UNDER THE SECURITIES ACT OF 1933
AMB Property Corporation | AMB Property, L.P. | |
(Exact name of registrant as specified in its charter) | (Exact name of registrant as specified in its charter) | |
Maryland | Delaware | |
(State or other jurisdiction of | (State or other jurisdiction of | |
incorporation or organization) | incorporation or organization) | |
94-3281941 | 94-3285362 | |
(I.R.S. Employer | (I.R.S. Employer | |
Identification No.) | Identification No.) | |
6798 | 6500 | |
(Primary Standard Industrial | (Primary Standard Industrial | |
Classification Code Number) | Classification Code Number) |
San Francisco, CA 94111
(415) 394-9000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Pier 1, Bay 1
San Francisco, CA 94111
(415) 394-9000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Laura L. Gabriel, Esq. | Philip J. Niehoff, Esq. | Edward S. Nekritz, Esq. | Michael J. Schiavone, Esq. | |||
Latham & Watkins LLP | Michael L. Hermsen, Esq. | ProLogis | Shearman & Sterling LLP | |||
505 Montgomery Street, | Mayer Brown LLP | 4545 Airport Way | 599 Lexington Avenue | |||
Suite 2000 | 71 South Wacker Drive | Denver, CO 80239 | New York, NY 10022 | |||
San Francisco, CA 94111 | Chicago, IL 60606 | (303) 567-5000 | (212) 848-4000 | |||
(415) 391-0600 | (312) 706-8200 |
Large accelerated filerþ | Accelerated filero | Non-accelerated filero | Smaller reporting companyo | |||
(Do not check if a smaller reporting company) |
Large accelerated filero | Accelerated filero | Non-accelerated filerþ | Smaller reporting companyo | |||
(Do not check if a smaller reporting company) |
Proposed | Proposed | |||||||||||||||||||||
Maximum | Maximum | |||||||||||||||||||||
Offering | Aggregate | Amount of | ||||||||||||||||||||
Amount to be | Price Per | Offering | Registration | |||||||||||||||||||
Title of Each Class of Securities to be Registered | Registered | Unit | Price (1) | Fee (2) | ||||||||||||||||||
AMB Property, L.P. 5.500% Notes due April 1, 2012 (3) | $58,935,000 | 100 | % | $58,935,000 | $6,842.35 | |||||||||||||||||
AMB Property, L.P. 5.500% Notes due March 1, 2013 (3) | $61,443,000 | 100 | % | $61,443,000 | $7,133.53 | |||||||||||||||||
AMB Property, L.P. 7.625% Notes due August 15, 2014 (3) | $350,000,000 | 100 | % | $350,000,000 | $40,635.00 | |||||||||||||||||
AMB Property, L.P. 7.810% Notes due February 1, 2015 (3) | $48,226,750 | 100 | % | $48,226,750 | $5,599.13 | |||||||||||||||||
AMB Property, L.P. 9.340% Notes due March 1, 2015 (3) | $5,511,625 | 100 | % | $5,511,625 | $639.90 | |||||||||||||||||
AMB Property, L.P. 5.625% Notes due November 15, 2015 (3) | $155,320,000 | 100 | % | $155,320,000 | $18,032.65 | |||||||||||||||||
AMB Property, L.P. 5.750% Notes due April 1, 2016 (3) | $197,758,000 | 100 | % | $197,758,000 | $22,959.70 | |||||||||||||||||
AMB Property, L.P. 8.650% Notes due May 15, 2016 (3) (4) | $36,402,700 | 100 | % | $36,402,700 | $4,226.35 | |||||||||||||||||
AMB Property, L.P. 5.625% Notes due November 15, 2016 (3) | $182,104,000 | 100 | % | $182,104,000 | $21,142.27 | |||||||||||||||||
AMB Property, L.P. 6.250% Notes due March 15, 2017 (3) | $300,000,000 | 100 | % | $300,000,000 | $34,830.00 | |||||||||||||||||
AMB Property, L.P. 7.625% Notes due July 1, 2017 (3) | $100,000,000 | 100 | % | $100,000,000 | $11,610.00 | |||||||||||||||||
AMB Property, L.P. 6.625% Notes due May 15, 2018 (3) | $600,000,000 | 100 | % | $600,000,000 | $69,660.00 | |||||||||||||||||
AMB Property, L.P. 7.375% Notes due October 30, 2019 (3) | $396,641,000 | 100 | % | $396,641,000 | $46,050.02 | |||||||||||||||||
AMB Property, L.P. 6.875% Notes due March 15, 2020 (3) | $561,049,000 | 100 | % | $561,049,000 | $65,137.79 | |||||||||||||||||
AMB Property, L.P. 3.250% Exchangeable Senior Notes due 2015 (3) | $460,000,000 | 100 | % | $460,000,000 | $53,406.00 | |||||||||||||||||
AMB Property, L.P. 2.250% Exchangeable Senior Notes due 2037(3) | $592,980,000 | 100 | % | $592,980,000 | $68,844.98 | |||||||||||||||||
AMB Property, L.P. 1.875% Exchangeable Senior Notes due 2037 (3) | $141,635,000 | 100 | % | $141,635,000 | $16,443.82 | |||||||||||||||||
AMB Property, L.P. 2.625% Exchangeable Senior Notes due 2038 (3) | $386,250,000 | 100 | % | $386,250,000 | $44,843.63 | |||||||||||||||||
AMB Property Corporation Guarantee of 5.500% Notes due April 1, 2012 (5) | (6) | (6) | (6) | (6) | ||||||||||||||||||
AMB Property Corporation Guarantee of 5.500% Notes due March 1, 2013 (5) | (6) | (6) | (6) | (6) | ||||||||||||||||||
AMB Property Corporation Guarantee of 7.625% Notes due August 15, 2014 (5) | (6) | (6) | (6) | (6) | ||||||||||||||||||
AMB Property Corporation Guarantee of 7.810% Notes due February 1, 2015 (5) | (6) | (6) | (6) | (6) | ||||||||||||||||||
AMB Property Corporation Guarantee of 9.340% Notes due March 1, 2015 (5) | (6) | (6) | (6) | (6) | ||||||||||||||||||
AMB Property Corporation Guarantee of 5.625% Notes due November 15, 2015 (5) | (6) | (6) | (6) | (6) | ||||||||||||||||||
AMB Property Corporation Guarantee of 5.750% Notes due April 1, 2016 (5) | (6) | (6) | (6) | (6) | ||||||||||||||||||
AMB Property Corporation Guarantee of 8.650% Notes due May 15, 2016 (5) | (6) | (6) | (6) | (6) | ||||||||||||||||||
AMB Property Corporation Guarantee of 5.625% Notes due November 15, 2016 (5) | (6) | (6) | (6) | (6) | ||||||||||||||||||
AMB Property Corporation Guarantee of 6.250% Notes due March 15, 2017 (5) | (6) | (6) | (6) | (6) | ||||||||||||||||||
AMB Property Corporation Guarantee of 7.625% Notes due July 1, 2017 (5) | (6) | (6) | (6) | (6) | ||||||||||||||||||
AMB Property Corporation Guarantee of 6.625% Notes due May 15, 2018 (5) | (6) | (6) | (6) | (6) | ||||||||||||||||||
AMB Property Corporation Guarantee of 7.375% Notes due October 30, 2019 (5) | (6) | (6) | (6) | (6) | ||||||||||||||||||
AMB Property Corporation Guarantee of 6.875% Notes due March 15, 2020 (5) | (6) | (6) | (6) | (6) | ||||||||||||||||||
AMB Property Corporation Guarantee of 3.250% Exchangeable Senior Notes due 2015 (5) | (6) | (6) | (6) | (6) | ||||||||||||||||||
AMB Property Corporation Guarantee of 2.250% Exchangeable Senior Notes due 2037 (5) | (6) | (6) | (6) | (6) | ||||||||||||||||||
AMB Property Corporation Guarantee of 1.875% Exchangeable Senior Notes due 2037 (5) | (6) | (6) | (6) | (6) | ||||||||||||||||||
AMB Property Corporation Guarantee of 2.625% Exchangeable Senior Notes due 2038 (5) | (6) | (6) | (6) | (6) | ||||||||||||||||||
Common Stock, $0.01 par value per share, of AMB Property Corporation (5) | 23,173,711 (7) | (7) | (7) | (7) | ||||||||||||||||||
Total | $538,037.13 | |||||||||||||||||||||
(1) | Estimated solely for the purpose of calculating the registration fee under Rule 457(f) of the Securities Act of 1933, as amended (the “Securities Act”). | |
(2) | Calculated pursuant to Rule 457(f)(2) under the Securities Act. | |
(3) | AMB Property, L.P. will be known as ProLogis, L.P. after the completion of the previously announced mergers. | |
(4) | Reflects the mandatory repayment of a portion of the principal of AMB Property, L.P. 8.650% Notes due May 15, 2016 to be made on May 15, 2011. | |
(5) | AMB Property Corporation will be known as ProLogis, Inc. after the completion of the previously announced mergers. | |
(6) | No separate consideration will be received for the guarantees. Pursuant to Rule 457(n) under the Securities Act, no separate fee is payable with respect to the guarantees being registered hereby. | |
(7) | The aggregate number of shares of common stock, par value $0.01 per share, of AMB Property Corporation issuable upon exchange in full of the AMB Property, L.P. 3.250% Exchangeable Senior Notes due 2015, AMB Property, L.P. 2.250% Exchangeable Senior Notes due 2037, AMB Property, L.P. 1.875% Exchangeable Senior Notes due 2037 and AMB Property, L.P. 2.625% Exchangeable Senior Notes due 2038 was calculated based on the maximum amount of shares of common stock issuable, as adjusted by the maximum fundamental change make-whole amounts under the terms of such exchangeable senior notes. Pursuant to Rule 416 under the Securities Act, such number of shares of common stock registered hereby shall include an indeterminable number of additional shares of common stock that may be issued in connection with stock splits, stock dividends, recapitalization and similar events. No registration fee is payable pursuant to Rule 457(i) under the Securities Act. |
The information in this prospectus is not complete and may be changed. Neither AMB Property Corporation nor AMB Property, L.P. may distribute or issue the securities being registered pursuant to this registration statement until the registration statement, as filed with the Securities and Exchange Commission (of which this prospectus is a part), is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
All Outstanding Notes of the Series Specified Below
and Solicitation of Consents to Amend the Related Indenture
Expiration Date: 9:00 a.m., New York City Time, June 3, 2011, unless extended
Series of Notes Issued by | CUSIP No. | Series of Notes to be | ||||
Aggregate | ProLogis to be Exchanged | of the ProLogis | Issued by AMB LP (Collectively, | |||
Principal | (Collectively, the “ProLogis Non-Convertible | Non-Convertible | the “AMB LP Non-Exchangeable | |||
Amount | Notes”) | Notes | Notes”)(1) | |||
$58,935,000 | 5.500% Notes due April 1, 2012 | 743410 AK8 | 5.500% Notes due April 1, 2012 | |||
$61,443,000 | 5.500% Notes due March 1, 2013 | 743410 AE2 | 5.500% Notes due March 1, 2013 | |||
$350,000,000 | 7.625% Notes due August 15, 2014 | 743410 AU6 | 7.625% Notes due August 15, 2014 | |||
$48,226,750 (2) (3) | 7.810% Notes due February 1, 2015 | 81413WAA8 | 7.810% Notes due February 1, 2015 | |||
$5,511,625 (2) (3) | 9.340% Notes due March 1, 2015 | 814138 AB9 | 9.340% Notes due March 1, 2015 | |||
$155,320,000 | 5.625% Notes due November 15, 2015 | 743410 AJ1 | 5.625% Notes due November 15, 2015 | |||
$197,758,000 | 5.750% Notes due April 1, 2016 | 743410 AL6 | 5.750% Notes due April 1, 2016 | |||
$36,402,700 (2) (4) | 8.650% Notes due May 15, 2016 | 814138 AJ2 | 8.650% Notes due May 15, 2016 | |||
$182,104,000 | 5.625% Notes due November 15, 2016 | 743410 AN2 | 5.625% Notes due November 15, 2016 | |||
$300,000,000 | 6.250% Notes due March 15, 2017 | 743410 AX0 | 6.250% Notes due March 15, 2017 | |||
$100,000,000 | 7.625% Notes due July 1, 2017 | 814138 AK9 | 7.625% Notes due July 1, 2017 | |||
$600,000,000 | 6.625% Notes due May 15, 2018 | 743410 AT9 | 6.625% Notes due May 15, 2018 | |||
$396,641,000 | 7.375% Notes due October 30, 2019 | 743410 AV4 | 7.375% Notes due October 30, 2019 | |||
$561,049,000 | 6.875% Notes due March 15, 2020 | 743410 AW2 | 6.875% Notes due March 15, 2020 |
Series of Exchangeable Notes to be | ||||||
Series of Convertible Notes Issued by | Issued by AMB LP (Collectively, | |||||
ProLogis to be Exchanged | the “AMB LP Exchangeable Notes” and, | |||||
Aggregate | (Collectively, the “ProLogis Convertible | CUSIP No. | together with the AMB LP Non- | |||
Principal | Notes” and, together with the ProLogis Non- | of the ProLogis | Exchangeable Notes, the “AMB LP | |||
Amount | Convertible Notes, the “ProLogis Notes”) | Convertible Notes | Notes”)(1) | |||
$460,000,000 | 3.250% Convertible Senior Notes due 2015 | 743410 AY8 | 3.250% Exchangeable Senior Notes due 2015 | |||
$592,980,000 | 2.250% Convertible Senior Notes due 2037 | 743410 AP7 743410 AQ5 | 2.250% Exchangeable Senior Notes due 2037 | |||
$141,635,000 | 1.875% Convertible Senior Notes due 2037 | 743410 AR3 | 1.875% Exchangeable Senior Notes due 2037 | |||
$386,250,000 | 2.625% Convertible Senior Notes due 2038 | 743410 AS1 | 2.625% Exchangeable Senior Notes due 2038 |
(1) | The AMB LP Notes will be issued by AMB LP and will be fully and unconditionally guaranteed by its parent entity and sole general partner, AMB. | |
(2) | In this prospectus, in the case of the ProLogis 7.810% 2015 Notes (as defined below), ProLogis 9.340% 2015 Notes (as defined below) and ProLogis 8.650% 2016 Notes (as defined below) (collectively, the “ProLogis Amortizing Notes” or singularly, a “ProLogis Amortizing Note”), unless stated otherwise, the aggregate principal amount and the price per principal amount refers to the current principal amount outstanding, after giving effect to the mandatory principal repayments that have been made on each ProLogis Amortizing Note, including the $4,600,300 repayment to be made on May 15, 2011 in the case of the ProLogis 8.650% 2016 Notes. | |
(3) | Such current aggregate principal amount reflects mandatory principal repayments already made in accordance with the terms of the notes. The original principal amount for the ProLogis 7.810% 2015 Notes is $74,195,000. | |
(4) | Such current aggregate principal amount reflects mandatory principal repayments already made in accordance with the terms of the notes, including the mandatory repayment of $4,600,300 to be made on May 15, 2011. |
i | ||||
ii | ||||
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59 | ||||
77 | ||||
78 | ||||
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82 | ||||
104 | ||||
119 | ||||
156 | ||||
174 | ||||
180 | ||||
206 | ||||
242 | ||||
271 | ||||
279 | ||||
308 | ||||
309 | ||||
309 | ||||
F-1 |
i
• | national, international, regional and local economic climates, | ||
• | changes in financial markets, interest rates and foreign currency exchange rates, | ||
• | increased or unanticipated competition for AMB’s and ProLogis’ properties, | ||
• | risks associated with acquisitions, | ||
• | maintenance of real estate investment trust (“REIT”) status, | ||
• | availability of financing and capital, | ||
• | changes in demand for developed properties, | ||
• | risks associated with achieving expected revenue synergies or cost savings, | ||
• | risks associated with the ability to consummate the Merger and the timing of the closing of the Merger, and | ||
• | those additional risks and factors discussed in reports filed with the SEC by AMB and ProLogis from time to time, including those discussed under the heading “Risk Factors” in their respective most recently filed reports on Forms 10-K and 10-Q. |
ii
• | Combined Annual Report of AMB and AMB LP on Form 10-K for the fiscal year ended December 31, 2010, filed on February 18, 2011, as amended by the Combined Annual Report on Form 10-K/A filed on March 10, 2011. | ||
• | AMB’s definitive proxy statement with respect to the 2011 Annual Meeting of Stockholders filed on March 23, 2011 and additional proxy materials filed on April 26, 2011. | ||
• | Combined Current Reports of AMB and AMB LP on Form 8-K, filed on February 1, 2011 and January 31, 2011. | ||
• | Item 8.01 of the Current Reports of AMB on Form 8-K, filed on April 20, 2011 and February 3, 2011. |
iii
AMB Property, L.P.
Pier 1, Bay 1
San Francisco, California 94111
Attention: Investor Relations
Telephone: (415) 394-9000
• | Annual Report on Form 10-K for the year ended December 31, 2010, filed on February 28, 2011, as amended by the Annual Report on Form 10-K/A filed on March 28, 2011. | ||
• | Proxy Statement on Schedule 14A filed March 30, 2010. | ||
• | Current Reports on Form 8-K, filed April 26, 2011, March 3, 2011, February 4, 2011, February 1, 2011 and January 31, 2011 (other than documents or portions of those documents not deemed to be filed). |
4545 Airport Way
Denver, Colorado 80239
Attention: Investor Relations
Telephone: (800) 820-0181
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1
Pursuant to the merger agreement, AMB and ProLogis will combine through a multi-step process: |
• | first, in the “ProLogis merger”, ProLogis will be reorganized into an UPREIT by merging Pumpkin LLC with and into ProLogis, with ProLogis continuing as the surviving entity and as a wholly owned subsidiary of Upper Pumpkin and an indirect wholly owned subsidiary of New Pumpkin; | ||
• | following the ProLogis merger, in the “Topco merger”, New Pumpkin will be merged with and into AMB, with AMB continuing as the surviving corporation under the name of “ProLogis, Inc.” (the ProLogis merger together with the Topco merger, the “Merger”); and | ||
• | following the Topco merger, the combined company will contribute all of the outstanding equity interests of Upper Pumpkin to AMB LP, which will be renamed “ProLogis, L.P.”, in exchange for the “issuance” of partnership units to the combined company. |
2
AMB Common Stock | ProLogis Common | Equivalent Per Share | ||||||||||
(Close) | Shares (Close) | Price | ||||||||||
January 26, 2011 | $ | 32.86 | $ | 14.70 | $ | 14.67 | ||||||
January 28, 2011 | $ | 32.93 | $ | 15.21 | $ | 14.70 | ||||||
May 2, 2011 | $ | 36.36 | $ | 16.29 | $ | 16.23 |
3
• | receipt of the requisite approvals of AMB stockholders and ProLogis shareholders; | ||
• | the approval for listing of shares of AMB common stock, AMB Series R preferred stock and AMB Series S preferred stock to be issued or reserved for issuance in connection with the Merger on the NYSE; | ||
• | the SEC having declared effective the Merger registration statement of AMB on Form S-4; | ||
• | the absence of any judgment or other legal prohibition or binding order of any court or other governmental entity prohibiting the Merger; | ||
• | the receipt of regulatory approvals required in connection with the Merger; | ||
• | the correctness of all representations and warranties made by the parties in the merger agreement and performance by the parties of their obligations under the merger agreement (subject in each case to certain materiality standards); | ||
• | the receipt of a legal opinion from tax counsel of ProLogis regarding the qualification of the ProLogis merger as a reorganization for U.S. federal income tax purposes; and | ||
• | the receipt of legal opinions from the respective tax counsels of AMB and ProLogis regarding the qualification of the Topco merger as a reorganization for U.S. federal income tax purposes and the qualification of each of the parties as a REIT. |
4
• | by mutual written consent of AMB and ProLogis; | ||
• | by either AMB or ProLogis, if the Merger is not consummated by September 30, 2011; | ||
• | by either AMB or ProLogis, if a court or other governmental entity issues a final and nonappealable order prohibiting the Merger; | ||
• | by either AMB or ProLogis, if the required approvals of either the AMB stockholders or the ProLogis shareholders are not obtained; | ||
• | by either AMB or ProLogis, if there is a breach of the representations or covenants of the other party that would result in the failure of the related closing condition to be satisfied, and such breach is not cured or is not curable by September 30, 2011; | ||
• | by either AMB or ProLogis, if the board of the other party changes its recommendation in favor of the Topco merger, in the case of the board of AMB, or the ProLogis merger or Topco merger in the case of the board of ProLogis; | ||
• | by either AMB or ProLogis, if the special meeting of the other party is not called and held as required by the merger agreement; or | ||
• | by either AMB or ProLogis, upon a material breach of the other party’s non-solicitation obligations under the merger agreement. |
5
Q: | Q: Why is AMB LP making the exchange offers and consent solicitations on behalf of the combined company? | |
A: | AMB LP is conducting the exchange offers in order to simplify the capital structure and reporting obligations of the combined company and its consolidated subsidiaries following the completion of the Merger. AMB LP is commencing the exchange offers prior to the completion of the Merger in order to achieve these benefits as soon as practicable after consummation of the Merger. The principal purpose of the consent solicitations on behalf of the combined company and the Proposed Amendments to the ProLogis Indenture is to eliminate certain covenants contained in the ProLogis Indenture that afford protection to holders of ProLogis Notes, including substantially all of the restrictive covenants, certain affirmative covenants, certain events of default and substantially all of the restrictions on the ability of ProLogis to merge, consolidate or sell all or substantially all of its properties or assets. | |
Q: | What will I receive if I tender my ProLogis Notes in the applicable exchange offers and give my consent in the consent solicitations? | |
A: | Subject to certain conditions described below, for each ProLogis Note validly tendered (and concurrent consent to the Proposed Amendments delivered) and not validly withdrawn prior to the Expiration Date and accepted for exchange, you will be eligible to receive an AMB LP Note (as designated in the table below) in a principal amount equal to the applicable exchange price of such tendered ProLogis Note that will have substantially the same terms, including interest rate, interest payment dates, redemption terms, maturity and, if applicable, exchange terms (other than the applicable initial exchange rates, dividend threshold amounts, fundamental change make-whole amounts and, in the case of the AMB LP 3.250% 2015 Exchangeable Notes, the exchange consideration), as the corresponding ProLogis Note (prior to the Proposed Amendments) for which it was exchanged. The AMB LP Notes will be issued by AMB LP and will be fully and unconditionally guaranteed by AMB, as compared with the ProLogis Notes, which were issued by ProLogis and are not guaranteed. In the case of each new AMB LP 9.340% 2015 Note and AMB LP 8.650% 2016 Note issued in exchange for a ProLogis 9.340% 2015 Note and a ProLogis 8.650% 2016 Note, respectively, the mandatory principal repayment schedule will be revised from that contained in the corresponding ProLogis Note to reflect the fact that, because previous mandatory principal repayments were not, and with respect to the principal payment to be made on May 15, 2011 with respect to the ProLogis 8.650% 2016 Notes is not expected to be, applied in accordance with their respective terms with respect to the corresponding ProLogis Note, the outstanding principal amount of each currently outstanding ProLogis 9.340% 2015 Note and ProLogis 8.650% 2016 Note is, and the AMB LP 9.340% 2015 Note and AMB LP 8.650% 2016 Note to be issued in exchange thereof will be, $1,000. For more information, see “The Exchange Offers and Consent Solicitations — ProLogis Amortizing Notes.” The AMB LP 3.250% 2015 Exchangeable Notes will be exchangeable into AMB common stock, cash or a combination of the two, at the option of AMB LP, as compared with the ProLogis 3.250% 2015 Convertible Notes, which are convertible only into ProLogis common shares and will be exchangeable only into AMB common stock after the Merger. For each ProLogis Non-Convertible Note validly tendered (and not validly withdrawn), the holder will receive (i) an exchange price equal to 100% of its principal amount plus the Non-Convertible Notes Consent Fee if it is validly tendered (and not validly withdrawn) prior to the Early Consent Date, and (ii) an exchange price equal to 97% of its principal amount if it is validly tendered (and not validly withdrawn) after the Early Consent Date and on or prior to the Expiration Date. For each ProLogis Convertible Note validly tendered (and not validly withdrawn), the holder will receive (i) an exchange price equal to 100% of its principal amount plus the Convertible Notes Consent Fee if it is validly tendered (and not validly withdrawn) prior to the Early Consent Date, and (ii) an exchange price equal to 97% of its principal amount if it is validly tendered (and not validly withdrawn) after the Early Consent Date and on or prior to the Expiration Date. If you validly tender ProLogis Notes prior to the Early Consent Date, you may validly withdraw your tender and the related consent prior to the Early Consent Date, but you will not receive the applicable cash consent fee unless you validly re-tender prior to the Early Consent Date. If you validly tender ProLogis Notes prior to the Early Consent Date, you may validly withdraw your tender after the Early Consent Date and before the Expiration Date, but you may not withdraw the related consent and you will receive the applicable cash consent fee. If you validly tender ProLogis Notes after the Early Consent Date and before |
6
the Expiration Date, you will not receive the applicable cash consent fee and you may withdraw your tender and the related consent at any time prior to the Expiration Date. | ||
Notwithstanding the foregoing, the AMB LP Notes will be issued only in denominations of $1,000 and whole multiples of $1,000 in excess thereof. See “Description of the AMB LP Non-Exchangeable Notes — General”, “Description of the AMB LP Contingent Exchangeable Notes — General” and “Description of the AMB LP 3.250% 2015 Notes — General.” The AMB LP 7.810% 2015 Notes will be issued only in denominations of $1,000 original principal amount and whole multiples of $1,000 in excess thereof. However, for each $1,000 original principal amount of AMB LP 7.810% 2015 Notes, holders will only be entitled to receive repayment of principal in an amount equal to the current principal amount outstanding under such notes, which is the amount of the unpaid principal at the time of settlement. The current principal amount of each AMB LP 7.810% 2015 Note will be $650 at the expected time of settlement. If AMB LP would otherwise be required to issue an AMB LP Note in a denomination other than $1,000 or a whole multiple of $1,000, AMB LP will, in lieu of such issuance: |
• | issue an AMB LP Note in a principal amount that has been rounded down to the nearest whole multiple of $1,000; and | ||
• | pay cash, which AMB LP refers to as “cash exchange consideration”, in an amount equal to: |
o | the difference between (i) the principal amount calculated by the applicable exchange price formula and (ii) the principal amount of the AMB LP Note actually issued in accordance with this paragraph;plus | ||
o | accrued and unpaid interest on the principal amount representing such difference to the date of the exchange. |
Tenders of ProLogis 7.810% 2015 Notes will be accepted only in original principal amounts (i.e., without giving effect to principal repayments already made) equal to $1,000 or integral multiples thereof. The applicable exchange price and consent fee will be calculated only on current principal amounts outstanding as of the settlement date. For illustrations on how the exchange price and consent fee will be calculated, see “The Exchange Offers and Consent Solicitations — ProLogis Amortizing.” | ||
The AMB LP Notes will be issued under and governed by the terms of a new AMB LP Indenture described under “The Exchange Offers and Consent Solicitations.” Except as otherwise set forth above, instead of receiving a payment for accrued interest on ProLogis Notes that you exchange, the AMB LP Notes you receive in exchange for those ProLogis Notes will accrue interest from the most recent date to which interest has been paid on those ProLogis Notes. | ||
As a holder of ProLogis Notes, you may give your consent to the Proposed Amendments to the ProLogis Indenture only by tendering your ProLogis Notes in the applicable exchange offer. You may not withhold your consent to the Proposed Amendments when you tender your ProLogis Notes in the applicable exchange offer. | ||
As described in the table below, AMB LP is offering to exchange all validly tendered and accepted notes that were issued by ProLogis with notes to be issued by AMB LP and unconditionally guaranteed by AMB. |
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Series of Notes Issued by ProLogis to be Exchanged | Series of Notes to be Issued by AMB LP (1) | |
5.500% Notes due April 1, 2012 | 5.500% Notes due April 1, 2012 | |
(the “ProLogis 5.500% 2012 Notes”) | (the “AMB LP 5.500% 2012 Notes”) | |
5.500% Notes due March 1, 2013 | 5.500% Notes due March 1, 2013 | |
(the “ProLogis 5.500% 2013 Notes”) | (the “AMB LP 5.500% 2013 Notes”) | |
7.625% Notes due August 15, 2014 | 7.625% Notes due August 15, 2014 | |
(the “ProLogis 7.625% 2014 Notes”) | (the “AMB LP 7.625% 2014 Notes”) | |
7.810% Notes due February 1, 2015 | 7.810% Notes due February 1, 2015 | |
(the “ProLogis 7.810% 2015 Notes”) | (the “AMB LP 7.810% 2015 Notes”) | |
9.340% Notes due March 1, 2015 | 9.340% Notes due March 1, 2015 | |
(the “ProLogis 9.340% 2015 Notes”) | (the “AMB LP 9.340% 2015 Notes”) | |
5.625% Notes due November 15, 2015 | 5.625% Notes due November 15, 2015 | |
(the “ProLogis 5.625% 2015 Notes”) | (the “AMB LP 5.625% 2015 Notes”) | |
5.750% Notes due April 1, 2016 | 5.750% Notes due April 1, 2016 | |
(the “ProLogis 5.750% 2016 Notes”) | (the “AMB LP 5.750% 2016 Notes”) | |
8.650% Notes due May 15, 2016 | 8.650% Notes due May 15, 2016 | |
(the “ProLogis 8.650% 2016 Notes”) | (the “AMB LP 8.650% 2016 Notes”) | |
5.625% Notes due November 15, 2016 | 5.625% Notes due November 15, 2016 | |
(the “ProLogis 5.625% 2016 Notes”) | (the “AMB LP 5.625% 2016 Notes”) | |
6.250% Notes due March 15, 2017 | 6.250% Notes due March 15, 2017 | |
(the “ProLogis 6.250% 2017 Notes”) | (the “AMB LP 6.250% 2017 Notes”) | |
7.625% Notes due July 1, 2017 | 7.625% Notes due July 1, 2017 | |
(the “ProLogis 7.625% 2017 Notes”) | (the “AMB LP 7.625% 2017 Notes”) | |
6.625% Notes due May 15, 2018 | 6.625% Notes due May 15, 2018 | |
(the “ProLogis 6.625% 2018 Notes”) | (the “AMB LP 6.625% 2018 Notes”) | |
7.375% Notes due October 30, 2019 | 7.375% Notes due October 30, 2019 | |
(the “ProLogis 7.375% 2019 Notes”) | (the “AMB LP 7.375% 2019 Notes”) | |
6.875% Notes due March 15, 2020 | 6.875% Notes due March 15, 2020 | |
(the “ProLogis 6.875% 2020 Notes” and, together with the ProLogis | (the “AMB LP 6.875% 2020 Notes” and, together with the | |
5.500% 2012 Notes, ProLogis 5.500% 2013 Notes, ProLogis 7.625% | AMB LP 5.500% 2012 Notes, AMB LP 5.500% 2013 Notes, | |
2014 Notes, ProLogis 7.810% 2015 Notes, ProLogis 9.340% 2015 | AMB LP 7.625% 2014 Notes, AMB LP 7.810% 2015 Notes, | |
Notes, ProLogis 5.625% 2015 Notes, ProLogis 5.750% 2016 Notes, | AMB LP 9.340% 2015 Notes, AMB LP 5.625% 2015 Notes, | |
ProLogis 8.650% 2016 Notes, ProLogis 5.625% 2016 Notes, | AMB LP 5.750% 2016 Notes, AMB LP 8.650% 2016 Notes, | |
ProLogis 6.250% 2017 Notes, ProLogis 7.625% 2017 Notes, | AMB LP 5.625% 2016 Notes, AMB LP 6.250% 2017 Notes, | |
ProLogis 6.625% 2018 Notes and ProLogis 7.375% 2019 Notes, the | AMB LP 7.625% 2017 Notes, AMB LP 6.625% 2018 Notes | |
“ProLogis Non-Convertible Notes” or singularly, a “ProLogis Non- | and AMB LP 7.375% 2019 Notes, the “AMB LP Non- | |
Convertible Note”) | Exchangeable Notes” or singularly, an “AMB LP Non- | |
Exchangeable Note”) | ||
3.250% Convertible Senior Notes due March 15, 2015 | 3.250% Exchangeable Senior Notes due March 15, 2015 | |
(the “ProLogis 3.250% 2015 Convertible Notes”) | (the “AMB LP 3.250% 2015 Exchangeable Notes”) | |
2.250% Convertible Senior Notes due April 1, 2037 | 2.250% Exchangeable Senior Notes due April 1, 2037 | |
(the “ProLogis 2.250% 2037 Convertible Notes”) | (the “AMB LP 2.250% 2037 Exchangeable Notes”) | |
1.875% Convertible Senior Notes due November 15, 2037 | 1.875% Exchangeable Senior Notes due November 15, 2037 | |
(the “ProLogis 1.875% 2037 Convertible Notes”) | (the “AMB LP 1.875% 2037 Exchangeable Notes”) | |
2.625% Convertible Senior Notes due May 15, 2038 | 2.625% Exchangeable Senior Notes due May 15, 2038 | |
(the “ProLogis 2.625% 2038 Convertible Notes” and, together with | (the “AMB LP 2.625% 2038 Exchangeable Notes” and, | |
the ProLogis 2.250% 2037 Convertible Notes and ProLogis 1.875% | together with the AMB LP 2.250% 2037 Exchangeable Notes | |
2037 Convertible Notes, the “ProLogis Contingent Convertible | and AMB LP 1.875% 2037 Exchangeable Notes, the “AMB LP | |
Notes” or singularly, a “ProLogis Contingent Convertible Note” and, | Contingent Exchangeable Notes” or singularly, an “AMB LP | |
together with the ProLogis 3.250% 2015 Convertible Notes, the | Contingent Exchangeable Note” and, together with the AMB | |
“ProLogis Convertible Notes” or singularly, a “ProLogis Convertible | LP 3.250% 2015 Exchangeable Notes, the “AMB LP | |
Note” and, together with the ProLogis Non-Convertible Notes, the | Exchangeable Notes” or singularly, an “AMB LP | |
“ProLogis Notes” or singularly, a “ProLogis Note”) | Exchangeable Note” and, together with the AMB LP Non- | |
Exchangeable Notes, the “AMB LP Notes” or singularly, an | ||
“AMB LP Note”) |
(1) | The AMB LP Notes will be issued by AMB LP and will be fully and unconditionally guaranteed by its parent entity and sole general partner, AMB. |
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Q: | What are the consequences of not consenting in the consent solicitations by failing to tender prior to the Early Consent Date or Expiration Date, as applicable? |
A: | Holders that fail to tender their ProLogis Non-Convertible Notes (and thereby fail to deliver valid and unrevoked consents) prior to the Early Consent Date but who do so on or prior to the Expiration Date will receive an exchange price equal to 97% of the aggregate principal amount of such tendered notes, rather than 100% of such amount, and will not receive the Non-Convertible Notes Consent Fee. Holders that fail to tender their ProLogis Convertible Notes (and thereby fail to deliver valid and unrevoked consents) prior to the Early Consent Date but who do so on or prior to the Expiration Date will receive an exchange price equal to 97% of the aggregate principal amount of such tendered notes, rather than 100% of such amount, and will not receive the Convertible Notes Consent Fee. Holders that validly tender ProLogis Notes prior to the Early Consent Date may validly withdraw their tender and the related consent prior to the Early Consent Date, but will not receive the applicable cash consent fee unless they validly re-tender prior to the Early Consent Date. Holders that validly tender ProLogis Notes prior to the Early Consent Date may validly withdraw their tender after the Early Consent Date and before the Expiration Date, but may not withdraw the related consent and will receive the applicable cash consent fee. Holders that tender ProLogis Notes after the Early Consent Date and before the Expiration Date will not receive the applicable cash consent fee and may withdraw their tender and the related consent at any time prior to the Expiration Date. | |
Q: | What are the consequences of not tendering in the applicable exchange offers? | |
A: | If the Proposed Amendments to the ProLogis Indenture have been adopted, the amendments will apply to the applicable ProLogis Notes governed by such indenture that are not validly tendered or not accepted by AMB LP in the applicable exchange offers. Thereafter, all such ProLogis Notes will be governed by the ProLogis Indenture as amended by the Proposed Amendments, which will have less restrictive terms and afford reduced protections to the holders of such securities compared to those currently in the ProLogis Indenture. See “Risk Factors — Risks Related to the Exchange Offers and Consent Solicitations — The Proposed Amendments to the ProLogis Indenture will afford reduced protection to remaining holders of ProLogis Notes.” | |
If the Requisite Consents (as defined below) are not received and the Proposed Amendments to the ProLogis Indenture are therefore not adopted, all of the ProLogis Notes will be governed by the existing ProLogis Indenture as amended by the Eleventh Supplemental Indenture and the Twelfth Supplemental Indenture. The obligor on the ProLogis Notes will continue to be ProLogis, which will continue its existence after the Merger as a wholly owned subsidiary of the combined company, rather than as an independent public company. Claims of holders of the ProLogis Notes under such ProLogis Notes, where applicable, will be permitted to be made against assets of ProLogis, in accordance with the terms of the ProLogis Indenture, and may not be made with respect to other assets of the combined company. Additionally, after the consummation of the Merger, whether or not the Requisite Consents are received, ProLogis Convertible Notes not validly tendered or not accepted by AMB LP in the applicable exchange offers will be exchangeable for AMB common stock and will no longer be convertible into ProLogis common shares. | ||
Q: | How do the ProLogis Notes differ from the AMB LP Notes to be issued in the applicable exchange offers? | |
A: | The terms of each new series of AMB LP Notes will be substantially the same as the terms, including interest rate, interest payment dates, redemption terms, maturity and, if applicable, exchange terms (other than the applicable initial exchange rates, dividend threshold amounts, fundamental change make-whole amounts and, in the case of the AMB LP 3.250% 2015 Exchangeable Notes, the exchange consideration) of the corresponding series of outstanding ProLogis Notes (prior to the Proposed Amendments) for which they are being offered in exchange. However, the AMB LP Notes will be guaranteed by AMB LP’s parent entity and sole general partner, AMB, as compared with the ProLogis Notes, which were issued by ProLogis and are not guaranteed. In the case of each new AMB LP 9.340% 2015 Note and AMB LP |
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8.650% 2016 Note issued in exchange for a ProLogis 9.340% 2015 Note and a ProLogis 8.650% 2016 Note, respectively, the mandatory principal repayment schedule will be revised from that contained in the corresponding ProLogis Note to reflect the fact that, because previous mandatory principal repayments were not, and with respect to the principal payment to be made on May 15, 2011 with respect to the ProLogis 8.650% 2016 Notes is not expected to be, applied in accordance with their respective terms with respect to the corresponding ProLogis Note, the outstanding principal amount of each currently outstanding ProLogis 9.340% 2015 Note and ProLogis 8.650% 2016 Note is, and the AMB LP 9.340% 2015 Note and AMB LP 8.650% 2016 Note to be issued in exchange thereof will be, $1,000. For more information, see “The Exchange Offers and Consent Solicitations — ProLogis Amortizing Notes.” Additionally, the applicable initial exchange rates, dividend threshold amounts and fundamental change make-whole amounts for the AMB LP Exchangeable Notes will be adjusted relative to the conversion rate of the ProLogis Convertible Notes to account for differences in the value of shares of AMB common stock and ProLogis common shares. In addition, what the holder will receive upon exchange of the AMB LP Exchangeable Notes will change and the AMB LP 3.250% 2015 Exchangeable Notes will be exchangeable under certain circumstances into AMB common stock, cash or a combination of the two, at the option of AMB LP, as compared with the ProLogis 3.250% 2015 Convertible Notes, which are convertible only into ProLogis common shares and will be exchangeable only into AMB common stock after the Merger. The ProLogis Indenture, without taking into effect the adoption of the Proposed Amendments, and the new AMB LP Indenture will be substantially the same, except that, among other things: |
• | the new AMB LP Indenture will include the guarantees by AMB, | ||
• | the new AMB LP Indenture will not have a restriction preventing incurrence of additional unsecured debt by AMB LP’s subsidiaries, | ||
• | the definition of debt will be revised to limit the amount of secured debt to include the lesser of the amount of secured debt or the fair market value of the property that secures such debt and to include letters of credit only to the extent called, | ||
• | the financial reporting obligations will be revised to include AMB, | ||
• | the AMB LP Exchangeable Notes will be exchangeable into AMB common stock and no longer convertible into ProLogis common shares, | ||
• | the applicable initial exchange rates, dividend threshold amounts and fundamental change make-whole amounts of the AMB LP Exchangeable Notes will change, and | ||
• | the AMB LP 3.250% 2015 Exchangeable Notes will be exchangeable into AMB common stock, cash or a combination of the two, at the option of AMB LP. |
Additionally, after the consummation of the Merger, whether or not the Requisite Consents are received, ProLogis Convertible Notes not validly tendered or not accepted by AMB LP in the applicable exchange offers will be exchangeable for AMB common stock and will no longer be convertible into ProLogis common shares. | ||
Q: | How will the ProLogis Notes differ if the Proposed Amendments to the ProLogis Indenture are adopted? | |
A: | After giving effect to the Merger, the outstanding ProLogis Notes that are not validly tendered or not accepted by AMB LP will continue to be governed by the ProLogis Indenture. The Proposed Amendments to the existing ProLogis Indenture will: |
(i) | delete in their entirety Section 501(5), which addresses cross-acceleration, and Section 501(6), which addresses judgment default of the Base ProLogis Indenture and certain related cross-references and defined terms (collectively, the “Original Events of Default Amendments”); |
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(ii) | delete in their entirety the provisions addressing conditions to mergers, sales, leases and conveyances set forth in Article Eight (Consolidation, Merger, Sale, Lease or Conveyance) of the Base ProLogis Indenture and certain related cross-references and defined terms; | ||
(iii) | delete in its entirety Section 1006 (Maintenance of Properties) of the Base ProLogis Indenture and certain related cross-references and defined terms (collectively, the “Maintenance of Properties Amendments”); | ||
(iv) | delete in its entirety Section 1007 (Insurance) of the Base ProLogis Indenture and certain related cross-references and defined terms (collectively, the “Insurance Amendments”); | ||
(v) | delete in its entirety Section 1008 (Payment of Taxes and Other Claims) of the Base ProLogis Indenture and certain related cross-references and defined terms; | ||
(vi) | delete in their entirety the financial reporting obligations set forth in Section 1009 (Provision of Financial Information) of the Base ProLogis Indenture (the “Original Financial Information Provision”) and certain related cross-references and defined terms (collectively, the “Original Financial Information Amendments”), which are applicable to the ProLogis 9.340% 2015 Notes, ProLogis 8.650% 2016 Notes, ProLogis 7.810% 2015 Notes, ProLogis 7.625% 2017 Notes and ProLogis 5.500% 2013 Notes issued under the ProLogis Indenture prior to the execution of the Second Supplemental Indenture (as defined below) (collectively, the “Original Financial Information Securities”); | ||
(vii) | delete in their entirety the amended financial reporting obligations set forth in Section 2.2 (Provision of Financial Information) of the Second Supplemental Indenture (the “Second Supplemental Indenture”), dated as of November 2, 2005, between ProLogis and the Trustee, and certain related cross-references and defined terms; | ||
(viii) | delete in their entirety the amended financial reporting obligations set forth in Section 2.2 (Provision of Financial Information) of the Seventh Supplemental Indenture (the “Seventh Supplemental Indenture”), dated as of May 7, 2008, between ProLogis and the Trustee, and certain related cross-references and defined terms; | ||
(ix) | delete in their entirety (a) the amended debt incurrence restrictions set forth in Section 2.1 (Limitations on Incurrence of Debt) and (b) the cross-acceleration and judgment default provisions from the events of default set forth in Section 2.2 (Events of Default) of the Eighth Supplemental Indenture (the “Eighth Supplemental Indenture”), dated as of August 14, 2009, between ProLogis and the Trustee, and certain related cross-references and defined terms; | ||
(x) | delete in their entirety (a) the amended debt incurrence restrictions set forth in Section 2.1 (Limitations on Incurrence of Debt) and (b) the cross-acceleration and judgment default provisions from the events of default set forth in Section 2.2 (Events of Default) of the Ninth Supplemental Indenture (the “Ninth Supplemental Indenture”), dated as of October 1, 2009, between ProLogis and the Trustee, and certain related cross-references and defined terms; | ||
(xi) | delete in their entirety (a) the reference to Section 1008 of the Base ProLogis Indenture in Section 4.05 (Exclusion of Certain Provisions From Base Indenture), (b) the reference to Section 1009 of the Base ProLogis Indenture in Section 4.05 (Exclusion of Certain Provisions From Base Indenture) and (c) Section 7.01 (Company May Consolidate, Etc. on Certain Terms) from each of the Fourth Supplemental Indenture (the “Fourth Supplemental Indenture”), dated as of March 26, 2007, the Fifth Supplemental Indenture (the “Fifth Supplemental Indenture”), dated as of November 8, 2007, the Sixth Supplemental Indenture (the “Sixth Supplemental Indenture”), dated as of May 7, 2008 and the Tenth Supplemental Indenture (the “Tenth Supplemental Indenture”), dated as of March 16, 2010, each between ProLogis and the Trustee (collectively, the “ProLogis |
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Convertible Notes Supplemental Indentures” or singularly, a “ProLogis Convertible Notes Supplemental Indenture”), and certain related cross-references and defined terms; | |||
(xii) | delete in their entirety the references to Section 501(5) (as amended by the Second Supplemental Indenture) and Section 501(6) (as amended by the Second Supplemental Indenture) of the Base ProLogis Indenture in Section 5.01 (Events of Default) of the Fourth Supplemental Indenture, the Fifth Supplemental Indenture and the Sixth Supplemental Indenture and certain related cross-references and defined terms (the “Contingent Convertible Notes Events of Default Amendments”); and | ||
(xiii) | delete in their entirety the references to Section 501(5) (as amended by the Ninth Supplemental Indenture) and Section 501(6) (as amended by the Ninth Supplemental Indenture) of the Base ProLogis Indenture in Section 5.01 (Events of Default) of the Tenth Supplemental Indenture and certain related cross-references and defined terms. |
For ease of reference, |
• | the proposed amendments described in clauses (ii) and (xi)(c) of the immediately preceding sentence are referred to herein as the “Merger Restriction Amendments”; | ||
• | the proposed amendments described in clauses (vii), (viii) and (xi)(b) of the immediately preceding sentence are referred to herein as the “Financial Information Amendments”; | ||
• | the proposed amendments described in clauses (v) and (xi)(a) of the immediately preceding sentence are referred to herein as the “Payment of Taxes and Other Claims Amendments”; | ||
• | the proposed amendments described in clauses (ix)(a) and (x)(a) of the immediately preceding sentence are referred to herein as the “Incurrence of Debt Amendments”; and | ||
• | the proposed amendments described in clauses (ix)(b), (x)(b) and (xiii) of the immediately preceding sentence are referred to herein as the “Events of Default Amendments.” |
The Original Events of Default Amendments, the Events of Default Amendments, the Contingent Convertible Notes Events of Default Amendments, the Merger Restriction Amendments, the Incurrence of Debt Amendments, the Maintenance of Properties Amendments, the Insurance Amendments, the Payment of Taxes and Other Claims Amendments, the Original Financial Information Amendments and the Financial Information Amendments are collectively referred to herein as the “Proposed Amendments.” For a description of the Proposed Amendments, see “The Proposed Amendments.” | ||
Pursuant to Section 3(g) of the Amended and Restated Security Agency Agreement (as amended, the “Security Agency Agreement”) dated as of October 6, 2005 among ProLogis, Bank of America, N.A., as collateral agent, and certain other creditors of ProLogis, Bank of America, N.A., as collateral agent thereunder, may, without the consent of the holders of the ProLogis Notes, release any collateral pledged pursuant to any Security Document, so long as such release does not violate any other agreement of ProLogis. Upon or following the effectiveness of the Thirteenth Supplemental Indenture, ProLogis intends to cause Bank of America, N.A., in its capacity as collateral agent, to release all collateral under the Security Documents. Following such release, the obligations of ProLogis under the ProLogis Notes would not be secured by any collateral. | ||
In addition, pursuant to Section 8(e) of the Security Agency Agreement, ProLogis may, upon not less than 90 days notice after disclosing such revocation (in a footnote or otherwise) in a Form 10-Q or 10-K filed with the SEC (but in no event before the earlier of (i) August 21, 2012 and (ii) the date on which the main revolving credit facility of ProLogis terminates), without the consent of the holders of the ProLogis Notes, revoke the status of the ProLogis Indenture as a “DSD Agreement” under the Security Agency Agreement and revoke the classification of the ProLogis Notes as “Other DS Debt” thereunder. Upon any such |
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revocation, the holders of the ProLogis Notes would cease to have any rights under the Security Agency Agreement. Upon or following the closing of the Merger, ProLogis intends to terminate its main revolving credit facility and revoke the status of the ProLogis Indenture and the ProLogis Notes as a “DSD Agreement” and “Other DS Debt,” respectively. Upon such revocation, the benefits of the security and sharing arrangements afforded to the holders of the ProLogis Notes pursuant to the Security Documents would be eliminated. Such revocation may occur before or after the release of the collateral described above. | ||
The elimination of certain covenants contained in the ProLogis Indenture that afford protection to holders of ProLogis Notes, including substantially all of the restrictive covenants, certain affirmative covenants, certain events of default and substantially all of the restrictions on the ability of ProLogis to merge, consolidate or sell all or substantially all of its properties or assets, permit ProLogis and its subsidiaries to take actions that could be adverse to the interests of the holders of the outstanding ProLogis Notes. See “Description of the Differences Between the AMB LP Notes and the ProLogis Notes”, “The Exchange Offers and Consent Solicitations”, “The Proposed Amendments”, “Description of the AMB LP Non-Exchangeable Notes”, “Description of the AMB LP Contingent Exchangeable Notes” and “Description of the AMB LP 3.250% 2015 Notes.” | ||
The AMB LP Notes, which will be fully and unconditionally guaranteed by AMB, will be AMB LP’s direct, unsecured and unsubordinated obligations and will rankpari passuwith all of AMB LP’s other unsecured and unsubordinated indebtedness outstanding from time to time. As of December 31, 2010, AMB’s unsecured senior debt securities, unsecured credit facilities and other senior debt totaled approximately $2.4 billion on a consolidated basis. AMB’s guarantee of the AMB LP Notes will rankpari passuin right of payment with all of AMB’s unsecured and unsubordinated indebtedness, including AMB’s indebtedness for borrowed money, indebtedness evidenced by bonds, debentures, notes or similar instruments, obligations arising from or with respect to guarantees and direct credit substitutes, obligations associated with hedges and derivative products, capitalized lease obligations and other senior indebtedness. In addition, the guarantee of the AMB LP Notes by AMB will be effectively subordinated to all of the mortgages and other secured indebtedness of AMB and all of the secured and unsecured indebtedness and other liabilities of its subsidiaries, other than AMB LP. | ||
Q: | What consents are required to effect the Proposed Amendments to the ProLogis Indenture and consummate the exchange offers? | |
A: | The ProLogis Indenture provides that ProLogis and the Trustee may amend, supplement or modify the ProLogis Indenture by entering into a supplemental indenture with the consent of holders of not less than a majority in principal amount of all outstanding securities affected by such supplemental indenture. Accordingly, approval of each of the Proposed Amendments in the table below requires the receipt of valid unrevoked consents from holders of not less than a majority in principal amount of the notes entitled to cast a consent for such Proposed Amendment. The far right column in the table below provides the defined term for the receipt of such requisite consents for each of the Proposed Amendments. The table below also provides the amounts of debt outstanding for each voting class as of the date of this prospectus. | |
Depending on the series of ProLogis Notes you hold, you will be entitled to cast your consent for the Proposed Amendments in the table below marked with an “X”, but will not be allowed to cast a consent for the Proposed Amendments marked with a “—”. | ||
Holders must provide consents to all of the Proposed Amendments applicable to a particular series of notes or none of them. A consent purporting to consent only to some of the Proposed Amendments (or any portion thereof) will not be valid (unless AMB LP waives the defect in such consent). |
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ProLogis Notes | ||||||||||||||||||||||||||||||||||||||
($4,634,256,075) | ||||||||||||||||||||||||||||||||||||||
ProLogis Convertible | ||||||||||||||||||||||||||||||||||||||
ProLogis Non-Convertible Notes ($3,053,391,075) | Notes ($1,580,865,000) | |||||||||||||||||||||||||||||||||||||
ProLogis Contingent | ||||||||||||||||||||||||||||||||||||||
Original Financial | Convertible | |||||||||||||||||||||||||||||||||||||
Information Securities | Notes | |||||||||||||||||||||||||||||||||||||
($251,584,075) | ($2,801,807,000) | ($1,120,865,000) | ||||||||||||||||||||||||||||||||||||
ProLogis | ProLogis | ProLogis | ProLogis | ProLogis | ProLogis | ProLogis | ProLogis | ProLogis | ProLogis | ProLogis | ProLogis | ProLogis | ProLogis | ProLogis 2.625% | ProLogis 2.250% | ProLogis 1.875% | ProLogis 3.250% | |||||||||||||||||||||
9.340% | 8.650% | 7.810% | 7.625% | 5.500% | 5.500% | 7.625% | 5.625% | 5.750% | 5.625% | 6.250% | 6.625% | 7.375% | 6.875% | 2038 | 2037 | 2037 | 2015 | |||||||||||||||||||||
Proposed | 2015 | 2016 | 2015 | 2017 | 2013 | 2012 | 2014 | 2015 | 2016 | 2016 | 2017 | 2018 | 2019 | 2020 | Convertible | Convertible | Convertible | Convertible | Definition of | |||||||||||||||||||
Amendment | Notes | Notes | Notes | Notes | Notes | Notes | Notes | Notes | Notes | Notes | Notes | Notes | Notes | Notes | Notes | Notes | Notes | Notes ($460,000,000) | Requisite Consent | |||||||||||||||||||
Original Events of Default Amendments | X | X | X | X | X | X | X | X | X | X | X | X | X | X | X | X | X | X | “Original Events of Default Amendments Requisite Consent” | |||||||||||||||||||
Events of Default Amendments | X | X | X | X | X | X | X | X | X | X | X | X | X | X | — | — | — | X | “Events of Default Amendments Requisite Consent” | |||||||||||||||||||
Contingent Convertible Notes Events of Default Amendments | — | — | — | — | — | — | — | — | — | — | — | — | — | — | X | X | X | — | “Contingent Convertible Notes Events of Default Amendments Requisite Consent” | |||||||||||||||||||
Merger Restriction Amendments | X | X | X | X | X | X | X | X | X | X | X | X | X | X | X | X | X | X | “Merger Restriction Amendments Requisite Consent” | |||||||||||||||||||
Incurrence of Debt Amendments | X | X | X | X | X | X | X | X | X | X | X | X | X | X | — | — | — | — | “Incurrence of Debt Amendments Requisite Consent” | |||||||||||||||||||
Maintenance of Properties Amendments | X | X | X | X | X | X | X | X | X | X | X | X | X | X | — | — | — | — | “Maintenance of Properties Amendments Requisite Consent” | |||||||||||||||||||
Insurance Amendments | X | X | X | X | X | X | X | X | X | X | X | X | X | X | — | — | — | — | “Insurance Amendments Requisite Consent” | |||||||||||||||||||
Payment of Taxes and Other Claims Amendments | X | X | X | X | X | X | X | X | X | X | X | X | X | X | X | X | X | X | “Payment of Taxes and Other Claims Amendments Requisite Consent” | |||||||||||||||||||
Original Financial Information Amendments | X | X | X | X | X | X | X | X | X | X | X | X | X | X | X | X | X | X | “Original Financial Information Amendments Requisite Consent” | |||||||||||||||||||
Financial Information Amendments | — | — | — | — | — | X | X | X | X | X | X | X | X | X | X | X | X | X | “Financial Information Amendments Requisite Consent” |
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The Original Events of Default Amendments Requisite Consent, Events of Default Amendments Requisite Consent, Contingent Convertible Notes Events of Default Amendments Requisite Consent, Merger Restriction Amendments Requisite Consent, Incurrence of Debt Amendments Requisite Consent, Maintenance of Properties Amendments Requisite Consent, Insurance Amendments Requisite Consent, Payment of Taxes and Other Claims Amendments Requisite Consent, Original Financial Information Amendments Requisite Consent and Financial Information Amendments Requisite Consent are collectively referred to herein as the “Requisite Consents.” The Requisite Consent for each of the Proposed Amendments must be received by the Expiration Date in order to amend the ProLogis Indenture to reflect such Proposed Amendment. | ||
The consent solicitation is being made on behalf of the combined company upon the terms and is subject to the conditions set forth herein and the related letter of transmittal. AMB LP reserves the right to accept consents on behalf of the combined company to effect any of the Original Events of Default Amendments, the Events of Default Amendments, the Contingent Convertible Notes Events of Default Amendments, the Merger Restriction Amendments, the Incurrence of Debt Amendments, the Maintenance of Properties Amendments, the Insurance Amendments, the Payment of Taxes and Other Claims Amendments, the Original Financial Information Amendments and the Financial Information Amendments or any combination thereof, to the extent that AMB LP has received the applicable Original Events of Default Amendments Requisite Consent, Events of Default Amendments Requisite Consent, Contingent Convertible Notes Events of Default Amendments Requisite Consent, Merger Restriction Amendments Requisite Consent, Incurrence of Debt Amendments Requisite Consent, Maintenance of Properties Amendments Requisite Consent, Insurance Amendments Requisite Consent, Payment of Taxes and Other Claims Amendments Requisite Consent, Original Financial Information Amendments Requisite Consent and Financial Information Amendments Requisite Consent, as the case may be, even if AMB LP has not obtained each of the other Requisite Consents necessary to effect all of the Proposed Amendments. | ||
Q: | What is the completion of the exchange offers and consent solicitations conditioned upon? | |
A: | AMB LP’s obligations to complete the exchange offers and consent solicitations on behalf of the combined company are conditioned upon, among other things, (i) receipt of Requisite Consents sufficient to effect the Proposed Amendments, (ii) listing of AMB LP’s existing 6.750% Notes due 2011 on the NYSE and (iii) the consummation of the Merger, although AMB LP may, at its option, waive any condition with respect to the exchange offers and consent solicitations. For information about other conditions to AMB LP’s obligations to complete the exchange offers and consent solicitations, see “The Exchange Offers and Consent Solicitations — Conditions to the Exchange Offers and Consent Solicitations.” | |
Q: | Will AMB LP accept consents on behalf of the combined company to the Proposed Amendments without holders tendering their corresponding ProLogis Notes? | |
A: | No. As a holder of ProLogis Notes, you may give your consent to the Proposed Amendments to the ProLogis Indenture only by tendering your ProLogis Notes of a series governed by the ProLogis Indenture in one of the aforementioned exchange offers. If you validly tender ProLogis Notes prior to the Early Consent Date, you may validly withdraw your tender and the related consent prior to the Early Consent Date. If you validly tender ProLogis Notes prior to the Early Consent Date, you may validly withdraw your tender after the Early Consent Date and before the Expiration Date, but you may not withdraw the related consent. If you tender ProLogis Notes after the Early Consent Date and before the Expiration Date you may withdraw your tender and the related consent at any time prior to the Expiration Date. | |
Q: | Will AMB LP accept all tenders of ProLogis Notes? | |
A: | Subject to the satisfaction or waiver of the conditions to the exchange offers, AMB LP will accept for exchange any and all ProLogis Notes that (i) have been validly tendered in the applicable exchange offers before the Expiration Date and (ii) have not been validly withdrawn before the Expiration Date. |
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Q: | When will AMB LP issue new AMB LP Notes and pay cash exchange consideration (as applicable)? | |
A: | Assuming the conditions to the exchange offers, including the consummation of the Merger, are satisfied or waived, AMB LP will issue new AMB LP Notes in book-entry form through The Depositary Trust Company (“DTC”) and pay cash exchange consideration (as applicable) promptly after the Expiration Date in exchange for ProLogis Notes that are validly tendered (and not validly withdrawn) before the Expiration Date and that are accepted for exchange. | |
Q: | When will the Proposed Amendments to the ProLogis Indenture become effective? | |
A: | If AMB LP receives the Requisite Consents, the Proposed Amendments to the ProLogis Indenture will be entered into and become effective when AMB LP settles the exchange offers, which AMB LP expects to occur promptly after the Expiration Date. This assumes that all other conditions of the exchange offers and consent solicitations are satisfied or waived, as applicable. | |
Q: | When will the exchange offers expire? | |
A: | Each exchange offer will expire at 9:00 a.m., New York City time, on June 3, 2011, unless AMB LP, in its sole discretion, extends such exchange offer, in which case the Expiration Date will be the latest date and time to which such exchange offer is extended. AMB LP intends to extend the Expiration Date if needed so that it will occur after the Merger is closed. See “The Exchange Offers and Consent Solicitations — Expiration Date; Extensions; Amendments.” | |
Q: | What are my rights if I change my mind after I tender my ProLogis Notes and deliver my consent? | |
A: | You may withdraw tendered ProLogis Notes at any time prior to the Expiration Date. Holders that validly tender ProLogis Notes prior to the Early Consent Date may validly withdraw their tender and the related consent prior to the Early Consent Date. Holders that validly tender ProLogis Notes prior to the Early Consent Date may validly withdraw their tender after the Early Consent Date and before the Expiration Date, but may not withdraw the related consent. Holders that tender ProLogis Notes after the Early Consent Date and before the Expiration Date may withdraw their tender and the related consent at any time prior to the Expiration Date. | |
Once withdrawal rights have expired on the Expiration Date, tenders of ProLogis Notes may not be validly withdrawn unless AMB LP is otherwise required by law to permit withdrawal. In the event of termination of an exchange offer, the ProLogis Notes tendered pursuant to such exchange offer will be promptly returned to the tendering holders. See “The Exchange Offers and Consent Solicitations — Procedures for Consenting and Tendering — Withdrawal of Tenders and Revocation of Corresponding Consents.” | ||
Q: | How do I exchange my ProLogis Notes if I am a beneficial owner of ProLogis Notes held of record by a custodian bank, depositary, broker, trust company or other nominee? Will the record holder exchange my ProLogis Notes for me? | |
A: | Currently, all of the ProLogis Notes are held in book-entry form and can only be tendered through the applicable procedures of DTC. However, if any ProLogis Notes are subsequently issued in certificated form and are held of record by a custodian bank, depositary, broker, trust company or other nominee and you wish to tender the securities in the applicable exchange offers, you should contact that institution promptly and instruct the institution to tender on your behalf. The record holder will tender your notes on your behalf, but only if you instruct the record holder to do so. See “The Exchange Offers and Consent Solicitations — Procedures for Consenting and Tendering — ProLogis Notes Held Through a Nominee.” |
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Q: | Do I have the right to dissent from the exchange offers or the consent solicitations or seek appraisal of the ProLogis Notes I hold? | |
A: | Holders of ProLogis Notes do not have any appraisal or dissenters’ rights under New York law, the law governing the ProLogis Indenture, or under the terms of the ProLogis Indenture in connection with the exchange offers and consent solicitations. | |
Q: | What effect will the Merger have on conversion rights with respect to any ProLogis Convertible Notes that I hold? | |
A: | Pursuant to their terms, upon consummation of the Merger, the ProLogis Convertible Notes will become exchangeable into shares of AMB common stock, rather than being convertible into ProLogis common shares, and ProLogis and the Trustee will be required to enter into a supplemental indenture to effect such change. After the consummation of the Merger, pursuant to Section 8.06 of each of the ProLogis Convertible Notes Supplemental Indentures, New Pumpkin, ProLogis and the Trustee will execute an Eleventh Supplemental Indenture (the “Eleventh Supplemental Indenture”) in connection with the ProLogis merger and shortly thereafter AMB, ProLogis and the Trustee will execute a Twelfth Supplemental Indenture (the “Twelfth Supplemental Indenture”) in connection with the Topco merger. Each of the Eleventh Supplemental Indenture and the Twelfth Supplemental Indenture will provide for the conversion and settlement of the ProLogis Convertible Notes as set forth in the ProLogis Convertible Notes Supplemental Indentures, and for certain adjustments to the initial exchange rate, dividend threshold amounts, contingent exchange trigger prices and fundamental change make-whole amounts to account for the Merger. Additionally, each of the Eleventh Supplemental Indenture and Twelfth Supplemental Indenture will provide for adjustments as nearly equivalent as may be practicable to the adjustments provided in Article VIII of each of the ProLogis Convertible Notes Supplemental Indentures. The Twelfth Supplemental Indenture will provide for adjustments to account for differences in the value of shares of AMB common stock and ProLogis common shares and for differences in the dividend thresholds of AMB and ProLogis. The initial exchange rate, dividend threshold amounts, contingent exchange trigger prices and fundamental change make-whole amounts will be adjusted as described herein and in the Eleventh Supplemental Indenture and the Twelfth Supplemental Indenture. The ProLogis Indenture, as so amended by the Eleventh Supplemental Indenture and the Twelfth Supplemental Indenture, will govern any ProLogis Convertible Notes that are not tendered and accepted in the exchange offers. Other than such adjustments, the consummation of the Merger will not confer any additional or different conversion or exchange rights to holders of the ProLogis Convertible Notes. See “Description of the Differences Between the AMB LP Notes and the ProLogis Notes” for adjustments to the original initial conversion rates, dividend threshold amounts, contingent exchange trigger prices and fundamental change make-whole amounts of the ProLogis Convertible Notes. | |
Holders of ProLogis 3.250% 2015 Convertible Notes will have the right to convert their notes into ProLogis common shares at any time prior to the consummation of the Merger, at a rate of 57.8503 ProLogis common shares (subject to adjustment by ProLogis as provided in Section 8.04 of the Tenth Supplemental Indenture) per $1,000 principal amount of the ProLogis 3.250% 2015 Convertible Notes. | ||
Holders of ProLogis 3.250% 2015 Convertible Notes will have the right to exchange their notes for shares of AMB common stock at any time during the period beginning upon the consummation of the Merger and ending at the close of business on the trading day immediately preceding March 15, 2015, the final maturity date of the ProLogis 3.250% 2015 Convertible Notes, at a rate of 25.8244 shares of AMB common stock (subject to adjustment by AMB LP as provided in Section 8.04 of the Tenth Supplemental Indenture, as amended) per $1,000 principal amount of the ProLogis 3.250% 2015 Convertible Notes. | ||
Holders of ProLogis Contingent Convertible Notes will have the right to convert their notes, at the applicable rate described below, into ProLogis common shares at any time from the fifteenth calendar day prior the date announced by ProLogis as the anticipated effective date of the Merger to the effective date of the Merger, and then will have the right to exchange their notes, at the applicable rate described below, into AMB common stock at any time from the effective date of the Merger to and including the date that is fifteen calendar days after the date that is the effective date of the Merger. ProLogis will give notice to all |
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record holders of ProLogis Contingent Convertible Notes and the Trustee, and ProLogis will issue a press release at least 20 calendar days prior to the anticipated effective date of the Merger. | ||
As described in the paragraph above, holders of ProLogis Contingent Convertible Notes will have the right, at such holder’s option, to convert all or any portion of such notes prior to the consummation of the Merger at a rate of: |
• | ProLogis 2.250% 2037 Convertible Notes: |
o | 13.1614 ProLogis common shares (subject to adjustment by ProLogis as provided in Section 8.04 of the Fourth Supplemental Indenture) per $1,000 principal amount of the ProLogis 2.250% 2037 Convertible Notes. |
• | ProLogis 1.875% 2037 Convertible Notes: |
o | 12.2926 ProLogis common shares (subject to adjustment by ProLogis as provided in Section 8.04 of the Fifth Supplemental Indenture) per $1,000 principal amount of the ProLogis 1.875% 2037 Convertible Notes. |
• | ProLogis 2.625% 2038 Convertible Notes: |
o | 13.1203 ProLogis common shares (subject to adjustment by ProLogis as provided in Section 8.04 of the Sixth Supplemental Indenture) per $1,000 principal amount of the ProLogis 2.625% 2038 Convertible Notes. |
Further, holders of ProLogis Contingent Convertible Notes will have the right, at such holder’s option, to exchange all or any portion of such notes following the consummation of the Merger at a rate of: |
• | ProLogis 2.250% 2037 Convertible Notes: |
o | 5.8752 shares of AMB common stock (subject to adjustment by AMB LP as provided in Section 8.04 of the Fourth Supplemental Indenture, as amended) per $1,000 principal amount of the ProLogis 2.250% 2037 Convertible Notes. |
• | ProLogis 1.875% 2037 Convertible Notes: |
o | 5.4874 shares of AMB common stock (subject to adjustment by AMB LP as provided in Section 8.04 of the Fifth Supplemental Indenture, as amended) per $1,000 principal amount of the ProLogis 1.875% 2037 Convertible Notes. |
• | ProLogis 2.625% 2038 Convertible Notes: |
o | 5.8569 shares of AMB common stock (subject to adjustment by AMB LP as provided in Section 8.04 of the Sixth Supplemental Indenture, as amended) per $1,000 principal amount of the ProLogis 2.625% 2038 Convertible Notes. |
Q: | Will the AMB LP Notes be eligible for trading on an exchange? | |
A: | The AMB LP Notes will not be listed on any securities exchange and there can be no assurance as to the development or liquidity of any market for the AMB LP Notes. See “Risk Factors — Risks Related to the AMB LP Notes — Your ability to transfer the AMB LP Notes may be limited by the absence of a trading market.” |
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Q: | To whom should I direct any questions? | |
A: | Questions concerning the terms of the exchange offers or the consent solicitations should be directed to the dealer managers; contact information for the dealer managers is set forth on the back cover of this prospectus. Questions concerning tender procedures and requests for additional copies of this prospectus should be directed to the information agent. The address and telephone numbers of the information agent are also set forth on the back cover page of this prospectus. |
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Exchange Offers | AMB LP is hereby offering to exchange, upon the terms and conditions set forth in this prospectus and the related letter of transmittal, each series of outstanding ProLogis Notes listed on the front cover of this prospectus, for newly issued series of AMB LP Notes with substantially the same terms, including interest rate, interest payment dates, redemption terms, maturity and, if applicable, exchange terms (other than the applicable initial exchange rates, dividend threshold amounts, fundamental change make-whole amounts and, in the case of the AMB LP 3.250% 2015 Exchangeable Notes, the exchange consideration), as the corresponding series of ProLogis Notes (prior to the Proposed Amendments) for which it is offered in exchange. The AMB LP Notes will be issued by AMB LP and fully and unconditionally guaranteed by its parent and sole general partner, AMB, as compared with the ProLogis Notes, which were issued by ProLogis and are not guaranteed. In the case of each new AMB LP 9.340% 2015 Note and AMB LP 8.650% 2016 Note issued in exchange for a ProLogis 9.340% 2015 Note and a ProLogis 8.650% 2016 Note, respectively, the mandatory principal repayment schedule will be revised from that contained in the corresponding ProLogis Note to reflect the fact that, because previous mandatory principal repayments were not, and with respect to the principal payment to be made on May 15, 2011 with respect to the ProLogis 8.650% 2016 Notes is not expected to be, applied in accordance with their respective terms with respect to the corresponding ProLogis Note, the outstanding principal amount of each currently outstanding ProLogis 9.340% 2015 Note and ProLogis 8.650% 2016 Note is, and the AMB LP 9.340% 2015 Note and AMB LP 8.650% 2016 Note to be issued in exchange thereof will be, $1,000. The AMB LP 3.250% 2015 Exchangeable Notes will be exchangeable into AMB common stock, cash or a combination of the two, at the option of AMB LP, as compared with the ProLogis 3.250% 2015 Convertible Notes, which are convertible only into ProLogis common shares and will be exchangeable only into AMB common stock after the Merger. Thus, all of the AMB LP Exchangeable Notes are exchangeable into cash, AMB common stock or a combination of cash and AMB common stock, at AMB LP’s election. See “The Exchange Offers and Consent Solicitations — Terms of the Exchange Offers and Consent Solicitations” and “— ProLogis Amortizing Notes.” | |
Consent Solicitations | AMB LP is soliciting consents on behalf of the combined company to the Proposed Amendments of the ProLogis Indenture from holders of the ProLogis Notes upon the terms and conditions set forth in this prospectus and the related letter of transmittal. You may not tender your ProLogis Notes for exchange without delivering a consent to the Proposed Amendments to the ProLogis Indenture. See “The Exchange Offers and Consent Solicitations — Terms of the Exchange Offers and Consent Solicitations.” | |
The Proposed Amendments | If the Requisite Consents to amend the ProLogis Indenture are obtained, the indenture amendments will eliminate certain covenants contained in the ProLogis Indenture that afford protection to holders of ProLogis Notes, including substantially all of the restrictive covenants, certain affirmative covenants, certain events of default and substantially all of the restrictions on the ability of ProLogis to merge, consolidate or sell all or substantially all of its properties or assets. See “The Proposed Amendments.” |
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Requisite Consents | The Requisite Consents collectively refer to: | |
(i) the receipt of valid unrevoked consents from holders of not less than a majority in principal amount of all of the outstanding ProLogis Notes voting as a single class, with respect to the Original Events of Default Amendments; | ||
(ii) the receipt of valid unrevoked consents from holders of not less than a majority in principal amount of all of the outstanding ProLogis Non-Convertible Notes and the ProLogis 3.250% 2015 Convertible Notes voting as a single class, with respect to the Events of Default Amendments; | ||
(iii) the receipt of valid unrevoked consents from holders of not less than a majority in principal amount of all of the outstanding ProLogis Contingent Convertible Notes, which are comprised of the ProLogis 2.625% 2038 Convertible Notes, the ProLogis 2.250% 2037 Convertible Notes and the ProLogis 1.875% 2037 Convertible Notes, voting as a single class, with respect to the Contingent Convertible Notes Events of Default Amendments; | ||
(iv) the receipt of valid unrevoked consents from holders of not less than a majority in principal amount of all of the outstanding ProLogis Notes voting as a single class, with respect to the Merger Restriction Amendments; | ||
(v) the receipt of valid unrevoked consents from holders of not less than a majority in principal amount of all of the outstanding ProLogis Non-Convertible Notes voting as a single class, with respect to the Incurrence of Debt Amendments; | ||
(vi) the receipt of valid unrevoked consents from holders of not less than a majority in principal amount of all of the outstanding ProLogis Non-Convertible Notes voting as a single class, with respect to the Maintenance of Properties Amendments; | ||
(vii) the receipt of valid unrevoked consents from holders of not less than a majority in principal amount of all of the outstanding ProLogis Non-Convertible Notes voting as a single class, with respect to the Insurance Amendments; | ||
(viii) the receipt of valid unrevoked consents from holders of not less than a majority in principal amount of all of the outstanding ProLogis Notes voting as a single class, with respect to the Payment of Taxes and Other Claims Amendments; | ||
(ix) the receipt of valid unrevoked consents from holders of not less than a majority in principal amount of all of the outstanding ProLogis Notes voting as a single class, with respect to the Original Financial Information Amendments; and |
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(x) the receipt of valid unrevoked consents from holders of not less than a majority in principal amount of all of the outstanding ProLogis Notes, excluding the Original Financial Information Securities which are comprised of the ProLogis 9.340% 2015 Notes, ProLogis 8.650% 2016 Notes, ProLogis 7.810% 2015 Notes, ProLogis 7.625% 2017 Notes and ProLogis 5.500% 2013 Notes, voting as a single class, with respect to the Financial Information Amendments. | ||
Consents may not be delivered on an alternative, conditional or selective basis. Consents must be obtained before the Expiration Date with respect to such series. See “The Exchange Offers and Consent Solicitations — Terms of the Exchange Offers and Consent Solicitations.” | ||
Procedures for Participating in the Exchange Offers and Consent Solicitations | If you hold ProLogis Notes through DTC in the form of book-entry interests, and wish to participate in the applicable exchange offers and consent solicitations, you must cause the book-entry transfer of the ProLogis Notes to the exchange agent’s account at DTC, and the exchange agent must receive a confirmation of book-entry transfer and either: | |
• a completed letter of transmittal; or | ||
• an agent’s message transmitted pursuant to DTC’s Automated Tender Offer Program, by which each tendering holder will agree to be bound by the letter of transmittal. | ||
Alternatively, if you are the record or beneficial owner of any ProLogis Notes issued in certificated form and you wish to participate in the applicable exchange offers and consent solicitations, you must complete, sign and date an original or facsimile of the accompanying letter of transmittal in accordance with the instructions contained in this prospectus and the letter of transmittal, and send the letter of transmittal or a facsimile of it and the outstanding ProLogis Notes you wish to exchange and any other required documentation to the exchange agent at the address set forth on the back cover of this prospectus. These materials must be received by the exchange agent prior to the Early Consent Date or Expiration Date, as applicable. See “The Exchange Offers and Consent Solicitations — Procedures for Consenting and Tendering.” | ||
AMB LP reserves the right to accept consents on behalf of the combined company to effect any of the Original Events of Default Amendments, the Events of Default Amendments, the Contingent Convertible Notes Events of Default Amendments, the Merger Restriction Amendments, the Incurrence of Debt Amendments, the Maintenance of Properties Amendments, the Insurance Amendments, the Payment of Taxes and Other Claims Amendments, the Original Financial Information Amendments and the Financial Information Amendments or any combination thereof, to the extent that AMB LP has received the applicable Original Events of Default Amendments Requisite Consent, Events of Default Amendments Requisite Consent, |
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Contingent Convertible Notes Events of Default Amendments Requisite Consent, Merger Restriction Amendments Requisite Consent, Incurrence of Debt Amendments Requisite Consent, Maintenance of Properties Amendments Requisite Consent, Insurance Amendments Requisite Consent, Payment of Taxes and Other Claims Amendments Requisite Consent, Original Financial Information Amendments Requisite Consent and Financial Information Amendments Requisite Consent, as the case may be, even if AMB LP has not obtained each of the other Requisite Consents necessary to effect all of the Proposed Amendments. | ||
See “The Exchange Offers and Consent Solicitations — Procedures for Consenting and Tendering.” | ||
Early Consent Date | The Early Consent Date is 5:00 p.m., New York City time, on May 16, 2011, or a later date and time to which AMB LP extends it. AMB LP intends to extend the Early Consent Date until AMB LP receives the Requisite Consents. | |
Exchange Price | For each ProLogis Non-Convertible Note validly tendered (and not validly withdrawn), the holder will receive (i) an exchange price equal to 100% of its principal amount plus the Non-Convertible Notes Consent Fee if it is validly tendered (and not validly withdrawn) prior to the Early Consent Date, and (ii) an exchange price equal to 97% of its principal amount if it is validly tendered (and not validly withdrawn) after the Early Consent Date and on or prior to the Expiration Date. | |
For each ProLogis Convertible Note validly tendered (and not validly withdrawn), the holder will receive (i) an exchange price equal to 100% of its principal amount plus the Convertible Notes Consent Fee if it is validly tendered (and not validly withdrawn) prior to the Early Consent Date, and (ii) an exchange price equal to 97% of its principal amount if it is validly tendered (and not validly withdrawn) after the Early Consent Date and on or prior to the Expiration Date. | ||
Tender instructions for each series of ProLogis Notes will be accepted in authorized denominations. Tenders of ProLogis 7.810% 2015 Notes will be accepted only in original principal amounts (i.e., without giving effect to principal repayments already made) equal to $1,000 or integral multiples thereof. The applicable exchange price and consent fee will be calculated only on current principal amounts outstanding as of the settlement date. For illustrations on how the exchange price and consent fee will be calculated, see “The Exchange Offers and Consent Solicitations — ProLogis Amortizing Notes.” | ||
If you validly tender ProLogis Notes prior to the Early Consent Date, you may validly withdraw your tender and the related consent prior to the Early Consent Date, but you will not receive the applicable cash consent fee unless you validly re-tender prior to the Early Consent Date. If you validly tender ProLogis Notes prior to the Early Consent Date, you may validly withdraw your tender after the Early Consent Date and before the Expiration Date, but you may not withdraw the related consent and you will receive the applicable cash consent fee. If you tender ProLogis Notes after the Early Consent Date and before the Expiration Date, you will not receive the applicable cash consent fee and you may withdraw your tender and the related consent at any time prior to the Expiration Date. |
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Expiration Date | Each of the exchange offers and consent solicitations will expire at 9:00 a.m., New York City time, on June 3, 2011, or a later date and time to which AMB LP extends it. AMB LP intends to extend the Expiration Date if needed so that it occurs after the Merger is closed. | |
Withdrawal and Revocation | Tenders of ProLogis Notes may be validly withdrawn at any time prior to the Expiration Date. Holders that validly tender ProLogis Notes prior to the Early Consent Date may validly withdraw their tender and the related consent prior to the Early Consent Date. Holders that validly tender ProLogis Notes prior to the Early Consent Date may validly withdraw their tender after the Early Consent Date and before the Expiration Date, but may not withdraw the related consent. Holders that validly tender ProLogis Notes after the Early Consent Date and before the Expiration Date may withdraw their tender and the related consent at any time prior to the Expiration Date. | |
Once withdrawal rights have expired on the Expiration Date, tenders of ProLogis Notes may not be validly withdrawn unless AMB LP is otherwise required by law to permit withdrawal. In the event of termination of an exchange offer, the ProLogis Notes tendered pursuant to such exchange offer will be promptly returned to the tendering holders. See “The Exchange Offers and Consent Solicitations — Procedures for Consenting and Tendering — Withdrawal of Tenders and Revocation of Corresponding Consents.” | ||
Conditions | AMB LP’s obligations to complete the exchange offers and consent solicitations on behalf of the combined company are conditioned upon, among other things, consummation of the Merger, listing of AMB LP’s existing 6.750% Notes due 2011 on the NYSE and receipt of the Requisite Consents to effect the Proposed Amendments to the ProLogis Indenture. AMB LP reserves the right to accept consents on behalf of the combined company to effect any of the Proposed Amendments to the extent that it has received the applicable Requisite Consents, even if it has not obtained each of the other Requisite Consents necessary to effect all of the Proposed Amendments. Each exchange offer is independent of the others, and AMB LP may consummate any of them without doing so with respect to any other. The Merger and the related transactions and listing of AMB LP’s existing 6.750% Notes due 2011 on the NYSE are not conditioned upon the commencement or completion of the exchange offers or consent solicitations. | |
Special Procedures for Beneficial Owners of any Certificated Notes | Currently, all of the ProLogis Notes are held in book-entry form and can only be tendered through the applicable procedures of DTC. However, if any ProLogis Notes are subsequently issued to you in certificated form and you are a beneficial owner of ProLogis Notes that are registered in the name of a broker, dealer, commercial bank, trust company or other nominee, and you wish to tender those ProLogis Notes and deliver your consent, you should contact the registered holder promptly and instruct the registered holder to tender your ProLogis Notes and deliver your consent on your behalf. See “The Exchange Offers and Consent Solicitations — Procedures for Consenting and Tendering — ProLogis Notes Held Through a Nominee.” |
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Acceptance of ProLogis Notes and Consents and Delivery of AMB LP Notes | Subject to the satisfaction or waiver of the conditions to the exchange offers and consent solicitations, AMB LP will accept for exchange any and all ProLogis Notes that are validly tendered prior to the Expiration Date and not validly withdrawn; likewise, because the act of validly tendering ProLogis Notes will also constitute valid delivery of consents to the Proposed Amendments to the ProLogis Indenture, AMB LP will also accept on behalf of the combined company all consents that are validly delivered prior to the Expiration Date that are not validly revoked. All ProLogis Notes exchanged will be cancelled. The AMB LP Notes issued pursuant to the exchange offers will be issued and delivered through the facilities of DTC promptly following the Expiration Date. AMB LP will return to you any ProLogis Notes that are not accepted for exchange for any reason without expense to you promptly after the Expiration Date. See “The Exchange Offers and Consent Solicitations — Acceptance of ProLogis Notes for Exchange; AMB LP Notes and Cash Exchange Consideration; Effectiveness of Proposed Amendments.” | |
U.S. Federal Income Tax Considerations | Holders should consider certain U.S. federal income tax consequences of the exchange offers and consent solicitations. Holders of ProLogis Notes are urged to consult their respective tax advisors with respect to the tax consequences to them of the exchange. See “Material United States Federal Income Tax Consequences.” | |
Consequences of Not Exchanging ProLogis Notes for AMB LP Notes | If the Proposed Amendments to the ProLogis Indenture are adopted, holders of ProLogis Notes will no longer be entitled to the benefit of substantially all of the restrictive covenants, certain affirmative covenants, certain events of default and substantially all of the restrictions on the ability of ProLogis to merge, consolidate or sell all or substantially all of its properties or assets. Holders who do not elect to tender their ProLogis Notes will not receive the benefit of the guarantee of AMB on the AMB LP Notes. In addition, the trading market for any ProLogis Notes not validly tendered is likely to be significantly more limited in the future if the exchange offers are consummated. See “Risk Factors — Risks Related to the Exchange Offers and Consent Solicitations — The liquidity of the ProLogis Notes that are not exchanged will be reduced.” | |
Use of Proceeds | AMB LP will not receive any cash proceeds from the exchange offers. | |
Exchange Agent, Information Agent and Dealer Managers | Global Bondholder Services Corporation is serving as exchange agent and information agent for the exchange offers and consent solicitations. | |
Citigroup Global Markets Inc. and RBS Securities Inc. are serving as the dealer managers. | ||
The addresses and the facsimile and telephone numbers of these parties appear on the back cover of this prospectus. |
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AMB LP has other business relationships with the exchange agent and the dealer managers, as described in “The Exchange Offers and Consent Solicitations — Exchange Agent” and “— Dealer Managers.” | ||
No Guaranteed Delivery Procedures | No guaranteed delivery procedures are being offered in connection with the exchange offers and consent solicitations. You must tender your ProLogis Notes and deliver your consent by the Expiration Date in order to participate in the applicable exchange offers. | |
No Recommendation | None of AMB, AMB LP or their subsidiaries, ProLogis or its subsidiaries, the dealer managers, the information agent, the exchange agent or the Trustee makes any recommendation in connection with the exchange offers or consent solicitations as to whether any ProLogis noteholder should tender or refrain from tendering all or any portion of the principal amount of such holder’s ProLogis Notes (and in so doing, consent to the adoption of the Proposed Amendments to the ProLogis Indenture), and no one has been authorized by any of them to make such a recommendation. | |
Risk Factors | For risks related to the exchange offers and consent solicitations, please read the section entitled “Risk Factors” beginning on page 59 of this prospectus. |
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Issuer | AMB LP (which will be known as ProLogis, L.P. after the Merger) will issue the AMB LP Non-Exchangeable Notes. | |
General; Comparison to ProLogis Non-Convertible Notes | Each new series of AMB LP Non-Exchangeable Notes will have substantially the same terms, including interest rate, interest payment dates, redemption terms and maturity, as the corresponding series of outstanding ProLogis Non-Convertible Notes (prior to the Proposed Amendments) for which they are being offered in exchange, except that, among other things, the AMB LP Non-Exchangeable Notes will be guaranteed by AMB LP’s parent entity and sole general partner, AMB, as compared with the ProLogis Non-Convertible Notes, which were issued by ProLogis and are not guaranteed, the new AMB LP Indenture will not have a restriction preventing incurrence of additional unsecured debt by AMB LP’s subsidiaries and the definition of debt in the new AMB LP Indenture will be revised to limit the amount of secured debt to include the lesser of the amount of secured debt or the fair market value of the property that secures such debt and to include letters of credit only to the extent called upon. In the case of each new AMB LP 9.340% 2015 Note and AMB LP 8.650% 2016 Note issued in exchange for a ProLogis 9.340% 2015 Note and a ProLogis 8.650% 2016 Note, respectively, the mandatory principal repayment schedule will be revised from that contained in the corresponding ProLogis Note to reflect the fact that, because previous mandatory principal repayments were not, and with respect to the principal payment to be made on May 15, 2011 with respect to the ProLogis 8.650% 2016 Notes is not expected to be, applied in accordance with their respective terms with respect to the corresponding ProLogis Note, the outstanding principal amount of each currently outstanding ProLogis 9.340% 2015 Note and ProLogis 8.650% 2016 Note is, and the AMB LP 9.340% 2015 Note and AMB LP 8.650% 2016 Note to be issued in exchange thereof will be, $1,000. | |
See “The Exchange Offers and Consent Solicitations — Terms of the Exchange Offers and Consent Solicitations,” “— ProLogis Amortizing Notes” and “Description of the Differences Between the AMB LP Notes and the ProLogis Notes.” | ||
Interest Rates; Interest Payment Dates; Maturity Dates | Each new series of AMB LP Non-Exchangeable Notes will have substantially the same terms, including interest rate, interest payment dates and maturity, as the corresponding series of ProLogis Non-Convertible Notes (prior to the Proposed Amendments) for which they are being offered in exchange, as described in the table below. | |
Each AMB LP Non-Exchangeable Note will bear interest from the most recent date on which interest will have been paid on the corresponding ProLogis Non-Convertible Note. Holders of ProLogis Non-Convertible Notes that are accepted for exchange will be deemed to have waived the right to receive any payment from ProLogis in respect of interest accrued from the date of the last interest payment date in respect of their ProLogis Non-Convertible Notes until the date of the issuance of the AMB LP Non-Exchangeable Notes. Consequently, holders of AMB LP Non-Exchangeable Notes will receive the same interest payments that they would have received had |
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they not exchanged their ProLogis Non-Convertible Notes in the applicable exchange offer. | ||
Interest on the AMB LP 7.810% 2015 Notes, AMB LP 9.340% 2015 Notes and AMB LP 8.650% 2016 Notes will accrue on the current principal amount outstanding. |
Semi-Annual Interest Payment | ||
Interest Rates and Maturity Dates | Dates | |
5.500% Notes due April 1, 2012 | April 1 and October 1 | |
5.500% Notes due March 1, 2013 | March 1 and September 1 | |
7.625% Notes due August 15, 2014 | February 15 and August 15 | |
7.810% Notes due February 1, 2015 | February 1 and August 1 | |
9.340% Notes due March 1, 2015 | March 1 and September 1 | |
5.625% Notes due November 15, 2015 | May 15 and November 15 | |
5.750% Notes due April 1, 2016 | April 1 and October 1 | |
8.650% Notes due May 15, 2016 | May 15 and November 15 | |
5.625% Notes due November 15, 2016 | May 15 and November 15 | |
6.250% Notes due March 15, 2017 | March 15 and September 15 | |
7.625% Notes due July 1, 2017 | January 1 and July 1 | |
6.625% Notes due May 15, 2018 | May 15 and November 15 | |
7.375% Notes due October 30, 2019 | April 30 and October 30 | |
6.875% Notes due March 15, 2020 | March 15 and September 15 |
Payment of Principal | Installments of principal on each $1,000 original principal amount of the AMB LP 7.810% 2015 Notes shall be payable to each holder of such notes annually on each February 1 in the following amounts: $150 in 2012, $200 in 2013, $200 in 2014 and $100 in 2015. Each $1,000 original principal amount of the AMB LP 7.810% 2015 Notes shall be entitled to receive payments of principal in an aggregate amount equal only to the current principal amount outstanding under each such note, which will be $650 at the expected time of settlement. | |
Installments of principal on each $1,000 principal amount of the AMB LP 9.340% 2015 Notes will be paid to each holder of such notes annually on each March 1 in the following amounts: $150 in 2012, $175 in 2013, $200 in 2014 and $250 in 2015. The remaining $225 of principal will be paid at or prior to the maturity date of the AMB LP 9.340% 2015 Notes. In each case, principal on the AMB LP 9.340% 2015 Notes will be payable to the Person in whose name the AMB LP 9.340% 2015 Notes are registered in the security register on the preceding February 15 (whether or not a business day). For more information on the AMB LP 9.340% 2015 Notes, see “The Exchange Offers and Consent Solicitations — ProLogis Amortizing Notes.” | ||
Installments of principal on each $1,000 principal amount of the AMB LP 8.650% 2016 Notes will be paid to each holder of such notes annually on each May 15 to the Person in whose name the AMB LP 8.650% 2016 Notes are registered in the security register on the preceding May 1 (whether or not a business day) in the following amounts: $100 in 2012, $100 in 2013, $150 in 2014, $200 in 2015 and $250 in 2016. The remaining $200 of principal will be paid at or prior to the maturity date of the AMB LP 8.650% 2016 Notes. For more information on the AMB LP 8.650% 2016 Notes, see “The Exchange Offers and Consent Solicitations — ProLogis Amortizing Notes.” | ||
The remaining series of the AMB LP Non-Exchangeable Notes will receive repayments of principal only on their respective maturity dates, or otherwise in accordance with the terms of each note. |
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Guarantor | AMB Property Corporation, a Maryland corporation (which will be known as ProLogis, Inc., and which is referred to as the combined company, after the Merger). | |
Guarantees | The AMB LP Non-Exchangeable Notes will be fully and unconditionally guaranteed by AMB except as may be limited to the maximum amount permitted under applicable federal or state law. AMB’s guarantee of the AMB LP Notes will rankpari passuin right of payment with all of AMB’s unsecured and unsubordinated indebtedness, including AMB’s indebtedness for borrowed money, indebtedness evidenced by bonds, debentures, notes or similar instruments, obligations arising from or with respect to guarantees and direct credit substitutes, obligations associated with hedges and derivative products, capitalized lease obligations and other unsecured and unsubordinated indebtedness. In addition, the guarantee of the AMB LP Non-Exchangeable Notes by AMB will be effectively subordinated to all of the mortgages and other secured indebtedness of AMB and all of the secured and unsecured indebtedness and other liabilities of its subsidiaries, other than AMB LP. See “Description of the AMB LP Non-Exchangeable Notes — AMB Guarantee.” | |
Ranking | The AMB LP Non-Exchangeable Notes will be AMB LP’s direct, unsecured and unsubordinated obligations and will rankpari passuwith all of AMB LP’s other unsecured and unsubordinated indebtedness outstanding from time to time. The AMB LP Non-Exchangeable Notes will be effectively subordinated to AMB LP’s mortgages and other secured indebtedness to the extent of any collateral pledged as security therefor and to all of the secured and unsecured indebtedness and other liabilities of AMB LP’s consolidated subsidiaries and unconsolidated joint ventures and co-investment ventures. | |
Optional Redemption | AMB LP may redeem any series of the AMB LP Non-Exchangeable Notes before their stated maturity in whole, at any time, or in part, from time to time, at a redemption price that includes accrued and unpaid interest and a make-whole premium. For a more complete description of the redemption provisions of the AMB LP Non-Exchangeable Notes, see “Description of the AMB LP Non-Exchangeable Notes — Optional Redemption.” | |
Use of Proceeds | AMB LP will not receive any cash proceeds from the issuance of the AMB LP Non-Exchangeable Notes in connection with the exchange offers. In exchange for issuing the AMB LP Non-Exchangeable Notes and paying the cash exchange consideration (as applicable), AMB LP will receive ProLogis Non-Convertible Notes that will be retired and cancelled and will not be reissued. See “Use of Proceeds.” | |
U.S. Federal Income Tax Considerations | The AMB LP Non-Exchangeable Notes are subject to special and complex U.S. federal income tax rules. Holders are urged to consult their respective tax advisors with respect to the application of the U.S. federal income tax laws to their own particular situation. See “Material United States Federal Income Tax Consequences.” |
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Trading | The AMB LP Non-Exchangeable Notes will be a new issue of securities, and there is currently no established trading market for the AMB LP Non-Exchangeable Notes. An active or liquid market may not develop for the AMB LP Non-Exchangeable Notes or, if developed, may not be maintained. AMB LP has not applied and does not intend to apply for the listing of the AMB LP Non-Exchangeable Notes on any securities exchange or for quotation on any automated dealer quotation system. | |
Covenants | AMB LP will issue the AMB LP Non-Exchangeable Notes under the new AMB LP Indenture. The new AMB LP Indenture will include certain covenants as described herein. Each covenant is subject to a number of important exceptions, limitations and qualifications that are described under “Description of the AMB LP Non-Exchangeable Notes — Covenants.” |
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Issuer | AMB LP (which will be known as ProLogis, L.P. after the Merger) will issue the AMB LP Contingent Exchangeable Notes. AMB will issue the shares of its common stock, if any, deliverable upon exchange of the AMB LP Contingent Exchangeable Notes. | |
General; Comparison to ProLogis Contingent Convertible Notes | Each new series of AMB LP Contingent Exchangeable Notes will have substantially the same terms, including interest rate, interest payment dates, redemption terms, maturity and exchange terms (other than the applicable initial exchange rates, dividend threshold amounts and fundamental change make-whole amounts), as the corresponding series of outstanding ProLogis Contingent Convertible Notes (prior to the Proposed Amendments) for which they are being offered in exchange, except that, among other things, the AMB LP Contingent Exchangeable Notes will be guaranteed by AMB LP’s parent entity and sole general partner, AMB, as compared with the ProLogis Contingent Convertible Notes, which were issued by ProLogis and are not guaranteed and will be exchangeable into the common stock of AMB, as compared with the ProLogis Contingent Convertible Notes, which are convertible into ProLogis common shares and will be exchangeable into AMB common stock after the Merger. | |
See “The Exchange Offers and Consent Solicitations — Terms of the Exchange Offers and Consent Solicitations” and “Description of the Differences Between the AMB LP Notes and the ProLogis Notes.” | ||
Interest Rates; Interest Payment Dates; Maturity Dates | Each new series of AMB LP Contingent Exchangeable Notes will have substantially the same terms, including interest rate, interest payment dates and maturity, as the corresponding series of ProLogis Contingent Convertible Notes (prior to the Proposed Amendments) for which they are being offered in exchange, as described in the table below. | |
Each AMB LP Contingent Exchangeable Note will bear interest from the most recent date on which interest will have been paid on the corresponding ProLogis Contingent Convertible Note. Holders of ProLogis Contingent Convertible Notes that are accepted for exchange will be deemed to have waived the right to receive any payment from ProLogis in respect of interest accrued from the date of the last interest payment date in respect of their ProLogis Contingent Convertible Notes until the date of the issuance of the AMB LP Contingent Exchangeable Notes. Consequently, holders of AMB LP Contingent Exchangeable Notes will receive the same interest payments that they would have received had they not exchanged their ProLogis Contingent Convertible Notes in the applicable exchange offer. |
Semi-Annual Interest | ||
Interest Rates and Maturity Dates | Payment Dates | |
2.250% Exchangeable Senior Notes due April 1, 2037 | April 1 and October 1 | |
1.875% Exchangeable Senior Notes due November 15, 2037 | May 15 and November 15 | |
2.625% Exchangeable Senior Notes due May 15, 2038 | May 15 and November 15 |
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Guarantor | AMB Property Corporation, a Maryland corporation (which will be known as ProLogis, Inc., and which is referred to as the combined company, after the Merger). | |
Guarantees | The AMB LP Contingent Exchangeable Notes will be fully and unconditionally guaranteed by AMB except as may be limited to the maximum amount permitted under applicable federal or state law. AMB’s guarantee of the AMB LP Notes will rankpari passu in right of payment with all of AMB’s unsecured and unsubordinated indebtedness, including AMB’s indebtedness for borrowed money, indebtedness evidenced by bonds, debentures, notes or similar instruments, obligations arising from or with respect to guarantees and direct credit substitutes, obligations associated with hedges and derivative products, capitalized lease obligations and other unsecured and unsubordinated indebtedness. In addition, the guarantee of the AMB LP Contingent Exchangeable Notes by AMB will be effectively subordinated to all of the mortgages and other secured indebtedness of AMB and all of the secured and unsecured indebtedness and other liabilities of its subsidiaries, other than AMB LP. See “Description of the AMB LP Contingent Exchangeable Notes — AMB Guarantee.” | |
Ranking | The AMB LP Contingent Exchangeable Notes will be AMB LP’s direct, unsecured and unsubordinated obligations and will rankpari passuwith all of AMB LP’s other unsecured and unsubordinated indebtedness outstanding from time to time. The AMB LP Contingent Exchangeable Notes will be effectively subordinated to AMB LP’s mortgages and other secured indebtedness to the extent of any collateral pledged as security therefor and to all of the secured and unsecured indebtedness and other liabilities of AMB LP’s consolidated subsidiaries and unconsolidated joint ventures and co-investment ventures. | |
Optional Redemption | Prior to certain dates described below, AMB LP may not redeem the AMB LP Contingent Exchangeable Notes except to preserve AMB’s status as a REIT as described below. If at any time AMB LP determines it is necessary to redeem the AMB LP Contingent Exchangeable Notes in order to preserve AMB’s status as a REIT, AMB LP may redeem all, but not less than all, of the AMB LP Contingent Exchangeable Notes then outstanding for cash at a price equal to 100% of the principal amount of the AMB LP Contingent Exchangeable Notes being redeemed, plus accrued and unpaid interest, if any, to the redemption date. On or after certain dates described below, AMB LP may at its option redeem all or part of the AMB LP Contingent Exchangeable Notes for cash at a price equal to 100% of the principal amount of the AMB LP Contingent Exchangeable Notes being redeemed, plus accrued and unpaid interest, if any, to the redemption date. | |
For a more complete description of the redemption provisions of the AMB LP Contingent Exchangeable Notes, see “Description of the AMB LP Contingent Exchangeable Notes — Optional Redemption.” |
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Exchange Rights | Holders may exchange their AMB LP Contingent Exchangeable Notes prior to the close of business on the trading day immediately preceding the applicable maturity date, at the option of the holder under the following circumstances: |
• | during the five business day period after any ten consecutive trading day period (the “measurement period”) in which the trading price per note for each day of such measurement period was less than 98% of the product of the last reported sale price per share of AMB common stock and the applicable exchange rate on each such day; | ||
• | during any calendar quarter beginning after June 30, 2011, if the closing sale price per share of AMB common stock for at least 20 trading days in the 30 consecutive trading days ending on the last day of the preceding calendar quarter is more than 130% of the exchange price per share of AMB common stock on the last day of such preceding calendar quarter; | ||
• | if AMB LP has called such series of AMB LP Contingent Exchangeable Notes for redemption, at any time prior to the close of business on the day that is two business days prior to the redemption date; | ||
• | upon the occurrence of specified corporate transactions described under “Description of the AMB LP Contingent Exchangeable Notes — Exchange Rights — Exchange of AMB LP Contingent Exchangeable Notes Upon Specified Corporate Transactions”; | ||
• | if AMB’s common stock is not listed on a United States national securities exchange; or | ||
• | any time on or after |
o | February 1, 2012 for the AMB LP 2.250% 2037 Exchangeable Notes, | ||
o | October 15, 2012 for the AMB LP 1.875% 2037 Exchangeable Notes, or | ||
o | February 15, 2013 for the AMB LP 2.625% 2038 Exchangeable Notes. |
The initial exchange rates and equivalent exchange price for each series of AMB LP Contingent Exchangeable Notes, subject to adjustment, are provided below: |
Initial | ||||||||
Initial Exchange | Exchange Price | |||||||
Rate Per $1,000 | Per Share of | |||||||
Principal Amount | AMB Common | |||||||
Of Notes | Stock | |||||||
AMB LP 2.250% 2037 Exchangeable Notes | 5.8752 | 170.2070 | ||||||
AMB LP 1.875% 2037 Exchangeable Notes | 5.4874 | 182.2357 | ||||||
AMB LP 2.625% 2038 Exchangeable Notes | 5.8569 | 170.7388 |
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Upon the occurrence of any of the circumstances described above, holders may exchange any outstanding AMB LP Contingent Exchangeable Notes into cash, shares of AMB common stock or a combination of cash and shares of AMB common stock, at AMB LP’s election. AMB LP will inform you through the Trustee of the method AMB LP will choose to satisfy its exchange obligations within two trading days immediately after AMB LP’s receipt of your exchange notice; provided, however, that at any time on or prior to: | ||
• February 1, 2012 for the AMB LP 2.250% 2037 Exchangeable Notes, | ||
• October 15, 2012 for the AMB LP 1.875% 2037 Exchangeable Notes, and | ||
• February 15, 2013 for the AMB LP 2.625% 2038 Exchangeable Notes, | ||
AMB LP may irrevocably elect, in its sole discretion without the consent of the holders of such notes to settle all of its future exchange obligations entirely in shares of AMB common stock, and, provided further, that AMB LP is required to settle all exchanges with an exchange date occurring on or after: | ||
• February 1, 2012 for the AMB LP 2.250% 2037 Exchangeable Notes, | ||
• October 15, 2012 for the AMB LP 1.875% 2037 Exchangeable Notes, and | ||
• February 15, 2013 for the AMB LP 2.625% 2038 Exchangeable Notes, | ||
in the same manner and AMB LP will notify holders of the manner of settlement on or before such date. If AMB LP does not elect otherwise, its exchange obligations will be settled in a combination of cash and shares of AMB common stock as follows: (i) AMB LP will pay cash in an amount equal to the lesser of the principal amount of the AMB LP Contingent Exchangeable Notes to be exchanged and the exchange value of the AMB LP Contingent Exchangeable Notes to be exchanged, calculated as described in this prospectus, and (ii) to the extent that the exchange value of the AMB LP Contingent Exchangeable Notes to be exchanged exceeds the principal amount of the AMB LP Contingent Exchangeable Notes to be exchanged (such difference being referred to as the “excess amount”), AMB LP will deliver shares of AMB common stock or, at AMB LP’s election, cash, equivalent to the excess amount. The number of shares to be delivered will be determined based on a daily exchange value, as described in this prospectus, calculated on a proportionate basis for each day of a 20 trading day observation period, as described in this prospectus. However, AMB LP may elect to deliver cash in settlement of all or a portion of the excess amount or AMB LP may elect to settle its exchange obligations entirely in shares of AMB common stock. See “Description of the AMB LP Contingent Exchangeable Notes — Exchange Rights — Payment Upon Exchange of the AMB LP Contingent Exchangeable Notes.” |
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You will not receive any additional cash payment or additional shares representing accrued and unpaid interest upon exchange of an AMB LP Contingent Exchangeable Note, except in limited circumstances. Instead, interest will be deemed paid by cash and shares of AMB common stock, if any, delivered to you upon exchange. | ||
Use of Proceeds | AMB LP will not receive any cash proceeds from the issuance of the AMB LP Contingent Exchangeable Notes in connection with the exchange offers. In exchange for issuing the AMB LP Contingent Exchangeable Notes and paying the cash exchange consideration (as applicable), AMB LP will receive ProLogis Contingent Convertible Notes that will be retired and cancelled and will not be reissued. See “Use of Proceeds.” | |
Repurchase at Holders’ Option | Holders may require AMB LP to repurchase the AMB LP Contingent Exchangeable Notes on: | |
• April 1 of 2012, 2017, 2022, 2027 and 2032 with respect to any outstanding AMB LP 2.250% 2037 Exchangeable Notes, | ||
• January 15, 2013 and November 15 of 2017, 2022, 2027, and 2032 with respect to any outstanding AMB LP 1.875% 2037 Exchangeable Notes, and | ||
• May 15 of 2013, 2018, 2023, 2028, and 2033 with respect to any outstanding AMB LP 2.625% 2038 Exchangeable Notes, | ||
at a repurchase price equal to 100% of the principal amount of the AMB LP Contingent Exchangeable Notes being repurchased plus any accrued and unpaid interest to, but excluding, the repurchase date. AMB LP will pay cash for all notes so repurchased. | ||
Fundamental Change | If AMB LP undergoes a fundamental change (as defined under “Description of the AMB LP Contingent Exchangeable Notes — Exchange Rights — Adjustment to Shares Delivered Upon Exchange Upon Fundamental Change”), you will have the option to require AMB LP to repurchase all or any portion of your AMB LP Contingent Exchangeable Notes. | |
The fundamental change purchase price will be 100% of the principal amount of the AMB LP Contingent Exchangeable Notes to be purchased plus any accrued and unpaid interest to, but excluding, the fundamental change repurchase date. AMB LP will pay cash for all AMB LP Contingent Exchangeable Notes so purchased. | ||
In addition, if a fundamental change occurs prior to: | ||
• April 5, 2012 for the AMB LP 2.250% 2037 Exchangeable Notes, | ||
• January 15, 2013 for the AMB LP 1.875% 2037 Exchangeable Notes, and | ||
• May 20, 2013 for the AMB LP 2.625% 2038 Exchangeable Notes, |
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AMB LP will increase the applicable exchange rate for a holder who elects to exchange its AMB LP Contingent Exchangeable Notes in connection with such a fundamental change as described under “Description of the AMB LP Contingent Exchangeable Notes — Exchange Rights — Adjustment to Shares Delivered Upon Exchange Upon Fundamental Change.” | ||
U.S. Federal Income Tax Considerations | The AMB LP Contingent Exchangeable Notes and the shares of AMB common stock into which the AMB LP Contingent Exchangeable Notes may be exchanged are subject to special and complex U.S. federal income tax rules. Holders are urged to consult their respective tax advisors with respect to the application of the U.S. federal income tax laws to their own particular situation. See “Material United States Federal Income Tax Consequences.” | |
Trading | The AMB LP Contingent Exchangeable Notes will be a new issue of securities, and there is currently no established trading market for the AMB LP Contingent Exchangeable Notes. An active or liquid market may not develop for the AMB LP Contingent Exchangeable Notes or, if developed, may not be maintained. AMB LP has not applied and does not intend to apply for the listing of the AMB LP Contingent Exchangeable Notes on any securities exchange or for quotation on any automated dealer quotation system. | |
New York Stock Exchange Symbol for AMB Common Stock | Following the completion of the Merger, the common stock of the combined company will be listed on the NYSE, trading under the symbol “PLD.” | |
Ownership Limitation | In order to assist AMB in maintaining its qualification as a REIT for U.S. federal income tax purposes, no person may own more than 9.8% (by value or number of shares, whichever is more restrictive) of the outstanding shares of AMB common stock, with certain exceptions. Notwithstanding any other provision of the AMB LP Contingent Exchangeable Notes, in addition to AMB LP’s right to elect to deliver exchange consideration in whole or in part in cash, no holder of AMB LP Contingent Exchangeable Notes will be entitled to exchange such AMB LP Contingent Exchangeable Notes for shares of AMB common stock to the extent that receipt of such shares would cause such holder (together with such holder’s affiliates) to exceed such ownership limit. See “Description of AMB Capital Stock — AMB Common Stock — Ownership Limitation.” | |
No Stockholder Rights for Holders of AMB LP Contingent Exchangeable Notes | Holders of AMB LP Contingent Exchangeable Notes will not have any rights as stockholders of AMB (including, without limitation, voting rights and rights to receive dividends or other distributions on AMB common stock). |
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Covenants | AMB LP will issue the AMB LP Contingent Exchangeable Notes under a new AMB LP Indenture. The new AMB LP Indenture will include certain covenants as described herein. The AMB LP Contingent Exchangeable Notes will not be subject to the Limitations on Incurrence of Debt covenant. Each covenant is subject to a number of important exceptions, limitations and qualifications that are described under “Description of the AMB LP Contingent Exchangeable Notes — Covenants.” |
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The AMB LP 3.250% 2015 Exchangeable Notes | ||
Issuer | AMB LP (which will be known as ProLogis, L.P. after the Merger) will issue the AMB LP 3.250% 2015 Exchangeable Notes. AMB will issue the shares of its common stock, if any, deliverable upon exchange of the AMB LP 3.250% 2015 Exchangeable Notes. | |
General; Comparison to ProLogis 2015 Convertible Notes | The AMB LP 3.250% 2015 Exchangeable Notes will have substantially the same terms, including interest rate, interest payment dates, redemption terms, maturity and exchange terms (other than the applicable initial exchange rates, dividend threshold amounts, fundamental change make-whole amounts and the exchange consideration), as the corresponding outstanding ProLogis 3.250% 2015 Convertible Notes (prior to the Proposed Amendments) for which they are being offered in exchange, except that, among other things, the AMB LP 3.250% 2015 Exchangeable Notes will be guaranteed by AMB LP’s parent entity and sole general partner, AMB, as compared with the ProLogis 3.250% 2015 Convertible Notes, which were issued by ProLogis and are not guaranteed, and will be exchangeable into AMB common stock, cash or a combination of the two, at the option of AMB LP, as compared with the ProLogis 3.250% 2015 Convertible Notes, which are convertible only into ProLogis common shares and will be exchangeable only into AMB common stock after the Merger. | |
See “The Exchange Offers and Consent Solicitations — Terms of the Exchange Offers and Consent Solicitations” and “Description of the Difference Between the AMB LP Notes and the ProLogis Notes.” | ||
Interest Rates; Interest Payment Dates; Maturity Dates | The AMB LP 3.250% 2015 Exchangeable Notes will have substantially the same terms, including interest rate, interest payment dates, and maturity, as the corresponding ProLogis 3.250% 2015 Convertible Notes (prior to the Proposed Amendments) for which they are being offered in exchange, as described in the table below. | |
Each AMB LP 3.250% 2015 Exchangeable Note will bear interest from the most recent date on which interest will have been paid on the ProLogis 3.250% 2015 Convertible Note. Holders of ProLogis 3.250% 2015 Convertible Notes that are accepted for exchange will be deemed to have waived the right to receive any payment from ProLogis in respect of interest accrued from the date of the last interest payment date in respect of their ProLogis 3.250% 2015 Convertible Notes until the date of the issuance of the AMB LP 3.250% 2015 Exchangeable Notes. Consequently, holders of AMB LP 3.250% 2015 Exchangeable Notes will receive the same interest payments that they would have received had they not exchanged their ProLogis 3.250% 2015 Convertible Notes in the applicable exchange offer. |
Semi-Annual Interest | ||||
Interest Rates and Maturity Dates | Payment Dates | |||
3.250% Exchangeable Senior Notes due March 15, 2015 | March 15 and September 15 |
Guarantor | AMB Property Corporation, a Maryland corporation (which will be known as ProLogis, Inc., and which is referred to as the combined company, after the Merger). |
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Guarantees | The AMB LP 3.250% 2015 Exchangeable Notes will be fully and unconditionally guaranteed by AMB except as may be limited to the maximum amount permitted under applicable federal or state law. AMB’s guarantee of the AMB LP Notes will rankpari passu in right of payment with all of AMB’s unsecured and unsubordinated indebtedness, including AMB’s indebtedness for borrowed money, indebtedness evidenced by bonds, debentures, notes or similar instruments, obligations arising from or with respect to guarantees and direct credit substitutes, obligations associated with hedges and derivative products, capitalized lease obligations and other unsecured and unsubordinated indebtedness. In addition, the guarantee of the AMB LP 3.250% 2015 Notes by AMB will be effectively subordinated to all of the mortgages and other secured indebtedness of AMB and all of the secured and unsecured indebtedness and other liabilities of its subsidiaries, other than AMB LP. See “Description of the AMB LP 3.250% 2015 Exchangeable Notes — AMB Guarantee.” | |
Ranking | The AMB LP 3.250% 2015 Exchangeable Notes will be AMB LP’s direct, unsecured and unsubordinated obligations and will rankpari passuwith all of AMB LP’s other unsecured and unsubordinated indebtedness outstanding from time to time. The AMB LP 3.250% 2015 Notes will be effectively subordinated to AMB LP’s mortgages and other secured indebtedness to the extent of any collateral pledged as security therefor and to all of the secured and unsecured indebtedness and other liabilities of AMB LP’s consolidated subsidiaries and unconsolidated joint ventures and co-investment ventures. | |
Optional Redemption | AMB LP may not redeem the AMB LP 3.250% 2015 Exchangeable Notes prior to maturity except to preserve AMB’s status as a REIT. If at any time AMB LP determines it is necessary to redeem the AMB LP 3.250% 2015 Exchangeable Notes in order to preserve AMB’s status as a REIT, AMB LP may redeem all, but not less than all, of the AMB LP 3.250% 2015 Exchangeable Notes then outstanding for cash at a price equal to 100% of the principal amount of the AMB LP 3.250% 2015 Exchangeable Notes being redeemed, plus accrued and unpaid interest, if any, to the redemption date. For a more complete description of the redemption provisions of the AMB LP 3.250% 2015 Exchangeable Notes, see “Description of the AMB LP 3.250% 2015 Exchangeable Notes — Optional Redemption.” | |
Exchange Rights | Holders may exchange their AMB LP 3.250% 2015 Exchangeable Notes into cash, shares of AMB common stock or a combination of cash and shares of AMB common stock, at AMB LP’s election, based upon an initial exchange rate of 25.8244 shares of AMB common stock per $1,000 principal amount of AMB LP 3.250% 2015 Exchangeable Notes (equivalent to an initial exchange price of approximately $38.7231 per share of AMB common stock), subject to adjustment, at any time prior to the close of business on the trading day immediately preceding the maturity date, unless the AMB LP 3.250% 2015 Exchangeable Notes have been previously redeemed or purchased by AMB LP. See “Description of the AMB LP 3.250% 2015 Exchangeable Notes — Exchange Rights.” |
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AMB LP will inform you through the Trustee of the method AMB LP will choose to satisfy its exchange obligations within two trading days immediately after AMB LP’s receipt of your exchange notice. If AMB LP does not elect otherwise, its exchange obligations will be settled in a combination of cash and shares of AMB common stock as follows: (i) AMB LP will pay cash in an amount equal to the lesser of the principal amount of the AMB LP 3.250% 2015 Exchangeable Notes to be exchanged and the exchange value of the AMB LP 3.250% 2015 Exchangeable Notes to be exchanged, calculated as described in this prospectus, and (ii) to the extent that the exchange value of the AMB LP 3.250% 2015 Exchangeable Notes to be exchanged exceeds the principal amount of the AMB LP 3.250% 2015 Exchangeable Notes to be exchanged (such difference being referred to as the “excess amount”), AMB LP will deliver shares of AMB common stock or, at AMB LP’s election, cash, equivalent to the excess amount. The number of shares to be delivered will be determined based on a daily exchange value, as described in this prospectus, calculated on a proportionate basis for each day of a 20 trading day observation period, as described in this prospectus. However, AMB LP may elect to deliver cash in settlement of all or a portion of the excess amount or AMB LP may elect to settle its exchange obligations entirely in shares of AMB common stock. See “Description of the AMB LP 3.250% 2015 Exchangeable Notes — Exchange Rights — Payment Upon Exchange of the AMB LP 3.250% 2015 Exchangeable Notes.” | ||
You will not receive any additional cash payment or additional shares representing accrued and unpaid interest upon exchange of an AMB LP 3.250% 2015 Exchangeable Note, except in limited circumstances. Instead, interest will be deemed paid by the shares of AMB common stock, cash or combination of cash and AMB common stock delivered to you upon exchange. | ||
Use of Proceeds | AMB LP will not receive any cash proceeds from the issuance of the AMB LP 3.250% 2015 Exchangeable Notes in connection with the exchange offers. In exchange for issuing the AMB LP 3.250% 2015 Exchangeable Notes and paying the cash exchange consideration (as applicable), AMB LP will receive ProLogis 3.250% 2015 Convertible Notes that will be retired and cancelled and will not be reissued. See “Use of Proceeds.” | |
Fundamental Change | If AMB LP undergoes a fundamental change (as defined under “Description of the AMB LP 3.250% 2015 Exchangeable Notes — Exchange Rights — Adjustment to Shares Delivered Upon Exchange Upon Fundamental Change”), you will have the option to require AMB LP to repurchase all or any portion of your AMB LP 3.250% 2015 Exchangeable Notes. | |
The fundamental change purchase price will be 100% of the principal amount of the AMB LP 3.250% 2015 Exchangeable Notes to be purchased plus any accrued and unpaid interest to, but excluding, the fundamental change repurchase date. AMB LP will pay cash for all notes so purchased. | ||
In addition, if a fundamental change occurs at any time, AMB LP will increase the exchange rate for a holder who elects to exchange its AMB LP 3.250% 2015 Exchangeable Notes in connection with such a |
40
fundamental change as described under “Description of the AMB LP 3.250% 2015 Exchangeable Notes — Exchange Rights — Adjustment to Shares Delivered Upon Exchange Upon Fundamental Change.” | ||
U.S. Federal Income Tax Considerations | The AMB LP 3.250% 2015 Exchangeable Notes and the shares of AMB common stock into which the AMB LP 3.250% 2015 Exchangeable Notes may be exchanged are subject to special and complex U.S. federal income tax rules. Holders are urged to consult their respective tax advisors with respect to the application of the U.S. federal income tax laws to their own particular situation. See “Material United States Federal Income Tax Consequences.” | |
Trading | The AMB LP 3.250% 2015 Exchangeable Notes will be a new issue of securities, and there is currently no established trading market for the AMB LP 3.250% 2015 Exchangeable Notes. An active or liquid market may not develop for the AMB LP 3.250% 2015 Exchangeable Notes or, if developed, may not be maintained. AMB LP has not applied and does not intend to apply for the listing of the AMB LP 3.250% 2015 Exchangeable Notes on any securities exchange or for quotation on any automated dealer quotation system. | |
New York Stock Exchange Symbol for AMB Common Stock | Following the completion of the Merger, the common stock of the combined company will be listed on the NYSE, trading under the symbol “PLD.” | |
Ownership Limitation | In order to assist AMB in maintaining its qualification as a REIT for U.S. federal income tax purposes, no person may own more than 9.8% (by value or number of shares, whichever is more restrictive) of the outstanding shares of AMB common stock, with certain exceptions. Notwithstanding any other provision of the AMB LP 3.250% 2015 Exchangeable Notes, in addition to AMB LP’s right to elect to deliver exchange consideration in whole or in part in cash, no holder of AMB LP 3.250% 2015 Exchangeable Notes will be entitled to exchange such AMB LP 3.250% 2015 Exchangeable Notes for shares of AMB common stock to the extent that receipt of such shares would cause such holder (together with such holder’s affiliates) to exceed such ownership limit. See “Description of AMB Capital Stock — AMB Common Stock — Ownership Limitation.” | |
No Stockholder Rights for Holders of AMB LP 3.250% 2015 Exchangeable Notes | Holders of AMB LP 3.250% 2015 Exchangeable Notes will not have any rights as stockholders of AMB (including, without limitation, voting rights and rights to receive dividends or other distributions on AMB common stock). | |
Covenants | AMB LP will issue the AMB LP 3.250% 2015 Exchangeable Notes under a new AMB LP Indenture. The new AMB LP Indenture will include certain covenants as described herein. The AMB LP 3.250% 2015 Exchangeable Notes will not be subject to the Limitations on Incurrence of Debt covenant. Each covenant is subject to a number of important exceptions, limitations and qualifications that are described under “Description of the AMB LP 3.250% 2015 Exchangeable Notes — Covenants.” |
41
Three Months Ended | ||||||||
March 31, | ||||||||
2011 | 2010 | |||||||
(In millions, except per | ||||||||
share amounts) | ||||||||
(Unaudited) | ||||||||
Operating Data: | ||||||||
Revenues: | ||||||||
Rental revenues | $ | 158 | $ | 147 | ||||
Private capital revenues | 8 | 7 | ||||||
Total revenues | 166 | 154 | ||||||
Costs and Expenses: | ||||||||
Property operating costs | 52 | 48 | ||||||
Depreciation and amortization | 55 | 47 | ||||||
General and administrative | 31 | 32 | ||||||
Merger transaction costs and restructuring charges | 4 | 3 | ||||||
Fund costs and other expenses | 1 | 2 | ||||||
Total costs and expenses | 143 | 132 | ||||||
Other Income and Expenses: | ||||||||
Development profits, net of taxes | — | 5 | ||||||
Earnings from unconsolidated joint ventures, net | 8 | 4 | ||||||
Interest expense, amortization and other income, net | (34 | ) | (33 | ) | ||||
Loss from continuing operations | (3 | ) | (2 | ) | ||||
Income and gains from discontinued operations | 17 | 1 | ||||||
Noncontrolling interests’ share of net income | (2 | ) | 1 | |||||
Preferred stock dividends & allocation to participating securities | (4 | ) | (4 | ) | ||||
Net income (loss) available to common stockholders | $ | 8 | $ | (4 | ) | |||
Net income (loss) per share available to common stockholders — Basic | $ | 0.05 | $ | (0.03 | ) | |||
Net income (loss) per share available to common stockholders — Diluted | $ | 0.05 | $ | (0.03 | ) | |||
Weighted average common shares outstanding: | ||||||||
Basic | 168 | 149 | ||||||
Diluted | 168 | 149 |
42
As of March 31, 2011 | ||||
(In millions) | ||||
(Unaudited) | ||||
Balance sheet Data: | ||||
Investments in real estate (at cost) | $ | 6,841 | ||
Total assets | $ | 7,421 | ||
Total debt | $ | 3,426 | ||
Total liabilities and noncontrolling interests | $ | 4,118 | ||
Preferred stock | $ | 223 | ||
Total stockholders’ equity (excluding preferred stock) | $ | 3,080 | ||
Number of common shares outstanding | 170 |
For the Years Ended December 31, | ||||||||||||||||||||
2010 | 2009 | 2008 | 2007 | 2006 | ||||||||||||||||
(In millions, except per share amounts) | ||||||||||||||||||||
Operating Data: | ||||||||||||||||||||
Total revenues | $ | 634 | $ | 618 | $ | 678 | $ | 636 | $ | 679 | ||||||||||
Income (loss) from continuing operations | $ | 9 | $ | (124 | ) | $ | (18 | ) | $ | 282 | $ | 210 | ||||||||
Income from discontinued operations | $ | 24 | $ | 96 | $ | 11 | $ | 90 | $ | 78 | ||||||||||
Net income (loss) before cumulative effect of change in accounting principle | $ | 34 | $ | (28 | ) | $ | (7 | ) | $ | 372 | $ | 289 | ||||||||
Net income (loss) | $ | 34 | $ | (28 | ) | $ | (7 | ) | $ | 372 | $ | 289 | ||||||||
Net income (loss) available to common stockholders | $ | 10 | $ | (50 | ) | $ | (66 | ) | $ | 294 | $ | 208 | ||||||||
(Loss) income from continuing operations available to common stockholders per common share: | ||||||||||||||||||||
Basic | $ | (0.08 | ) | $ | (1.01 | ) | $ | (0.77 | ) | $ | 2.17 | $ | 1.54 | |||||||
Diluted | $ | (0.08 | ) | $ | (1.01 | ) | $ | (0.77 | ) | $ | 2.12 | $ | 1.49 | |||||||
Income from discontinued operations available to common stockholders per common share: | ||||||||||||||||||||
Basic | $ | 0.14 | $ | 0.64 | $ | 0.09 | $ | 0.85 | $ | 0.83 | ||||||||||
Diluted | $ | 0.14 | $ | 0.64 | $ | 0.09 | $ | 0.83 | $ | 0.80 | ||||||||||
Net income (loss) available to common stockholders per common share | ||||||||||||||||||||
Basic | $ | 0.06 | $ | (0.37 | ) | $ | (0.68 | ) | $ | 3.02 | $ | 2.37 | ||||||||
Diluted | $ | 0.06 | $ | (0.37 | ) | $ | (0.68 | ) | $ | 2.95 | $ | 2.29 | ||||||||
Cash dividends per common shares | $ | 1.12 | $ | 1.12 | $ | 1.56 | $ | 2.00 | $ | 1.84 | ||||||||||
Weighted average common shares outstanding | ||||||||||||||||||||
Basic | 162 | 134 | 97 | 97 | 88 | |||||||||||||||
Diluted | 162 | 134 | 97 | 100 | 91 | |||||||||||||||
As of December 31, | ||||||||||||||||||||
2010 | 2009 | 2008 | 2007 | 2006 | ||||||||||||||||
(In millions) | ||||||||||||||||||||
Balance sheet Data: | ||||||||||||||||||||
Investments in real estate (at cost) | $ | 6,906 | $ | 6,709 | $ | 6,604 | $ | 6,710 | $ | 6,576 | ||||||||||
Total assets | $ | 7,373 | $ | 6,842 | $ | 7,302 | $ | 7,262 | $ | 6,714 | ||||||||||
Total debt | $ | 3,331 | $ | 3,213 | $ | 3,990 | $ | 3,495 | $ | 3,437 | ||||||||||
Total liabilities and noncontrolling interests | $ | 4,052 | $ | 3,902 | $ | 4,787 | $ | 4,498 | $ | 4,547 | ||||||||||
Preferred stock | $ | 223 | $ | 223 | $ | 223 | $ | 223 | $ | 223 | ||||||||||
Total stockholders’ equity (excluding preferred stock) | $ | 3,097 | $ | 2,717 | $ | 2,292 | $ | 2,541 | $ | 1,943 |
43
For the Years Ended December 31, | ||||||||||||||||||||
2010 | 2009 | 2008 | 2007 | 2006 | ||||||||||||||||
(In millions) | ||||||||||||||||||||
Funds from operations (FFO), as adjusted(1) | ||||||||||||||||||||
Net income (loss) available to common stockholders | $ | 10 | $ | (50 | ) | $ | (66 | ) | $ | 294 | $ | 208 | ||||||||
Gains from sale or contribution of real estate interests, net | (20 | ) | (39 | ) | (23 | ) | (86 | ) | (45 | ) | ||||||||||
Total depreciation and amortization | 190 | 174 | 162 | 158 | 176 | |||||||||||||||
Adjustments to derive FFO, as defined by NAREIT from consolidated joint ventures | (22 | ) | (17 | ) | (19 | ) | (22 | ) | (35 | ) | ||||||||||
Adjustments to derive FFO, as defined by NAREIT from unconsolidated joint ventures | 43 | 32 | 26 | 20 | (7 | ) | ||||||||||||||
Funds from operations, as defined by NAREIT(1) | $ | 201 | $ | 100 | $ | 80 | $ | 364 | $ | 297 | ||||||||||
Adjustments for impairment charges, restructuring charges, preferred unit redemption (discount) premium and debt extinguishment: | ||||||||||||||||||||
Real estate impairment losses(2) | 1 | 182 | 194 | 1 | 6 | |||||||||||||||
Pursuit costs and tax reserve | — | — | 12 | — | — | |||||||||||||||
Restructuring charges | 5 | 6 | 12 | — | — | |||||||||||||||
Loss on early extinguishment of debt | 3 | 12 | 1 | — | — | |||||||||||||||
Preferred unit redemption (discount) premium | — | (10 | ) | — | 3 | 1 | ||||||||||||||
Allocation to participating securities | — | (1 | ) | (1 | ) | — | (1 | ) | ||||||||||||
FFO, as adjusted(1) | $ | 210 | $ | 289 | $ | 298 | $ | 368 | $ | 303 | ||||||||||
AMB’s share of development profits, net of taxes | (7 | ) | (88 | ) | (77 | ) | (168 | ) | (106 | ) | ||||||||||
Allocation to participating securities | — | — | 1 | 1 | 1 | |||||||||||||||
Core funds from operations (Core FFO), as adjusted(1) | $ | 203 | $ | 201 | $ | 222 | $ | 201 | $ | 198 | ||||||||||
Cash flows provided by (used in): | ||||||||||||||||||||
Operating activities | $ | 253 | $ | 243 | $ | 303 | $ | 241 | $ | 336 | ||||||||||
Investing activities | $ | (587 | ) | $ | 84 | $ | (882 | ) | $ | (632 | ) | $ | (881 | ) | ||||||
Financing activities | $ | 330 | $ | (298 | ) | $ | 580 | $ | 420 | $ | 484 |
(1) | AMB believes that net income, as defined by generally accepted accounting principles as used in the United States (“GAAP”), is the most appropriate earnings measure. However, AMB considers funds from operations, as adjusted (“FFO, as adjusted”), funds from operations, as defined by NAREIT (“FFO, as defined by NAREIT”) and core funds from operations, as adjusted (“Core FFO, as adjusted”, which together with FFO, as adjusted and FFO, as defined by NAREIT, AMB and ProLogis refer to as the “FFO Measures, as adjusted”) to be useful supplemental measures of its operating performance. AMB calculates FFO, as adjusted, as net income (or loss) available to common stockholders, calculated in accordance with GAAP, less gains (or losses) from dispositions of real estate held for investment purposes and real estate-related depreciation, and adjustments to derive AMB’s pro rata share of FFO, as adjusted, of consolidated and unconsolidated joint ventures. AMB calculates Core FFO, as adjusted, as FFO, as adjusted excluding the share of development profits of AMB. These calculations also include adjustments for items as described below. | |
Unless stated otherwise, AMB includes the gains from development, including those from value-added conversion projects, before depreciation recapture, as a component of FFO, as adjusted. AMB believes gains from development should be included in FFO, as adjusted, to more completely reflect the performance of one of AMB’s lines of business. AMB believes that value-added conversion dispositions are in substance land sales and as such should be included in FFO, as adjusted, consistent with the REIT industry’s long standing practice to include gains on the sale of land in funds from operations. However, AMB’s interpretation of FFO, as adjusted, may not be consistent with the views of others in the REIT industry, who may consider it to be a divergence from the National Association of Real Estate Investment |
44
Trusts (“NAREIT”) definition, and may not be comparable to funds from operations or funds from operations per share reported by other REITs that interpret the current NAREIT definition differently than AMB does. In connection with the formation of a joint venture, AMB may warehouse assets that are acquired with the intent to contribute these assets to the newly formed venture. Some of the properties held for contribution may, under certain circumstances, be required to be depreciated under GAAP. AMB includes in its calculation of FFO, as adjusted, gains or losses related to the contribution of previously depreciated real estate to joint ventures. Although it is a departure from the current NAREIT definition, AMB believes such calculation of FFO, as adjusted, better reflects the value created as a result of the contributions. | ||
In addition, AMB calculates FFO, as adjusted, to exclude impairment and restructuring charges, debt extinguishment losses and preferred unit redemption discounts/premiums. The impairment charges were principally a result of increases in estimated capitalization rates and deterioration in market conditions that adversely impacted values. The restructuring charges reflected costs associated with the reduction in global headcount and cost structure of AMB. Debt extinguishment losses generally included the costs of repurchasing debt securities. AMB repurchased certain tranches of senior unsecured debt to manage its debt maturities in response to the current financing environment, resulting in greater debt extinguishment costs. The preferred unit redemption discounts/premiums reflect the gain/loss associated with the liquidation preference in the preferred unit redemption price less costs incurred as a result of the redemption. In 2008, AMB also recognized charges to write-off pursuit costs related to development projects it no longer planned to commence and to establish a reserve against tax assets associated with the reduction of its development activities. Although difficult to predict, these items may be recurring given the uncertainty of the current economic climate and its adverse effects on the real estate and financial markets. While not infrequent or unusual in nature, these items result from market fluctuations that can have inconsistent effects on the results of operations of AMB. The economics underlying these items reflect market and financing conditions in the short-term but can obscure the performance of AMB and the value of the long-term investment decisions and strategies of AMB. AMB management believes FFO, as adjusted, is significant and useful to both it and its investors. FFO, as adjusted, more appropriately reflects the value and strength of the business model of AMB and its potential performance isolated from the volatility of the current economic environment and unobscured by costs (or gains) resulting from the management of AMB of its financing profile in response to the tightening of the capital markets. However, in addition to the limitations of the FFO Measures, as adjusted, generally discussed below, FFO, as adjusted, does not present a comprehensive measure of the financial condition and operating performance of AMB. This measure is a modification of the NAREIT definition of funds from operations and should not be used as an alternative to net income or cash flow from operations as defined by GAAP. | ||
AMB believes that the FFO Measures, as adjusted, are meaningful supplemental measures of its operating performance because historical cost accounting for real estate assets in accordance with GAAP implicitly assumes that the value of real estate assets diminishes predictably over time, as reflected through depreciation and amortization expenses. However, since real estate values have historically risen or fallen with market and other conditions, many industry investors and analysts have considered presentation of operating results for real estate companies that use historical cost accounting to be insufficient. Thus, the FFO Measures, as adjusted, are supplemental measures of operating performance for REITs that exclude historical cost depreciation and amortization, among other items, from net income available to common stockholders, as defined by GAAP. AMB believes that the use of the FFO Measures, as adjusted, combined with the required GAAP presentations, has been beneficial in improving the understanding of operating results of REITs among the investing public and making comparisons of operating results among such companies more meaningful. AMB considers the FFO Measures, as adjusted, to be useful measures for reviewing comparative operating and financial performance because, by excluding gains or losses related to sales of previously depreciated operating real estate assets and real estate depreciation and amortization, the FFO Measures, as adjusted, can help the investing public compare the operating performance of a company’s real estate between periods or as compared to other companies. While funds from operations is a relevant and widely used measure of operating performance of REITs, the FFO Measures, as adjusted, do not represent cash flow from operations or net income as defined by GAAP and should not be considered as alternatives to those measures in evaluating the liquidity or operating performance of AMB. The FFO Measures, as adjusted, also do not consider the costs associated with capital expenditures related to the real |
45
estate assets of AMB nor are the FFO Measures, as adjusted, necessarily indicative of cash available to fund the future cash requirements of AMB. AMB management compensates for the limitations of the FFO Measures, as adjusted, by providing investors with financial statements prepared according to GAAP, along with this detailed discussion of the FFO Measures, as adjusted, and a reconciliation of the FFO Measures, as adjusted, to net income available to common stockholders, a GAAP measurement. | ||
(2) | Includes adjustments for AMB’s share of real estate impairment losses from unconsolidated and consolidated joint ventures. |
46
Three Months Ended | ||||||||
March 31, | ||||||||
2011 | 2010 | |||||||
(In millions, except per | ||||||||
share amounts) | ||||||||
(Unaudited) | ||||||||
Operating Data: | ||||||||
Revenues: | ||||||||
Rental revenues | $ | 158 | $ | 147 | ||||
Private capital revenues | 8 | 7 | ||||||
Total revenues | 166 | 154 | ||||||
Costs and Expenses: | ||||||||
Property operating costs | 52 | 48 | ||||||
Depreciation and amortization | 55 | 47 | ||||||
General and administrative | 31 | 32 | ||||||
Merger transaction costs and restructuring charges | 4 | 3 | ||||||
Fund costs and other expenses | 1 | 2 | ||||||
Total costs and expenses | 143 | 132 | ||||||
Other Income and Expenses: | ||||||||
Development profits, net of taxes | — | 5 | ||||||
Earnings from unconsolidated joint ventures, net | 8 | 4 | ||||||
Interest expense, amortization and other income, net | (34 | ) | (33 | ) | ||||
Loss from continuing operations | (3 | ) | (2 | ) | ||||
Income and gains from discontinued operations | 17 | 1 | ||||||
Noncontrolling interests’ share of net income | (2 | ) | — | |||||
Preferred unit dividends & allocation to participating securities | (4 | ) | (4 | ) | ||||
Net income (loss) attributable to common unitholders | $ | 8 | $ | (5 | ) | |||
Net income (loss) per unit available to common unitholders — Basic | $ | 0.05 | $ | (0.03 | ) | |||
Net income (loss) per unit available to common unitholders — Diluted | $ | 0.05 | $ | (0.03 | ) | |||
Weighted average common unit outstanding: | ||||||||
Basic | 170 | 151 | ||||||
Diluted | 170 | 151 |
47
As of March 31, 2011 | ||||
(In millions) | ||||
(Unaudited) | ||||
Balance sheet Data: | ||||
Investments in real estate (at cost) | $ | 6,841 | ||
Total assets | $ | 7,421 | ||
Total debt | $ | 3,426 | ||
Total liabilities and noncontrolling interests | $ | 4,081 | ||
Preferred units | $ | 223 | ||
Total partners’ capital (excluding preferred units) | $ | 3,117 | ||
Number of common units outstanding | 169 |
For the Years Ended December 31, | ||||||||||||||||||||
2010 | 2009 | 2008 | 2007 | 2006 | ||||||||||||||||
(In millions, except per share amounts) | ||||||||||||||||||||
Operating Data: | ||||||||||||||||||||
Total revenues | $ | 634 | $ | 618 | $ | 678 | $ | 636 | $ | 679 | ||||||||||
Income (loss) from continuing operations | $ | 9 | $ | (124 | ) | $ | (18 | ) | $ | 282 | $ | 210 | ||||||||
Income from discontinued operations | $ | 24 | $ | 96 | $ | 11 | $ | 90 | $ | 78 | ||||||||||
Net income (loss) before cumulative effect of change in accounting principle | $ | 34 | $ | (28 | ) | $ | (7 | ) | $ | 372 | $ | 289 | ||||||||
Net income (loss) | $ | 34 | $ | (28 | ) | $ | (7 | ) | $ | 372 | $ | 289 | ||||||||
Net income (loss) available to common unitholders | $ | 10 | $ | (51 | ) | $ | (67 | ) | $ | 305 | $ | 217 | ||||||||
(Loss) income from continuing operations available to common unitholders per common unit: | ||||||||||||||||||||
Basic | $ | (0.08 | ) | $ | (1.02 | ) | $ | (0.75 | ) | $ | 2.13 | $ | 1.53 | |||||||
Diluted | $ | (0.08 | ) | $ | (1.02 | ) | $ | (0.75 | ) | $ | 2.08 | $ | 1.48 | |||||||
Income from discontinued operations available to common unitholders per common unit: | ||||||||||||||||||||
Basic | $ | 0.14 | $ | 0.65 | $ | 0.09 | $ | 0.88 | $ | 0.83 | ||||||||||
Diluted | $ | 0.14 | $ | 0.65 | $ | 0.09 | $ | 0.86 | $ | 0.80 | ||||||||||
Net income (loss) available to common unitholders per common unit | ||||||||||||||||||||
Basic | $ | 0.06 | $ | (0.37 | ) | $ | (0.66 | ) | $ | 3.01 | $ | 2.36 | ||||||||
Diluted | $ | 0.06 | $ | (0.37 | ) | $ | (0.66 | ) | $ | 2.94 | $ | 2.28 | ||||||||
Cash dividends per common unit | $ | 1.12 | $ | 1.12 | $ | 1.56 | $ | 2.00 | $ | 1.84 | ||||||||||
Weighted average common unit outstanding | ||||||||||||||||||||
Basic | 164 | 136 | 101 | 102 | 92 | |||||||||||||||
Diluted | 164 | 136 | 101 | 104 | 95 | |||||||||||||||
As of December 31, | ||||||||||||||||||||
2010 | 2009 | 2008 | 2007 | 2006 | ||||||||||||||||
(In millions) | ||||||||||||||||||||
Balance sheet Data: | ||||||||||||||||||||
Investments in real estate (at cost) | $ | 6,906 | $ | 6,709 | $ | 6,604 | $ | 6,710 | $ | 6,576 | ||||||||||
Total assets | $ | 7,373 | $ | 6,842 | $ | 7,302 | $ | 7,262 | $ | 6,714 | ||||||||||
Total debt | $ | 3,331 | $ | 3,213 | $ | 3,990 | $ | 3,495 | $ | 3,437 | ||||||||||
Total liabilities and noncontrolling interests | $ | 4,015 | $ | 3,864 | $ | 4,736 | $ | 4,428 | $ | 4,395 | ||||||||||
Preferred units | $ | 223 | $ | 223 | $ | 223 | $ | 223 | $ | 223 | ||||||||||
Total partner’s capital (excluding preferred units) | $ | 3,135 | $ | 2,755 | $ | 2,343 | $ | 2,611 | $ | 2,096 |
48
For the Years Ended December 31, | ||||||||||||||||||||
2010 | 2009 | 2008 | 2007 | 2006 | ||||||||||||||||
(In millions) | ||||||||||||||||||||
Funds from operations (FFO), as adjusted(1) | ||||||||||||||||||||
Net income (loss) available to common unitholders | $ | 10 | $ | (50 | ) | $ | (66 | ) | $ | 294 | $ | 208 | ||||||||
Gains from sale or contribution of real estate interests, net | (20 | ) | (39 | ) | (23 | ) | (86 | ) | (45 | ) | ||||||||||
Total depreciation and amortization | 190 | 174 | 162 | 158 | 176 | |||||||||||||||
Adjustments to derive FFO, as defined by NAREIT from consolidated joint ventures | (22 | ) | (17 | ) | (19 | ) | (22 | ) | (35 | ) | ||||||||||
Adjustments to derive FFO, as defined by NAREIT from unconsolidated joint ventures | 43 | 32 | 26 | 20 | (7 | ) | ||||||||||||||
Funds from operations, as defined by NAREIT(1) | $ | 201 | $ | 100 | $ | 80 | $ | 364 | $ | 297 | ||||||||||
Adjustments for impairment charges, restructuring charges, preferred unit redemption (discount) premium and debt extinguishment: | ||||||||||||||||||||
Real estate impairment losses(2) | 1 | 182 | 194 | 1 | 6 | |||||||||||||||
Pursuit costs and tax reserve | — | — | 12 | — | — | |||||||||||||||
Restructuring charges | 5 | 6 | 12 | — | — | |||||||||||||||
Loss on early extinguishment of debt | 3 | 12 | 1 | — | — | |||||||||||||||
Preferred unit redemption (discount) premium | — | (10 | ) | — | 3 | 1 | ||||||||||||||
Allocation to participating securities | — | (1 | ) | (1 | ) | — | (1 | ) | ||||||||||||
FFO, as adjusted(1) | $ | 210 | $ | 289 | $ | 298 | $ | 368 | $ | 303 | ||||||||||
AMB’s share of development profits, net of taxes | (7 | ) | (88 | ) | (77 | ) | (168 | ) | (106 | ) | ||||||||||
Allocation to participating securities | — | — | 1 | 1 | 1 | |||||||||||||||
Core funds from operations (Core FFO), as adjusted(1) | $ | 203 | $ | 201 | $ | 222 | $ | 201 | $ | 198 | ||||||||||
Cash flows provided by (used in): | ||||||||||||||||||||
Operating activities | $ | 253 | $ | 243 | $ | 303 | $ | 241 | $ | 336 | ||||||||||
Investing activities | $ | (587 | ) | $ | 84 | $ | (882 | ) | $ | (632 | ) | $ | (881 | ) | ||||||
Financing activities | $ | 330 | $ | (298 | ) | $ | 580 | $ | 420 | $ | 484 |
(1) | AMB LP believes that net income, as defined by GAAP, is the most appropriate earnings measure. However, AMB LP considers FFO Measures, as adjusted, to be useful supplemental measures of its operating performance. AMB LP calculates FFO, as adjusted, as net income (or loss) available to common unitholders, calculated in accordance with GAAP, less gains (or losses) from dispositions of real estate held for investment purposes and real estate-related depreciation, and adjustments to derive AMB LP’s pro rata share of FFO, as adjusted, of consolidated and unconsolidated joint ventures. AMB LP calculates Core FFO, as adjusted, as FFO, as adjusted excluding the share of development profits of AMB LP. These calculations also include adjustments for items as described below. | |
Unless stated otherwise, AMB LP includes the gains from development, including those from value-added conversion projects, before depreciation recapture, as a component of FFO, as adjusted. AMB LP believes gains from development should be included in FFO, as adjusted, to more completely reflect the performance of one of AMB LP’s lines of business. AMB LP believes that value-added conversion dispositions are in substance land sales and as such should be included in FFO, as adjusted, consistent with the REIT industry’s long standing practice to include gains on the sale of land in funds from operations. However, AMB LP’s interpretation of FFO, as adjusted, may not be consistent with the views of others in the REIT industry, who may consider it to be a divergence from the NAREIT definition, and may not be comparable to funds from operations or funds from operations per share reported by other REITs that interpret the current NAREIT definition differently than AMB LP does. In connection with the formation |
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of a joint venture, AMB LP may warehouse assets that are acquired with the intent to contribute these assets to the newly formed venture. Some of the properties held for contribution may, under certain circumstances, be required to be depreciated under GAAP. AMB LP includes in its calculation of FFO, as adjusted, gains or losses related to the contribution of previously depreciated real estate to joint ventures. Although it is a departure from the current NAREIT definition, AMB LP believes such calculation of FFO, as adjusted, better reflects the value created as a result of the contributions. | ||
In addition, AMB LP calculates FFO, as adjusted, to exclude impairment and restructuring charges, debt extinguishment losses and preferred unit redemption discounts/premiums. The impairment charges were principally a result of increases in estimated capitalization rates and deterioration in market conditions that adversely impacted values. The restructuring charges reflected costs associated with the reduction in global headcount and cost structure of AMB LP. Debt extinguishment losses generally included the costs of repurchasing debt securities. AMB LP repurchased certain tranches of senior unsecured debt to manage its debt maturities in response to the current financing environment, resulting in greater debt extinguishment costs. The preferred unit redemption discounts/premiums reflect the gain/loss associated with the liquidation preference in the preferred unit redemption price less costs incurred as a result of the redemption. In 2008, AMB LP also recognized charges to write-off pursuit costs related to development projects it no longer planned to commence and to establish a reserve against tax assets associated with the reduction of its development activities. Although difficult to predict, these items may be recurring given the uncertainty of the current economic climate and its adverse effects on the real estate and financial markets. While not infrequent or unusual in nature, these items result from market fluctuations that can have inconsistent effects on the results of operations of AMB LP. The economics underlying these items reflect market and financing conditions in the short-term but can obscure the performance of AMB and the value of the long-term investment decisions and strategies of AMB LP. AMB LP management believes FFO, as adjusted, is significant and useful to both it and its investors. FFO, as adjusted, more appropriately reflects the value and strength of the business model of AMB LP and its potential performance isolated from the volatility of the current economic environment and unobscured by costs (or gains) resulting from the management of AMB LP of its financing profile in response to the tightening of the capital markets. However, in addition to the limitations of the FFO Measures, as adjusted, generally discussed below, FFO, as adjusted, does not present a comprehensive measure of the financial condition and operating performance of AMB LP. This measure is a modification of the NAREIT definition of funds from operations and should not be used as an alternative to net income or cash flow from operations as defined by GAAP. | ||
AMB LP believes that the FFO Measures, as adjusted, are meaningful supplemental measures of its operating performance because historical cost accounting for real estate assets in accordance with GAAP implicitly assumes that the value of real estate assets diminishes predictably over time, as reflected through depreciation and amortization expenses. However, since real estate values have historically risen or fallen with market and other conditions, many industry investors and analysts have considered presentation of operating results for real estate companies that use historical cost accounting to be insufficient. Thus, the FFO Measures, as adjusted, are supplemental measures of operating performance for REITs that exclude historical cost depreciation and amortization, among other items, from net income available to common unitholders, as defined by GAAP. AMB LP believes that the use of the FFO Measures, as adjusted, combined with the required GAAP presentations, has been beneficial in improving the understanding of operating results of REITs among the investing public and making comparisons of operating results among such companies more meaningful. AMB LP considers the FFO Measures, as adjusted, to be useful measures for reviewing comparative operating and financial performance because, by excluding gains or losses related to sales of previously depreciated operating real estate assets and real estate depreciation and amortization, the FFO Measures, as adjusted, can help the investing public compare the operating performance of a company’s real estate between periods or as compared to other companies. While funds from operations is a relevant and widely used measure of operating performance of REITs, the FFO Measures, as adjusted, do not represent cash flow from operations or net income as defined by GAAP and should not be considered as alternatives to those measures in evaluating the liquidity or operating performance of AMB LP. The FFO Measures, as adjusted, also do not consider the costs associated with capital expenditures related to the real estate assets of AMB LP nor are the FFO Measures, as adjusted, necessarily indicative of cash available to fund the future cash requirements of AMB LP. AMB LP |
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management compensates for the limitations of the FFO Measures, as adjusted, by providing investors with financial statements prepared according to GAAP, along with this detailed discussion of the FFO Measures, as adjusted, and a reconciliation of the FFO Measures, as adjusted, to net income available to common unitholders, a GAAP measurement. | ||
(2) | Includes adjustments for AMB LP’s share of real estate impairment losses from unconsolidated and consolidated joint ventures. |
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Three Months Ended | ||||||||
March 31, | ||||||||
2011 | 2010 | |||||||
(In millions, except per | ||||||||
share amounts) | ||||||||
(Unaudited) | ||||||||
Operating Data: | ||||||||
Revenues: | ||||||||
Rental income | $ | 205.3 | $ | 187.5 | ||||
Property management fees and other income | 33.5 | 29.8 | ||||||
Total revenues | 238.8 | 217.3 | ||||||
Expenses: | ||||||||
Rental expenses | 63.3 | 56.3 | ||||||
Investment management expenses | 10.6 | 10.3 | ||||||
General and administrative | 39.2 | 42.0 | ||||||
Merger integration expenses and reduction in workforce | 6.0 | — | ||||||
Depreciation and other | 87.3 | 79.4 | ||||||
Total expenses | 206.4 | 188.0 | ||||||
Operating income | 32.4 | 29.3 | ||||||
Other income (expense): | ||||||||
Earnings from unconsolidated investees, net | 13.6 | 8.0 | ||||||
Loss on early extinguishment of debt | — | (47.6 | ) | |||||
Net gains on dispositions of investments in real estate | 3.7 | 11.8 | ||||||
Interest, income taxes and other income (expenses), net | (98.1 | ) | (114.8 | ) | ||||
Loss from continuing operations | (48.4 | ) | (113.3 | ) | ||||
Income from discontinued operations | 8.2 | 28.8 | ||||||
Consolidated net loss | $ | (40.2 | ) | $ | (84.5 | ) | ||
Net loss attributable to common shares | $ | (46.6 | ) | $ | (91.1 | ) | ||
Net loss per share attributable to common shares — Basic | $ | (0.08 | ) | $ | (0.19 | ) | ||
Net loss per share attributable to common shares — Diluted | $ | (0.08 | ) | $ | (0.19 | ) | ||
Weighted average common shares outstanding: | ||||||||
Basic | 570.6 | 475.0 | ||||||
Diluted | 570.6 | 475.0 |
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As of March 31, | ||||
2011 | ||||
(In millions) | ||||
(Unaudited) | ||||
Financial Position: | ||||
Real estate properties owned, excluding land held for development, before depreciation | $ | 11,541.5 | ||
Land held for development or targeted for disposition | $ | 1,600.0 | ||
Net investments in properties | $ | 11,484.7 | ||
Investments in and advances to unconsolidated investees | $ | 2,084.7 | ||
Total assets | $ | 14,935.7 | ||
Total debt | $ | 6,415.0 | ||
Total liabilities | $ | 7,309.3 | ||
Noncontrolling interests | $ | 17.7 | ||
ProLogis shareholders’ equity | $ | 7,608.7 | ||
Number of common shares outstanding | 570.6 |
Years Ended December 31, | ||||||||||||||||||||
2010 | 2009 | 2008 | 2007 | 2006 | ||||||||||||||||
(In millions, except per share amounts) | ||||||||||||||||||||
Operating Data: | ||||||||||||||||||||
Total revenues(1) | $ | 909 | $ | 1,055 | $ | 5,396 | $ | 5,944 | $ | 2,209 | ||||||||||
Total expenses(1) | $ | 1,503 | $ | 1,089 | $ | 4,897 | $ | 4,922 | $ | 1,556 | ||||||||||
Operating income (loss)(1)(2) | $ | (594 | ) | $ | (35 | ) | $ | 500 | $ | 1,022 | $ | 654 | ||||||||
Interest expense | $ | 461 | $ | 373 | $ | 385 | $ | 389 | $ | 294 | ||||||||||
Earnings (loss) from continuing operations(2) | $ | (1,582 | ) | $ | (346 | ) | $ | (359 | ) | $ | 853 | $ | 609 | |||||||
Discontinued operations | $ | 311 | $ | 370 | $ | (91 | ) | $ | 205 | $ | 269 | |||||||||
Consolidated net earnings (loss)(2) | $ | (1,270 | ) | $ | 24 | $ | (450 | ) | $ | 1,058 | $ | 878 | ||||||||
Net earnings (loss) attributable to common shares(2) | $ | (1,296 | ) | $ | (3 | ) | $ | (479 | ) | $ | 1,028 | $ | 849 | |||||||
Net earnings (loss) per share attributable to common shares — Basic: | ||||||||||||||||||||
Continuing operations | $ | (3.27 | ) | $ | (0.93 | ) | $ | (1.48 | ) | $ | 3.20 | $ | 2.36 | |||||||
Discontinued operations | 0.63 | 0.92 | (0.34 | ) | 0.80 | 1.09 | ||||||||||||||
Net earnings (loss) per share attributable to common shares — Basic(2) | $ | (2.64 | ) | $ | (0.01 | ) | $ | (1.82 | ) | $ | 4.00 | $ | 3.45 | |||||||
Net earnings (loss) per share attributable to common shares — Diluted: | ||||||||||||||||||||
Continuing operations | $ | (3.27 | ) | $ | (0.93 | ) | $ | (1.48 | ) | $ | 3.09 | $ | 2.27 | |||||||
Discontinued operations | 0.63 | 0.92 | (0.34 | ) | 0.77 | 1.05 | ||||||||||||||
Net earnings (loss) per share attributable to common shares — Diluted(2) | $ | (2.64 | ) | $ | (0.01 | ) | $ | (1.82 | ) | $ | 3.86 | $ | 3.32 | |||||||
Weighted average common shares outstanding: | ||||||||||||||||||||
Basic | 492 | 403 | 263 | 257 | 246 | |||||||||||||||
Diluted | 492 | 403 | 263 | 267 | 257 | |||||||||||||||
Common Share Distributions: | ||||||||||||||||||||
Common share cash distributions paid | $ | 281 | $ | 272 | $ | 543 | $ | 473 | $ | 393 | ||||||||||
Common share distributions paid per share | $ | 0.56 | $ | 0.70 | $ | 2.07 | $ | 1.84 | $ | 1.60 | ||||||||||
FFO(3): | ||||||||||||||||||||
Reconciliation of net earnings (loss) to FFO: | ||||||||||||||||||||
Net earnings (loss) attributable to common shares(2) | $ | (1,296 | ) | $ | (3 | ) | $ | (479 | ) | $ | 1,028 | $ | 849 | |||||||
Total NAREIT defined adjustments | 241 | 213 | 449 | 150 | 149 | |||||||||||||||
FFO, as defined by NAREIT | (1,055 | ) | 210 | (30 | ) | 1,178 | 998 |
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Years Ended December 31, | ||||||||||||||||||||
2010 | 2009 | 2008 | 2007 | 2006 | ||||||||||||||||
(In millions, except per share amounts) | ||||||||||||||||||||
ProLogis’ defined adjustments: | ||||||||||||||||||||
Foreign currency exchange losses (gains), net | 11 | (58 | ) | 144 | 16 | (19 | ) | |||||||||||||
Current income tax expense | — | 4 | 10 | 3 | 23 | |||||||||||||||
Deferred income tax expense (benefit) | (52 | ) | (23 | ) | 4 | 1 | (54 | ) | ||||||||||||
ProLogis’ share of reconciling items from unconsolidated investees: | ||||||||||||||||||||
Foreign currency exchange losses (gains), net | (9 | ) | (2 | ) | 2 | 2 | — | |||||||||||||
Unrealized losses (gains) on derivative contracts, net | 4 | (8 | ) | 23 | — | — | ||||||||||||||
Deferred income tax expense (benefit) | — | 16 | (19 | ) | 6 | (3 | ) | |||||||||||||
FFO attributable to common shares as defined by ProLogis, including significant non-cash items | (1,101 | ) | 139 | 134 | 1,206 | 945 | ||||||||||||||
Add (deduct) significant non-cash items: | ||||||||||||||||||||
Impairment of real estate properties(2) | 824 | 331 | 275 | — | — | |||||||||||||||
Impairment of goodwill and other assets(2) | 413 | 164 | 321 | — | — | |||||||||||||||
Impairment (net gain) related to China operations | — | (3 | ) | 198 | — | — | ||||||||||||||
Loss (gain) on early extinguishment of debt | 31 | (172 | ) | (91 | ) | — | — | |||||||||||||
Write-off deferred financing fees associated with credit facility restructuring | 8 | — | — | — | — | |||||||||||||||
ProLogis’ share of certain losses recognized by the property funds, net | 11 | 9 | 108 | — | — | |||||||||||||||
FFO attributable to common shares as defined by ProLogis, excluding significant non-cash items | $ | 186 | $ | 468 | $ | 945 | $ | 1,206 | $ | 945 | ||||||||||
Cash Flow Data: | ||||||||||||||||||||
Net cash provided by operating activities(1) | $ | 241 | $ | 89 | $ | 888 | $ | 1,230 | $ | 664 | ||||||||||
Net cash provided by (used in) investing activities | $ | 733 | $ | 1,235 | $ | (1,347 | ) | $ | (4,076 | ) | $ | (2,047 | ) | |||||||
Net cash provided by (used in) financing activities | $ | (970 | ) | $ | (1,463 | ) | $ | 358 | $ | 2,742 | $ | 1,645 | ||||||||
As of December 31, | ||||||||||||||||||||
2010 | 2009 | 2008(1) | 2007(1) | 2006 | ||||||||||||||||
(in millions) | ||||||||||||||||||||
Financial Position: | ||||||||||||||||||||
Real estate properties owned, excluding land held for development, before depreciation | $ | 11,346 | $ | 12,606 | $ | 13,234 | $ | 14,414 | $ | 12,482 | ||||||||||
Land held for development or targeted for disposition(2) | $ | 1,534 | $ | 2,574 | $ | 2,483 | $ | 2,153 | $ | 1,397 | ||||||||||
Net investments in properties | $ | 11,284 | $ | 13,508 | $ | 14,134 | $ | 15,199 | $ | 12,615 | ||||||||||
Investments in and advances to unconsolidated investees | $ | 2,025 | $ | 2,107 | $ | 2,195 | $ | 2,252 | $ | 1,300 | ||||||||||
Total assets | $ | 14,903 | $ | 16,797 | $ | 19,210 | $ | 19,652 | $ | 15,827 | ||||||||||
Total debt | $ | 6,506 | $ | 7,978 | $ | 10,711 | $ | 10,217 | $ | 8,387 | ||||||||||
Total liabilities | $ | 7,382 | $ | 8,790 | $ | 12,452 | $ | 11,848 | $ | 9,376 | ||||||||||
Noncontrolling interests | $ | 15 | $ | 20 | $ | 20 | $ | 79 | $ | 52 | ||||||||||
ProLogis shareholders’ equity | $ | 7,505 | $ | 7,987 | $ | 6,738 | $ | 7,725 | $ | 6,399 | ||||||||||
Number of common shares outstanding | 570 | 474 | 267 | 258 | 251 |
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(1) | During 2010 and 2009, ProLogis contributed certain properties with any resulting gain or loss reflected as net gains in the Consolidated Statements of Operations of ProLogis and as cash provided by investing activities. In 2008 and previous years, ProLogis reflected these contributions as gross revenues and expenses as cash provided by operating activities. See the Consolidated Financial Statements of ProLogis contained in Item 8 of ProLogis’ Form 10-K for the year ended December 31, 2010 for more information. | |
(2) | During 2010, ProLogis recognized impairment charges of $824.3 million on certain of its real estate properties, which includes $87.7 million in discontinued operations and $412.7 million related to goodwill and other assets. During 2009, ProLogis recognized impairment charges of $331.6 million on certain of its real estate properties and $163.6 million related to goodwill and other assets. During 2008, ProLogis recognized impairment charges of $274.7 million on certain of its real estate properties and $320.6 million related to goodwill and other assets. In addition, during 2008, ProLogis recognized impairment charges of $198.2 million in discontinued operations related to the net assets of ProLogis’ China operations that were reclassified as held for sale and its share of impairment charges recorded by an unconsolidated investee of $108.2 million. See ProLogis’ Consolidated Financial Statements contained in Item 8 of ProLogis’ Form 10-K for the year ended December 31, 2010 in for more information. | |
(3) | Funds from operations (“FFO”) is a non-GAAP measure that is commonly used in the real estate industry. The most directly comparable GAAP measure to FFO is net earnings. Although the NAREIT has published a definition of FFO, modifications to the NAREIT calculation of FFO are common among REITs, as companies seek to provide financial measures that meaningfully reflect their business. FFO, as ProLogis defines it, is presented as a supplemental financial measure. FFO is not used by ProLogis as, nor should it be considered to be, an alternative to net earnings computed under GAAP as an indicator of the operating performance of ProLogis or as an alternative to cash from operating activities computed under GAAP as an indicator of the ability of ProLogis to fund its cash needs. | |
FFO is not meant to represent a comprehensive system of financial reporting and does not present, nor does ProLogis intend it to present, a complete picture of its financial condition and operating performance. ProLogis believes net earnings computed under GAAP remains the primary measure of performance and that FFO is only meaningful when it is used in conjunction with net earnings computed under GAAP. Further, ProLogis believes that its consolidated financial statements, prepared in accordance with GAAP, provide the most meaningful picture of its financial condition and operating performance. | ||
At the same time that NAREIT created and defined its FFO concept for the REIT industry, it also recognized that “management of each of its member companies has the responsibility and authority to publish financial information that it regards as useful to the financial community.” ProLogis believes that financial analysts, potential investors and shareholders who review the operating results of ProLogis are best served by a defined FFO measure that includes other adjustments to net earnings computed under GAAP in addition to those included in the NAREIT defined measure of FFO. The FFO measures of ProLogis are discussed in “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations — Funds From Operations (“FFO”)” in its Annual Report on Form 10-K for its fiscal year ended December 31, 2010, which is incorporated into this prospectus by reference. See “Where You Can Find More Information.” |
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December 31, 2010 | ||||
(In millions, except | ||||
per share amounts) | ||||
Operating Data: | ||||
Total revenues | $ | 1,536 | ||
Operating loss | $ | (495 | ) | |
Loss from continuing operations | $ | (1,575 | ) | |
Loss from continuing operations attributable to common shares | $ | (1,621 | ) | |
Loss from continuing operations per share attributable to common shares | ||||
Basic | $ | (3.89 | ) | |
Diluted | $ | (3.89 | ) | |
Balance Sheet Data: | ||||
Net investments in real estate | $ | 23,742 | ||
Total assets | $ | 25,581 | ||
Total debt | $ | 9,906 | ||
ProLogis, Inc. shareholders’ equity | $ | 13,626 |
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ProLogis | AMB | |||||||||||||||
Pro Forma | Pro Forma | |||||||||||||||
Historical | Combined | Historical | Equivalent | |||||||||||||
Loss from continuing operations available to common share, per common share: | ||||||||||||||||
Basic | $ | (3.27 | ) | $ | (3.89 | ) | $ | (0.08 | ) | $ | (1.56 | ) | ||||
Diluted | $ | (3.27 | ) | $ | (3.89 | ) | $ | (0.08 | ) | $ | (1.56 | ) | ||||
Dividends declared per common share. | $ | 0.56 | $ | 0.56 | $ | 1.12 | $ | 0.22 | ||||||||
Book value per common share | $ | 12.55 | $ | 30.80 | $ | 18.36 | $ | 12.32 |
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Year Ended December 31, | ||||||||||||||||||||
2010 | 2009 | 2008 | 2007 | 2006 | ||||||||||||||||
Consolidated ratio of earnings to fixed charges (1) | — | — | — | 2.0x | 1.6x |
Year Ended December 31, | ||||||||||||||||||||
2010 | 2009 | 2008 | 2007 | 2006 | ||||||||||||||||
Consolidated ratio of earnings to fixed charges (1) | — | — | — | 2.1x | 1.6x |
(1) | The consolidated ratio of earnings to fixed charges was less than one-to-one for the years ended December 31, 2010, 2009 and 2008. For the years ended December 31, 2010, 2009 and 2008, earnings were insufficient to cover fixed charges by $25.0 million, $167.3 million and $84.6 million, respectively, for each of AMB and AMB LP. |
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• | eliminate cross-acceleration and judgment default from the events of default; | ||
• | eliminate certain requirements that must be met for ProLogis to consolidate, merge or sell all or substantially all of its assets; | ||
• | eliminate the covenant prohibiting ProLogis and its subsidiaries from incurring additional unsecured indebtedness; | ||
• | eliminate the covenants requiring ProLogis to maintain its properties in useful condition, keep its properties insured and pay any taxes, governmental charges and other claims; and | ||
• | eliminate the covenant requiring ProLogis to prepare and file separate periodic reports under the Exchange Act (except as required by the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”)). |
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• | AMB LP’s financial performance; | ||
• | the amount of indebtedness AMB LP and its subsidiaries have outstanding; | ||
• | market interest rates; | ||
• | the market for similar securities; | ||
• | competition; | ||
• | the size and liquidity of the market for the AMB LP Notes; and | ||
• | general economic conditions. |
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• | was insolvent; | ||
• | was rendered insolvent; | ||
• | was engaged in a business or transaction for which its remaining unencumbered assets constituted unreasonably small capital; | ||
• | intended to incur or believed that it would incur debts beyond its ability to pay as the debts matured; or | ||
• | entered into the guarantees with actual intent to hinder, delay or defraud its creditors, |
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• | greater than $380.82 per share or less than $142.97 per share (in each case, subject to adjustment), no adjustment will be made to the applicable exchange rate for the AMB LP 2.250% 2037 Exchangeable Notes, | ||
• | greater than $268.82 per share or less than $142.97 per share (in each case, subject to adjustment), no adjustment will be made to the applicable exchange rate for the AMB LP 1.875% 2037 Exchangeable Notes, | ||
• | greater than $268.82 per share or less than $140.82 per share (in each case, subject to adjustment), no adjustment will be made to the applicable exchange rate for the AMB LP 2.625% 2038 Exchangeable Notes, and | ||
• | greater than $89.61 per share or less than $30.02 per share (in each case, subject to adjustment), no adjustment will be made to the applicable exchange rate for the AMB LP 3.250% 2015 Exchangeable Notes. |
• | 7.0410 per $1,000 principal amount of AMB LP 2.250% 2037 Exchangeable Notes, | ||
• | 6.5762 per $1,000 principal amount of AMB LP 1.875% 2037 Exchangeable Notes, | ||
• | 7.1015 per $1,000 principal amount of AMB LP 2.625% 2038 Exchangeable Notes, and | ||
• | 33.3134 per $1,000 principal amount of AMB LP 3.250% 2015 Exchangeable Notes, |
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• | ProLogis being required, under certain circumstances, to pay AMB a termination fee of $315 million and reimburse AMB for up to $20 million of its expenses in connection with the Merger; | ||
• | ProLogis having to pay certain costs relating to the proposed Merger, such as legal, accounting, financial advisor, filing, printing and mailing fees; and | ||
• | the management of ProLogis focusing on the Merger instead of on pursuing other opportunities that could be beneficial to ProLogis without realizing any of the benefits of having the Merger completed. |
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• | the inability to successfully combine the businesses of AMB and ProLogis in a manner that permits the combined company to achieve the cost savings anticipated to result from the Merger, which would result in the anticipated benefits of the Merger not being realized in the timeframe currently anticipated or at all; | ||
• | lost sales and customers as a result of certain customers of either of AMB or ProLogis deciding not to do business with the combined company; | ||
• | the complexities associated with managing the combined businesses out of several different locations and integrating personnel from AMB and ProLogis; | ||
• | the additional complexities of combining two AMB and ProLogis with different histories, cultures, regulatory restrictions, markets and customer bases; | ||
• | the failure to retain key employees of either of AMB or ProLogis; | ||
• | potential unknown liabilities and unforeseen increased expenses, delays or regulatory conditions associated with the Merger; and | ||
• | performance shortfalls at one or both of AMB or ProLogis as a result of the diversion of management’s attention caused by completing the Merger and integrating AMB’s or ProLogis’ operations. |
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• | a greater number of shares of the combined company outstanding as compared to the number of currently outstanding shares of AMB; | ||
• | different stockholders; | ||
• | different businesses; and | ||
• | different assets and capitalizations. |
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AMB Common Stock | ProLogis Common Shares | |||||||||||||||||||||||
Date | High | Low | Close | High | Low | Close | ||||||||||||||||||
January 26, 2011 | $ | 33.34 | $ | 32.72 | $ | 32.86 | $ | 14.74 | $ | 14.50 | $ | 14.70 | ||||||||||||
January 28, 2011 | $ | 34.08 | $ | 32.80 | $ | 32.93 | $ | 15.84 | $ | 15.17 | $ | 15.21 | ||||||||||||
May 2, 2011 | $ | 37.05 | $ | 35.94 | $ | 36.36 | $ | 16.60 | $ | 16.08 | $ | 16.29 |
ProLogis Equivalent | ||||||||||||||||||||||||
AMB Common Stock | Per Share | |||||||||||||||||||||||
Date | High | Low | Close | High | Low | Close | ||||||||||||||||||
January 26, 2011 | $ | 33.34 | $ | 32.72 | $ | 32.86 | $ | 14.88 | $ | 14.61 | $ | 14.67 | ||||||||||||
January 28, 2011 | $ | 34.08 | $ | 32.80 | $ | 32.93 | $ | 15.21 | $ | 14.64 | $ | 14.70 | ||||||||||||
May 2, 2011 | $ | 37.05 | $ | 35.94 | $ | 36.36 | $ | 16.54 | $ | 16.04 | $ | 16.23 |
Dividend | ||||||||||||
High | Low | Declared | ||||||||||
2009 | ||||||||||||
First Quarter | $ | 26.03 | $ | 9.12 | $ | 0.28 | ||||||
Second Quarter | $ | 20.75 | $ | 13.81 | $ | 0.28 | ||||||
Third Quarter | $ | 25.96 | $ | 15.91 | $ | 0.28 | ||||||
Fourth Quarter | $ | 27.43 | $ | 20.71 | $ | 0.28 | ||||||
2010 | ||||||||||||
First Quarter | $ | 29.60 | $ | 21.80 | $ | 0.28 | ||||||
Second Quarter | $ | 29.17 | $ | 23.14 | $ | 0.28 | ||||||
Third Quarter | $ | 26.97 | $ | 22.05 | $ | 0.28 | ||||||
Fourth Quarter | $ | 32.18 | $ | 26.14 | $ | 0.28 | ||||||
2011 | ||||||||||||
First Quarter | $ | 36.47 | $ | 31.75 | $ | 0.28 | ||||||
Second Quarter (through May 2, 2011) | $ | 37.06 | $ | 34.52 | $ | — |
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Dividend | ||||||||||||
High | Low | Declared | ||||||||||
2009 | ||||||||||||
First Quarter | $ | 16.68 | $ | 4.87 | $ | 0.25 | ||||||
Second Quarter | $ | 9.77 | $ | 6.10 | $ | 0.15 | ||||||
Third Quarter | $ | 13.30 | $ | 6.54 | $ | 0.15 | ||||||
Fourth Quarter | $ | 15.04 | $ | 10.76 | $ | 0.15 | ||||||
2010 | ||||||||||||
First Quarter | $ | 14.71 | $ | 11.32 | $ | 0.15 | ||||||
Second Quarter | $ | 14.67 | $ | 9.61 | $ | 0.15 | ||||||
Third Quarter | $ | 12.22 | $ | 9.15 | $ | 0.15 | ||||||
Fourth Quarter | $ | 14.97 | $ | 11.66 | $ | 0.1125 | ||||||
2011 | ||||||||||||
First Quarter | $ | 16.52 | $ | 14.02 | $ | 0.1125 | ||||||
Second Quarter (through May 2, 2011) | $ | 16.70 | $ | 15.51 | $ | — |
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AMB Property, L.P.
San Francisco, California 94111
(415) 394-9000
Denver, Colorado 80239
(303) 567-5000
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San Francisco, California 94111
(415) 394-9000
Denver, Colorado 80239
(303) 567-5000
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• | removal of Mr. Moghadam from the office of co-chief executive officer of the combined company prior to December 31, 2012 or removal of Mr. Moghadam from the office of chief executive officer or chairman of the board of directors of the combined company prior to December 31, 2014; |
• | removal of Mr. Rakowich as co-chief executive officer of the combined company prior to December 31, 2012; |
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• | appointment of any person as chief executive officer or co-chief executive officer of the combined company, other than, prior to December 31, 2012, Mr. Moghadam or Mr. Rakowich, or, after December 31, 2012 and prior to December 31, 2014, Mr. Moghadam; |
• | appointment of any person, other than Mr. Moghadam, as chairman or co-chairman of the board of directors of the combined company prior to December 31, 2014; |
• | failure to nominate Mr. Moghadam or Mr. Rakowich as a director of the combined company in any election of directors where the term of such directorship commences prior to December 31, 2014 or December 31, 2012, respectively; or |
• | a material alteration, limitation or curtailment of the authority granted pursuant to the bylaws of the combined company to the chief executive officer, co-chief executive officer or chairman of the board prior to December 31, 2014. |
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• | first, in the ProLogis merger, ProLogis will be reorganized into an UPREIT structure by merging Pumpkin LLC with and into ProLogis, with ProLogis continuing as the surviving entity and as a direct wholly owned subsidiary of Upper Pumpkin and an indirect wholly owned subsidiary of New Pumpkin; |
• | following the ProLogis merger, in the Topco merger, New Pumpkin will be merged with and into AMB, with AMB continuing as the surviving corporation under the name of “ProLogis, Inc.”; and |
• | following the Topco merger, the combined company will contribute all of the outstanding equity interests of Upper Pumpkin to AMB LP, which will be renamed “ProLogis, L.P.”, in exchange for the issuance of partnership interests in AMB LP to the combined company. |
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• | each such option will be exercisable for that number of shares of common stock of the combined company equal to the product of the number of ProLogis common shares that were subject to such option immediately prior to the Topco merger, multiplied by the exchange ratio (0.4464) and rounded down to the nearest whole number of shares; and |
• | the per share exercise price for the shares of common stock of the combined company issuable upon exercise of such option will be equal to the quotient determined by dividing the exercise price of the option immediately prior to the Topco merger by the exchange ratio (0.4464), rounded up to the nearest whole cent. |
• | each such award, whether or not then vested or earned, will be assumed by the combined company by virtue of the Merger; |
• | each such award will be converted into the right to receive the number of shares of common stock of the combined company equal to the number of ProLogis common shares underlying or subject to such award immediately prior to the Topco merger, multiplied by the exchange ratio (0.4464) and rounded down to the nearest whole number of shares; and |
• | each such award will otherwise continue to be subject to the same terms and conditions as applicable immediately prior to the Topco merger effective date. |
• | participants may not increase their payroll deductions under such plan from those in effect on January 30, 2011, the date of the merger agreement; |
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• | no new participants may join such plan following January 30, 2011; | ||
• | all participation in, and purchases under such plan will be suspended effective as of the earlier of June 30, 2011 or ProLogis’ payroll period ending immediately prior to the closing of the Topco merger, but in no event less than ten business days prior to the closing of the Topco merger (the “suspension date”), such that the offering period in effect as of January 30, 2011, the date of the merger agreement, will be the final offering period under the plan until otherwise determined by the board of directors of the combined company; and | ||
• | with respect to any offering period under such plan in effect as of January 30, 2011, ProLogis will ensure that such offering period ends on the suspension date and that each participant’s accumulated contributions for such offering period will be applied to the purchase of ProLogis common shares in accordance with the terms of the plan. |
• | Mr. Hamid R. Moghadam, the current chief executive officer of AMB; |
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• | Mr. Walter C. Rakowich, the current chief executive officer of ProLogis; | ||
• | Ms. Lydia H. Kennard, Mr. J. Michael Losh, Mr. Jeffrey L. Skelton and Mr. Carl B. Webb, each of whom was designated as a director by the AMB board of directors and each of whom is currently a member of the AMB board of directors; and | ||
• | Mr. George L. Fotiades, Ms. Christine Garvey, Mr. Irving F. Lyons III, Mr. D. Michael Steuert and Mr. William D. Zollars each of whom was designated as a director by the ProLogis board of trustees and each of whom (other than Mr. Zollars) is currently a member of the ProLogis board of trustees. |
• | Audit Committee.Mr. Losh (chair), Ms. Garvey and Mr. Steuert; | ||
• | Compensation Committee.Mr. Fotiades (chair), Mr. Webb and Mr. Zollars; | ||
• | Nominating & Governance Committee.Ms. Kennard (chair), Mr. Skelton and Mr. Zollars; and | ||
• | Executive Committee.Mr. Rakowich (chair), Mr. Lyons, Mr. Moghadam and Mr. Skelton. |
• | organization, standing and corporate power and charter documents; | ||
• | capital structure; | ||
• | authority relative to execution and delivery of, and performance of obligations under, the merger agreement; |
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• | the absence of conflicts with, or violations of, laws, organizational documents or other obligations or contracts as a result of the Merger; | ||
• | required consents and approvals relating to the Merger; | ||
• | SEC documents, financial statements, internal controls and accounting or auditing practices; | ||
• | accuracy of information supplied or to be supplied in the Merger prospectus and the registration statement of AMB on Form S-4 of which it forms a part; | ||
• | compliance with applicable laws; | ||
• | absence of certain litigation; | ||
• | tax matters, including qualification as a REIT under the Code; | ||
• | existence and validity of certain material contracts; | ||
• | benefits matters and ERISA (as defined below) compliance; | ||
• | collective bargaining agreements and other labor matters; | ||
• | absence of certain changes and non-existence of a material adverse effect; | ||
• | board approval of the merger agreement and the transactions contemplated thereby; | ||
• | exemption from anti-takeover statutes; | ||
• | required shareholder approval; | ||
• | ownership of or interest in, and condition of, certain owned and leased real property; | ||
• | compliance with environmental laws; | ||
• | ownership of or licenses to certain intellectual property; | ||
• | possession of certain permits, licenses and other approvals from governmental entities; | ||
• | existence of insurance policies; | ||
• | inapplicability of the Investment Company Act of 1940; | ||
• | brokers’ and finders’ fees in connection with the Merger and other transactions contemplated by the merger agreement; and | ||
• | receipt of opinions from each party’s financial advisor. |
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• | changes generally affecting the economy, financial or securities markets or political or regulatory conditions, to the extent such changes do not have a materially disproportionate effect on the financial condition, business or results of operations of AMB or ProLogis, as applicable, in each case including its subsidiaries, taken as a whole, relative to other similarly situated owners, operators and developers of industrial real estate; | ||
• | changes in the industrial real estate sector or changes generally affecting owners, operators or developers of industrial real estate, to the extent such changes do not have a materially disproportionate effect on the financial condition, business or results of operations of AMB or ProLogis, as applicable, in each case including its subsidiaries, taken as a whole, relative to other similarly situated owners, operators and developers of industrial real estate; | ||
• | any change after the date of the merger agreement in law or the interpretation thereof or GAAP or the interpretation thereof, to the extent such changes do not have a materially disproportionate effect on the financial condition, business or results of operations of AMB or ProLogis, as applicable, in each case including its subsidiaries, taken as a whole, relative to other similarly situated owners, operators and developers of industrial real estate; | ||
• | acts of war, armed hostility or terrorism or any worsening thereof, to the extent such changes do not have a materially disproportionate effect on the financial condition, business or results of operations of AMB or ProLogis, as applicable, in each case including its subsidiaries, taken as a whole, relative to other similarly situated owners, operators and developers of industrial real estate; | ||
• | earthquakes, hurricanes, tornados or other natural disasters or calamities, to the extent such changes do not have a materially disproportionate effect on the financial condition, business or results of operations of AMB or ProLogis, as applicable, in each case including its subsidiaries, taken as a whole, relative to other similarly situated owners, operators and developers of industrial real estate; | ||
• | any change to the extent attributable to the negotiation, execution or announcement of the merger agreement, including any litigation resulting therefrom, and any adverse change in customer, distributor, employee, supplier, financing source, licensor licensee, sub-licensee, stockholder, joint venture partner or similar relationships, including as a result of the identity of the other party; | ||
• | any failure by AMB or ProLogis, as applicable, to meet any internal or published industry analyst projections or forecasts or estimates of revenues or earnings for any period (although facts and circumstances giving rise to such failure that are not otherwise excluded from the definition of material adverse effect may be taken into account in determining whether there has been a material adverse effect); | ||
• | any change in the price or trading volume of the common stock of AMB or common shares of ProLogis, as applicable (although facts and circumstances giving rise to such change that are not otherwise excluded from the definition of material adverse effect may be taken into account in determining whether there has been a material adverse effect); | ||
• | compliance with the terms of, or the taking of any action required by, the merger agreement; and |
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• | the outcome of certain litigation, claims or other proceedings. |
• | enter into any new material line of business; | ||
• | declare, set aside or pay any dividends or other distributions, other than (i) as described under “— Dividends”, (ii) regular distributions that are required to be made in respect of partnership units of certain specified subsidiaries of each of AMB and ProLogis, and (iii) dividends by or among an entity and its subsidiaries; | ||
• | split, combine or reclassify any of its capital stock or shares of beneficial interest, as the case may be, or issue any other securities in substitution for such shares; | ||
• | repurchase, redeem or otherwise acquire its capital stock or other securities convertible into or exercisable for any shares of capital stock, except upon the exercise by a limited partner in certain specified subsidiaries of each of AMB and ProLogis of its right to redeem or exchange partnership units pursuant to the terms of the related partnership agreements; | ||
• | issue, deliver or sell, or authorize any issuance, delivery or sale of, shares of its capital stock or shares of beneficial interest, as applicable, equity-based awards, voting debt or convertible or exchangeable securities, except (i) in connection with the exercise or settlement of existing equity awards in accordance with the existing terms of the related plans or awards, (ii) upon the exercise by a limited partner in certain specified subsidiaries of each of AMB and ProLogis of its right to redeem or exchange partnership units pursuant to the terms of the related partnership agreements, (iii) issuances by a subsidiary of AMB or ProLogis to AMB, ProLogis or another subsidiary thereof, as applicable, or (iv) issuances by ProLogis of ProLogis common shares upon conversion of any of ProLogis’ existing convertible debt; | ||
• | amend the charter, declaration of trust, bylaws or equivalent governing documents of AMB, ProLogis, Upper Pumpkin, Pumpkin LLC, New Pumpkin, or certain significant subsidiaries of AMB or ProLogis; | ||
• | make acquisitions of businesses, entities, properties or assets, other than (i) acquisitions for consideration with a fair market value that does not exceed $50,000,000 individually or $250,000,000 per calendar quarter in the aggregate and which would not reasonably be expected to materially delay, |
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impede or affect the consummation of the Merger, (ii) internal reorganizations or consolidations of subsidiaries that would not present a material risk of a material delay in the consummation of the Merger, (iii) acquisitions pursuant to agreements, arrangements or understandings existing on January 30, 2011, or (iv) the creation of new subsidiaries organized to continue or conduct activities otherwise permitted by the merger agreement; | |||
• | sell, assign, encumber or otherwise dispose of any assets (including capital stock of subsidiaries and indebtedness of others owned by such party) which are material, individually or in the aggregate, to AMB or ProLogis, as applicable, other than (i) internal reorganizations or consolidations involving existing subsidiaries that would not present a material risk of any material delay in the consummation of the Merger, (ii) dispositions disclosed in SEC filings of AMB or ProLogis, as applicable, made prior to January 30, 2011, (iii) other activities in the ordinary course of business consistent with past practice, (iv) other dispositions if the fair market value of the total consideration received in respect of such assets does not exceed $50,000,000 individually or $250,000,000 per calendar quarter in the aggregate or (v) the incurrence of indebtedness specifically permitted pursuant to the provision described in the immediately succeeding bullet; | ||
• | incur, create, assume or guarantee any long-term indebtedness, modify any of the material terms of any outstanding long-term indebtedness, guarantee any long-term indebtedness or issue or sell any long-term debt securities (or securities with the right to acquire any long-term debt securities), other than (i) in the ordinary course of business consistent with past practice, (ii) certain qualifying debt incurred to refinance or repay existing debt, (iii) indebtedness between an entity and a subsidiary of which it owns at least 90% of the voting interests, or between such 90% owned subsidiaries of the same entity, (iv) other indebtedness incurred by non-wholly owned subsidiaries of AMB or ProLogis, as applicable, in individual amounts below certain thresholds, which thresholds vary by currency, (v) certain indebtedness specified in the disclosures made in connection with the merger agreement, or (vi) certain borrowings under existing credit agreements in the ordinary course of business consistent with past practice; | ||
• | change its methods of accounting, except as required by changes in GAAP as concurred in by such party’s independent auditors or as previously disclosed in an SEC filing by such party; | ||
• | adopt a plan of complete or partial liquidation or resolutions providing for a liquidation, dissolution, restructuring, recapitalization or reorganization; | ||
• | terminate, cancel, renew or request or agree to any material amendment or modification to or waiver under or assignment of, any of certain specified types of material contracts, or enter into or materially amend any contract that, if existing on January 30, 2011, would have qualified as one of such types of material contracts; | ||
• | waive the excess share provision of its charter, in the case of AMB, or declaration of trust, in the case of ProLogis, for anyone other than the other parties to the merger agreement and their subsidiaries; | ||
• | take or fail to take any action which would reasonably be expected to cause such party to fail to qualify as a REIT under the Code; | ||
• | take or fail to take any action which would reasonably be expected to cause any subsidiary of such party to cease to be treated as a partnership or disregarded entity for U.S. federal income tax purposes or as a qualified REIT subsidiary, a taxable REIT subsidiary or a REIT under the Code; | ||
• | make or commit to make any capital expenditures in excess of $50,000,000, other than in the ordinary course of business consistent with past practice; | ||
• | take or knowingly fail to take any action which could reasonably be expected to prevent the ProLogis merger or the Topco merger from qualifying as a reorganization under the Code; |
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• | make, change or rescind any material tax election or change a material method of tax accounting, amend any material tax return, settle or compromise any material income tax liability, audit, assessment or claim, enter into any material closing agreement related to taxes or knowingly surrender any right to claim any material tax refund, in each case, except (i) in the ordinary course of business, (ii) as necessary to preserve the status of AMB or ProLogis, as applicable, as a REIT under the Code, or (iii) as necessary to qualify or preserve the status of any subsidiary of AMB or ProLogis, as applicable, as a partnership or disregarded entity for U.S. federal income tax purposes or as a qualified REIT subsidiary, a taxable REIT subsidiary or a REIT under the Code; | ||
• | waive, release, assign, compromise or settle any claim, action or proceeding, other than waivers, releases, assignments, compromises or settlements that (i) with respect to the payment of monetary damages, involve only the payment of monetary damages (excluding any amounts payable under existing property-level insurance policies) either equal to or lesser than the amount specifically reserved with respect to the most recent balance sheet of AMB or ProLogis, as applicable, filed with the SEC prior to January 30, 2011, or that do not exceed $10,000,000 individually or $100,000,000 in the aggregate, (ii) do not involve the imposition of injunctive relief against AMB, ProLogis, any of their subsidiaries or the surviving corporation following the effective time of the Topco merger, and (iii) do not provide for any admission of material liability by AMB, ProLogis or any of their subsidiaries; | ||
• | increase the compensation or other benefits to directors, officers or employees, except in the ordinary course of business consistent with past practice and as would not result in a material increase in cost to AMB or ProLogis, as applicable; | ||
• | enter into any employment, change of control, severance or retention agreement with any director, officer or employee, except for (i) agreements entered into with newly hired employees or (ii) severance agreements entered into with employees in connection with terminations of employment, in the case of each of (i) and (ii) with employees who are not executive officers, and in each case only in the ordinary course of business consistent with past practice and as would not result in a material increase in cost to AMB or ProLogis, as applicable; | ||
• | establish, adopt, enter into or amend any benefit plan or other plan, policy, program or arrangement for the benefit of any director, officer or employee or their beneficiaries, except as permitted pursuant to the two preceding bullets or in the ordinary course of business consistent with past practice, in each case only with respect to awards or grants made to newly hired employees in the ordinary course of business consistent with past practice that would not result in a material increase in cost to AMB or ProLogis, as applicable; | ||
• | enter into or amend any collective bargaining agreement or similar agreement, other than in the ordinary course of business consistent with past practice that would not result in a material increase in cost to ProLogis; | ||
• | repay, refinance or replace any direct indebtedness maturing within twelve months from January 30, 2011, subject to certain exceptions; | ||
• | form any new funds; | ||
• | effect any deed in lieu of foreclosure, or sell, lease, assign or encumber or transfer to a lender any property securing indebtedness owed to such lender; or | ||
• | agree to take or authorize any of the foregoing actions. |
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• | cooperation between AMB and ProLogis in the preparation of the prospectus contained in the Merger registration statement of AMB on Form S-4; | ||
• | each party’s agreement to (i) afford the representatives of the other party access to its books, contracts and records during normal business hours and (ii) provide the other party, upon reasonable request, with copies of certain information; | ||
• | each party’s agreement to maintain the confidentiality of certain non-public information provided by the other party; | ||
• | each party’s agreement to use its reasonable best efforts to take all actions reasonably appropriate to consummate the Merger and other transactions contemplated by the merger agreement; | ||
• | each party’s agreement to use its reasonable best efforts to cooperate to obtain all governmental consents, clearances, approvals, permits or authorizations required to complete the Merger; | ||
• | each party’s agreement to (i) cooperate in all respects in connection with any investigation or other inquiry, (ii) promptly inform the other party of any communication concerning the merger agreement or the transactions contemplated thereby from or with any governmental entity, (iii) permit the other party to review and comment on any proposed communication to any government entity, (iv) consult with the other party in advance of any meeting with any governmental entity or in connection with a proceeding by a private party and (v) resolve objections and avoid or eliminate impediments to the closing of the Merger; | ||
• | cooperation between AMB and ProLogis in connection with the development of a joint communications plan and in connection with press releases and other public statements with respect to the Merger; | ||
• | AMB’s agreement to use its reasonable best efforts to cause the shares of AMB common stock and preferred stock to be issued in, or reserved for issuance in connection with, the Topco merger to be approved for listing on the NYSE, subject to official notice of issuance, prior to the consummation of the Merger; | ||
• | the use by each party of reasonable best efforts to cause each of the ProLogis merger and Topco merger to qualify as a reorganization under the Code; and | ||
• | cooperation between AMB and ProLogis to implement necessary or appropriate agreements under each party’s indentures or other indebtedness with respect to financing matters. |
• | distributions at their respective stated dividend or distribution rates with respect to AMB preferred stock and ProLogis preferred shares; and |
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• | quarterly distributions at a rate not in excess of the regular quarterly cash dividend most recently declared prior to January 30, 2011 ($0.28 per share of AMB common stock and $0.1125 per share of ProLogis common shares). |
• | the affirmative vote of the holders of two-thirds of the outstanding shares of AMB common stock to approve the Topco merger; | ||
• | the affirmative vote of the holders of a majority of the outstanding shares of AMB common stock to approve the bylaw amendment; | ||
• | the affirmative vote of the holders of a majority of the outstanding ProLogis common shares to approve the Merger; | ||
• | the approval for listing by the NYSE of shares of AMB common stock, AMB Series R preferred stock and AMB Series S preferred stock to be issued or reserved for issuance in connection with the Topco merger; | ||
• | the SEC having declared effective the Merger registration statement of AMB on Form S-4 of which the Merger prospectus forms a part; | ||
• | the absence of any judgment or other legal prohibition or binding order of any court or other governmental entity that prohibits the Merger; | ||
• | the absence of any action taken or statute, rule, regulation or order enacted by any governmental entity which makes the consummation of the Merger illegal; and | ||
• | the receipt of all requisite regulatory approvals and the termination or expiration of all requisite waiting periods, subject to the material adverse effect standard provided in the merger agreement and summarized above. |
• | the representations and warranties of ProLogis set forth in the merger agreement with respect to its capital structure and authority to enter into the merger agreement and to consummate the transactions contemplated thereby being true and correct in all material respects as of January 30, 2011 and the closing date (except to the extent made as of an earlier date, in which case as of such earlier date); | ||
• | the representations and warranties of ProLogis set forth in the merger agreement with respect to all other matters being true and correct as of January 30, 2011 and the closing date (except to the extent made as of an earlier date, in which case as of such earlier date), except for the failure to be true and |
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correct (without giving effect to any limitations as to materiality or a material adverse effect) as would not have or reasonably be expected to have a material adverse effect; | |||
• | each of ProLogis, Upper Pumpkin, New Pumpkin and Pumpkin LLC having performed, in all material respects, all obligations required to be performed under the merger agreement at or prior to the closing date; | ||
• | the receipt of an officers’ certificate signed by the chief executive officer and chief financial officer of ProLogis, certifying that the three preceding conditions have been satisfied; | ||
• | the receipt of an opinion of AMB’s counsel to the effect that the Topco merger will qualify as a reorganization under the Code; and | ||
• | the receipt of an opinion from ProLogis’ counsel that, since December 31, 1993, ProLogis has been organized and operated in conformity with REIT requirements under the Code. |
• | the representations and warranties of AMB set forth in the merger agreement with respect to its capital structure and authority to enter into the merger agreement and to consummate the transactions contemplated thereby being true and correct in all material respects as of January 30, 2011 and the closing date (except to the extent made as of an earlier date, in which case as of such earlier date); | ||
• | the representations and warranties of AMB set forth in the merger agreement with respect to all other matters being true and correct as of January 30, 2011 and the closing date (except to the extent made as of an earlier date, in which case as of such earlier date), except for the failure to be true and correct (without giving effect to any limitations as to materiality or a material adverse effect) as would not have or reasonably be expected to have a material adverse effect; | ||
• | each of AMB and AMB LP having performed, in all material respects, all obligations required to be performed under the merger agreement at or prior to the closing date; | ||
• | the receipt of an officers’ certificate signed by the chief executive officer and chief financial officer of AMB, certifying that the three preceding conditions have been satisfied; | ||
• | the receipt of an opinion of ProLogis’ counsel to the effect that each of the ProLogis merger and the Topco merger will qualify as a reorganization under the Code; and | ||
• | the receipt of an opinion from AMB’s counsel that, since December 31, 1997, AMB has been organized and operated in conformity with REIT requirements under the Code. |
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• | if the board of directors or trustees, as the case may be, has determined in good faith that an unsolicited bona fide written acquisition proposal which it has received from a third party and which did not result from any violation of the non-solicitation covenant constitutes a superior proposal, and that the failure to make such change in recommendation would be inconsistent with the board’s duties under applicable law, subject to informing the other party of its decision to change its recommendation; or |
• | if a material development or change in circumstances, which does not relate to an acquisition proposal and was neither known to nor reasonably foreseeable by the directors or trustees, as the case may be, as of January 30, 2011, has occurred after such date, and the directors or trustees, as the case may be, have reasonably determined that the failure to make such a change in recommendation would be inconsistent with their duties under applicable law. |
• | by mutual written consent of AMB and ProLogis; | ||
• | by either AMB or ProLogis: |
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• | if any court or other governmental entity issues a final and nonappealable order, decree or ruling or takes any other action that permanently enjoins or otherwise prohibits the Merger, provided that such right to terminate will not be available to any party whose failure to comply with any provision of the merger agreement has been the cause of such action; | ||
• | if the Merger is not consummated on or before September 30, 2011, provided that such right to terminate will not be available to any party whose failure to comply with any provision of the merger agreement has been the cause of such delay; | ||
• | if there has been a breach by the other party of any covenants or agreements or any of the representations and warranties set forth in the merger agreement, which breach would result in the related closing conditions set forth in the merger agreement not being satisfied on the closing date, and such breach is not cured or is not curable by September 30, 2011; or | ||
• | if the required approvals of either AMB stockholders or ProLogis shareholders have not been obtained upon a vote thereon at the duly convened AMB stockholders meeting or ProLogis shareholders meeting; |
• | by AMB: |
• | upon a change in recommendation of the ProLogis board of trustees regarding the approval of the Merger; | ||
• | if a meeting of ProLogis shareholders to approve the Merger has not been called and held as promptly as practicable following the date on which the registration statement of AMB on Form S-4 of which the Merger prospectus forms a part becomes effective; or | ||
• | upon a material breach by ProLogis of its obligations under the merger agreement regarding non- solicitation of acquisition proposals; |
• | by ProLogis: |
• | upon a change in recommendation of the AMB board of directors regarding the approval of the Topco merger; | ||
• | if a meeting of AMB stockholders to approve the Topco merger and the bylaw amendment, has not been called and held as promptly as practicable following the date on which the registration statement of AMB on Form S-4 of which the Merger prospectus forms a part becomes effective; or | ||
• | upon a material breach by AMB of its obligations under the merger agreement regarding non- solicitation of acquisition proposals. |
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• | if ProLogis terminates the merger agreement due to the AMB stockholders meeting not being called and held as required by the merger agreement and, after the date of the merger agreement and prior to the date of such termination, an acquisition proposal for AMB has been publicly announced or otherwise communicated to the senior management or AMB board of directors and not withdrawn prior to the date of termination; | ||
• | if either party terminates the merger agreement due to the fact that the AMB stockholders failed to approve the Topco merger and the bylaw amendment at a meeting of the AMB stockholders held for such purpose and, after the date of the merger agreement and prior to the date of the meeting of AMB stockholders, an acquisition proposal for AMB had been publicly announced and not withdrawn prior to the date of the special meeting of AMB stockholders; | ||
• | if ProLogis terminates the merger agreement due to a change in recommendation by the AMB board of directors and, within twelve months of the termination date, AMB or any of its subsidiaries executes a definitive agreement with respect to, or consummates, an acquisition proposal (provided that for these purposes, references to “20% or more” in the definition of acquisition proposal will be replaced with references to “35% or more”); or | ||
• | if ProLogis terminates the merger agreement due to a material breach by AMB of its obligations regarding non-solicitation of alternative proposals. |
• | if AMB terminates the merger agreement due to the ProLogis shareholders meeting not being called and held as required by the merger agreement and, after the date of the merger agreement and prior to the date of such termination, an acquisition proposal for ProLogis has been publicly announced or otherwise communicated to the senior management or board of trustees of ProLogis and not withdrawn prior to the date of termination; | ||
• | if either party terminates the merger agreement due to the fact that ProLogis shareholders failed to approve the Merger at a meeting of the ProLogis shareholders held for such purpose and, after the date of the merger agreement and prior to the date of the meeting of ProLogis shareholders, an acquisition proposal for ProLogis had been publicly announced and not withdrawn prior to the date of the special meeting of ProLogis shareholders; | ||
• | if AMB terminates the merger agreement due to a change in recommendation by the ProLogis board of trustees and, within twelve months of the termination date, ProLogis or any of its subsidiaries executes a definitive agreement with respect to, or consummates, an acquisition proposals (provided that for these purposes, references to “20% or more” in the definition of acquisition proposal will be replaced with references to “35% or more”); or | ||
• | if AMB terminates the merger agreement due to a material breach by ProLogis of its obligations regarding non-solicitation of acquisition proposals. |
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• | waive all pre-existing conditions, exclusions and waiting periods with respect to such new plans in which employees may be eligible to participate after the effective date of the Topco merger, except to the extent such pre-existing conditions, exclusions or waiting periods would apply under the analogous AMB or ProLogis benefit plan; | ||
• | provide each combined company employee and their eligible dependents with credit for any co-payments and deductibles paid prior to the Topco merger effective date (to the same extent that such credit was given under the analogous AMB or ProLogis benefit plan) in satisfying any applicable deductible or out-of-pocket requirements under any new plan; and | ||
• | recognize all service of the combined company employees with ProLogis and AMB for all purposes (including for purposes of eligibility to participate, vesting credit, entitlement to benefits and except with respect to defined benefit pension plans benefit accrual) in any new plan in which such employees may be eligible to participate, including any severance plan, to the extent such service is taken into account under the applicable new plan. |
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Semi-Annual Interest | ||||||
Aggregate | Series of Notes Issued by ProLogis to be | Series of Notes to be Issued by AMB LP | Payment Dates for both | |||
Principal Amount | Exchanged (1) | (2) | ProLogis and AMB LP Notes | |||
$58,935,000 | 5.500% Notes due April 1, 2012 | 5.500% Notes due April 1, 2012 | April 1 and October 1 | |||
$61,443,000 | 5.500% Notes due March 1, 2013 | 5.500% Notes due March 1, 2013 | March 1 and September 1 | |||
$350,000,000 | 7.625% Notes due August 15, 2014 | 7.625% Notes due August 15, 2014 | February 15 and August 15 | |||
$48,226,750 (3) (4) | 7.810% Notes due February 1, 2015 | 7.810% Notes due February 1, 2015 | February 1 and August 1 | |||
$5,511,625 (3) (4) | 9.340% Notes due March 1, 2015 | 9.340% Notes due March 1, 2015 | March 1 and September 1 | |||
$155,320,000 | 5.625% Notes due November 15, 2015 | 5.625% Notes due November 15, 2015 | May 15 and November 15 | |||
$197,758,000 | 5.750% Notes due April 1, 2016 | 5.750% Notes due April 1, 2016 | April 1 and October 1 | |||
$36,402,700 (3) (5) | 8.650% Notes due May 15, 2016 | 8.650% Notes due May 15, 2016 | May 15 and November 15 | |||
$182,104,000 | 5.625% Notes due November 15, 2016 | 5.625% Notes due November 15, 2016 | May 15 and November 15 | |||
$300,000,000 | 6.250% Notes due March 15, 2017 | 6.250% Notes due March 15, 2017 | March 15 and September 15 | |||
$100,000,000 | 7.625% Notes due July 1, 2017 | 7.625% Notes due July 1, 2017 | January 1 and July 1 | |||
$600,000,000 | 6.625% Notes due May 15, 2018 | 6.625% Notes due May 15, 2018 | May 15 and November 15 | |||
$396,641,000 | 7.375% Notes due October 30, 2019 | 7.375% Notes due October 30, 2019 | April 30 and October 30 | |||
$561,049,000 | 6.875% Notes due March 15, 2020 | 6.875% Notes due March 15, 2020 | March 15 and September 15 | |||
$460,000,000 | 3.250% Convertible Senior Notes due | 3.250% Exchangeable Senior Notes due | March 15 and September 15 | |||
March 15, 2015 | March 15, 2015 | |||||
$592,980,000 | 2.250% Convertible Senior Notes due | 2.250% Exchangeable Senior Notes due | April 1 and October 1 | |||
April 1, 2037 | April 1, 2037 | |||||
$141,635,000 | 1.875% Convertible Senior Notes due | 1.875% Exchangeable Senior Notes due | May 15 and November 15 | |||
November 15, 2037 | November 15, 2037 | |||||
$386,250,000 | 2.625% Convertible Senior Notes due | 2.625% Exchangeable Senior Notes due | May 15 and November 15 | |||
May 15, 2038 | May 15, 2038 |
(1) | The ProLogis Notes are not fully and unconditionally guaranteed. | |
(2) | The AMB LP Notes will be issued by AMB LP and will be fully and unconditionally guaranteed by its parent entity and sole general partner, AMB. | |
(3) | In this prospectus, in the case of the ProLogis Amortizing Notes, unless stated otherwise, the aggregate principal amount and the price per principal amount refers to the current principal amount outstanding, after giving effect to the mandatory principal repayments that have been made on each ProLogis |
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Amortizing Note, including the $4,600,300 repayment to be made on May 15, 2011 in the case of the ProLogis 8.650% 2016 Notes. | ||
(4) | Such current aggregate principal amount reflects mandatory principal repayments already made in accordance with the terms of the notes. The original principal amount for the ProLogis 7.810% 2015 Notes is $74,195,000. | |
(5) | Such current aggregate principal amount reflects mandatory principal repayments already made in accordance with the terms of the notes, including the mandatory repayment of $4,600,300 to be made on May 15, 2011. |
• | issue an AMB LP Note in a principal amount that has been rounded down to the nearest whole multiple of $1,000; and | ||
• | pay cash, which AMB LP refers to as “cash exchange consideration”, in an amount equal to: |
o | the difference between (i) the principal amount calculated by the applicable exchange formula and (ii) the principal amount of the AMB LP Note actually issued in accordance with this paragraph;plus | ||
o | accrued and unpaid interest on the principal amount representing such difference to the date of the exchange. |
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(i) | approval of the Original Events of Default Amendments requires receipt of the Original Events of Default Amendments Requisite Consent; | ||
(ii) | approval of the Events of Default Amendments requires receipt of the Events of Default Amendments Requisite Consent; | ||
(iii) | approval of the Contingent Convertible Notes Events of Default Amendments requires receipt of the Contingent Convertible Notes Events of Default Amendments Requisite Consent; | ||
(iv) | approval of the Merger Restriction Amendments requires receipt of the Merger Restriction Amendments Requisite Consent; | ||
(v) | approval of the Incurrence of Debt Amendments requires receipt of the Incurrence of Debt Amendments Requisite Consent; | ||
(vi) | approval of the Maintenance of Properties Amendments requires receipt of the Maintenance of Properties Amendments Requisite Consent; | ||
(vii) | approval of the Insurance Amendments requires receipt of the Insurance Amendments Requisite Consent; |
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(viii) | approval of the Payment of Taxes and Other Claims Amendments requires receipt of the Payment of Taxes and Other Claims Amendments Requisite Consent; | ||
(ix) | approval of the Original Financial Information Amendments requires receipt of the Original Financial Information Amendments Requisite Consent; and | ||
(x) | approval of the Financial Information Amendments requires receipt of the Financial Information Amendments Requisite Consent. |
(i) | $3,053,391,075 in aggregate principal amount of ProLogis Non-Convertible Notes, which includes $251,584,075 in aggregate principal amount of Original Financial Information Securities which are comprised of the ProLogis 9.340% 2015 Notes, ProLogis 8.650% 2016 Notes, ProLogis 7.810% 2015 Notes, ProLogis 7.625% 2017 Notes, and ProLogis 5.500% 2013 Notes; and | ||
(ii) | $1,580,865,000 in aggregate principal amount of ProLogis Convertible Notes, which includes: |
(a) | $1,120,865,000 in aggregate principal amount of ProLogis Contingent Convertible Notes, which are comprised of the ProLogis 2.625% 2038 Convertible Notes, the ProLogis 2.250% 2037 Convertible Notes and the ProLogis 1.875% 2037 Convertible Notes; and | ||
(b) | $460,000,000 in aggregate principal amount of ProLogis 3.250% 2015 Convertible Notes. |
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(i) | two AMB LP 7.810% 2015 Notes, each with an original principal amount of $1,000 that has $650 of current principal amount outstanding;plus | ||
(ii) | a cash consent fee of $3.25, which is the sum of the current $650 principal amount outstanding for each tendered ProLogis 7.810% 2015 Note multiplied by .0025. |
(i) | one AMB LP 7.810% 2015 Note with an original principal amount of $1,000 that has $650 of current principal amount outstanding;plus | ||
(ii) | cash of $611, which is the difference between the exchange price of $1,261.00 ($630.50 multiplied by two) to which you are entitled and the current $650.00 principal amount that you are entitled to receive under the issued AMB LP 7.810% 2015 Note;plus | ||
(iii) | accrued and unpaid interest on the current principal amount outstanding representing such difference to the date of the exchange. |
(1) | In AMB LP’s reasonable judgment, no action or event has occurred or been threatened (including a default under an agreement, indenture or other instrument or obligation to which AMB LP or one of its affiliates is a party or by which AMB LP or one of its affiliates is bound), no action is pending, no action has been taken, and no statute, rule, regulation, judgment, order, stay, decree or injunction has been promulgated, enacted, entered, enforced or deemed applicable to the exchange offers, the exchange of ProLogis Notes under an exchange offer, the consent solicitations or the Proposed Amendments, by or before any court or governmental, regulatory or administrative agency, authority or tribunal, which either: |
• | challenges the exchange offers, the exchange of ProLogis Notes under an exchange offer, the consent solicitations or the Proposed Amendments or might, directly or indirectly, prohibit, prevent, restrict or delay consummation of, or might otherwise adversely affect in any material manner, the exchange offers, the exchange of ProLogis Notes under an exchange offer, the consent solicitations or the Proposed Amendments; or | ||
• | in AMB LP’s reasonable judgment, could materially affect the business, condition (financial or otherwise), income, operations, properties, assets, liabilities or prospects of AMB and its subsidiaries, taken as a whole, or materially impair the contemplated benefits to AMB of the exchange offers, the exchange of ProLogis Notes under an exchange offer, the consent solicitations or the Proposed Amendments, or might be material to holders of ProLogis Notes in deciding whether to accept the exchange offers and give their consents; |
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(2) | None of the following has occurred: |
• | any general suspension of or limitation on trading in securities on any United States national securities exchange or in the over-the-counter market (whether or not mandatory); | ||
• | a material impairment in the general trading market for debt securities; | ||
• | a declaration of a banking moratorium or any suspension of payments in respect of banks by federal or state authorities in the United States (whether or not mandatory); | ||
• | a commencement or escalation of a war, armed hostilities, terrorist act or other national or international crisis directly or indirectly relating to the United States; | ||
• | any limitation (whether or not mandatory) by any governmental authority on, or other event having a reasonable likelihood of affecting, the extension of credit by banks or other lending institutions in the United States; | ||
• | any material adverse change in United States securities or financial markets generally; or | ||
• | in the case of any of the foregoing existing at the time of the commencement of the exchange offers, a material acceleration or worsening thereof; and |
(3) | The Trustee under the ProLogis Indenture has not objected in any respect to the execution and delivery of a supplemental indenture relating to the Proposed Amendments, or taken any action that could in AMB LP’s reasonable judgment adversely affect the consummation of, any of the exchange offers, the exchange of ProLogis Notes under an exchange offer, the consent solicitations or ProLogis’ ability to effect the Proposed Amendments, nor has the Trustee taken any action that challenges the validity or effectiveness of the procedures used by AMB LP in soliciting consents on behalf of the combined company (including the form thereof) or AMB LP in making the exchange offers, the exchange of the ProLogis Notes under an exchange offer or the consent solicitations. |
(1) | terminate any one or more of the exchange offers or the consent solicitations and promptly return all applicable tendered ProLogis Notes to the holders thereof (whether or not AMB LP terminates the other exchange offers or consent solicitations); | ||
(2) | modify, extend or otherwise amend any one or more of the exchange offers or consent solicitations and retain all tendered ProLogis Notes and consents until the Expiration Date or consent solicitations, subject, however, to the withdrawal rights of holders (see “— Expiration Date; Extensions; Amendments” and “— Procedures for Consenting and Tendering — Withdrawal of Tenders and Revocation of Corresponding Consents”); or | ||
(3) | waive the unsatisfied conditions with respect to any one or more of the exchange offers or consent solicitations to the extent permitted and accept all ProLogis Notes tendered and not previously validly withdrawn. |
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• | irrevocably sells, assigns and transfers to or upon the order of AMB, AMB LP or their respective subsidiaries all right, title and interest in and to, and all claims in respect of or arising or having arisen as a result of the holder’s status as a holder of the ProLogis Notes tendered thereby; | ||
• | waives any and all rights with respect to the ProLogis Notes (including any existing or past defaults and their consequences in respect of the ProLogis Notes); | ||
• | releases and discharges AMB, AMB LP, ProLogis and their respective subsidiaries and the Trustee under the ProLogis Indenture from any and all claims such holder may have, now or in the future, arising out of or related to the ProLogis Notes, including any claims that such holder is entitled to receive additional principal or interest payments with respect to the ProLogis Notes (other than as expressly provided in this document and in the letter of transmittal) or to participate in any redemption or defeasance of the ProLogis Notes; | ||
• | represents and warrants that the ProLogis Notes tendered were owned as of the date of tender, free and clear of all liens, charges, claims, encumbrances, interests and restrictions of any kind; | ||
• | consents to the Proposed Amendments described below under “The Proposed Amendments”, as applicable; and | ||
• | irrevocably constitutes and appoints the exchange agent as the true and lawful agent and attorney-in-fact of the holder with respect to any tendered ProLogis Notes (with full knowledge that the exchange agent also acts as the agent of AMB LP), with full powers of substitution and revocation (such power of attorney being deemed to be an irrevocable power coupled with an interest) to cause the ProLogis Notes tendered to be assigned, transferred and exchanged in the applicable exchange offers. |
• | the letter of transmittal is signed by a participant in DTC whose name appears on a security position listing of DTC as the owner of the ProLogis Notes and the portion entitled “Special Issuance and Payment Instructions” or “Special Delivery Instructions” on the letter of transmittal has not been completed; or | ||
• | the ProLogis Notes are tendered for the account of an eligible institution. See Instruction 4 in the letter of transmittal. |
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THE AMB LP NOTES AND THE PROLOGIS NOTES
• | the new AMB LP Indenture will include the guarantees by AMB, | ||
• | the new AMB LP Indenture will not have a restriction preventing incurrence of additional unsecured debt by AMB LP’s subsidiaries, | ||
• | the definition of debt will be revised to limit the amount of secured debt to include the lesser of the amount of secured debt or the fair market value of the property that secures such debt and to include letters of credit only to the extent called upon, | ||
• | the financial reporting obligations will be revised to include AMB, |
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• | the AMB LP Exchangeable Notes will be exchangeable and no longer convertible and the applicable initial exchange rates, dividend threshold amounts and fundamental change make-whole amounts of the AMB LP Exchangeable Notes will change, and | ||
• | the AMB LP 3.250% 2015 Exchangeable Notes will be exchangeable into AMB common stock, cash or a combination of the two, at the option of AMB LP. |
ProLogis Notes without giving effect to | ||||
the Proposed Amendments to the | ||||
ProLogis Indenture | AMB LP Notes | |||
Definitions; Debt | Section 101 of the Base ProLogis Indenture, as amended by Section 1.2(c) of the Eighth Supplemental Indenture and the Ninth Supplemental Indenture | Section 101 of the new AMB LP Indenture | ||
“Debt” of the Company or any Subsidiary means any indebtedness of the Company or any Subsidiary, excluding any accrued expense or trade payable, whether or not contingent, in respect of (i) borrowed money evidenced by bonds, notes, debentures or similar instruments, (ii) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any security interest existing on property owned by the Company or any Subsidiary, (iii) the reimbursement obligations, contingent or otherwise, in connection with any letters of credit actually issued or amounts representing the balance deferred and unpaid of the purchase price of any property or services, or all conditional sale obligations or obligations under any title retention agreement, (iv) the principal amount of all obligations of the Company or any Subsidiary with respect to redemption, repayment or other repurchase of any Disqualified Stock or (v) any lease of property by the Company or any Subsidiary as lessee which is reflected on the Company’s Consolidated Balance Sheet as a capitalized lease in accordance with GAAP and to the extent, in the case of items of indebtedness under (i) through (iii) above, that any such items (other than letters of credit) would appear as a liability on the Company’s Consolidated Balance Sheet in accordance with GAAP, and also includes, to the extent | “Debt” of the Company or any Subsidiary means any indebtedness of the Company or any Subsidiary, excluding any accrued expense or trade payable, whether or not contingent, in respect of (i) borrowed money evidenced by bonds, notes, debentures or similar instruments, (ii) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any security interest existing on property owned by the Company or any Subsidiary, but only to the extent of the lesser of (x) the amount of indebtedness so secured and (y) the fair market value of the property subject to such mortgage, pledge, lien, charge, encumbrance or any security interest, (iii) the reimbursement obligations, contingent or otherwise, in connection with any letters of credit actually issued and called or amounts representing the balance deferred and unpaid of the purchase price of any property or services, or all conditional sale obligations or obligations under any title retention agreement, (iv) the principal amount of all obligations of the Company or any Subsidiary with respect to redemption, repayment or other repurchase of any Disqualified Stock or (v) any lease of property by the Company or any Subsidiary as lessee which is reflected on the Company’s Consolidated Balance Sheet as a capitalized lease in accordance with GAAP and to the extent, in the case of items of indebtedness under (i) through (iii) above, that any such items (other than letters of credit) would appear as a liability on the Company’s Consolidated Balance Sheet in |
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ProLogis Notes without giving effect to | ||||
the Proposed Amendments to the | ||||
ProLogis Indenture | AMB LP Notes | |||
not otherwise included, any obligation by the Company or any Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise (other than for purposes of collection in the ordinary course of business), Debt of another Person (other than the Company or any Subsidiary). | accordance with GAAP, and also includes, to the extent not otherwise included, any obligation by the Company or any Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise (other than for purposes of collection in the ordinary course of business), Debt of another Person (other than the Company or any Subsidiary). | |||
Definitions; Pari Passu Debt | Section 101 of the Base ProLogis Indenture, as amended by Section 1.2(c) of the Eighth Supplemental Indenture and the Ninth Supplemental Indenture | Section N/A | ||
“Pari Passu Debt” means (i) any Debt of the Company or a Subsidiary that is secured only by Encumbrances that also secure the Securities issued hereunder on an equal and ratable basis and (ii) any series of Securities issued hereunder that is secured only by Encumbrances that also secure all other series of Securities issued hereunder on an equal and ratable basis. | There is no comparable provision. | |||
Definitions; Subsidiary | Section 101 of the Base ProLogis Indenture | Section 101 of the new AMB LP Indenture | ||
“Subsidiary“ means, with respect to any Person, any corporation or other entity of which a majority of the voting power of the voting equity securities or (b) in the case of a partnership or any other entity other than a corporation, the outstanding equity interests of which are owned, directly or indirectly, by such Person. For the purposes of this definition, “voting equity securities” means equity securities having voting power for the election of directors, whether at all times or only so long as no senior class of security has such voting power by reason of any contingency. | “Subsidiary” means, with respect to any Person, (i) a corporation, partnership, joint venture, limited liability company or other entity the majority of the shares, if any, of the non-voting capital stock or other equivalent ownership interests of which (except directors’ qualifying shares) are at the time directly or indirectly owned by such Person and/or any other Subsidiary or Subsidiaries of such Person, and the majority of the shares of the voting capital stock or other equivalent ownership interests of which (except directors’ qualifying shares) are at the time directly or indirectly owned by such Person, any other Subsidiary or Subsidiaries of such Person, and (ii) any other entity the accounts of which are consolidated with the accounts of such Person. For the purposes of this definition, “voting capital stock” means capital stock having voting power for the election of directors, whether at all times or only so long as no senior class of capital stock has such voting power by reason of any |
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ProLogis Notes without giving effect to | ||||
the Proposed Amendments to the | ||||
ProLogis Indenture | AMB LP Notes | |||
contingency. | ||||
Definitions; Subsidiary | Section 101 of the Base ProLogis Indenture, as amended by Section 1.2(c) of the Eighth Supplemental Indenture and the Ninth Supplemental Indenture | Section 101 of the new AMB LP Indenture | ||
“Subsidiary” means, with respect to any Person, any corporation or other entity of which a majority of (a) the voting power of the voting equity securities or (b) in the case of a partnership or any other entity other than a corporation, the outstanding equity interests of which are owned, directly or indirectly, by such Person. For the purposes of this definition, “voting equity securities” means equity securities having voting power for the election of directors, whether at all times or only so long as no senior class of security has such voting power by reason of any contingency. | “Subsidiary” means, with respect to any Person, (i) a corporation, partnership, joint venture, limited liability company or other entity the majority of the shares, if any, of the non-voting capital stock or other equivalent ownership interests of which (except directors’ qualifying shares) are at the time directly or indirectly owned by such Person and/or any other Subsidiary or Subsidiaries of such Person, and the majority of the shares of the voting capital stock or other equivalent ownership interests of which (except directors’ qualifying shares) are at the time directly or indirectly owned by such Person, any other Subsidiary or Subsidiaries of such Person, and (ii) any other entity the accounts of which are consolidated with the accounts of such Person. For the purposes of this definition, “voting capital stock” means capital stock having voting power for the election of directors, whether at all times or only so long as no senior class of capital stock has such voting power by reason of any contingency. | |||
Temporary Securities | Section 304 of the Base ProLogis Indenture | Section 304 of the new AMB LP Indenture | ||
(a) Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form, or, if authorized, in bearer form with one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as | Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities. In the case of Securities of any series, such temporary Securities may be |
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ProLogis Notes without giving effect to | ||||
the Proposed Amendments to the | ||||
ProLogis Indenture | AMB LP Notes | |||
conclusively evidenced by their execution of such Securities. In the case of Securities of any series, such temporary Securities may be in global form. Except in the case of temporary Securities in global form (which shall be exchanged in accordance with Section 304(b) or as otherwise provided in or pursuant to a Board Resolution), if temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series (accompanied by any non-matured coupons appertaining thereto), the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations; provided, however, that no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided further that a definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in Section 303. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series. | in global form. If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series. | |||
(b) Unless otherwise provided as contemplated in Section 301, this Section 304(b) shall govern the exchange of temporary Securities issued in global form other than through the facilities of |
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ProLogis Notes without giving effect to | ||||
the Proposed Amendments to the | ||||
ProLogis Indenture | AMB LP Notes | |||
DTC. If any such temporary Security is issued in global form, then such temporary global Security shall, unless otherwise provided therein, be delivered to the London office of a depositary or common depositary (the “Common Depositary”), for the benefit of Euroclear and CEDEL. | ||||
Without unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary global Security (the “Exchange Date”), the Company shall deliver to the Trustee definitive Securities, in an aggregate principal amount equal to the principal amount of such temporary global Security, executed by the Company. On or after the Exchange Date, such temporary global Security shall be surrendered by the Common Depositary to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge, and the Trustee shall authenticate and deliver, in the name of Euroclear or CEDEL, as the case may be, in exchange for each portion of such temporary global Security, an equal aggregate principal amount of definitive Securities of or within the same series of authorized denominations and of like tenor as the portion of such temporary global Security to be exchanged. The definitive Securities to be delivered in exchange for any such temporary global Security shall be in bearer form, registered form, permanent global bearer form or permanent global registered form, or any combination thereof, as specified as contemplated by Section 301, and, if any combination thereof is so specified, as requested by the Common Depository; provided, however, that, unless otherwise specified in such temporary global Security, upon such presentation by the Common Depositary, such temporary global Security is accompanied by a certificate dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion of |
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ProLogis Notes without giving effect to | ||||
the Proposed Amendments to the | ||||
ProLogis Indenture | AMB LP Notes | |||
such temporary global Security held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by CEDEL as to the portion of such temporary global Security held for its account then to be exchanged, each in the form set forth in Exhibit A-2 to this Indenture or in such other form as may be established pursuant to Section 301; and provided further that definitive Bearer Securities shall be delivered in exchange for a portion of a temporary global Security only in compliance with the requirements of Section 303. | ||||
Unless otherwise specified in such temporary global Security, the interest of a beneficial owner of Securities of a series in a temporary global Security shall be exchanged for definitive Securities of the same series and of like tenor following the Exchange Date when the account holder instructs Euroclear or CEDEL, as the case may be, to request such exchange on his behalf and delivers to Euroclear or CEDEL, as the case may be, a certificate in the form set forth in Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to Section 301), dated no earlier than 15 days prior to the Exchange Date, copies of which certificate shall be available from the offices of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such series of Securities and each Paying Agent. Unless otherwise specified in such temporary global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary global Security, except that a Person receiving definitive Securities must bear the cost of insurance, postage, transportation and the like unless such Person takes delivery of such definitive Securities in person at the offices of Euroclear or CEDEL. Definitive Securities in bearer form to be delivered in exchange for any portion of a temporary global Security shall be |
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ProLogis Notes without giving effect to | ||||
the Proposed Amendments to the | ||||
ProLogis Indenture | AMB LP Notes | |||
delivered only outside the United States. | ||||
Until exchanged in full as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by Section 301, interest payable on a temporary global Security on an Interest Payment Date for Securities of such series occurring prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a certificate or certificates in the form set forth in Exhibit A-2 to this Indenture (or in such other forms as may be established pursuant to Section 301), for credit without further interest on or after such Interest Payment Date to the respective accounts of Persons who are the beneficial owners of such temporary global Security on such Interest Payment Date and who have each delivered to Euroclear or CEDEL, as the case may be, a certificate dated no earlier than 15 days prior to the Interest Payment Date occurring prior to such Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such other forms as may be established pursuant to Section 301). Notwithstanding anything to the contrary herein contained, the certifications made pursuant to this paragraph shall satisfy the certification requirements of the preceding two paragraphs of this Section 304(b) and of the third paragraph of Section 303 of this Indenture and the interests of the Persons who are the beneficial owners of the temporary global Security with respect to which such certification was made will be exchanged for definitive Securities of the same series and of like tenor on the Exchange Date or the date of certification if such date occurs after the Exchange Date, without further act or deed by such beneficial owners. Except |
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as otherwise provided in this paragraph, no payments of principal or interest owing with respect to a beneficial interest in a temporary global Security will be made unless and until such interest in such temporary global Security shall have been exchanged for an interest in a definitive Security. Any interest so received by Euroclear and CEDEL and not paid as herein provided shall be returned to the Trustee prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Company. | ||||
Events of Default | Sections 501(5), 501(6), 501(7) and 501(8) of the Base ProLogis Indenture | Sections 501(5), 501(6), 501(7) and 501(8) of the new AMB LP Indenture | ||
(5) a default under any bond, debenture, note or other evidence of indebtedness of the Company, or under any mortgage, indenture or other instrument of the Company (including a default with respect to Securities of any series other than that series) under which there may be issued or by which there may be secured any indebtedness of the Company (or by any Subsidiary, the repayment of which the Company has guaranteed or for which the Company is directly responsible or liable as obligor or guarantor), whether such indebtedness now exists or shall hereafter be created, which default shall constitute a failure to pay an aggregate principal amount exceeding $10,000,000 of such indebtedness when due and payable after the expiration of any applicable grace period with respect thereto and shall have resulted in such indebtedness in an aggregate principal amount exceeding $10,000,000 becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such indebtedness having been discharged, or such acceleration having been rescinded or annulled, within a period of 10 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders | (5) a default under any bond, debenture, note or other evidence of indebtedness of the Company, or under any mortgage, indenture or other instrument of the Company (including a default with respect to Securities of any series other than that series) under which there may be issued or by which there may be secured any indebtedness of the Company (or by any Subsidiary, the repayment of which the Company has guaranteed or for which the Company is directly responsible or liable as obligor or guarantor), whether such indebtedness now exists or shall hereafter be created, which default shall constitute a failure to pay an aggregate principal amount exceeding $50,000,000 of such indebtedness when due and payable after the expiration of any applicable grace period with respect thereto and shall have resulted in such indebtedness in an aggregate principal amount exceeding $50,000,000 becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such indebtedness having been discharged, or such acceleration having been rescinded or annulled, within a period of 10 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 10% in principal amount of the Outstanding Securities of that series a written notice specifying such default and requiring the |
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of at least 10% in principal amount of the Outstanding Securities of that series a written notice specifying such default and requiring the Company to cause such indebtedness to be discharged or cause such acceleration to the rescinded or annulled and stating that such notice is a “Notice of Default” hereunder; or (6) the entry by a court of competent jurisdiction of one or more judgments, orders or decrees against the Company or any of its Subsidiaries in an aggregate amount (excluding amounts covered by insurance) in excess of $10,000,000 and such judgments, orders or decrees remain undischarged, unstayed and unsatisfied in an aggregate amount (excluding amounts covered by insurance) in excess of $10,000,000 for a period of 30 consecutive days; or (7) the Company or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law: (A) commences a voluntary case, (B) consents to the entry of an order for relief against it in an involuntary case, (C) consents to the appointment of a Custodian of it or for all or substantially all of its property, or (D) makes a general assignment for the benefit of its creditors; or (8) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (A) is for relief against the Company or any Significant Subsidiary in an involuntary case, (B) appoints a Custodian of the Company or any Significant Subsidiary or for all or substantially all of either of | Company to cause such indebtedness to be discharged or cause such acceleration to the rescinded or annulled and stating that such notice is a “Notice of Default” hereunder; or (6) the entry by a court of competent jurisdiction of final judgments, orders or decrees against the Company or any of its Subsidiaries in an aggregate amount (excluding amounts covered by insurance) in excess of $50,000,000 and such judgments, orders or decrees remain undischarged, unstayed and unsatisfied in an aggregate amount (excluding amounts covered by insurance) in excess of $50,000,000 for a period of 60 consecutive days; or (7) the Company, the General Partner or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law: (A) commences a voluntary case, (B) consents to the entry of an order for relief against it in an involuntary case, (C) consents to the appointment of a Custodian of it or for all or substantially all of its property, or (D) makes a general assignment for the benefit of its creditors; or (8) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (A) is for relief against the Company, the General Partner or any Significant Subsidiary in an involuntary case, (B) appoints a Custodian of the Company, the General Partner or any Significant Subsidiary or for all or substantially all of either of its property, or (C) orders the liquidation of the Company, the General Partner or any Significant Subsidiary, and the order or decree remains unstayed and |
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its property, or | in effect for 90 days; or | |||
(C) orders the liquidation of the Company or any Significant Subsidiary, and the order or decree remains unstayed and in effect for 90 days; or | ||||
Events of Default | Sections 501(5) and 501(6) of the Base ProLogis Indenture, as amended by Section 2.3 of the Second Supplemental Indenture | Sections 501(5) and 501(6) of the new AMB LP Indenture | ||
Pursuant to Section 901(5) of the Base Indenture, clauses (5) and (6) of Section 501 of the Base Indenture are hereby amended for the benefit of the Holders of Securities issued on or after the date of this Supplemental Indenture, unless otherwise provided in the Officers’ Certificate or supplemental indenture authorizing any series of such Securities, to provide that references to $10,000,000 contained in clauses (5) and (6) of Section 501 of the Indenture are amended to be $50,000,000; provided, however, that the provisions of this Section 2.3 shall become effective only when there are no Securities Outstanding of any series created prior to the execution of this Supplemental Indenture. | (5) a default under any bond, debenture, note or other evidence of indebtedness of the Company, or under any mortgage, indenture or other instrument of the Company (including a default with respect to Securities of any series other than that series) under which there may be issued or by which there may be secured any indebtedness of the Company (or by any Subsidiary, the repayment of which the Company has guaranteed or for which the Company is directly responsible or liable as obligor or guarantor), whether such indebtedness now exists or shall hereafter be created, which default shall constitute a failure to pay an aggregate principal amount exceeding $50,000,000 of such indebtedness when due and payable after the expiration of any applicable grace period with respect thereto and shall have resulted in such indebtedness in an aggregate principal amount exceeding $50,000,000 becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such indebtedness having been discharged, or such acceleration having been rescinded or annulled, within a period of 10 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 10% in principal amount of the Outstanding Securities of that series a written notice specifying such default and requiring the Company to cause such indebtedness to be discharged or cause such acceleration to the rescinded or annulled and stating that such notice is a “Notice of Default” hereunder; or | |||
(6) the entry by a court of competent |
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jurisdiction of final judgments, orders or decrees against the Company or any of its Subsidiaries in an aggregate amount (excluding amounts covered by insurance) in excess of $50,000,000 and such judgments, orders or decrees remain undischarged, unstayed and unsatisfied in an aggregate amount (excluding amounts covered by insurance) in excess of $50,000,000 for a period of 60 consecutive days; or | ||||
Events of Default | Sections 501(5) and 501(6) of the Base ProLogis Indenture, as amended by Section 2.2 of the Eighth Supplemental Indenture and the Ninth Supplemental Indenture | Sections 501(5) and 501(6) of the new AMB LP Indenture | ||
Pursuant to Section 901(5) of the Base Indenture, clauses (5) and (6) of Section 501 of the Base Indenture are hereby amended for the benefit of the Holders of Securities issued on or after the date of this Supplemental Indenture, unless otherwise provided in the Officers’ Certificate or supplemental indenture authorizing any series of such Securities, to provide that references to $10,000,000 contained in clauses (5) and (6) of Section 501 of the Indenture are amended to be $50,000,000. | (5) a default under any bond, debenture, note or other evidence of indebtedness of the Company, or under any mortgage, indenture or other instrument of the Company (including a default with respect to Securities of any series other than that series) under which there may be issued or by which there may be secured any indebtedness of the Company (or by any Subsidiary, the repayment of which the Company has guaranteed or for which the Company is directly responsible or liable as obligor or guarantor), whether such indebtedness now exists or shall hereafter be created, which default shall constitute a failure to pay an aggregate principal amount exceeding $50,000,000 of such indebtedness when due and payable after the expiration of any applicable grace period with respect thereto and shall have resulted in such indebtedness in an aggregate principal amount exceeding $50,000,000 becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such indebtedness having been discharged, or such acceleration having been rescinded or annulled, within a period of 10 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 10% in principal amount of the Outstanding Securities of that series a written notice specifying such default and requiring the Company to cause such indebtedness to be |
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discharged or cause such acceleration to the rescinded or annulled and stating that such notice is a “Notice of Default” hereunder; or | ||||
(6) the entry by a court of competent jurisdiction of final judgments, orders or decrees against the Company or any of its Subsidiaries in an aggregate amount (excluding amounts covered by insurance) in excess of $50,000,000 and such judgments, orders or decrees remain undischarged, unstayed and unsatisfied in an aggregate amount (excluding amounts covered by insurance) in excess of $50,000,000 for a period of 60 consecutive days; or | ||||
Reports by Company | Section N/A | Section 703(b) of the new AMB LP Indenture | ||
There is no comparable provision. | (b) Delivery of such reports, information, and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on Officers’ Certificates). | |||
Supplemental Indentures | Section 901(5) of the Base ProLogis Indenture | Section 901(5) of the new AMB LP Indenture | ||
(5) to change or eliminate any of the provisions of this Indenture, provided that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; | (5) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder of any such Security with respect to such provision or (ii) shall become effective only when there is no such Security Outstanding; or | |||
Limitations on Incurrence of Debt | Section 1004(c) of the Base ProLogis Indenture, as amended by Section 2.1 of the Eighth Supplemental Indenture and the Ninth Supplemental Indenture | Section N/A |
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(c) In addition to the limitation set forth in subsections (a) and (b) of this Section 1004, no Subsidiary may incur any Unsecured Debt; provided, however, that the Company or a Subsidiary may acquire an entity that becomes a Subsidiary that has Unsecured Debt if the incurrence of such Debt (including any guarantees of such Debt assumed by the Company or any Subsidiary) was not intended to evade the foregoing restrictions and the incurrence of such Debt (including any guarantees of such Debt assumed by the Company or any Subsidiary) would otherwise be permitted under this Indenture. | There is no comparable provision. | |||
Limitations on Incurrence of Debt | Section 1004(d) and (e) of the Base ProLogis Indenture, as amended by Section 2.1 of the Eighth Supplemental Indenture and the Ninth Supplemental Indenture | Section 1004(c) and (d) of the new AMB LP Indenture | ||
(d) In addition to the limitation set forth in subsections (a), (b) and (c) of this Section 1004, the Company and its Subsidiaries may not at any time own Total Unencumbered Assets equal to less than 150% of the aggregate outstanding principal amount of the Unsecured Debt and Pari Passu Debt of the Company and its Subsidiaries on a consolidated basis. (e) In addition to the limitation set forth in subsections (a), (b), (c) and (d) of this Section 1004, the Company will not, and will not permit any Subsidiary to, incur any Debt for borrowed money secured by any mortgage, lien, charge, pledge, encumbrance or security interest upon any of the property of the Company or any Subsidiary, whether owned at the date hereof or hereafter acquired (other than Pari Passu Debt), if, immediately after giving effect to the incurrence of such additional Debt and the application of the proceeds thereof, the aggregate principal amount of all outstanding Debt of the Company and its Subsidiaries on a consolidated basis for borrowed money which is secured by any mortgage, lien, charge, pledge, encumbrance or security | (c) In addition to the limitation set forth in subsections (a) and (b) of this Section 1004, the Company and its Subsidiaries may not at any time own Total Unencumbered Assets equal to less than 150% of the aggregate outstanding principal amount of the Unsecured Debt of the Company and its Subsidiaries on a consolidated basis. (d) In addition to the limitation set forth in subsections (a), (b) and (c) of this Section 1004, the Company will not, and will not permit any Subsidiary to, incur any Debt for borrowed money secured by any mortgage, lien, charge, pledge, encumbrance or security interest upon any of the property of the Company or any Subsidiary, whether owned at the date hereof or hereafter acquired, if, immediately after giving effect to the incurrence of such additional Debt and the application of the proceeds thereof, the aggregate principal amount of all outstanding Debt of the Company and its Subsidiaries on a consolidated basis for borrowed money which is secured by any mortgage, lien, charge, pledge, encumbrance or security interest on property of the Company or any Subsidiary is greater than 40% of the sum of (without duplication): (i) Total Assets as of |
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interest on property of the Company or any Subsidiary (excluding any Pari Passu Debt) is greater than 40% of the sum of (without duplication): (i) Total Assets as of the end of the calendar quarter covered in the Company’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed with the Commission (or, if such filing is not permitted under the Exchange Act, with the Trustee) prior to the incurrence of such additional Debt and (ii) the purchase price of any real estate assets or mortgages receivable acquired, and the amount of any securities offering proceeds received (to the extent that such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Debt), by the Company or any Subsidiary since the end of such calendar quarter, including those proceeds obtained in connection with the incurrence of such additional Debt. | the end of the calendar quarter covered in the Company’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed with the Commission (or, if such filing is not permitted under the Exchange Act, with the Trustee) prior to the incurrence of such additional Debt and (ii) the purchase price of any real estate assets or mortgages receivable acquired, and the amount of any securities offering proceeds received (to the extent that such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Debt), by the Company or any Subsidiary since the end of such calendar quarter, including those proceeds obtained in connection with the incurrence of such additional Debt. | |||
Insurance | Section 1007 of the Base ProLogis Indenture | Section 1007 of the new AMB LP Indenture | ||
The Company will, and will cause each of its Subsidiaries to, keep all of its insurable properties insured against loss or damage at least equal to their then full insurable value with financially sound and reputable insurance companies. | The Company will, and will cause each of its Subsidiaries to, keep in force upon all of its properties and operations policies of insurance carried with responsible companies in such amounts and covering all such risks as shall be customary in the industry in accordance with prevailing market conditions and availability. | |||
Provision of Financial Information | Section 1009 of the Base ProLogis Indenture | Section 1009 of the new AMB LP Indenture | ||
Whether or not the Company is subject to Section 13 or 15(d) of the Exchange Act, the Company will, to the extent permitted under the Exchange Act, file with the Commission the annual reports, quarterly reports and other documents which the Company would have been required to file with the Commission pursuant to such Section 13 or 15(d) (the “Financial Statements”) if the Company were so subject, such documents to be filed with the Commission on or prior to | Whether or not the Company or the General Partner are subject to Section 13 or 15(d) of the Exchange Act, the Company and the General Partner will, to the extent permitted under the Exchange Act, file with the Commission the annual reports, quarterly reports and other documents which the Company and the General Partner would have been required to file with the Commission pursuant to such Section 13 or 15(d) (the “Financial Statements”) if the Company and the General Partner were so |
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the respective dates (the “Required Filing Dates”) by which the Company would have been required so to file such documents if the Company were so subject. The Company will also in any event (x) within 15 days of each Required Filing Date (i) transmit by mail to all Holders, as their names and addresses appear in the Security Register, without cost to such Holders, copies of the annual reports and quarterly reports which the Company would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company were subject to such Sections, and (ii) file with the Trustee copies of annual reports, quarterly reports and other documents which the Company would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company were subject to such Sections and (y) if filing such documents by the Company with the Commission is not permitted under the Exchange Act, promptly upon written request and payment of the reasonable cost of duplication and delivery, supply copies of such documents to any prospective Holder. | subject, such documents to be filed with the Commission on or prior to the respective dates (the “Required Filing Dates”) by which the Company and the General Partner would have been required so to file such documents if the Company and the General Partner were so subject. The Company and the General Partner will also in any event (x) within 15 days of each Required Filing Date (i) transmit by mail or electronic transmittal to all Holders, as their names and addresses appear in the Security Register, without cost to such Holders, copies of the annual reports and quarterly reports which the Company and the General Partner are required to file or would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company and the General Partner were subject to such Sections, and (ii) file with the Trustee copies of annual reports, quarterly reports and other documents which the Company and the General Partner would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company and the General Partner were subject to such Sections and (y) if filing such documents by the Company or the General Partner with the Commission is not permitted under the Exchange Act, promptly upon written request and payment of the reasonable cost of duplication and delivery, supply copies of such documents to any prospective Holder. | |||
Provision of Financial Information | Section 1009 of the Base ProLogis Indenture, as amended by Section 2.2 of the Second Supplemental Indenture and the Seventh Supplemental Indenture | Section 1009 of the new AMB LP Indenture | ||
Whether or not the Company is subject to Section 13 or 15(d) of the Exchange Act, the Company will, to the extent permitted under the Exchange Act, file with the Commission the annual reports, quarterly reports and other documents which the Company would have been required to file with the Commission pursuant to such Section 13 or 15(d) (the “Financial Statements”) if the Company | Whether or not the Company or the General Partner are subject to Section 13 or 15(d) of the Exchange Act, the Company and the General Partner will, to the extent permitted under the Exchange Act, file with the Commission the annual reports, quarterly reports and other documents which the Company and the General Partner would have been required to file with the Commission pursuant to such Section 13 or |
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were so subject, such documents to be filed with the Commission on or prior to the respective dates (the “Required Filing Dates”) by which the Company would have been required so to file such documents if the Company were so subject. The Company will also in any event (x) within 15 days of each Required Filing Date (i) transmit by mail or electronic transmittal to all Holders, as their names and addresses appear in the Security Register, without cost to such Holders, copies of the annual reports and quarterly reports which the Company is required to file or would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company were subject to such Sections, and (ii) file with the Trustee copies of annual reports, quarterly reports and other documents which the Company would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company were subject to such Sections and (y) if filing such documents by the Company with the Commission is not permitted under the Exchange Act, promptly upon written request and payment of the reasonable cost of duplication and delivery, supply copies of such documents to any prospective Holder. | 15(d) (the “Financial Statements”) if the Company and the General Partner were so subject, such documents to be filed with the Commission on or prior to the respective dates (the “Required Filing Dates”) by which the Company and the General Partner would have been required so to file such documents if the Company and the General Partner were so subject. The Company and the General Partner will also in any event (x) within 15 days of each Required Filing Date (i) transmit by mail or electronic transmittal to all Holders, as their names and addresses appear in the Security Register, without cost to such Holders, copies of the annual reports and quarterly reports which the Company and the General Partner are required to file or would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company and the General Partner were subject to such Sections, and (ii) file with the Trustee copies of annual reports, quarterly reports and other documents which the Company and the General Partner would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company and the General Partner were subject to such Sections and (y) if filing such documents by the Company or the General Partner with the Commission is not permitted under the Exchange Act, promptly upon written request and payment of the reasonable cost of duplication and delivery, supply copies of such documents to any prospective Holder. | |||
Statements as to Compliance | Section 1010 of the Base ProLogis Indenture | Section 1010 of the new AMB LP Indenture | ||
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year, a brief certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Company’s compliance with all conditions and covenants under this Indenture verified in the case of conditions precedent compliance with | The Company will deliver to the Trustee, within 120 days after the end of each fiscal year, a brief certificate from its General Partner’s principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Company’s compliance with all conditions and covenants under this Indenture and, in the event of any noncompliance, specifying such |
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which is subject to verification by accountants by the certificate or opinion of an accountant and, in the event of any noncompliance, specifying such noncompliance and the nature and status thereof. For purposes of this Section 1010, such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture. | noncompliance and the nature and status thereof, provided that if the Company has been succeeded to by a corporate successor pursuant to the provisions hereof such certificate will be from such successor’s principal executive officer, principal financial officer or principal accounting officer. For purposes of this Section 1010, such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture. | |||
Guarantees | Section N/A | Section 1601 of the new AMB LP Indenture | ||
There is no comparable provision. | The provisions of this Article shall be applicable to the Securities and Guarantees. Each Guarantor (which term includes any successor Person under this Indenture) for consideration received hereby jointly and severally unconditionally and irrevocably guarantees on a senior basis (each a “Guarantee”, and collectively, the “Guarantees”) to the Holders from time to time of the Securities (a) the full and prompt payment of the principal of and any premium, if any, on any Security when and as the same shall become due, whether at the maturity thereof, by acceleration, redemption or otherwise and (b) the full and prompt payment of any interest on any Security when and as the same shall become due and payable. Each and every default in the payment of the principal of or interest or any premium on any Security shall give rise to a separate cause of action under each applicable Guarantee, and separate suits may be brought under each applicable Guarantee as each cause of action arises. The obligations of the Guarantors hereunder shall be evidenced by Guarantees affixed to the Securities issued hereunder. | |||
An Event of Default under this Indenture or the Securities shall constitute an event of default under the Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the obligations of the Company. | ||||
The obligations of the Guarantors hereunder shall be absolute and unconditional and shall |
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remain in full force and effect until the entire principal and interest and any premium on the Securities shall have been paid or provided for in accordance with provisions of this Indenture, and, unless otherwise expressly set forth in this Article, such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any of the following, whether or not with notice to, or the consent of, the Guarantors: | ||||
(a) the failure to give notice to the Guarantors of the occurrence of an Event of Default; | ||||
(b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Company or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in this Indenture or the Securities; | ||||
(c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any Security or for any other payment under this Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of this Indenture or the Securities; | ||||
(d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in this Indenture or the Securities; | ||||
(e) the taking or the omission of any of the actions referred to in this Indenture and in any of the actions under the Securities; | ||||
(f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in this Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the Securities; | ||||
(g) the voluntary or involuntary |
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liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Company or any of the assets of any of them, or any allegation or contest of the validity of the Guarantee in any such proceedings; | ||||
(h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in this Indenture; | ||||
(i) to the extent permitted by law, the release or discharge by operation of law of the Company from the performance or observance of any obligation, covenant or agreement contained in this Indenture; | ||||
(j) the default or failure of the Company or the Trustee fully to perform any of its obligations set forth in this Indenture or the Securities; | ||||
(k) the invalidity, irregularity or unenforceability of this Indenture or the Securities or any part of any thereof; | ||||
(l) any judicial or governmental action affecting the Company or any Securities or consent or indulgence granted by the Company by the Holders or by the Trustee; or | ||||
(m) the recovery of any judgment against the Company or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. | ||||
The Guarantees shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization of the Company, should the Company become insolvent or make an assignment for the |
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benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time any payment in respect of the Securities is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. | ||||
The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantees. The validity and enforceability of any Guarantee shall not be affected by the fact that it is not affixed to any particular Security. | ||||
Each of the Guarantors hereby agrees that its Guarantee set forth in this Section shall remain in full force and effect notwithstanding any failure to endorse on each Security a notation of such Guarantee. | ||||
If an officer of a Guarantor whose signature is on this Indenture or a Security no longer holds that office at the time the Trustee authenticates such Security or at any time thereafter, such Guarantor’s Guarantee of such Security shall be valid nevertheless. The delivery of any Security by the Trustee, after the authentication thereof hereunder shall constitute due delivery of any Guarantee set forth in this Indenture on behalf of the Guarantor. |
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Proceedings Against Guarantors | Section N/A | Section 1602 of the new AMB LP Indenture | ||
There is no comparable provision. | In the event of a default in the payment of principal of or any premium on any Security when and as the same shall become due, whether at the Stated Maturity thereof, by acceleration, call for redemption or otherwise, or in the event of a default in the payment of any interest on any Security when and as the same shall become due, the Trustee shall have the right to proceed first and directly against the Guarantors under this Indenture without first proceeding against the Company or exhausting any other remedies which it may have and without resorting to any other Security held by the Trustee. | |||
The Trustee shall have the right, power and authority to do all things it deems necessary or otherwise advisable to enforce the provisions of this Indenture relating to the Guarantees and protect the interests of the Holders of the Securities and, in the event of a default in payment of the principal of or any premium on any Security when and as the same shall become due, whether at the Stated Maturity thereof, by acceleration, call for redemption or otherwise, or in the event of a default in the payment of any interest on any Security when and as the same shall become due, the Trustee may institute or appear in such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of its rights and the rights of the Holders, whether for the specific enforcement of any covenant or agreement in this Indenture relating to the Guarantee or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. Without limiting the generality of the foregoing, in the event of a default in payment of the principal of or interest or any premium on any Security when due, the Trustee may institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Guarantors and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the |
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Guarantors, wherever situated. | ||||
Guarantees for Benefit of Holders | Section N/A | Section 1603 of the new AMB LP Indenture | ||
There is no comparable provision. | The Guarantees contained in this Indenture are entered into by the Guarantors for the benefit of the Holders from time to time of the Securities. Such provisions shall not be deemed to create any right in, or to be in whole or in part for the benefit of, any person other than the Trustee, the Guarantors, the Holders from time to time of the Securities, and their permitted successors and assigns. | |||
Merger or Consolidation of Guarantors | Section N/A | Section 1604 of the new AMB LP Indenture | ||
There is no comparable provision. | Each Guarantor will not, in any transaction or series of related transactions, consolidate with, or sell, lease, assign, transfer or otherwise convey all or substantially all of its assets to, or merge with or into, any other Person unless (i) either such Guarantor shall be the continuing Person, or the successor Person (if other than such Guarantor) formed by or resulting from any such consolidation or merger or which shall have received the transfer of such assets is a corporation, partnership, limited liability company or other entity organized and existing under the laws of the United States of America or a State thereof or the District of Columbia and shall expressly assume, by supplemental indenture executed by such successor and delivered by it to the Trustee (which supplemental indenture shall comply with Article Nine hereof and shall be reasonably satisfactory to the Trustee), all of such Guarantor’s obligations with respect to Securities Outstanding and the observance of all of the covenants and conditions contained in this Indenture and its Guarantee to be performed or observed by the Guarantor; (ii) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or the lapse of time, or both, would become an Event of Default, shall have occurred and shall be continuing; and (iii) such Guarantor shall have delivered |
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to the Trustee the Officers’ Certificate and Opinion of Counsel required pursuant to this Section. In the event that such Guarantor is not the continuing corporation, then, for purposes of clause (ii) of the preceding sentence, the successor shall be deemed to be such “Guarantor” referred to in such clause (ii). Any consolidation, merger, sale, lease, assignment, transfer or conveyance permitted under this Section is also subject to the condition precedent that the Trustee receive an Officers’ Certificate and an Opinion of Counsel to the effect that any such consolidation, merger, sale, lease, assignment, transfer or conveyance, and the assumption by any successor, complies with the provisions of this Article and that all conditions precedent herein provided for relating to such transaction have been complied with. | ||||
Additional Guarantors | Section N/A | Section 1605 of the new AMB LP Indenture | ||
There is no comparable provision. | Any Person may become a Guarantor by executing and delivering to the Trustee (a) a supplemental indenture, which subjects such person to the provisions of this Indenture as a Guarantor, and (b) an Opinion of Counsel to the effect that such supplemental indenture has been duly authorized and executed by such person and constitutes the legal, valid, binding and enforceable obligation of such person (subject to such customary exceptions concerning fraudulent conveyance laws, creditors’ rights and equitable principles). | |||
Guarantee | Section N/A | Section 10.01 of the new supplemental indentures to the new AMB LP Indenture for each series of AMB LP Exchangeable Notes | ||
There is no comparable provision. | Article Sixteen of the Base Indenture shall be applicable to the Notes. | |||
Exclusion of Certain Provisions From Base Indenture | Section 4.05 of the ProLogis Convertible Notes Supplemental Indentures | Section 4.05 of the new supplemental indentures to the new AMB LP Indenture for each series of AMB LP Exchangeable Notes | ||
Section 1004, Section 1006, Section 1007 and Section 1011 of the Base Indenture shall not apply to the | Section 1004, Section 1006, Section 1007, Section 1011 and Article Fourteen of the Base Indenture shall not apply to the Notes. |
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Notes. Section 1002, Section 1003, Section 1005, Section 1008, Section 1009 (as amended by Section 2.2 of the Second Supplemental Indenture to the Base Indenture), Section 1010 and Section 1012 of the Base Indenture shall be applicable to the Notes. | Section 1002, Section 1003, Section 1005, Section 1008, Section 1009, Section 1010 and Section 1012 of the Base Indenture shall be applicable to the Notes. | |||
Notice of Redemption | Section N/A | Section 3.03(d) of the new supplemental indenture governing the AMB LP 3.250% 2015 Exchangeable Notes | ||
There is no comparable provision. | (d) whether the Company will satisfy its Exchange Obligation with respect to any Notes called for redemption that are surrendered for exchange in cash, shares of Common Stock or both as provided herein; provided that the Company may not provide notice of a redemption of Notes at the Company’s option that specifies that the Company will settle exchanges of Notes prior to such redemption in cash and shares of Common Stock unless, at the time of such notice, the Company has available to it a sufficient number of authorized shares of Common Stock to satisfy its Exchange Obligation in respect of the Notes to be redeemed. | |||
Exchange Procedures | Section 8.02(a) and (b) of the Tenth Supplemental Indenture (a) (1) The Company shall settle its Conversion Obligations entirely in Common Shares. In satisfying its Conversion Obligations, the Company shall deliver a number of Common Shares equal to (i) the aggregate principal amount of Notes to be converted divided by $1,000, multiplied by (ii) the applicable Conversion Rate (which shall include any increases to reflect any Additional Shares that such Holder is entitled to receive pursuant to Section 8.01(g) above). The Company shall deliver such Common Shares, together with any cash in lieu of fractional Common Shares as set forth pursuant to clause (k) below, on the third Business Day immediately following the applicable Conversion Date. Notwithstanding the preceding sentence, if any calculation required in order to | Section 8.02(a) and (b) of the new supplemental indenture governing the AMB LP 3.250% 2015 Exchangeable Notes (a) (1) The Company shall settle its Exchange Obligations as described in Section 8.02(a)(3), unless, within the applicable time period specified in this Section 8.02(a)(1), the Company elects to settle its Exchange Obligations as described in Section 8.02(a)(2) or Section 8.02(a)(4). The cash and/or shares of Common Stock which the Company is required to deliver in accordance with this Section 8.02 in settlement of its Exchange Obligations is referred to herein as the “Settlement Amount.” If the Company desires to settle its Exchange Obligations as described in Section 8.02(a)(2) or Section 8.02(a)(4), the Company shall notify each exchanging Noteholder by notice to the Trustee (for further distribution to Noteholders) of the method the Company will choose to satisfy its Exchange Obligations no later than the second Trading Day immediately following |
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determine the number of Common Shares to be delivered by the Company in respect of a particular conversion is based upon data that will not be available to the Company on the applicable Conversion Date, the Company shall be entitled to delay settlement of that conversion until the third Business Day after the relevant data become available. (b)Intentionally Omitted. | the Company’s receipt of a Notice of Exchange from such Holder, and such notice shall specify the section of this Fourth Supplemental Indenture pursuant to which the Company is electing to satisfy its exchange obligations. The Company shall treat all Noteholders exchanging on the same Trading Day in the same manner; however, the Company shall not have any obligation to settle its Exchange Obligations arising on different Trading Days in the same manner. (2) If the Company has elected, within the applicable time periods specified in Section 8.02(a)(1), to settle its Exchange Obligations as described in this Section 8.02(a)(2), the Company shall have the right to settle its Exchange Obligations entirely in shares of Common Stock. If the Company elects to satisfy its Exchange Obligation entirely in shares of Common Stock, the Company shall deliver a number of shares of Common Stock equal to (i) the aggregate principal amount of Notes to be exchanged divided by $1,000, multiplied by (ii) the applicable Exchange Rate (which shall include any increases to reflect any Additional Shares that such Holder is entitled to receive pursuant to Section 8.01(g) above). The Company shall deliver such shares of Common Stock as soon as practicable after it has notified the exchanging Holder, pursuant to Section 8.02(a)(1) above, that it has elected to satisfy its Exchange Obligation entirely in shares of Common Stock. | |||
(3) If the Company does not elect, within the applicable time periods specified in Section 8.02(a)(1), to settle its Exchange Obligations as described in Section 8.02(a)(2) or 8.02(a)(4), the Company shall settle its Exchange Obligations as described in this Section 8.02(a)(3), subject to Section 8.02(b) hereof. The Company shall deliver in respect of each $1,000 principal amount of Notes being exchanged a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive Trading Days during the Observation Period, on the third Trading |
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Day immediately following the last day of the related Observation Period; provided that the Company will deliver cash in lieu of fractional shares of Common Stock as set forth pursuant to clause (k) below. The Daily Settlement Amounts shall be determined by the Company promptly following the last day of the Observation Period. | ||||
(4) If the Company has elected, within the applicable time periods specified in Section 8.02(a)(1), to settle its Exchange Obligations as described in this Section 8.02(a)(4), the Company shall have the right to settle all or a portion of the amount by which the Daily Exchange Value exceeds $50 in cash in accordance with this Section 8.02(a)(4). In such case, the Company shall specify a percentage of the amount by which the Daily Exchange Value exceeds $50 that will be settled in cash, or the “cash percentage.” The Company will inform exchanging Holders by notice to the Trustee (for further distribution to Noteholders) no later than two Trading Days prior to the first day of the applicable Observation Period if it elects to pay cash upon exchange of the Notes and shall specify in such notice (the “cash percentage notice”) the applicable cash percentage. If the Company elects to specify a cash percentage, the amount of cash that the Company shall deliver in respect of each Trading Day in the applicable Observation Period shall equal the product of (w) the cash percentage and (x) the amount by which the Daily Exchange Value exceeds $50 for such Trading Day. The number of shares of Common Stock deliverable in respect of each Trading Day in the applicable Observation Period shall equal (i) the product of (y) 100% minus the cash percentage and (z) the amount by which the Daily Exchange Value exceeds $50 for such Trading Day, divided by (ii) the Daily VWAP of the Common Stock for such Trading Day. If the Company does not specify a cash percentage, it must settle the entire amount by which the Daily Exchange Value exceeds $50 with shares of Common Stock pursuant to Section 8.02(a)(3) above; |
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provided, however, that the Company will deliver cash in lieu of fractional shares of Common Stock as set forth pursuant to clause (k) below. If the Company specifies a cash percentage, the Company shall satisfy its Exchange Obligation by delivering, on the third Trading Day immediately following the last day of the related Observation Period, the amount of cash and the number of shares of Common Stock deliverable pursuant to this Section 8.02(a)(4). | ||||
(b) Notwithstanding Section 8.02(a), the Company shall satisfy the Exchange Obligation with respect to each $1,000 principal amount of Notes tendered for exchange to which Additional Shares shall be added to the Exchange Rate as set forth in Section 8.01(g) pursuant to this clause (b). | ||||
(1) If the last day of the applicable Observation Period related to Notes surrendered for exchange is prior to the third Trading Day preceding the Effective Date of the Fundamental Change, the Company will satisfy the related Exchange Obligation with respect to each $1,000 principal amount of Notes tendered for exchange as described in Section 8.01(a) by delivering the amount of cash and shares of Common Stock, if any (based on the Exchange Rate, but without regard to the number of Additional Shares to be added to the Exchange Rate pursuant to Section 8.01(g)) on the third Trading Day immediately following the last day of the applicable Observation Period. In addition, as soon as practicable following the Effective Date of the Fundamental Change, the Company will deliver the increase in such amount of cash and Reference Property deliverable in lieu of shares of Common Stock, if any, as if the Exchange Rate had been increased by such number of Additional Shares during the related Observation Period (and based upon the related Daily VWAP prices during such Observation Period). If such increased amount of cash and Common Stock, if any, results in an increase to the amount of cash |
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to be paid to Holders, the Company will pay such increase in cash, and if such increased amount results in an increase to the number of shares of Common Stock, the Company will deliver such increase by delivering Reference Property based on such increased number of shares. | ||||
(2) If the last day of the applicable Observation Period related to Notes surrendered for exchange is on or following the third scheduled Trading Day preceding the Effective Date of such Fundamental Change, the Company will satisfy the Exchange Obligation with respect to each $1,000 principal amount of Notes tendered for exchange as described in Section 8.01(a) (based on the Exchange Rate as increased by the Additional Shares pursuant to Section 8.01(g) above) on the later to occur of (x) the Effective Date of the Fundamental Change and (y) the third Trading Day immediately following the last day of the applicable Observation Period. | ||||
Effect of Reclassification, Consolidation, Merger or Sale | Section 8.06(b) of the Tenth Supplemental Indenture | Section 8.06(b) of the new supplemental indenture governing the AMB LP 3.250% 2015 Exchangeable Notes | ||
Notwithstanding the provisions of Section 8.02(a), and subject to the provisions of Section 8.01, at the effective time of such Reorganization Event, the right to convert each $1,000 principal amount of Notes will be changed to a right to convert such Note by reference to the kind and amount of stock, other securities or other property, assets or cash (or any combination thereof) that such holder of Notes would have owned immediately after such Reorganization Event if such holder had converted their Notes immediately prior to such Reorganization Event (the “Reference Property”). For purposes of the foregoing, where a Reorganization Event involves consideration based upon any form of stockholder election, the consideration will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Shares that | Notwithstanding the provisions of Section 8.02(a) and Section 8.02(b), and subject to the provisions of Section 8.01, at the effective time of such Reorganization Event, the right to exchange each $1,000 principal amount of Notes will be changed to a right to exchange such Note by reference to the kind and amount of stock, other securities or other property, assets or cash (or any combination thereof) that such holder of Notes would have owned immediately after such Reorganization Event if such holder had exchanged their Notes immediately prior to such Reorganization Event (the “Reference Property”) such that from and after the effective time of such transaction, a Noteholder will be entitled thereafter to exchange its Notes, subject to the successor’s right to deliver cash, shares of Common Stock or common stock of such successor or a combination of cash and shares of Common Stock as set forth in |
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affirmatively make such an election. The Company shall not become a party to any such transaction unless its terms are consistent with the preceding. None of the foregoing provisions shall affect the right of a Holder of Notes to convert its Notes in accordance with the provisions of Article VIII hereof prior to the effective date of a Reorganization Event. For the avoidance of doubt, adjustments to the Conversion Rate set forth under Section 8.04 do not apply to distributions to the extent that the right to convert Notes has been changed into the right to convert into Reference Property. | Section 8.02(b), into cash (up to the aggregate principal amount thereof) and, in lieu of the shares of Common Stock otherwise deliverable, the same type (and in the same proportion) of Reference Property, based on the Daily Settlement Amounts of Reference Property in an amount equal to the applicable Exchange Rate, as described under Section 8.02(b). For purposes of the foregoing, where a Reorganization Event involves consideration based upon any form of stockholder election, the consideration will be deemed to be the weighted average of the types and amounts of consideration received by the holders of shares of Common Stock that affirmatively make such an election. Parent shall not become a party to any such transaction unless its terms are consistent with the preceding. None of the foregoing provisions shall affect the right of a Holder of Notes to exchange its Notes in accordance with the provisions of Article VIII hereof prior to the effective date of a Reorganization Event. For the avoidance of doubt, adjustments to the Exchange Rate set forth under Section 8.04 do not apply to distributions to the extent that the right to exchange Notes has been changed into the right to exchange into Reference Property. |
148
Initial Conversion Rates | Initial Exchange Rates, as | |||||||
for the ProLogis | adjusted, for the AMB LP | |||||||
Convertible Notes | Exchangeable Notes | |||||||
AMB LP 2.250% 2037 Exchangeable Notes | 13.1614 | 5.8752 | ||||||
AMB LP 1.875% 2037 Exchangeable Notes | 12.2926 | 5.4874 | ||||||
AMB LP 2.625% 2038 Exchangeable Notes | 13.1203 | 5.8569 | ||||||
AMB LP 3.250% 2015 Exchangeable Notes | 57.8503 | 25.8244 | ||||||
Dividend Threshold Amounts | ||||||||
Dividend Threshold | Dividend Threshold Amounts, | |||||||
Amounts for the | as adjusted, for the AMB LP | |||||||
ProLogis Convertible Notes | Exchangeable Notes | |||||||
AMB LP 2.250% 2037 Exchangeable Notes | $ | 0.46 | $ | 1.0305 | ||||
AMB LP 1.875% 2037 Exchangeable Notes | $ | 0.46 | $ | 1.0305 | ||||
AMB LP 2.625% 2038 Exchangeable Notes | $ | 0.5175 | $ | 1.1593 | ||||
AMB LP 3.250% 2015 Exchangeable Notes | $ | 0.15 | $ | 0.3360 |
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Contingent Exchange Trigger | ||||||||
Contingent Exchange | Price, as adjusted, for the AMB | |||||||
Trigger Price per | LP Exchangeable Notes per | |||||||
ProLogis Common Share | Share of AMB Common Stock | |||||||
AMB LP 2.250% 2037 Exchangeable Notes | $ | 98.77 | $ | 221.27 | ||||
AMB LP 1.875% 2037 Exchangeable Notes | $ | 105.75 | $ | 236.91 | ||||
AMB LP 2.625% 2038 Exchangeable Notes | $ | 99.08 | $ | 221.96 | ||||
AMB LP 3.250% 2015 Exchangeable Notes | N/A | N/A |
Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $63.82 | $70.00 | $80.00 | $90.00 | $100.00 | $110.00 | $120.00 | $130.00 | $140.00 | $150.00 | $160.00 | $170.00 | ||||||||||||||||||||||||||||||||||||
April 1, 2011 | 2.6115 | 1.4809 | 0.5642 | 0.1748 | 0.0384 | 0.0060 | 0.0027 | 0.0024 | 0.0003 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
April 1, 2012 | 2.6115 | 1.2281 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $142.97 | $156.81 | $179.21 | $201.61 | $224.01 | $246.42 | $268.82 | $291.22 | $313.62 | $336.02 | $358.42 | $380.82 | ||||||||||||||||||||||||||||||||||||
April 1, 2011 | 1.1658 | 0.6611 | 0.2519 | 0.0780 | 0.0171 | 0.0027 | 0.0012 | 0.0011 | 0.0001 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
April 1, 2012 | 1.1658 | 0.5482 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $68.33 | $70.00 | $75.00 | $80.00 | $85.00 | $90.00 | $95.00 | $100.00 | $105.00 | $110.00 | $115.00 | $120.00 | ||||||||||||||||||||||||||||||||||||
January 15, 2012 | 2.4391 | 2.0800 | 1.4313 | 0.9500 | 0.6035 | 0.3614 | 0.1980 | 0.0916 | 0.0249 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
January 15, 2013 | 2.4391 | 2.0282 | 1.0799 | 0.2759 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
150
Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $153.07 | $156.81 | $168.01 | $179.21 | $190.41 | $201.61 | $212.81 | $224.01 | $235.22 | $246.42 | $257.62 | $268.82 | ||||||||||||||||||||||||||||||||||||
January 15, 2012 | 1.0888 | 0.9285 | 0.6389 | 0.4241 | 0.2694 | 0.1613 | 0.0884 | 0.0409 | 0.0111 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
January 15, 2013 | 1.0888 | 0.9054 | 0.4821 | 0.1232 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $62.86 | $65.00 | $67.50 | $70.00 | $72.50 | $75.00 | $77.50 | $80.00 | $85.00 | $90.00 | $95.00 | $100.00 | $110.00 | $120.00 | ||||||||||||||||||||||||||||||||||||||||||
May 20, 2011 | 2.7880 | 2.3192 | 1.9988 | 1.7186 | 1.4736 | 1.2597 | 1.0731 | 0.9106 | 0.6468 | 0.4490 | 0.3024 | 0.1953 | 0.0661 | 0.0099 | ||||||||||||||||||||||||||||||||||||||||||
May 20, 2012 | 2.7880 | 2.2643 | 1.7817 | 1.4817 | 1.2250 | 1.0061 | 0.8204 | 0.6634 | 0.4208 | 0.2530 | 0.1411 | 0.0700 | 0.0048 | 0.0000 | ||||||||||||||||||||||||||||||||||||||||||
May 20, 2013 | 2.7880 | 2.2643 | 1.6945 | 1.1654 | 0.6728 | 0.2130 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $140.82 | $145.61 | $151.21 | $156.81 | $162.41 | $168.01 | $173.61 | $179.21 | $190.41 | $201.61 | $212.81 | $224.01 | $246.42 | $268.82 | ||||||||||||||||||||||||||||||||||||||||||
May 20, 2011 | 1.2446 | 1.0353 | 0.8923 | 0.7672 | 0.6578 | 0.5623 | 0.4790 | 0.4065 | 0.2887 | 0.2004 | 0.1350 | 0.0872 | 0.0295 | 0.0044 | ||||||||||||||||||||||||||||||||||||||||||
May 20, 2012 | 1.2446 | 1.0108 | 0.7954 | 0.6614 | 0.5468 | 0.4491 | 0.3662 | 0.2961 | 0.1878 | 0.1129 | 0.0630 | 0.0312 | 0.0021 | 0.0000 | ||||||||||||||||||||||||||||||||||||||||||
May 20, 2013 | 1.2446 | 1.0108 | 0.7564 | 0.5202 | 0.3003 | 0.0951 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $13.40 | $15.00 | $17.50 | $20.00 | $22.50 | $25.00 | $27.50 | $30.00 | $32.50 | $35.00 | $37.50 | $40.00 | ||||||||||||||||||||||||||||||||||||
March 15, 2012 | 16.7765 | 12.4979 | 7.2319 | 4.1631 | 2.3658 | 1.3110 | 0.6940 | 0.3377 | 0.1397 | 0.0396 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
March 15, 2013 | 16.7765 | 11.7694 | 6.3041 | 3.2875 | 1.6518 | 0.7814 | 0.3305 | 0.1106 | 0.0174 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
March 15, 2014 | 16.7765 | 10.5088 | 4.7035 | 1.8907 | 0.6585 | 0.1765 | 0.0207 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
March 15, 2015 | 16.7765 | 8.8164 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
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Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $30.02 | $33.60 | $39.20 | $44.80 | $50.40 | $56.00 | $61.60 | $67.20 | $72.80 | $78.41 | $84.01 | $89.61 | ||||||||||||||||||||||||||||||||||||
March 15, 2012 | 7.4890 | 5.5791 | 3.2283 | 1.8584 | 1.0561 | 0.5852 | 0.3098 | 0.1507 | 0.0624 | 0.0177 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
March 15, 2013 | 7.4890 | 5.2539 | 2.8142 | 1.4675 | 0.7374 | 0.3488 | 0.1475 | 0.0494 | 0.0078 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
March 15, 2014 | 7.4890 | 4.6911 | 2.0996 | 0.8440 | 0.2940 | 0.0788 | 0.0092 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
March 15, 2015 | 7.4890 | 3.9356 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
Initial Conversion Rates | Initial Exchange Rates, as | |||||||
for the ProLogis | adjusted, for the ProLogis | |||||||
Convertible Notes | Convertible Notes | |||||||
ProLogis 2.250% 2037 Convertible Notes | 13.1614 | 5.8752 | ||||||
ProLogis 1.875% 2037 Convertible Notes | 12.2926 | 5.4874 | ||||||
ProLogis 2.625% 2038 Convertible Notes | 13.1203 | 5.8569 | ||||||
ProLogis 3.250% 2015 Convertible Notes | 57.8503 | 25.8244 |
152
Dividend Threshold | ||||||||
Amounts for the | Dividend Threshold Amounts, | |||||||
ProLogis Convertible | as adjusted, for the ProLogis | |||||||
Notes | Convertible Notes | |||||||
ProLogis 2.250% 2037 Convertible Notes | $ | 0.46 | $ | 1.0305 | ||||
ProLogis 1.875% 2037 Convertible Notes | $ | 0.46 | $ | 1.0305 | ||||
ProLogis 2.625% 2038 Convertible Notes | $ | 0.5175 | $ | 1.1593 | ||||
ProLogis 3.250% 2015 Convertible Notes | $ | 0.15 | $ | 0.3360 |
Contingent Exchange Trigger | ||||||||
Contingent Exchange | Price, as adjusted, for the | |||||||
Trigger Price per | ProLogis Convertible Notes per | |||||||
ProLogis Common Share | Share of AMB Common Stock | |||||||
ProLogis 2.250% 2037 Convertible Notes | $ | 98.77 | $ | 221.27 | ||||
ProLogis 1.875% 2037 Convertible Notes | $ | 105.75 | $ | 236.91 | ||||
ProLogis 2.625% 2038 Convertible Notes | $ | 99.08 | $ | 221.96 | ||||
ProLogis 3.250% 2015 Convertible Notes | N/A | N/A |
Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $63.82 | $70.00 | $80.00 | $90.00 | $100.00 | $110.00 | $120.00 | $130.00 | $140.00 | $150.00 | $160.00 | $170.00 | ||||||||||||||||||||||||||||||||||||
April 1, 2011 | 2.6115 | 1.4809 | 0.5642 | 0.1748 | 0.0384 | 0.0060 | 0.0027 | 0.0024 | 0.0003 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
April 1, 2012 | 2.6115 | 1.2281 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $142.97 | $156.81 | $179.21 | $201.61 | $224.01 | $246.42 | $268.82 | $291.22 | $313.62 | $336.02 | $358.42 | $380.82 | ||||||||||||||||||||||||||||||||||||
April 1, 2011 | 1.1658 | 0.6611 | 0.2519 | 0.0780 | 0.0171 | 0.0027 | 0.0012 | 0.0011 | 0.0001 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
April 1, 2012 | 1.1658 | 0.5482 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
153
Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $68.33 | $70.00 | $75.00 | $80.00 | $85.00 | $90.00 | $95.00 | $100.00 | $105.00 | $110.00 | $115.00 | $120.00 | ||||||||||||||||||||||||||||||||||||
January 15, 2012 | 2.4391 | 2.0800 | 1.4313 | 0.9500 | 0.6035 | 0.3614 | 0.1980 | 0.0916 | 0.0249 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
January 15, 2013 | 2.4391 | 2.0282 | 1.0799 | 0.2759 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $153.07 | $156.81 | $168.01 | $179.21 | $190.41 | $201.61 | $212.81 | $224.01 | $235.22 | $246.42 | $257.62 | $268.82 | ||||||||||||||||||||||||||||||||||||
January 15, 2012 | 1.0888 | 0.9285 | 0.6389 | 0.4241 | 0.2694 | 0.1613 | 0.0884 | 0.0409 | 0.0111 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
January 15, 2013 | 1.0888 | 0.9054 | 0.4821 | 0.1232 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $62.86 | $65.00 | $67.50 | $70.00 | $72.50 | $75.00 | $77.50 | $80.00 | $85.00 | $90.00 | $95.00 | $100.00 | $110.00 | $120.00 | ||||||||||||||||||||||||||||||||||||||||||
May 20, 2011 | 2.7880 | 2.3192 | 1.9988 | 1.7186 | 1.4736 | 1.2597 | 1.0731 | 0.9106 | 0.6468 | 0.4490 | 0.3024 | 0.1953 | 0.0661 | 0.0099 | ||||||||||||||||||||||||||||||||||||||||||
May 20, 2012 | 2.7880 | 2.2643 | 1.7817 | 1.4817 | 1.2250 | 1.0061 | 0.8204 | 0.6634 | 0.4208 | 0.2530 | 0.1411 | 0.0700 | 0.0048 | 0.0000 | ||||||||||||||||||||||||||||||||||||||||||
May 20, 2013 | 2.7880 | 2.2643 | 1.6945 | 1.1654 | 0.6728 | 0.2130 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $140.82 | $145.61 | $151.21 | $156.81 | $162.41 | $168.01 | $173.61 | $179.21 | $190.41 | $201.61 | $212.81 | $224.01 | $246.42 | $268.82 | ||||||||||||||||||||||||||||||||||||||||||
May 20, 2011 | 1.2446 | 1.0353 | 0.8923 | 0.7672 | 0.6578 | 0.5623 | 0.4790 | 0.4065 | 0.2887 | 0.2004 | 0.1350 | 0.0872 | 0.0295 | 0.0044 | ||||||||||||||||||||||||||||||||||||||||||
May 20, 2012 | 1.2446 | 1.0108 | 0.7954 | 0.6614 | 0.5468 | 0.4491 | 0.3662 | 0.2961 | 0.1878 | 0.1129 | 0.0630 | 0.0312 | 0.0021 | 0.0000 | ||||||||||||||||||||||||||||||||||||||||||
May 20, 2013 | 1.2446 | 1.0108 | 0.7564 | 0.5202 | 0.3003 | 0.0951 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
154
Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $13.40 | $15.00 | $17.50 | $20.00 | $22.50 | $25.00 | $27.50 | $30.00 | $32.50 | $35.00 | $37.50 | $40.00 | ||||||||||||||||||||||||||||||||||||
March 15, 2012 | 16.7765 | 12.4979 | 7.2319 | 4.1631 | 2.3658 | 1.3110 | 0.6940 | 0.3377 | 0.1397 | 0.0396 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
March 15, 2013 | 16.7765 | 11.7694 | 6.3041 | 3.2875 | 1.6518 | 0.7814 | 0.3305 | 0.1106 | 0.0174 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
March 15, 2014 | 16.7765 | 10.5088 | 4.7035 | 1.8907 | 0.6585 | 0.1765 | 0.0207 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
March 15, 2015 | 16.7765 | 8.8164 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $30.02 | $33.60 | $39.20 | $44.80 | $50.40 | $56.00 | $61.60 | $67.20 | $72.80 | $78.41 | $84.01 | $89.61 | ||||||||||||||||||||||||||||||||||||
March 15, 2012 | 7.4890 | 5.5791 | 3.2283 | 1.8584 | 1.0561 | 0.5852 | 0.3098 | 0.1507 | 0.0624 | 0.0177 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
March 15, 2013 | 7.4890 | 5.2539 | 2.8142 | 1.4675 | 0.7374 | 0.3488 | 0.1475 | 0.0494 | 0.0078 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
March 15, 2014 | 7.4890 | 4.6911 | 2.0996 | 0.8440 | 0.2940 | 0.0788 | 0.0092 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
March 15, 2015 | 7.4890 | 3.9356 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
155
156
Principal Amount | ||||||||
Date of Issuance | Description of Securities | Outstanding | ||||||
ProLogis Non-Convertible Notes | ||||||||
Original Financial Information Securities: | ||||||||
March 2, 1995 | 9.340% Notes due 2015 | $ | 5,511,625 | (1) | ||||
May 17, 1996 | 8.650% Notes due 2016 | $ | 36,402,700 | (2) | ||||
February 4, 1997 | 7.810% Notes due 2015 | $ | 48,226,750 | (1) | ||||
July 11, 1997 | 7.625% Notes due 2017 | $ | 100,000,000 | |||||
February 24, 2003 | 5.500% Notes due 2013 | $ | 61,443,000 | |||||
Total Original Financial Information Securities | $ | 251,584,075 | ||||||
ProLogis Non-Convertible Notes other than Original Financial Information Securities | ||||||||
November 2, 2005 | 5.625% Notes due 2015 | $ | 155,320,000 | |||||
March 27, 2006 | 5.500% Notes due 2012 | $ | 58,935,000 | |||||
March 27, 2006 | 5.750% Notes due 2016 | $ | 197,758,000 | |||||
November 14, 2006 | 5.625% Notes due 2016 | $ | 182,104,000 | |||||
May 7, 2008 | 6.625% Notes due 2018 | $ | 600,000,000 | |||||
August 14, 2009 | 7.625% Notes due 2014 | $ | 350,000,000 | |||||
October 30, 2009 | 7.375% Notes due 2019 | $ | 396,641,000 | |||||
March 16, 2010 | 6.250% Notes due 2017 | $ | 300,000,000 | |||||
March 16, 2010 | 6.875% Notes due 2020 | $ | 561,049,000 | |||||
Total ProLogis Non-Convertible Notes, except for Original Financial Information Securities | $ | 2,801,807,000 | ||||||
Total ProLogis Non-Convertible Notes | $ | 3,053,391,075 | ||||||
ProLogis Convertible Notes | ||||||||
ProLogis 3.250% 2015 Convertible Notes | ||||||||
March 16, 2010 | 3.250% Convertible Senior Notes due 2015 | $ | 460,000,000 | |||||
ProLogis Contingent Convertible Notes | ||||||||
March 26, 2007 | 2.250% Convertible Senior Notes due 2037 | $ | 592,980,000 | |||||
November 8, 2007 | 1.875% Convertible Senior Notes due 2037 | $ | 141,635,000 | |||||
May 7, 2008 | 2.625% Convertible Senior Notes due 2038 | $ | 386,250,000 | |||||
Total ProLogis Contingent Convertible Notes | $ | 1,120,865,000 | ||||||
Total ProLogis Convertible Notes | $ | 1,580,865,000 | ||||||
Total ProLogis Non-Convertible Notes and ProLogis 3.250% 2015 Convertible Notes | $ | 3,513,391,075 | ||||||
Total ProLogis Notes | $ | 4,634,256,075 | ||||||
Total ProLogis Notes, except for Original Financial Information Securities | $ | 4,382,672,000 |
(1) | Such current aggregate principal amount reflects mandatory principal repayments already made in accordance with the terms of the notes. | |
(2) | Such current aggregate principal amount reflects mandatory principal repayments already made in accordance with the terms of the notes, including the mandatory repayment of $4,600,300 to be made on May 15, 2011. |
157
158
159
160
ProLogis Notes after giving | ||||
effect to the Proposed | ||||
ProLogis Notes without giving effect to the Proposed | Amendments to the | |||
Amendments to the ProLogis Indenture | ProLogis Indenture | |||
Events of Default | Sections 501(5) and 501(6) of the Base ProLogis Indenture | Section N/A | ||
(5) a default under any bond, debenture, note or other evidence of indebtedness of the Company, or under any mortgage, indenture or other instrument of the Company (including a default with respect to Securities of any series other than that series) under which there may be issued or by which there may be secured any indebtedness of the Company (or by any Subsidiary, the repayment of which the Company has guaranteed or for which the Company is directly responsible or liable as obligor or guarantor), whether such indebtedness now exists or shall hereafter be created, which default shall constitute a failure to pay an aggregate principal amount exceeding $10,000,000 of such indebtedness when due and payable after the expiration of any applicable grace period with respect thereto and shall have resulted in such indebtedness in an aggregate principal amount exceeding $10,000,000 becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such indebtedness having been discharged, or such acceleration having been rescinded or annulled, within a period of 10 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 10% in principal amount of the Outstanding Securities of that series a written notice specifying such default and requiring the Company to cause such indebtedness to be discharged or cause such acceleration to the rescinded or annulled and stating that such notice is a “Notice of Default” hereunder; or | There are no comparable provisions. | |||
(6) the entry by a court of competent jurisdiction of one or more judgments, orders or decrees against the Company or any of its Subsidiaries in an aggregate amount (excluding amounts covered by insurance) in excess of $10,000,000 and such judgments, orders or decrees remain undischarged, unstayed and unsatisfied in an aggregate amount (excluding amounts covered by insurance) in excess of $10,000,000 for a period of 30 consecutive days; or | ||||
Events of Default | Sections 501(5) and 501(6) of the Base ProLogis Indenture, as amended by Section 2.3 of the Second Supplemental Indenture | Section N/A | ||
Pursuant to Section 901(5) of the Base Indenture, clauses (5) and (6) of Section 501 of the Base Indenture are hereby amended for the benefit of the Holders of Securities issued on or after the date of this Supplemental Indenture, unless otherwise provided in the Officers’ Certificate or supplemental indenture authorizing any series of such Securities, to provide that references to $10,000,000 contained in clauses (5) and (6) of Section 501 of the Indenture are amended to be $50,000,000; provided, however, that the provisions of this | There is no comparable provision. |
161
ProLogis Notes after giving | ||||
effect to the Proposed | ||||
ProLogis Notes without giving effect to the Proposed | Amendments to the | |||
Amendments to the ProLogis Indenture | ProLogis Indenture | |||
Section 2.3 shall become effective only when there are no Securities Outstanding of any series created prior to the execution of this Supplemental Indenture. | ||||
Events of Default | Sections 501(5) and 501(6) of the Base ProLogis Indenture, as amended by Section 2.2 of the Eighth Supplemental Indenture | Section N/A | ||
Pursuant to Section 901(5) of the Base Indenture, clauses (5) and (6) of Section 501 of the Base Indenture are hereby amended for the benefit of the Holders of Securities issued on or after the date of this Supplemental Indenture, unless otherwise provided in the Officers’ Certificate or supplemental indenture authorizing any series of such Securities, to provide that references to $10,000,000 contained in clauses (5) and (6) of Section 501 of the Indenture are amended to be $50,000,000. | There is no comparable provision. | |||
Events of Default | Sections 501(5) and 501(6) of the Base ProLogis Indenture, as amended by Section 2.2 of the Ninth Supplemental Indenture | Section N/A | ||
Pursuant to Section 902 of the Base Indenture: (i) clauses (5) and (6) of Section 501 of the Original Indenture as they relate to (a) the Consent Securities and (b) Securities issued on or after the date of this Supplemental Indenture (unless, with respect to Securities referenced in the immediately preceding clause (b), otherwise provided in the Officers’ Certificate or supplemental indenture authorizing any such series of Securities) are hereby amended to provide that references to $10,000,000 contained in clauses (5) and (6) of Section 501 of the Original Indenture are amended to be $50,000,000; and (ii) Section 2.3 of the Second Supplemental Indenture and Section 2.3 of the Seventh Supplemental Indenture shall not apply to (x) the Consent Securities or (y) any Securities issued on or after the date of this Supplemental Indenture (unless, with respect to Securities referenced in the immediately preceding clause (y), otherwise provided in the Officers’ Certificate or Supplemental Indenture authorizing any such series of Securities). | There is no comparable provision. | |||
Events of Default | Section 5.01 of the Fourth Supplemental Indenture, Fifth Supplemental Indenture and Sixth Supplemental Indenture | Section 1.3(j) of the Thirteenth Supplemental Indenture | ||
The provisions of Section 501(2) and Section 501(3) of the Base Indenture shall not be applicable to the Notes. As contemplated under Section 301 and Section 501(9) of the Base Indenture, the following events, in addition to the events described in clauses (1), (4), (5) (as amended by the Second Supplemental Indenture to the Base Indenture), (6) (as amended by the Second Supplemental Indenture to the Base Indenture), (7) and (8) of the Base Indenture, shall be Events of | The provisions of Section 501(2), Section 501(3), Section 501(5) and Section 501(6) of the Base Indenture shall not be applicable to the Notes. As contemplated under Section 301 and Section 501(9) of the Base |
162
ProLogis Notes after giving | ||||
effect to the Proposed | ||||
ProLogis Notes without giving effect to the Proposed | Amendments to the | |||
Amendments to the ProLogis Indenture | ProLogis Indenture | |||
Default with respect to the Notes: | Indenture, the following events, in addition to the events described in clauses (1), (4), (7) and (8) of Section 501 of the Base Indenture, shall be Events of Default with respect to the Notes: | |||
Events of Default | Section 5.01 of the Tenth Supplemental Indenture | Section 1.3(k) of the Thirteenth Supplemental Indenture | ||
The provisions of Section 501(2) and Section 501(3) of the Base Indenture shall not be applicable to the Notes. As contemplated under Section 301 and Section 501(9) of the Base Indenture, the following events, in addition to the events described in clauses (1), (4), (5) (as amended by the Ninth Supplemental Indenture to the Base Indenture), (6) (as amended by the Ninth Supplemental Indenture to the Base Indenture), (7) and (8) of Section 501 of the Base Indenture, shall be Events of Default with respect to the Notes: | The provisions of Section 501(2), Section 501(3), Section 501(5) and Section 501(6) of the Base Indenture shall not be applicable to the Notes. As contemplated under Section 301 and Section 501(9) of the Base Indenture, the following events, in addition to the events described in clauses (1), (4), (7) and (8) of Section 501 of the Base Indenture, shall be Events of Default with respect to the Notes: | |||
Consolidation, Merger, Sale, Lease or Conveyance | Article Eight of the Base ProLogis Indenture | Article N/A | ||
Section 801. Consolidations and Mergers of Company and Sales, Leases and Conveyances Permitted Subject to Certain Conditions. The Company may consolidate with, or sell, lease or convey all or substantially all of its assets to, or merge with or into any other Person, provided that in any such case, (i) either the Company shall be the continuing entity, or the successor (if other than the Company) entity shall be a Person organized and existing under the laws of the United States or a State thereof and such successor entity shall expressly assume the due and punctual payment of the principal of (and premium or Make-Whole Amount, if any) and any interest (including all Additional Amounts, if any, payable pursuant to Section 1011) on all of the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Company by supplemental indenture, complying with | There are no comparable provisions. |
163
ProLogis Notes after giving | ||||
effect to the Proposed | ||||
ProLogis Notes without giving effect to the Proposed | Amendments to the | |||
Amendments to the ProLogis Indenture | ProLogis Indenture | |||
Article Nine hereof, satisfactory to the Trustee, executed and delivered to the Trustee by such Person and (ii) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or any Subsidiary as a result thereof as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or the lapse of time, or both, would become an Event of Default, shall have occurred and be continuing. | ||||
Section 802. Rights and Duties of Successor Corporation. In case of any such consolidation, merger, sale, lease or conveyance and upon any such assumption by the successor entity, such successor entity shall succeed to and be substituted for the Company, with the same effect as if it had been named herein as the party of the first part, and the predecessor entity, except in the event of a lease, shall be relieved of any further obligation under this Indenture and the Securities. Such successor entity thereupon may cause to be signed, and may issue either in its own name or in the name of the Company, any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor entity, instead of the Company, and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Securities which such successor entity thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof. | ||||
In case of any such consolidation, merger, sale, lease or conveyance, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate. | ||||
Section 803. Officers’ Certificate and Opinion of Counsel. Any consolidation, merger, sale, lease or conveyance permitted under Section 801 is also subject to the condition that the Trustee receive an Officers’ Certificate and an Opinion of Counsel to the effect that any such consolidation, merger, sale, lease or conveyance, and the assumption by any successor entity, complies with the provisions of this Article and that all conditions precedent herein provided for relating to such transaction have been complied with. |
164
ProLogis Notes after giving | ||||
effect to the Proposed | ||||
ProLogis Notes without giving effect to the Proposed | Amendments to the | |||
Amendments to the ProLogis Indenture | ProLogis Indenture | |||
Consolidation, Merger, Sale, Lease or Conveyance | Article VII of each of the ProLogis Convertible Notes Supplemental Indentures | Article N/A | ||
Section 7.01 Company May Consolidate, Etc. on Certain Terms. Article Eight of the Base Indenture shall be applicable to the Notes. | There is no comparable provision. | |||
Limitations on Incurrence of Debt | Section 1004 of the Base ProLogis Indenture, as amended and replaced by Section 2.1 of the Eighth Supplemental Indenture | Section 1.3(f) of the Thirteenth Supplemental Indenture | ||
Section 2.1. Limitations on Incurrence of Debt. Pursuant to Section 901(5) of the Base Indenture, Section 1004 of the Base Indenture is hereby amended and restated in its entirety as follows for the benefit of the Holders of Securities issued on or after the date of this Supplemental Indenture (which covenants shall replace and apply in lieu of the covenants set forth in Section 1004 of the Original Indenture, Section 2.1 of the Second Supplemental Indenture and Section 2.1 of the Seventh Supplemental Indenture), unless otherwise provided in the Officers’ Certificate or supplemental indenture authorizing any series of such Securities: (a) The Company will not, and will not permit any Subsidiary to, incur any Debt if, immediately after giving effect to the incurrence of such additional Debt and the application of the proceeds thereof, the aggregate principal amount of all outstanding Debt of the Company and its Subsidiaries on a consolidated basis determined in accordance with GAAP is greater than 60% of the sum of (without duplication) (i) Total Assets as of the end of the calendar quarter covered in the Company’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed with the Commission (or, if such filing is not permitted under the Exchange Act, with the Trustee) prior to the incurrence of such additional Debt and (ii) the purchase price of any real estate assets or mortgages receivable acquired, and the amount of any securities offering proceeds received (to the extent such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Debt), by the Company or any Subsidiary since the end of such calendar quarter, including those proceeds obtained in connection with the incurrence of such additional Debt. | Section 1004 of the Original Indenture and all cross-references and definitions related thereto, as amended by Section 2.1 of the First Supplemental Indenture, dated as of February 9, 2005, between the Company and the Trustee, Section 2.1 of the Second Supplemental Indenture and Section 2.1 of the Seventh Supplemental Indenture, shall not apply to the Securities issued on or after the date of this Supplemental Indenture. | |||
(b) In addition to the limitation set forth in subsection (a) of this Section 1004, the Company will not, and will not permit any Subsidiary to, incur any Debt if the ratio of Consolidated |
165
ProLogis Notes after giving | ||||
effect to the Proposed | ||||
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Amendments to the ProLogis Indenture | ProLogis Indenture | |||
Income Available for Debt Service to the Annual Service Charge for the four consecutive fiscal quarters most recently ended prior to the date on which such additional Debt is to be incurred shall have been less than 1.5, on a pro forma basis after giving effect thereto and to the application of the proceeds therefrom, and calculated on the assumption that (i) such Debt and any other Debt incurred by the Company and its Subsidiaries since the first day of such four-quarter period and the application of the proceeds therefrom, including to refinance other Debt, had occurred at the beginning of such period; (ii) the repayment or retirement of any other Debt by the Company and its Subsidiaries since the first day of such four-quarter period had been incurred, repaid or retired at the beginning of such period (except that, in making such computation, the amount of Debt under any revolving credit facility shall be computed based upon the average daily balance of such Debt during such period); (iii) in the case of Acquired Debt or Debt incurred in connection with any acquisition since the first day of such four-quarter period, the related acquisition had occurred as of the first day of such period with the appropriate adjustments with respect to such acquisition being included in such pro forma calculation; and (iv) in the case of any acquisition or disposition by the Company or its Subsidiaries of any asset or group of assets since the first day of such four-quarter period, whether by merger, stock purchase or sale, or asset purchase or sale, such acquisition or disposition or any related repayment of Debt had occurred as of the first day of such period with the appropriate adjustments with respect to such acquisition or disposition being included in such pro forma calculation. | ||||
(c) In addition to the limitation set forth in subsections (a) and (b) of this Section 1004, no Subsidiary may incur any Unsecured Debt; provided, however, that the Company or a Subsidiary may acquire an entity that becomes a Subsidiary that has Unsecured Debt if the incurrence of such Debt (including any guarantees of such Debt assumed by the Company or any Subsidiary) was not intended to evade the foregoing restrictions and the incurrence of such Debt (including any guarantees of such Debt assumed by the Company or any Subsidiary) would otherwise be permitted under this Indenture. | ||||
(d) In addition to the limitation set forth in subsections (a), (b) and (c) of this Section 1004, the Company and its Subsidiaries may not at any time own Total Unencumbered Assets equal to less than 150% of the aggregate outstanding principal amount of the Unsecured Debt and Pari Passu Debt of the Company and its Subsidiaries on a consolidated basis. | ||||
(e) In addition to the limitation set forth in subsections |
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(a), (b), (c) and (d) of this Section 1004, the Company will not, and will not permit any Subsidiary to, incur any Debt for borrowed money secured by any mortgage, lien, charge, pledge, encumbrance or security interest upon any of the property of the Company or any Subsidiary, whether owned at the date hereof or hereafter acquired (other than Pari Passu Debt), if, immediately after giving effect to the incurrence of such additional Debt and the application of the proceeds thereof, the aggregate principal amount of all outstanding Debt of the Company and its Subsidiaries on a consolidated basis for borrowed money which is secured by any mortgage, lien, charge, pledge, encumbrance or security interest on property of the Company or any Subsidiary (excluding any Pari Passu Debt) is greater than 40% of the sum of (without duplication): (i) Total Assets as of the end of the calendar quarter covered in the Company’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed with the Commission (or, if such filing is not permitted under the Exchange Act, with the Trustee) prior to the incurrence of such additional Debt and (ii) the purchase price of any real estate assets or mortgages receivable acquired, and the amount of any securities offering proceeds received (to the extent that such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Debt), by the Company or any Subsidiary since the end of such calendar quarter, including those proceeds obtained in connection with the incurrence of such additional Debt. | ||||
(f) For purposes of this Section 1004, Debt shall be deemed to be “incurred” by the Company or a Subsidiary whenever the Company or such Subsidiary shall create, assume, guarantee or otherwise become liable in respect thereof. | ||||
(g) Notwithstanding the foregoing, nothing in the above covenants shall prevent: (i) the incurrence by the Company or any Subsidiary of Debt between or among the Company, any Subsidiary or any Equity Investee or (ii) the Company or any Subsidiary from incurring Refinancing Debt. | ||||
Limitations on Incurrence of Debt | Section 1004 of the Base ProLogis Indenture, as amended and replaced by Section 2.1 of the Ninth Supplemental Indenture | Section 1.3(g) of the Thirteenth Supplemental Indenture | ||
Section 2.1. Limitations on Incurrence of Debt. Pursuant to Section 902 of the Base Indenture: (i) Section 1004 of the Base Indenture is hereby amended and restated in its entirety as set forth below (which covenants shall replace and apply in lieu of the covenants set forth in Section 1004 of the Original Indenture, Section 2.1 of the First Supplemental Indenture, Section 2.1 of the Second Supplemental Indenture and Section 2.1 of the Seventh Supplemental Indenture); and (ii) the covenants set forth in Section 2.1 of the First Supplemental Indenture, Section | Section 1004 of the Original Indenture and all cross-references and definitions related thereto, as amended by Section 2.1 of the First Supplemental Indenture, Section 2.1 of the Second |
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2.1 of the Second Supplemental Indenture and Section 2.1 of the Seventh Supplemental Indenture are hereby deleted in their entirety: (a) The Company will not, and will not permit any Subsidiary to, incur any Debt if, immediately after giving effect to the incurrence of such additional Debt and the application of the proceeds thereof, the aggregate principal amount of all outstanding Debt of the Company and its Subsidiaries on a consolidated basis determined in accordance with GAAP is greater than 60% of the sum of (without duplication) (i) Total Assets as of the end of the calendar quarter covered in the Company’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed with the Commission (or, if such filing is not permitted under the Exchange Act, with the Trustee) prior to the incurrence of such additional Debt and (ii) the purchase price of any real estate assets or mortgages receivable acquired, and the amount of any securities offering proceeds received (to the extent such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Debt), by the Company or any Subsidiary since the end of such calendar quarter, including those proceeds obtained in connection with the incurrence of such additional Debt. | Supplemental Indenture and Section 2.1 of the Seventh Supplemental Indenture, shall not apply to the Consent Securities. | |||
(b) In addition to the limitation set forth in subsection (a) of this Section 1004, the Company will not, and will not permit any Subsidiary to, incur any Debt if the ratio of Consolidated Income Available for Debt Service to the Annual Service Charge for the four consecutive fiscal quarters most recently ended prior to the date on which such additional Debt is to be incurred shall have been less than 1.5, on a pro forma basis after giving effect thereto and to the application of the proceeds therefrom, and calculated on the assumption that (i) such Debt and any other Debt incurred by the Company and its Subsidiaries since the first day of such four-quarter period and the application of the proceeds therefrom, including to refinance other Debt, had occurred at the beginning of such period; (ii) the repayment or retirement of any other Debt by the Company and its Subsidiaries since the first day of such four-quarter period had been incurred, repaid or retired at the beginning of such period (except that, in making such computation, the amount of Debt under any revolving credit facility shall be computed based upon the average daily balance of such Debt during such period); (iii) in the case of Acquired Debt or Debt incurred in connection with any acquisition since the first day of such four-quarter period, the related acquisition had occurred as of the first day of such period with the appropriate adjustments with respect to such |
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acquisition being included in such pro forma calculation; and (iv) in the case of any acquisition or disposition by the Company or its Subsidiaries of any asset or group of assets since the first day of such four-quarter period, whether by merger, stock purchase or sale, or asset purchase or sale, such acquisition or disposition or any related repayment of Debt had occurred as of the first day of such period with the appropriate adjustments with respect to such acquisition or disposition being included in such pro forma calculation. | ||||
(c) In addition to the limitation set forth in subsections (a) and (b) of this Section 1004, no Subsidiary may incur any Unsecured Debt; provided, however, that the Company or a Subsidiary may acquire an entity that becomes a Subsidiary that has Unsecured Debt if the incurrence of such Debt (including any guarantees of such Debt assumed by the Company or any Subsidiary) was not intended to evade the foregoing restrictions and the incurrence of such Debt (including any guarantees of such Debt assumed by the Company or any Subsidiary) would otherwise be permitted under this Indenture. | ||||
(d) In addition to the limitation set forth in subsections (a), (b) and (c) of this Section 1004, the Company and its Subsidiaries may not at any time own Total Unencumbered Assets equal to less than 150% of the aggregate outstanding principal amount of the Unsecured Debt and Pari Passu Debt of the Company and its Subsidiaries on a consolidated basis. | ||||
(e) In addition to the limitation set forth in subsections (a), (b), (c) and (d) of this Section 1004, the Company will not, and will not permit any Subsidiary to, incur any Debt for borrowed money secured by any mortgage, lien, charge, pledge, encumbrance or security interest upon any of the property of the Company or any Subsidiary, whether owned at the date hereof or hereafter acquired (other than Pari Passu Debt), if, immediately after giving effect to the incurrence of such additional Debt and the application of the proceeds thereof, the aggregate principal amount of all outstanding Debt of the Company and its Subsidiaries on a consolidated basis for borrowed money which is secured by any mortgage, lien, charge, pledge, encumbrance or security interest on property of the Company or any Subsidiary (excluding any Pari Passu Debt) is greater than 40% of the sum of (without duplication): (i) Total Assets as of the end of the calendar quarter covered in the Company’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed with the Commission (or, if such filing is not permitted under the Exchange Act, with the Trustee) prior to the incurrence of such additional Debt and (ii) the purchase price of any real estate assets or mortgages receivable acquired, and the amount |
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of any securities offering proceeds received (to the extent that such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Debt), by the Company or any Subsidiary since the end of such calendar quarter, including those proceeds obtained in connection with the incurrence of such additional Debt. | ||||
(f) For purposes of this Section 1004, Debt shall be deemed to be “incurred” by the Company or a Subsidiary whenever the Company or such Subsidiary shall create, assume, guarantee or otherwise become liable in respect thereof. | ||||
(g) Notwithstanding the foregoing, nothing in the above covenants shall prevent: (i) the incurrence by the Company or any Subsidiary of Debt between or among the Company, any Subsidiary or any Equity Investee or (ii) the Company or any Subsidiary from incurring Refinancing Debt. | ||||
Maintenance of Properties | Section 1006 of the Base ProLogis Indenture | Section N/A | ||
The Company will cause all of its properties used or useful in the conduct of its business or the business of any Subsidiary to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section shall prevent the Company or any Subsidiary from selling or otherwise disposing for value its properties in the ordinary course of its business. | There is no comparable provision. | |||
Insurance | Section 1007 of the Base ProLogis Indenture | Section N/A | ||
The Company will, and will cause each of its Subsidiaries to, keep all of its insurable properties insured against loss or damage at least equal to their then full insurable value with financially sound and reputable insurance companies. | There is no comparable provision. | |||
Payment of Taxes and Other Claims | Section 1008 of the Base ProLogis Indenture | Section N/A | ||
The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon it or any Subsidiary or upon the income, profits | There is no comparable provision. |
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or property of the Company or any Subsidiary, and (2) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Company or any Subsidiary; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings. | ||||
Provision of Financial Information | Section 1009 of the Base ProLogis Indenture | Section N/A | ||
Whether or not the Company is subject to Section 13 or 15(d) of the Exchange Act, the Company will, to the extent permitted under the Exchange Act, file with the Commission the annual reports, quarterly reports and other documents which the Company would have been required to file with the Commission pursuant to such Section 13 or 15(d) (the “Financial Statements”) if the Company were so subject, such documents to be filed with the Commission on or prior to the respective dates (the “Required Filing Dates”) by which the Company would have been required so to file such documents if the Company were so subject. | There is no comparable provision. | |||
The Company will also in any event (x) within 15 days of each Required Filing Date (i) transmit by mail to all Holders, as their names and addresses appear in the Security Register, without cost to such Holders, copies of the annual reports and quarterly reports which the Company would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company were subject to such Sections, and (ii) file with the Trustee copies of annual reports, quarterly reports and other documents which the Company would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company were subject to such Sections and (y) if filing such documents by the Company with the Commission is not permitted under the Exchange Act, promptly upon written request and payment of the reasonable cost of duplication and delivery, supply copies of such documents to any prospective Holder. | ||||
Provision of Financial Information | Section 1009 of the Base ProLogis Indenture, as amended by Section 2.2 of the Second Supplemental Indenture | Section N/A | ||
Whether or not the Company is subject to Section 13 or 15(d) of the Exchange Act, the Company will, to the extent permitted under the Exchange Act, file with the Commission the annual reports, quarterly reports and other documents which the | There is no comparable provision. |
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Company would have been required to file with the Commission pursuant to such Section 13 or 15(d) (the “Financial Statements”) if the Company were so subject, such documents to be filed with the Commission on or prior to the respective dates (the “Required Filing Dates”) by which the Company would have been required so to file such documents if the Company were so subject. | ||||
The Company will also in any event (x) within 15 days of each Required Filing Date (i) transmit by mail or electronic transmittal to all Holders, as their names and addresses appear in the Security Register, without cost to such Holders, copies of the annual reports and quarterly reports which the Company is required to file or would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company were subject to such Sections, and (ii) file with the Trustee copies of annual reports, quarterly reports and other documents which the Company would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company were subject to such Sections and (y) if filing such documents by the Company with the Commission is not permitted under the Exchange Act, promptly upon written request and payment of the reasonable cost of duplication and delivery, supply copies of such documents to any prospective Holder. | ||||
Provision of Financial Information | Section 1009 of the Base ProLogis Indenture, as amended by Section 2.2 of the Seventh Supplemental Indenture | Section N/A | ||
Whether or not the Company is subject to Section 13 or 15(d) of the Exchange Act, the Company will, to the extent permitted under the Exchange Act, file with the Commission the annual reports, quarterly reports and other documents which the Company would have been required to file with the Commission pursuant to such Section 13 or 15(d) (the “Financial Statements”) if the Company were so subject, such documents to be filed with the Commission on or prior to the respective dates (the “Required Filing Dates”) by which the Company would have been required so to file such documents if the Company were so subject. | There is no comparable provision. | |||
The Company will also in any event (x) within 15 days of each Required Filing Date (i) transmit by mail or electronic transmittal to all Holders, as their names and addresses appear in the Security Register, without cost to such Holders, copies of the annual reports and quarterly reports which the Company is required to file or would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company were subject to such Sections, and (ii) file with the Trustee copies of annual reports, quarterly reports and |
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other documents which the Company would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company were subject to such Sections and (y) if filing such documents by the Company with the Commission is not permitted under the Exchange Act, promptly upon written request and payment of the reasonable cost of duplication and delivery, supply copies of such documents to any prospective Holder. | ||||
Exclusion of Certain Provisions from Base Indenture | Section 4.05 of each of the ProLogis Convertible Notes Supplemental Indentures | Section 1.3(i) of the Thirteenth Supplemental Indenture | ||
Section 1004, Section 1006, Section 1007 and Section 1011 of the Base Indenture shall not apply to the Notes. Section 1002, Section 1003, Section 1005, Section 1008, Section 1009 (as amended by Section 2.2 of the Second Supplemental Indenture to the Base Indenture), Section 1010 and Section 1012 of the Base Indenture shall be applicable to the Notes. | Section 1004, Section 1006, Section 1007, Section 1008, Section 1009 and Section 1011 of the Base Indenture shall not apply to the Notes. Section 1002, Section 1003, Section 1005, Section 1010 and Section 1012 of the Base Indenture shall be applicable to the Notes. |
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Corporate Governance | AMB is a Maryland corporation that is a REIT for U.S. federal income tax purposes. | ProLogis is a Maryland real estate investment trust that is a REIT for U.S. federal income tax purposes. | ||
The rights of AMB stockholders are governed by the MGCL, the AMB charter and the AMB bylaws. | The rights of ProLogis shareholders are governed by the MRL, the ProLogis declaration of trust and the ProLogis bylaws. | |||
Authorized Capital Stock or Shares of Beneficial Interest | AMB is authorized to issue an aggregate of 600 million shares of capital stock, consisting of (1) 500 million shares of common stock, $0.01 par value per share; and (2) 100 million shares of preferred stock, $0.01 par value per share. Preferred Stock. The AMB board of directors is authorized, without stockholder action, to issue preferred stock from time to time and to establish, amongst other things, the designations, preferences and relative, participating, optional, conversion, or other rights and qualifications, limitations and restrictions thereof; the rates and times of payment of dividends, the price and manner of redemption; the amount payable in the event of liquidation, dissolution, and winding-up or in the event of any merger or | ProLogis is authorized to issue an aggregate of 750 million shares of beneficial interest, consisting of (1) 737,580,000 common shares of beneficial interest, $0.01 par value per share; (2) 2,300,000 Series C cumulative redeemable preferred shares, par value $0.01 per share; (3) 5,060,000 Series F cumulative redeemable preferred shares, par value $0.01 per share; and (4) 5,060,000 Series G cumulative redeemable preferred shares, par value $0.01 per share. Preferred Shares. The board of trustees of ProLogis may classify or reclassify any unissued shares from time to time by setting or changing the preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or distributions, qualifications or terms or conditions of |
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consolidation of or sale of assets; the rights (if any) to convert the preferred stock into, and/or to purchase, stock of any other class or series, the terms of any sinking fund or redemption or purchase account (if any) to be provided for shares of such class of preferred stock; restrictions on ownership and transfer to preserve tax benefits; and the voting powers (if any) of the holders of any class of preferred stock generally or with respect to any particular matter, which may be less than, equal to or greater than one vote per share. | redemption of the shares by filing articles supplementary pursuant to Maryland law. The ProLogis board is authorized to issue from the authorized but unissued shares of ProLogis preferred shares in series and to establish from time to time the number of preferred shares to be included in each such series and to fix the designation and any preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications and terms and conditions of redemption of the shares of each series. The authority of the ProLogis board with respect to each unissued series includes, determination of the following: number and designation; dividend rates; voting rights; conversion rights; redemption rights; liquidation preferences; sinking funds provisions; and any other relative rights, preferences, limitations and powers. | |||
Cumulative Voting | Neither holders of AMB stock or ProLogis shares have the right to cumulate their votes with respect to the election of directors or trustees, as the case may be. | |||
Size of the Board of Directors | The number of directors, which must be between five and 13, may be changed by the board of directors. Currently, the AMB board of directors consists of nine directors. | The number of trustees, which must be between three and 15, may be changed by the board of trustees. Currently, the ProLogis board of trustees consists of ten trustees. | ||
Upon completion of the Merger, the board of directors of the combined company will be increased to 11 directors. | ||||
Independent Directors | At least a majority of the directors on the AMB board of directors must be independent directors. | A majority of the trustees on the ProLogis board of trustees must not be officers or employees of ProLogis. | ||
Classified Board / Term of Directors | Neither the AMB board of directors nor the ProLogis board of trustees is classified. Generally, directors of AMB or trustees of ProLogis, as the case may be, hold office for a term expiring at the next succeeding annual meeting of stockholders or shareholders, respectively, and until their successors are duly elected and qualify. In the event of an increase or decrease in the size of the board, each incumbent director or trustee will generally continue as a director or trustee. | |||
Removal of Directors | Directors may be removed, but only for cause, by the affirmative vote of holders of two-thirds of the votes entitled to be cast in the election of directors. | Trustees may be removed, but only for cause, by (1) the affirmative vote of two-thirds of the votes entitled to be cast in the election of trustees; or (2) the vote of two-thirds of the trustees then in office. | ||
Election of Directors | The bylaws of both AMB and ProLogis provide that, in the case of a non- contested election, directors or trustees, as the case may be, must receive a majority of affirmative votes cast for election at a meeting at which a quorum is present. For this purpose, a majority of the votes |
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cast means that the number of shares of AMB common stock or ProLogis common shares that are cast and are voted “for” the election of a director or trustee, as the case may be, must exceed the number of common shares that are withheld from or voted against his or her election. If a director or trustee fails to obtain a majority, he or she must tender his or her resignation to the board. The board will determine whether to accept the tendered resignation. If the board determines to reject the tendered resignation, the board must publicly announce its decision. | ||||||
Filling Vacancies of Directors | Any vacancies on the AMB board of directors or the ProLogis board of trustees can be filled by their stockholders or shareholders, respectively, at an annual or special meeting. | |||||
Any vacancies on the AMB board of directors may also be filled by the affirmative vote of a majority of the remaining directors, although less than a quorum, provided that a vacancy caused by an increase in the number of directors may be filled only by the affirmative vote of a majority of the entire board. | Any vacancies on the ProLogis board of trustees may also be filled by the affirmative vote of a majority of the remaining trustees, although less than a quorum. | |||||
Charter Amendments | The affirmative vote of stockholders entitled to cast at least two-thirds of the votes entitled to be cast on the matter is required to amend the AMB charter. | The affirmative vote of shareholders entitled to cast at least a majority of the votes entitled to be cast on the matter is required to amend the ProLogis declaration of trust. | ||||
After the effective time of the Topco merger and assuming the charter amendment is approved, the affirmative vote of stockholders entitled to cast at least a majority of the votes entitled to be cast on the matter will be required to amend the charter of the combined company; provided that (i) any amendment to any provision of the charter of the combined company which expressly requires for any purpose a greater proportion of the votes entitled to be cast will require the proportion of votes specified in that provision and (ii) any amendment to the stockholder voting threshold established by the charter amendment will require the affirmative vote of the holders of shares entitled to cast two-thirds of all of the votes entitled to be cast on the matter. | The trustees may also amend the charter by a two-thirds vote to enable ProLogis to qualify as a REIT. | |||||
Bylaw Amendments | The AMB bylaws may be amended by (1) the AMB board of directors or (2) the affirmative vote of the majority of all outstanding shares of common stock entitled to vote; provided, that certain sections of the bylaws relating to amendments, notice of meetings, affiliate transactions and control share acquisitions may only be amended by the affirmative vote of the majority of all outstanding shares of common stock entitled to vote. | The power to amend the ProLogis bylaws vests in the board of trustees of ProLogis by vote of a majority of the trustees, subject to repeal or change by action of the shareholders of ProLogis entitled to vote thereon. |
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After the effective time of the Topco merger, the affirmative vote of at least 75% of the independent directors of the combined company will be required to amend, modify or repeal, or adopt any bylaw provision inconsistent with, certain provisions of the AMB bylaws, which will be the bylaws of the combined company, pertaining to features of the leadership structure of the combined company. | ||||
Irrevocable Board Resolutions | The AMB board of directors may designate any of its resolutions to be “irrevocable.” Resolutions so designated may not be revoked, altered or amended subsequently by the board of directors without approval of a majority of the outstanding shares of common stock entitled to vote. | N/A | ||
Vote on Merger, Consolidation or Sale of Substantially all Assets | Generally, the affirmative vote of stockholders entitled to cast at least two-thirds of the votes entitled to be cast on the matter is required to approve extraordinary actions, including a merger or similar business combination. | Generally, the affirmative vote of shareholders entitled to cast at least a majority of the votes entitled to be cast on the matter is required to approve a merger or similar business combination. | ||
Upon the effective time of the Topco merger and assuming the AMB charter amendment is approved, the affirmative vote of stockholders entitled to cast at least a majority of the votes entitled to be cast on the matter will be required to approve extraordinary actions, including a merger or similar business combination. | ||||
Ownership Limitations | With certain exceptions, the actual, constructive or beneficial ownership by any person of more than 9.8% (in value or number of votes, whichever is more restrictive) of the issued and outstanding shares of common stock of AMB and the issued and outstanding shares of ProLogis is generally prohibited. Each of AMB and ProLogis requires its stockholders or shareholders, respectively, to provide it with certain information relating to maintenance of REIT status. | |||
The 9.8% ownership limitation applies separately to each series of existing AMB preferred stock, as well as to the common stock. The New AMB Preferred Stock is subject to an ownership limit of 9.8% of the issued and outstanding capital stock, and a 25% ownership limit for each series of New AMB Preferred Stock. | The ownership limit threshold for each series of the outstanding preferred shares of ProLogis is 25%. | |||
Annual Meetings of the Stockholders | An annual meeting of AMB stockholders is required to be held each year during the month of May in San Francisco, at a time and | The annual meeting of ProLogis shareholders is required to be held at a time and place as |
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place as designated by the AMB board of directors. After the effective time of the Topco merger, the board of directors of the combined company will be able to hold the annual meeting at a time and place as designated by the board of directors of the combined company. | designated by the ProLogis board of trustees. | |||
Special Meetings of the Stockholders | A special meeting of AMB stockholders may be called at any time by the president, the chairman of the board, or a majority of the directors, or by a committee of the board of directors which has been duly designated by the board of directors to call such meetings. | A special meeting of ProLogis shareholders may be called at any time by a majority of the trustees or by the chairman or any co-chairman. | ||
Subject to certain exceptions, a special meeting will also be called by the secretary upon the written request of AMB stockholders entitled to cast at least 50% of the votes entitled to be cast at the meeting. | A special meeting will also be called by the secretary upon the written request of ProLogis shareholders holding in the aggregate a majority of the outstanding shares entitled to vote. | |||
Upon the effective time of the Topco merger, the chief executive officer and co-chief executive officers will also be able to call a special meeting. | ||||
Business transacted at the special meeting of stockholders will be limited to the purposes stated in the notice. | Business transacted at the special meeting of shareholders will be limited to the purposes stated in the notice. | |||
Maryland Business Combination Act | The Maryland Business Combination Act provides, generally, that “business combinations” between a Maryland corporation and an interested stockholder or an affiliate of an interested stockholder are prohibited for five years after the most recent date on which the interested stockholder becomes an interested stockholder. These business combinations include a merger, consolidation, share exchange, or, in circumstances specified in the statute, an asset transfer or issuance or reclassification of equity securities. Subject to certain exceptions, an interested stockholder is defined as: (i) any person who beneficially owns ten percent or more of the voting power of the corporation’s outstanding stock; or (ii) an affiliate or associate of the corporation who, at any time within the two-year period prior to the date in question, was the beneficial owner of ten percent or more of the voting power of the then outstanding voting stock of the corporation. A person is not an interested stockholder under the statute if the board of directors approved in advance the transaction by which he otherwise would have become an interested stockholder. However, in approving a transaction, the board of directors may provide that its approval is subject to compliance, at or after the time of approval, with any terms and conditions determined by the board. After the five-year prohibition, any business combination between the corporation and the interested stockholder that does not meet certain fair price requirements generally must be (1) recommended by the board of directors, (2) approved by the affirmative vote of at least 80% of the votes entitled to be cast by the holders of outstanding voting stock and (3) approved by two-thirds of the votes entitled to be cast by holders of voting stock of the corporation other than shares held by the interested stockholder with whom or with whose affiliate the business combination is to be effected or |
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Rights of AMB Stockholders | Rights of ProLogis Shareholders | |||
held by an affiliate or associate of the interested stockholder. | ||||
AMB has opted not to be subject to the Maryland Business Combination Act. The AMB board of directors may not revoke, alter or amend its prior resolution to opt out of the Maryland Business Combination Act, or otherwise elect to have any business combination of AMB be subject to such act without the approval of a majority of the outstanding shares of AMB common stock entitled to vote. | ProLogis has opted not to be subject to the Maryland Business Combination Act only with respect to business combinations with Security Capital Group and its affiliates and successors. The ProLogis board of trustees has by resolution opted out of the Maryland Business Combination Act with respect to the Merger. | |||
Shareholder Rights Plan | Neither AMB nor ProLogis has a shareholder rights plan in effect. | |||
REIT Qualification | If the AMB board of directors determines that it is no longer in the best interests of AMB to qualify or continue to be qualified as a REIT and such determination is approved by the affirmative vote of holders of at least two-thirds of the shares of the outstanding capital stock of AMB entitled to vote thereon, the board of directors may revoke or otherwise terminate the REIT election of AMB pursuant to Section 856(g) of the Code. | The ProLogis board of trustees is required to seek to authorize ProLogis to pay such dividends and distributions as shall be necessary for ProLogis to qualify as a REIT under the Code (so long as such qualification, in the opinion of the ProLogis board of trustees, is in the best interests of ProLogis shareholders). The ProLogis board of trustees, by a two-thirds vote, may amend provisions of the ProLogis declaration of trust from time to time to enable ProLogis to qualify as a REIT under the Code. |
• | the board of directors of the combined company will have the right, with the approval of a majority of the entire board, and without action by the stockholders of the combined company, to amend the charter of the combined company to increase or decrease the aggregate number of shares of stock of the combined company or the number of shares of stock of any class or series that the combined company has authority to issue; and | ||
• | notwithstanding any provision of law permitting or requiring any action to be taken or approved by the affirmative vote of the holders of shares entitled to cast a greater number of votes, any such action shall be effective and valid if declared advisable by the board of directors and taken or approved by the affirmative vote of holders of shares entitled to cast a majority of all the votes entitled to be cast on the matter; provided that (i) any amendment to any provision of the charter which expressly requires for any purpose a greater proportion of the votes entitled to be cast shall require the proportion of votes specified in that provision, (ii) any amendment to this provision shall require the affirmative vote of the holders of shares entitled to cast two-thirds of all of the votes entitled to be cast on the matter and (iii) any action requiring a different vote as expressly provided in the charter shall require such different vote. |
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• | accrue at the rate of 5.500% per annum, from April 1, 2011 (the most recent date on which interest will have been paid on the ProLogis 5.500% 2012 Notes); |
• | be payable in cash semi-annually in arrears on each April 1 and October 1, commencing on October 1, 2011; and |
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• | be payable to holders of record on the March 15 and September 15 immediately preceding the related interest payment dates. |
• | accrue at the rate of 5.500% per annum, from March 1, 2011 (the most recent date on which interest will have been paid on the ProLogis 5.500% 2013 Notes); |
• | be payable in cash semi-annually in arrears on each March 1 and September 1, commencing on September 1, 2011; and |
• | be payable to holders of record on the February 15 and August 15 immediately preceding the related interest payment dates. |
• | accrue at the rate of 7.625% per annum, from February 15, 2011 (the most recent date on which interest will have been paid on the ProLogis 7.625% 2014 Notes); |
• | be payable in cash semi-annually in arrears on each February 15 and August 15, commencing on August 15, 2011; and |
• | be payable to holders of record on the February 1 and August 1 immediately preceding the related interest payment dates. |
• | accrue at the rate of 7.810% per annum, from February 1, 2011 (the most recent date on which interest will have been paid on the ProLogis 7.810% 2015 Notes); |
• | be payable in cash semi-annually in arrears on each February 1 and August 1, commencing on August 1, 2011; and |
• | be payable to holders of record on the January 15 and July 15 immediately preceding the related interest payment dates. |
• | accrue at the rate of 9.340% per annum, from March 1, 2011 (the most recent date on which interest will have been paid on the ProLogis 9.340% 2015 Notes); |
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• | be payable in cash semi-annually in arrears on March 1 and September 1, commencing on September 1, 2011; and |
• | be payable to holders of record on the February 15 and August 15 immediately preceding the related interest payment dates. |
• | accrue at the rate of 5.625% per annum, from May 15, 2011 (the most recent date on which interest will have been paid on the ProLogis 5.625% 2015 Notes); |
• | be payable in cash semi-annually in arrears on each May 15 and November 15, commencing on November 15, 2011; and |
• | be payable to holders of record on the May 1 and November 1 immediately preceding the related interest payment dates. |
• | accrue at the rate of 5.750% per annum, from April 1, 2011 (the most recent date on which interest will have been paid on the ProLogis 5.750% 2016 Notes); |
• | be payable in cash semi-annually in arrears on each April 1 and October 1, commencing on October 1, 2011; and |
• | be payable to holders of record on the March 15 and September 15 immediately preceding the related interest payment dates. |
• | accrue at the rate of 8.650% per annum, from May 15, 2011 (the most recent date on which interest will have been paid on the ProLogis 8.650% 2016 Notes); |
• | be payable in cash semi-annually in arrears on each May 15 and November 15, commencing on November 15, 2011; and |
• | be payable to holders of record on the May 1 and November 1 immediately preceding the related interest payment dates. |
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• | accrue at the rate of 5.625% per annum, from May 15, 2011 (the most recent date on which interest will have been paid on the ProLogis 5.625% 2016 Notes); |
• | be payable in cash semi-annually in arrears on each May 15 and November 15, commencing on November 15, 2011; and |
• | be payable to holders of record on the May 1 and November 1 immediately preceding the related interest payment dates. |
• | accrue at the rate of 6.250% per annum, from March 15, 2011 (the most recent date on which interest will have been paid on the ProLogis 6.250% 2017 Notes); |
• | be payable in cash semi-annually in arrears on each March 15 and September 15, commencing on September 15, 2011; and |
• | be payable to holders of record on the March 1 and September 1 immediately preceding the related interest payment dates. |
• | accrue at the rate of 7.625% per annum, from January 1, 2011 (the most recent date on which interest will have been paid on the ProLogis 7.625% 2017 Notes); |
• | be payable in cash semi-annually in arrears on each January 1 and July 1, commencing on July 1, 2011; and |
• | be payable to holders of record on the June 15 and December 15 immediately preceding the related interest payment dates. |
• | accrue at the rate of 6.625% per annum, from May 15, 2011 (the most recent date on which interest will have been paid on the ProLogis 6.625% 2018 Notes); |
• | be payable in cash semi-annually in arrears on each May 15 and November 15, commencing on November 15, 2011; and |
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• | be payable to holders of record on the May 1 and November 1 immediately preceding the related interest payment dates. |
• | accrue at the rate of 7.375% per annum, from April 30, 2011 (the most recent date on which interest will have been paid on the ProLogis 7.375% 2019 Notes); |
• | be payable in cash semi-annually in arrears on each April 30 and October 30, commencing on October 30, 2011; and |
• | be payable to holders of record on the April 15 and October 15 immediately preceding the related interest payment dates. |
• | accrue at the rate of 6.875% per annum, from March 15, 2011 (the most recent date on which interest will have been paid on the ProLogis 6.875% 2020 Notes); |
• | be payable in cash semi-annually in arrears on each March 15 and September 15, commencing on September 15, 2011; and |
• | be payable to holders of record on the March 1 and September 1 immediately preceding the related interest payment dates. |
• | 100% of the principal amount of such AMB LP Non-Exchangeable Notes to be redeemed; or |
• | the sum of the present values of the remaining scheduled payments of principal and interest on such AMB LP Non-Exchangeable Notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the then current Treasury Rate plus 15 basis points in the case of the AMB LP 5.500% 2012 Notes, 20 basis points in the case of the AMB LP 5.625% 2016 Notes, 25 basis points in the case of the AMB LP 5.500% 2013 Notes, AMB LP 5.625% 2015 Notes and AMB LP 5.750% 2016 Notes and 50 basis points in the case of the AMB LP 7.625% 2014 Notes, AMB LP 6.250% 2017 Notes, AMB LP 6.625% 2018 Notes, AMB LP 7.375% 2019 Notes and AMB LP 6.875% 2020 Notes. |
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(1) | After the transaction, AMB LP is, or a person organized and existing under the laws of the United States or one of the fifty states is, the continuing entity. If the continuing entity is an entity other than AMB LP, that entity must also assume AMB LP’s payment obligations under the new AMB LP Indenture, as well as the due and punctual performance and observance of all of the covenants contained in the new AMB LP Indenture; |
(2) | After giving effect to the transaction and treating any indebtedness which became an obligation of AMB LP or any of AMB LP’s subsidiaries as a result of the transaction as having been incurred by AMB LP or such subsidiary at the time of such transaction, an event of default (or an event which, with notice or lapse of time or both, would become an event of default) has not occurred under the new AMB LP Indenture. Additionally, the transaction may not cause an event which, after notice or a lapse of time, or both, would become an event of default; and |
(3) | The continuing entity delivers an officers’ certificate and legal opinion covering (1) and (2) above. |
• | either such guarantor is the continuing person or the successor person (if other than such guarantor) is a corporation, partnership, limited liability company or other entity organized and existing under the laws of the United States of America or a State of the United States of America or the District of Columbia and expressly assumes such guarantor’s obligations with respect to the AMB LP Non-Exchangeable Notes and the observance of all of the covenants and conditions contained in the new AMB LP Indenture and its guarantee; |
• | immediately after giving effect to the transaction, no event of default, and no event which, after notice or lapse of time, or both, would become an event of default, shall have occurred and shall be continuing; and |
• | such guarantor delivers to the Trustee an officers’ certificate and legal opinion covering compliance with these conditions. |
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(1) | AMB LP’s Total Assets as of the end of the calendar quarter covered in AMB LP’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed with the SEC (or, if such filing is not permitted under the Exchange Act, with the Trustee) prior to the incurrence of such additional Debt; and |
(2) | the purchase price of any real estate assets or mortgages receivable acquired, and the amount of any securities offering proceeds received (to the extent such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Debt), by AMB LP or any Subsidiary since the end of |
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such calendar quarter, including those proceeds obtained in connection with the incurrence of such additional Debt. |
(1) | such Debt and any other Debt incurred by AMB LP and its Subsidiaries since the first day of such four-quarter period and the application of the proceeds therefrom, including to refinance other Debt, had occurred at the beginning of such period; |
(2) | the repayment or retirement of any other Debt by AMB LP and its Subsidiaries since the first day of such four-quarter period had been incurred, repaid or retired at the beginning of such period (except that, in making such computation, the amount of Debt under any revolving credit facility shall be computed based upon the average daily balance of such Debt during such period); |
(3) | in the case of Acquired Debt or Debt incurred in connection with any acquisition since the first day of such four-quarter period, the related acquisition had occurred as of the first day of such period with the appropriate adjustments with respect to such acquisition being included in such pro forma calculation; and |
(4) | in the case of any acquisition or disposition by AMB LP or its Subsidiaries of any asset or group of assets since the first day of such four-quarter period, whether by merger, stock purchase or sale, or asset purchase or sale, such acquisition or disposition or any related repayment of Debt had occurred as of the first day of such period with the appropriate adjustments with respect to such acquisition or disposition being included in such pro forma calculation. |
(1) | AMB LP’s Total Assets as of the end of the calendar quarter covered in AMB LP’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed with the SEC (or, if such filing is not permitted under the Exchange Act, with the Trustee) prior to the incurrence of such additional Debt; and |
(2) | the purchase price of any real estate assets or mortgages receivable acquired, and the amount of any securities offering proceeds received (to the extent that such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Debt), by AMB LP or any Subsidiary since the end of such calendar quarter, including those proceeds obtained in connection with the incurrence of such additional Debt. |
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(1) | borrowed money evidenced by bonds, notes, debentures or similar instruments, |
(2) | indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any security interest existing on property owned by AMB LP or any Subsidiary, but only to the extent of the lesser of (x) the amount of indebtedness so secured and (y) the fair market value of the property subject to such mortgage, pledge, lien, charge, encumbrance or any security interest existing on property owned by AMB LP or any Subsidiary, |
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(3) | the reimbursement obligations, contingent or otherwise, in connection with any letters of credit actually issued and called or amounts representing the balance deferred and unpaid of the purchase price of any property or services, or all conditional sale obligations or obligations under any title retention agreement, |
(4) | the principal amount of all obligations of AMB LP or any Subsidiary with respect to redemption, repayment or other repurchase of any Disqualified Stock or |
(5) | any lease of property by AMB LP or any Subsidiary as lessee which is reflected on AMB LP’s consolidated balance sheet as a capitalized lease in accordance with GAAP |
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(1) | default in the payment of any installment of interest or additional amounts payable on any AMB LP Non-Exchangeable Notes of such series which continues for 30 days; |
(2) | default in the payment of the principal, or premium or make-whole amount, if any, on any AMB LP Non-Exchangeable Notes of such series at its maturity or redemption date; |
(3) | default in making any sinking fund payment as required for any AMB LP Non-Exchangeable Notes of such series; |
(4) | default in the performance of any other of AMB LP’s covenants contained in the new AMB LP Indenture, other than a covenant in the new AMB LP Indenture solely for the benefit of another series |
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of AMB LP Non-Exchangeable Notes issued under the new AMB LP Indenture, which continues for 60 days after written notice as provided in the new AMB LP Indenture; |
(5) | default in the payment of an aggregate principal amount exceeding $50,000,000 under any bond, note or other evidence of indebtedness or any mortgage, indenture or other instrument under which such indebtedness is issued or by which such indebtedness is secured (or any such indebtedness of any of AMB LP’s subsidiaries, which AMB LP has guaranteed), such default having occurred after the expiration of any applicable grace period and having resulted in the acceleration of the maturity of such indebtedness, but only if such indebtedness is not discharged or such acceleration is not rescinded or annulled within ten days after written notice as provided in the new AMB LP Indenture; |
(6) | the entry by a court of competent jurisdiction of final judgments, orders or decrees against AMB LP or any of AMB LP’s subsidiaries in an aggregate amount, excluding amounts fully covered by insurance, in excess of $50,000,000 and such judgments, orders or decrees remain undischarged, unstayed and unsatisfied in an aggregate amount, excluding amounts fully covered by insurance, in excess of $50,000,000 for a period of 60 consecutive days; and |
(7) | events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee for AMB LP, AMB or any significant subsidiary or for all or substantially all of AMB LP’s or its significant subsidiary’s property. |
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(1) | change the stated maturity of the principal of, or premium or make-whole amounts, if any, or any installment of principal of or interest or additional amounts payable on, any such debt security; |
(2) | reduce the principal amount of, or the rate or amount of interest on, or any premium or make-whole amounts payable on redemption of, or any additional amounts payable with respect to, any such debt security, or reduce the amount of principal of an original issue discount security or make-whole amount, if any, that would be due and payable upon declaration of acceleration of the maturity of the security or would be provable in bankruptcy, or adversely affect any right of repayment of the holder of any such debt security; |
(3) | change the place of payment, or the coin or currency, for payment of principal of, and premium or make-whole amounts, if any, or interest on, or any additional amounts payable with respect to, any such debt security; |
(4) | impair the right to institute suit for the enforcement of any payment on or with respect to any such debt security; |
(5) | reduce the above-stated percentage of outstanding debt securities of any series necessary to modify or amend the new AMB LP Indenture, to waive compliance with a provisions of the debt security or defaults and consequences under the new AMB LP Indenture or to reduce the quorum or voting requirements set forth in the new AMB LP Indenture; |
(6) | modify any of the provisions relating to modification of the new AMB LP Indenture or any of the provisions relating to the waiver of past defaults or covenants, except to increase the required percentage to effect such action or to provide that other provisions may not be modified or waived without the consent of the holder of the affected debt security; or |
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(7) | release any guarantor from any of its obligations under its guarantee or the new AMB LP Indenture, except in accordance with the terms of the new AMB LP Indenture. |
(1) | to evidence the succession of another person to AMB LP as obligor or to any guarantor under the new AMB LP Indenture; |
(2) | to add to AMB LP’s or any guarantor’s covenants for the benefit of the holders of all or any series of debt securities or to surrender any right or power conferred upon AMB LP or any guarantor in the new AMB LP Indenture; |
(3) | to add events of default for the benefit of the holders of all or any series of debt securities; |
(4) | to add to or change any of the provisions of the new AMB LP Indenture to such extent as shall be necessary to permit or facilitate the issuance of debt securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of securities in uncertificated form; |
(5) | to add to, change or eliminate any of the provisions of the new AMB LP Indenture in respect of one or more series of securities, provided that any such addition, change or elimination (i) shall neither (A) apply to any security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the holder of any such security with respect to such provision or (ii) shall become effective only when there is no such security outstanding; |
(6) | to secure the debt securities or related guarantees; |
(7) | to establish the form or terms of debt securities of any series; |
(8) | to provide for the acceptance of appointment by a successor trustee or facilitate the administration of the trust under the new AMB LP Indenture by more than one trustee; |
(9) | to cure any ambiguity, defect or inconsistency in the new AMB LP Indenture or to make any other changes, provided that in each case, the action shall not adversely affect the interests of holders of debt securities or related guarantees of any series in any material respect; |
(10) | to close the new AMB LP Indenture with respect to the authentication and delivery of additional series of debt securities or any related guarantees or to qualify, or maintain qualification of, the new AMB LP Indenture under the Trust Indenture Act; or |
(11) | to supplement any of the provisions of the new AMB LP Indenture to the extent necessary to permit or facilitate defeasance and discharge of any series of such debt securities, provided that the action shall not adversely affect the interests of the holders of the debt securities and any related guarantees of any series in any material respect. |
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(1) | the principal amount of an original issue discount security that will be deemed to be outstanding shall be the amount of the principal of the security that would be due and payable as of the date of the determination upon declaration of acceleration of the maturity of the debt securities; |
(2) | the principal amount of a debt security denominated in a foreign currency that will be deemed outstanding shall be the United States dollar equivalent, determined on the issue date for the debt securities, of the principal amount, or, in the case of an original issue discount security, the United States dollar equivalent on the issue date of the debt securities of the amount determined as provided in (1) above; |
(3) | the principal amount of an indexed security that shall be deemed outstanding will be the principal face amount of the indexed security at original issuance, unless otherwise provided with respect to the indexed security pursuant to Section 301 of the new AMB LP Indenture; and |
(4) | debt securities owned by AMB LP or any other obligor upon the debt securities or any of AMB LP’s affiliates or of the other obligor will be disregarded. |
(1) | there shall be no minimum quorum requirement for the meeting; and |
(2) | the principal amount of the outstanding debt securities of that series that vote in favor of the request, demand, authorization, direction, notice, consent, waiver or other action will be taken into account in determining whether the request, demand, authorization, direction, notice, consent, waiver or other action has been made, given or taken under the new AMB LP Indenture. |
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(1) | AMB LP may defease and be discharged from any and all obligations with respect to the AMB LP Non-Exchangeable Notes. However, AMB LP would continue to be obligated to pay any additional amounts resulting from tax events, assessment or governmental charges with respect to payments on the AMB LP Non-Exchangeable Notes and the obligations to register the transfer or exchange of the AMB LP Non-Exchangeable Notes. Additionally, AMB LP would remain responsible for replacing temporary or mutilated, destroyed, lost or stolen AMB LP Non-Exchangeable Notes, for maintaining an office or agency in respect of AMB LP Non-Exchangeable Notes and for holding moneys for payment in trust. |
(2) | With respect to the AMB LP Non-Exchangeable Notes, AMB LP may elect to effect covenant defeasance and be released from AMB LP’s obligations to fulfill the covenants contained under the heading “— Covenants” in this prospectus. Further, AMB LP may elect to be released from AMB LP’s obligations with respect to any other covenant in the new AMB LP Indenture, if such a provision is included in the series of AMB LP Non-Exchangeable Notes at the time that they are issued. Once AMB LP has made this election, any omission to comply with those covenants shall not constitute a default or an event of default with respect to the series of AMB LP Non-Exchangeable Notes. |
(1) | the holder of a series of AMB LP Non-Exchangeable Notes is entitled to and elects to receive payment in a currency, currency unit or composite currency other than that in which the deposit has been made in respect of the AMB LP Non-Exchangeable Notes; or |
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(2) | a conversion event occurs in respect of the currency, currency unit or composite currency in which such deposit has been made, |
(1) | a currency, currency unit or composite currency, other than the Euro or other currency unit, both by the government of the country which issued such currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking community; |
(2) | the Euro for the settlement of transactions by public institutions of or within the European Union; or |
(3) | any currency unit or composite currency other than the Euro for the purposes for which it was established. |
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(1) | issue, register the transfer of or exchange AMB LP Non-Exchangeable Notes of any series during a period beginning at the opening of business 15 days before any selection of AMB LP Non-Exchangeable Notes of that series to be redeemed and ending at the close of business on the day of mailing of the relevant notice of redemption; |
(2) | register the transfer of or exchange any AMB LP Non-Exchangeable Note, or portion of security, called for redemption, except the unredeemed portion of any AMB LP Non-Exchangeable Note being redeemed in part; or |
(3) | issue, register the transfer of or exchange any AMB LP Non-Exchangeable Note which has been surrendered for repayment at the option of the holder, except the portion, if any, of such AMB LP Non-Exchangeable Note not to be so repaid. |
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• | The investor cannot get AMB LP Non-Exchangeable Notes registered in his or her own name. |
• | The investor cannot receive physical certificates for his or her interest in the AMB LP Non-Exchangeable Notes. |
• | The investor will be a “street name” holder and must look to his or her own bank or broker for payments on the AMB LP Non-Exchangeable Notes and protection of his or her legal rights relating to the AMB LP Non-Exchangeable Notes. |
• | The investor may not be able to sell interests in the AMB LP Non-Exchangeable Notes to some insurance companies and other institutions that are required by law to own their securities in the form of physical certificates. |
• | DTC’s policies will govern payments, transfers, exchanges and other matters relating to the investor’s interest in the global notes. AMB LP and the Trustee have no responsibility for any aspect of DTC’s actions or for its records of ownership interests in the global securities. AMB LP and the Trustee also do not supervise DTC in any way. |
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(1) | a limited-purpose trust company organized under the New York State Banking Law; | ||
(2) | a “banking organization” within the meaning of the New York State Banking Law; | ||
(3) | a member of the Federal Reserve System; |
(4) | a “clearing corporation” within the meaning of the New York Uniform Commercial Code, as amended; and |
(5) | a “clearing agency” registered pursuant to Section 17A of the Exchange Act. |
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(1) | DTC (a) notifies the issuer that it is unwilling or unable to continue as depositary for the global securities or (b) has ceased to be a clearing agency registered under the Exchange Act, and in each cash the issuer fails to appoint a successor depositary; |
(2) | the issuer, at its option, notifies the Trustee in writing that it elects to cause the issuance of the Certificated Securities; or |
(3) | there shall have occurred and be continuing a default or event of default with respect to the AMB LP Non-Exchangeable Notes. |
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• | accrue at the rate of 2.250% per annum, from April 1, 2011 (the most recent date on which interest will have been paid on the ProLogis 2.250% 2037 Convertible Notes); |
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• | be payable in cash semi-annually in arrears on each April 1 and October 1, commencing on October 15, 2011; and |
• | be payable to holders of record on the March 15 and September 15 immediately preceding the related interest payment dates. |
• | accrue at the rate of 1.875% per annum, from May 15, 2011 (the most recent date on which interest will have been paid on the ProLogis 1.875% 2037 Convertible Notes); |
• | be payable in cash semi-annually in arrears on each May 15 and November 15, commencing on November 15, 2011; and |
• | be payable to holders of record on the May 1 and November 1 immediately preceding the related interest payment dates. |
• | accrue at the rate of 2.625% per annum, from May 15, 2011 (the most recent date on which interest will have been paid on the ProLogis 2.625% 2038 Convertible Notes); |
• | be payable in cash semi-annually in arrears on each May 15 and November 15, commencing on November 15, 2011; and |
• | be payable to holders of record on the May 1 and November 1 immediately preceding the related interest payment dates. |
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• | April 1 of 2012, 2017, 2022, 2027 and 2032 with respect to any outstanding AMB LP 2.250% 2037 Exchangeable Notes; |
• | January 15, 2013 and November 15 of 2017, 2022, 2027, and 2032 with respect to any outstanding AMB LP 1.875% 2037 Exchangeable Notes; and |
• | May 15 of 2013, 2018, 2023, 2028, and 2033 with respect to any outstanding AMB LP 2.625% 2038 Exchangeable Notes; |
• | the events causing the fundamental change; |
• | the date of the fundamental change; |
• | the last date on which a holder may exercise the repurchase right; |
• | the fundamental change repurchase price; |
• | the fundamental change repurchase date; |
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• | the name and address of the paying agent and the exchange agent, if applicable; |
• | the applicable exchange rate and any adjustments to the applicable exchange rate; |
• | that the AMB LP Contingent Exchangeable Notes with respect to which a fundamental change repurchase notice has been delivered by a holder may be exchanged only if the holder withdraws the fundamental change repurchase notice in accordance with the terms of the new AMB LP Indenture; and |
• | the procedures that holders must follow to require AMB LP to repurchase their AMB LP Contingent Exchangeable Notes. |
• | if certificated, the certificate numbers of your AMB LP Contingent Exchangeable Notes to be delivered for repurchase; |
• | the portion of the principal amount of AMB LP Contingent Exchangeable Notes to be purchased, which must be $1,000 or an integral multiple thereof; and |
• | that the AMB LP Contingent Exchangeable Notes are to be purchased by AMB LP pursuant to the applicable provisions of the AMB LP Contingent Exchangeable Notes and the new AMB Indenture. |
• | the principal amount of the withdrawn AMB LP Contingent Exchangeable Notes; |
• | if certificated AMB LP Contingent Exchangeable Notes have been issued, the certificate numbers of the withdrawn AMB LP Contingent Exchangeable Notes, or if not certificated, your notice must comply with appropriate DTC procedures; and |
• | the principal amount, if any, which remains subject to the repurchase notice. |
• | the AMB LP Contingent Exchangeable Notes will cease to be outstanding and interest will cease to accrue (whether or not book-entry transfer of the AMB LP Contingent Exchangeable Notes is made or whether or not the AMB LP Contingent Exchangeable Note is delivered to the paying agent); and |
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• | all other rights of the holder will terminate (other than the right to receive the fundamental change repurchase price and previously accrued and unpaid interest upon delivery or transfer of the AMB LP Contingent Exchangeable Notes). |
• | 5.8752 shares of AMB common stock per $1,000 principal amount of AMB LP 2.250% 2037 Exchangeable Notes (equivalent to an exchange price of approximately $170.2070 per share of AMB common stock) at any time prior to the close of business on the trading day immediately preceding the final maturity date; |
• | 5.4874 shares of AMB common stock per $1,000 principal amount of AMB LP 1.875% 2037 Exchangeable Notes (equivalent to an exchange price of approximately $182.2357 per share of AMB common stock) at any time prior to the close of business on the trading day immediately preceding the final maturity date; and |
• | 5.8569 shares of AMB common stock per $1,000 principal amount of AMB LP 2.625% 2038 Exchangeable Notes (equivalent to an exchange price of approximately $170.7388 per share of AMB common stock) at any time prior to the close of business on the trading day immediately preceding the final maturity date. |
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• | February 1, 2012 AMB LP may irrevocably elect, in its sole discretion without the consent of the holders of the AMB LP 2.250% 2037 Exchangeable Notes; |
• | October 15, 2012 AMB LP may irrevocably elect, in its sole discretion without the consent of the holders of the AMB LP 1.875% 2037 Exchangeable Notes; and |
• | February 15, 2013 AMB LP may irrevocably elect, in its sole discretion without the consent of the holders of the AMB LP 2.625% 2038 Exchangeable Notes; |
• | February 1, 2012 in the same manner and AMB LP will notify holders of the AMB LP 2.250% 2037 Exchangeable Notes, of the manner of settlement on or before such date; |
• | October 15, 2012 in the same manner and AMB LP will notify holders of the AMB LP 1.875% 2037 Exchangeable Notes, of the manner of settlement on or before such date; and |
• | February 15, 2013 in the same manner and AMB LP will notify holders of the AMB LP 2.625% 2038 Exchangeable Notes, of the manner of settlement on or before such date. |
• | the principal amount of the AMB LP Contingent Exchangeable Notes; and |
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• | accrued and unpaid interest to, but not including, the exchange date. |
• | if AMB LP has called the AMB LP Contingent Exchangeable Notes for redemption and the redemption date falls within such period; |
• | in connection with a fundamental change if AMB LP has specified a fundamental change repurchase date that falls within such period; |
• | after the record date, with respect to the AMB LP 2.250% 2037 Exchangeable Notes and AMB LP 1.875% 2037 Exchangeable Notes, or after 5:00 p.m., New York City time on the record date, with respect to the AMB LP 2.625% 2038 Exchangeable Notes, immediately preceding the maturity date; or |
• | to the extent of any overdue interest, if any overdue interest exists at the time of exchange with respect to such AMB LP Contingent Exchangeable Notes. |
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• | $221.27 in the case of the AMB LP 2.250% 2037 Exchangeable Notes, |
• | $236.91 in the case of the AMB LP 1.875% 2037 Exchangeable Notes, and |
• | $221.96 in the case of the AMB LP 2.625% 2038 Exchangeable Notes, |
• | distribute to all or substantially all holders of shares of AMB common stock certain rights entitling them to purchase, for a period expiring within 60 days, shares of AMB common stock at less than the last reported sale price of a share of AMB common stock on the trading day immediately preceding the declaration date of the distribution; or |
• | distribute to all or substantially all holders of shares of AMB common stock AMB’s assets, debt securities or certain rights to purchase AMB’s securities, which distribution has a per share value as determined by AMB LP’s board of directors exceeding 15% of the last reported sale price per share of AMB common stock on the day preceding the declaration date for such distribution. |
• | April 5, 2012 in the case of the AMB LP 2.250% 2037 Exchangeable Notes, |
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• | January 15, 2013 in the case of the AMB LP 1.875% 2037 Exchangeable Notes, and |
• | May 20, 2013 in the case of the AMB LP 2.625% 2038 Exchangeable Notes, |
• | February 1, 2012 a holder may surrender AMB LP 2.250% 2037 Exchangeable Notes, |
• | October 15, 2012 a holder may surrender AMB LP 1.875% 2037 Exchangeable Notes, and |
• | February 15, 2013 a holder may surrender AMB LP 2.625% 2038 Exchangeable Notes, |
• | complete and manually sign the exchange notice on the back of the AMB LP Contingent Exchangeable Note, or a facsimile of the exchange notice; |
• | deliver the exchange notice, which is irrevocable, and the AMB LP Contingent Exchangeable Note to the exchange agent; |
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• | if required, furnish appropriate endorsements and transfer documents; and |
• | if required, pay all transfer or similar taxes; and if required, pay funds equal to interest payable on the next interest payment date. |
• | February 1, 2012 in the case of the AMB LP 2.250% 2037 Exchangeable Notes, |
• | October 15, 2012 in the case of the AMB LP 1.875% 2037 Exchangeable Notes, and |
• | February 15, 2013 in the case of the AMB LP 2.625% 2038 Exchangeable Notes, |
• | February 1, 2012 in the same manner and AMB LP will notify holders of the AMB LP 2.250% 2037 Exchangeable Notes, through the Trustee of the manner of settlement on or before such date; |
• | October 15, 2012 in the same manner and AMB LP will notify holders of the AMB LP 1.875% 2037 Exchangeable Notes , through the Trustee of the manner of settlement on or before such date; and |
• | February 15, 2013 in the same manner and AMB LP will notify holders of the AMB LP 2.625% 2038 Exchangeable Notes, through the Trustee of the manner of settlement on or before such date. |
• | February 1, 2012 in the case of the AMB LP 2.250% 2037 Exchangeable Notes, |
• | October 15, 2012 in the case of the AMB LP 1.875% 2037 Exchangeable Notes, and |
• | February 15, 2013 in the case of the AMB LP 2.625% 2038 Exchangeable Notes. |
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• | the AMB LP 2.250% 2037 Exchangeable Notes with an exchange date occurring on or after February 1, 2012 in the same manner, |
• | the AMB LP 1.875% 2037 Exchangeable Notes with an exchange date occurring on or after October 15, 2012 in the same manner, and |
• | the AMB LP 2.625% 2038 Exchangeable Notes with an exchange date occurring on or after February 15, 2013 in the same manner. |
• | cash equal to the lesser of $50 and the daily exchange value relating to such day, and |
• | if such daily exchange value exceeds $50, a number of shares of AMB common stock equal to (i) the difference between such daily exchange value and $50, divided by (ii) the daily VWAP of AMB’s common stock for such day, |
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ER0 | = | the applicable exchange rate in effect immediately prior to such event, in the case of the AMB LP 2.250% 2037 Contingent Exchangeable Notes and the AMB LP 1.875% 2037 Contingent |
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Exchangeable Notes, or immediately prior to the “ex-date” (as defined below) for such dividend or distribution or the effective date of such share split or combination, as the case may be, in the case of the AMB LP 2.625% 2038 Contingent Exchangeable Notes; | ||||||
ER’ | = | the applicable exchange rate in effect immediately after such event, in the case of the AMB LP 2.250% 2037 Contingent Exchangeable Notes and the AMB LP 1.875% 2037 Contingent Exchangeable Notes, or in effect as of the ex-date for such dividend or distribution or the effective date of such share split or combination, as the case may be, in the case of the AMB LP 2.625% 2038 Contingent Exchangeable Notes; | ||||
OS0 | = | the number of shares of AMB common stock outstanding immediately prior to such event; and | ||||
OS’ | = | the number of shares of AMB common stock outstanding immediately after such event. |
ER0 | = | the applicable exchange rate in effect immediately prior to such event, in the case of the AMB LP 2.250% 2037 Contingent Exchangeable Notes and the AMB LP 1.875% 2037 Contingent Exchangeable Notes, or immediately prior to the ex-date for such distribution, in the case of the AMB LP 2.625% 2038 Contingent Exchangeable Notes; | ||||
ER’ | = | the applicable exchange rate in effect immediately after such event, in the case of the AMB LP 2.250% 2037 Contingent Exchangeable Notes and the AMB LP 1.875% 2037 Contingent Exchangeable Notes, or in effect as of the ex-date for such distribution, in the case of the AMB LP 2.625% 2038 Contingent Exchangeable Notes; | ||||
OS0 | = | the number of shares of AMB common stock outstanding immediately prior to such event; | ||||
X | = | the total number of shares of AMB common stock issuable pursuant to such rights, warrants or convertible securities; and | ||||
Y | = | the number of shares of AMB common stock equal to the aggregate price payable to exercise such rights, warrants or convertible securities divided by the average of the last reported sale prices per share of AMB common stock over the ten consecutive trading day period ending on the business day immediately preceding the record date (or, if later, the ex-date relating such distribution) for the issuance of such rights, warrants or convertible securities. |
• | dividends or distributions and rights or warrants referred to in clause (1) or (2) above; |
• | dividends or distributions paid exclusively in cash; and |
• | spin-offs to which the provisions set forth below in this paragraph (3) shall apply; |
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ER0 | = | the applicable exchange rate in effect immediately prior to such distribution, in the case of the AMB LP 2.250% 2037 Contingent Exchangeable Notes and the AMB LP 1.875% 2037 Contingent Exchangeable Notes, or immediately prior to the ex-date for such distribution, in the case of the AMB LP 2.625% 2038 Contingent Exchangeable Notes; | ||||
ER’ | = | the applicable exchange rate in effect immediately after such distribution, in the case of the AMB LP 2.250% 2037 Contingent Exchangeable Notes and the AMB LP 1.875% 2037 Contingent Exchangeable Notes, or in effect as of the ex-date for such distribution, in the case of the AMB LP 2.625% 2038 Contingent Exchangeable Notes; | ||||
SP0 | = | the average of the last reported sale prices per share of AMB common stock over the ten consecutive trading day period ending on the business day immediately preceding the record date for such distribution (or, if earlier, the ex-date relating to such distribution); and | ||||
FMV | = | the fair market value (as determined by the board of directors of AMB) of the shares of capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of AMB common stock on the record date for such distribution (or, if earlier, the ex-date relating to such distribution). |
ER0 | = | the applicable exchange rate in effect immediately prior to the effective date of such distribution; | ||||
ER’ | = | the applicable exchange rate in effect as of the effective date of such distribution; | ||||
FMV0 | = | the average of the last reported sale prices of the shares of capital stock or similar equity interest distributed to holders of shares of AMB common stock applicable to one share of AMB common stock over the first ten consecutive trading day period after the effective date of the spin-off; and | ||||
MP0 | = | the average of the last reported sale prices per share of AMB common stock over the first ten consecutive trading day period after the effective date of the spin-off. |
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ER0 | = | the applicable exchange rate in effect immediately prior to the record date for such distribution, in the case of the AMB LP 2.250% 2037 Contingent Exchangeable Notes and the AMB LP 1.875% 2037 Contingent Exchangeable Notes, or immediately prior to the ex-date for such distribution, in the case of the AMB LP 2.625% 2038 Contingent Exchangeable Notes; | ||||
ER’ | = | the applicable exchange rate in effect immediately after the record date for such distribution, in the case of the AMB LP 2.250% 2037 Contingent Exchangeable Notes and the AMB LP 1.875% 2037 Contingent Exchangeable Notes, or in effect as of the ex-date for such distribution, in the case of the AMB LP 2.625% 2038 Contingent Exchangeable Notes; | ||||
SP0 | = | the average of the last reported sale prices per share of AMB common stock over the ten consecutive trading-day period ending on the business day immediately preceding the record date for such distribution (or, if earlier, the ex-date relating to such distribution); | ||||
T | = | the dividend threshold amount, which shall initially be $1.0305, $1.0305 and $1.1593, for the AMB LP 2.250% 2037 Exchangeable Notes, AMB LP 1.875% 2037 Exchangeable Notes and AMB LP 2.625% 2038 Exchangeable Notes, respectively, per quarter and which amount shall be appropriately adjusted from time to time for any stock dividends on, or subdivisions or combinations of, AMB’s common stock; provided, that if an applicable exchange rate adjustment is required to be made as a result of a distribution that is not a quarterly dividend either in whole or in part, the dividend threshold amount shall be deemed to be zero; and | ||||
C | = | the amount in cash per share that AMB distributes to holders of shares of AMB common stock. |
ER0 | = | the applicable exchange rate in effect on the date such tender or exchange offer expires; | ||||
ER’ | = | the applicable exchange rate in effect on the day next succeeding the date such tender or exchange offer expires; | ||||
AC | = | the aggregate value of all cash and any other consideration (as determined by the board of directors of AMB) paid or payable for shares purchased in such tender or exchange offer; |
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OS0 | = | the number of shares of AMB common stock outstanding immediately prior to the date such tender or exchange offer expires; | ||||
OS’ | = | the number of shares of AMB common stock outstanding immediately after the date such tender or exchange offer expires; and | ||||
SP’ | = | the average of the last reported sale prices per share of AMB common stock over the ten consecutive trading-day period commencing on the trading day next succeeding the date such tender or exchange offer expires. |
The applicable exchange rate will not be adjusted: |
• | upon the issuance of any shares of AMB common stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on AMB securities and the investment of additional optional amounts in shares of AMB common stock under any plan; |
• | upon the issuance of any shares of AMB common stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by AMB LP or any of its subsidiaries; |
• | upon the issuance of any shares of AMB common stock pursuant to any option, warrant, right or exercisable or exchangeable security not described in the second bullet above and outstanding as of the date the AMB LP Contingent Exchangeable Notes were first issued; |
• | in the case of the AMB LP 2.625% 2038 Exchangeable Notes, upon the issuance of any shares of AMB common stock pursuant to any option, warrant or exercisable or exchangeable security not described in the second bullet above issued after the date the AMB LP 2.625% 2038 Exchangeable Notes were first issued so long as those securities are not issued to all or substantially all holders of shares of AMB common stock; |
• | for a change in the par value of shares of AMB common stock; |
• | for accrued and unpaid interest; or |
• | for the avoidance of doubt, for the payment of cash or the issuance of shares of AMB common stock by AMB upon exchange, redemption or repurchase of AMB LP Contingent Exchangeable Notes. |
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In the event of: |
• | any reclassification of AMB’s common stock; or |
• | a consolidation, merger or combination involving AMB; or |
• | a sale or conveyance to another person of all or substantially all of the property and assets of AMB, |
• | cash up to the aggregate principal amount thereof; and |
• | in lieu of the shares of AMB common stock otherwise deliverable, the same type (in the same proportions) of consideration received by holders of shares of AMB common stock in the relevant event (“reference property”). |
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• | April 5, 2012 for the AMB LP 2.250% 2037 Exchangeable Notes, | ||
• | January 15, 2013 for the AMB LP 1.875% 2037 Exchangeable Notes, and | ||
• | May 20, 2013 for the AMB LP 2.625% 2038 Exchangeable Notes, |
• | listed on, or immediately after consummation of such transaction or event will be listed on, a United States national securities exchange; or | ||
• | approved, or immediately after the transaction or event will be approved, for listing or quotation on any United States system of automated dissemination of quotations of securities prices. |
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Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $142.97 | $156.81 | $179.21 | $201.61 | $224.01 | $246.42 | $268.82 | $291.22 | $313.62 | $336.02 | $358.42 | $380.82 | ||||||||||||||||||||||||||||||||||||
April 1, 2011 | 1.1658 | 0.6611 | 0.2519 | 0.0780 | 0.0171 | 0.0027 | 0.0012 | 0.0011 | 0.0001 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
April 1, 2012 | 1.1658 | 0.5482 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
• | If the share price is between two share price amounts in the table or the effective date is between two effective dates in the table, the number of additional shares will be determined by a straight-line interpolation between the number of additional shares set forth for the higher and lower share price amounts and the two dates, as applicable, based on a 365-day year. | ||
• | If the share price is greater than $380.82 per share (subject to adjustment), the applicable exchange rate will not be adjusted. | ||
• | If the share price is less than $142.97 per share (subject to adjustment), the applicable exchange rate will not be adjusted. |
Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $153.07 | $156.81 | $168.01 | $179.21 | $190.41 | $201.61 | $212.81 | $224.01 | $235.22 | $246.42 | $257.62 | $268.82 | ||||||||||||||||||||||||||||||||||||
January 15, 2012 | 1.0888 | 0.9285 | 0.6389 | 0.4241 | 0.2694 | 0.1613 | 0.0884 | 0.0409 | 0.0111 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
January 15, 2013 | 1.0888 | 0.9054 | 0.4821 | 0.1232 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
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• | If the share price is between two share price amounts in the table or the effective date is between two effective dates in the table, the number of additional shares will be determined by a straight-line interpolation between the number of additional shares set forth for the higher and lower share price amounts and the two dates, as applicable, based on a 365-day year. | ||
• | If the share price is greater than $268.82 per share (subject to adjustment), the applicable exchange rate will not be adjusted. | ||
• | If the share price is less than $153.07 per share (subject to adjustment), the applicable exchange rate will not be adjusted. |
Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $140.82 | $145.61 | $151.21 | $156.81 | $162.41 | $168.01 | $173.61 | $179.21 | $190.41 | $201.61 | $212.81 | $224.01 | $246.42 | $268.82 | ||||||||||||||||||||||||||||||||||||||||||
May 20, 2011 | 1.2446 | 1.0353 | 0.8923 | 0.7672 | 0.6578 | 0.5623 | 0.4790 | 0.4065 | 0.2887 | 0.2004 | 0.1350 | 0.0872 | 0.0295 | 0.0044 | ||||||||||||||||||||||||||||||||||||||||||
May 20, 2012 | 1.2446 | 1.0108 | 0.7954 | 0.6614 | 0.5468 | 0.4491 | 0.3662 | 0.2961 | 0.1878 | 0.1129 | 0.0630 | 0.0312 | 0.0021 | 0.0000 | ||||||||||||||||||||||||||||||||||||||||||
May 20, 2013 | 1.2446 | 1.0108 | 0.7564 | 0.5202 | 0.3003 | 0.0951 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
• | If the share price is between two share price amounts in the table or the effective date is between two effective dates in the table, the number of additional shares will be determined by a straight-line interpolation between the number of additional shares set forth for the higher and lower share price amounts and the two dates, as applicable, based on a 365-day year. | ||
• | If the share price is greater than $268.82 per share (subject to adjustment), the applicable exchange rate will not be adjusted. | ||
• | If the share price is less than $140.82 per share (subject to adjustment), the applicable exchange rate will not be adjusted. |
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• | If the last day of the applicable observation period related to AMB LP Contingent Exchangeable Notes surrendered for exchange is prior to the third trading day preceding the effective date of the fundamental change, AMB LP will settle such exchange as described under “— Payment Upon Exchange of the AMB LP Contingent Exchangeable Notes” above by delivering the amount of shares of AMB common stock or cash and shares of AMB common stock, if any (based on the applicable exchange rate without regard to the number of additional shares to be added to the applicable exchange rate as described above), on the third trading day immediately following the last day of the applicable observation period. In addition, as soon as practicable following the effective date of the fundamental change, AMB LP will deliver the increase in such amount of cash and reference property deliverable in lieu of shares of AMB common stock, if any, as if the applicable exchange rate had been increased by such number of additional shares during the related observation period (and based upon the related daily VWAP prices during such observation period). If such increased amount results in an increase to the amount of cash to be paid to holders, AMB LP will pay such increase in cash, and if such increased settlement amount results in an increase to the number of shares of AMB common stock, AMB LP will deliver such increase by delivering reference property based on such increased number of shares. | ||
• | If the last day of the applicable observation period related to AMB LP Contingent Exchangeable Notes surrendered for exchange is on or following the third scheduled trading day preceding the effective date of the fundamental change, AMB LP will settle such exchange as described under “— Payment upon Exchange of the AMB LP Contingent Exchangeable Notes” above (based on the applicable exchange rate as increased by the additional shares described above) on the later to occur of (1) the effective date of the transaction and (2) the third trading day immediately following the last day of the applicable observation period. |
(1) | After the transaction, AMB LP is, or a person organized and existing under the laws of the United States or one of the fifty states is, the continuing entity. If the continuing entity is an entity other than AMB LP, that entity must also assume AMB LP’s payment obligations under the new AMB LP Indenture, as well as the due and punctual performance and observance of all of the covenants contained in the new AMB LP Indenture; | ||
(2) | After giving effect to the transaction and treating any indebtedness which became an obligation of AMB LP or any of AMB LP’s subsidiaries as a result of the transaction as having been incurred by AMB LP or such subsidiary at the time of such transaction, an event of default (or an event which, with notice or lapse of time or both, would become an event of default) has not occurred under the new AMB LP Indenture. Additionally, the transaction may not cause an event which, after notice or a lapse of time, or both, would become an event of default; and | ||
(3) | The continuing entity delivers an officers’ certificate and legal opinion covering (1) and (2) above. |
• | either such guarantor is the continuing person or the successor person (if other than such guarantor) is a corporation, partnership, limited liability company or other entity organized and existing under the laws of the United States of America or a State of the United States of America or the District of Columbia and expressly assumes such guarantor’s obligations with respect to the AMB LP Contingent Exchangeable Notes and the observance of all of the covenants and conditions contained in the new AMB LP Indenture and its guarantee; |
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• | immediately after giving effect to the transaction, no event of default, and no event which, after notice or lapse of time, or both, would become an event of default, shall have occurred and shall be continuing; and | ||
• | such guarantor delivers to the Trustee an officers’ certificate and legal opinion covering compliance with these conditions. |
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(1) | default in the payment of any installment of interest or additional amounts payable on any AMB LP Contingent Exchangeable Notes of such series which continues for 30 days; | ||
(2) | default in the payment of the principal, or premium or make-whole amount, if any, on any AMB LP Contingent Exchangeable Notes of such series at its maturity or redemption date; | ||
(3) | default in the performance of any other of AMB LP’s covenants contained in the new AMB LP Indenture, other than a covenant in the new AMB LP Indenture solely for the benefit of another series of AMB LP Contingent Exchangeable Notes issued under the new AMB LP Indenture, which continues for 60 days after written notice as provided in the new AMB LP Indenture; | ||
(4) | default in the payment of an aggregate principal amount exceeding $50,000,000 under any bond, note or other evidence of indebtedness or any mortgage, indenture or other instrument under which such indebtedness is issued or by which such indebtedness is secured (or any such indebtedness of any of AMB LP’s subsidiaries, which AMB LP has guaranteed), such default having occurred after the expiration of any applicable grace period and having resulted in the acceleration of the maturity of such indebtedness, but only if such indebtedness is not discharged or such acceleration is not rescinded or annulled within ten days after written notice as provided in the new AMB LP Indenture; | ||
(5) | the entry by a court of competent jurisdiction of final judgments, orders or decrees against AMB LP or any of AMB LP’s subsidiaries in an aggregate amount, excluding amounts fully covered by insurance, in excess of $50,000,000 and such judgments, orders or decrees remain undischarged, unstayed and unsatisfied in an aggregate amount, excluding amounts fully covered by insurance, in excess of $50,000,000, for a period of 60 consecutive days; | ||
(6) | events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee for AMB LP, AMB or any significant subsidiary or for all or substantially all of AMB LP’s or its significant subsidiary’s property; | ||
(7) | failure by AMB LP to comply with its obligation to exchange the AMB LP Contingent Exchangeable Notes into cash, shares of AMB common stock or a combination thereof, as applicable, upon exercise of a holder’s exchange right, and such failure continues for a period of ten days; and | ||
(8) | failure by AMB LP to issue a fundamental change notice when due, and such failure continues for a period of two days. |
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(1) | change the stated maturity of the principal of, or premium or make-whole amounts, if any, or any installment of principal of or interest or additional amounts payable on, any such debt security; | ||
(2) | reduce the principal amount of, or the rate or amount of interest on, or any premium or make-whole amounts payable on redemption of, or any additional amounts payable with respect to, any such debt |
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security, or reduce the amount of principal of an original issue discount security or make-whole amount, if any, that would be due and payable upon declaration of acceleration of the maturity of the security or would be provable in bankruptcy, or adversely affect any right of repayment of the holder of any such debt security; | |||
(3) | change the place of payment, or the coin or currency, for payment of principal of, and premium or make-whole amounts, if any, or interest on, or any additional amounts payable with respect to, any such debt security; | ||
(4) | impair the right to institute suit for the enforcement of any payment on or with respect to any such debt security; | ||
(5) | reduce the above-stated percentage of outstanding debt securities of any series necessary to modify or amend the new AMB LP Indenture, to waive compliance with a provisions of the debt security or defaults and consequences under the new AMB LP Indenture or to reduce the quorum or voting requirements set forth in the new AMB LP Indenture; | ||
(6) | modify any of the provisions relating to modification of the new AMB LP Indenture or any of the provisions relating to the waiver of past defaults or covenants, except to increase the required percentage to effect such action or to provide that other provisions may not be modified or waived without the consent of the holder of the affected debt security; or | ||
(7) | release any guarantor from any of its obligations under its guarantee or the new AMB LP Indenture, except in accordance with the terms of the new AMB LP Indenture. |
(1) | to evidence the succession of another person to AMB LP as obligor or any guarantor under the new AMB LP Indenture; | ||
(2) | to add to AMB LP’s or any guarantor’s covenants for the benefit of the holders of all or any series of debt securities or to surrender any right or power conferred upon AMB LP or any guarantor in the new AMB LP Indenture; | ||
(3) | to add events of default for the benefit of the holders of all or any series of debt securities; | ||
(4) | to add to or change any of the provisions of the new AMB LP Indenture to such extent as shall be necessary to permit or facilitate the issuance of debt securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of securities in uncertificated form; |
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(5) | to add to, change or eliminate any of the provisions of the new AMB LP Indenture in respect of one or more series of securities, provided that any such addition, change or elimination (i) shall neither (A) apply to any security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the holder of any such security with respect to such provision or (ii) shall become effective only when there is no such security outstanding; | ||
(6) | to secure the debt securities or related guarantees; | ||
(7) | to establish the form or terms of debt securities of any series; | ||
(8) | to provide for the acceptance of appointment by a successor trustee or facilitate the administration of the trust under the new AMB LP Indenture by more than one trustee; | ||
(9) | to cure any ambiguity, defect or inconsistency in the new AMB LP Indenture or to make any other changes, provided that in each case, the action shall not adversely affect the interests of holders of debt securities or related guarantees of any series in any material respect; | ||
(10) | to close the new AMB LP Indenture with respect to the authentication and delivery of additional series of debt securities or any guarantees or to qualify, or maintain qualification of, the new AMB LP Indenture under the Trust Indenture Act; or | ||
(11) | to supplement any of the provisions of the new AMB LP Indenture to the extent necessary to permit or facilitate defeasance and discharge of any series of such debt securities, provided that the action shall not adversely affect the interests of the holders of the debt securities or related guarantees of any series in any material respect. |
(1) | the principal amount of an original issue discount security that will be deemed to be outstanding shall be the amount of the principal of the security that would be due and payable as of the date of the determination upon declaration of acceleration of the maturity of the debt securities; | ||
(2) | the principal amount of a debt security denominated in a foreign currency that will be deemed outstanding shall be the United States dollar equivalent, determined on the issue date for the debt securities, of the principal amount, or, in the case of an original issue discount security, the United States dollar equivalent on the issue date of the debt securities of the amount determined as provided in (1) above; | ||
(3) | the principal amount of an indexed security that shall be deemed outstanding will be the principal face amount of the indexed security at original issuance, unless otherwise provided with respect to the indexed security pursuant to Section 301 of the new AMB LP Indenture; and | ||
(4) | debt securities owned by AMB LP or any other obligor upon the debt securities or any of AMB LP’s affiliates or of the other obligor will be disregarded. |
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(1) | there shall be no minimum quorum requirement for the meeting; and | ||
(2) | the principal amount of the outstanding debt securities of that series that vote in favor of the request, demand, authorization, direction, notice, consent, waiver or other action will be taken into account in determining whether the request, demand, authorization, direction, notice, consent, waiver or other action has been made, given or taken under the new AMB LP Indenture. |
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(1) | issue, register the transfer of or exchange AMB LP Contingent Exchangeable Notes of any series during a period beginning at the opening of business 15 days before any selection of AMB LP Contingent Exchangeable Notes of that series to be redeemed and ending at the close of business on the day of mailing of the relevant notice of redemption; | ||
(2) | register the transfer of or exchange any AMB LP Contingent Exchangeable Note, or portion of security, called for redemption, except the unredeemed portion of any AMB LP Contingent Exchangeable Note being redeemed in part; or | ||
(3) | issue, register the transfer of or exchange any AMB LP Contingent Exchangeable Note which has been surrendered for repayment at the option of the holder, except the portion, if any, of such AMB LP Contingent Exchangeable Note not to be so repaid. |
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• | The investor cannot get AMB LP Contingent Exchangeable Notes registered in his or her own name. | ||
• | The investor cannot receive physical certificates for his or her interest in the AMB LP Contingent Exchangeable Notes. | ||
• | The investor will be a “street name” holder and must look to his or her own bank or broker for payments on the AMB LP Contingent Exchangeable Notes and protection of his or her legal rights relating to the AMB LP Contingent Exchangeable Notes. | ||
• | The investor may not be able to sell interests in the AMB LP Contingent Exchangeable Notes to some insurance companies and other institutions that are required by law to own their securities in the form of physical certificates. | ||
• | DTC’s policies will govern payments, transfers, exchanges and other matters relating to the investor’s interest in the global notes. AMB LP and the Trustee have no responsibility for any aspect of DTC’s actions or for its records of ownership interests in the global securities. AMB LP and the Trustee also do not supervise DTC in any way. |
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(1) | a limited-purpose trust company organized under the New York State Banking Law; | ||
(2) | a “banking organization” within the meaning of the New York State Banking Law; | ||
(3) | a member of the Federal Reserve System; | ||
(4) | a “clearing corporation” within the meaning of the New York Uniform Commercial Code, as amended; and | ||
(5) | a “clearing agency” registered pursuant to Section 17A of the Exchange Act. |
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(1) | DTC (a) notifies the issuer that it is unwilling or unable to continue as depositary for the global securities or (b) has ceased to be a clearing agency registered under the Exchange Act, and in each case the issuer fails to appoint a successor depositary; | ||
(2) | the issuer, at its option, notifies the Trustee in writing that it elects to cause the issuance of the Certificated Securities; or | ||
(3) | there shall have occurred and be continuing a default or event of default with respect to the AMB LP Contingent Exchangeable Notes. |
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• | accrue at the rate of 3.250% per annum, from March 15, 2011 (the most recent date on which interest will have been paid on the ProLogis 3.250% 2015 Convertible Notes); |
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• | be payable in cash semi-annually in arrears on each March 15 and September 15, commencing on September 15, 2011; and | ||
• | be payable to holders of record on the March 1 and September 1 immediately preceding the related interest payment dates. |
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• | the events causing the fundamental change; | ||
• | the date of the fundamental change; | ||
• | the last date on which a holder may exercise the repurchase right; | ||
• | the fundamental change repurchase price; | ||
• | the fundamental change repurchase date; | ||
• | the name and address of the paying agent and the exchange agent, if applicable; | ||
• | the applicable exchange rate and any adjustments to the applicable exchange rate; | ||
• | that the AMB LP 3.250% 2015 Exchangeable Notes with respect to which a fundamental change repurchase notice has been delivered by a holder may be exchanged only if the holder withdraws the fundamental change repurchase notice in accordance with the terms of the new AMB LP Indenture; and | ||
• | the procedures that holders must follow to require AMB LP to repurchase their AMB LP 3.250% 2015 Exchangeable Notes. |
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• | if certificated, the certificate numbers of your AMB LP 3.250% 2015 Exchangeable Notes to be delivered for repurchase; | ||
• | the portion of the principal amount of AMB LP 3.250% 2015 Exchangeable Notes to be purchased, which must be $1,000 or an integral multiple thereof; and | ||
• | that the AMB LP 3.250% 2015 Exchangeable Notes are to be purchased by AMB LP pursuant to the applicable provisions of the AMB LP 3.250% 2015 Exchangeable Notes and the new AMB Indenture. |
• | the principal amount of the withdrawn AMB LP 3.250% 2015 Exchangeable Notes; | ||
• | if certificated AMB LP 3.250% 2015 Exchangeable Notes have been issued, the certificate numbers of the withdrawn AMB LP 3.250% 2015 Exchangeable Notes, or if not certificated, your notice must comply with appropriate DTC procedures; and | ||
• | the principal amount, if any, which remains subject to the repurchase notice. |
• | the AMB LP 3.250% 2015 Exchangeable Notes will cease to be outstanding and interest will cease to accrue (whether or not book-entry transfer of the AMB LP 3.250% 2015 Exchangeable Notes is made or whether or not the AMB LP 3.250% 2015 Exchangeable Note is delivered to the paying agent); and | ||
• | all other rights of the holder will terminate (other than the right to receive the fundamental change repurchase price and previously accrued and unpaid interest upon delivery or transfer of the AMB LP 3.250% 2015 Exchangeable Notes). |
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• | the principal amount of the AMB LP 3.250% 2015 Exchangeable Notes; and | ||
• | accrued and unpaid interest to, but not including, the exchange date. |
• | if AMB LP has called the AMB LP 3.250% 2015 Exchangeable Notes for redemption and the redemption date falls within such period; | ||
• | in connection with a fundamental change if AMB LP has specified a fundamental change repurchase date that falls within such period; | ||
• | after 5:00 p.m., New York City time on the record date immediately preceding the maturity date; or | ||
• | to the extent of any overdue interest, if any overdue interest exists at the time of exchange with respect to such AMB LP 3.250% 2015 Exchangeable Notes. |
• | complete and manually sign the exchange notice on the back of the AMB LP 3.250% 2015 Exchangeable Note, or a facsimile of the exchange notice; |
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• | deliver the exchange notice, which is irrevocable, and the AMB LP 3.250% 2015 Exchangeable Note to the exchange agent; | ||
• | if required, furnish appropriate endorsements and transfer documents; and | ||
• | if required, pay all transfer or similar taxes; and if required, pay funds equal to interest payable on the next interest payment date. |
• | cash equal to the lesser of $50 and the daily exchange value relating to such day, and |
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• | if such daily exchange value exceeds $50, a number of shares of AMB common stock equal to (i) the difference between such daily exchange value and $50, divided by (ii) the daily VWAP of AMB’s common stock for such day, |
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ER0 | = | the exchange rate in effect immediately prior to the “ex-date” (as defined below) for such dividend or distribution or the effective date of such share split or combination, as the case may be; | |
ER’ | = | the exchange rate in effect as of the ex-date for such dividend or distribution or the effective date of such share split or combination, as the case may be; | |
OS0 | = | the number of shares of AMB common stock outstanding immediately prior to such event; and | |
OS’ | = | the number of shares of AMB common stock outstanding immediately after such event. |
ER0 | = | the exchange rate in effect immediately prior to the ex-date for such distribution; | |
ER’ | = | the exchange rate in effect as of the ex-date for such distribution; | |
OS0 | = | the number of shares of AMB common stock outstanding immediately prior to such event; | |
X | = | the total number of shares of AMB common stock issuable pursuant to such rights, warrants or convertible securities; and |
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Y | = | the number of shares of AMB common stock equal to the aggregate price payable to exercise such rights, warrants or convertible securities divided by the average of the last reported sale prices per share of AMB common stock over the ten consecutive trading day period ending on the business day immediately preceding the record date (or, if later, the ex-date relating such distribution) for the issuance of such rights, warrants or convertible securities. |
• | dividends or distributions and rights or warrants referred to in clause (1) or (2) above; | ||
• | dividends or distributions paid exclusively in cash; and | ||
• | spin-offs to which the provisions set forth below in this paragraph (3) shall apply; |
ER0 | = | the exchange rate in effect immediately prior to the ex-date for such distribution; | |
ER’ | = | the exchange rate in effect as of the ex-date for such distribution; | |
SP0 | = | the average of the last reported sale prices per share of AMB common stock over the ten consecutive trading day period ending on the business day immediately preceding the record date for such distribution (or, if earlier, the ex-date relating to such distribution); and | |
FMV | = | the fair market value (as determined by the board of directors of AMB) of the shares of capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of AMB common stock on the record date for such distribution (or, if earlier, the ex-date relating to such distribution). |
ER0 | = | the exchange rate in effect immediately prior to the effective date of such distribution; | |
ER’ | = | the exchange rate in effect as of the effective date of such distribution; |
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FMV0 | = | the average of the last reported sale prices of the capital stock or similar equity interest distributed to holders of shares of AMB common stock applicable to one share of AMB common stock over the first ten consecutive trading day period after the effective date of the spin-off; and | |
MP0 | = | the average of the last reported sale prices per share of AMB common stock over the first ten consecutive trading day period after the effective date of the spin-off. |
ER0 | = | the exchange rate in effect immediately prior to the ex-date for such distribution; | |
ER’ | = | the exchange rate in effect as of the ex-date for such distribution; | |
SP0 | = | the average of the last reported sale prices per share of AMB common stock over the ten consecutive trading-day period ending on the business day immediately preceding the record date for such distribution (or, if earlier, the ex-date relating to such distribution); | |
T | = | the dividend threshold amount, which shall initially be $0.3360 per quarter and which amount shall be appropriately adjusted from time to time for any stock dividends on, or subdivisions or combinations of, AMB’s common stock; provided, that if an exchange rate adjustment is required to be made as a result of a distribution that is not a quarterly dividend either in whole or in part, the dividend threshold amount shall be deemed to be zero; and | |
C | = | the amount in cash per share that AMB distributes to holders of shares of AMB common stock. |
ER0 | = | the exchange rate in effect on the date such tender or exchange offer expires; | |
ER’ | = | the exchange rate in effect on the day next succeeding the date such tender or exchange offer expires; | |
AC | = | the aggregate value of all cash and any other consideration (as determined by the board of directors of AMB) paid or payable for shares purchased in such tender or exchange offer; |
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OS0 | = | the number of shares of AMB common stock outstanding immediately prior to the date such tender or exchange offer expires; | |
OS’ | = | the number of shares of AMB common stock outstanding immediately after the date such tender or exchange offer expires; and | |
SP’ | = | the average of the last reported sale prices per share of AMB common stock over the ten consecutive trading-day period commencing on the trading day next succeeding the date such tender or exchange offer expires. |
• | upon the issuance of any shares of AMB common stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on AMB securities and the investment of additional optional amounts in shares of AMB common stock under any plan; | ||
• | upon the issuance of any shares of AMB common stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by AMB LP or any of its subsidiaries; | ||
• | upon the issuance of any shares of AMB common stock pursuant to any option, warrant, right or exercisable or exchangeable security not described in the second bullet above and outstanding as of the date the AMB LP 3.250% 2015 Exchangeable Notes were first issued; | ||
• | upon the issuance of any shares of AMB common stock pursuant to any option, warrant or exercisable or exchangeable security not described in the second bullet above issued after the date the AMB LP 3.250% 2015 Exchangeable Notes were first issued so long as those securities are not issued to all or substantially all holders of shares of AMB common stock; | ||
• | for a change in the par value of shares of AMB common stock; | ||
• | for accrued and unpaid interest; or | ||
• | for the avoidance of doubt, for the payment of cash or the issuance of shares of AMB common stock by AMB upon exchange, redemption or repurchase of AMB LP 3.250% 2015 Exchangeable Notes. |
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• | any reclassification of AMB’s common stock; or | ||
• | a consolidation, merger or combination involving AMB; or | ||
• | a sale or conveyance to another person of all or substantially all of the property and assets of AMB, in which holders of the outstanding shares of AMB common stock would be entitled to receive cash, securities or other property for their shares of AMB common stock; |
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• | listed on, or immediately after consummation of such transaction or event will be listed on, a United States national securities exchange; or | ||
• | approved, or immediately after the transaction or event will be approved, for listing or quotation on any United States system of automated dissemination of quotations of securities prices. |
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Share Price | ||||||||||||||||||||||||||||||||||||||||||||||||
Effective Date | $30.02 | $33.60 | $39.20 | $44.80 | $50.40 | $56.00 | $61.60 | $67.20 | $72.80 | $78.41 | $84.01 | $89.61 | ||||||||||||||||||||||||||||||||||||
March 15, 2012 | 7.4890 | 5.5791 | 3.2283 | 1.8584 | 1.0561 | 0.5852 | 0.3098 | 0.1507 | 0.0624 | 0.0177 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
March 15, 2013 | 7.4890 | 5.2539 | 2.8142 | 1.4675 | 0.7374 | 0.3488 | 0.1475 | 0.0494 | 0.0078 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
March 15, 2014 | 7.4890 | 4.6911 | 2.0996 | 0.8440 | 0.2940 | 0.0788 | 0.0092 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||
March 15, 2015 | 7.4890 | 3.9356 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
• | If the share price is between two share price amounts in the table or the effective date is between two effective dates in the table, the number of additional shares will be determined by a straight-line interpolation between the number of additional shares set forth for the higher and lower share price amounts and the two dates, as applicable, based on a 365-day year. | ||
• | If the share price is greater than $89.61 per share (subject to adjustment), the exchange rate will not be adjusted. | ||
• | If the share price is less than $30.02 per share (subject to adjustment), the exchange rate will not be adjusted. |
(1) | After the transaction, AMB LP is, or a person organized and existing under the laws of the United States or one of the fifty states is, the continuing entity. If the continuing entity is an entity other than AMB LP, that entity must also assume AMB LP’s payment obligations under the new AMB LP Indenture, as well as the due and punctual performance and observance of all of the covenants contained in the new AMB LP Indenture; | ||
(2) | After giving effect to the transaction and treating any indebtedness which became an obligation of AMB LP or any of AMB LP’s subsidiaries as a result of the transaction as having been incurred by AMB LP or such subsidiary at the time of such transaction, an event of default (or an event which, with notice or lapse of time or both, would become an event of default) has not occurred under the new |
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AMB LP Indenture. Additionally, the transaction may not cause an event which, after notice or a lapse of time, or both, would become an event of default; and | |||
(3) | The continuing entity delivers an officers’ certificate and legal opinion covering (1) and (2) above. |
• | either such guarantor is the continuing person or the successor person (if other than such guarantor) is a corporation, partnership, limited liability company or other entity organized and existing under the laws of the United States of America or a State of the United States of America or the District of Columbia and expressly assumes such guarantor’s obligations with respect to the AMB LP 3.250% 2015 Exchangeable Notes and the observance of all of the covenants and conditions contained in the new AMB LP Indenture and its guarantee; | ||
• | immediately after giving effect to the transaction, no event of default, and no event which, after notice or lapse of time, or both, would become an event of default, shall have occurred and shall be continuing; and | ||
• | such guarantor delivers to the Trustee an officers’ certificate and legal opinion covering compliance with these conditions. |
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(1) | default in the payment of any installment of interest or additional amounts payable on any AMB LP 3.250% 2015 Exchangeable Notes which continues for 30 days; | ||
(2) | default in the payment of the principal or premium or make-whole amount, if any, on any AMB LP 3.250% 2015 Exchangeable Notes at its maturity or redemption date; | ||
(3) | default in the performance of any other of AMB LP’s covenants contained in the new AMB LP Indenture, other than a covenant in the new AMB LP Indenture solely for the benefit of another series of AMB LP Notes issued under the new AMB LP Indenture, which continues for 60 days after written notice as provided in the new AMB LP Indenture; | ||
(4) | default in the payment of an aggregate principal amount exceeding $50,000,000 under any bond, note or other evidence of indebtedness or any mortgage, indenture or other instrument under which such indebtedness is issued or by which such indebtedness is secured (or any such indebtedness of any of AMB LP’s subsidiaries, which AMB LP has guaranteed), such default having occurred after the expiration of any applicable grace period and having resulted in the acceleration of the maturity of such indebtedness, but only if such indebtedness is not discharged or such acceleration is not rescinded or annulled within ten days after written notice as provided in the new AMB LP Indenture; | ||
(5) | the entry by a court of competent jurisdiction of final judgments, orders or decrees against AMB LP or any of AMB LP’s subsidiaries in an aggregate amount, excluding amounts fully covered by insurance, in excess of $50,000,000 and such judgments, orders or decrees remain undischarged, unstayed and unsatisfied in an aggregate amount, excluding amounts fully covered by insurance, in excess of $50,000,000 for a period of 60 consecutive days; | ||
(6) | events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee for AMB LP or AMB or any significant subsidiary or for all or substantially all of AMB LP’s or its significant subsidiary’s property; | ||
(7) | failure by AMB LP to comply with its obligation to exchange the AMB LP 3.250% 2015 Exchangeable Notes into cash, shares of AMB common stock or a combination thereof, as applicable, upon exercise of a holder’s exchange right, and such failure continues for a period of ten days; and |
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(8) | failure by AMB LP to issue a fundamental change notice when due, and such failure continues for a period of two days. |
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(1) | change the stated maturity of the principal of, or premium or make-whole amounts, if any, or any installment of principal of or interest or additional amounts payable on, any such debt security; | ||
(2) | reduce the principal amount of, or the rate or amount of interest on, or any premium or make-whole amounts payable on redemption of, or any additional amounts payable with respect to, any such debt security, or reduce the amount of principal of an original issue discount security or make-whole amount, if any, that would be due and payable upon declaration of acceleration of the maturity of the security or would be provable in bankruptcy, or adversely affect any right of repayment of the holder of any such debt security; | ||
(3) | change the place of payment, or the coin or currency, for payment of principal of, and premium or make-whole amounts, if any, or interest on, or any additional amounts payable with respect to, any such debt security; | ||
(4) | impair the right to institute suit for the enforcement of any payment on or with respect to any such debt security; | ||
(5) | reduce the above-stated percentage of outstanding debt securities of any series necessary to modify or amend the new AMB LP Indenture, to waive compliance with a provisions of the debt security or defaults and consequences under the new AMB LP Indenture or to reduce the quorum or voting requirements set forth in the new AMB LP Indenture; | ||
(6) | modify any of the provisions relating to modification of the new AMB LP Indenture or any of the provisions relating to the waiver of past defaults or covenants, except to increase the required percentage to effect such action or to provide that other provisions may not be modified or waived without the consent of the holder of the affected debt security; or | ||
(7) | release any guarantor from any of its obligations under its guarantee or the new AMB LP Indenture, except in accordance with the terms of the new AMB LP Indenture. |
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(1) | to evidence the succession of another person to AMB LP as obligor or any guarantor under the new AMB LP Indenture; | ||
(2) | to add to AMB LP’s or any guarantor’s covenants for the benefit of the holders of all or any series of debt securities or to surrender any right or power conferred upon AMB LP or any guarantor in the new AMB LP Indenture; | ||
(3) | to add events of default for the benefit of the holders of all or any series of debt securities; | ||
(4) | to add to or change any of the provisions of the new AMB LP Indenture to such extent as shall be necessary to permit or facilitate the issuance of debt securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of securities in uncertificated form; | ||
(5) | to add to, change or eliminate any of the provisions of the new AMB LP Indenture in respect of one or more series of securities, provided that any such addition, change or elimination (i) shall neither (A) apply to any security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the holder of any such security with respect to such provision or (ii) shall become effective only when there is no such security outstanding; | ||
(6) | to secure debt securities or any guarantees; | ||
(7) | to establish the form or terms of debt securities of any series; | ||
(8) | to provide for the acceptance of appointment by a successor trustee or facilitate the administration of the trust under the new AMB LP Indenture by more than one trustee; | ||
(9) | to cure any ambiguity, defect or inconsistency in the new AMB LP Indenture or to make any other changes, provided that in each case, the action shall not adversely affect the interests of holders of debt securities or related guarantees of any series in any material respect; | ||
(10) | to close the new AMB LP Indenture with respect to the authentication and delivery of additional series of debt securities or any guarantees or to qualify, or maintain qualification of, the new AMB LP Indenture under the Trust Indenture Act; or | ||
(11) | to supplement any of the provisions of the new AMB LP Indenture to the extent necessary to permit or facilitate defeasance and discharge of any series of such debt securities, provided that the action shall not adversely affect the interests of the holders of the debt securities or related guarantees of any series in any material respect. |
(1) | the principal amount of an original issue discount security that will be deemed to be outstanding shall be the amount of the principal of the security that would be due and payable as of the date of the determination upon declaration of acceleration of the maturity of the debt security; | ||
(2) | the principal amount of a debt security denominated in a foreign currency that will be deemed outstanding shall be the United States dollar equivalent, determined on the issue date for the debt |
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security, of the principal amount, or, in the case of an original issue discount security, the United States dollar equivalent on the issue date of the debt security of the amount determined as provided in (1) above; | |||
(3) | the principal amount of an indexed security that shall be deemed outstanding will be the principal face amount of the indexed security at original issuance, unless otherwise provided with respect to the indexed security pursuant to Section 301 of the new AMB LP Indenture; and | ||
(4) | debt securities owned by AMB LP or any other obligor upon the debt securities or any of AMB LP’s affiliates or of the other obligor will be disregarded. |
(1) | there shall be no minimum quorum requirement for the meeting; and | ||
(2) | the principal amount of the outstanding debt securities of that series that vote in favor of the request, demand, authorization, direction, notice, consent, waiver or other action will be taken into account in determining whether the request, demand, authorization, direction, notice, consent, waiver or other action has been made, given or taken under the new AMB LP Indenture. |
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(1) | issue, register the transfer of or exchange AMB LP 3.250% 2015 Exchangeable Notes during a period beginning at the opening of business 15 days before any selection of AMB LP 3.250% 2015 Exchangeable Notes to be redeemed and ending at the close of business on the day of mailing of the relevant notice of redemption; | ||
(2) | register the transfer of or exchange any AMB LP 3.250% 2015 Exchangeable Note, or portion of security, called for redemption, except the unredeemed portion of any AMB LP 3.250% 2015 Exchangeable Note being redeemed in part; or | ||
(3) | issue, register the transfer of or exchange any AMB LP 3.250% 2015 Exchangeable Note which has been surrendered for repayment at the option of the holder, except the portion, if any, of such AMB LP 3.250% 2015 Exchangeable Note not to be so repaid. |
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• | The investor cannot get AMB LP 3.250% 2015 Exchangeable Notes registered in his or her own name. | ||
• | The investor cannot receive physical certificates for his or her interest in the AMB LP 3.250% 2015 Exchangeable Notes. | ||
• | The investor will be a “street name” holder and must look to his or her own bank or broker for payments on the AMB LP 3.250% 2015 Exchangeable Notes and protection of his or her legal rights relating to the AMB LP 3.250% 2015 Exchangeable Notes. | ||
• | The investor may not be able to sell interests in the AMB LP 3.250% 2015 Exchangeable Notes to some insurance companies and other institutions that are required by law to own their securities in the form of physical certificates. | ||
• | DTC’s policies will govern payments, transfers, exchanges and other matters relating to the investor’s interest in the global notes. AMB LP and the Trustee have no responsibility for any aspect of DTC’s actions or for its records of ownership interests in the global securities. AMB LP and the Trustee also do not supervise DTC in any way. |
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(1) | a limited-purpose trust company organized under the New York State Banking Law; | ||
(2) | a “banking organization” within the meaning of the New York State Banking Law; | ||
(3) | a member of the Federal Reserve System; |
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(4) | a “clearing corporation” within the meaning of the New York Uniform Commercial Code, as amended; and | ||
(5) | a “clearing agency” registered pursuant to Section 17A of the Exchange Act. |
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(1) | DTC (a) notifies the issuer that it is unwilling or unable to continue as depositary for the global securities or (b) has ceased to be a clearing agency registered under the Exchange Act, and in each case the issuer fails to appoint a successor depositary; | ||
(2) | the issuer, at its option, notifies the Trustee in writing that it elects to cause the issuance of the Certificated Securities; or | ||
(3) | there shall have occurred and be continuing a default or event of default with respect to the AMB LP 3.250% 2015 Exchangeable Notes. |
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• | 169,576,043 outstanding shares of AMB common stock; | ||
• | 2,000,000 outstanding shares of AMB Series L preferred stock; | ||
• | 2,300,000 outstanding shares of AMB Series M preferred stock; | ||
• | 3,000,000 outstanding shares of AMB Series O preferred stock; and | ||
• | 2,000,000 outstanding shares of AMB Series P preferred stock. |
• | approximately 424,244,115 outstanding shares of AMB common stock; | ||
• | 2,000,000 outstanding shares of the AMB Series L preferred stock; | ||
• | 2,300,000 outstanding shares of AMB Series M preferred stock; | ||
• | 3,000,000 outstanding shares of AMB Series O preferred stock; | ||
• | 2,000,000 outstanding shares of AMB Series P preferred stock; | ||
• | 2,000,000 outstanding shares of AMB Series Q preferred stock; |
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• | 5,000,000 outstanding shares of AMB Series R preferred stock; and | ||
• | 5,000,000 outstanding shares of AMB Series S preferred stock. |
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273
• | Amendment of charter.Any amendment, alteration or repeal of any of the provisions of the AMB charter or the instrument setting forth the terms of such series of new AMB preferred stock that materially and adversely affects the voting powers, rights or preferences of the holders of the applicable series of new AMB preferred stock or such AMB preferred stock; provided, that the authorization or creation of, or the increase in the number of authorized shares of, any equity securities that rank junior to or on a parity with such series of new AMB preferred stock will not be deemed to materially adversely affect the voting powers, rights or preferences of the holders of the applicable series of new AMB preferred stock; provided, further, that if any such amendment, alteration or repeal would materially and adversely affect any voting powers, rights or preferences of the applicable series of new AMB preferred stock (or another series of parity stock entitled to vote thereon) that are not enjoyed by some or all of the other series otherwise entitled to vote on such matter, the voting standard will be the affirmative vote of at least two-thirds of the votes entitled to be cast by the holders of all series similarly affected; | ||
• | Share exchange.A share exchange that affects the applicable series of new AMB preferred stock, a consolidation with or merger of AMB into another entity, or a consolidation with or merger of another entity into AMB, unless in each case each share of the applicable series of new AMB preferred stock will either remain outstanding without a material and adverse change to its terms or rights, or will be converted into or exchanged for preferred shares of the surviving entity having preferences, rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications and terms or conditions of redemption thereof identical to that of a share of the applicable series of new AMB preferred stock; or | ||
• | Creation of senior stock.The authorization or creation of, or the increase in the authorized amount of, any shares of any class or any security convertible into shares of any class ranking senior to the applicable series of new AMB preferred stock in the distribution of assets on any liquidation, dissolution or winding-up of AMB or in the payment of dividends. |
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275
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• | dealers or traders in securities or currencies; |
• | REITs or regulated investment companies; |
• | U.S. holders (as defined below) whose functional currency is not the U.S. dollar; |
• | persons holding notes as part of a hedge, straddle, conversion, constructive sale, or other “synthetic security” or integrated transaction; |
• | U.S. expatriates and certain former citizens or long-term residents of the United States; |
• | banks and other financial institutions; |
• | holders subject to the alternative minimum tax; |
• | insurance companies; and |
• | entities that are tax-exempt for U.S. federal income tax purposes. |
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• | an individual who is a U.S. citizen or U.S. resident alien, |
• | a corporation, or other entity taxable as a corporation for U.S. federal income tax purposes, created or organized in or under the laws of the United States, any state thereof or the District of Columbia, |
• | an estate the income of which is subject to U.S. federal income taxation regardless of its source, or |
• | a trust if a U.S. court can exercise primary supervision over the trust’s administration and one or more United States persons are authorized to control all substantial decisions of the trust or that has a valid election in effect under applicable Treasury Regulations to be treated as a U.S. person. |
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281
• | you are an individual present in the United States for 183 days or more in the year of such exchange and specific other conditions are met, |
• | the gain from the exchange is effectively connected with your conduct of a U.S. trade or business and, if a U.S. income tax treaty applies, is generally attributable to a U.S. “permanent establishment” you maintain, or |
282
• | you exchange a ProLogis Convertible Note and such ProLogis Convertible Note constitutes a “U.S. real property interest” (“USRPI”) within the meaning of FIRPTA. |
283
284
• | the cash and the fair market value of any property (including AMB common stock) received, less any amount attributable to accrued interest, which to the extent you have not previously included the accrued interest in income, will be taxable in the manner described under “— U.S. Holders — Taxation of Interest, Discount and Premium on AMB LP Notes”; and |
• | your adjusted tax basis in an AMB LP Note. |
285
• | you do not actually or constructively own 10% or more of AMB LP’s capital or profits interests, |
• | you are not a controlled foreign corporation that is related to AMB LP within the meaning of the Code and |
• | you are not a bank receiving interest on an extension of credit made in the ordinary course of your trade or business. |
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287
• | United States person, |
• | foreign person that derives 50% or more of its gross income for certain periods from the conduct of trade or business in the United States, |
• | controlled foreign corporation for U.S. federal income tax purposes or |
• | foreign partnership that, at any time during its taxable year, has more than 50% of its income or capital interests owned by United States persons or is engaged in the conduct of a U.S. trade or business. |
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• | First, AMB will be required to pay tax at regular corporate rates on any undistributed “REIT taxable income,” including undistributed net capital gains. |
• | Second, AMB may be required to pay the “alternative minimum tax” on items of tax preference under some circumstances. |
• | Third, if AMB has (1) net income from the sale or other disposition of “foreclosure property” held primarily for sale to customers in the ordinary course of business or (2) other nonqualifying income from foreclosure property, AMB will be required to pay tax at the highest corporate rate on this income. Foreclosure property is generally property acquired through foreclosure or after a default on a loan secured by the property or a lease of the property. |
• | Fourth, AMB will be required to pay a 100% tax on any net income from prohibited transactions. Prohibited transactions are, in general, sales or other taxable dispositions of property, other than foreclosure property, held primarily for sale to customers in the ordinary course of business. |
• | Fifth, if AMB fails to satisfy the 75% gross income test or the 95% gross income test, as described below, but has otherwise maintained its qualification as a REIT because certain other requirements are met, AMB will be required to pay a tax equal to (1) the greater of (A) the amount by which 75% of AMB’s gross income exceeds the amount qualifying under the 75% gross income test, and (B) the amount by which 95% of AMB’s gross income exceeds the amount qualifying under the 95% gross income test, multiplied by (2) a fraction intended to reflect the profitability of AMB. |
• | Sixth, if AMB fails to satisfy any of the REIT asset tests (other than ade minimis failure of the 5% or 10% asset tests), as described below, provided such failure is due to reasonable cause and not due to willful neglect, and nonetheless maintains its REIT qualification because of specified cure provisions, AMB will be required to pay a tax equal to the greater of $50,000 or the highest corporate tax rate multiplied by the net income generated by the nonqualifying assets that caused AMB to fail such test. |
• | Seventh, if AMB fails to satisfy any provision of the Code that would result in its failure to qualify as a REIT (other than a violation of the REIT gross income tests or certain violations of the asset tests described below) and the violation is due to reasonable cause and not due to willful neglect, AMB may retain its REIT qualification but will be required to pay a penalty of $50,000 for each such failure. |
• | Eighth, AMB will be required to pay a 4% excise tax to the extent AMB fails to distribute during each calendar year at least the sum of (1) 85% of AMB’s REIT ordinary income for the year, (2) 95% of its REIT capital gain net income for the year (other than capital gain AMB elects to retain and pay tax on) and (3) any undistributed taxable income from prior periods. |
• | Ninth, if AMB acquires any asset from a corporation that is or has been a C corporation in a transaction in which the basis of the asset in the hands of AMB is determined by reference to the basis of the asset in the hands of the C corporation, and AMB subsequently recognizes gain on the disposition of the asset during the ten-year period (five-year period for gains recognized in 2011) beginning on the date on which AMB acquired the asset, then AMB will be required to pay tax at the highest regular corporate tax rate on this gain to the extent of the excess of (1) the fair market value of the asset over (2) AMB’s adjusted basis in the asset, in each case determined as of the date on which AMB acquired the asset. The results described in this paragraph with respect to the recognition of gain assume that the necessary parties make or refrain from making the appropriate elections under the applicable Treasury Regulations then in effect. |
• | Tenth, AMB will be required to pay a 100% tax on any “redetermined rents,” “redetermined deductions” or “excess interest.” In general, redetermined rents are rents from real property that are overstated as a result of services furnished by a “taxable REIT subsidiary” of AMB to any of its tenants. See “— Requirements for Qualification as a REIT — Ownership of Interests in Taxable REIT Subsidiaries.” Redetermined deductions and excess interest generally represent amounts that are |
291
deducted by a taxable REIT subsidiary for amounts paid to AMB that are in excess of the amounts that would have been deducted based on arm’s length negotiations. See “— Requirements for Qualification as a REIT — Redetermined Rents, Redetermined Deductions, and Excess Interest.” |
1. | that is managed by one or more trustees or directors; |
2. | that issues transferable shares or transferable certificates to evidence its beneficial ownership; |
3. | that would be taxable as a domestic corporation, but for Sections 856 through 860 of the Code; |
4. | that is not a financial institution or an insurance company within the meaning of certain provisions of the Code; |
5. | that is beneficially owned by 100 or more persons; |
6. | not more than 50% in value of the outstanding stock of which is owned, actually or constructively, by five or fewer individuals (as defined in the Code to include certain entities) during the last half of each taxable year; and |
7. | that meets other tests, described below, regarding the nature of its income and assets and the amount of its distributions. |
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293
• | the amount of rent must not be based in whole or in part on the income or profits of any person. However, an amount AMB receives or accrues generally will not be excluded from the term “rents from real property” solely because it is based on a fixed percentage or percentages of receipts or sales; |
• | AMB, or an actual or constructive owner of 10% or more of the stock of AMB, must not actually or constructively own 10% or more of the interests in the assets or net profits of the tenant or, if the tenant is a corporation, 10% or more of the total combined voting power of all classes of stock entitled to vote or 10% or more of the total value of all classes of stock of the tenant. Rents received from such a tenant that is also a taxable REIT subsidiary, however, will not be excluded from the definition of “rents from real property” as a result of this condition if at least 90% of the space at the property to which the rents relate is leased to third parties, and the rents paid by the taxable REIT subsidiary are substantially comparable to rents paid by other tenants for comparable space. Whether rents paid by a taxable REIT subsidiary are substantially comparable to rents paid by other tenants is determined at the time the lease with the taxable REIT subsidiary is entered into, extended and modified, if such modification increases the rents due under such lease. Notwithstanding the foregoing, however, if a lease with a “controlled taxable REIT subsidiary” is modified and such modification results in an increase in the rents payable by such taxable REIT subsidiary, any such increase will not qualify as “rents from real property.” For purposes of this rule, a “controlled taxable REIT subsidiary” is a taxable REIT subsidiary in which AMB owns stock possessing more than 50% of the voting power or more than 50% of the total value; |
294
• | rent attributable to personal property leased in connection with a lease of real property must not be greater than 15% of the total rent received under the lease. If this requirement is not met, then the portion of the rent attributable to personal property will not qualify as “rents from real property;” and |
• | AMB generally must not operate or manage its property or furnish or render services to its tenants, subject to a 1%de minimisexception, other than customary services through an independent contractor from whom AMB derives no revenue. AMB may, however, directly perform certain services that are “usually or customarily rendered” in connection with the rental of space for occupancy only and are not otherwise considered “rendered to the occupant” of the property. Examples of such services include the provision of light, heat, or other utilities, trash removal and general maintenance of common areas. In addition, AMB may employ a taxable REIT subsidiary, which may be wholly or partially owned by AMB, to provide both customary and non- customary services to the tenants of AMB without causing the rent AMB received from those tenants to fail to qualify as “rents from real property.” Any amounts AMB receives from a taxable REIT subsidiary with respect to its provision of non-customary services will, however, be nonqualifying income under the 75% gross income test and, except to the extent received through the payment of dividends, the 95% gross income test. |
295
• | following the identification by AMB of the failure to meet the 75% or 95% gross income tests for any taxable year, AMB files a schedule with the IRS setting forth each item of AMB’s gross income for purposes of the 75% or 95% gross income tests for such taxable year in accordance with Treasury Regulations to be issued; and |
• | the failure of AMB to meet these tests was due to reasonable cause and not due to willful neglect. |
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297
• | 90% of AMB’s “REIT taxable income”; and |
• | 90% of AMB’s after tax net income, if any, from foreclosure property; minus |
• | the excess of the sum of certain items of AMB’s non-cash income over 5% of “REIT taxable income” as described below. |
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299
300
301
302
• | include its proportionate share of AMB’s undistributed long-term capital gains in computing its long-term capital gains in its return for its taxable year in which the last day of AMB’s taxable year falls; |
• | be deemed to have paid the capital gains tax imposed on AMB on the designated amounts included in the U.S. holder’s long-term capital gains; |
• | receive a credit or refund for the amount of tax deemed paid by it; |
• | increase the adjusted basis of its stock by the difference between the amount of includable gains and the tax deemed to have been paid by it; and |
• | in the case of a U.S. holder of AMB common stock that is a corporation, appropriately adjust its earnings and profits for the retained capital gains as required by Treasury Regulations to be prescribed by the IRS. |
303
304
• | a lower treaty rate applies and the non-U.S. holder files with AMB an IRS Form W-8BEN evidencing eligibility for that reduced treaty rate; or |
• | the non-U.S. holder files an IRS Form W-8ECI with AMB claiming that the distribution is income effectively connected with the non-U.S. holder’s U.S. trade or business. |
305
• | the ownership of AMB common stock is treated as effectively connected with the non-U.S. holder’s U.S. trade or business, in which case the non-U.S. holder will be subject to the same treatment as U.S. holders of AMB common stock with respect to such gain, except that a non-U.S. holder that is a foreign corporation may also be subject to the 30% branch profits tax (or such lower rate as may be specified by an applicable income tax treaty), as discussed above; or |
• | the non-U.S. holder is a nonresident alien individual who is present in the United States for 183 days or more during the taxable year and certain other conditions are met, in which case the nonresident alien individual will be subject to a 30% tax on the individual’s capital gains. |
306
• | AMB common stock is “regularly traded,” as defined by applicable Treasury Regulations, on an established securities market such as the NYSE; and |
• | such non-U.S. holder owned, actually and constructively, 5% or less of the outstanding AMB common stock throughout the five-year period ending on the date of the sale or exchange. |
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308
309
F-4 | ||||
F-5 | ||||
F-6 |
F-1
F-2
(CONTINUED)
ProLogis shares and limited partnership units outstanding at December 31, 2010 (assumed to be 60% of total shares of the combined company) | 570.8 | |||
Total shares of the combined company (for accounting purposes) | 951.4 | |||
Number of AMB shares to be issued (assumed to be 40% of total shares of the combined company) | 380.6 | |||
Multiplied by price of ProLogis common shares on April 25, 2011* | $ | 16.28 | ||
Estimated aggregate consideration* | $ | 6,195.5 | ||
* | As ProLogis is the accounting acquirer, the calculation of the purchase price for accounting purposes is based on ProLogis shares. However, under the terms of the Merger Agreement, ProLogis shareholders will receive 0.4464 of a newly issued share of AMB common stock for each ProLogis common share that they own. This will result in approximately 424.2 million common shares of the combined company outstanding at the time of the Merger. | |
The estimated aggregate consideration has been determined based on the closing price of ProLogis’ common shares on April 25, 2011 of $16.28. An increase or decrease in share price of $1.00 results in an increase or decrease to the total merger consideration of $381 million. Pursuant to business combination accounting rules, the final aggregate consideration will be based on the price of ProLogis’ common shares as of the closing date and, therefore, will be different from the amount shown above. | ||
The above estimated aggregate consideration does not include an estimate for the fair value of the precombination portion of AMB’s share-based compensation awards, as this amount is not expected to be material to the total aggregate consideration. In addition, AMB and ProLogis have not included an adjustment to the pro forma statement of operations to reflect the change in compensation expense as a result of the estimated fair value of AMB’s share-based compensation awards attributable to the postcombination period as the impact is not expected to be material. |
F-3
December 31, 2010
(In thousands)
AMB | ProLogis, | |||||||||||||||||||
ProLogis | AMB | Pro Forma | Historical, | Inc. | ||||||||||||||||
Historical | Historical(A) | Adjustments | as Adjusted | Pro Forma | ||||||||||||||||
ASSETS | ||||||||||||||||||||
Investments in real estate properties | $ | 12,879,641 | $ | 6,906,176 | $ | 1,026,990 | (B) | $ | 7,933,166 | $ | 20,812,807 | |||||||||
Less accumulated depreciation | 1,595,678 | 1,268,093 | (1,268,093 | )(C) | — | 1,595,678 | ||||||||||||||
Net investment in properties | 11,283,963 | 5,638,083 | 2,295,083 | 7,933,166 | 19,217,129 | |||||||||||||||
Investments in and advances to unconsolidated investees | 2,024,661 | 907,027 | 452,779 | (D) | 1,359,806 | 3,384,467 | ||||||||||||||
Notes receivable backed by real estate | 302,144 | — | — | — | 302,144 | |||||||||||||||
Assets held for sale | 574,791 | 242,098 | 21,792 | (E) | 263,890 | 838,681 | ||||||||||||||
Net investments in real estate | 14,185,559 | 6,787,208 | 2,769,654 | 9,556,862 | 23,742,421 | |||||||||||||||
Cash and cash equivalents | 37,634 | 198,424 | — | 198,424 | 236,058 | |||||||||||||||
Restricted cash | 27,081 | 29,991 | — | 29,991 | 57,072 | |||||||||||||||
Accounts receivable and other assets | 619,633 | 314,963 | 170,718 | (F) | 485,681 | 1,105,314 | ||||||||||||||
Goodwill | 32,760 | 42,309 | 364,887 | (G) | 407,196 | 439,956 | ||||||||||||||
Total assets | $ | 14,902,667 | $ | 7,372,895 | $ | 3,305,259 | $ | 10,678,154 | $ | 25,580,821 | ||||||||||
LIABILITIES AND EQUITY | ||||||||||||||||||||
Liabilities: | ||||||||||||||||||||
Debt | $ | 6,506,029 | $ | 3,331,299 | $ | 68,681 | (H) | $ | 3,399,980 | $ | 9,906,009 | |||||||||
Accounts payable, accrued expenses and other liabilities | 856,534 | 339,474 | 152,864 | (I) | 492,338 | 1,348,872 | ||||||||||||||
Liabilities related to assets held for sale | 19,749 | — | — | — | 19,749 | |||||||||||||||
Total liabilities | 7,382,312 | 3,670,773 | 221,545 | 3,892,318 | 11,274,630 | |||||||||||||||
Equity: | ||||||||||||||||||||
Shareholders’ equity: | ||||||||||||||||||||
Preferred shares | 350,000 | 223,412 | 5,612 | (J) | 229,024 | 579,024 | ||||||||||||||
Common shares | 5,701 | 1,684 | (3,149 | )(K) | (1,465 | ) | 4,236 | |||||||||||||
Additional paid-in capital | 9,668,404 | 3,071,134 | 2,822,431 | (K) | 5,893,565 | 15,561,969 | ||||||||||||||
Accumulated other comprehensive income (loss) | (3,160 | ) | 42,188 | (42,188 | )(K) | — | (3,160 | ) | ||||||||||||
Distributions in excess of net earnings | (2,515,722 | ) | (17,695 | ) | 17,695 | (K) | — | (2,515,722 | ) | |||||||||||
Total shareholders�� equity | 7,505,223 | 3,320,723 | 2,800,401 | 6,121,124 | (1) | 13,626,347 | ||||||||||||||
Noncontrolling interests | 15,132 | 325,590 | 264,776 | (L) | 590,366 | 605,498 | ||||||||||||||
Limited partnership unitholders | — | 55,809 | 18,537 | (L) | 74,346 | (1) | 74,346 | |||||||||||||
Total equity | 7,520,355 | 3,702,122 | 3,083,714 | 6,785,836 | 14,306,191 | |||||||||||||||
Total liabilities and equity | $ | 14,902,667 | $ | 7,372,895 | $ | 3,305,259 | $ | 10,678,154 | $ | 25,580,821 | ||||||||||
F-4
For the year ended December 31, 2010
(In thousands, except per share data)
AMB | ||||||||||||||||||||
ProLogis | AMB | Pro Forma | Historical, | ProLogis, Inc. | ||||||||||||||||
Historical | Historical(A) | Adjustments | as Adjusted | Pro Forma | ||||||||||||||||
Revenues: | ||||||||||||||||||||
Rental income | $ | 771,308 | $ | 602,640 | $ | 1,832 | (M) | $ | 604,472 | $ | 1,375,780 | |||||||||
Property management and other fees and incentives | 120,326 | 30,860 | (8,455 | )(N) | 22,405 | 142,731 | ||||||||||||||
Development management and other income | 17,521 | — | — | — | 17,521 | |||||||||||||||
Total revenues | 909,155 | 633,500 | (6,623 | ) | 626,877 | 1,536,032 | ||||||||||||||
Expenses: | ||||||||||||||||||||
Rental expenses | 223,924 | 188,710 | — | (O) | 188,710 | 412,634 | ||||||||||||||
Investment management expenses | 40,659 | 12,074 | — | (O) | 12,074 | 52,733 | ||||||||||||||
General and administrative | 165,981 | 114,390 | — | (O) | 114,390 | 280,371 | ||||||||||||||
Impairment of real estate properties | 736,612 | — | — | — | 736,612 | |||||||||||||||
Depreciation and amortization | 319,602 | 196,636 | 7,691 | (P) | 204,327 | 523,929 | ||||||||||||||
Restructuring charges | — | 4,874 | — | 4,874 | 4,874 | |||||||||||||||
Other expenses | 16,355 | 3,197 | — | 3,197 | 19,552 | |||||||||||||||
Total expenses | 1,503,133 | 519,881 | 7,691 | 527,572 | 2,030,705 | |||||||||||||||
Operating income (loss) | (593,978 | ) | 113,619 | (14,314 | ) | 99,305 | (494,673 | ) | ||||||||||||
Other income (expense): | ||||||||||||||||||||
Earnings (loss) from unconsolidated investees, net | 23,678 | 17,372 | (13,470 | )(Q) | 3,902 | 27,580 | ||||||||||||||
Interest income | 5,022 | 1,390 | — | 1,390 | 6,412 | |||||||||||||||
Interest expense | (461,166 | ) | (130,338 | ) | 25,002 | (R) | (105,336 | ) | (566,502 | ) | ||||||||||
Impairment of goodwill and other assets | (412,745 | ) | — | — | — | (412,745 | ) | |||||||||||||
Other income (expense), net | 10,825 | (1,891 | ) | — | (1,891 | ) | 8,934 | |||||||||||||
Net gains on dispositions of investments in real estate | 28,488 | 6,739 | — | 6,739 | 35,227 | |||||||||||||||
Foreign currency exchange gains (losses), net | (11,081 | ) | 4,044 | — | 4,044 | (7,037 | ) | |||||||||||||
Gain (loss) on early extinguishment of debt, net | (201,486 | ) | (2,892 | ) | — | (2,892 | ) | (204,378 | ) | |||||||||||
Total other income (expense) | (1,018,465 | ) | (105,576 | ) | 11,532 | (94,044 | ) | (1,112,509 | ) | |||||||||||
Earnings (loss) before income taxes | (1,612,443 | ) | 8,043 | (2,782 | ) | 5,261 | (1,607,182 | ) | ||||||||||||
Current income tax expense (benefit) | 21,724 | (2,928 | ) | — | (2,928 | ) | 18,796 | |||||||||||||
Deferred income tax expense (benefit) | (52,223 | ) | 1,619 | — | 1,619 | (50,604 | ) | |||||||||||||
Total income taxes | (30,499 | ) | (1,309 | ) | — | (1,309 | ) | (31,808 | ) | |||||||||||
Earnings (loss) from continuing operations | (1,581,944 | ) | 9,352 | (2,782 | )(O) | 6,570 | (1,575,374 | ) | ||||||||||||
Net earnings attributable to noncontrolling interests | (43 | ) | (6,078 | ) | 1,808 | (S) | (4,270 | ) | (4,313 | ) | ||||||||||
Earnings (loss) from continuing operations attributable to controlling interests | (1,581,987 | ) | 3,274 | (974 | ) | 2,300 | (1,579,687 | ) | ||||||||||||
Less preferred share dividends and allocation to participating securities | 25,424 | 16,269 | — | 16,269 | 41,693 | |||||||||||||||
Loss from continuing operations attributable to common shares | $ | (1,607,411 | ) | $ | (12,995 | ) | $ | (974 | )(O) | $ | (13,969 | ) | $ | (1,621,380 | ) | |||||
Weighted average common shares outstanding — Basic(T) | 491,744 | 161,988 | 416,808 | |||||||||||||||||
Weighted average common shares outstanding — Diluted(T) | 491,744 | 161,988 | 416,808 | |||||||||||||||||
Net loss from continuing operations per share attributable to common shares — Basic(T) | $ | (3.27 | ) | $ | (0.08 | ) | $ | (3.89 | ) | |||||||||||
Net loss from continuing operations per share attributable to common shares — Diluted(T) | $ | (3.27 | ) | $ | (0.08 | ) | $ | (3.89 | ) |
F-5
(1) | Basis of Preliminary Purchase Price Allocation | |
The following preliminary allocation of the AMB purchase price is based on the preliminary estimate of the fair value of the tangible and intangible assets and liabilities of AMB as of December 31, 2010. The final determination of the allocation of the purchase price will be based on the fair value of such assets and liabilities as of the actual consummation date of the Merger and will be completed after the Merger is consummated. Such final determination of the purchase price may be significantly different from the preliminary estimates used in the pro forma financial statements. | ||
The estimated purchase price of AMB of $6.2 billion (as calculated in the manner described above) is allocated to the assets and liabilities to be assumed based on the following preliminary basis as of December 31, 2010 (dollar amounts in thousands): |
Investments in properties | $ | 7,933,166 | ||||
Investments in and advances to unconsolidated investees | 1,359,806 | |||||
Assets held for sale | 263,890 | |||||
Cash, accounts receivable and other assets | 714,096 | |||||
Goodwill | 407,196 | |||||
Debt | (3,399,980 | ) | ||||
Accounts payable, accrued expenses and other liabilities | (492,338 | ) | ||||
Noncontrolling interests | (590,366 | ) | ||||
Total estimated purchase price | $ | 6,195,470 | ||||
(2) | Pro Forma Adjustments — determined using foreign currency exchange rates at December 31, 2010, if applicable. |
(A) | The AMB Historical amounts include the reclassification of certain AMB balances to conform to the ProLogis presentation as described below: | ||
Balance Sheet: |
• | Receivables from affiliates were classified as a component ofAccounts Receivable and Other Assets. This balance has been reclassified toInvestments In and Advances to Unconsolidated Investeesto conform to ProLogis’ presentation. |
Statement of Operations: |
• | AMB includes only expenses directly related to unconsolidated investees inInvestment Management Expenses. ProLogis includes the direct expenses associated with the asset management of the property funds provided by individuals who are assigned to ProLogis’ investment management segment. ProLogis also allocates the costs of the property management function to the properties owned by ProLogis (reported inRental Expenses) and the properties included in the Investment Management Segment (included inInvestment Management Expenses) by using the square feet owned at the beginning of each quarter by the respective portfolios. AMB’s allocatedInvestment Management Expenseshave been reclassified to conform to ProLogis’ presentation. | ||
• | AMB includesInterest IncomeandForeign Currency Exchange Gains(Losses)inOther Income(Expense). ProLogis presents these balances as separate line items within the same section of the income statement. AMB’s interest income and foreign currency exchange gains have been reclassified to conform to ProLogis’ presentation. |
F-6
(CONTINUED)
• | AMB includesCurrent Income Tax ExpenseandDeferred Income Tax Expenseas a component ofGeneral and Administrative Expenses. ProLogis presents both current and deferred income tax expense as separate line items followingEarnings (Loss) Before Income Taxes. AMB’s current and deferred income tax balances have been reclassified to conform to ProLogis’ presentation. |
Balance Sheet Adjustments |
(B) | AMB’s real estate assets have been adjusted to their estimated fair value as of December 31, 2010. AMB and ProLogis estimated the fair value generally by applying a capitalization rate to estimated net operating income of a property, recent third party appraisals or other available market data. AMB and ProLogis determined the capitalization rates that were appropriate by market based on recent appraisals, transactions or other market data. The fair value also includes a portfolio premium that AMB and ProLogis estimate a third party would be willing to pay for the entire portfolio. | ||
(C) | AMB’s historical accumulated depreciation balance is eliminated. | ||
(D) | AMB’s investments in joint ventures have been adjusted to their estimated fair value as of December 31, 2010. The fair values for the investments were calculated using similar valuation methods as those used for consolidated real estate assets and debt. | ||
(E) | As of December 31, 2010, AMB had ten properties held for sale and eight properties held for contribution to unconsolidated investees that were classified as held for sale and carried at the lesser of cost or fair value less costs to sell. Adjustments to AMB’s historical balances associated with these properties reflect the real estate assets at their estimated fair value less costs to sell. | ||
(F) | Adjustments to AMB’s historical balance of accounts receivable and other assets are as follows (in thousands): |
Elimination of deferred financing costs, net | $ | (38,079 | ) | ||||
Elimination of straight-line rent receivable | (81,661 | ) | |||||
Adjustment to reflect certain corporate and other assets at fair value | (46,495 | ) | |||||
Recognition of value of acquired in place leases and leases that have above market rents | 215,215 | ||||||
Recognition of value of existing management agreements | 121,738 | ||||||
$ | 170,718 | ||||||
The fair value of in place leases was calculated based upon AMB’s and ProLogis’ best estimate of the costs to obtain tenants, primarily leasing commissions, in each of the applicable markets. An asset or liability (see note I) was recognized for acquired leases with favorable or unfavorable rents based on AMB’s and ProLogis’ best estimate of current market rents in each of the applicable markets. The recognition of value of existing management agreements was calculated by discounting future expected cash flows under these agreements. | |||
(G) | Reflects estimated goodwill from the purchase price allocation of $407.2 million and the elimination of AMB’s historical goodwill of $42.3 million. | ||
(H) | AMB’s debt balances have been adjusted to the estimated fair value as of December 31, 2010. Fair value was estimated based on contractual future cash flows discounted using borrowing spreads and market interest rates that would have been available for the issuance of debt with similar terms and remaining maturities. |
F-7
(CONTINUED)
(I) | Adjustments to AMB’s historical balance of accounts payable, accrued expenses and other liabilities are as follows (in thousands): |
Elimination of deferred revenue | $ | (4,250 | ) | |
Elimination of the liability associated with acquired in place leases that have below market lease rates | (7,440 | ) | ||
Recognition of a liability associated with acquired in place leases that have below market lease rates | 122,554 | |||
Adjustment to deferred tax liabilities as a result of certain fair market value adjustments | 42,000 | |||
$ | 152,864 | |||
(J) | Fair value adjustment to AMB’s preferred stock based on quoted market prices as of December 31, 2010. | ||
(K) | Adjustments represent the elimination of historical AMB balances and the issuance of AMB common stock in the Merger. | ||
(L) | The adjustment for non-controlling interests in consolidated joint ventures as of December 31, 2010 is based on the non-controlling interests’ share in the fair value adjustments described above. The adjustment for the limited partnership unitholders represents the allocation of the purchase price to the limited partners based on the number of units outstanding as of December 31, 2010. |
Statement of Operations Adjustments— The pro forma adjustments to the Statement of Operations assume that a purchase price allocation done as of January 1, 2010 would have been equivalent to the amounts (in United States dollars) assigned based on the purchase price allocation done as of December 31, 2010 and reflected in the Pro Forma Condensed Consolidated Balance Sheet. |
(M) | Rental income is adjusted to: (i) remove $15.4 million of AMB’s historical straight-line rent; (ii) recognize $33.1 million of total minimum lease payments provided under the acquired leases on a straightline basis over the remaining term from January 1, 2010; (iii) remove $0.9 million of AMB’s historical amortization of the asset or liability created from previous acquisitions of leases with favorable or unfavorable rents; and (iv) amortization of the asset or liability from the acquired leases with favorable or unfavorable rents relative to estimated market rents, including a reduction of $33.7 million from amortization of the asset and an increase of $18.7 million from amortization of the liability, both from January 1, 2010. We amortized the asset or liability from the acquired leases with favorable or unfavorable rents relative to estimated market rents using the remaining lease term associated with these leases, which approximated 5 years. | ||
(N) | AMB and ProLogis have adjusted management fee income to reflect the amortization of the intangible asset recognized based on the estimated fair value of the acquired management contracts. The fair value of the acquired management contracts was estimated by discounting the expected future cash flows, and the amortization is calculated based on the estimated remaining term of the related property fund or joint venture management agreement, which approximated 14 years. | ||
(O) | AMB and ProLogis expect that the Merger will create operational and general and administrative cost savings, including property management costs, investment management expenses, costs associated with corporate administration and infrastructure, including duplicative public company costs. There can be no assurance that AMB and ProLogis will be successful in achieving these anticipated cost savings. As these adjustments cannot be factually supported, AMB and ProLogis have not included any estimate of the expected future cost savings. |
F-8
(CONTINUED)
(P) | Depreciation and amortization expense is adjusted to: (i) remove $196.6 million of AMB’s historical depreciation and amortization expense; (ii) recognize real estate depreciation expense of $188.7 million as a result of the adjustment of AMB real estate assets to estimated fair value as of January 1, 2010; (iii) reflect amortization expense of $14.3 million on intangible assets recognized related to the estimated value of in-place leases as of January 1, 2010; and (iv) recognize depreciation expense of $1.3 million on corporate and other non-real estate assets based on the estimated fair value as of January 1, 2010. For purposes of this adjustment, AMB and ProLogis estimated the depreciable and non-depreciable components and used an estimated average useful life of 25 years for industrial properties, five years corporate and other assets and the remaining lease term associated with the in-place leases that approximated five years. | ||
(Q) | AMB and ProLogis adjusted AMB’s investment in unconsolidated investees to fair value. As a result, AMB and ProLogis adjusted the equity in earnings that AMB recognized from these investees to reflect the impact from the amortization of these fair value adjustments would have had on AMB’s earnings from these unconsolidated investees. | ||
(R) | As of January 1, 2010, AMB and ProLogis reflected AMB’s debt at fair value. The adjustment to interest expense includes: (i) removal of AMB’s historical interest expense of $130.3 million, including amortization of deferred financing costs; and (ii) recognition of interest expense of $105.3 million based on the estimated fair value of acquired debt as of January 1, 2010 and net of adjustment to capitalized interest. The fair value represented a weighted average interest rate of 4.25% as of December 31, 2010 (see note H). | ||
(S) | An adjustment of $1.8 million was made to reflect: (i) the adjustment to the income allocated to non-controlling interests in the joint ventures that AMB consolidates; and (ii) the adjustment related to the limited partnership unitholders ownership percentage of 1.2% in the consolidated results of AMB Property, L.P. The adjustment was calculated based on AMB’s historical ratio ofNet Earnings Attributable to Noncontrolling IntereststoEarnings (Loss) from Continuing Operationsmultiplied by the net impact of the purchase accounting adjustments to continuing operations. | ||
(T) | The calculation of basic and diluted loss from continuing operations attributable to common shares per share were as follows (in thousands, except per share data): |
Year Ended December 31, 2010 | ||||||||||||
ProLogis | AMB | ProLogis, Inc. | ||||||||||
Historical | Historical | Pro Forma | ||||||||||
Loss from continuing operations attributable to common shares | $ | (1,607,411 | ) | $ | (12,995 | ) | $ | (1,621,380 | ) | |||
Weighted average common shares outstanding — Basic and Diluted | 491,744 | 161,988 | 416,808 | (*) | ||||||||
Net loss from continuing operations per common share — Basic and Diluted | $ | (3.27 | ) | $ | (0.08 | ) | $ | (3.89 | ) | |||
(*) | The pro forma weighted average shares outstanding assumes the issuance of 254,820,000 shares of AMB common stock on January 1, 2010. The shares were calculated based on the number of ProLogis common shares outstanding as of December 31, 2010 and used the exchange ratio of 0.4464 to calculate the number of shares of AMB common stock issued in the Merger. Since AMB and ProLogis have a loss from continuing operations, both basic and diluted weighted average shares outstanding were the same. |
F-9
ALL OUTSTANDING NOTES OF PROLOGIS SPECIFIED ABOVE
AND SOLICITATION OF CONSENTS TO AMEND
THE RELATED INDENTURE
By Facsimile (Eligible Institutions Only): | By Mail or Hand: | |
(212) 430-3775 Attention: Corporate Actions For Information or Confirmation by Telephone: | 65 Broadway — Suite 723 New York, New York 10006 Attention: Corporate Actions | |
(212) 430-3774 |
65 Broadway — Suite 723
New York, New York 10006
Attn: Corporate Actions
Bank and Brokers Call Collect: (212) 430-3774
All Others, Please Call Toll-Free: (866) 470-3700
Citigroup Global Markets Inc. Liability Management Group 390 Greenwich Street, 1st Floor New York, New York 10013 Toll-Free: (800) 558-3745 | RBS Securities Inc. Liability Management Group 600 Washington Boulevard Stamford, CT 06901 Toll-Free: (877) 297-9832 |
INFORMATION NOT REQUIRED IN PROSPECTUS
1
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AMB PROPERTY CORPORATION | ||||||
By: | /s/ Hamid R. Moghadam | |||||
Title: CEO and Chairman of the Board | ||||||
AMB PROPERTY, L.P. | ||||||
By: AMB PROPERTY CORPORATION | ||||||
Its: General Partner | ||||||
By: | /s/ Hamid R. Moghadam | |||||
Title: CEO and Chairman of the Board |
Signature | Title | Date | ||
/s/ Hamid R. Moghadam | Chairman of the Board, Chief Executive Officer and Director (Principal Executive Officer) | May 3, 2011 | ||
/s/ Thomas S. Olinger | Chief Financial Officer (Duly Authorized Officer and Principal Financial Officer) | May 3, 2011 |
Signature | Title | Date | ||
/s/ Nina A. Tran | Chief Accounting Officer and Senior Vice President (Duly Authorized Officer and Principal Accounting Officer) | May 3, 2011 | ||
/s/ T. Robert Burke | Director | May 3, 2011 | ||
/s/ David A. Cole | Director | May 3, 2011 | ||
/s/ Lydia H. Kennard | Director | May 3, 2011 | ||
/s/ J. Michael Losh | Director | May 3, 2011 | ||
/s/ Frederick W. Reid | Director | May 3, 2011 | ||
/s/ Jeffrey L. Skelton | Director | May 3, 2011 | ||
/s/ Thomas W. Tusher | Director | May 3, 2011 | ||
/s/ Carl B. Webb | Director | May 3, 2011 |
Exhibit | ||
Number | Description | |
1.1 | Dealer Manager Agreement, dated as of May 3, 2011, by and among AMB Property Corporation, AMB Property, L.P., ProLogis, Citigroup Global Markets Inc. and RBS Securities Inc. | |
2.1 | Agreement and Plan of Merger by and among AMB Property Corporation, AMB Property, L.P., ProLogis, Upper Pumpkin LLC, New Pumpkin Inc. and Pumpkin LLC dated January 30, 2011 and amended as of March 9, 2011 (incorporated by reference to Exhibit 2.1 to AMB Property Corporation’s Registration Statement on Form S-4 (No. 333-172741)). | |
3.1 | Articles of Incorporation of AMB Property Corporation (incorporated by reference to Exhibit 3.1 to AMB Property Corporation’s Registration Statement on Form S-11 (No. 333-35915)). | |
3.2 | Articles Supplementary establishing and fixing the rights and preferences of the 6 1/2% Series L Cumulative Redeemable Preferred Stock (incorporated by reference to Exhibit 3.16 to AMB Property Corporation’s Form 8-A filed on June 20, 2003). | |
3.3 | Articles Supplementary establishing and fixing the rights and preferences of the 6 3/4% Series M Cumulative Redeemable Preferred Stock (incorporated by reference to Exhibit 3.17 to AMB Property Corporation’s Form 8-A filed on November 12, 2003). | |
3.4 | Articles Supplementary establishing and fixing the rights and preferences of the 7.00% Series O Cumulative Redeemable Preferred Stock (incorporated by reference to Exhibit 3.19 to AMB Property Corporation’s Registration Statement on Form 8-A filed on December 12, 2005). | |
3.5 | Articles Supplementary establishing and fixing the rights and preferences of the 6.85% Series P Cumulative Redeemable Preferred Stock (incorporated by reference to Exhibit 3.18 to AMB Property Corporation’s Registration Statement on Form 8-A filed on August 24, 2006). | |
3.6 | Articles Supplementary Reestablishing and Refixing the Rights and Preferences of the 7.75% Series D Cumulative Redeemable Preferred Stock as 7.18% Series D Cumulative Redeemable Preferred Stock (incorporated by reference to Exhibit 3.1 of AMB Property Corporation’s Current Report on Form 8-K filed on February 22, 2007). | |
3.7 | Articles Supplementary Redesignating and Reclassifying 510,000 Shares of 8.00% Series I Cumulative Redeemable Preferred Stock as Preferred Stock (incorporated by reference to Exhibit 3.1 to AMB Property Corporation’s Current Report on Form 8-K filed on May 16, 2007). | |
3.8 | Articles Supplementary Redesignating and Reclassifying 800,000 Shares of 7.95% Series J Cumulative Redeemable Preferred Stock as Preferred Stock (incorporated by reference to Exhibit 3.2 to AMB Property Corporation’s Current Report on Form 8-K filed on May 16, 2007). | |
3.9 | Articles Supplementary Redesignating and Reclassifying 800,000 Shares of 7.95% Series K Cumulative Redeemable Preferred Stock as Preferred Stock (incorporated by reference to Exhibit 3.3 to AMB Property Corporation’s Current Report on Form 8-K filed on May 16, 2007). | |
3.10 | Sixth Amended and Restated Bylaws of AMB Property Corporation (incorporated by reference to Exhibit 3.1 to AMB Property Corporation’s Current Report on Form 8-K filed on September 25, 2008). | |
3.11 | Articles Supplementary Redesignating and Reclassifying 1,595,337 Shares of 7.18% Series D Cumulative Redeemable Preferred Stock as Preferred Stock (incorporated by reference to Exhibit 3.1 to AMB Property Corporation’s Current Report on Form 8-K filed on December 22, 2009). | |
3.12 | Form of Articles of Amendment to Articles of Incorporation of ProLogis, Inc. (incorporated by reference to Exhibit 3.12 to AMB Property Corporation’s Registration Statement on Form S-4 (No. 333-172741)). | |
3.13 | Form of Articles Supplementary establishing and fixing the rights and preferences of the 8.54% Series Q Cumulative Redeemable Preferred Stock (incorporated by reference to Exhibit 3.13 to AMB Property Corporation’s Registration Statement on Form S-4 (No. 333-172741)). | |
3.14 | Form of Articles Supplementary establishing and fixing the rights and preferences of the 6.75% Series R Cumulative Redeemable Preferred Stock (incorporated by reference to Exhibit 3.14 to AMB Property Corporation’s Registration Statement on Form S-4 (No. 333-172741)). | |
3.15 | Form of Articles Supplementary establishing and fixing the rights and preferences of the 6.75% Series S Cumulative Redeemable Preferred Stock (incorporated by reference to Exhibit 3.15 to AMB Property Corporation’s Registration Statement on Form S-4 (No. 333-172741)). | |
3.16 | Form of Seventh Amended and Restated Bylaws of ProLogis, Inc. (incorporated by reference to Exhibit 3.16 to AMB Property Corporation’s Registration Statement on Form S-4 (No. 333-172741)). |
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Exhibit | ||
Number | Description | |
3.17 | Twelfth Amended and Restated Agreement of Limited Partnership of AMB Property, L.P. dated as of August 25, 2006, (incorporated by reference to Exhibit 3.1 of AMB Property, L.P.’s Current Report on Form 8-K filed on August 30, 2006). | |
4.1 | Form of Certificate for Common Stock of the combined company (incorporated by reference to Exhibit 4.1 to AMB Property Corporation’s Registration Statement on Form S-4 (No. 333-172741)). | |
4.2 | Form of Certificate for 6 1/2% Series L Cumulative Redeemable Preferred Stock of AMB Property Corporation (incorporated by reference to Exhibit 4.3 to AMB Property Corporation’s Form 8-A filed on June 20, 2003). | |
4.3 | Form of Certificate for 6 3/4% Series M Cumulative Redeemable Preferred Stock of AMB Property Corporation (incorporated by reference to Exhibit 4.3 to AMB Property Corporation’s Form 8-A filed on November 12, 2003). | |
4.4 | Form of Certificate for 7.00% Series O Cumulative Redeemable Preferred Stock (incorporated by reference to Exhibit 4.4 to AMB Property Corporation’s Form 8-A filed December 12, 2005). | |
4.5 | Form of Certificate for 6.85% Series P Cumulative Redeemable Preferred Stock (incorporated by reference to Exhibit 4.5 to AMB Property Corporation’s Form 8-A filed on August 24, 2006). | |
4.6 | Form of Certificate for the Series Q Cumulative Redeemable Preferred Stock (incorporated by reference to Exhibit 4.2 to AMB Property Corporation’s Registration Statement on Form S-4 (No. 333-172741)). | |
4.7 | Form of Certificate for the Series R Cumulative Redeemable Preferred Stock (incorporated by reference to Exhibit 4.3 to AMB Property Corporation’s Registration Statement on Form S-4 (No. 333-172741)). | |
4.8 | Form of Certificate for the Series S Cumulative Redeemable Preferred Stock (incorporated by reference to Exhibit 4.4 to AMB Property Corporation’s Registration Statement on Form S-4 (No. 333-172741)). | |
4.9 | Form of Indenture, by and among ProLogis, L.P., as issuer, ProLogis, Inc., as guarantor, and U.S. Bank National Association, as trustee. | |
4.10 | Form of First Supplemental Indenture in respect of the ProLogis, L.P. 2.25% Exchangeable Senior Notes due 2037, by and among ProLogis, L.P., as issuer, ProLogis, Inc., as guarantor, and U.S. Bank National Association, as trustee. | |
4.11 | Form of Second Supplemental Indenture in respect of the ProLogis, L.P. 1.875% Exchangeable Senior Notes due 2037, by and among ProLogis, L.P., as issuer, ProLogis, Inc., as guarantor, and U.S. Bank National Association, as trustee. | |
4.12 | Form of Third Supplemental Indenture in respect of the ProLogis, L.P. 2.625% Exchangeable Senior Notes due 2038, by and among ProLogis, L.P., as issuer, ProLogis, Inc., as guarantor, and U.S. Bank National Association, as trustee. | |
4.13 | Form of Fourth Supplemental Indenture in respect of the ProLogis, L.P. 3.25% Exchangeable Senior Notes due 2015, by and among ProLogis, L.P., as issuer, ProLogis, Inc., as guarantor, and U.S. Bank National Association, as trustee. | |
4.14 | Indenture, dated as of March 1, 1995, between ProLogis and State Street Bank and Trust Company, as Trustee (incorporated by reference to Exhibit 4.9 to ProLogis’ Form 10-K for the year ended December 31, 1994). | |
4.15 | First Supplemental Indenture, dated as of February 9, 2005, by and between ProLogis and U.S. Bank National Association, as Trustee (as successor in interest to State Street Bank and Trust Company) (incorporated by reference to exhibit 4.1 to ProLogis’ Form 8-K dated February 9, 2005). | |
4.16 | Second Supplemental Indenture dated as of November 2, 2005 by and between ProLogis and U.S. Bank National Association, as Trustee (as successor in interest to State Street Bank and Trust Company) (incorporated by reference to Exhibit 4.1 to ProLogis’ Form 8-K filed on November 4, 2005). | |
4.17 | Third Supplemental Indenture dated as of November 2, 2005 by and between ProLogis and U.S. Bank National Association, as Trustee (as successor in interest to State Street Bank and Trust Company) (incorporated by reference to Exhibit 4.2 to ProLogis’ Form 8-K filed on November 4, 2005). | |
4.18 | Fourth Supplemental Indenture dated as of March 26, 2007 by and between ProLogis and U.S. Bank National Association, as Trustee (as successor in interest to State Street Bank and Trust Company) (incorporated by reference to exhibit 4.1 to ProLogis’ form 8-K filed on March 26, 2007). | |
4.19 | Fifth Supplemental Indenture dated as of November 8, 2007 by and between ProLogis and U.S. Bank National Association, as Trustee (as successor in interest to State Street Bank and Trust Company) (incorporated by reference to exhibit 4.1 to ProLogis’ form 8-K filed on November 7, 2007). |
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Exhibit | ||
Number | Description | |
4.20 | Sixth Supplemental Indenture dated as of May 7, 2008 by and between ProLogis and U.S. Bank National Association, as Trustee (as successor in interest to State Street Bank and Trust Company) (incorporated by reference to exhibit 4.1 to ProLogis’ form 10-Q for the quarter ended June 30, 2008). | |
4.21 | Seventh Supplemental Indenture dated as of May 7, 2008 by and between ProLogis and U.S. Bank National Association, as Trustee (as successor in interest to State Street Bank and Trust Company) (incorporated by reference to exhibit 4.2 to ProLogis’ form 10-Q for the quarter ended June 30, 2008). | |
4.22 | Eighth Supplemental Indenture dated as of August 14, 2009 by and between ProLogis and U.S. Bank National Association, as Trustee (as successor in interest to State Street Bank and Trust Company) (incorporated by reference to exhibit 4.1 to ProLogis’ form 8-K filed on August 14, 2009). | |
4.23 | Ninth Supplemental Indenture dated as of October 1, 2009 by and between ProLogis and U.S. Bank National Association, as Trustee (as successor in interest to State Street Bank and Trust Company) (incorporated by reference to exhibit 4.1 to ProLogis’ form 8-K filed on October 2, 2009). | |
4.24 | Tenth Supplemental Indenture dated as of March 16, 2010 by and between ProLogis and U.S. Bank National Association, as Trustee (as successor in interest to State Street Bank and Trust Company) (incorporated by reference to exhibit 4.1 to ProLogis’ form 8-K filed on March 16, 2010). | |
4.25 | Form of Eleventh Supplemental Indenture, by and between ProLogis and U.S. Bank National Association, as Trustee (as successor in interest to State Street Bank and Trust Company). | |
4.26 | Form of Twelfth Supplemental Indenture, by and between ProLogis and U.S. Bank National Association, as Trustee (as successor in interest to State Street Bank and Trust Company). | |
4.27 | Form of Thirteenth Supplemental Indenture, by and between ProLogis and U.S. Bank National Association, as Trustee (as successor in interest to State Street Bank and Trust Company). | |
4.28 | 9.34% Note due March 1, 2015 (incorporated by reference to exhibit 4.8 to ProLogis’ Form 10-K for the year ended December 31, 1994). | |
4.29 | 8.65% Note due May 15, 2016 (incorporated by reference to exhibit 4.3 to ProLogis’ Form 10-Q for the quarter ended June 30, 1996). | |
4.30 | 7.81% Medium-Term Notes, Series A, due February 1, 2015 (incorporated by reference to exhibit 4.17 to ProLogis’ Form 10-K for the year ended December 31, 1996). | |
4.31 | 7.625% Note due July 1, 2017 (incorporated by reference to exhibit 4 to ProLogis’ Form 8-K dated July 11, 1997). | |
4.32 | Form of 5.50% Promissory Note due March 1, 2013 (incorporated by reference to exhibit 4.26 to ProLogis’ Form 10-K for the year ended December 31, 2002). | |
4.33 | Form of 2.25% Convertible Notes due 2037 (incorporated by reference to exhibit 10.3 to ProLogis’ 10-Q for the quarter ended March 31, 2007). | |
4.34 | 7.625% Note due August 15, 2014 (incorporated by reference to exhibit 4.3 to ProLogis’ Form 8-K filed on August 14, 2009). | |
4.35 | 7.375% Note due October 30, 2019 (incorporated by reference to exhibit 4.2 to ProLogis’ Form 8-K filed on October 30, 2009). | |
4.36 | 7.375% Note due October 30, 2019 (incorporated by reference to exhibit 4.3 to ProLogis’ Form 8-K filed on October 30, 2009). | |
4.37 | 3.25% Convertible Senior Note due March 15, 2015 (incorporated by reference to exhibit 4.3 to ProLogis’ Form 8-K filed March 12, 2010). | |
4.38 | 6.250% Note due March 15, 2017 (incorporated by reference to exhibit 4.4 to ProLogis’ Form 8-K filed March 12, 2010). | |
4.39 | 6.875% Note due March 15, 2020 in the principal amount of $300 million (incorporated by reference to exhibit 4.5 to ProLogis’ Form 8-K filed March 12, 2010). | |
4.40 | 6.875% Note due March 15, 2020 in the principal amount of $500 million (incorporated by reference to exhibit 4.6 to ProLogis’ Form 8-K filed March 12, 2010). | |
4.41 | Form of Global Note Representing ProLogis, L.P. 5.500% Notes due April 1, 2012 and Related Notational Guarantee. | |
4.42 | Form of Global Note Representing ProLogis, L.P. 5.500% Notes due March 1, 2013 and Related Notational Guarantee. | |
4.43 | Form of Global Note Representing ProLogis, L.P. 7.625% Notes due August 15, 2014 and Related Notational Guarantee. | |
4.44 | Form of Global Note Representing ProLogis, L.P. 7.810% Notes due February 1, 2015 and Related Notational Guarantee. |
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Exhibit | ||
Number | Description | |
4.45 | Form of Global Note Representing ProLogis, L.P. 9.340% Notes due March 1, 2015 and Related Notational Guarantee. | |
4.46 | Form of Global Note Representing ProLogis, L.P. 5.625% Notes due November 15, 2015 and Related Notational Guarantee. | |
4.47 | Form of Global Note Representing ProLogis, L.P. 5.750% Notes due April 1, 2016 and Related Notational Guarantee. | |
4.48 | Form of Global Note Representing ProLogis, L.P. 8.650% Notes due May 15, 2016 and Related Notational Guarantee. | |
4.49 | Form of Global Note Representing ProLogis, L.P. 5.625% Notes due November 15, 2016 and Related Notational Guarantee. | |
4.50 | Form of Global Note Representing ProLogis, L.P. 6.250% Notes due March 15, 2017 and Related Notational Guarantee. | |
4.51 | Form of Global Note Representing ProLogis, L.P. 7.625% Notes due July 1, 2017 and Related Notational Guarantee. | |
4.52 | Form of Global Note Representing ProLogis, L.P. 6.625% Notes due May 15, 2018 and Related Notational Guarantee. | |
4.53 | Form of Global Note Representing ProLogis, L.P. 7.375% Notes due October 30, 2019 and Related Notational Guarantee. | |
4.54 | Form of Global Note Representing ProLogis, L.P. 6.875% Notes due March 15, 2020 and Related Notational Guarantee. | |
4.55 | Form of Global Note Representing ProLogis, L.P. 2.250% Exchangeable Senior Notes due 2037 and Related Notational Guarantee (included in Exhibit 4.10 hereto). | |
4.56 | Form of Global Note Representing ProLogis, L.P. 1.875% Exchangeable Senior Notes due 2037 and Related Notational Guarantee (included in Exhibit 4.11 hereto). | |
4.57 | Form of Global Note Representing ProLogis, L.P. 2.625% Exchangeable Senior Notes due 2038 and Related Notational Guarantee (included in Exhibit 4.12 hereto). | |
4.58 | Form of Global Note Representing ProLogis, L.P. 3.250% Exchangeable Senior Notes due 2015 and Related Notational Guarantee (included in Exhibit 4.13 hereto). | |
4.59 | Form of Officer’s Certificate related to the ProLogis, L.P. 5.500% Notes due April 1, 2012. | |
4.60 | Form of Officer’s Certificate related to the ProLogis, L.P. 5.500% Notes due March 1, 2013. | |
4.61 | Form of Officer’s Certificate related to the ProLogis, L.P. 7.625% Notes due August 15, 2014. | |
4.62 | Form of Officer’s Certificate related to the ProLogis, L.P. 7.810% Notes due February 1, 2015. | |
4.63 | Form of Officer’s Certificate related to the ProLogis, L.P. 9.340% Notes due March 1, 2015. | |
4.64 | Form of Officer’s Certificate related to the ProLogis, L.P. 5.625% Notes due November 15, 2015. | |
4.65 | Form of Officer’s Certificate related to the ProLogis, L.P. 5.750% Notes due April 1, 2016. | |
4.66 | Form of Officer’s Certificate related to the ProLogis, L.P. 8.650% Notes due May 15, 2016. | |
4.67 | Form of Officer’s Certificate related to the ProLogis, L.P. 5.625% Notes due November 15, 2016. | |
4.68 | Form of Officer’s Certificate related to the ProLogis, L.P. 6.250% Notes due March 15, 2017. | |
4.69 | Form of Officer’s Certificate related to the ProLogis, L.P. 7.625% Notes due July 1, 2017. | |
4.70 | Form of Officer’s Certificate related to the ProLogis, L.P. 6.625% Notes due May 15, 2018. | |
4.71 | Form of Officer’s Certificate related to the ProLogis, L.P. 7.375% Notes due October 30, 2019. | |
4.72 | Form of Officer’s Certificate related to the ProLogis, L.P. 6.875% Notes due March 15, 2020. | |
5.1 | Opinion of Ballard Spahr LLP. | |
5.2 | Opinion of Latham & Watkins. | |
8.1 | Opinion of Mayer Brown LLP regarding certain tax matters. | |
8.2 | Opinion of Latham & Watkins LLP regarding certain tax matters. | |
12.1 | Statement re: Computation of Ratio of Earnings to Fixed Charges (AMB Property Corporation). | |
12.2 | Statement re: Computation of Ratio of Earnings to Fixed Charges (AMB Property, L.P.). | |
21.1 | Subsidiaries of AMB Property Corporation (incorporated by reference to Exhibit 21.1 to AMB Property Corporation’s Report on Form 10-K for the year ended December 31, 2010). | |
21.2 | Subsidiaries of AMB Property, L.P. (incorporated by reference to Exhibit 21.2 to AMB Property Corporation’s Report on Form 10-K for the year ended December 31, 2010). | |
21.3 | Subsidiaries of ProLogis (incorporated by reference to Exhibit 21.1 to ProLogis’ Form 10-K for the year ended December 31, 2010). |
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Exhibit | ||
Number | Description | |
23.1 | Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm. | |
23.2 | Consent of KPMG LLP, independent registered public accounting firm. | |
23.3 | Consent of Ballard Spahr LLP (included as part of its opinion filed as Exhibit 5.1 hereto and incorporated herein by reference). | |
23.4 | Consent of Latham & Watkins LLP (included as part of its opinion filed as Exhibit 5.2 hereto and incorporated herein by reference). | |
23.5 | Consent of Mayer Brown LLP (included as part of its opinion filed as Exhibit 8.1 hereto and incorporated herein by reference). | |
23.6 | Consent of Latham & Watkins LLP (included as part of its opinion filed as Exhibit 8.2 hereto and incorporated herein by reference). | |
24.1 | Powers of Attorney (contained on the signature pages of this Registration Statement). | |
25.1 | Statement of Eligibility and Qualification of U.S. Bank National Association with respect to the Indenture, by and among ProLogis, L.P., as issuer, ProLogis, Inc., as guarantor, and U.S. Bank National Association, as trustee. | |
99.1 | Form of Letter of Transmittal and Consent. |
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