
discretion, of any component portion of a Partnership Interest, such as the
Capital Account, or rights to distributions, separate and apart from all other
components of a Partnership Interest; (iv) except with the consent of the
General Partner, which may be given or withheld in its sole and absolute
discretion, if in the opinion of legal counsel to the Partnership such transfer
would cause a termination of the Partnership for Federal or state income tax
purposes; (v) if in the opinion of counsel to the Partnership such transfer
would cause the Partnership to cease to be classified as a partnership for
Federal or state income tax purposes; (vi) if such transfer would cause the
Partnership to become, with respect to any employee benefit plan subject to
Title I of ERISA, a "party-in-interest" (as defined in Section 3(14) of ERISA)
or a "disqualified person" (as defined in Section 4975(c) of the Code); (vii) if
such transfer would, in the opinion of counsel to the Partnership, cause any
portion of the assets of the Partnership to constitute assets of any employee
benefit plan pursuant to Department of Labor Regulations Section 2510.2-101;
(viii) if such transfer requires the registration of such Partnership Interest
or requires the registration of the exchange of such Partnership Interests for
any capital stock pursuant to any applicable Federal or state securities laws;
(ix) except with the consent of the General Partner, which may be given or
withheld in its sole and absolute discretion, if such transfer is effectuated
through an "established securities market" or a "secondary market" (or the
substantial equivalent thereof) within the meaning of Section 7704 of the Code
or such transfer causes the Partnership to become a "Publicly Traded
Partnership," as such term is defined in Sections 469(k)(2) or 7704(b) of the
Code; (x) if such transfer subjects the Partnership to be regulated under the
Investment Company Act of 1940, the Investment Advisors Act of 1940 or the
Employee Retirement Income Security Act of 1974, each as amended; (xi) if the
transferee or assignee of such Partnership Interest is unable to make the
representations set forth in Section 3.4.D or such transfer could otherwise
adversely affect the ability of AMB, in its capacity as the sole stockholder of
General Partner and the sole general partner of the Operating Partnership, to
remain qualified as a REIT; or (xii) if, except with the consent of the General
Partner, which may be given or withheld in its sole and absolute discretion,
such transfer would subject AMB to any additional taxes under Section 857 or
Section 4981 of the Code.
F. The General Partner shall monitor the transfers of interests in
the Partnership (including any acquisition of Series D Preferred Units, Series E
Preferred Units, Series F Preferred Units, Series H Preferred Units or Series I
Preferred Units by the Partnership, AMB or the General Partner) to determine (i)
if such interests are being traded on an "established securities market" or a
"secondary market (or the substantial equivalent thereof)" within the meaning of
Section 7704 of the Code and (ii) whether such transfers of interests would
result in the Partnership being unable to qualify for at least one of the "safe
harbors" set forth in Regulations Section 1.7704-1 (or such other applicable
guidance subsequently published by the
56
IRS setting forth safe harbors under which interests will not be treated as
"readily tradable on a secondary market (or the substantial equivalent thereof)"
within the meaning of Section 7704 of the Code) (the "Safe Harbors"). The
General Partner shall have authority (but shall not be required to) to take any
steps it determines are necessary or appropriate in its sole and absolute
discretion to prevent any trading of interests which could cause the Partnership
to become a "publicly traded partnership," or any recognition by the Partnership
of such transfers, or to insure that at least one of the Safe Harbors is met.
ARTICLE 12.
ADMISSION OF PARTNERS
Section 12.1. Admission of Successor General Partner
A successor to all of the General Partner's General Partner Interest
pursuant to Section 11.2 who is proposed to be admitted as a successor General
Partner shall be admitted to the Partnership as the General Partner, effective
upon such transfer. Any such transferee shall carry on the business of the
Partnership without dissolution. In each case, the admission shall be subject to
the successor General Partner executing and delivering to the Partnership an
acceptance of all of the terms and conditions of this Agreement and such other
documents or instruments as may be required to effect the admission. In the case
of such admission on any day other than the first day of a Partnership Year, all
items attributable to the General Partner Interest for such Partnership Year
shall be allocated between the transferring General Partner and such successor
as provided in Article 11.
Section 12.2. Admission of Additional Limited Partners
A. A Person who makes a Capital Contribution to the Partnership in
accordance with this Agreement shall be admitted to the Partnership as an
Additional Limited Partner only upon furnishing to the General Partner (i)
evidence of acceptance in form satisfactory to the General Partner of all of the
terms and conditions of this Agreement, including, without limitation, the power
of attorney granted in Section 2.4 and (ii) such other documents or instruments
as may be required in the discretion of the General Partner in order to effect
such Person's admission as an Additional Limited Partner.
B. Notwithstanding anything to the contrary in this Section 12.2, no
Person shall be admitted as an Additional Limited Partner without the consent of
the General Partner, which consent may be given or withheld in the General
Partner's sole and absolute discretion. The admission of any Person as an
Additional Limited Partner shall become effective on the date upon which the
name of such Person is recorded on the books and records of the Partnership,
following the receipt of the Capital Contribution in respect of such Limited
Partner, the documents set forth in this Section 12.2.A and the consent of the
General Partner to such admission. If any Additional Limited Partner is admitted
to the Partnership on any day other than the first day of a Partnership Year,
then Net Income, Net Losses, each item thereof and all other items allocable
among Partners and Assignees for such Partnership Year shall be allocated among
such Limited Partner and all other Partners and Assignees by taking into account
their varying interests during the Partnership Year in accordance with Section
706(d) of the Code, using the interim closing of the books method. Solely for
purposes of making such allocations, each of such items for the calendar month
in which an admission of an Additional Limited
57
Partner occurs shall be allocated among all the Partners and Assignees,
including such Additional Limited Partner, in a manner determined by the General
Partner in its sole discretion.
Section 12.3. Amendment of Agreement and Certificate of Limited Partnership
For the admission to the Partnership of any Partner, the General
Partner shall take all steps necessary and appropriate under the Act to amend
the records of the Partnership and, if necessary, to prepare as soon as
practical an amendment of this Agreement (including an amendment of Exhibit A)
and, if required by law, shall prepare and file an amendment to the Certificate
and may for this purpose exercise the power of attorney granted pursuant to
Section 2.4.
ARTICLE 13.
DISSOLUTION AND LIQUIDATION
Section 13.1. Dissolution
The Partnership shall not be dissolved by the admission of
Substituted Limited Partners or Additional Limited Partners or by the admission
of a successor General Partner in accordance with the terms of this Agreement.
Upon the withdrawal of the General Partner, any successor General Partner
(selected as described in Section 13.1.B below) shall continue the business of
the Partnership. The Partnership shall dissolve, and its affairs shall be wound
up, upon the first to occur of any of the following ("Liquidating Events"):
A. the expiration of its term as provided in Section 2.5;
B. an event of withdrawal of the General Partner, as defined in the
Act, unless, within ninety (90) days after the withdrawal, all of the remaining
Common Limited Partners agree in writing, in their sole and absolute discretion,
to continue the business of the Partnership and to the appointment, effective as
of the date of withdrawal, of a substitute General Partner;
C. prior to October 15, 2096, an election to dissolve the
Partnership made by the General Partner with the consent of Limited Partners who
hold ninety percent (90%) of the outstanding Units held by Limited Partners;
D. subject to the provisions of Section 7.3.C, an election to
dissolve the Partnership made by the General Partner in its sole and absolute
discretion;
E. entry of a decree of judicial dissolution of the Partnership
pursuant to the provisions of the Act;
F. the sale or disposition of all or substantially all of the assets
and properties of the Partnership;
G. a final and non-appealable judgment is entered by a court of
competent jurisdiction ruling that the General Partner is bankrupt or insolvent,
or a final and non-appealable order for relief is entered by a court with
appropriate jurisdiction against the General Partner, in each case under any
Federal or state bankruptcy or insolvency laws as now or hereafter in effect,
58
unless prior to or at the time of the entry of such order or judgment a Majority
in Interest of the Limited Partners remaining consent in writing to continue the
business of the Partnership and to the appointment, effective as of a date prior
to the date of such order or judgment, of a substitute General Partner.
Section 13.2. Winding Up
A. Upon the occurrence of a Liquidating Event, the Partnership shall
continue solely for the purposes of winding up its affairs in an orderly manner,
liquidating its assets, and satisfying the claims of its creditors and Partners.
No Partner shall take any action that is inconsistent with, or not necessary to
or appropriate for, the winding up of the Partnership's business and affairs.
The General Partner (or, in the event there is no remaining General Partner, any
Person elected by a Majority in Interest of the Limited Partners (the
"Liquidator")) shall be responsible for overseeing the winding up and
dissolution of the Partnership and shall take full account of the Partnership's
liabilities and assets and the Partnership property shall be liquidated as
promptly as is consistent with obtaining the fair value thereof, and the
proceeds therefrom (which may, to the extent determined by the General Partner,
include shares of stock of the General Partner) shall be applied and distributed
in the following order:
(i) First, to the payment and discharge of all of the
Partnership's debts and liabilities to creditors other than
the Partners;
(ii) Second, to the payment and discharge of all of the
Partnership's debts and liabilities to the General Partner;
(iii) Third, to the payment and discharge of all of the
Partnership's debts and liabilities to the other Partners; and
(iv) The balance, if any, to the Partners in accordance with their
Capital Account balances determined after giving effect to all
contributions and distributions for all periods, and after
taking into account all Capital Account adjustments for the
Partnership taxable year during which the liquidation occurs
(other than those made as a result of the liquidating
distribution set forth in this Section 13.2.A(iv)).
The General Partner shall not receive any additional compensation for any
services performed pursuant to this Article 13 other than reimbursement of its
expenses as provided in Section 7.4.
B. Notwithstanding the provisions of Section 13.2.A which require
liquidation of the assets of the Partnership, but subject to the order of
priorities set forth therein, if prior to or upon dissolution of the Partnership
the Liquidator determines that an immediate sale of part or all of the
Partnership's assets would be impractical or would cause undue loss to the
Partners, the Liquidator may, in its sole and absolute discretion, defer for a
reasonable time the liquidation of any assets except those necessary to satisfy
liabilities of the Partnership (including to those Partners as creditors) and/or
distribute to the Partners, in lieu of cash, as tenants in common and in
accordance with the provisions of Section 13.2.A, undivided interests in such
Partnership assets as the Liquidator deems not suitable for liquidation. Any
such distributions in kind shall be made only if, in the good faith judgment of
the Liquidator, such distributions in kind are in the best interest of the
Partners, and shall be subject to such conditions relating to the
59
disposition and management of such properties as the Liquidator deems reasonable
and equitable and to any agreements governing the operation of such properties
at such time. The Liquidator shall determine the fair market value of any
property distributed in kind using such reasonable method of valuation as it may
adopt.
C. The Partnership shall be terminated when any notes received in
connection with any such sale or disposition referenced in Section 13.1.E above,
or in connection with the liquidation of the Partnership have been paid and all
of the cash or property available for application and distribution under this
Agreement have been applied and distributed in accordance with this Agreement.
Section 13.3. Compliance with Timing Requirements of Regulations
In the event the Partnership is "liquidated" within the meaning of
Regulations Section 1.704-1(b)(2)(ii)(g), distributions shall be made pursuant
to this Article 13 to the General Partner and Limited Partners who have positive
Capital Accounts in compliance with Regulations Section 1.704-1(b)(2)(ii)(b)(2).
If any Partner has a deficit balance in his or her Capital Account (after giving
effect to all contributions, distributions and allocations for the taxable
years, including the year during which such liquidation occurs), such Partner
shall have no obligation to make any contribution to the capital of the
Partnership with respect to such deficit, and such deficit shall not be
considered a debt owed to the Partnership or to any other Person for any purpose
whatsoever, except to the extent otherwise agreed to by such Partner and the
General Partner. In the discretion of the Liquidator or the General Partner, a
pro rata portion of the distributions that would otherwise be made to the
General Partner and Limited Partners pursuant to this Article 13 may be:
A. distributed to a trust established for the benefit of the General
Partner and Limited Partners for the purposes of liquidating Partnership assets,
collecting amounts owed to the Partnership, and paying any contingent or
unforeseen liabilities or obligations of the Partnership or of the General
Partner arising out of or in connection with the Partnership. The assets of any
such trust shall be distributed to the General Partner and Limited Partners from
time to time, in the reasonable discretion of the Liquidator or the General
Partner, in the same proportions and the amount distributed to such trust by the
Partnership would otherwise have been distributed to the General Partner and
Limited Partners pursuant to this Agreement; or
B. withheld to establish any reserves deemed necessary or
appropriate for any contingent or unforeseen liabilities or obligations of the
Partnership; and to reflect the unrealized portion of any installment
obligations owed to the Partnership; provided that, such withheld amounts shall
be distributed to the General Partner and Limited Partners as soon as
practicable.
Section 13.4. Deemed Distribution and Recontribution
Notwithstanding any other provision of this Article 13, in the event
the Partnership is liquidated within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g) but no Liquidating Event has occurred, the Partnership's
property shall not be liquidated, the Partnership's liabilities shall not be
paid or discharged, and the Partnership's affairs shall not be wound up.
Instead, the Partnership shall be deemed to have distributed the Partnership
property in kind to the General Partner and Limited Partners, who shall be
deemed to have assumed and
60
taken such property subject to all Partnership liabilities, all in accordance
with their respective Capital Accounts. Immediately thereafter, the General
Partner and Limited Partners shall be deemed to have recontributed the
Partnership property in kind to the Partnership, which shall be deemed to have
assumed and taken such property subject to all such liabilities.
Section 13.5. Rights of Limited Partners
Except as otherwise provided in this Agreement, each Limited Partner
shall look solely to the assets of the Partnership for the return of his Capital
Contribution and shall have no right or power to demand or receive property from
the General Partner. Except as expressly set forth herein with respect to the
rights, priorities and preferences of the Preferred Limited Partners holding any
series of Preferred Units, no Limited Partner shall have priority over any other
Limited Partner as to the return of his Capital Contributions, distributions or
allocations.
Section 13.6. Notice of Dissolution
In the event a Liquidating Event occurs or an event occurs that
would, but for provisions of Section 13.1, result in a dissolution of the
Partnership, the General Partner shall, within thirty (30) days thereafter,
provide written notice thereof to each of the Partners and to all other parties
with whom the Partnership regularly conducts business (as determined in the
discretion of the General Partner) and shall publish notice thereof in a
newspaper of general circulation in each place in which the Partnership
regularly conducts business (as determined in the discretion of the General
Partner).
Section 13.7. Cancellation of Certificate of Limited Partnership
Upon the completion of the liquidation of the Partnership cash and
property as provided in Section 13.2, the Partnership shall be terminated and
the Certificate and all qualifications of the Partnership as a foreign limited
partnership in jurisdictions other than the State of Delaware shall be canceled
and such other actions as may be necessary to terminate the Partnership shall be
taken.
Section 13.8. Reasonable Time for Winding-Up
A reasonable time shall be allowed for the orderly winding-up of the
business and affairs of the Partnership and the liquidation of its assets
pursuant to Section 13.2, in order to minimize any losses otherwise attendant
upon such winding-up, and the provisions of this Agreement shall remain in
effect between the Partners during the period of liquidation.
Section 13.9. Waiver of Partition
Each Partner hereby waives any right to partition of the Partnership
property.
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ARTICLE 14.
AMENDMENT OF PARTNERSHIP AGREEMENT; CONSENTS
Section 14.1. Amendments
A. The actions requiring consent or approval of the Partners or of
the Limited Partners pursuant to this Agreement, including Sections 7.3, 17.6,
18.6, 19.6, 21.6 and 22.6, or otherwise pursuant to applicable law, are subject
to the procedures in this Article 14.
B. Amendments to this Agreement requiring the consent or approval of
Limited Partners may be proposed by the General Partner or by Limited Partners
holding twenty-five percent (25%) or more of the Partnership Interests held by
Limited Partners entitled to consent to or approve such matter. Following such
proposal, the General Partner shall submit any proposed amendment to the
Partners or to the Limited Partners entitled to consent to or approve such
amendment, as applicable. The General Partner shall seek the written consent or
approval of the Partners or the Limited Partners entitled to consent to or
approve the proposed amendment or shall call a meeting to vote thereon and to
transact any other business that it may deem appropriate. For purposes of
obtaining a written consent, the General Partner may require a response within a
reasonable specified time, but not less than fifteen (15) days, and failure to
respond in such time period shall constitute a consent which is consistent with
the General Partner's recommendation (if so recommended); provided that, an
action shall become effective at such time as requisite consents are received
even if prior to such specified time.
Section 14.2. Action by the Partners
A. Meetings of the Partners may be called by the General Partner and
shall be called upon the receipt by the General Partner of a written request by
Limited Partners holding twenty-five percent (25%) or more of the Partnership
Interests held by the Limited Partners that are entitled to vote on the matters
proposed to be voted on at such meeting. The call shall state the nature of the
business to be transacted. Notice of any such meeting shall be given to all
Partners not less than seven days nor more than thirty (30) days prior to the
date of such meeting. Partners may vote in person or by proxy at such meeting.
Whenever the vote of the Percentage Interests of the Partners, or the Consent of
the Partners or Consent of the Limited Partners is permitted or required under
this Agreement, such vote or Consent may be given at a meeting of Partners or
may be given in accordance with the procedure prescribed in Section 14.1.
B. Any action required or permitted to be taken at a meeting of the
Partners may be taken without a meeting if a written consent setting forth the
action so taken is signed by the Percentage Interests as is expressly required
by this Agreement for the action in question. Such consent may be in one
instrument or in several instruments, and shall have the same force and effect
as a vote of the Percentage Interests of the Partners (expressly required by
this Agreement). Such consent shall be filed with the General Partner. An action
so taken shall be deemed to have been taken at a meeting held on the effective
date so certified.
C. Each Limited Partner may authorize any Person or Persons to act
for him by proxy on all matters in which a Limited Partner is entitled to
participate, including waiving notice of any meeting, or voting or participating
at a meeting. Every proxy must be signed by the Limited Partner or his
attorney-in-fact. No proxy shall be valid after the expiration of eleven
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(11) months from the date thereof unless otherwise provided in the proxy. Every
proxy shall be revocable at the pleasure of the Limited Partner executing it.
D. Each meeting of Partners shall be conducted by the General
Partner or such other Person as the General Partner may appoint pursuant to such
rules for the conduct of the meeting as the General Partner or such other Person
deems appropriate.
E. Except as otherwise expressly provided, on matters on which
Limited Partners are entitled to vote, each Limited Partner shall have a vote
equal to the number of Partnership Units held.
ARTICLE 15.
GENERAL PROVISIONS
Section 15.1. Addresses and Notice
Any notice, demand, request or report required or permitted to be
given or made to a Partner or Assignee under this Agreement shall be in writing
and shall be deemed given or made when delivered in person or when sent by
certified first class United States mail, nationally recognized overnight
delivery service or facsimile transmission to the Partner or Assignee at the
address set forth in Exhibit A or such other address as the Partners shall
notify the General Partner in writing.
Section 15.2. Titles and Captions
All article or section titles or captions in this Agreement are for
convenience only. They shall not be deemed part of this Agreement and in no way
define, limit, extend or describe the scope or intent of any provisions hereof.
Except as specifically provided otherwise, references to "Articles" and
"Sections" are to Articles and Sections of this Agreement.
Section 15.3. Pronouns and Plurals
Whenever the context may require, any pronoun used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns, pronouns and verbs shall include the plural and vice
versa.
Section 15.4. Further Action
The parties shall execute and deliver all documents, provide all
information and take or refrain from taking action as may be necessary or
appropriate to achieve the purposes of this Agreement.
Section 15.5. Binding Effect
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their heirs, executors, administrators, successors, legal
representatives and permitted assigns.
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Section 15.6. Creditors
Other than as expressly set forth herein with respect to
Indemnitees, none of the provisions of this Agreement shall be for the benefit
of, or shall be enforceable by, any creditor of the Partnership.
Section 15.7. Waiver
No failure or delay by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon any breach thereof shall
constitute waiver of any such breach or any other covenant, duty, agreement or
condition.
Section 15.8. Counterparts
This Agreement may be executed in counterparts, all of which
together shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart. Each party shall become bound by this Agreement immediately
upon affixing its signature hereto.
Section 15.9. Applicable Law
This Agreement shall be construed in accordance with and governed by
the laws of the State of Delaware, without regard to the principles of conflicts
of law.
Section 15.10. Invalidity of Provisions
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
Section 15.11. Entire Agreement
This Agreement (together with the agreements listed on Exhibit H
hereto as to rights and obligations in respect of the Units held by the Limited
Partners who are parties thereto, or their permitted transferees) contains the
entire understanding and agreement among the Partners with respect to the
subject matter hereof and supersedes any other prior written or oral
understandings or agreements among them with respect thereto.
Section 15.12. No Rights as Stockholders
Nothing contained in this Agreement shall be construed as conferring
upon the holders of Partnership Units any rights whatsoever as stockholders of
the General Partner, including without limitation any right to receive dividends
or other distributions made to stockholders of the General Partner or to vote or
to consent or to receive notice as stockholders in respect of any meeting of
stockholders for the election of directors of the General Partner or any other
matter.
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ARTICLE 16.
INTENTIONALLY OMITTED
ARTICLE 17.
SERIES D PREFERRED UNITS
Section 17.1. Designation and Number
A series of Partnership Units in the Partnership designated as the 7.75%
Series D Cumulative Redeemable Preferred Units (the "Series D Preferred Units")
is hereby established. The number of Series D Preferred Units shall be
1,595,337.
Section 17.2. Ranking
The Series D Preferred Units shall, with respect to distribution rights
and rights upon voluntary or involuntary liquidation, winding up or dissolution
of the Partnership, rank (i) senior to the Common Units and to all Partnership
Units the terms of which provide that such Partnership Units shall rank junior
to the Series D Preferred Units; (ii) on a parity with all other Parity
Preferred Units; and (iii) junior to all Partnership Units which rank senior to
the Series D Preferred Units.
Section 17.3. Distributions
A. Payment of Distributions. Subject to the rights of holders of Parity
Preferred Units as to the payment of distributions (including pursuant to
Sections 5.1, 18.3A, 19.3A, 21.3A and 22.3A hereof), holders of Series D
Preferred Units will be entitled to receive, when, as and if declared by the
Partnership acting through the General Partner, out of Available Cash,
cumulative preferential cash distributions in an amount equal to the Series D
Priority Return. Such distributions will be payable (A) quarterly (such
quarterly periods for purposes of payment and accrual will be the quarterly
periods ending on the dates specified in this sentence and not calendar year
quarters) in arrears, on the 25th day of March, June, September and December of
each year and (B) in the event of (i) an exchange of Series D Preferred Units
into Series D Preferred Shares, or (ii) a redemption of Series D Preferred
Units, on the exchange date or redemption date, as applicable (each a "Series D
Preferred Unit Distribution Payment Date"), commencing on the first of such
payment dates to occur following their original date of issuance. If any date on
which distributions are to be made on the Series D Preferred Units is not a
Business Day, then payment of the distribution to be made on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay) except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. Distributions on the Series D Preferred Units will be
made to the holders of record of the Series D Preferred Units on the relevant
record dates, which will be fifteen (15) days prior to the relevant Series D
Preferred Unit Distribution Payment Date (the "Series D Preferred Unit
Partnership Record Date"). For purposes of clarifying the relative distribution
priority rights among the Series I Preferred Units, Series H Preferred Units,
the Series F Preferred Units, the Series E Preferred Units and the Series D
Preferred Units, the payment of distributions with respect to a series of such
Preferred Units prior to the payment of
65
distributions with respect to another such series of Preferred Units, solely as
a result of the distribution payment dates with respect to a series of Preferred
Units occurring on a different date from another series of Preferred Units,
shall not be deemed to create a priority in favor of one series of Preferred
Units over any other series of Preferred Units.
B. Distributions Cumulative. Notwithstanding the foregoing,
distributions on the Series D Preferred Units will accrue whether or not the
terms and provisions of any agreement of the Partnership at any time prohibit
the current payment of distributions, whether or not the Partnership has
earnings, whether or not there are funds legally available for the payment of
such of such distributions and whether or not such distributions are authorized.
Accrued but unpaid distributions on the Series D Preferred Units will accumulate
as of the Preferred Unit Distribution Payment Date on which they first become
payable.
C. Priority as to Distributions. (i) So long as any Series D Preferred
Units are outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect to any
class or series of Partnership Interest represented by Junior Units, nor shall
any Junior Units or Parity Preferred Units be redeemed, purchased or otherwise
acquired for any consideration (or any monies be paid to or made available for a
sinking fund for the redemption of any such Junior Units or Parity Preferred
Units) by the Partnership (except by conversion into or exchange for other
Junior Units or Parity Preferred Units, as the case may be) unless, in each
case, full cumulative distributions have been or contemporaneously are
authorized and paid or authorized and a sum sufficient for the payment thereof
set apart for such payment on the Series D Preferred Units and all classes and
series of outstanding Parity Preferred Units for all distribution periods. The
foregoing sentence will not prohibit (a) distributions payable solely in Junior
Units, (b) the exchange of Junior Units or Parity Preferred Units into
Partnership Interests of the Partnership ranking junior to the Series D
Preferred Units as to distributions and upon voluntary and involuntary
liquidation, dissolution or winding up of the Partnership, or (c) distributions
necessary to enable the Operating Partnership to redeem partnership interests
corresponding to Series D Preferred Shares and any Parity Preferred Stock with
respect to distributions or Junior Stock to be purchased by AMB pursuant to the
REIT Charter to preserve AMB's status as a REIT; provided that such redemption
shall be upon the same terms as the corresponding stock purchase pursuant to the
REIT Charter.
(ii) So long as distributions have not been paid in full (or a sum
sufficient for such full payment is not so set apart) upon the Series D
Preferred Units and any other Parity Preferred Units, all distributions
authorized and declared on the Series D Preferred Units and all classes or
series of outstanding Parity Preferred Units shall be authorized and declared
pro rata so that the amount of distributions authorized and declared per Series
D Preferred Unit and such other classes or series of Parity Preferred Units
shall in all cases bear to each other the same ratio that accrued distributions
per Series D Preferred Unit and such other classes or series of Parity Preferred
Units (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such class or series of Parity
Preferred Units do not have cumulative distribution rights) bear to each other.
No interest, or sum of money in lieu of interest, shall be payable in respect of
any distributions or payments on Series D Preferred Units which may be in
arrears.
(iii) Notwithstanding anything to the contrary set forth herein,
distributions on Partnership Interests held by either (a) the General Partner,
(b) the Operating Partnership or any
66
other holder of Partnership Interests in the Partnership, in each case ranking
junior to or on parity with the Series D Preferred Units may be made, without
preserving the priority of distributions described in Sections 17.3.C(i) and
(ii), but only to the extent such distributions are required to preserve the
REIT status of AMB, in its capacity as sole general partner of the Operating
Partnership and as sole stockholder of the General Partner, and in the case of
any holder other than the General Partner only to the extent required by the
Partnership Agreement; provided, that the Partnership shall not be
disproportionately burdened by this provision relative to the cash flow
generated by other assets owned directly or indirectly by AMB.
D. No Further Rights. Holders of Series D Preferred Units shall not be
entitled to any distributions, whether payable in cash, other property or
otherwise, in excess of the full cumulative distributions described herein.
Section 17.4. Liquidation Proceeds
A. Distributions. Upon voluntary or involuntary liquidation, dissolution
or winding-up of the Partnership, distributions on the Series D Preferred Units
shall be made in accordance with Article 13 of this Agreement.
B. Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by the General Partner
pursuant to Section 13.6 hereof.
C. No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, Holders of Series D
Preferred Units will have no right or claim to any of the remaining assets of
the Partnership.
D. Consolidation, Merger or Certain Other Transactions. None of a
consolidation or merger of the Partnership with or into another entity, a merger
of another entity with or into the Partnership, or a sale, lease, transfer or
conveyance of all or substantially all of the Partnership's property or business
shall be considered a liquidation, dissolution or winding up of the Partnership.
Section 17.5. Series D Redemption
A. Series D Redemption. The Series D Preferred Units may not be redeemed
prior to May 5, 2004. On or after such date, the Partnership shall have the
right to redeem the Series D Preferred Units, in whole or in part, at any time
or from time to time, upon not less than 30 nor more than 60 days' written
notice, at a redemption price, payable in cash (a "Series D Redemption"), equal
to the Capital Account balance of the holder of Series D Preferred Units (the
"Series D Redemption Price"); provided, however, that no redemption pursuant to
this Section 17.5 will be permitted if the Series D Redemption Price does not
equal or exceed the original Capital Contribution of such holder plus the
cumulative Series D Priority Return to the redemption date to the extent not
previously distributed. If fewer than all of the outstanding Series D Preferred
Units are to be redeemed, the Series D Preferred Units to be redeemed shall be
selected pro rata (as nearly as practicable without creating fractional units).
67
B. Limitation on Series D Redemption. (i) The Series D Redemption Price
of the Series D Preferred Units (other than the portion thereof consisting of
accumulated but unpaid distributions) is payable solely out of the sale proceeds
of capital stock of AMB, which will be contributed by AMB to the General Partner
or the Operating Partnership and which in turn will be contributed by the
General Partner or the Operating Partnership to the Partnership as an additional
capital contribution, or out of the sale of limited partner interests in the
Partnership or the Operating Partnership and from no other source. For purposes
of the preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock (as such terms are defined in the
REIT Charter)), depository shares, interests, participation or other ownership
interests (however designated) and any rights (other than debt securities
convertible into or exchangeable for equity securities) or options to purchase
any of the foregoing.
(ii) The Partnership may not redeem fewer than all of the outstanding
Series D Preferred Units unless all accumulated and unpaid distributions have
been paid on all Series D Preferred Units for all quarterly distribution periods
terminating on or prior to the date of redemption.
C. Procedures for Series D Redemption. (i) Notice of redemption will be
(i) faxed, and (ii) mailed by the Partnership, by certified mail, postage
prepaid, not less than 30 nor more than 60 days prior to the redemption date,
addressed to the respective holders of record of the Series D Preferred Units at
their respective addresses as they appear on the records of the Partnership. No
failure to give or defect in such notice shall affect the validity of the
proceedings for the redemption of any Series D Preferred Units except as to the
holder to whom such notice was defective or not given. In addition to any
information required by law, each such notice shall state: (a) the redemption
date, (b) the Series D Redemption Price, (c) the aggregate number of Series D
Preferred Units to be redeemed and if fewer than all of the outstanding Series D
Preferred Units are to be redeemed, the number of Series D Preferred Units to be
redeemed held by such holder, which number shall equal such holder's pro rata
share (based on the percentage of the aggregate number of outstanding Series D
Preferred Units that the total number of Series D Preferred Units held by such
holder represents) of the aggregate number of Series D Preferred Units to be
redeemed, (d) the place or places where such Series D Preferred Units are to be
surrendered for payment of the Series D Redemption Price, (e) that distributions
on the Series D Preferred Units to be redeemed will cease to accumulate on such
redemption date and (f) that payment of the Series D Redemption Price will be
made upon presentation and surrender of such Series D Preferred Units.
(ii) If the Partnership gives a notice of redemption in respect of
Series D Preferred Units (which notice will be irrevocable) then, by 12:00 noon,
New York City time, on the redemption date, the Partnership will deposit
irrevocably in trust for the benefit of the Series D Preferred Units being
redeemed funds sufficient to pay the applicable Series D Redemption Price and
will give irrevocable instructions and authority to pay such Series D Redemption
Price to the holders of the Series D Preferred Units upon surrender of the
Series D Preferred Units by such holders at the place designated in the notice
of redemption. On and after the date of redemption, distributions will cease to
accumulate on the Series D Preferred Units or portions thereof called for
redemption, unless the Partnership defaults in the payment thereof. If any date
fixed for redemption of Series D Preferred Units is not a Business Day, then
payment of the Series D Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except
68
that, if such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date fixed for redemption. If payment of the
Series D Redemption Price is improperly withheld or refused and not paid by the
Partnership, distributions on such Series D Preferred Units will continue to
accumulate from the original redemption date to the date of payment, in which
case the actual payment date will be considered the date fixed for redemption
for purposes of calculating the applicable Series D Redemption Price.
Section 17.6. Voting and Certain Management Rights
A. General. Holders of the Series D Preferred Units will not have any
voting rights or right to consent to any matter requiring the consent or
approval of the Limited Partners, except as set forth below and in Section
7.3.E.
B. Certain Voting Rights. So long as any Series D Preferred Units
remains outstanding, the Partnership shall not, without the affirmative vote of
the holders of at least two-thirds of the Series D Preferred Units outstanding
at the time (i) authorize or create, or increase the authorized or issued amount
of, any class or series of Partnership Interests ranking prior to the Series D
Preferred Units with respect to payment of distributions or rights upon
liquidation, dissolution or winding-up or reclassify any Partnership Interests
of the Partnership into any such Partnership Interest, or create, authorize or
issue any obligations or security convertible into or evidencing the right to
purchase any such Partnership Interests, (ii) authorize or create, or increase
the authorized or issued amount of any Parity Preferred Units or reclassify any
Partnership Interest of the Partnership into any such Partnership Interest or
create, authorize or issue any obligations or security convertible into or
evidencing the right to purchase any such Partnership Interests but only to the
extent such Parity Preferred Units are issued to an affiliate of the
Partnership, other than AMB or the Operating Partnership to the extent the
issuance of such interests was to allow AMB or the Operating Partnership to
issue corresponding preferred stock or preferred interests to persons who are
not affiliates of the Partnership (other than AMB to the extent AMB issues
corresponding preferred stock to persons who are not affiliates of the
Partnership or the Operating Partnership) or (iii) either consolidate, merge
into or with, or convey, transfer or lease its assets substantially as an
entirety to, any corporation or other entity or amend, alter or repeal the
provisions of the Partnership Agreement (including, without limitation, this
Article 17 and Section 11.2), whether by merger, consolidation or otherwise, in
each case in a manner that would materially and adversely affect the powers,
special rights, preferences, privileges or voting power of the Series D
Preferred Units or the holders thereof; provided, however, that with respect to
the occurrence of any event set forth in (iii) above, so long as (a) the
Partnership is the surviving entity and the Series D Preferred Units remain
outstanding with the terms thereof unchanged, or (b) the resulting, surviving or
transferee entity is a partnership, limited liability company or other
pass-through entity organized under the laws of any state and substitutes the
Series D Preferred Units for other interests in such entity having substantially
the same terms and rights as the Series D Preferred Units, including with
respect to distributions, voting rights and rights upon liquidation, dissolution
or winding-up, then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or voting powers of the
holders of the Series D Preferred Units; and provided further, that any increase
in the amount of Partnership Interests or the creation or issuance of any other
class or series of Partnership Interests represented by Junior Units or Parity
Preferred Units that are not issued to an affiliate of the Partnership, other
than the General Partner or the Operating
69
Partnership to the extent the issuance of such interests was to allow the
General Partner or the Operating Partnership to issue corresponding preferred
stock or preferred interests to persons who are not affiliates of the
Partnership (other than AMB to the extent AMB issues corresponding preferred
stock or preferred interests to persons who are not affiliates of the
Partnership or the Operating Partnership), shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting powers.
C. So long as any Series D Preferred Units remain outstanding, the
General Partner shall not, without the affirmative vote of the holders of at
least two-thirds of the Series D Preferred Units outstanding at the time, take
any action which would result in the termination of the right of the holders of
such units to effect an exchange pursuant to Section 17.8; provided however, no
such vote shall be required so long as the Series D Preferred Units (or any
interests substituted therefore pursuant to Section 17.6.B) remain outstanding
and are exchangeable for Series D Preferred Shares or stock in another entity
having substantially the same terms and rights as the Series D Preferred Shares.
D. Notwithstanding anything to the contrary contained in this Agreement,
including, without limitation, the provisions of Article 7 regarding the
management rights and responsibilities of the General Partner, whenever
distributions on any Series D Preferred Units shall remain unpaid for six or
more quarterly periods (i.e., the quarterly periods ending on the 25th day of
each March, June, September and December, or, if not a business day, the next
succeeding business day, beginning with the quarterly period ending June 25,
1999) (whether or not consecutive), the holders of 51% of either (i) such Series
D Preferred Units, in the event that the holders of the Series E Preferred Units
are not entitled to exercise management rights pursuant to Section 18.6.D, the
holders of the Series F Preferred Units are not entitled to exercise management
rights pursuant to Section 19.6D, the holders of the Series H Preferred Units
are not entitled to exercise management rights pursuant to Section 21.6D, the
holders of the Series I Preferred Units are not entitled to exercise management
rights pursuant to Section 22.6D and that no Future Parity Preferred Unitholders
(as defined below) are entitled to exercise management rights similar to those
to which the holders of Series D Preferred Units, Series E Preferred Units,
Series F Preferred Units, Series H Preferred Units and Series I Preferred Units
are entitled to exercise pursuant to this Section 17.6.D, Section 18.6.D,
Section 19.6D, Section 21.6D and Section 22.6D, respectively, or (ii) the Parity
Preferred Capital, in the event that holders of the Series E Preferred Units,
Series F Preferred Units, Series H Preferred Units or Series I Preferred Units
are entitled to exercise management rights pursuant to Section 18.6.D, Section
19.6D, Section 21.6D or Section 22.6D, respectively, or Future Parity Preferred
Unitholders are entitled to exercise management rights similar to those to which
the holders of Series D Preferred Units, Series E Preferred Units, Series F
Preferred Units, Series H Preferred Units and Series I Preferred Units are
entitled to exercise pursuant to this Section 17.6.D, Section 18.6.D, Section
19.6D, Section 21.6D and Section 22.6D, respectively, shall be entitled to
assume rights to manage the Partnership and perform actions related thereto for
the sole purpose of enforcing the Partnership's rights and remedies as against
obligees of the Partnership or other Persons from whom the Partnership may be
entitled to receive cash or other assets, until all distributions accumulated on
the Series D Preferred Units for all past quarterly periods and the distribution
for the then-current quarterly period shall have been fully-paid or declared and
a sum sufficient for the payment thereof irrevocably set aside in trust for
payment in full; provided, however, that no such holder or holders of Series D
Preferred Units may at any time take any action (or fail to take any action) if
the consequence of such action (or inaction) would be (i) to cause AMB to fail
to
70
qualify as a REIT for federal or applicable state income tax purposes or (ii) to
cause the Partnership or the Operating Partnership to fail to qualify as a
partnership for federal or applicable state income tax purposes, or (iii) to
cause the Partnership, the Operating Partnership, the General Partner, or AMB to
be considered an "investment company" as defined in, or otherwise be subject to
regulation under, the Investment Company Act of 1940, as amended; and provided,
further, that solely for purposes of exercising the management rights set forth
in this Section 17.6.D, each holder of Series D Preferred Units shall be deemed
an Indemnitee, and shall be entitled to the benefits of the indemnification
provisions of Section 7.7 with respect to any and all action(s) taken (or
failure(s) to act) by a holder of Series D Preferred Units in the exercise of
(or failure(s) to exercise) the management rights described in this Section
17.6.D, including, without limitation, alleged breaches of the General Partner's
fiduciary duty to the Partners; and provided further, that the holders of the
Series D Preferred Units acknowledge and agree that the General Partner and the
Partnership shall be entitled to provide similar management rights to holders of
Parity Preferred Units that are issued by the Partnership following the date
hereof ("Future Parity Preferred Unitholders").
Section 17.7. Transfer Restrictions
The Series D Preferred Units shall be subject to the provisions of
Article 11 hereof. Notwithstanding any provision to the contrary herein, no
transfer of Series D Preferred Units, or other action by the holder or holders
of such Units, is permitted, without the consent of the General Partner which
consent may be given or withheld in its sole and absolute discretion, if such
transfer or other action would result in more than four partners holding all
outstanding Series D Preferred Units, Series H Preferred Units and Series I
Preferred Units within the meaning of Treasury Regulation Section
1.7704-1(h)(1)(ii) (without regard to Treasury Regulation Section
1.7704-1(h)(3)(ii)); provided, however, that the General Partner's consent may
not be unreasonably withheld if (a) such transfer or other action would not
result in more than ten partners holding all outstanding Series D Preferred
Units, Series H Preferred Units and Series I Preferred Units within the meaning
of Treasury Regulation Section 1.7704-1(h)(1)(ii) (without regard to Treasury
Regulation Section 1.7704-1(h)(3)(ii)) and (b) the General Partner cannot rely
on Treasury Regulation Section 1.7704-1(h). In addition, no transfer may be made
to any person if such transfer would cause the exchange of the Series D
Preferred Units for Series D Preferred Shares, as provided herein, to be
required to be registered under the Securities Act of 1933, as amended, or any
state securities laws.
Section 17.8. Exchange Rights
A. Right to Exchange. (i) Series D Preferred Units will be exchangeable
in whole but not in part unless expressly otherwise provided herein at anytime
on or after May 5, 2009, at the option of 51% of the holders of all outstanding
Series D Preferred Units, for authorized but previously unissued Series D
Preferred Shares at an exchange rate of one Series D Preferred Share from AMB
for one Series D Preferred Unit, subject to adjustment as described below (the
"Series D Exchange Price"); provided that the Series D Preferred Units will
become exchangeable at any time, in whole but not in part unless expressly
otherwise provided herein, at the option of 51% of the holders of all
outstanding Series D Preferred Units for Series D Preferred Shares if (y) at any
time full distributions shall not have been timely made on any Series D
Preferred Unit with respect to six (6) prior quarterly distribution periods,
whether or not consecutive; provided, however, that a distribution in respect of
Series D Preferred Units shall be
71
considered timely made if made within two (2) Business Days after the applicable
Series D Preferred Unit Distribution Payment Date if at the time of such late
payment there shall not be any prior quarterly distribution periods in respect
of which full distributions were not timely made or (z) upon receipt by a holder
or holders of Series D Preferred Units of (A) notice from the General Partner
that the General Partner or a Subsidiary of the General Partner has taken the
position that the Partnership is, or upon the consummation of an identified
event in the immediate future will be, a "publicly traded partnership" within
the meaning of Code Section 7704 (a "PTP") and (B) an opinion rendered by
independent counsel familiar with such matters addressed to a holder or holders
of Series D Preferred Units, that the Partnership is or likely is, or upon the
occurrence of a defined event in the immediate future will be or likely will be,
a PTP. In addition, the Series D Preferred Units may be exchanged for Series D
Preferred Shares, in whole but not in part unless expressly otherwise provided
herein, at the option of 51% of the holders of all outstanding Series D
Preferred Units after May 5, 2002 and prior to May 5, 2009 if such holders of a
Series D Preferred Units shall deliver to the General Partner either (i) a
private letter ruling addressed to such holder of Series D Preferred Units or
(ii) an opinion of independent counsel reasonably acceptable to the General
Partner based on a change in statute, the enactment of temporary or final
Treasury Regulations or the publication of a Revenue Ruling or any other IRS
release, in either case to the effect that an exchange of the Series D Preferred
Units at such earlier time would not cause the Series D Preferred Units to be
considered "stock and securities" within the meaning of Section 351(e) of the
Code for purposes of determining whether the holder of such Series D Preferred
Units is an "investment company" under Section 721(b) of the Code if an exchange
is permitted at such earlier date.
(ii) Notwithstanding anything to the contrary set forth in Section
17.8.A(i), if a Series D Exchange Notice (as defined herein) has been delivered
to AMB and the General Partner, then the General Partner may, at its option,
within ten (10) Business Days after receipt of the Series D Exchange Notice,
elect to cause the Partnership to redeem all or a portion of the outstanding
Series D Preferred Units for cash in an amount equal to the original Capital
Contribution per Series D Preferred Unit and all accrued and unpaid
distributions thereon to the date of redemption. If the General Partner elects
to redeem fewer than all of the outstanding Series D Preferred Units, the number
of Series D Preferred Units held by each holder to be redeemed shall equal such
holder's pro rata share (based on the percentage of the aggregate number of
outstanding Series D Preferred Units that the total number of Series D Preferred
Units held by such holder represents) of the aggregate number of Series D
Preferred Units being redeemed.
(iii) In the event an exchange of all Series D Preferred Units pursuant
to Section 17.8.A would violate the provisions on ownership limitation of AMB
set forth in Section 7 of Article Third of the Series D Articles Supplementary,
each holder of Series D Preferred Units shall be entitled to exchange, pursuant
to the provisions of Section 17.8.B, a number of Series D Preferred Units which
would comply with the provisions on the ownership limitation of AMB set forth in
such Section 7 of Article Third of the Series D Articles Supplementary, with
respect to such holder, and any Series D Preferred Units not so exchanged (the
"Series D Excess Units") shall be redeemed by the Partnership for cash in an
amount equal to the original Capital Contribution per Series D Excess Unit, plus
any accrued and unpaid distributions thereon to the date of redemption subject
to any restriction thereon contained in any debt instrument or agreement of the
Partnership. In the event an exchange would result in Series D Excess Units, as
a condition to such exchange, each holder of such units agrees to provide
representations and
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covenants reasonably requested by AMB relating to (i) the widely held nature of
the interests in such holder, sufficient to assure AMB that the holder's
ownership of stock of AMB (without regard to the limits described above) will
not cause any individual to own in excess of 9.0% of the stock of AMB; and (ii)
to the extent such Holder can so represent and covenant without obtaining
information from its owners (other than one or more direct or indirect parent
corporations, limited liability companies or partnerships and not the holders of
any interests in any such parent), the Holder's ownership of tenants of the
Partnership and its affiliates. For purposes of determining the number of Series
D Excess Units under this Section 17.8.A(iii), the "Ownership Limit" set forth
in the Series D Articles Supplementary shall be deemed to be 9.0%. To the extent
the Partnership would not be able to pay the cash set forth above in exchange
for the Series D Excess Units, and to the extent consistent with the REIT
Charter, AMB agrees that it will grant to the holders of the Series D Preferred
Units exceptions to the Ownership Limit set forth in the Series D Articles
Supplementary sufficient to allow such Holders to exchange all of their Series D
Preferred Units for Series D Preferred Shares; provided such holders furnish to
AMB representations acceptable to AMB in its sole and absolute discretion which
assure AMB that such exceptions will not jeopardize AMB's tax status as a REIT
for purposes of federal and applicable state law. Notwithstanding any provision
of this Agreement to the contrary, no Series D Limited Partner shall be entitled
to effect an exchange of Series D Preferred Units for Series D Preferred Shares
to the extent that ownership or right to acquire such shares would cause the
Partner or any other Person or, in the opinion of counsel selected by AMB, may
cause the Partner or any other Person, to violate the restrictions on ownership
and transfer of Series D Preferred Shares set forth in the REIT Charter. To the
extent any such attempted exchange for Series D Preferred Shares would be in
violation of the previous sentence, it shall be void ab initio and such Series D
Limited Partner shall not acquire any rights or economic interest in the Series
D Preferred Shares otherwise issuable upon such exchange.
(iv) The redemption of Series D Preferred Units described in Section
17.8.A(ii) and (iii) shall be subject to the provisions of Section 17.5.B(i) and
Section 17.5.C(ii); provided, however, that the term "Series D Redemption Price"
in such Sections 17.5.B(i) and 17.5.C(ii) shall be read to mean the original
Capital Contribution per Series D Preferred Unit being redeemed as set forth on
Exhibit A plus all accrued and unpaid distributions to the redemption date.
B. Procedure for Exchange of Series D Preferred Units and/or Series D
Redemption.
(i) Any exchange shall be exercised pursuant to a notice of exchange
(the "Series D Exchange Notice") delivered to AMB and the General Partner by the
Partners representing at least 51% of the outstanding Series D Preferred Units
(or by the Series D Contributor in the case of an exchange pursuant to the last
sentence of Section 17.8.A.(i) hereof) by (a) fax and (b) by certified mail
postage prepaid. AMB may effect any exchange of Series D Preferred Units, or the
General Partner may exercise its option to cause the Partnership to redeem any
portion of the Series D Preferred Units for cash pursuant to Section 17.8.A(ii)
or redeem Series D Excess Units pursuant to Section 17.8.A(iii), by delivering
to each holder of record of Series D Preferred Units, within ten (10) Business
Days following receipt of the Series D Exchange Notice, (a) if the General
Partner elects to cause the Partnership to acquire any of the Series D Preferred
Units then outstanding, (1) certificates representing the Series D Preferred
Shares being issued in exchange for the Series D Preferred Units of such holder
being exchanged and (2) a written
73
notice (a "Series D Redemption Notice") stating (A) the redemption date, which
may be the date of such Series D Redemption Notice or any other date which is
not later than sixty (60) days following the receipt of the Series D Exchange
Notice, (B) the redemption price, (C) the place or places where the Series D
Preferred Units are to be surrendered and (D) that distributions on the Series D
Preferred Units will cease to accrue on such redemption date, or (b) if the
General Partner elects to cause the Partnership to redeem all of the Series D
Preferred Units then outstanding in exchange for cash, a Series D Redemption
Notice. Series D Preferred Units which are redeemed shall be deemed canceled
(and any corresponding Partnership Interest represented thereby deemed
terminated) on the redemption date. Holders of Series D Preferred Units shall
deliver any canceled certificates representing Series D Preferred Units which
have been exchanged or redeemed to the office of General Partner (which
currently is located at ▇▇▇▇ ▇, ▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ 94111) within
ten (10) Business Days of the exchange or redemption with respect thereto.
Notwithstanding anything to the contrary contained herein, any and all Series D
Preferred Units to be exchanged for Series D Preferred Shares pursuant to this
Section 17.8 shall be so exchanged in a single transaction at one time. As a
condition to exchange, AMB may require the holders of Series D Preferred Units
to make such representations as may be reasonably necessary for the General
Partner to establish that the issuance of Series D Preferred Shares pursuant to
the exchange shall not be required to be registered under the Securities Act or
any state securities laws. Any Series D Preferred Shares issued pursuant to this
Section 17.8 shall be delivered as shares which are duly authorized, validly
issued, fully paid and nonassessable, free of any pledge, lien, encumbrance or
restriction other than those provided in the REIT Charter, the Bylaws of AMB,
the Securities Act and relevant state securities or blue sky laws.
The certificates representing the Series D Preferred Shares issued upon
exchange of the Series D Preferred Units shall contain the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT (A)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), AND STATE SECURITIES LAWS OR (B) IF THE
CORPORATION HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL
FOR THE HOLDER OF THE SHARES REPRESENTED HEREBY, OR OTHER EVIDENCE
SATISFACTORY TO THE CORPORATION, THAT SUCH TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS
OF SECTION 5 OF THE ACT AND STATE SECURITIES LAWS AND THE RULES AND
REGULATIONS THEREUNDER.
(ii) In the event of an exchange of Series D Preferred Units for Series
D Preferred Shares, an amount equal to the accrued and unpaid distributions to
the date of exchange on any Series D Preferred Units tendered for exchange shall
(i) accrue on the Series D Preferred Shares into which such Series D Preferred
Units are exchanged, and (ii) continue to accrue on such Series D Preferred
Units, which shall remain outstanding following such
74
exchange, with the General Partner as the holder of such Series D Preferred
Units. Notwithstanding anything to the contrary set forth herein, in no event
shall a Holder of a Series D Preferred Unit that was validly exchanged for
Series D Preferred Shares pursuant to this Section (other than the General
Partner holding such Series D Preferred Unit following any such exchange),
receive a distribution out of Available Cash of the Partnership, if such Holder,
after exchange, is entitled to receive a distribution with respect to the Series
D Preferred Shares for which such Series D Preferred Unit was exchanged or
redeemed. Further for purposes of the foregoing, in the event of an exchange of
Series D Preferred Units for Series D Preferred Shares, if the accrued and
unpaid distributions per Series D Preferred Unit is not the same for each Series
D Preferred Unit, the accrued and unpaid distributions per Series D Preferred
Unit for each such Series D Preferred Unit shall be equal to the greatest amount
of such accrued and unpaid distributions per Series D Preferred Unit on any such
unit.
(iii) Fractional Series D Preferred Shares are not to be issued upon
exchange but, in lieu thereof, the General Partner will pay a cash adjustment
based upon the fair market value of the Series D Preferred Shares on the day
prior to the exchange date as determined in good faith by the board of directors
of the General Partner.
C. Adjustment of Series D Exchange Price. In case AMB shall be a party
to any transaction (including, without limitation, a merger, consolidation,
statutory share exchange, tender offer for all or substantially all of AMB's
capital stock or sale of all or substantially all of AMB's assets), in each case
as a result of which the Series D Preferred Shares will be converted into the
right to receive shares of capital stock, other securities or other property
(including cash or any combination thereof), each Series D Preferred Unit will
thereafter be exchangeable into the kind and amount of shares of capital stock
and other securities and property receivable (including cash or any combination
thereof) upon the consummation of such transaction by a holder of that number of
Series D Preferred Shares or fraction thereof into which one Series D Preferred
Unit was exchangeable immediately prior to such transaction. AMB may not become
a party to any such transaction unless the terms thereof are consistent with the
foregoing. AMB and the Operating Partnership further agree that, notwithstanding
any transaction to which either may be a party (including, without limitation,
any merger, consolidation, statutory share exchange, tender offer for all or
substantially all of such entity's capital stock or partnership interests or
sale of all or substantially all of such entity's assets), immediately following
any such transaction, the issuer or issuers of any shares of capital stock and
other securities into which the Series D Preferred Units shall be exchangeable
pursuant to this Section 17.8 shall be the same issuer or issuers of shares of
capital stock and other securities into which the Series B Preferred Units are
then exchangeable (or, if the Series B Preferred Units have previously been
redeemed in full, would have been then exchangeable if then still outstanding).
Section 17.9. No Conversion Rights
The Series D Preferred Units shall not be convertible into any other
class or series of interest in the Partnership.
Section 17.10. No Sinking Fund
No sinking fund shall be established for the retirement or redemption of
Series D Preferred Units.
75
ARTICLE 18.
SERIES E PREFERRED UNITS
Section 18.1. Designation and Number
A series of Partnership Units in the Partnership designated as the 7.75%
Series E Cumulative Redeemable Preferred Units (the "Series E Preferred Units")
is hereby established. The number of Series E Preferred Units shall be 220,440.
Section 18.2. Ranking
The Series E Preferred Units shall, with respect to distribution rights
and rights upon voluntary or involuntary liquidation, winding up or dissolution
of the Partnership, rank (i) senior to the Common Units and to all Partnership
Units the terms of which provide that such Partnership Units shall rank junior
to the Series E Preferred Units; (ii) on a parity with the Series D Preferred
Units and all other Parity Preferred Units; and (iii) junior to all Partnership
Units which rank senior to the Series E Preferred Units.
Section 18.3. Distributions
A. Payment of Distributions. Subject to the rights of holders of Parity
Preferred Units as to the payment of distributions (including pursuant to
Sections 5.1, 17.3A, 19.3A, 21.3A and 22.3A hereof), holders of Series E
Preferred Units will be entitled to receive, when, as and if declared by the
Partnership acting through the General Partner, out of Available Cash,
cumulative preferential cash distributions in an amount equal to the Series E
Priority Return. Such distributions will be payable (A) quarterly (such
quarterly periods for purposes of payment and accrual will be the quarterly
periods ending on the dates specified in this sentence and not calendar year
quarters) in arrears, on the 15th day of January, April, July and October of
each year and (B) in the event of (i) an exchange of Series E Preferred Units
into Series E Preferred Shares, or (ii) a redemption of Series E Preferred
Units, on the exchange date or redemption date, as applicable (each a "Series E
Preferred Unit Distribution Payment Date"), commencing on the first of such
payment dates to occur following their original date of issuance. If any date on
which distributions are to be made on the Series E Preferred Units is not a
Business Day, then payment of the distribution to be made on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay) except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. Distributions on the Series E Preferred Units will be
made to the holders of record of the Series E Preferred Units on the relevant
record dates, which will be fifteen (15) days prior to the relevant Series E
Preferred Unit Distribution Payment Date (the "Series E Preferred Unit
Partnership Record Date"). For purposes of clarifying the relative distribution
priority rights among the Series I Preferred Units, Series H Preferred Units,
the Series F Preferred Units, the Series E Preferred Units and the Series D
Preferred Units, the payment of distributions with respect to a series of such
Preferred Units prior to the payment of distributions with respect to another
such series of Preferred Units, solely as a result of the distribution payment
dates with respect to a series of Preferred Units occurring on a different
76
date from another series of Preferred Units, shall not be deemed to create a
priority in favor of one series of Preferred Units over any other series of
Preferred Units.
B. Distributions Cumulative. Notwithstanding the foregoing,
distributions on the Series E Preferred Units will accrue whether or not the
terms and provisions of any agreement of the Partnership at any time prohibit
the current payment of distributions, whether or not the Partnership has
earnings, whether or not there are funds legally available for the payment of
such of such distributions and whether or not such distributions are authorized.
Accrued but unpaid distributions on the Series E Preferred Units will accumulate
as of the Preferred Unit Distribution Payment Date on which they first become
payable.
C. Priority as to Distributions. (i) So long as any Series E Preferred
Units are outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect to any
class or series of Partnership Interest represented by Junior Units, nor shall
any Junior Units or Parity Preferred Units be redeemed, purchased or otherwise
acquired for any consideration (or any monies be paid to or made available for a
sinking fund for the redemption of any such Junior Units or Parity Preferred
Units) by the Partnership (except by conversion into or exchange for other
Junior Units or Parity Preferred Units, as the case may be) unless, in each
case, full cumulative distributions have been or contemporaneously are
authorized and paid or authorized and a sum sufficient for the payment thereof
set apart for such payment on the Series E Preferred Units and all classes and
series of outstanding Parity Preferred Units for all distribution periods. The
foregoing sentence will not prohibit (a) distributions payable solely in Junior
Units, (b) the exchange of Junior Units or Parity Preferred Units into
Partnership Interests of the Partnership ranking junior to the Series E
Preferred Units as to distributions and upon voluntary and involuntary
liquidation, dissolution or winding up of the Partnership, or (c) distributions
necessary to enable the Operating Partnership to redeem partnership interests
corresponding to Series E Preferred Shares and any Parity Preferred Stock with
respect to distributions or Junior Stock to be purchased by AMB pursuant to the
REIT Charter to preserve AMB's status as a REIT; provided that such redemption
shall be upon the same terms as the corresponding stock purchase pursuant to the
REIT Charter.
(ii) So long as distributions have not been paid in full (or a sum
sufficient for such full payment is not so set apart) upon the Series E
Preferred Units and any other Parity Preferred Units, all distributions
authorized and declared on the Series E Preferred Units and all classes or
series of outstanding Parity Preferred Units shall be authorized and declared
pro rata so that the amount of distributions authorized and declared per Series
E Preferred Unit and such other classes or series of Parity Preferred Units
shall in all cases bear to each other the same ratio that accrued distributions
per Series E Preferred Unit and such other classes or series of Parity Preferred
Units (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such class or series of Parity
Preferred Units do not have cumulative distribution rights) bear to each other.
No interest, or sum of money in lieu of interest, shall be payable in respect of
any distributions or payments on Series E Preferred Units which may be in
arrears.
(iii) Notwithstanding anything to the contrary set forth herein,
distributions on Partnership Interests held by either (a) the General Partner,
(b) the Operating Partnership or (c) any other holder of Partnership Interests
in the Partnership, in each case ranking junior to or on parity with the Series
E Preferred Units may be made, without preserving the priority of
77
distributions described in Sections 18.3.C(i) and (ii), but only to the extent
such distributions are required to preserve the REIT status of AMB, in its
capacity as sole general partner of the Operating Partnership and as sole
stockholder of the General Partner, and in the case of any holder other than the
General Partner only to the extent required by the Partnership Agreement;
provided, that the Partnership shall not be disproportionately burdened by this
provision relative to the cash flow generated by other assets owned directly or
indirectly by AMB.
D. No Further Rights. Holders of Series E Preferred Units shall not be
entitled to any distributions, whether payable in cash, other property or
otherwise, in excess of the full cumulative distributions described herein.
Section 18.4. Liquidation Proceeds
A. Distributions. Upon voluntary or involuntary liquidation, dissolution
or winding-up of the Partnership, distributions on the Series E Preferred Units
shall be made in accordance with Article 13 of this Agreement.
B. Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by the General Partner
pursuant to Section 13.6 hereof.
C. No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, Holders of Series E
Preferred Units will have no right or claim to any of the remaining assets of
the Partnership.
D. Consolidation, Merger or Certain Other Transactions. None of a
consolidation or merger of the Partnership with or into another entity, a merger
of another entity with or into the Partnership, or a sale, lease, transfer or
conveyance of all or substantially all of the Partnership's property or business
shall be considered a liquidation, dissolution or winding up of the Partnership.
Section 18.5. Series E Redemption
A. Series E Redemption. The Series E Preferred Units may not be redeemed
prior to August 31, 2004. On or after such date, the Partnership shall have the
right to redeem the Series E Preferred Units, in whole or in part, at any time
or from time to time, upon not less than 30 nor more than 60 days' written
notice, at a redemption price, payable in cash (a "Series E Redemption"), equal
to the Capital Account balance of the holder of Series E Preferred Units (the
"Series E Redemption Price"); provided, however, that no redemption pursuant to
this Section 18.5 will be permitted if the Series E Redemption Price does not
equal or exceed the original Capital Contribution of such holder plus the
cumulative Series E Priority Return to the redemption date to the extent not
previously distributed. If fewer than all of the outstanding Series E Preferred
Units are to be redeemed, the Series E Preferred Units to be redeemed shall be
selected pro rata (as nearly as practicable without creating fractional units).
B. Limitation on Series E Redemption. (i) The Series E Redemption Price
of the Series E Preferred Units (other than the portion thereof consisting of
accumulated but unpaid distributions) is payable solely out of the sale proceeds
of capital stock of AMB, which will be
78
contributed by AMB to the General Partner or the Operating Partnership and which
in turn will be contributed by the General Partner or the Operating Partnership
to the Partnership as an additional capital contribution, or out of the sale of
limited partner interests in the Partnership or the Operating Partnership and
from no other source. For purposes of the preceding sentence, "capital stock"
means any equity securities (including Common Stock and Preferred Stock (as such
terms are defined in the REIT Charter), depository shares, interests,
participation or other ownership interests (however designated) and any rights
(other than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(ii) The Partnership may not redeem fewer than all of the outstanding
Series E Preferred Units unless all accumulated and unpaid distributions have
been paid on all Series E Preferred Units for all quarterly distribution periods
terminating on or prior to the date of redemption.
C. Procedures for Series E Redemption. (i) Notice of redemption will be
(i) faxed, and (ii) mailed by the Partnership, by certified mail, postage
prepaid, not less than 30 nor more than 60 days prior to the redemption date,
addressed to the respective holders of record of the Series E Preferred Units at
their respective addresses as they appear on the records of the Partnership. No
failure to give or defect in such notice shall affect the validity of the
proceedings for the redemption of any Series E Preferred Units except as to the
holder to whom such notice was defective or not given. In addition to any
information required by law, each such notice shall state: (a) the redemption
date, (b) the Series E Redemption Price, (c) the aggregate number of Series E
Preferred Units to be redeemed and if fewer than all of the outstanding Series E
Preferred Units are to be redeemed, the number of Series E Preferred Units to be
redeemed held by such holder, which number shall equal such holder's pro rata
share (based on the percentage of the aggregate number of outstanding Series E
Preferred Units that the total number of Series E Preferred Units held by such
holder represents) of the aggregate number of Series E Preferred Units to be
redeemed, (d) the place or places where such Series E Preferred Units are to be
surrendered for payment of the Series E Redemption Price, (e) that distributions
on the Series E Preferred Units to be redeemed will cease to accumulate on such
redemption date and (f) that payment of the Series E Redemption Price will be
made upon presentation and surrender of such Series E Preferred Units.
(ii) If the Partnership gives a notice of redemption in respect of
Series E Preferred Units (which notice will be irrevocable) then, by 12:00 noon,
New York City time, on the redemption date, the Partnership will deposit
irrevocably in trust for the benefit of the Series E Preferred Units being
redeemed funds sufficient to pay the applicable Series E Redemption Price and
will give irrevocable instructions and authority to pay such Series E Redemption
Price to the holders of the Series E Preferred Units upon surrender of the
Series E Preferred Units by such holders at the place designated in the notice
of redemption. On and after the date of redemption, distributions will cease to
accumulate on the Series E Preferred Units or portions thereof called for
redemption, unless the Partnership defaults in the payment thereof. If any date
fixed for redemption of Series E Preferred Units is not a Business Day, then
payment of the Series E Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day
falls in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date fixed for redemption. If payment of the Series E Redemption Price
is improperly
79
withheld or refused and not paid by the Partnership, distributions on such
Series E Preferred Units will continue to accumulate from the original
redemption date to the date of payment, in which case the actual payment date
will be considered the date fixed for redemption for purposes of calculating the
applicable Series E Redemption Price.
Section 18.6. Voting and Certain Management Rights
A. General. Holders of the Series E Preferred Units will not have any
voting rights or right to consent to any matter requiring the consent or
approval of the Limited Partners, except as set forth below and in Section
7.3.E.
B. Certain Voting Rights. So long as any Series E Preferred Units
remains outstanding, the Partnership shall not, without the affirmative vote of
the holders of at least two-thirds of the Series E Preferred Units outstanding
at the time (i) authorize or create, or increase the authorized or issued amount
of, any class or series of Partnership Interests ranking prior to the Series E
Preferred Units with respect to payment of distributions or rights upon
liquidation, dissolution or winding-up or reclassify any Partnership Interests
of the Partnership into any such Partnership Interest, or create, authorize or
issue any obligations or security convertible into or evidencing the right to
purchase any such Partnership Interests, (ii) authorize or create, or increase
the authorized or issued amount of any Parity Preferred Units or reclassify any
Partnership Interest of the Partnership into any such Partnership Interest or
create, authorize or issue any obligations or security convertible into or
evidencing the right to purchase any such Partnership Interests but only to the
extent such Parity Preferred Units are issued to an affiliate of the
Partnership, other than AMB or the Operating Partnership to the extent the
issuance of such interests was to allow AMB or the Operating Partnership to
issue corresponding preferred stock or preferred interests to persons who are
not affiliates of the Partnership (other than AMB to the extent AMB issues
corresponding preferred stock to persons who are not affiliates of the
Partnership or the Operating Partnership) or (iii) either consolidate, merge
into or with, or convey, transfer or lease its assets substantially as an
entirety to, any corporation or other entity or amend, alter or repeal the
provisions of the Partnership Agreement (including, without limitation, this
Article 18 and Section 11.2), whether by merger, consolidation or otherwise, in
each case in a manner that would materially and adversely affect the powers,
special rights, preferences, privileges or voting power of the Series E
Preferred Units or the holders thereof; provided, however, that with respect to
the occurrence of any event set forth in (iii) above, so long as (a) the
Partnership is the surviving entity and the Series E Preferred Units remain
outstanding with the terms thereof unchanged, or (b) the resulting, surviving or
transferee entity is a partnership, limited liability company or other
pass-through entity organized under the laws of any state and substitutes the
Series E Preferred Units for other interests in such entity having substantially
the same terms and rights as the Series E Preferred Units, including with
respect to distributions, voting rights and rights upon liquidation, dissolution
or winding-up, then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or voting powers of the
holders of the Series E Preferred Units; and provided further, that any increase
in the amount of Partnership Interests or the creation or issuance of any other
class or series of Partnership Interests represented by Junior Units or Parity
Preferred Units that are not issued to an affiliate of the Partnership, other
than the General Partner or the Operating Partnership to the extent the issuance
of such interests was to allow the General Partner or the Operating Partnership
to issue corresponding preferred stock or preferred interests to persons who are
not affiliates of the Partnership (other than AMB to the extent AMB issues
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corresponding preferred stock or preferred interests to persons who are not
affiliates of the Partnership or the Operating Partnership), shall not be deemed
to materially and adversely affect such rights, preferences, privileges or
voting powers.
C. So long as any Series E Preferred Units remain outstanding, the
General Partner shall not, without the affirmative vote of the holders of at
least two-thirds of the Series E Preferred Units outstanding at the time, take
any action which would result in the termination of the right of the holders of
such units to effect an exchange pursuant to Section 18.8; provided however, no
such vote shall be required so long as the Series E Preferred Units (or any
interests substituted therefore pursuant to Section 18.6.B) remain outstanding
and are exchangeable for Series E Preferred Shares or stock in another entity
having substantially the same terms and rights as the Series E Preferred Shares.
D. Notwithstanding anything to the contrary contained in this Agreement,
including, without limitation, the provisions of Article 7 regarding the
management rights and responsibilities of the General Partner, whenever
distributions on any Series E Preferred Units shall remain unpaid for six or
more quarterly periods (i.e., the quarterly periods ending on the 15th day of
each January, April, July and October, or, if not a business day, the next
succeeding business day, beginning with the quarterly period ending October 15,
1999) (whether or not consecutive), the holders of 51% of either (i) such Series
E Preferred Units, in the event that the holders of the Series D Preferred
Units, Series F Preferred Units, Series H Preferred Units and Series I Preferred
Units are not entitled to exercise management rights pursuant to Section 17.6.D,
Section 19.6.D, Section 21.6.D and Section 22.6.D, respectively, and that no
Future Parity Preferred Unitholders are entitled to exercise management rights
similar to those to which the holders of Series D Preferred Units, Series E
Preferred Units, Series F Preferred Units, Series H Preferred Units and Series I
Preferred Units are entitled to exercise pursuant to Section 17.6.D, this
Section 18.6.D, Section 19.6.D, Section 21.6.D and Section 22.6.D, respectively,
or (ii) the Parity Preferred Capital, in the event that holders of Series D
Preferred Units, Series F Preferred Units, Series H Preferred Units or Series I
Preferred Units are entitled to exercise management rights pursuant to Section
17.6.D, Section 19.6.D, Section 21.6.D or Section 22.6.D, respectively, or
Future Parity Preferred Unitholders are entitled to exercise management rights
similar to those to which the holders of Series D Preferred Units, Series E
Preferred Units, Series F Preferred Units, Series H Preferred Units, and Series
I Preferred Units are entitled to exercise pursuant to Section 17.6.D, Section
18.6.D, Section 19.6.D, Section 21.6.D and Section 22.6.D, respectively, shall
be entitled to assume rights to manage the Partnership and perform actions
related thereto for the sole purpose of enforcing the Partnership's rights and
remedies as against obligees of the Partnership or other Persons from whom the
Partnership may be entitled to receive cash or other assets, until all
distributions accumulated on the Series E Preferred Units for all past quarterly
periods and the distribution for the then-current quarterly period shall have
been fully-paid or declared and a sum sufficient for the payment thereof
irrevocably set aside in trust for payment in full; provided, however, that no
such holder or holders of Series E Preferred Units may at any time take any
action (or fail to take any action) if the consequence of such action (or
inaction) would be (i) to cause AMB to fail to qualify as a REIT for federal or
applicable state income tax purposes or (ii) to cause the Partnership or the
Operating Partnership to fail to qualify as a partnership for federal or
applicable state income tax purposes, or (iii) to cause the Partnership, the
Operating Partnership, the General Partner, or AMB to be considered an
"investment company" as defined in, or otherwise be subject to regulation under,
the Investment Company Act of 1940, as amended; and provided, further, that
solely for purposes of
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exercising the management rights set forth in this Section 18.6.D, each holder
of Series E Preferred Units shall be deemed an Indemnitee, and shall be entitled
to the benefits of the indemnification provisions of Section 7.7 with respect to
any and all action(s) taken (or failure(s) to act) by a holder of Series E
Preferred Units in the exercise of (or failure(s) to exercise) the management
rights described in this Section 18.6.D, including, without limitation, alleged
breaches of the General Partner's fiduciary duty to the Partners; and provided
further, that the holders of the Series E Preferred Units acknowledge and agree
that the General Partner and the Partnership has provided similar management
rights to the holders of the Series D Preferred Units and shall be entitled to
provide similar management rights to Future Parity Preferred Unitholders.
Section 18.7. Transfer Restrictions
The Series E Preferred Units shall be subject to the provisions of
Article 11 hereof. Notwithstanding any provision to the contrary herein, no
transfer of Series E Preferred Units, or other action by the holder or holders
of such Units, is permitted without the consent of the General Partner which
consent may be given or withheld in its sole and absolute discretion, if such
transfer or other action would result in more than four partners holding all
outstanding Series E Preferred Units within the meaning of Treasury Regulation
Section 1.7704-1(h)(1)(ii) (without regard to Treasury Regulation Section
1.7704-1(h)(3)(ii)); provided, however, that the General Partner's consent may
not be unreasonably withheld if (a) such transfer or other action would not
result in more than ten partners holding all outstanding Series E Preferred
Units within the meaning of Treasury Regulation Section 1.7704-1(h)(1)(ii)
(without regard to Treasury Regulation Section 1.7704-1(h)(3)(ii)) and (b) the
General Partner cannot rely on Treasury Regulation Section 1.7704-1(h). In
addition, no transfer may be made to any person if such transfer would cause the
exchange of the Series E Preferred Units for Series E Preferred Shares, as
provided herein, to be required to be registered under the Securities Act of
1933, as amended, or any state securities laws.
Section 18.8. Exchange Rights
A. Right to Exchange. (i) Series E Preferred Units will be exchangeable
in whole but not in part unless expressly otherwise provided herein at anytime
on or after August 31, 2009, at the option of 51% of the holders of all
outstanding Series E Preferred Units, for authorized but previously unissued
Series E Preferred Shares at an exchange rate of one Series E Preferred Share
from AMB for one Series E Preferred Unit, subject to adjustment as described
below (the "Series E Exchange Price"); provided that the Series E Preferred
Units will become exchangeable at any time, in whole but not in part unless
expressly otherwise provided herein, at the option of 51% of the holders of all
outstanding Series E Preferred Units for Series E Preferred Shares if (y) at any
time full distributions shall not have been timely made on any Series E
Preferred Unit with respect to six (6) prior quarterly distribution periods,
whether or not consecutive; provided, however, that a distribution in respect of
Series E Preferred Units shall be considered timely made if made within two (2)
Business Days after the applicable Series E Preferred Unit Distribution Payment
Date if at the time of such late payment there shall not be any prior quarterly
distribution periods in respect of which full distributions were not timely made
or (z) upon receipt by a holder or holders of Series E Preferred Units of (A)
notice from the General Partner that the General Partner or a Subsidiary of the
General Partner has taken the position that the Partnership is, or upon the
consummation of an identified event in the
82
immediate future will be, a PTP and (B) an opinion rendered by independent
counsel familiar with such matters addressed to a holder or holders of Series E
Preferred Units, that the Partnership is or likely is, or upon the occurrence of
a defined event in the immediate future will be or likely will be, a PTP. In
addition, the Series E Preferred Units may be exchanged for Series E Preferred
Shares, in whole but not in part unless expressly otherwise provided herein, at
the option of 51% of the holders of all outstanding Series E Preferred Units
after August 31, 2002 and prior to August 31, 2009 if such holders of a Series E
Preferred Units shall deliver to the General Partner either (i) a private letter
ruling addressed to such holder of Series E Preferred Units or (ii) an opinion
of independent counsel reasonably acceptable to the General Partner based on a
change in statute, the enactment of temporary or final Treasury Regulations or
the publication of a Revenue Ruling or any other IRS release, in either case to
the effect that an exchange of the Series E Preferred Units at such earlier time
would not cause the Series E Preferred Units to be considered "stock and
securities" within the meaning of Section 351(e) of the Code for purposes of
determining whether the holder of such Series E Preferred Units is an
"investment company" under Section 721(b) of the Code if an exchange is
permitted at such earlier date.
(ii) Notwithstanding anything to the contrary set forth in Section
18.8.A(i), if a Series E Exchange Notice (as defined herein) has been delivered
to AMB and the General Partner, then the General Partner may, at its option,
within ten (10) Business Days after receipt of the Series E Exchange Notice,
elect to cause the Partnership to redeem all or a portion of the outstanding
Series E Preferred Units for cash in an amount equal to the original Capital
Contribution per Series E Preferred Unit and all accrued and unpaid
distributions thereon to the date of redemption. If the General Partner elects
to redeem fewer than all of the outstanding Series E Preferred Units, the number
of Series E Preferred Units held by each holder to be redeemed shall equal such
holder's pro rata share (based on the percentage of the aggregate number of
outstanding Series E Preferred Units that the total number of Series E Preferred
Units held by such holder represents) of the aggregate number of Series E
Preferred Units being redeemed.
(iii) In the event an exchange of all Series E Preferred Units pursuant
to Section 18.8.A would violate the provisions on ownership limitation of AMB
set forth in Section 7 of Article Third of the Series E Articles Supplementary,
each holder of Series E Preferred Units shall be entitled to exchange, pursuant
to the provisions of Section 18.8.B, a number of Series E Preferred Units which
would comply with the provisions on the ownership limitation of AMB set forth in
such Section 7 of Article Third of the Series E Articles Supplementary, with
respect to such holder, and any Series E Preferred Units not so exchanged (the
"Series E Excess Units") shall be redeemed by the Partnership for cash in an
amount equal to the original Capital Contribution per Series E Excess Unit, plus
any accrued and unpaid distributions thereon to the date of redemption subject
to any restriction thereon contained in any debt instrument or agreement of the
Partnership. In the event an exchange would result in Series E Excess Units, as
a condition to such exchange, each holder of such units agrees to provide
representations and covenants reasonably requested by AMB relating to (i) the
widely held nature of the interests in such holder, sufficient to assure AMB
that the holder's ownership of stock of AMB (without regard to the limits
described above) will not cause any individual to own in excess of 9.0% of the
stock of AMB; and (ii) to the extent such Holder can so represent and covenant
without obtaining information from its owners (other than one or more direct or
indirect parent corporations, limited liability companies or partnerships and
not the holders of any interests in
83
any such parent), the Holder's ownership of tenants of the Partnership and its
affiliates. For purposes of determining the number of Series E Excess Units
under this Section 18.8.A(iii), the "Ownership Limit" set forth in the Series E
Articles Supplementary shall be deemed to be 9.0%. To the extent the Partnership
would not be able to pay the cash set forth above in exchange for the Series E
Excess Units, and to the extent consistent with the REIT Charter, AMB agrees
that it will grant to the holders of the Series E Preferred Units exceptions to
the Ownership Limit set forth in the Series E Articles Supplementary sufficient
to allow such Holders to exchange all of their Series E Preferred Units for
Series E Preferred Shares; provided such holders furnish to AMB representations
acceptable to AMB in its sole and absolute discretion which assure AMB that such
exceptions will not jeopardize AMB's tax status as a REIT for purposes of
federal and applicable state law. Notwithstanding any provision of this
Agreement to the contrary, no Series E Limited Partner shall be entitled to
effect an exchange of Series E Preferred Units for Series E Preferred Shares to
the extent that ownership or right to acquire such shares would cause the
Partner or any other Person or, in the opinion of counsel selected by AMB, may
cause the Partner or any other Person, to violate the restrictions on ownership
and transfer of Series E Preferred Shares set forth in the REIT Charter. To the
extent any such attempted exchange for Series E Preferred Shares would be in
violation of the previous sentence, it shall be void ab initio and such Series E
Limited Partner shall not acquire any rights or economic interest in the Series
E Preferred Shares otherwise issuable upon such exchange.
(iv) The redemption of Series E Preferred Units described in Section
18.8.A(ii) and (iii) shall be subject to the provisions of Section 18.5.B(i) and
Section 18.5.C(ii); provided, however, that the term "Series E Redemption Price"
in such Sections 18.5.B(i) and 18.5.C(ii) shall be read to mean the original
Capital Contribution per Series E Preferred Unit being redeemed as set forth on
Exhibit A plus all accrued and unpaid distributions to the redemption date.
B. Procedure for Exchange of Series E Preferred Units and/or Series E
Redemption.
(i) Any exchange shall be exercised pursuant to a notice of exchange
(the "Series E Exchange Notice") delivered to AMB and the General Partner by the
Partners representing at least 51% of the outstanding Series E Preferred Units
(or by the Series E Contributor in the case of an exchange pursuant to the last
sentence of Section 18.8.A.(i) hereof) by (a) fax and (b) by certified mail
postage prepaid. AMB may effect any exchange of Series E Preferred Units, or the
General Partner may exercise its option to cause the Partnership to redeem any
portion of the Series E Preferred Units for cash pursuant to Section 18.8.A(ii)
or redeem Series E Excess Units pursuant to Section 18.8.A(iii), by delivering
to each holder of record of Series E Preferred Units, within ten (10) Business
Days following receipt of the Series E Exchange Notice, (a) if the General
Partner elects to cause the Partnership to acquire any of the Series E Preferred
Units then outstanding, (1) certificates representing the Series E Preferred
Shares being issued in exchange for the Series E Preferred Units of such holder
being exchanged and (2) a written notice (a "Series E Redemption Notice")
stating (A) the redemption date, which may be the date of such Series E
Redemption Notice or any other date which is not later than sixty (60) days
following the receipt of the Series E Exchange Notice, (B) the redemption price,
(C) the place or places where the Series E Preferred Units are to be surrendered
and (D) that distributions on the Series E Preferred Units will cease to accrue
on such redemption date, or (b) if the General Partner elects to cause the
Partnership to redeem all of the Series E Preferred Units then outstanding in
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exchange for cash, a Series E Redemption Notice. Series E Preferred Units which
are redeemed shall be deemed canceled (and any corresponding Partnership
Interest represented thereby deemed terminated) on the redemption date. Holders
of Series E Preferred Units shall deliver any canceled certificates representing
Series E Preferred Units which have been exchanged or redeemed to the office of
the General Partner (which currently is located at ▇▇▇▇ ▇, ▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ 94111) within ten (10) Business Days of the exchange or redemption
with respect thereto. Notwithstanding anything to the contrary contained herein,
any and all Series E Preferred Units to be exchanged for Series E Preferred
Shares pursuant to this Section 18.8 shall be so exchanged in a single
transaction at one time. As a condition to exchange, AMB may require the holders
of Series E Preferred Units to make such representations as may be reasonably
necessary for the General Partner to establish that the issuance of Series E
Preferred Shares pursuant to the exchange shall not be required to be registered
under the Securities Act or any state securities laws. Any Series E Preferred
Shares issued pursuant to this Section 18.8 shall be delivered as shares which
are duly authorized, validly issued, fully paid and nonassessable, free of any
pledge, lien, encumbrance or restriction other than those provided in the REIT
Charter, the Bylaws of AMB, the Securities Act and relevant state securities or
blue sky laws.
The certificates representing the Series E Preferred Shares issued upon
exchange of the Series E Preferred Units shall contain the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT (A)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), AND STATE SECURITIES LAWS OR (B) IF THE
CORPORATION HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL
FOR THE HOLDER OF THE SHARES REPRESENTED HEREBY, OR OTHER EVIDENCE
SATISFACTORY TO THE CORPORATION, THAT SUCH TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS
OF SECTION 5 OF THE ACT AND STATE SECURITIES LAWS AND THE RULES AND
REGULATIONS THEREUNDER.
(ii) In the event of an exchange of Series E Preferred Units for Series
E Preferred Shares, an amount equal to the accrued and unpaid distributions to
the date of exchange on any Series E Preferred Units tendered for exchange shall
(i) accrue on the Series E Preferred Shares into which such Series E Preferred
Units are exchanged, and (ii) continue to accrue on such Series E Preferred
Units, which shall remain outstanding following such exchange, with the General
Partner as the holder of such Series E Preferred Units. Notwithstanding anything
to the contrary set forth herein, in no event shall a Holder of a Series E
Preferred Unit that was validly exchanged for Series E Preferred Shares pursuant
to this Section (other than the General Partner holding such Series E Preferred
Unit following any such exchange), receive a distribution out of Available Cash
of the Partnership, if such Holder, after exchange, is entitled to receive a
distribution with respect to the Series E Preferred Shares for
85
which such Series E Preferred Unit was exchanged or redeemed. Further, for
purposes of the foregoing, in the event of an exchange of Series E Preferred
Units for Series E Preferred Shares, if the accrued and unpaid distributions per
Series E Preferred Unit is not the same for each Series E Preferred Unit, the
accrued and unpaid distributions per Series E Preferred Unit for each such
Series E Preferred Unit shall be equal to the greatest amount of such accrued
and unpaid distributions per Series E Preferred Unit on any such unit.
(iii) Fractional Series E Preferred Shares are not to be issued upon
exchange but, in lieu thereof, the General Partner will pay a cash adjustment
based upon the fair market value of the Series E Preferred Shares on the day
prior to the exchange date as determined in good faith by the board of directors
of the General Partner.
C. Adjustment of Series E Exchange Price. In case AMB shall be a party
to any transaction (including, without limitation, a merger, consolidation,
statutory share exchange, tender offer for all or substantially all of AMB's
capital stock or sale of all or substantially all of AMB's assets), in each case
as a result of which the Series E Preferred Shares will be converted into the
right to receive shares of capital stock, other securities or other property
(including cash or any combination thereof), each Series E Preferred Unit will
thereafter be exchangeable into the kind and amount of shares of capital stock
and other securities and property receivable (including cash or any combination
thereof) upon the consummation of such transaction by a holder of that number of
Series E Preferred Shares or fraction thereof into which one Series E Preferred
Unit was exchangeable immediately prior to such transaction. AMB may not become
a party to any such transaction unless the terms thereof are consistent with the
foregoing. AMB and the Operating Partnership further agree that, notwithstanding
any transaction to which either may be a party (including, without limitation,
any merger, consolidation, statutory share exchange, tender offer for all or
substantially all of such entity's capital stock or partnership interests or
sale of all or substantially all of such entity's assets), immediately following
any such transaction, the issuer or issuers of any shares of capital stock and
other securities into which the Series E Preferred Units shall be exchangeable
pursuant to this Section 18.8 shall be the same issuer or issuers of shares of
capital stock and other securities into which (i) the Series B Preferred Units
are then exchangeable (or, if the Series B Preferred Units have previously been
redeemed in full, would have been then exchangeable if then still outstanding),
and (ii) the Series D Preferred Units are then exchangeable (or, if the Series D
Preferred Units have previously been redeemed in full, would have been then
exchangeable if then still outstanding).
Section 18.9. No Conversion Rights
The Series E Preferred Units shall not be convertible into any other
class or series of interest in the Partnership.
Section 18.10. No Sinking Fund
No sinking fund shall be established for the retirement or redemption of
Series E Preferred Units.
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ARTICLE 19.
SERIES F PREFERRED UNITS
Section 19.1. Designation and Number
A series of Partnership Units in the Partnership designated as the 7.95%
Series F Cumulative Redeemable Preferred Units (the "Series F Preferred Units")
is hereby established. The number of Series F Preferred Units shall be 397,439.
Section 19.2. Ranking
The Series F Preferred Units shall, with respect to distribution rights
and rights upon voluntary or involuntary liquidation, winding up or dissolution
of the Partnership, rank (i) senior to the Common Units and to all Partnership
Units the terms of which provide that such Partnership Units shall rank junior
to the Series F Preferred Units; (ii) on a parity with the Series D Preferred
Units, the Series E Preferred Units and all other Parity Preferred Units; and
(iii) junior to all Partnership Units which rank senior to the Series F
Preferred Units.
Section 19.3. Distributions
A. Payment of Distributions. Subject to the rights of holders of Parity
Preferred Units as to the payment of distributions (including pursuant to
Sections 5.1, 17.3A, 18.3A, 21.3A and 22.3A hereof), holders of Series F
Preferred Units will be entitled to receive, when, as and if declared by the
Partnership acting through the General Partner, out of Available Cash,
cumulative preferential cash distributions in an amount equal to the Series F
Priority Return. Such distributions will be payable (A) quarterly (such
quarterly periods for purposes of payment and accrual will be the quarterly
periods ending on the dates specified in this sentence and not calendar year
quarters) in arrears, on the 15th day of January, April, July and October of
each year and (B) in the event of (i) an exchange of Series F Preferred Units
into Series F Preferred Shares, or (ii) a redemption of Series F Preferred
Units, on the exchange date or redemption date, as applicable (each a "Series F
Preferred Unit Distribution Payment Date"), commencing on the first of such
payment dates to occur following their original date of issuance. If any date on
which distributions are to be made on the Series F Preferred Units is not a
Business Day, then payment of the distribution to be made on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay) except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. Distributions on the Series F Preferred Units will be
made to the holders of record of the Series F Preferred Units on the relevant
record dates, which will be fifteen (15) days prior to the relevant Series F
Preferred Unit Distribution Payment Date (the "Series F Preferred Unit
Partnership Record Date"). For purposes of clarifying the relative distribution
priority rights among the Series I Preferred Units, Series H Preferred Units,
the Series F Preferred Units, the Series E Preferred Units and the Series D
Preferred Units, the payment of distributions with respect to a series of such
Preferred Units prior to the payment of distributions with respect to another
such series of Preferred Units, solely as a result of the distribution payment
dates with respect to a series of Preferred Units occurring on a different
87
date from another series of Preferred Units, shall not be deemed to create a
priority in favor of one series of Preferred Units over any other series of
Preferred Units.
B. Distributions Cumulative. Notwithstanding the foregoing,
distributions on the Series F Preferred Units will accrue whether or not the
terms and provisions of any agreement of the Partnership at any time prohibit
the current payment of distributions, whether or not the Partnership has
earnings, whether or not there are funds legally available for the payment of
such of such distributions and whether or not such distributions are authorized.
Accrued but unpaid distributions on the Series F Preferred Units will accumulate
as of the Preferred Unit Distribution Payment Date on which they first become
payable.
C. Priority as to Distributions. (i) So long as any Series F Preferred
Units are outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect to any
class or series of Partnership Interest represented by Junior Units, nor shall
any Junior Units or Parity Preferred Units be redeemed, purchased or otherwise
acquired for any consideration (or any monies be paid to or made available for a
sinking fund for the redemption of any such Junior Units or Parity Preferred
Units) by the Partnership (except by conversion into or exchange for other
Junior Units or Parity Preferred Units, as the case may be) unless, in each
case, full cumulative distributions have been or contemporaneously are
authorized and paid or authorized and a sum sufficient for the payment thereof
set apart for such payment on the Series F Preferred Units and all classes and
series of outstanding Parity Preferred Units for all distribution periods. The
foregoing sentence will not prohibit (a) distributions payable solely in Junior
Units, (b) the exchange of Junior Units or Parity Preferred Units into
Partnership Interests of the Partnership ranking junior to the Series F
Preferred Units as to distributions and upon voluntary and involuntary
liquidation, dissolution or winding up of the Partnership, or (c) distributions
necessary to enable the Operating Partnership to redeem partnership interests
corresponding to Series F Preferred Shares and any Parity Preferred Stock with
respect to distributions or Junior Stock to be purchased by AMB pursuant to the
REIT Charter to preserve AMB's status as a REIT; provided that such redemption
shall be upon the same terms as the corresponding stock purchase pursuant to the
REIT Charter.
(ii) So long as distributions have not been paid in full (or a sum
sufficient for such full payment is not so set apart) upon the Series F
Preferred Units and any other Parity Preferred Units, all distributions
authorized and declared on the Series F Preferred Units and all classes or
series of outstanding Parity Preferred Units shall be authorized and declared
pro rata so that the amount of distributions authorized and declared per Series
F Preferred Unit and such other classes or series of Parity Preferred Units
shall in all cases bear to each other the same ratio that accrued distributions
per Series F Preferred Unit and such other classes or series of Parity Preferred
Units (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such class or series of Parity
Preferred Units do not have cumulative distribution rights) bear to each other.
No interest, or sum of money in lieu of interest, shall be payable in respect of
any distributions or payments on Series F Preferred Units which may be in
arrears.
(iii) Notwithstanding anything to the contrary set forth herein,
distributions on Partnership Interests held by either (a) the General Partner,
(b) the Operating Partnership or (c) any other holder of Partnership Interests
in the Partnership, in each case ranking junior to or on parity with the Series
F Preferred Units may be made, without preserving the priority of
88
distributions described in Sections 19.3.C(i) and (ii), but only to the extent
such distributions are required to preserve the REIT status of AMB, in its
capacity as sole general partner of the Operating Partnership and as sole
stockholder of the General Partner, and in the case of any holder other than the
General Partner only to the extent required by the Partnership Agreement;
provided, that the Partnership shall not be disproportionately burdened by this
provision relative to the cash flow generated by other assets owned directly or
indirectly by AMB.
D. No Further Rights. Holders of Series F Preferred Units shall not be
entitled to any distributions, whether payable in cash, other property or
otherwise, in excess of the full cumulative distributions described herein.
Section 19.4. Liquidation Proceeds
A. Distributions. Upon voluntary or involuntary liquidation, dissolution
or winding-up of the Partnership, distributions on the Series F Preferred Units
shall be made in accordance with Article 13 of this Agreement.
B. Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by the General Partner
pursuant to Section 13.6 hereof.
C. No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, Holders of Series F
Preferred Units will have no right or claim to any of the remaining assets of
the Partnership.
D. Consolidation, Merger or Certain Other Transactions. None of a
consolidation or merger of the Partnership with or into another entity, a merger
of another entity with or into the Partnership, or a sale, lease, transfer or
conveyance of all or substantially all of the Partnership's property or business
shall be considered a liquidation, dissolution or winding up of the Partnership.
Section 19.5. Series F Redemption
A. Series F Redemption. The Series F Preferred Units may not be redeemed
prior to March 22, 2005. On or after such date, the Partnership shall have the
right to redeem the Series F Preferred Units, in whole or in part, at any time
or from time to time, upon not less than 30 nor more than 60 days' written
notice, at a redemption price, payable in cash (a "Series F Redemption"), equal
to the Capital Account balance of the holder of Series F Preferred Units (the
"Series F Redemption Price"); provided, however, that no redemption pursuant to
this Section 19.5 will be permitted if the Series F Redemption Price does not
equal or exceed the original Capital Contribution of such holder plus the
cumulative Series F Priority Return to the redemption date to the extent not
previously distributed. If fewer than all of the outstanding Series F Preferred
Units are to be redeemed, the Series F Preferred Units to be redeemed shall be
selected pro rata (as nearly as practicable without creating fractional units).
B. Limitation on Series F Redemption. (i) The Series F Redemption Price
of the Series F Preferred Units (other than the portion thereof consisting of
accumulated but unpaid distributions) is payable solely out of the sale proceeds
of capital stock of AMB, which will be
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contributed by AMB to the General Partner or the Operating Partnership and which
in turn will be contributed by the General Partner or the Operating Partnership
to the Partnership as an additional capital contribution, or out of the sale of
limited partner interests in the Partnership or the Operating Partnership and
from no other source. For purposes of the preceding sentence, "capital stock"
means any equity securities (including Common Stock and Preferred Stock (as such
terms are defined in the REIT Charter), depository shares, interests,
participation or other ownership interests (however designated) and any rights
(other than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(ii) The Partnership may not redeem fewer than all of the outstanding
Series F Preferred Units unless all accumulated and unpaid distributions have
been paid on all Series F Preferred Units for all quarterly distribution periods
terminating on or prior to the date of redemption.
C. Procedures for Series F Redemption. (i) Notice of redemption will be
(i) faxed, and (ii) mailed by the Partnership, by certified mail, postage
prepaid, not less than 30 nor more than 60 days prior to the redemption date,
addressed to the respective holders of record of the Series F Preferred Units at
their respective addresses as they appear on the records of the Partnership. No
failure to give or defect in such notice shall affect the validity of the
proceedings for the redemption of any Series F Preferred Units except as to the
holder to whom such notice was defective or not given. In addition to any
information required by law, each such notice shall state: (a) the redemption
date, (b) the Series F Redemption Price, (c) the aggregate number of Series F
Preferred Units to be redeemed and if fewer than all of the outstanding Series F
Preferred Units are to be redeemed, the number of Series F Preferred Units to be
redeemed held by such holder, which number shall equal such holder's pro rata
share (based on the percentage of the aggregate number of outstanding Series F
Preferred Units that the total number of Series F Preferred Units held by such
holder represents) of the aggregate number of Series F Preferred Units to be
redeemed, (d) the place or places where such Series F Preferred Units are to be
surrendered for payment of the Series F Redemption Price, (e) that distributions
on the Series F Preferred Units to be redeemed will cease to accumulate on such
redemption date and (f) that payment of the Series F Redemption Price will be
made upon presentation and surrender of such Series F Preferred Units.
(ii) If the Partnership gives a notice of redemption in respect of
Series F Preferred Units (which notice will be irrevocable) then, by 12:00 noon,
New York City time, on the redemption date, the Partnership will deposit
irrevocably in trust for the benefit of the Series F Preferred Units being
redeemed funds sufficient to pay the applicable Series F Redemption Price and
will give irrevocable instructions and authority to pay such Series F Redemption
Price to the holders of the Series F Preferred Units upon surrender of the
Series F Preferred Units by such holders at the place designated in the notice
of redemption. On and after the date of redemption, distributions will cease to
accumulate on the Series F Preferred Units or portions thereof called for
redemption, unless the Partnership defaults in the payment thereof. If any date
fixed for redemption of Series F Preferred Units is not a Business Day, then
payment of the Series F Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day
falls in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date fixed for redemption. If payment of the Series F Redemption Price
is improperly
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withheld or refused and not paid by the Partnership, distributions on such
Series F Preferred Units will continue to accumulate from the original
redemption date to the date of payment, in which case the actual payment date
will be considered the date fixed for redemption for purposes of calculating the
applicable Series F Redemption Price.
Section 19.6. Voting and Certain Management Rights
A. General. Holders of the Series F Preferred Units will not have any
voting rights or right to consent to any matter requiring the consent or
approval of the Limited Partners, except as set forth below and in Section
7.3.E.
B. Certain Voting Rights. So long as any Series F Preferred Units
remains outstanding, the Partnership shall not, without the affirmative vote of
the holders of at least two-thirds of the Series F Preferred Units outstanding
at the time (i) authorize or create, or increase the authorized or issued amount
of, any class or series of Partnership Interests ranking prior to the Series F
Preferred Units with respect to payment of distributions or rights upon
liquidation, dissolution or winding-up or reclassify any Partnership Interests
of the Partnership into any such Partnership Interest, or create, authorize or
issue any obligations or security convertible into or evidencing the right to
purchase any such Partnership Interests, (ii) authorize or create, or increase
the authorized or issued amount of any Parity Preferred Units or reclassify any
Partnership Interest of the Partnership into any such Partnership Interest or
create, authorize or issue any obligations or security convertible into or
evidencing the right to purchase any such Partnership Interests but only to the
extent such Parity Preferred Units are issued to an affiliate of the
Partnership, other than AMB or the Operating Partnership to the extent the
issuance of such interests was to allow AMB or the Operating Partnership to
issue corresponding preferred stock or preferred interests to persons who are
not affiliates of the Partnership (other than AMB to the extent AMB issues
corresponding preferred stock to persons who are not affiliates of the
Partnership or the Operating Partnership) or (iii) either consolidate, merge
into or with, or convey, transfer or lease its assets substantially as an
entirety to, any corporation or other entity or amend, alter or repeal the
provisions of the Partnership Agreement (including, without limitation, this
Article 19 and Section 11.2), whether by merger, consolidation or otherwise, in
each case in a manner that would materially and adversely affect the powers,
special rights, preferences, privileges or voting power of the Series F
Preferred Units or the holders thereof; provided, however, that with respect to
the occurrence of any event set forth in (iii) above, so long as (a) the
Partnership is the surviving entity and the Series F Preferred Units remain
outstanding with the terms thereof unchanged, or (b) the resulting, surviving or
transferee entity is a partnership, limited liability company or other
pass-through entity organized under the laws of any state and substitutes the
Series F Preferred Units for other interests in such entity having substantially
the same terms and rights as the Series F Preferred Units, including with
respect to distributions, voting rights and rights upon liquidation, dissolution
or winding-up, then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or voting powers of the
holders of the Series F Preferred Units; and provided further, that any increase
in the amount of Partnership Interests or the creation or issuance of any other
class or series of Partnership Interests represented by Junior Units or Parity
Preferred Units that are not issued to an affiliate of the Partnership, other
than the General Partner or the Operating Partnership to the extent the issuance
of such interests was to allow the General Partner or the Operating Partnership
to issue corresponding preferred stock or preferred interests to persons who are
not affiliates of the Partnership (other than AMB to the extent AMB issues
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corresponding preferred stock or preferred interests to persons who are not
affiliates of the Partnership or the Operating Partnership), shall not be deemed
to materially and adversely affect such rights, preferences, privileges or
voting powers.
C. So long as any Series F Preferred Units remain outstanding, the
General Partner shall not, without the affirmative vote of the holders of at
least two-thirds of the Series F Preferred Units outstanding at the time, take
any action which would result in the termination of the right of the holders of
such units to effect an exchange pursuant to Section 19.8; provided however, no
such vote shall be required so long as the Series F Preferred Units (or any
interests substituted therefore pursuant to Section 19.6.B) remain outstanding
and are exchangeable for Series F Preferred Shares or stock in another entity
having substantially the same terms and rights as the Series F Preferred Shares.
D. Notwithstanding anything to the contrary contained in this Agreement,
including, without limitation, the provisions of Article 7 regarding the
management rights and responsibilities of the General Partner, whenever
distributions on any Series F Preferred Units shall remain unpaid for six or
more quarterly periods (i.e., the quarterly periods ending on the 15th day of
each January, April, July and October, or, if not a business day, the next
succeeding business day, beginning with the quarterly period ending April 15,
2000) (whether or not consecutive), the holders of 51% of either (i) such Series
F Preferred Units, in the event that the holders of the Series D Preferred
Units, Series E Preferred Units, Series H Preferred Units and Series I Preferred
Units are not entitled to exercise management rights pursuant to Section 17.6D,
Section 18.6.D, Section 21.6.D and Section 22.6.D, respectively, and that no
Future Parity Preferred Unitholders are entitled to exercise management rights
similar to those to which the holders of Series D Preferred Units, Series E
Preferred Units, Series F Preferred Units, Series H Preferred Units and Series I
Preferred Units are entitled to exercise pursuant to Section 17.6D, Section
18.6.D, this Section 19.6.D, Section 21.6.D and Section 22.6.D, respectively, or
(ii) the Parity Preferred Capital, in the event that holders of Series D
Preferred Units, Series E Preferred Units, Series H Preferred Units and Series I
Preferred Units are entitled to exercise management rights pursuant to Section
17.6D, Section 18.6.D, Section 21.6.D or Section 22.6.D, respectively, or Future
Parity Preferred Unitholders are entitled to exercise management rights similar
to those to which the holders of Series D Preferred Units, Series E Preferred
Units, Series F Preferred Units, Series H Preferred Units and Series I Preferred
Units are entitled to exercise pursuant to Section 17.6D, Section 18.6.D, this
Section 19.6.D, Section 21.6.D, and Section 22.6.D, respectively, shall be
entitled to assume rights to manage the Partnership and perform actions related
thereto for the sole purpose of enforcing the Partnership's rights and remedies
as against obligees of the Partnership or other Persons from whom the
Partnership may be entitled to receive cash or other assets, until all
distributions accumulated on the Series F Preferred Units for all past quarterly
periods and the distribution for the then-current quarterly period shall have
been fully-paid or declared and a sum sufficient for the payment thereof
irrevocably set aside in trust for payment in full; provided, however, that no
such holder or holders of Series F Preferred Units may at any time take any
action (or fail to take any action) if the consequence of such action (or
inaction) would be (i) to cause AMB to fail to qualify as a REIT for federal or
applicable state income tax purposes or (ii) to cause the Partnership or the
Operating Partnership to fail to qualify as a partnership for federal or
applicable state income tax purposes, or (iii) to cause the Partnership, the
Operating Partnership, the General Partner, or AMB to be considered an
"investment company" as defined in, or otherwise be subject to regulation under,
the Investment Company Act of 1940, as amended; and provided, further, that
solely for purposes of
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exercising the management rights set forth in this Section 19.6.D, each holder
of Series F Preferred Units shall be deemed an Indemnitee, and shall be entitled
to the benefits of the indemnification provisions of Section 7.7 with respect to
any and all action(s) taken (or failure(s) to act) by a holder of Series F
Preferred Units in the exercise of (or failure(s) to exercise) the management
rights described in this Section 19.6.D, including, without limitation, alleged
breaches of the General Partner's fiduciary duty to the Partners; and provided
further, that the holders of the Series F Preferred Units acknowledge and agree
that the General Partner and the Partnership have provided similar management
rights to the holders of the Series D Preferred Units and the Series E Preferred
Units and shall be entitled to provide similar management rights to Future
Parity Preferred Unitholders.
Section 19.7. Transfer Restrictions
The Series F Preferred Units shall be subject to the provisions of
Article 11 hereof. Notwithstanding any provision to the contrary herein, no
transfer of Series F Preferred Units, or other action by the holder or holders
of such Units, is permitted without the consent of the General Partner which
consent may be given or withheld in its sole and absolute discretion, if such
transfer or other action would result in more than four partners holding all
outstanding Series F Preferred Units within the meaning of Treasury Regulation
Section 1.7704-1(h)(1)(ii) (without regard to Treasury Regulation Section
1.7704-1(h)(3)(ii)); provided, however, that the General Partner's consent may
not be unreasonably withheld if (a) such transfer or other action would not
result in more than ten partners holding all outstanding Series F Preferred
Units within the meaning of Treasury Regulation Section 1.7704-1(h)(1)(ii)
(without regard to Treasury Regulation Section 1.7704-1(h)(3)(ii)) and (b) the
General Partner cannot rely on Treasury Regulation Section 1.7704-1(h). In
addition, no transfer may be made to any person if such transfer would cause the
exchange of the Series F Preferred Units for Series F Preferred Shares, as
provided herein, to be required to be registered under the Securities Act of
1933, as amended, or any state securities laws.
Section 19.8. Exchange Rights
A. Right to Exchange. (i) Series F Preferred Units will be exchangeable
in whole but not in part unless expressly otherwise provided herein at anytime
on or after March 22, 2010, at the option of 51% of the holders of all
outstanding Series F Preferred Units, for authorized but previously unissued
Series F Preferred Shares at an exchange rate of one Series F Preferred Share
from AMB for one Series F Preferred Unit, subject to adjustment as described
below (the "Series F Exchange Price"); provided that the Series F Preferred
Units will become exchangeable at any time, in whole but not in part unless
expressly otherwise provided herein, at the option of 51% of the holders of all
outstanding Series F Preferred Units for Series F Preferred Shares if (y) at any
time full distributions shall not have been timely made on any Series F
Preferred Unit with respect to six (6) prior quarterly distribution periods,
whether or not consecutive; provided, however, that a distribution in respect of
Series F Preferred Units shall be considered timely made if made within two (2)
Business Days after the applicable Series F Preferred Unit Distribution Payment
Date if at the time of such late payment there shall not be any prior quarterly
distribution periods in respect of which full distributions were not timely made
or (z) upon receipt by a holder or holders of Series F Preferred Units of (A)
notice from the General Partner that the General Partner or a Subsidiary of the
General Partner has taken the position that the Partnership is, or upon the
consummation of an identified event in the
93
immediate future will be, a PTP and (B) an opinion rendered by independent
counsel familiar with such matters addressed to a holder or holders of Series F
Preferred Units, that the Partnership is or likely is, or upon the occurrence of
a defined event in the immediate future will be or likely will be, a PTP.
In addition, the Series F Preferred Units may be exchanged for Series F
Preferred Shares, in whole but not in part unless expressly otherwise provided
herein, at the option of 51% of the holders of all outstanding Series F
Preferred Units after March 22, 2003 and prior to March 22, 2010 if such holders
of a Series F Preferred Units shall deliver to the General Partner either (i) a
private letter ruling addressed to such holder of Series F Preferred Units or
(ii) an opinion of independent counsel reasonably acceptable to the General
Partner based on a change in statute, the enactment of temporary or final
Treasury Regulations or the publication of a Revenue Ruling or any other IRS
release, in either case to the effect that an exchange of the Series F Preferred
Units at such earlier time would not cause the Series F Preferred Units to be
considered "stock and securities" within the meaning of Section 351(e) of the
Code for purposes of determining whether the holder of such Series F Preferred
Units is an "investment company" under Section 721(b) of the Code if an exchange
is permitted at such earlier date.
In addition, Series F Preferred Units will become exchangeable in whole
but not in part unless expressly otherwise provided herein, at the option of 51%
of the holders of all outstanding Series F Preferred Units for Series F
Preferred Shares at an exchange rate of one Series F Preferred Share from AMB
for one Series F Preferred Unit if, (i) at any time such holders conclude based
on results or projected results that there exists (in the reasonable judgment of
such holders) an imminent and substantial risk that such holders' interest in
the Partnership represents or will represent more than 19.0% of the total
profits of or capital interests in the Partnership for a taxable year, (ii) such
holders deliver to the General Partner an opinion of independent counsel,
reasonably acceptable to the General Partner to the effect that there is a
substantial risk that their interest in the Partnership does not or will not
satisfy the 19.0% limit and (iii) the General Partner agrees with the
conclusions referred to in clauses (i) and (ii) of this sentence, such agreement
not to be unreasonably withheld.
Furthermore, Series F Preferred Units will become exchangeable in whole
but not in part unless expressly otherwise provided herein, at the option of 51%
of the holders of all outstanding Series F Preferred Units for Series F
Preferred Shares at an exchange rate of one Series F Preferred Share from AMB
for one Series F Preferred Unit if (i) the Series F Preferred Units are held by
a REIT and (ii) excluding the effect of any loans and advances, from time to
time, from the Partnership to the Operating Partnership or any other affiliate
or related entity not exceeding 15% of the Partnership's total assets, for
purposes of the 5% test of Section 856(c)(4)(B) of the Code, either (A) the
Partnership is advised by independent counsel that, based on the assets and
income of the Partnership for a taxable year after 1998, the Partnership would
not satisfy the income and assets tests of Section 856 of the Code for such
taxable year if the Partnership were a real estate investment trust within the
meaning of the Code; or (B) the holder of the Series F Preferred Units shall
deliver to the General Partner an opinion of independent counsel reasonably
acceptable to the General Partner to the effect that, based on the assets and
income of the Partnership for a taxable year after 1999, the Partnership would
not satisfy the income and assets tests of Section 856 of the Code for such
taxable year if the Partnership were a real estate investment trust within the
meaning of the Code and that such
94
failure would create a meaningful risk that the holder of the Series F Preferred
Units would fail to maintain its qualification as a real estate investment
trust.
(ii) Notwithstanding anything to the contrary set forth in Section
19.8.A(i), if a Series F Exchange Notice (as defined herein) has been delivered
to AMB and the General Partner, then the General Partner may, at its option,
within ten (10) Business Days after receipt of the Series F Exchange Notice,
elect to cause the Partnership to redeem all or a portion of the outstanding
Series F Preferred Units for cash in an amount equal to the original Capital
Contribution per Series F Preferred Unit and all accrued and unpaid
distributions thereon to the date of redemption. If the General Partner elects
to redeem fewer than all of the outstanding Series F Preferred Units, the number
of Series F Preferred Units held by each holder to be redeemed shall equal such
holder's pro rata share (based on the percentage of the aggregate number of
outstanding Series F Preferred Units that the total number of Series F Preferred
Units held by such holder represents) of the aggregate number of Series F
Preferred Units being redeemed.
(iii) In the event an exchange of all Series F Preferred Units pursuant
to Section 19.8.A would violate the provisions on ownership limitation of AMB
set forth in Section 7 of Article Third of the Series F Articles Supplementary,
each holder of Series F Preferred Units shall be entitled to exchange, pursuant
to the provisions of Section 19.8.B, a number of Series F Preferred Units which
would comply with the provisions on the ownership limitation of AMB set forth in
such Section 7 of Article Third of the Series F Articles Supplementary, with
respect to such holder, and any Series F Preferred Units not so exchanged (the
"Series F Excess Units") shall be redeemed by the Partnership for cash in an
amount equal to the original Capital Contribution per Series F Excess Unit, plus
any accrued and unpaid distributions thereon to the date of redemption subject
to any restriction thereon contained in any debt instrument or agreement of the
Partnership. In the event an exchange would result in Series F Excess Units, as
a condition to such exchange, each holder of such units agrees to provide
representations and covenants reasonably requested by AMB relating to (i) the
widely held nature of the interests in such holder, sufficient to assure AMB
that the holder's ownership of stock of AMB (without regard to the limits
described above) will not cause any individual to own in excess of 9.0% of the
stock of AMB; and (ii) to the extent such Holder can so represent and covenant
without obtaining information from its owners (other than one or more direct or
indirect parent corporations, limited liability companies or partnerships and
not the holders of any interests in any such parent), the Holder's ownership of
tenants of the Partnership and its affiliates. For purposes of determining the
number of Series F Excess Units under this Section 19.8.A(iii), the "Ownership
Limit" set forth in the Series F Articles Supplementary shall be deemed to be
9.0%. To the extent the Partnership would not be able to pay the cash set forth
above in exchange for the Series F Excess Units, and to the extent consistent
with the REIT Charter, AMB agrees that it will grant to the holders of the
Series F Preferred Units exceptions to the Ownership Limit set forth in the
Series F Articles Supplementary sufficient to allow such Holders to exchange all
of their Series F Preferred Units for Series F Preferred Shares; provided such
holders furnish to AMB representations acceptable to AMB in its sole and
absolute discretion which assure AMB that such exceptions will not jeopardize
AMB's tax status as a REIT for purposes of federal and applicable state law.
Notwithstanding any provision of this Agreement to the contrary, no Series F
Limited Partner shall be entitled to effect an exchange of Series F Preferred
Units for Series F Preferred Shares to the extent that ownership or right to
acquire such shares would cause the Partner or any other Person or, in the
opinion of counsel selected by AMB, may cause the
95
Partner or any other Person, to violate the restrictions on ownership and
transfer of Series F Preferred Shares set forth in the REIT Charter. To the
extent any such attempted exchange for Series F Preferred Shares would be in
violation of the previous sentence, it shall be void ab initio and such Series F
Limited Partner shall not acquire any rights or economic interest in the Series
F Preferred Shares otherwise issuable upon such exchange.
(iv) The redemption of Series F Preferred Units described in Section
19.8.A(ii) and (iii) shall be subject to the provisions of Section 19.5.B(i) and
Section 19.5.C(ii); provided, however, that the term "Series F Redemption Price"
in such Sections 19.5.B(i) and 19.5.C(ii) shall be read to mean the original
Capital Contribution per Series F Preferred Unit being redeemed as set forth on
Exhibit A plus all accrued and unpaid distributions to the redemption date.
B. Procedure for Exchange of Series F Preferred Units and/or Series F
Redemption.
(i) Any exchange shall be exercised pursuant to a notice of exchange
(the "Series F Exchange Notice") delivered to AMB and the General Partner by the
Partners representing at least 51% of the outstanding Series F Preferred Units
(or by the Series F Contributor in the case of an exchange pursuant to the last
sentence of Section 19.8.A.(i) hereof) by (a) fax and (b) by certified mail
postage prepaid. AMB may effect any exchange of Series F Preferred Units, or the
General Partner may exercise its option to cause the Partnership to redeem any
portion of the Series F Preferred Units for cash pursuant to Section 19.8.A(ii)
or redeem Series F Excess Units pursuant to Section 19.8.A(iii), by delivering
to each holder of record of Series F Preferred Units, within ten (10) Business
Days following receipt of the Series F Exchange Notice, (a) if the General
Partner elects to cause the Partnership to acquire any of the Series F Preferred
Units then outstanding, (1) certificates representing the Series F Preferred
Shares being issued in exchange for the Series F Preferred Units of such holder
being exchanged and (2) a written notice (a "Series F Redemption Notice")
stating (A) the redemption date, which may be the date of such Series F
Redemption Notice or any other date which is not later than sixty (60) days
following the receipt of the Series F Exchange Notice, (B) the redemption price,
(C) the place or places where the Series F Preferred Units are to be surrendered
and (D) that distributions on the Series F Preferred Units will cease to accrue
on such redemption date, or (b) if the General Partner elects to cause the
Partnership to redeem all of the Series F Preferred Units then outstanding in
exchange for cash, a Series F Redemption Notice. Series F Preferred Units which
are redeemed shall be deemed canceled (and any corresponding Partnership
Interest represented thereby deemed terminated) on the redemption date. Holders
of Series F Preferred Units shall deliver any canceled certificates representing
Series F Preferred Units which have been exchanged or redeemed to the office of
the General Partner (which currently is located at ▇▇▇▇ ▇, ▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ 94111) within ten (10) Business Days of the exchange or redemption
with respect thereto. Notwithstanding anything to the contrary contained herein,
any and all Series F Preferred Units to be exchanged for Series F Preferred
Shares pursuant to this Section 19.8 shall be so exchanged in a single
transaction at one time. As a condition to exchange, AMB may require the holders
of Series F Preferred Units to make such representations as may be reasonably
necessary for the General Partner to establish that the issuance of Series F
Preferred Shares pursuant to the exchange shall not be required to be registered
under the Securities Act or any state securities laws. Any Series F Preferred
Shares issued pursuant to this Section 19.8 shall be delivered as shares which
are duly authorized, validly issued, fully paid and
96
nonassessable, free of any pledge, lien, encumbrance or restriction other than
those provided in the REIT Charter, the Bylaws of AMB, the Securities Act and
relevant state securities or blue sky laws.
The certificates representing the Series F Preferred Shares issued upon
exchange of the Series F Preferred Units shall contain the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT (A)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), AND STATE SECURITIES LAWS OR (B) IF THE
CORPORATION HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL
FOR THE HOLDER OF THE SHARES REPRESENTED HEREBY, OR OTHER EVIDENCE
SATISFACTORY TO THE CORPORATION, THAT SUCH TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS
OF SECTION 5 OF THE ACT AND STATE SECURITIES LAWS AND THE RULES AND
REGULATIONS THEREUNDER.
(ii) In the event of an exchange of Series F Preferred Units for Series
F Preferred Shares, an amount equal to the accrued and unpaid distributions to
the date of exchange on any Series F Preferred Units tendered for exchange shall
(i) accrue on the Series F Preferred Shares into which such Series F Preferred
Units are exchanged, and (ii) continue to accrue on such Series F Preferred
Units, which shall remain outstanding following such exchange, with the General
Partner as the holder of such Series F Preferred Units. Notwithstanding anything
to the contrary set forth herein, in no event shall a Holder of a Series F
Preferred Unit that was validly exchanged for Series F Preferred Shares pursuant
to this Section (other than the General Partner holding such Series F Preferred
Unit following any such exchange), receive a distribution out of Available Cash
of the Partnership, if such Holder, after exchange, is entitled to receive a
distribution with respect to the Series F Preferred Shares for which such Series
F Preferred Unit was exchanged or redeemed. Further, for purposes of the
foregoing, in the event of an exchange of Series F Preferred Units for Series F
Preferred Shares, if the accrued and unpaid distributions per Series F Preferred
Unit is not the same for each Series F Preferred Unit, the accrued and unpaid
distributions per Series F Preferred Unit for each such Series F Preferred Unit
shall be equal to the greatest amount of such accrued and unpaid distributions
per Series F Preferred Unit on any such unit.
(iii) Fractional Series F Preferred Shares are not to be issued upon
exchange but, in lieu thereof, the General Partner will pay a cash adjustment
based upon the fair market value of the Series F Preferred Shares on the day
prior to the exchange date as determined in good faith by the board of directors
of the General Partner.
C. Adjustment of Series F Exchange Price. In case AMB shall be a party
to any transaction (including, without limitation, a merger, consolidation,
statutory share exchange,
97
tender offer for all or substantially all of AMB's capital stock or sale of all
or substantially all of AMB's assets), in each case as a result of which the
Series F Preferred Shares will be converted into the right to receive shares of
capital stock, other securities or other property (including cash or any
combination thereof), each Series F Preferred Unit will thereafter be
exchangeable into the kind and amount of shares of capital stock and other
securities and property receivable (including cash or any combination thereof)
upon the consummation of such transaction by a holder of that number of Series F
Preferred Shares or fraction thereof into which one Series F Preferred Unit was
exchangeable immediately prior to such transaction. AMB may not become a party
to any such transaction unless the terms thereof are consistent with the
foregoing. AMB and the Operating Partnership further agree that, notwithstanding
any transaction to which either may be a party (including, without limitation,
any merger, consolidation, statutory share exchange, tender offer for all or
substantially all of such entity's capital stock or partnership interests or
sale of all or substantially all of such entity's assets), immediately following
any such transaction, the issuer or issuers of any shares of capital stock and
other securities into which the Series F Preferred Units shall be exchangeable
pursuant to this Section 19.8 shall be the same issuer or issuers of shares of
capital stock and other securities into which (i) the Series B Preferred Units
are then exchangeable (or, if the Series B Preferred Units have previously been
redeemed in full, would have been then exchangeable if then still outstanding),
(ii) the Series D Preferred Units are then exchangeable (or, if the Series D
Preferred Units have previously been redeemed in full, would have been then
exchangeable if then still outstanding) and (iii) the Series E Preferred Units
are then exchangeable (or, if the Series E Preferred Units have previously been
redeemed in full, would have been then exchangeable if then still outstanding).
Section 19.9. No Conversion Rights
The Series F Preferred Units shall not be convertible into any other
class or series of interest in the Partnership.
Section 19.10. No Sinking Fund
No sinking fund shall be established for the retirement or redemption of
Series F Preferred Units.
ARTICLE 20.
INTENTIONALLY OMITTED
ARTICLE 21.
SERIES H PREFERRED UNITS
Section 21.1. Designation and Number
A series of Partnership Units in the Partnership designated as the
8.125% Series H Cumulative Redeemable Preferred Units (the "Series H Preferred
Units") is hereby established. The number of Series H Preferred Units shall be
840,000.
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Section 21.2. Ranking
The Series H Preferred Units shall, with respect to distribution rights
and rights upon voluntary or involuntary liquidation, winding up or dissolution
of the Partnership, rank (i) senior to the Common Units and to all Partnership
Units the terms of which provide that such Partnership Units shall rank junior
to the Series H Preferred Units; (ii) on a parity with the Series D Preferred
Units, the Series E Preferred Units, the Series F Preferred Units, and all other
Parity Preferred Units; and (iii) junior to all Partnership Units which rank
senior to the Series H Preferred Units.
Section 21.3. Distributions
A. Payment of Distributions. Subject to the rights of holders of Parity
Preferred Units as to the payment of distributions (including pursuant to
Sections 5.1, 17.3A, 18.3A, 19.3A, and 22.3A hereof), holders of Series H
Preferred Units will be entitled to receive, when, as and if declared by the
Partnership acting through the General Partner, out of Available Cash,
cumulative preferential cash distributions in an amount equal to the Series H
Priority Return. Such distributions will be payable (A) quarterly (such
quarterly periods for purposes of payment and accrual will be the quarterly
periods ending on the dates specified in this sentence and not calendar year
quarters) in arrears, on the 25th day of March, June, September and December of
each year and (B) in the event of (i) an exchange of Series H Preferred Units
into Series H Preferred Shares, or (ii) a redemption of Series H Preferred
Units, on the exchange date or redemption date, as applicable (each a "Series H
Preferred Unit Distribution Payment Date"), commencing on the first of such
payment dates to occur following their original date of issuance. If any date on
which distributions are to be made on the Series H Preferred Units is not a
Business Day, then payment of the distribution to be made on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay) except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. Distributions on the Series H Preferred Units will be
made to the holders of record of the Series H Preferred Units on the relevant
record dates, which will be fifteen (15) days prior to the relevant Series H
Preferred Unit Distribution Payment Date (the "Series H Preferred Unit
Partnership Record Date"). For purposes of clarifying the relative distribution
priority rights among the Series I Preferred Units, Series H Preferred Units,
the Series F Preferred Units, the Series E Preferred Units and the Series D
Preferred Units, the payment of distributions with respect to a series of such
Preferred Units prior to the payment of distributions with respect to another
such series of Preferred Units, solely as a result of the distribution payment
dates with respect to a series of Preferred Units occurring on a different date
from another series of Preferred Units, shall not be deemed to create a priority
in favor of one series of Preferred Units over any other series of Preferred
Units.
B. Distributions Cumulative. Notwithstanding the foregoing,
distributions on the Series H Preferred Units will accrue whether or not the
terms and provisions of any agreement of the Partnership at any time prohibit
the current payment of distributions, whether or not the Partnership has
earnings, whether or not there are funds legally available for the payment of
such of such distributions and whether or not such distributions are authorized.
Accrued but unpaid distributions on the Series H Preferred Units will accumulate
as of the Preferred Unit Distribution Payment Date on which they first become
payable.
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C. Priority as to Distributions. (i) So long as any Series H Preferred
Units are outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect to any
class or series of Partnership Interest represented by Junior Units, nor shall
any Junior Units or Parity Preferred Units be redeemed, purchased or otherwise
acquired for any consideration (or any monies be paid to or made available for a
sinking fund for the redemption of any such Junior Units or Parity Preferred
Units) by the Partnership (except by conversion into or exchange for other
Junior Units or Parity Preferred Units, as the case may be) unless, in each
case, full cumulative distributions have been or contemporaneously are
authorized and paid or authorized and a sum sufficient for the payment thereof
set apart for such payment on the Series H Preferred Units and all classes and
series of outstanding Parity Preferred Units for all distribution periods. The
foregoing sentence will not prohibit (a) distributions payable solely in Junior
Units, (b) the exchange of Junior Units or Parity Preferred Units into
Partnership Interests of the Partnership ranking junior to the Series H
Preferred Units as to distributions and upon voluntary and involuntary
liquidation, dissolution or winding up of the Partnership, or (c) distributions
necessary to enable the Operating Partnership to redeem partnership interests
corresponding to Series H Preferred Shares and any Parity Preferred Stock with
respect to distributions or Junior Stock to be purchased by AMB pursuant to the
REIT Charter to preserve AMB's status as a REIT; provided that such redemption
shall be upon the same terms as the corresponding stock purchase pursuant to the
REIT Charter.
(ii) So long as distributions have not been paid in full (or a sum
sufficient for such full payment is not so set apart) upon the Series H
Preferred Units and any other Parity Preferred Units, all distributions
authorized and declared on the Series H Preferred Units and all classes or
series of outstanding Parity Preferred Units shall be authorized and declared
pro rata so that the amount of distributions authorized and declared per Series
H Preferred Unit and such other classes or series of Parity Preferred Units
shall in all cases bear to each other the same ratio that accrued distributions
per Series H Preferred Unit and such other classes or series of Parity Preferred
Units (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such class or series of Parity
Preferred Units do not have cumulative distribution rights) bear to each other.
No interest, or sum of money in lieu of interest, shall be payable in respect of
any distributions or payments on Series H Preferred Units which may be in
arrears.
(iii) Notwithstanding anything to the contrary set forth herein,
distributions on Partnership Interests held by either (a) the General Partner,
(b) the Operating Partnership or (c) any other holder of Partnership Interests
in the Partnership, in each case ranking junior to or on parity with the Series
H Preferred Units may be made, without preserving the priority of distributions
described in Sections 21.3.C(i) and (ii), but only to the extent such
distributions are required to preserve the REIT status of AMB, in its capacity
as sole general partner of the Operating Partnership and as sole stockholder of
the General Partner, and in the case of any holder other than the General
Partner only to the extent required by the Partnership Agreement; provided, that
the Partnership shall not be disproportionately burdened by this provision
relative to the cash flow generated by other assets owned directly or indirectly
by AMB.
D. No Further Rights. Holders of Series H Preferred Units shall not be
entitled to any distributions, whether payable in cash, other property or
otherwise, in excess of the full cumulative distributions described herein.
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Section 21.4. Liquidation Proceeds
A. Distributions. Upon voluntary or involuntary liquidation, dissolution
or winding-up of the Partnership, distributions on the Series H Preferred Units
shall be made in accordance with Article 13 of this Agreement.
B. Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by the General Partner
pursuant to Section 13.6 hereof.
C. No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, Holders of Series H
Preferred Units will have no right or claim to any of the remaining assets of
the Partnership.
D. Consolidation, Merger or Certain Other Transactions. None of a
consolidation or merger of the Partnership with or into another entity, a merger
of another entity with or into the Partnership, or a sale, lease, transfer or
conveyance of all or substantially all of the Partnership's property or business
shall be considered a liquidation, dissolution or winding up of the Partnership.
Section 21.5. Series H Redemption
A. Series H Redemption. The Series H Preferred Units may not be redeemed
prior to September 1, 2005. On or after such date, the Partnership shall have
the right to redeem the Series H Preferred Units, in whole or in part, at any
time or from time to time, upon not less than 30 nor more than 60 days' written
notice, at a redemption price, payable in cash (a "Series H Redemption"), equal
to the Capital Account balance of the holder of Series H Preferred Units (the
"Series H Redemption Price"); provided, however, that no redemption pursuant to
this Section 21.5 will be permitted if the Series H Redemption Price does not
equal or exceed the original Capital Contribution of such holder plus the
cumulative Series H Priority Return to the redemption date to the extent not
previously distributed. If fewer than all of the outstanding Series H Preferred
Units are to be redeemed, the Series H Preferred Units to be redeemed shall be
selected pro rata (as nearly as practicable without creating fractional units).
B. Limitation on Series H Redemption. (i) The Series H Redemption Price
of the Series H Preferred Units (other than the portion thereof consisting of
accumulated but unpaid distributions) is payable solely out of the sale proceeds
of capital stock of AMB, which will be contributed by AMB to the General Partner
or the Operating Partnership and which in turn will be contributed by the
General Partner or the Operating Partnership to the Partnership as an additional
capital contribution, or out of the sale of limited partner interests in the
Partnership or the Operating Partnership and from no other source. For purposes
of the preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock (as such terms are defined in the
REIT Charter), depository shares, interests, participation or other ownership
interests (however designated) and any rights (other than debt securities
convertible into or exchangeable for equity securities) or options to purchase
any of the foregoing.
(ii) The Partnership may not redeem fewer than all of the outstanding
Series H Preferred Units unless all accumulated and unpaid distributions have
been paid on all Series H
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Preferred Units for all quarterly distribution periods terminating on or prior
to the date of redemption.
C. Procedures for Series H Redemption. (i) Notice of redemption will be
(i) faxed, and (ii) mailed by the Partnership, by certified mail, postage
prepaid, not less than 30 nor more than 60 days prior to the redemption date,
addressed to the respective holders of record of the Series H Preferred Units at
their respective addresses as they appear on the records of the Partnership. No
failure to give or defect in such notice shall affect the validity of the
proceedings for the redemption of any Series H Preferred Units except as to the
holder to whom such notice was defective or not given. In addition to any
information required by law, each such notice shall state: (a) the redemption
date, (b) the Series H Redemption Price, (c) the aggregate number of Series H
Preferred Units to be redeemed and if fewer than all of the outstanding Series H
Preferred Units are to be redeemed, the number of Series H Preferred Units to be
redeemed held by such holder, which number shall equal such holder's pro rata
share (based on the percentage of the aggregate number of outstanding Series H
Preferred Units that the total number of Series H Preferred Units held by such
holder represents) of the aggregate number of Series H Preferred Units to be
redeemed, (d) the place or places where such Series H Preferred Units are to be
surrendered for payment of the Series H Redemption Price, (e) that distributions
on the Series H Preferred Units to be redeemed will cease to accumulate on such
redemption date and (f) that payment of the Series H Redemption Price will be
made upon presentation and surrender of such Series H Preferred Units.
(ii) If the Partnership gives a notice of redemption in respect of
Series H Preferred Units (which notice will be irrevocable) then, by 12:00 noon,
New York City time, on the redemption date, the Partnership will deposit
irrevocably in trust for the benefit of the Series H Preferred Units being
redeemed funds sufficient to pay the applicable Series H Redemption Price and
will give irrevocable instructions and authority to pay such Series H Redemption
Price to the holders of the Series H Preferred Units upon surrender of the
Series H Preferred Units by such holders at the place designated in the notice
of redemption. On and after the date of redemption, distributions will cease to
accumulate on the Series H Preferred Units or portions thereof called for
redemption, unless the Partnership defaults in the payment thereof. If any date
fixed for redemption of Series H Preferred Units is not a Business Day, then
payment of the Series H Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day
falls in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date fixed for redemption. If payment of the Series H Redemption Price
is improperly withheld or refused and not paid by the Partnership, distributions
on such Series H Preferred Units will continue to accumulate from the original
redemption date to the date of payment, in which case the actual payment date
will be considered the date fixed for redemption for purposes of calculating the
applicable Series H Redemption Price.
Section 21.6. Voting and Certain Management Rights
A. General. Holders of the Series H Preferred Units will not have any
voting rights or right to consent to any matter requiring the consent or
approval of the Limited Partners, except as set forth below and in Section
7.3.E.
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B. Certain Voting Rights. So long as any Series H Preferred Units
remains outstanding, the Partnership shall not, without the affirmative vote of
the holders of at least two-thirds of the Series H Preferred Units outstanding
at the time (i) authorize or create, or increase the authorized or issued amount
of, any class or series of Partnership Interests ranking prior to the Series H
Preferred Units with respect to payment of distributions or rights upon
liquidation, dissolution or winding-up or reclassify any Partnership Interests
of the Partnership into any such Partnership Interest, or create, authorize or
issue any obligations or security convertible into or evidencing the right to
purchase any such Partnership Interests, (ii) authorize or create, or increase
the authorized or issued amount of any Parity Preferred Units or reclassify any
Partnership Interest of the Partnership into any such Partnership Interest or
create, authorize or issue any obligations or security convertible into or
evidencing the right to purchase any such Partnership Interests but only to the
extent such Parity Preferred Units are issued to an affiliate of the
Partnership, other than AMB or the Operating Partnership to the extent the
issuance of such interests was to allow AMB or the Operating Partnership to
issue corresponding preferred stock or preferred interests to persons who are
not affiliates of the Partnership (other than AMB to the extent AMB issues
corresponding preferred stock to persons who are not affiliates of the
Partnership or the Operating Partnership) or (iii) either consolidate, merge
into or with, or convey, transfer or lease its assets substantially as an
entirety to, any corporation or other entity or amend, alter or repeal the
provisions of the Partnership Agreement (including, without limitation, this
Article 21 and Section 11.2), whether by merger, consolidation or otherwise, in
each case in a manner that would materially and adversely affect the powers,
special rights, preferences, privileges or voting power of the Series H
Preferred Units or the holders thereof; provided, however, that with respect to
the occurrence of any event set forth in (iii) above, so long as (a) the
Partnership is the surviving entity and the Series H Preferred Units remain
outstanding with the terms thereof unchanged, or (b) the resulting, surviving or
transferee entity is a partnership, limited liability company or other
pass-through entity organized under the laws of any state and substitutes the
Series H Preferred Units for other interests in such entity having substantially
the same terms and rights as the Series H Preferred Units, including with
respect to distributions, voting rights and rights upon liquidation, dissolution
or winding-up, then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or voting powers of the
holders of the Series H Preferred Units; and provided further, that any increase
in the amount of Partnership Interests or the creation or issuance of any other
class or series of Partnership Interests represented by Junior Units or Parity
Preferred Units that are not issued to an affiliate of the Partnership, other
than the General Partner or the Operating Partnership to the extent the issuance
of such interests was to allow the General Partner or the Operating Partnership
to issue corresponding preferred stock or preferred interests to persons who are
not affiliates of the Partnership (other than AMB to the extent AMB issues
corresponding preferred stock or preferred interests to persons who are not
affiliates of the Partnership or the Operating Partnership), shall not be deemed
to materially and adversely affect such rights, preferences, privileges or
voting powers.
C. So long as any Series H Preferred Units remain outstanding, the
General Partner shall not, without the affirmative vote of the holders of at
least two-thirds of the Series H Preferred Units outstanding at the time, take
any action which would result in the termination of the right of the holders of
such units to effect an exchange pursuant to Section 21.8; provided however, no
such vote shall be required so long as the Series H Preferred Units (or any
interests substituted therefore pursuant to Section 21.6.B) remain outstanding
and are exchangeable for
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Series H Preferred Shares or stock in another entity having substantially the
same terms and rights as the Series H Preferred Shares.
D. Notwithstanding anything to the contrary contained in this Agreement,
including, without limitation, the provisions of Article 7 regarding the
management rights and responsibilities of the General Partner, whenever
distributions on any Series H Preferred Units shall remain unpaid for six or
more quarterly periods (i.e., the quarterly periods ending on the 25th day of
each March, June, September and December, or, if not a business day, the next
succeeding business day, beginning with the quarterly period ending September
25, 2000) (whether or not consecutive), the holders of 51% of either (i) such
Series H Preferred Units, in the event that the holders of the Series D
Preferred Units, Series E Preferred Units, Series F Preferred Units, and Series
I Preferred Units are not entitled to exercise management rights pursuant to
Section 17.6D, Section 18.6.D, Section 19.6.D and Section 22.6D, respectively,
and that no Future Parity Preferred Unitholders are entitled to exercise
management rights similar to those to which the holders of Series D Preferred
Units, Series E Preferred Units, Series F Preferred Units, Series H Preferred
Units and Series I Preferred Units are entitled to exercise pursuant to Section
17.6D, Section 18.6.D, Section 19.6.D, this Section 21.6.D, and Section 22.6.D,
respectively, or (ii) the Parity Preferred Capital, in the event that holders of
Series D Preferred Units, Series E Preferred Units, or Series F Preferred Units
are entitled to exercise management rights pursuant to Section 17.6D, Section
18.6.D or Section 19.6.D, respectively, or Future Parity Preferred Unitholders
are entitled to exercise management rights similar to those to which the holders
of Series D Preferred Units, Series E Preferred Units, Series F Preferred Units,
and Series H Preferred Units are entitled to exercise pursuant to Section 17.6D,
Section 18.6.D, Section 19.6.D, this Section 21.6.D, or Section 22.6.D,
respectively, shall be entitled to assume rights to manage the Partnership and
perform actions related thereto for the sole purpose of enforcing the
Partnership's rights and remedies as against obligees of the Partnership or
other Persons from whom the Partnership may be entitled to receive cash or other
assets, until all distributions accumulated on the Series H Preferred Units for
all past quarterly periods and the distribution for the then-current quarterly
period shall have been fully-paid or declared and a sum sufficient for the
payment thereof irrevocably set aside in trust for payment in full; provided,
however, that no such holder or holders of Series H Preferred Units may at any
time take any action (or fail to take any action) if the consequence of such
action (or inaction) would be (i) to cause AMB to fail to qualify as a REIT for
federal or applicable state income tax purposes or (ii) to cause the Partnership
or the Operating Partnership to fail to qualify as a partnership for federal or
applicable state income tax purposes, or (iii) to cause the Partnership, the
Operating Partnership, the General Partner, or AMB to be considered an
"investment company" as defined in, or otherwise be subject to regulation under,
the Investment Company Act of 1940, as amended; and provided, further, that
solely for purposes of exercising the management rights set forth in this
Section 21.6.D, each holder of Series H Preferred Units shall be deemed an
Indemnitee, and shall be entitled to the benefits of the indemnification
provisions of Section 7.7 with respect to any and all action(s) taken (or
failure(s) to act) by a holder of Series H Preferred Units in the exercise of
(or failure(s) to exercise) the management rights described in this Section
21.6.D, including, without limitation, alleged breaches of the General Partner's
fiduciary duty to the Partners; and provided further, that the holders of the
Series H Preferred Units acknowledge and agree that the General Partner and the
Partnership have provided similar management rights to the holders of the Series
D Preferred Units, the Series E Preferred Units and the Series F Preferred Units
and shall be entitled to provide similar management rights to Future Parity
Preferred Unitholders.
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Section 21.7. Transfer Restrictions
The Series H Preferred Units shall be subject to the provisions of
Article 11 hereof. Notwithstanding any provision to the contrary herein, no
transfer of Series H Preferred Units, or other action by the holder or holders
of such Units, is permitted without the consent of the General Partner which
consent may be given or withheld in its sole and absolute discretion, if such
transfer or other action would result in more than four partners holding all
outstanding Series D Preferred Units, Series H Preferred Units and Series I
Preferred Units within the meaning of Treasury Regulation Section
1.7704-1(h)(1)(ii) (without regard to Treasury Regulation Section
1.7704-1(h)(3)(ii)); provided, however, that the General Partner's consent may
not be unreasonably withheld if (a) such transfer or other action would not
result in more than ten partners holding all outstanding Series D Preferred
Units, Series H Preferred Units and Series I Preferred Units within the meaning
of Treasury Regulation Section 1.7704-1(h)(1)(ii) (without regard to Treasury
Regulation Section 1.7704-1(h)(3)(ii)) and (b) the General Partner cannot rely
on Treasury Regulation Section 1.7704-1(h). In addition, no transfer may be made
to any person if such transfer would cause the exchange of the Series H
Preferred Units for Series H Preferred Shares, as provided herein, to be
required to be registered under the Securities Act of 1933, as amended, or any
state securities laws.
Section 21.8. Exchange Rights
A. Right to Exchange. (i) Series H Preferred Units will be exchangeable
in whole but not in part unless expressly otherwise provided herein at anytime
on or after September 1, 2010, at the option of 51% of the holders of all
outstanding Series H Preferred Units, for authorized but previously unissued
Series H Preferred Shares at an exchange rate of one Series H Preferred Share
from AMB for one Series H Preferred Unit, subject to adjustment as described
below (the "Series H Exchange Price"); provided that the Series H Preferred
Units will become exchangeable at any time, in whole but not in part unless
expressly otherwise provided herein, at the option of 51% of the holders of all
outstanding Series H Preferred Units for Series H Preferred Shares if (y) at any
time full distributions shall not have been timely made on any Series H
Preferred Unit with respect to six (6) prior quarterly distribution periods,
whether or not consecutive; provided, however, that a distribution in respect of
Series H Preferred Units shall be considered timely made if made within two (2)
Business Days after the applicable Series H Preferred Unit Distribution Payment
Date if at the time of such late payment there shall not be any prior quarterly
distribution periods in respect of which full distributions were not timely made
or (z) upon receipt by a holder or holders of Series H Preferred Units of (A)
notice from the General Partner that the General Partner or a Subsidiary of the
General Partner has taken the position that the Partnership is, or upon the
consummation of an identified event in the immediate future will be, a PTP and
(B) an opinion rendered by independent counsel familiar with such matters
addressed to a holder or holders of Series H Preferred Units, that the
Partnership is or likely is, or upon the occurrence of a defined event in the
immediate future will be or likely will be, a PTP.
In addition, the Series H Preferred Units may be exchanged for Series H
Preferred Shares, in whole but not in part unless expressly otherwise provided
herein, at the option of 51% of the holders of all outstanding Series H
Preferred Units after September 1, 2003 and prior to September 1, 2010 if such
holders of a Series H Preferred Units shall deliver to the General Partner
either (i) a private letter ruling addressed to such holder of Series H
Preferred Units or
105
(ii) an opinion of independent counsel reasonably acceptable to the General
Partner based on a change in statute, the enactment of temporary or final
Treasury Regulations or the publication of a Revenue Ruling or any other IRS
release, in either case to the effect that an exchange of the Series H Preferred
Units at such earlier time would not cause the Series H Preferred Units to be
considered "stock and securities" within the meaning of Section 351(e) of the
Code for purposes of determining whether the holder of such Series H Preferred
Units is an "investment company" under Section 721(b) of the Code if an exchange
is permitted at such earlier date.
(ii) Notwithstanding anything to the contrary set forth in Section
21.8.A(i), if a Series H Exchange Notice (as defined herein) has been delivered
to AMB and the General Partner, then the General Partner may, at its option,
within ten (10) Business Days after receipt of the Series H Exchange Notice,
elect to cause the Partnership to redeem all or a portion of the outstanding
Series H Preferred Units for cash in an amount equal to the original Capital
Contribution per Series H Preferred Unit and all accrued and unpaid
distributions thereon to the date of redemption. If the General Partner elects
to redeem fewer than all of the outstanding Series H Preferred Units, the number
of Series H Preferred Units held by each holder to be redeemed shall equal such
holder's pro rata share (based on the percentage of the aggregate number of
outstanding Series H Preferred Units that the total number of Series H Preferred
Units held by such holder represents) of the aggregate number of Series H
Preferred Units being redeemed.
(iii) In the event an exchange of all Series H Preferred Units pursuant
to Section 21.8.A would violate the provisions on ownership limitation of AMB
set forth in Section 7 of Article Third of the Series H Articles Supplementary,
each holder of Series H Preferred Units shall be entitled to exchange, pursuant
to the provisions of Section 21.8.B, a number of Series H Preferred Units which
would comply with the provisions on the ownership limitation of AMB set forth in
such Section 7 of Article Third of the Series H Articles Supplementary, with
respect to such holder, and any Series H Preferred Units not so exchanged (the
"Series H Excess Units") shall be redeemed by the Partnership for cash in an
amount equal to the original Capital Contribution per Series H Excess Unit, plus
any accrued and unpaid distributions thereon to the date of redemption subject
to any restriction thereon contained in any debt instrument or agreement of the
Partnership. In the event an exchange would result in Series H Excess Units, as
a condition to such exchange, each holder of such units agrees to provide
representations and covenants reasonably requested by AMB relating to (i) the
widely held nature of the interests in such holder, sufficient to assure AMB
that the holder's ownership of stock of AMB (without regard to the limits
described above) will not cause any individual to own in excess of 9.0% of the
stock of AMB; and (ii) to the extent such Holder can so represent and covenant
without obtaining information from its owners (other than one or more direct or
indirect parent corporations, limited liability companies or partnerships and
not the holders of any interests in any such parent), the Holder's ownership of
tenants of the Partnership and its affiliates. For purposes of determining the
number of Series H Excess Units under this Section 21.8.A(iii), the "Ownership
Limit" set forth in the Series H Articles Supplementary shall be deemed to be
9.0%. To the extent the Partnership would not be able to pay the cash set forth
above in exchange for the Series H Excess Units, and to the extent consistent
with the REIT Charter, AMB agrees that it will grant to the holders of the
Series H Preferred Units exceptions to the Ownership Limit set forth in the
Series H Articles Supplementary sufficient to allow such Holders to exchange all
of their Series H Preferred Units for Series H Preferred Shares; provided such
holders furnish to AMB representations acceptable to AMB in its sole and
absolute discretion which assure AMB
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that such exceptions will not jeopardize AMB's tax status as a REIT for purposes
of federal and applicable state law. Notwithstanding any provision of this
Agreement to the contrary, no Series H Limited Partner shall be entitled to
effect an exchange of Series H Preferred Units for Series H Preferred Shares to
the extent that ownership or right to acquire such shares would cause the
Partner or any other Person or, in the opinion of counsel selected by AMB, may
cause the Partner or any other Person, to violate the restrictions on ownership
and transfer of Series H Preferred Shares set forth in the REIT Charter. To the
extent any such attempted exchange for Series H Preferred Shares would be in
violation of the previous sentence, it shall be void ab initio and such Series H
Limited Partner shall not acquire any rights or economic interest in the Series
H Preferred Shares otherwise issuable upon such exchange.
(iv) The redemption of Series H Preferred Units described in Section
19.8.A(ii) and (iii) shall be subject to the provisions of Section 21.5.B(i) and
Section 21.5.C(ii); provided, however, that the term "Series H Redemption Price"
in such Sections 21.5.B(i) and 21.5.C(ii) shall be read to mean the original
Capital Contribution per Series H Preferred Unit being redeemed as set forth on
Exhibit A plus all accrued and unpaid distributions to the redemption date.
B. Procedure for Exchange of Series H Preferred Units and/or Series H
Redemption.
(i) Any exchange shall be exercised pursuant to a notice of exchange
(the "Series H Exchange Notice") delivered to AMB and the General Partner by the
Partners representing at least 51% of the outstanding Series H Preferred Units
(or by the Series H Contributor in the case of an exchange pursuant to the last
sentence of Section 21.8.A.(i) hereof) by (a) fax and (b) by certified mail
postage prepaid. AMB may effect any exchange of Series H Preferred Units, or the
General Partner may exercise its option to cause the Partnership to redeem any
portion of the Series H Preferred Units for cash pursuant to Section 21.8.A(ii)
or redeem Series H Excess Units pursuant to Section 21.8.A(iii), by delivering
to each holder of record of Series H Preferred Units, within ten (10) Business
Days following receipt of the Series H Exchange Notice, (a) if the General
Partner elects to cause the Partnership to acquire any of the Series H Preferred
Units then outstanding, (1) certificates representing the Series H Preferred
Shares being issued in exchange for the Series H Preferred Units of such holder
being exchanged and (2) a written notice (a "Series H Redemption Notice")
stating (A) the redemption date, which may be the date of such Series H
Redemption Notice or any other date which is not later than sixty (60) days
following the receipt of the Series H Exchange Notice, (B) the redemption price,
(C) the place or places where the Series H Preferred Units are to be surrendered
and (D) that distributions on the Series H Preferred Units will cease to accrue
on such redemption date, or (b) if the General Partner elects to cause the
Partnership to redeem all of the Series H Preferred Units then outstanding in
exchange for cash, a Series H Redemption Notice. Series H Preferred Units which
are redeemed shall be deemed canceled (and any corresponding Partnership
Interest represented thereby deemed terminated) on the redemption date. Holders
of Series H Preferred Units shall deliver any canceled certificates representing
Series H Preferred Units which have been exchanged or redeemed to the office of
the General Partner (which currently is located at ▇▇▇▇ ▇, ▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ 94111) within ten (10) Business Days of the exchange or redemption
with respect thereto. Notwithstanding anything to the contrary contained herein,
any and all Series H Preferred Units to be exchanged for Series H Preferred
Shares pursuant to this Section 21.8 shall be so exchanged in a single
transaction at one time. As a condition to
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exchange, AMB may require the holders of Series H Preferred Units to make such
representations as may be reasonably necessary for the General Partner to
establish that the issuance of Series H Preferred Shares pursuant to the
exchange shall not be required to be registered under the Securities Act or any
state securities laws. Any Series H Preferred Shares issued pursuant to this
Section 21.8 shall be delivered as shares which are duly authorized, validly
issued, fully paid and nonassessable, free of any pledge, lien, encumbrance or
restriction other than those provided in the REIT Charter, the Bylaws of AMB,
the Securities Act and relevant state securities or blue sky laws.
The certificates representing the Series H Preferred Shares issued upon
exchange of the Series H Preferred Units shall contain the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT (A)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), AND STATE SECURITIES LAWS OR (B) IF THE
CORPORATION HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL
FOR THE HOLDER OF THE SHARES REPRESENTED HEREBY, OR OTHER EVIDENCE
SATISFACTORY TO THE CORPORATION, THAT SUCH TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS
OF SECTION 5 OF THE ACT AND STATE SECURITIES LAWS AND THE RULES AND
REGULATIONS THEREUNDER.
(ii) In the event of an exchange of Series H Preferred Units for Series
H Preferred Shares, an amount equal to the accrued and unpaid distributions to
the date of exchange on any Series H Preferred Units tendered for exchange shall
(i) accrue on the Series H Preferred Shares into which such Series H Preferred
Units are exchanged, and (ii) continue to accrue on such Series H Preferred
Units, which shall remain outstanding following such exchange, with the General
Partner as the holder of such Series H Preferred Units. Notwithstanding anything
to the contrary set forth herein, in no event shall a Holder of a Series H
Preferred Unit that was validly exchanged for Series H Preferred Shares pursuant
to this Section (other than the General Partner holding such Series H Preferred
Unit following any such exchange), receive a distribution out of Available Cash
of the Partnership, if such Holder, after exchange, is entitled to receive a
distribution with respect to the Series H Preferred Shares for which such Series
H Preferred Unit was exchanged or redeemed. Further, for purposes of the
foregoing, in the event of an exchange of Series H Preferred Units for Series H
Preferred Shares, if the accrued and unpaid distributions per Series H Preferred
Unit is not the same for each Series H Preferred Unit, the accrued and unpaid
distributions per Series H Preferred Unit for each such Series H Preferred Unit
shall be equal to the greatest amount of such accrued and unpaid distributions
per Series H Preferred Unit on any such unit.
(iii) Fractional Series H Preferred Shares are not to be issued upon
exchange but, in lieu thereof, the General Partner will pay a cash adjustment
based upon the fair market
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value of the Series H Preferred Shares on the day prior to the exchange date as
determined in good faith by the board of directors of the General Partner.
C. Adjustment of Series H Exchange Price. In case AMB shall be a party
to any transaction (including, without limitation, a merger, consolidation,
statutory share exchange, tender offer for all or substantially all of AMB's
capital stock or sale of all or substantially all of AMB's assets), in each case
as a result of which the Series H Preferred Shares will be converted into the
right to receive shares of capital stock, other securities or other property
(including cash or any combination thereof), each Series H Preferred Unit will
thereafter be exchangeable into the kind and amount of shares of capital stock
and other securities and property receivable (including cash or any combination
thereof) upon the consummation of such transaction by a holder of that number of
Series H Preferred Shares or fraction thereof into which one Series H Preferred
Unit was exchangeable immediately prior to such transaction. AMB may not become
a party to any such transaction unless the terms thereof are consistent with the
foregoing. AMB and the Operating Partnership further agree that, notwithstanding
any transaction to which either may be a party (including, without limitation,
any merger, consolidation, statutory share exchange, tender offer for all or
substantially all of such entity's capital stock or partnership interests or
sale of all or substantially all of such entity's assets), immediately following
any such transaction, the issuer or issuers of any shares of capital stock and
other securities into which the Series H Preferred Units shall be exchangeable
pursuant to this Section 21.8 shall be the same issuer or issuers of shares of
capital stock and other securities into which (i) the Series B Preferred Units
are then exchangeable (or, if the Series B Preferred Units have previously been
redeemed in full, would have been then exchangeable if then still outstanding),
(ii) the Series D Preferred Units are then exchangeable (or, if the Series D
Preferred Units have previously been redeemed in full, would have been then
exchangeable if then still outstanding), (iii) the Series E Preferred Units are
then exchangeable (or, if the Series E Preferred Units have previously been
redeemed in full, would have been then exchangeable if then still outstanding),
(iv) the Series F Preferred Units are then exchangeable (or, if the Series F
Preferred Units have previously been redeemed in full, would have been then
exchangeable if then still outstanding), and (v) the Series I Preferred Units
are then exchangeable (or, if the Series I Preferred Units have previously been
redeemed in full, would have been then exchangeable if then still outstanding).
Section 21.9. No Conversion Rights
The Series H Preferred Units shall not be convertible into any other
class or series of interest in the Partnership.
Section 21.10. No Sinking Fund
No sinking fund shall be established for the retirement or redemption of
Series H Preferred Units.
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ARTICLE 22.
SERIES I PREFERRED UNITS
Section 22.1. Designation and Number
A series of Partnership Units in the Partnership designated as the 8.00%
Series I Cumulative Redeemable Preferred Units (the "Series I Preferred Units")
is hereby established. The number of Series I Preferred Units shall be 510,000.
Section 22.2. Ranking
The Series I Preferred Units shall, with respect to distribution rights
and rights upon voluntary or involuntary liquidation, winding up or dissolution
of the Partnership, rank (i) senior to the Common Units and to all Partnership
Units the terms of which provide that such Partnership Units shall rank junior
to the Series I Preferred Units; (ii) on a parity with the Series D Preferred
Units, the Series E Preferred Units, the Series F Preferred Units, the Series H
Preferred Units and all other Parity Preferred Units; and (iii) junior to all
Partnership Units which rank senior to the Series I Preferred Units.
Section 22.3. Distributions
A. Payment of Distributions. Subject to the rights of holders of Parity
Preferred Units as to the payment of distributions (including pursuant to
Sections 5.1, 17.3A, 18.3A, 19.3A and 21.3A hereof), holders of Series I
Preferred Units will be entitled to receive, when, as and if declared by the
Partnership acting through the General Partner, out of Available Cash,
cumulative preferential cash distributions in an amount equal to the Series I
Priority Return. Such distributions will be payable (A) quarterly (such
quarterly periods for purposes of payment and accrual will be the quarterly
periods ending on the dates specified in this sentence and not calendar year
quarters) in arrears, on the 25th day of March, June, September and December of
each year and (B) in the event of (i) an exchange of Series I Preferred Units
into Series I Preferred Shares, or (ii) a redemption of Series I Preferred
Units, on the exchange date or redemption date, as applicable (each a "Series I
Preferred Unit Distribution Payment Date"), commencing on the first of such
payment dates to occur following their original date of issuance. If any date on
which distributions are to be made on the Series I Preferred Units is not a
Business Day, then payment of the distribution to be made on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay) except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. Distributions on the Series I Preferred Units will be
made to the holders of record of the Series I Preferred Units on the relevant
record dates, which will be fifteen (15) days prior to the relevant Series I
Preferred Unit Distribution Payment Date (the "Series I Preferred Unit
Partnership Record Date"). For purposes of clarifying the relative distribution
priority rights among the Series I Preferred Units, the Series H Preferred
Units, the Series F Preferred Units, the Series E Preferred Units and the Series
D Preferred Units, the payment of distributions with respect to a series of such
Preferred Units prior to the payment of distributions with respect to another
such series of Preferred Units, solely as a result of the distribution payment
dates with respect to a series of Preferred Units occurring on a different
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date from another series of Preferred Units, shall not be deemed to create a
priority in favor of one series of Preferred Units over any other series of
Preferred Units.
B. Distributions Cumulative. Notwithstanding the foregoing,
distributions on the Series I Preferred Units will accrue whether or not the
terms and provisions of any agreement of the Partnership at any time prohibit
the current payment of distributions, whether or not the Partnership has
earnings, whether or not there are funds legally available for the payment of
such of such distributions and whether or not such distributions are authorized.
Accrued but unpaid distributions on the Series I Preferred Units will accumulate
as of the Preferred Unit Distribution Payment Date on which they first become
payable.
C. Priority as to Distributions. (i) So long as any Series I Preferred
Units are outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect to any
class or series of Partnership Interest represented by Junior Units, nor shall
any Junior Units or Parity Preferred Units be redeemed, purchased or otherwise
acquired for any consideration (or any monies be paid to or made available for a
sinking fund for the redemption of any such Junior Units or Parity Preferred
Units) by the Partnership (except by conversion into or exchange for other
Junior Units or Parity Preferred Units, as the case may be) unless, in each
case, full cumulative distributions have been or contemporaneously are
authorized and paid or authorized and a sum sufficient for the payment thereof
set apart for such payment on the Series I Preferred Units and all classes and
series of outstanding Parity Preferred Units for all distribution periods. The
foregoing sentence will not prohibit (a) distributions payable solely in Junior
Units, (b) the exchange of Junior Units or Parity Preferred Units into
Partnership Interests of the Partnership ranking junior to the Series I
Preferred Units as to distributions and upon voluntary and involuntary
liquidation, dissolution or winding up of the Partnership, or (c) distributions
necessary to enable the Operating Partnership to redeem partnership interests
corresponding to Series I Preferred Shares and any Parity Preferred Stock with
respect to distributions or Junior Stock to be purchased by AMB pursuant to the
REIT Charter to preserve AMB's status as a REIT; provided that such redemption
shall be upon the same terms as the corresponding stock purchase pursuant to the
REIT Charter.
(ii) So long as distributions have not been paid in full (or a sum
sufficient for such full payment is not so set apart) upon the Series I
Preferred Units and any other Parity Preferred Units, all distributions
authorized and declared on the Series I Preferred Units and all classes or
series of outstanding Parity Preferred Units shall be authorized and declared
pro rata so that the amount of distributions authorized and declared per Series
I Preferred Unit and such other classes or series of Parity Preferred Units
shall in all cases bear to each other the same ratio that accrued distributions
per Series I Preferred Unit and such other classes or series of Parity Preferred
Units (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such class or series of Parity
Preferred Units do not have cumulative distribution rights) bear to each other.
No interest, or sum of money in lieu of interest, shall be payable in respect of
any distributions or payments on Series I Preferred Units which may be in
arrears.
(iii) Notwithstanding anything to the contrary set forth herein,
distributions on Partnership Interests held by either (a) the General Partner,
(b) the Operating Partnership or (c) any other holder of Partnership Interests
in the Partnership, in each case ranking junior to or on parity with the Series
I Preferred Units may be made, without preserving the priority of
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distributions described in Sections 22.3.C(i) and (ii), but only to the extent
such distributions are required to preserve the REIT status of AMB, in its
capacity as sole general partner of the Operating Partnership and as sole
stockholder of the General Partner, and in the case of any holder other than the
General Partner only to the extent required by the Partnership Agreement;
provided, that the Partnership shall not be disproportionately burdened by this
provision relative to the cash flow generated by other assets owned directly or
indirectly by AMB.
D. No Further Rights. Holders of Series I Preferred Units shall not be
entitled to any distributions, whether payable in cash, other property or
otherwise, in excess of the full cumulative distributions described herein.
Section 22.4. Liquidation Proceeds
A. Distributions. Upon voluntary or involuntary liquidation, dissolution
or winding-up of the Partnership, distributions on the Series I Preferred Units
shall be made in accordance with Article 13 of this Agreement.
B. Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by the General Partner
pursuant to Section 13.6 hereof.
C. No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, Holders of Series I
Preferred Units will have no right or claim to any of the remaining assets of
the Partnership.
D. Consolidation, Merger or Certain Other Transactions. None of a
consolidation or merger of the Partnership with or into another entity, a merger
of another entity with or into the Partnership, or a sale, lease, transfer or
conveyance of all or substantially all of the Partnership's property or business
shall be considered a liquidation, dissolution or winding up of the Partnership.
Section 22.5. Series I Redemption
A. Series I Redemption. The Series I Preferred Units may not be redeemed
prior to March 21, 2006. On or after such date, the Partnership shall have the
right to redeem the Series I Preferred Units, in whole or in part, at any time
or from time to time, upon not less than 30 nor more than 60 days' written
notice, at a redemption price, payable in cash (a "Series I Redemption"), equal
to the Capital Account balance of the holder of Series I Preferred Units (the
"Series I Redemption Price"); provided, however, that no redemption pursuant to
this Section 21.5 will be permitted if the Series I Redemption Price does not
equal or exceed the original Capital Contribution of such holder plus the
cumulative Series I Priority Return to the redemption date to the extent not
previously distributed. If fewer than all of the outstanding Series I Preferred
Units are to be redeemed, the Series I Preferred Units to be redeemed shall be
selected pro rata (as nearly as practicable without creating fractional units).
B. Limitation on Series I Redemption. (i) The Series I Redemption Price
of the Series I Preferred Units (other than the portion thereof consisting of
accumulated but unpaid distributions) is payable solely out of the sale proceeds
of capital stock of AMB, which will be
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contributed by AMB to the General Partner or the Operating Partnership and which
in turn will be contributed by the General Partner or the Operating Partnership
to the Partnership as an additional capital contribution, or out of the sale of
limited partner interests in the Partnership or the Operating Partnership and
from no other source. For purposes of the preceding sentence, "capital stock"
means any equity securities (including Common Stock and Preferred Stock (as such
terms are defined in the REIT Charter), depository shares, interests,
participation or other ownership interests (however designated) and any rights
(other than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(ii) The Partnership may not redeem fewer than all of the outstanding
Series I Preferred Units unless all accumulated and unpaid distributions have
been paid on all Series I Preferred Units for all quarterly distribution periods
terminating on or prior to the date of redemption.
C. Procedures for Series I Redemption. (i) Notice of redemption will be
(i) faxed, and (ii) mailed by the Partnership, by certified mail, postage
prepaid, not less than 30 nor more than 60 days prior to the redemption date,
addressed to the respective holders of record of the Series I Preferred Units at
their respective addresses as they appear on the records of the Partnership. No
failure to give or defect in such notice shall affect the validity of the
proceedings for the redemption of any Series I Preferred Units except as to the
holder to whom such notice was defective or not given. In addition to any
information required by law, each such notice shall state: (a) the redemption
date, (b) the Series I Redemption Price, (c) the aggregate number of Series I
Preferred Units to be redeemed and if fewer than all of the outstanding Series I
Preferred Units are to be redeemed, the number of Series I Preferred Units to be
redeemed held by such holder, which number shall equal such holder's pro rata
share (based on the percentage of the aggregate number of outstanding Series I
Preferred Units that the total number of Series I Preferred Units held by such
holder represents) of the aggregate number of Series I Preferred Units to be
redeemed, (d) the place or places where such Series I Preferred Units are to be
surrendered for payment of the Series I Redemption Price, (e) that distributions
on the Series I Preferred Units to be redeemed will cease to accumulate on such
redemption date and (f) that payment of the Series I Redemption Price will be
made upon presentation and surrender of such Series I Preferred Units.
(ii) If the Partnership gives a notice of redemption in respect of
Series I Preferred Units (which notice will be irrevocable) then, by 12:00 noon,
New York City time, on the redemption date, the Partnership will deposit
irrevocably in trust for the benefit of the Series I Preferred Units being
redeemed funds sufficient to pay the applicable Series I Redemption Price and
will give irrevocable instructions and authority to pay such Series I Redemption
Price to the holders of the Series I Preferred Units upon surrender of the
Series I Preferred Units by such holders at the place designated in the notice
of redemption. On and after the date of redemption, distributions will cease to
accumulate on the Series I Preferred Units or portions thereof called for
redemption, unless the Partnership defaults in the payment thereof. If any date
fixed for redemption of Series I Preferred Units is not a Business Day, then
payment of the Series I Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day
falls in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date fixed for redemption. If payment of the Series I Redemption Price
is improperly
113
withheld or refused and not paid by the Partnership, distributions on such
Series I Preferred Units will continue to accumulate from the original
redemption date to the date of payment, in which case the actual payment date
will be considered the date fixed for redemption for purposes of calculating the
applicable Series I Redemption Price.
Section 22.6. Voting and Certain Management Rights
A. General. Holders of the Series I Preferred Units will not have any
voting rights or right to consent to any matter requiring the consent or
approval of the Limited Partners, except as set forth below and in Section
7.3.E.
B. Certain Voting Rights. So long as any Series I Preferred Units
remains outstanding, the Partnership shall not, without the affirmative vote of
the holders of at least two-thirds of the Series I Preferred Units outstanding
at the time (i) authorize or create, or increase the authorized or issued amount
of, any class or series of Partnership Interests ranking prior to the Series I
Preferred Units with respect to payment of distributions or rights upon
liquidation, dissolution or winding-up or reclassify any Partnership Interests
of the Partnership into any such Partnership Interest, or create, authorize or
issue any obligations or security convertible into or evidencing the right to
purchase any such Partnership Interests, (ii) authorize or create, or increase
the authorized or issued amount of any Parity Preferred Units or reclassify any
Partnership Interest of the Partnership into any such Partnership Interest or
create, authorize or issue any obligations or security convertible into or
evidencing the right to purchase any such Partnership Interests but only to the
extent such Parity Preferred Units are issued to an affiliate of the
Partnership, other than AMB or the Operating Partnership to the extent the
issuance of such interests was to allow AMB or the Operating Partnership to
issue corresponding preferred stock or preferred interests to persons who are
not affiliates of the Partnership (other than AMB to the extent AMB issues
corresponding preferred stock to persons who are not affiliates of the
Partnership or the Operating Partnership) or (iii) either consolidate, merge
into or with, or convey, transfer or lease its assets substantially as an
entirety to, any corporation or other entity or amend, alter or repeal the
provisions of the Partnership Agreement (including, without limitation, this
Article 22 and Section 11.2), whether by merger, consolidation or otherwise, in
each case in a manner that would materially and adversely affect the powers,
special rights, preferences, privileges or voting power of the Series I
Preferred Units or the holders thereof; provided, however, that with respect to
the occurrence of any event set forth in (iii) above, so long as (a) the
Partnership is the surviving entity and the Series I Preferred Units remain
outstanding with the terms thereof unchanged, or (b) the resulting, surviving or
transferee entity is a partnership, limited liability company or other
pass-through entity organized under the laws of any state and substitutes the
Series I Preferred Units for other interests in such entity having substantially
the same terms and rights as the Series I Preferred Units, including with
respect to distributions, voting rights and rights upon liquidation, dissolution
or winding-up, then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or voting powers of the
holders of the Series I Preferred Units; and provided further, that any increase
in the amount of Partnership Interests or the creation or issuance of any other
class or series of Partnership Interests represented by Junior Units or Parity
Preferred Units that are not issued to an affiliate of the Partnership, other
than the General Partner or the Operating Partnership to the extent the issuance
of such interests was to allow the General Partner or the Operating Partnership
to issue corresponding preferred stock or preferred interests to persons who are
not affiliates of the Partnership (other than AMB to the extent AMB issues
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corresponding preferred stock or preferred interests to persons who are not
affiliates of the Partnership or the Operating Partnership), shall not be deemed
to materially and adversely affect such rights, preferences, privileges or
voting powers.
C. So long as any Series I Preferred Units remain outstanding, the
General Partner shall not, without the affirmative vote of the holders of at
least two-thirds of the Series I Preferred Units outstanding at the time, take
any action which would result in the termination of the right of the holders of
such units to effect an exchange pursuant to Section 22.8; provided however, no
such vote shall be required so long as the Series I Preferred Units (or any
interests substituted therefore pursuant to Section 22.6.B) remain outstanding
and are exchangeable for Series I Preferred Shares or stock in another entity
having substantially the same terms and rights as the Series I Preferred Shares.
D. Notwithstanding anything to the contrary contained in this Agreement,
including, without limitation, the provisions of Article 7 regarding the
management rights and responsibilities of the General Partner, whenever
distributions on any Series I Preferred Units shall remain unpaid for six or
more quarterly periods (i.e., the quarterly periods ending on the 25th day of
March, June, September and December, or, if not a business day, the next
succeeding business day, beginning with the quarterly period ending March 25,
2001) (whether or not consecutive), the holders of 51% of either (i) such Series
I Preferred Units, in the event that the holders of the Series D Preferred
Units, Series E Preferred Units, Series F Preferred Units, and Series H
Preferred Units are not entitled to exercise management rights pursuant to
Section 17.6D, Section 18.6.D, Section 19.6.D, and Section 21.6.D, respectively,
and that no Future Parity Preferred Unitholders are entitled to exercise
management rights similar to those to which the holders of Series D Preferred
Units, Series E Preferred Units, Series F Preferred Units, Series H Preferred
Units and Series I Preferred Units are entitled to exercise pursuant to Section
17.6D, Section 18.6.D, Section 19.6.D, Section 21.6.D and this Section 22.6.D,
respectively, or (ii) the Parity Preferred Capital, in the event that holders of
Series D Preferred Units, Series E Preferred Units, Series F Preferred Units, or
Series H Preferred Units are entitled to exercise management rights pursuant to
Section 17.6D, Section 18.6.D, Section 19.6.D, or Section 21.6.D, respectively,
or Future Parity Preferred Unitholders are entitled to exercise management
rights similar to those to which the holders of Series D Preferred Units, Series
E Preferred Units, Series F Preferred Units, Series H Preferred Units and Series
I Preferred Units are entitled to exercise pursuant to Section 17.6D, Section
18.6.D, Section 19.6.D, Section 21.6.D and this Section 22.6.D, respectively,
shall be entitled to assume rights to manage the Partnership and perform actions
related thereto for the sole purpose of enforcing the Partnership's rights and
remedies as against obligees of the Partnership or other Persons from whom the
Partnership may be entitled to receive cash or other assets, until all
distributions accumulated on the Series I Preferred Units for all past quarterly
periods and the distribution for the then-current quarterly period shall have
been fully-paid or declared and a sum sufficient for the payment thereof
irrevocably set aside in trust for payment in full; provided, however, that no
such holder or holders of Series I Preferred Units may at any time take any
action (or fail to take any action) if the consequence of such action (or
inaction) would be (i) to cause AMB to fail to qualify as a REIT for federal or
applicable state income tax purposes or (ii) to cause the Partnership or the
Operating Partnership to fail to qualify as a partnership for federal or
applicable state income tax purposes, or (iii) to cause the Partnership, the
Operating Partnership, the General Partner, or AMB to be considered an
"investment company" as defined in, or otherwise be subject to regulation under,
the Investment Company Act of 1940, as amended; and provided, further, that
solely for purposes of
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exercising the management rights set forth in this Section 22.6.D, each holder
of Series I Preferred Units shall be deemed an Indemnitee, and shall be entitled
to the benefits of the indemnification provisions of Section 7.7 with respect to
any and all action(s) taken (or failure(s) to act) by a holder of Series I
Preferred Units in the exercise of (or failure(s) to exercise) the management
rights described in this Section 22.6.D, including, without limitation, alleged
breaches of the General Partner's fiduciary duty to the Partners; and provided
further, that the holders of the Series I Preferred Units acknowledge and agree
that the General Partner and the Partnership have provided similar management
rights to the holders of the Series D Preferred Units, the Series E Preferred
Units, the Series F Preferred Units, and Series H Preferred Units and shall be
entitled to provide similar management rights to Future Parity Preferred
Unitholders.
Section 22.7. Transfer Restrictions
The Series I Preferred Units shall be subject to the provisions of
Article 11 hereof. Notwithstanding any provision to the contrary herein, no
transfer of Series I Preferred Units, or other action by the holder or holders
of such Units, is permitted without the consent of the General Partner which
consent may be given or withheld in its sole and absolute discretion, if such
transfer or other action would result in more than four partners holding all
outstanding Series D Preferred Units, Series H Preferred Units and Series I
Preferred Units within the meaning of Treasury Regulation Section
1.7704-1(h)(1)(ii) (without regard to Treasury Regulation Section
1.7704-1(h)(3)(ii)); provided, however, that the General Partner's consent may
not be unreasonably withheld if (a) such transfer or other action would not
result in more than ten partners holding all outstanding Series D Preferred
Units, Series H Preferred Units and Series I Preferred Units within the meaning
of Treasury Regulation Section 1.7704-1(h)(1)(ii) (without regard to Treasury
Regulation Section 1.7704-1(h)(3)(ii)) and (b) the General Partner cannot rely
on Treasury Regulation Section 1.7704-1(h). In addition, no transfer may be made
to any person if such transfer would cause the exchange of the Series I
Preferred Units for Series I Preferred Shares, as provided herein, to be
required to be registered under the Securities Act of 1933, as amended, or any
state securities laws.
Section 22.8. Exchange Rights
A. Right to Exchange. (i) Series I Preferred Units will be exchangeable
in whole but not in part unless expressly otherwise provided herein at anytime
on or after March 21, 2011, at the option of 51% of the holders of all
outstanding Series I Preferred Units, for authorized but previously unissued
Series I Preferred Shares at an exchange rate of one Series I Preferred Share
from AMB for one Series I Preferred Unit, subject to adjustment as described
below (the "Series I Exchange Price"); provided that the Series I Preferred
Units will become exchangeable at any time, in whole but not in part unless
expressly otherwise provided herein, at the option of 51% of the holders of all
outstanding Series I Preferred Units for Series I Preferred Shares if (y) at any
time full distributions shall not have been timely made on any Series I
Preferred Unit with respect to six (6) prior quarterly distribution periods,
whether or not consecutive; provided, however, that a distribution in respect of
Series I Preferred Units shall be considered timely made if made within two (2)
Business Days after the applicable Series I Preferred Unit Distribution Payment
Date if at the time of such late payment there shall not be any prior quarterly
distribution periods in respect of which full distributions were not timely made
or (z) upon receipt by a holder or holders of Series I Preferred Units of (A)
notice from the General Partner that the General Partner or a Subsidiary of the
General Partner has taken the
116
position that the Partnership is, or upon the consummation of an identified
event in the immediate future will be, a PTP and (B) an opinion rendered by
independent counsel familiar with such matters addressed to a holder or holders
of Series I Preferred Units, that the Partnership is or likely is, or upon the
occurrence of a defined event in the immediate future will be or likely will be,
a PTP.
In addition, the Series I Preferred Units may be exchanged for Series I
Preferred Shares, in whole but not in part unless expressly otherwise provided
herein, at the option of 51% of the holders of all outstanding Series I
Preferred Units after March 21, 2004 and prior to March 21, 2011 if such holders
of a Series I Preferred Units shall deliver to the General Partner either (i) a
private letter ruling addressed to such holder of Series I Preferred Units or
(ii) an opinion of independent counsel reasonably acceptable to the General
Partner based on a change in statute, the enactment of temporary or final
Treasury Regulations or the publication of a Revenue Ruling or any other IRS
release, in either case to the effect that an exchange of the Series I Preferred
Units at such earlier time would not cause the Series I Preferred Units to be
considered "stock and securities" within the meaning of Section 351(e) of the
Code for purposes of determining whether the holder of such Series I Preferred
Units is an "investment company" under Section 721(b) of the Code if an exchange
is permitted at such earlier date.
(ii) Notwithstanding anything to the contrary set forth in Section
22.8.A(i), if a Series I Exchange Notice (as defined herein) has been delivered
to AMB and the General Partner, then the General Partner may, at its option,
within ten (10) Business Days after receipt of the Series I Exchange Notice,
elect to cause the Partnership to redeem all or a portion of the outstanding
Series I Preferred Units for cash in an amount equal to the original Capital
Contribution per Series I Preferred Unit and all accrued and unpaid
distributions thereon to the date of redemption. If the General Partner elects
to redeem fewer than all of the outstanding Series I Preferred Units, the number
of Series I Preferred Units held by each holder to be redeemed shall equal such
holder's pro rata share (based on the percentage of the aggregate number of
outstanding Series I Preferred Units that the total number of Series I Preferred
Units held by such holder represents) of the aggregate number of Series I
Preferred Units being redeemed.
(iii) In the event an exchange of all Series I Preferred Units pursuant
to Section 22.8.A would violate the provisions on ownership limitation of AMB
set forth in Section 7 of Article Third of the Series I Articles Supplementary,
each holder of Series I Preferred Units shall be entitled to exchange, pursuant
to the provisions of Section 22.8.B, a number of Series I Preferred Units which
would comply with the provisions on the ownership limitation of AMB set forth in
such Section 7 of Article Third of the Series I Articles Supplementary, with
respect to such holder, and any Series I Preferred Units not so exchanged (the
"Series I Excess Units") shall be redeemed by the Partnership for cash in an
amount equal to the original Capital Contribution per Series I Excess Unit, plus
any accrued and unpaid distributions thereon to the date of redemption subject
to any restriction thereon contained in any debt instrument or agreement of the
Partnership. In the event an exchange would result in Series I Excess Units, as
a condition to such exchange, each holder of such units agrees to provide
representations and covenants reasonably requested by AMB relating to (i) the
widely held nature of the interests in such holder, sufficient to assure AMB
that the holder's ownership of stock of AMB (without regard to the limits
described above) will not cause any individual to own in excess of 9.0% of the
stock of AMB; and (ii) to the extent such Holder can so represent and covenant
without
117
obtaining information from its owners (other than one or more direct or indirect
parent corporations, limited liability companies or partnerships and not the
holders of any interests in any such parent), the Holder's ownership of tenants
of the Partnership and its affiliates. For purposes of determining the number of
Series I Excess Units under this Section 22.8.A(iii), the "Ownership Limit" set
forth in the Series I Articles Supplementary shall be deemed to be 9.0%. To the
extent the Partnership would not be able to pay the cash set forth above in
exchange for the Series I Excess Units, and to the extent consistent with the
REIT Charter, AMB agrees that it will grant to the holders of the Series I
Preferred Units exceptions to the Ownership Limit set forth in the Series I
Articles Supplementary sufficient to allow such Holders to exchange all of their
Series I Preferred Units for Series I Preferred Shares; provided such holders
furnish to AMB representations acceptable to AMB in its sole and absolute
discretion which assure AMB that such exceptions will not jeopardize AMB's tax
status as a REIT for purposes of federal and applicable state law.
Notwithstanding any provision of this Agreement to the contrary, no Series I
Limited Partner shall be entitled to effect an exchange of Series I Preferred
Units for Series I Preferred Shares to the extent that ownership or right to
acquire such shares would cause the Partner or any other Person or, in the
opinion of counsel selected by AMB, may cause the Partner or any other Person,
to violate the restrictions on ownership and transfer of Series I Preferred
Shares set forth in the REIT Charter. To the extent any such attempted exchange
for Series I Preferred Shares would be in violation of the previous sentence, it
shall be void ab initio and such Series I Limited Partner shall not acquire any
rights or economic interest in the Series I Preferred Shares otherwise issuable
upon such exchange.
(iv) The redemption of Series I Preferred Units described in Section
22.8.A(ii) and (iii) shall be subject to the provisions of Section 22.5.B(i) and
Section 22.5.C(ii); provided, however, that the term "Series I Redemption Price"
in such Sections 22.5.B(i) and 22.5.C(ii) shall be read to mean the original
Capital Contribution per Series I Preferred Unit being redeemed as set forth on
Exhibit A plus all accrued and unpaid distributions to the redemption date.
B. Procedure for Exchange of Series I Preferred Units and/or Series I
Redemption.
(i) Any exchange shall be exercised pursuant to a notice of exchange
(the "Series I Exchange Notice") delivered to AMB and the General Partner by the
Partners representing at least 51% of the outstanding Series I Preferred Units
(or by the Series I Contributor in the case of an exchange pursuant to the last
sentence of Section 22.8.A.(i) hereof) by (a) fax and (b) by certified mail
postage prepaid. AMB may effect any exchange of Series I Preferred Units, or the
General Partner may exercise its option to cause the Partnership to redeem any
portion of the Series I Preferred Units for cash pursuant to Section 22.8.A(ii)
or redeem Series I Excess Units pursuant to Section 22.8.A(iii), by delivering
to each holder of record of Series I Preferred Units, within ten (10) Business
Days following receipt of the Series I Exchange Notice, (a) if the General
Partner elects to cause the Partnership to acquire any of the Series I Preferred
Units then outstanding, (1) certificates representing the Series I Preferred
Shares being issued in exchange for the Series I Preferred Units of such holder
being exchanged and (2) a written notice (a "Series I Redemption Notice")
stating (A) the redemption date, which may be the date of such Series I
Redemption Notice or any other date which is not later than sixty (60) days
following the receipt of the Series I Exchange Notice, (B) the redemption price,
(C) the place or places where the Series I Preferred Units are to be surrendered
and (D) that distributions on the Series I
118
Preferred Units will cease to accrue on such redemption date, or (b) if the
General Partner elects to cause the Partnership to redeem all of the Series I
Preferred Units then outstanding in exchange for cash, a Series I Redemption
Notice. Series I Preferred Units which are redeemed shall be deemed canceled
(and any corresponding Partnership Interest represented thereby deemed
terminated) on the redemption date. Holders of Series I Preferred Units shall
deliver any canceled certificates representing Series I Preferred Units which
have been exchanged or redeemed to the office of the General Partner (which
currently is located at ▇▇▇▇ ▇, ▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ 94111) within
ten (10) Business Days of the exchange or redemption with respect thereto.
Notwithstanding anything to the contrary contained herein, any and all Series I
Preferred Units to be exchanged for Series I Preferred Shares pursuant to this
Section 22.8 shall be so exchanged in a single transaction at one time. As a
condition to exchange, AMB may require the holders of Series I Preferred Units
to make such representations as may be reasonably necessary for the General
Partner to establish that the issuance of Series I Preferred Shares pursuant to
the exchange shall not be required to be registered under the Securities Act or
any state securities laws. Any Series I Preferred Shares issued pursuant to this
Section 22.8 shall be delivered as shares which are duly authorized, validly
issued, fully paid and nonassessable, free of any pledge, lien, encumbrance or
restriction other than those provided in the REIT Charter, the Bylaws of AMB,
the Securities Act and relevant state securities or blue sky laws.
The certificates representing the Series I Preferred Shares issued upon
exchange of the Series I Preferred Units shall contain the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT (A)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), AND STATE SECURITIES LAWS OR (B) IF THE
CORPORATION HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL
FOR THE HOLDER OF THE SHARES REPRESENTED HEREBY, OR OTHER EVIDENCE
SATISFACTORY TO THE CORPORATION, THAT SUCH TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS
OF SECTION 5 OF THE ACT AND STATE SECURITIES LAWS AND THE RULES AND
REGULATIONS THEREUNDER.
(ii) In the event of an exchange of Series I Preferred Units for Series
I Preferred Shares, an amount equal to the accrued and unpaid distributions to
the date of exchange on any Series I Preferred Units tendered for exchange shall
(i) accrue on the Series I Preferred Shares into which such Series I Preferred
Units are exchanged, and (ii) continue to accrue on such Series I Preferred
Units, which shall remain outstanding following such exchange, with the General
Partner as the holder of such Series I Preferred Units. Notwithstanding anything
to the contrary set forth herein, in no event shall a Holder of a Series I
Preferred Unit that was validly exchanged for Series I Preferred Shares pursuant
to this Section (other than the General Partner holding such Series I Preferred
Unit following any such exchange), receive a distribution out of Available Cash
of the Partnership, if such Holder, after
119
exchange, is entitled to receive a distribution with respect to the Series I
Preferred Shares for which such Series I Preferred Unit was exchanged or
redeemed. Further, for purposes of the foregoing, in the event of an exchange of
Series I Preferred Units for Series I Preferred Shares, if the accrued and
unpaid distributions per Series I Preferred Unit is not the same for each Series
I Preferred Unit, the accrued and unpaid distributions per Series I Preferred
Unit for each such Series I Preferred Unit shall be equal to the greatest amount
of such accrued and unpaid distributions per Series I Preferred Unit on any such
unit.
(iii) Fractional Series I Preferred Shares are not to be issued upon
exchange but, in lieu thereof, the General Partner will pay a cash adjustment
based upon the fair market value of the Series I Preferred Shares on the day
prior to the exchange date as determined in good faith by the board of directors
of the General Partner.
C. Adjustment of Series I Exchange Price. In case AMB shall be a party
to any transaction (including, without limitation, a merger, consolidation,
statutory share exchange, tender offer for all or substantially all of AMB's
capital stock or sale of all or substantially all of AMB's assets), in each case
as a result of which the Series I Preferred Shares will be converted into the
right to receive shares of capital stock, other securities or other property
(including cash or any combination thereof), each Series I Preferred Unit will
thereafter be exchangeable into the kind and amount of shares of capital stock
and other securities and property receivable (including cash or any combination
thereof) upon the consummation of such transaction by a holder of that number of
Series I Preferred Shares or fraction thereof into which one Series I Preferred
Unit was exchangeable immediately prior to such transaction. AMB may not become
a party to any such transaction unless the terms thereof are consistent with the
foregoing. AMB and the Operating Partnership further agree that, notwithstanding
any transaction to which either may be a party (including, without limitation,
any merger, consolidation, statutory share exchange, tender offer for all or
substantially all of such entity's capital stock or partnership interests or
sale of all or substantially all of such entity's assets), immediately following
any such transaction, the issuer or issuers of any shares of capital stock and
other securities into which the Series I Preferred Units shall be exchangeable
pursuant to this Section 22.8 shall be the same issuer or issuers of shares of
capital stock and other securities into which (i) the Series B Preferred Units
are then exchangeable (or, if the Series B Preferred Units have previously been
redeemed in full, would have been then exchangeable if then still outstanding),
(ii) the Series D Preferred Units are then exchangeable (or, if the Series D
Preferred Units have previously been redeemed in full, would have been then
exchangeable if then still outstanding), (iii) the Series E Preferred Units are
then exchangeable (or, if the Series E Preferred Units have previously been
redeemed in full, would have been then exchangeable if then still outstanding),
(iv) the Series F Preferred Units are then exchangeable (or, if the Series F
Preferred Units have previously been redeemed in full, would have been then
exchangeable if then still outstanding) and (v) the Series H Preferred Units are
then exchangeable (or, if the Series H Preferred Units have previously been
redeemed in full, would have been then exchangeable if then still outstanding).
Section 22.9. No Conversion Rights
The Series I Preferred Units shall not be convertible into any other
class or series of interest in the Partnership.
120
Section 22.10. No Sinking Fund
No sinking fund shall be established for the retirement or redemption of
Series I Preferred Units.
(Signature Pages Follow)
121
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
GENERAL PARTNER:
AMB PROPERTY HOLDING CORPORATION,
a Maryland corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. Coke
--------------------------------------------
▇▇▇▇▇▇▇ ▇. Coke
Executive Vice President and Chief Financial
Officer
COMMON LIMITED PARTNER:
AMB PROPERTY, L.P., a Delaware limited
partnership
By: AMB Property Corporation,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. Coke
--------------------------------------------
▇▇▇▇▇▇▇ ▇. Coke
Executive Vice President and Chief Financial
Officer
GENERAL PARTNER OF COMMON LIMITED PARTNER:
AMB PROPERTY CORPORATION,
a Maryland corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. Coke
--------------------------------------------
▇▇▇▇▇▇▇ ▇. Coke
Executive Vice President and Chief Financial
Officer
S-1
EXHIBIT A
PARTNERS, CONTRIBUTIONS, AND PARTNERSHIP INTERESTS
I. COMMON UNITS
Agreed Value of
Contribution Cash Contributed Total Partnership Percentage
Name of Partner Date Contributions Property Contributions Units Interest
---------------------------------- ------------ ------------- --------------- ------------- ----------- ----------
GENERAL PARTNER:
AMB Property Holding Corporation 11/26/97 -- $3,626,023 $3,626,023 172,668 .99725%
LIMITED PARTNERS:
AMB Property, L.P. 11/26/97 -- $358,976,301 $358,976,301 17,094,110 98.72782%
06/30/98 -- $1,161,489 $1,161,489 47,602 .27493%
------------- ------------ ------------ ---------- --------
TOTAL COMMON UNITS -- $363,763,813 $363,763,813 17,314,380 100.0000%
------------- ------------ ------------ ---------- --------
A-1
EXHIBIT A
PARTNERS, CONTRIBUTIONS, AND PARTNERSHIP INTERESTS
II. SERIES C PREFERRED UNITS
Agreed Value of Series C
Contribution Cash Contributed Total Partnership Percentage
Name of Partner Date Contributions Property Contributions Units Interest
---------------------------------- ------------ ------------- --------------- ------------- ----------- ----------
LIMITED PARTNER:
Belcrest Realty Corporation 11/24/98 $24,000,000 -- $24,000,000 480,000 21.81818%
Belair Real Estate Corporation 11/24/98 $86,000,000 -- $86,000,000 1,720,000 78.18182%
Belcrest Realty Corporation 2/23/99 -- -- -- 381,000 17.31818%
Belair Real Estate Corporation 2/23/99 -- -- -- (381,000) (17.31818%)
Belcrest Realty Corporation 4/29/99 -- -- -- 239,000 10.86364%
Belair Real Estate Corporation 4/29/99 -- -- -- (239,000) (10.86364%)
Argosy Realty Corporation 7/9/99 -- -- -- 32,506 1.47755%
Belmar Realty Corporation 7/9/99 -- -- -- 32,506 1.47755%
Belport Realty Corporation 7/9/99 -- -- -- 32,506 1.47755%
Belrieve Realty Corporation 7/9/99 -- -- -- 32,506 1.47755%
Belair Real Estate Corporation 7/9/99 -- -- -- (130,024) (5.91018%)
Belcrest Realty Corporation 7/28/99 -- -- -- 300,000 13.63636%
Belair Real Estate Corporation 7/28/99 -- -- -- (300,000) (13.63636%)
Belmar Realty Corporation 3/17/00 -- -- -- (32,506) (1.47755%)
Belcrest Realty Corporation 3/17/00 -- -- -- (250,000) (11.36364%)
Belair Real Estate Corporation 3/17/00 -- -- -- 282,506 12.84118%
Belair Real Estate Corporation 12/19/00 -- -- -- 32,506 1.47755%
------------ ---------- ----------- ---------- ---------
Altavera Realty Corporation,
formerly known as Belrieve Realty 12/19/00 -- -- -- (32,506) (1.47755%)
Corporation
============ ========== =========== ========== =========
Belport Realty Corporation 3/14/01 -- -- -- (32,506) (1.47755%)
============ ========== =========== ========== =========
Belair Real Estate Corporation 3/14/01 -- -- -- 32,506 1.47755%
============ ========== =========== ========== =========
Argosy Realty Corporation 12/5/01 -- -- -- (32,506) (1.47755%)
============ ========== =========== ========== =========
Belair Real Estate Corporation 12/5/01 -- -- -- (1,017,494) (46.24972%)
============ ========== =========== ========== =========
Belcrest Realty Corporation 12/5/01 -- -- -- (1,150,000) (52.27272%)
============ ========== =========== ========== =========
TOTAL SERIES C PREFERRED UNITS $110,000,000 -- $110,000,000 0 000.0000%
============ ========== ============ ========== =========
III. SERIES D PREFERRED UNITS
Agreed Value of Series D
Contribution Cash Contributed Total Partnership Percentage
Name of Partner Date Contributions Property Contributions Units Interest
---------------------------------- ------------ ------------- --------------- ------------- ----------- ----------
LIMITED PARTNER:
▇.▇. ▇▇▇▇▇▇ Mosaic Fund, LLC 5/5/99 $79,766,850 -- $79,766,850 1,595,337 100.0000%
▇.▇. ▇▇▇▇▇▇ Mosaic Fund, LLC 12/31/01 -- -- -- (1,595,337) (100.0000%)
JPM Mosaic I REIT, Inc. 12/31/01 -- -- -- 1,595,337 100.0000%
----------- ---------- ----------- ----------- ----------
TOTAL SERIES D PREFERRED UNITS $79,766,850 -- $79,766,850 1,595,337 100.0000%
=========== ========== =========== =========== ==========
A-2
IV. SERIES E PREFERRED UNITS
Agreed Value of Series E
Contribution Cash Contributed Total Partnership Percentage
Name of Partner Date Contributions Property Contributions Units Interest
---------------------------------- ------------ ------------- --------------- ------------- ----------- ----------
LIMITED PARTNER:
Fifth Third Equity Exchange Fund
1999, LLC 8/31/99 $11,022,000 -- $11,022,000 220,440 100.0000%
----------- -------- ----------- ------- --------
TOTAL SERIES E PREFERRED UNITS $11,022,000 -- $11,022,000 220,440 100.0000%
=========== ======== =========== ======= ========
V. SERIES F PREFERRED UNITS
Agreed Value of Series F
Contribution Cash Contributed Total Partnership Percentage
Name of Partner Date Contributions Property Contributions Units Interest
---------------------------------- ------------ ------------- --------------- ------------- ----------- ----------
LIMITED PARTNER:
Bailard, ▇▇▇▇▇ & ▇▇▇▇▇▇ Technology
Exchange Fund, LLC 3/22/00 $19,871,950 -- $19,871,950 397,439 100.0000%
Bailard, ▇▇▇▇▇ & ▇▇▇▇▇▇ Technology
Exchange Fund, LLC 7/31/02 -- -- -- (130,000) (32.70942%)
----------- --------- ----------- -------- ---------
=========== ========= =========== ======== =========
TOTAL SERIES F PREFERRED UNITS $19,871,950 -- $19,871,950 267,439 100.0000%
=========== ========= =========== ======== =========
VI. SERIES G PREFERRED UNITS
Agreed Value of Series G
Contribution Cash Contributed Total Partnership Percentage
Name of Partner Date Contributions Property Contributions Units Interest
---------------------------------- ------------ ------------- --------------- ------------- ----------- ----------
LIMITED PARTNER:
Bailard, ▇▇▇▇▇ & ▇▇▇▇▇▇ Technology
Exchange Fund, LLC 8/29/00 $1,000,000 -- $1,000,000 20,000 100.0000%
Bailard, ▇▇▇▇▇ & ▇▇▇▇▇▇ Technology
Exchange Fund, LLC 7/31/02 -- -- -- (20,000) (100.0000%)
---------- -------- ---------- ------- ---------
========== ======== ========== ======= =========
TOTAL SERIES G PREFERRED UNITS $1,000,000 -- $1,000,000 0 000.0000%
========== ======== ========== ======= =========
VII. SERIES H PREFERRED UNITS
Agreed Value of Series H
Contribution Cash Contributed Total Partnership Percentage
Name of Partner Date Contributions Property Contributions Units Interest
---------------------------------- ------------ ------------- --------------- ------------- ----------- ----------
LIMITED PARTNER:
▇.▇. ▇▇▇▇▇▇ Mosaic Fund IV, LLC 9/1/00 $42,000,000 -- $42,000,000 840,000 100.0000%
▇.▇. ▇▇▇▇▇▇ Mosaic Fund IV, LLC 12/31/01 -- -- -- (840,000) (100.0000%)
JPM Mosaic IV REIT, Inc. 12/31/01 -- -- -- 840,000 100.0000%
----------- --------- ----------- -------- ---------
TOTAL SERIES H PREFERRED UNITS $42,000,000 -- $42,000,000 840,000 100.0000%
=========== ========= =========== ======== =========
A-2
VIII. SERIES I PREFERRED UNITS
Agreed Value of Series I
Contribution Cash Contributed Total Partnership Percentage
Name of Partner Date Contributions Property Contributions Units Interest
---------------------------------- ------------ ------------- --------------- ------------- ----------- ----------
LIMITED PARTNER:
▇.▇. ▇▇▇▇▇▇ Chase Mosaic Fund V,
LLC 3/21/01 $25,500,000 -- $25,500,000 510,000 100.0000%
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Mosaic Fund V,
LLC 12/31/01 -- -- -- (510,000) (100.0000%)
JPM Mosaic V REIT, Inc. 12/31/01 -- -- -- 510,000 100.0000%
------------ -------- ------------ --------- ---------
TOTAL SERIES I PREFERRED UNITS $25,500,000 -- $25,500,000 510,000 100.0000%
============ ======== ============ ========= =========
------------ -------- ------------ --------- ---------
TOTAL ALL SERIES OF PREFERRED UNITS $269,288,850 -- $269,288,850 3,055,777 100.0000%
============ ======== ============ ========= =========
A-2
EXHIBIT B
NOTICE OF REDEMPTION
The undersigned hereby irrevocably (i) exchanges ____________ Limited
Partnership Units in AMB Property II, L.P. in accordance with the terms of the
Eleventh Amended and Restated Agreement of Limited Partnership of AMB Property
II, L.P. dated as of July 31, 2002 and the rights of Series ____ Redemption
referred to therein, (ii) surrenders such Limited Partnership Units and all
right, title and interest therein and (iii) directs that the cash (or, if
applicable, Preferred Stock) deliverable upon Series ___ Redemption or exchange
be delivered to the address specified below, and if applicable, that such
Preferred Stock be registered or placed in the name(s) and at the address(es)
specified below.
Dated:
--------------------------------
Name of Limited Partner:
---------------------------------
(Signature of Limited Partner)
---------------------------------
(Street Address)
---------------------------------
(City) (State) (Zip Code)
Signature Guaranteed by:
---------------------------------
Issue Shares in the name of:
Please insert social security or identifying number:
Address (if different than above):
B-1
EXHIBIT C
CONSTRUCTIVE OWNERSHIP DEFINITION
The term "Constructively Owns" means ownership determined through
the application of the constructive ownership rules of Section 318 of the Code,
as modified by Section 856(d)(5) of the Code. Generally, these rules provide the
following:
a. an individual is considered as owning the Ownership Interest that is
owned, actually or constructively, by or for his spouse, his children, his
grandchildren, and his parents;
b. an Ownership Interest that is owned, actually or constructively, by
or for a partnership, limited liability company or estate is considered as owned
proportionately by its partners, members or beneficiaries;
c. an Ownership Interest that is owned, actually or constructively, by
or for a trust is considered as owned by its beneficiaries in proportion to the
actuarial interest of such beneficiaries (provided, however, that in the case of
a "grantor trust" the Ownership Interest will be considered as owned by the
grantors);
d. if ten percent (10%) or more in value of the stock in a corporation
is owned, actually or constructively, by or for any person, such person shall be
considered as owning the Ownership Interest that is owned, actually or
constructively, by or for such corporation in that proportion which the value of
the stock which such person so owns bears to the value of all the stock in such
corporation;
e. an Ownership Interest that is owned, actually or constructively, by
or for a partner or member which actually or constructively owns a 25% or
greater capital interest or profits interest in a partnership or limited
liability company, or by or for a beneficiary of an estate or trust, shall be
considered as owned by the partnership, limited liability company, estate, or
trust (or, in the case of a grantor trust, the grantors);
f. if ten percent (10%) or more in value of the stock in a corporation
is owned, actually or constructively, by or for any person, such corporation
shall be considered as owning the Ownership Interest that is owned, actually or
constructively, by or for such person;
g. if any person has an option to acquire an Ownership Interest
(including an option to acquire an option or any one of a series of such
options), such Ownership Interest shall be considered as owned by such person;
h. an Ownership Interest that is constructively owned by a person by
reason of the application of the rules described in paragraphs (a) through (g)
above shall, for purposes of applying paragraphs (a) through (g), be considered
as actually owned by such person provided, however, that (i) an Ownership
Interest constructively owned by an individual by reason of paragraph (a) shall
not be considered as owned by him for purposes of again applying paragraph (a)
in order to make another the constructive owner of such Ownership Interest, (ii)
an Ownership Interest constructively owned by a partnership, estate, trust, or
corporation by reason of the application of paragraphs (e) or (f) shall not be
considered as owned by it for purposes of applying paragraphs (b), (c), or (d)
in order to make another the constructive owner of such Ownership Interest,
(iii) if an Ownership Interest may be considered as owned by an individual under
paragraphs (a) or (g), it shall be considered as owned by him under paragraph
(g) and (iv) for purposes of the above described rules, an S corporation shall
be treated as a partnership and any stockholder of the S corporation shall be
treated as a partner of such partnership except that this rule shall not apply
for purposes of determining whether stock in the S corporation is constructively
owned by any person.
i. For purposes of the above summary of the constructive ownership
rules, the term "Ownership Interest" means the ownership of stock with respect
to a corporation and, with respect to any other type of entity, the ownership of
an interest in either its assets or net profits.
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF PARTNERSHIP UNIT CERTIFICATE
CERTIFICATE FOR PARTNERSHIP UNITS OF
AMB PROPERTY II, L.P.
No. UNITS
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AMB Property Holding Corporation as the General Partner of AMB Property
II, L.P., a Delaware limited partnership (the "Operating Partnership"), hereby
certifies that is a Limited Partner of the Operating Partnership whose
Partnership Interests therein, as set forth in the Eleventh Amended and Restated
Agreement of Limited Partnership of AMB Property II, L.P., dated as of July 31,
2002 (as it may be amended, modified or supplemented from time to time in
accordance with its terms, (the "Partnership Agreement"), under which the
Operating Partnership is existing and as filed in the office of the Delaware
[State Department of Assessments and Taxation] (copies of which are on file at
the Operating Partnership's principal office at _______________________________,
represent ___________ units of limited partnership interest in the Operating
Partnership (the "Partnership Units").
THE PARTNERSHIP UNITS REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT MAY
NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
OF UNLESS SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION COMPLIES WITH THE PROVISIONS OF THE PARTNERSHIP AGREEMENT (A COPY OF
WHICH IS ON FILE WITH THE OPERATING PARTNERSHIP). EXCEPT AS OTHERWISE PROVIDED
IN THE PARTNERSHIP AGREEMENT, NO TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION OF THE PARTNERSHIP UNITS REPRESENTED BY THIS
CERTIFICATE MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR (B) IF
THE OPERATING PARTNERSHIP HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF
COUNSEL FOR THE HOLDER OF THE PARTNERSHIP UNITS REPRESENTED BY THIS CERTIFICATE
THAT SUCH TRANSFER, SALE ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION
IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THE ACT AND THE RULES AND
REGULATIONS IN EFFECT THEREUNDER.
DATED: , 2002.
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AMB PROPERTY HOLDING CORPORATION
General Partner of
AMB Property II, L.P.
ATTEST:
By: By:
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EXHIBIT E
SCHEDULE OF PARTNERS' OWNERSHIP
WITH RESPECT TO TENANTS
None
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EXHIBIT F
SCHEDULE OF REIT SHARES
ACTUALLY OR CONSTRUCTIVELY OWNED BY 25% LIMITED PARTNERS
OTHER THAN THOSE ACQUIRED PURSUANT TO AN EXCHANGE
None
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EXHIBIT G
SCHEDULE OF CERTAIN AGREEMENTS RELATING TO
PROPERTIES WITH RESTRICTIONS ON DISPOSITION
PURSUANT TO SECTION 7.3.F
1. APLP II Contribution Agreement dated as of May 21, 1998, by and between
▇▇▇▇▇ Realty Company, an Illinois general partnership and AMB Property II,
L.P., a Delaware limited partnership.
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EXHIBIT H
SCHEDULE OF CERTAIN AGREEMENTS CONTAINING
LIMITATIONS ON GENERAL PARTNERS GENERAL AUTHORITY
1. APLP II Contribution Agreement dated as of May 21, 1998, by and between
▇▇▇▇▇ Realty Company, an Illinois general partnership and AMB Property II,
L.P., a Delaware limited partnership.
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EXHIBIT I
RESTRICTIONS ON OWNERSHIP AND TRANSFER TO PRESERVE TAX BENEFIT
(a) Definitions. for the purposes of this Exhibit I, the following terms
shall have the following meanings:
"Charitable Beneficiary" shall mean one or more beneficiaries
of a Trust, as determined pursuant to subsection (c)(vi), each of
which shall be an organization described in Sections 170(b)(1)(A),
170(c)(2) and 501(c)(3) of the Code.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Constructive Ownership" shall mean ownership of Partnership
Units by a Person who is or would be treated as an owner of such
Partnership Units either actually or constructively through the
application of Section 318 of the Code, as modified by Section
856(d)(5) of the Code. The terms "Constructive Owner,"
"Constructively Owns" and "Constructively Owned" shall have the
correlative meanings.
"Exempted Person" shall mean any Person exempted from time to
time by the General Partner in its sole and absolute discretion. The
Operating Partnership shall be considered an Exempted Person.
"Market Price" shall mean the market price of the Partnership
Units on the relevant date as determined in good faith by the
General Partner; provided, however, if AMB has outstanding shares of
capital stock which correspond to such Partnership Units (i.e., the
Series D Preferred Shares), the Market Price of each such
Partnership Unit shall be equal to the Value of a share of such
capital stock, subject to adjustment if the right to exchange such
Partnership Units for such stock is other than one to one.
"Ownership Limit" shall mean 24.9% of the capital or profits
interests of the Partnership.
"Person" shall mean an individual, corporation, partnership,
limited liability company, estate, trust (including a trust
qualified under Section 401(a) or 501(c)(17) of the Code), a portion
of a trust permanently set aside for or to be used exclusively for
the purposes described in Section 642(c) of the Code, association,
private foundation within the meaning of Section 509(a) of the Code,
joint stock company or other entity.
"Purported Beneficial Transferee" shall mean, with respect to
any purported Transfer (or other event) which results in a transfer
to a Trust, as provided in
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subsection (b)(ii), the Purported Record Transferee, unless the
Purported Record Transferee would have acquired or owned Partnership
Units for another Person who is the beneficial transferee or owner
of such Partnership Units, in which case the Purported Beneficial
Transferee shall be such Person.
"Purported Record Transferee" shall mean, with respect to any
purported Transfer (or other event) which results in a transfer to a
Trust, as provided in subsection (b)(ii), the holder of the
Partnership Units as set forth or to be set forth in Exhibit A to
the Partnership Agreement, and any Assignee of such Partnership
Units, if such Transfer or ownership had been valid under subsection
(b)(i).
"Restriction Termination Date" shall mean the first day after
the date hereof on which the General Partner determines, in its sole
and absolute discretion, that compliance with subsection (b)(i) is
no longer necessary or advisable.
"Transfer" shall mean any sale, transfer, gift, assignment,
devise or other disposition of Partnership Units, (including (i) the
granting of any option or entering into any agreement for the sale,
transfer or other disposition of Partnership Units or (ii) the sale,
transfer, assignment or other disposition of any securities (or
rights convertible into or exchangeable for Partnership Units)),
whether voluntary or involuntary, whether such transfer has occurred
of record or beneficially or Constructively (including but not
limited to transfers of interests in other entities which results in
changes in Constructive Ownership of Partnership Units), and whether
such transfer has occurred by operation of law or otherwise.
"Trust" shall mean each of the trusts provided for in
subsection (c).
"Trustee" shall mean any Person unaffiliated with the
Partnership, or a Purported Beneficial Transferee, or a Purported
Record Transferee, that is appointed by the Partnership to serve as
trustee of a Trust.
Capitalized terms used and not defined herein shall have the meanings ascribed
to them in the Third Amended and Restated Agreement of Limited Partnership of
AMB Property II, L.P. (the "Partnership Agreement"), as such agreement may be
amended from time to time. All references to "Section" refer to the Partnership
Agreement.
(b) Restriction on Ownership and Transfers.
(i) Prior to the Restriction Termination Date, no Person, other than
an Exempted Person, shall at any time Constructively Own Partnership Units in
excess of the Ownership Limit if the representations contained in Section 3.4.D
are not at such time true and correct.
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(ii) If, prior to the Restriction Termination Date, any Transfer or
other event occurs that, if effective, would result in any Person Constructively
Owning Partnership Units in violation of subsection (b)(i), (1) then that number
of Partnership Units that otherwise would cause such Person to violate
subsection (b)(i) (rounded up to the nearest whole Partnership Unit) shall be
automatically transferred (provided such Transfer is not in violation of the
restrictions on transfer set forth in the Partnership Agreement, except to the
extent the General Partner waives such restrictions) to a Trust for the benefit
of a Charitable Beneficiary, as described in subsection (c), effective as of the
close of business on the business day prior to the date of such Transfer or
other event, and such Purported Beneficial Transferee shall thereafter have no
rights in such Partnership Units or (2) if, for any reason, the transfer to the
Trust described in clause (1) of this sentence is not automatically effective as
provided therein to prevent any Person from Constructively Owning Partnership
Units in violation of subsection (b)(i), then the Transfer of that number of
Partnership Units that otherwise would cause any Person to violate subsection
(b)(i) shall be void ab initio, and the Purported Beneficial Transferee shall
have no rights in such Partnership Units.
(c) Transfers of Partnership Units in Trust.
(i) Upon any purported Transfer or other event described in
subsection (b)(ii), such Partnership Units shall be deemed to have been
transferred to the Trustee in his capacity as trustee of a Trust for the
exclusive benefit of one or more Charitable Beneficiaries. Such transfer to the
Trustee shall be deemed to be effective as of the close of business on the
business day prior to the purported Transfer or other event that results in a
transfer to the Trust pursuant to subsection (b)(ii). The Trustee shall be
appointed by the Partnership and shall be a Person unaffiliated with the
Partnership, any Purported Beneficial Transferee, or any Purported Record
Transferee. Each Charitable Beneficiary shall be designated by the Partnership
as provided in subsection (c)(vi).
(ii) Partnership Units held by the Trustee shall be issued and
outstanding Partnership Units of the Partnership. The Purported Beneficial
Transferee or Purported Record Transferee shall have no rights in the
Partnership Units held by the Trustee. The Purported Beneficial Transferee or
Purported Record Transferee shall not benefit economically from ownership of any
Partnership Units held in trust by the Trustee, shall have no rights to
distributions or allocations with respect to Partnership Units held in the Trust
and shall not possess any rights to vote or other rights attributable to the
Partnership Units held in the Trust.
(iii) The Trustee shall have all voting rights and rights to
distributions and allocations with respect to Partnership Units held in the
Trust, which rights shall be exercised for the exclusive benefit of the
Charitable Beneficiary. Any distribution paid prior to the discovery by the
Partnership that Partnership Units have been transferred to the Trustee shall be
paid to the Trustee upon demand, and any distribution with respect to such
Partnership Units shall be paid when due to the Trustee. Any distributions so
paid over to the Trustee shall be held in trust for the Charitable Beneficiary.
The Purported Record Transferee and Purported Beneficial Transferee
shall have no voting rights with respect to the Partnership Units held in the
Trust and, subject to Delaware law,
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effective as of the date the Partnership Units has been transferred to the
Trustee, the Trustee shall have the authority (at the Trustee's sole discretion)
(i) to rescind as void any vote cast by a Purported Record Transferee with
respect to such Partnership Units prior to the discovery by the Partnership that
the Partnership Units has been transferred to the Trustee and (ii) to recast
such vote in accordance with the desires of the Trustee acting for the benefit
of the Charitable Beneficiary; provided, however, that if the Partnership has
already taken irreversible action, then the Trustee shall not have the authority
to rescind and recast such vote. Notwithstanding any other provision of this
Exhibit I to the contrary, until the Partnership has received notification that
the Partnership Units have been transferred into a Trust, the Partnership shall
be entitled to rely on its Partnership Unit transfer and other unitholder
records for purposes of preparing Exhibit A to the Partnership Agreement, lists
of unitholders entitled to vote at meetings, and otherwise conducting votes of
Partners.
(iv) Within 20 days of receiving notice from the Partnership that
Partnership Units have been transferred to the Trust, the Trustee of the Trust
shall, in accordance with the terms of (and subject to the limitations contained
in) the Partnership Agreement, sell the Partnership Units held in the Trust to a
Person, designated by the Trustee, whose ownership of the Partnership Units will
not violate the ownership limitations set forth in subsection (b)(i). Upon such
sale, the interest of the Charitable Beneficiary in the Partnership Units sold
shall terminate and the Trustee shall distribute the net proceeds of the sale to
the Purported Record Transferee and to the Charitable Beneficiary as provided in
this subsection (c)(iv). The Purported Record Transferee shall receive the
lesser of (1) the price paid by the Purported Record Transferee for the
Partnership Units in the transaction that resulted in such transfer to the Trust
(or, if the event which resulted in the transfer to the Trust did not involve a
purchase of such Partnership Units at Market Price, the Market Price of such
Partnership Units on the day of the event which resulted in the transfer of such
Partnership Units to the Trust) and (2) the price per Partnership Unit received
by the Trustee (net of any commissions and other expenses of sale) from the sale
or other disposition of the Partnership Units held in the Trust. Any net sales
proceeds in excess of the amount payable to the Purported Record Transferee
shall be immediately paid to the Charitable Beneficiary together with any
distributions thereon. If, prior to the discovery by the Partnership that
Partnership Units have been transferred to the Trustee, such Partnership Units
are sold by a Purported Record Transferee then (i) such Partnership Units shall
be deemed to have been sold on behalf of the Trust and (ii) to the extent that
the Purported Record Transferee received an amount for such Partnership Units
that exceeds the amount that such Purported Record Transferee was entitled to
receive pursuant to this subsection (c)(iv), such excess shall be paid to the
Trustee upon demand. The expenses described in item (2) above shall include any
expenses of administering the Trust, any transfer of Partnership Units thereto
or disposition of Partnership Units thereby, which shall be allocated equitably
among the Partnership Units which are transferred to the Trust.
(v) Partnership Units transferred to the Trustee shall be deemed to
have been offered for sale to the Partnership, or its designee, at a price per
Partnership Unit equal to the lesser of (i) the price paid by the Purported
Record Transferee for the Partnership Units in the transaction that resulted in
such transfer to the Trust (or, if the event which resulted in the transfer to
the Trust did not involve a purchase of such Partnership Units at Market Price,
the Market Price of such
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Partnership Units on the day of the event which resulted in the transfer of such
Partnership Units to the Trust) and (ii) the Market Price on the date the
Partnership, or its designee, accepts such offer. The Partnership shall have the
right to accept such offer until the Trustee has sold the Partnership Units held
in the Trust pursuant to subsection (c)(iv). Upon such a sale to the
Partnership, the interest of the Charitable Beneficiary in the Partnership Units
sold shall terminate and the Trustee shall distribute the net proceeds of the
sale to the Purported Record Transferee and any distributions held by the
Trustee with respect to such Partnership Units shall thereupon be paid to the
Charitable Beneficiary.
(vi) By written notice to the Trustee, the Partnership shall
designate one or more nonprofit organizations to be the Charitable Beneficiary
of the interest in the Trust such that the Partnership Units held in the Trust
would not violate the restrictions set forth in subsection (b)(i) in the hands
of such Charitable Beneficiary.
(d) Remedies For Breach. If the General Partner shall at any time
determine in good faith that a Transfer or other event has taken place in
violation of subsection (b) or that a Person intends to acquire, has attempted
to acquire or may acquire beneficial ownership (determined without reference to
any rules of attribution) or Constructive Ownership of any Partnership Units of
the Partnership in violation of subsection (b), the General Partner shall take
such action as it deems advisable to refuse to give effect or to prevent such
Transfer, including, but not limited to, causing the Partnership to redeem
Partnership Units, refusing to give effect to such Transfer on the books of the
Partnership or instituting proceedings to enjoin such Transfer; provided,
however, that any Transfers (or, in the case of events other than a Transfer,
ownership or Constructive Ownership) in violation of subsection (b)(i), shall
automatically result in the transfer to a Trust as described in subsection
(b)(ii).
(e) Notice of Restricted Transfer. Any Person who acquires or attempts
to acquire or own Partnership Units in violation of subsection (b), or any
Person who is a Purported Beneficial Transferee such that an automatic transfer
to a Trust results under subsection (b)(ii), shall immediately give written
notice to the Partnership of such event and shall provide to the Partnership
such other information as the Partnership may request in order to determine the
effect, if any, of such Transfer or attempted Transfer on such Person's
compliance with subsection (b)(i).
(f) Owners Required To Provide Information. Prior to the Restriction
Termination Date each Person who is a beneficial owner or Constructive Owner of
Partnership Units and each Person who is holding Partnership Units for a
beneficial owner or Constructive Owner shall provide to the Partnership such
information that the Partnership may request, in good faith, in order to
determine the Partnership's status as a partnership (as opposed to a
corporation) or AMB's status as a REIT for federal income tax purposes.
(g) Remedies Not Limited. Nothing contained in this Exhibit I shall
limit the authority of the General Partner to take such other action as it deems
necessary or advisable to protect the Partnership and the interests of its
Partners by preservation of the Partnership's status as a
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partnership (as opposed to a corporation) or AMB's status as a REIT for federal
income tax purposes.
(h) Ambiguity. In the case of an ambiguity in the application of any of
the provisions of this Exhibit I, including any definition contained in
subsection (a), the General Partner shall have the power to determine the
application of the provisions of this Exhibit I with respect to any situation
based on the facts known to it. In the event that a provision of this Exhibit I
requires an action by the General Partner and Exhibit I fails to provide
specific guidance with respect to such action, the General Partner shall have
the power to determine the action to be taken so long as such action is not
contrary to the provisions of Exhibit I. Absent a decision to the contrary by
the General Partner (which the General Partner may make in its sole and absolute
discretion), if a Person would have (but for the remedies set forth in
subsection (b)) acquired Constructive Ownership of Partnership Units in
violation of subsection (b)(i), such remedies (as applicable) shall apply first
to the Partnership Units which, but for such remedies, would have been actually
owned by such Person, and second to Partnership Units which, but for such
remedies, would have been Constructively Owned (but not actually owned) by such
Person, pro rata among the Persons who actually own such Partnership Units based
upon the relative number of the Partnership Units held by each such Person.
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