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AMB PROPERTY, L.P.
$400,000,000 MEDIUM TERM NOTES
DUE 9 MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
AUGUST 15, 2000
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August 15, 2000
Morgan Stanley & Co. Incorporated
Banc of America Securities LLC
Banc One Capital Markets, Inc.
Chase Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
J.P. Morgan Securities Inc.
Salomon Smith Barney Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
AMB Property, L.P., a Delaware limited partnership (the "OPERATING
PARTNERSHIP"), confirms its agreement with each of you with respect to the issue
and sale from time to time by the Operating Partnership of up to $400,000,000
(or the equivalent thereof in one or more foreign currencies or composite
currencies) aggregate initial public offering price of its medium-term notes due
from 9 months or more from date of issue (the "NOTES"), which amount may be
increased from time to time in accordance with the Indenture (as defined below),
and which amount is subject to decrease by the amount of any securities of any
other series of the Operating Partnership issued after the date hereof pursuant
to the Registration Statement (as defined below). The Notes will be issued
pursuant to the provisions of an Indenture and the First Supplemental Indenture,
the Second Supplemental Indenture and the Third Supplemental Indenture thereto,
each dated as of June 30, 1998, and the fourth Supplemental Indenture, dated as
of August 15, 2000 (collectively, the "INDENTURE"), and each by and among the
Operating Partnership, AMB Property Corporation, a Maryland corporation, the
sole general partner of the Operating Partnership and guarantor of the Notes
(the "GUARANTOR"), and State Street Bank and Trust Company of California, N.A.,
as Trustee (the "TRUSTEE"), and will have the maturities, interest rates,
redemption provisions, if any, and other terms as set forth in supplements to
the Basic Prospectus referred to below.
As used herein, the "COMPANY" shall include the Operating Partnership,
the Guarantor and each of the subsidiaries of the Operating Partnership or the
Guarantor which is a significant subsidiary as defined in Rule 405 of Regulation
C of the Securities Act of 1933, as amended (the "SECURITIES ACT"), as set forth
on Schedule I hereto (each, a "SUBSIDIARY," and, collectively, the
"SUBSIDIARIES").
The Operating Partnership hereby appoints Morgan Stanley & Co.
Incorporated ("MORGAN STANLEY") and Banc of America Securities LLC, Banc One
Capital Markets, Inc., Chase Securities Inc., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, J.P. Morgan Securities Inc. and Salomon Smith Barney Inc.
and each other agent set forth on Schedule II hereto (individually, an "AGENT"
and collectively, the "AGENTS") as its agents, subject to
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Section 8 and the other terms and conditions herein set forth, for the purpose
of soliciting and receiving offers to purchase Notes from the Operating
Partnership by others and, on the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth, each
Agent agrees to use reasonable best efforts to solicit and receive offers to
purchase Notes upon terms acceptable to the Operating Partnership at such times
and in such amounts as the Operating Partnership shall from time to time
specify. In addition, any Agent may also purchase Notes as principal pursuant to
the terms of a terms agreement relating to such sale (a "TERMS AGREEMENT") in
accordance with the provisions of Section 2(b) hereof. The Operating Partnership
reserves the right to sell Notes through one or more additional agents or
directly to certain investment banking firms as underwriters for resale to the
public. No commission will be payable to the Agents on any Notes sold through
other agents or directly by the Operating Partnership to underwriters. The
Operating Partnership has additionally reserved the right to sell Notes to
investors on its own behalf in those jurisdictions where it is authorized to do
so.
The Operating Partnership and the Guarantor have filed with the
Securities and Exchange Commission (the "COMMISSION") a registration statement
on Form S-3 (File No. 333- 68283-01), including a prospectus, relating to common
stock, preferred stock, depositary shares and warrants of the Guarantor and debt
securities of the Operating Partnership, including the Notes. Such registration
statement, including the exhibits thereto, as amended at the Commencement Date
(as hereinafter defined), but excluding the statement of eligibility of the
trustee on Form T-1, is hereinafter referred to as the "REGISTRATION STATEMENT."
The Operating Partnership proposes to file with the Commission from time to
time, pursuant to Rule 424 under the Securities Act, supplements to the
prospectus included in the Registration Statement that will describe certain
terms of the Notes. The prospectus in the form in which it appears in the
Registration Statement is hereinafter referred to as the "BASIC PROSPECTUS." The
term "PROSPECTUS" means the Basic Prospectus together with the prospectus
supplement dated the date hereof and the pricing supplements referred to therein
and issued from time to time (each a "PROSPECTUS SUPPLEMENT") specifically
relating to Notes, as filed with, or transmitted for filing to, the Commission
pursuant to Rule 424. As used herein, the terms "Basic Prospectus" and
"Prospectus" shall include in each case the documents, if any, incorporated by
reference therein. The terms "SUPPLEMENT," "AMENDMENT" and "AMEND" as used
herein shall include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Basic Prospectus by the
Operating Partnership or the Guarantor with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT").
1. REPRESENTATIONS AND WARRANTIES. The Operating Partnership and the
Guarantor, jointly and severally, represent and warrant to and agree with each
Agent as of the Commencement Date, as of each date on which an Agent solicits
offers to purchase Notes, as of each date on which the Operating Partnership
accepts an offer to purchase Notes (including any purchase by an Agent pursuant
to a Terms Agreement), as of each date the Operating Partnership issues and
delivers Notes and as of each date the Registration Statement or the Basic
Prospectus is amended or supplemented, as follows (it being understood that such
representations, warranties and agreements shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as amended
or supplemented to each such date):
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(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the knowledge of the Operating Partnership and the Guarantor, threatened
by the Commission.
(b) Except for statements in such documents which do not
constitute part of the Registration Statement or Prospectus pursuant to
Rule 412 of Regulation C under the Securities Act, (i) each document, if
any, filed or to be filed pursuant to the Exchange Act and incorporated
by reference in the Prospectus complied or will comply when so filed in
all material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, except for the failure to file
as exhibits to the documents incorporated by reference amendments to the
Operating Partnership's partnership agreement, which amendments have
subsequently been incorporated into the Fourth Amended and Restated
Amendment of Limited Partnership of the Operating Partnership, which was
filed with the Commission on Form 8-K on or prior to the date hereof,
(ii) each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus complied when
originally filed, comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iv)
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that (A) the representations and warranties set forth
in this paragraph 1(b) do not apply to (1) statements or omissions in
the Registration Statement or the Prospectus based upon information
relating to any Agent furnished to the Operating Partnership in writing
by such Agent expressly for use therein, which are the names of the
Agents in the first paragraph, the second sentence and last two
sentences of the third paragraph and the sixth paragraph under the
heading "Supplemental Plan of Distribution", or (2) that part of the
Registration Statement that constitutes the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended (the "TRUST
INDENTURE ACT"), of the Trustee and (B) the representations and
warranties set forth in clauses 1(b)(iii) and 1(b)(iv) above, when made
as of the Commencement Date or as of any date on which an Agent solicits
offers to purchase Notes or on which the Operating Partnership accepts
an offer to purchase Notes, shall be deemed not to cover information
concerning an offering of particular Notes to the extent such
information will be set forth in a supplement to the Basic Prospectus or
the Prospectus Supplement.
(c) The Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Maryland, and has all power and authority necessary to own, lease and
operate its properties and to conduct the businesses in which it is
engaged or proposes to engage as described in the Prospectus and to
enter into and perform its obligations under this Distribution
Agreement, the Guarantees, the Indenture and any applicable Written
Terms Agreement (as hereinafter
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defined). The Guarantor is duly qualified or registered as a foreign
corporation and is in good standing in California and is in good
standing in each other jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to
qualify or be registered or to be in good standing in such other
jurisdiction would not result in a material adverse effect on the
consolidated financial position, results of operations or business of
the Operating Partnership, the Guarantor and their subsidiaries, taken
as a whole (a "MATERIAL ADVERSE EFFECT").
(d) The Operating Partnership is a limited partnership duly
formed and existing under and by virtue of the laws of the State of
Delaware and is in good standing under the Delaware Revised Uniform
Limited Partnership Act with partnership power and authority to own,
lease and operate its properties, to conduct the business in which it is
engaged or proposes to engage as described in the Prospectus and to
enter into and perform its obligations under this Distribution
Agreement, the Notes, the Indenture, the Calculation Agency Agreement
between the Operating Partnership and the Trustee (the "CALCULATION
AGENCY AGREEMENT") and any applicable Written Terms Agreement. The
Operating Partnership is duly qualified or registered as a foreign
partnership and is in good standing in California and is in good
standing in each other jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to
qualify or be registered or to be in good standing in such other
jurisdiction would not have Material Adverse Effect. The Guarantor is
the sole general partner of the Operating Partnership and owns the
percentage interest in the Operating Partnership as set forth or
incorporated by reference in the Prospectus.
(e) Each Subsidiary has been, as the case may be, duly
incorporated or organized, is validly existing as a partnership,
corporation or limited liability company in good standing under the laws
of its respective jurisdiction of organization, has the corporate,
partnership or other power and authority to own its property and to
conduct its business as described in the Prospectus. Each Subsidiary is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a Material Adverse Effect; all of the issued shares of capital
stock or other ownership interests of each Subsidiary have been duly and
validly authorized and issued, are fully paid and non-assessable and,
except as set forth or incorporated by reference in the Prospectus, are
owned directly or indirectly by the Operating Partnership or the
Guarantor, free and clear of all liens, encumbrances, equities or
claims.
(f) Each of the joint venture partnerships or limited liability
companies listed on Schedule III hereto (the "JOINT VENTURES") has been
duly formed and is validly existing as a limited partnership or limited
liability company in good standing under the laws of its state of
organization, with power and authority to own, lease and operate its
properties and to conduct the business in which it is engaged. Each
Joint Venture is duly qualified or registered as a foreign limited
partnership or limited liability
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company to transact business in each jurisdiction in which such
qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or be registered would not have a
Material Adverse Effect. The Operating Partnership, the Guarantor or a
subsidiary of the Operating Partnership or Guarantor owns the percentage
of the partnership or other equity interest in each of the Joint
Ventures as set forth on Schedule III hereto (the "JOINT VENTURE
INTERESTS"), and each of the Joint Venture Interests is validly issued
and fully paid and free and clear of any security interest, mortgage,
pledge, lien encumbrance, claim or equity. The Operating Partnership and
the Guarantor have no other interests in joint ventures, partnerships or
limited liability companies in which unrelated third parties have
interests, other than as set forth on Schedule III hereto or the
Subsidiaries.
(g) This Distribution Agreement, the Calculation Agency Agreement
and any applicable Written Terms Agreement have been duly authorized,
executed and delivered by the Operating Partnership and the Guarantor
and constitute the valid and binding agreement of each of them,
enforceable against them in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally and general principles of
equity.
(h) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Operating Partnership and the Guarantor and is a valid and binding
agreement of each of them, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally and general
principles of equity.
(i) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the purchasers thereof, will be entitled to
the benefits of the Indenture and will be valid and binding obligations
of the Operating Partnership, enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and general principles of equity.
(j) The guarantees of the Guarantor (the "GUARANTEES") have been
duly authorized and, when executed and the Notes are authenticated in
accordance with the provisions of the Indenture, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
the Guarantor, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally and general principles of
equity.
(k) The Notes, Guarantees and the Indenture will conform in all
material respects to the respective statements relating thereto
contained in the Prospectus and will be in substantially the respective
forms filed as exhibits to the Registration Statement.
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(l) All of the issued and outstanding units of the Operating
Partnership (the "UNITS") have been duly and validly authorized and
issued and conform to the description thereof contained or incorporated
by reference in the Prospectus. The Units owned by the Guarantor are
owned directly by the Guarantor, free and clear of all liens,
encumbrances, equities or claims.
(m) The execution and delivery by the Operating Partnership and
the Guarantor of, and the performance by each of the Operating
Partnership and the Guarantor of its respective obligations under, this
Distribution Agreement, the Notes, the Guarantees, the Indenture, the
Calculation Agency Agreement and any applicable Written Terms Agreement
and the consummation of the transactions contemplated hereby and
thereby, will not (i) conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, joint venture
agreement, partnership agreement, limited liability company agreement or
any other agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the property or assets of
the Company is subject, except for such conflicts, breaches or
violations which would not, singly or in the aggregate, have a Material
Adverse Effect, (ii) result in any violation of the provisions of the
charter, by-laws, certificate of limited partnership, partnership
agreement or other organizational documents of the Operating
Partnership, the Guarantor or any Subsidiary, as the case may be, or
(iii) result in any violation of any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company, except where such noncompliance or
violation of any such statute, order, rule or regulation would not,
singly or in the aggregate, have a Material Adverse Effect. No consent,
approval, authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the execution
and delivery by the Operating Partnership and the Guarantor of, and the
performance by each of the Operating Partnership and the Guarantor of
its respective obligations under, this Distribution Agreement, the
Notes, the Guarantees, the Indenture, the Calculation Agency Agreement
and any applicable Written Terms Agreement and the consummation of the
transactions contemplated hereby and thereby, except for (A) the
registration of the Notes under the Securities Act or the rules and
regulations thereunder and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Securities
Act, Exchange Act of 1934, the Trust Indenture Act, or the rules and
regulations thereunder, and applicable state and foreign securities laws
in connection with issuance, offer and sale of the Notes or (B)
consents, approvals, authorizations, orders, filings or registrations
that will be completed on or prior to the Commencement Date or in
connection with the issuance of Notes.
(n) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened, to which the Company is a
party or to which any of the properties of the Company is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or incorporated by reference, or any
statutes, regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described,
incorporated by reference or filed as
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required, except for the failure to file as exhibits to the documents
incorporated by reference amendments to the Operating Partnership's
partnership agreement, which amendments have subsequently been
incorporated into the Fourth Amended and Restated Amendment of Limited
Partnership of the Operating Partnership, which was filed with the
Commission on Form 8-K on or prior to the date hereof.
(o) None of the Operating Partnership, the Guarantor or any
Subsidiary is, and after giving effect to the offering and sale of the
Notes and the application of the proceeds thereof as described in the
Prospectus, none will be, an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(p) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Operating Partnership, the Guarantor and their
subsidiaries, taken as a whole, from that set forth or incorporated by
reference in the Prospectus. Subsequent to the respective dates as of
which information is given in the Registration Statement and the
Prospectus, except as described in or contemplated by the Prospectus or
a document incorporated therein by reference, (i) the Company has not
incurred any liability or obligation, direct or contingent, nor entered
into any transaction not in the ordinary course of business that is
material with respect to the Operating Partnership, the Guarantor and
their subsidiaries, taken as a whole; and (ii) there has not been any
change in the capital stock or increase in the short-term debt or
long-term debt that is, in either case, material with respect to the
Operating Partnership, the Guarantor and their subsidiaries, taken as a
whole (excluding Notes issued under the medium term notes program
established by this Distribution Agreement and excluding debt resulting
from a draw down on the Operating Partnership's credit facility).
(q) Except as otherwise disclosed or incorporated by reference in
the Prospectus:
(i) as of June 30, 2000 the Company (directly or indirectly)
owned 789 buildings and centers (the "PROPERTIES"), comprised of
780 industrial buildings and 9 retail centers;
(ii) the Company (directly or indirectly) has good and
marketable fee simple title to the land underlying the Properties
and good and marketable title to the improvements thereon, other
than those improvements located on land which the Company
(directly or indirectly) acts as the ground lessor (the "TENANT
OWNED IMPROVEMENTS"), and all other assets that are required for
the effective operation of such Properties in the manner in which
they currently are operated, subject, however, to existing
mortgages on such Properties, to utility easements serving such
Properties and other immaterial easements, reciprocal easement
agreements and licenses, to liens of ad valorem taxes and other
assessments not delinquent, to zoning and similar governmental
land use matters affecting such Properties that are consistent
with the current uses of such Properties, to matters of title not
adversely affecting marketability of title to such Properties,
other immaterial statutory liens not due and payable, title
matters that
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may be material in character, amount or extent but which do not
materially detract from the value, or interfere with the use of,
the Properties or otherwise materially impair the business
operations being conducted or proposed to be conducted thereon,
service marks and trade names used in connection with such
Properties, ownership by others of certain items of equipment and
other items of personal property that are not material to the
conduct of business operations at such Properties and ownership
of improvements pursuant to certain valid, existing and
enforceable ground leases;
(iii) except as would not have a Material Adverse Effect,
with respect to the Properties held through Joint Ventures (the
"JOINT VENTURE PROPERTIES"), the Joint Ventures that currently
own such Properties have good and marketable fee simple title to
the land underlying such Properties, and good and marketable
title to the improvements thereon, other than the Tenant Owned
Improvements, and all other assets that are required for the
effective operation of such Properties in the manner in which
they currently are operated, subject to the exceptions set forth
in clause (ii) above;
(iv) all liens, charges, encumbrances, claims, or
restrictions on or affecting any of the Properties or the assets
of the Company which are required to be disclosed in the
Prospectus are disclosed or incorporated by reference therein;
(v) neither the Company nor, to the knowledge of the
Operating Partnership or the Guarantor, any tenant of any of the
Properties is in default under any of the leases pursuant to
which the Company, as lessor, leases its Property (and the
Company does not know of any event which, but for the passage of
time or the giving of notice, or both, would constitute a default
under any of such leases) other than such defaults that would not
result in a Material Adverse Effect;
(vi) any real property and buildings held under lease by the
Company are held by it under valid, subsisting and enforceable
leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such
property and buildings by the Company, except as described in or
contemplated by the Prospectus;
(vii) no person has an option or right of first refusal to
purchase all or part of any Property or any interest therein
which is material to the Operating Partnership, the Guarantor and
their subsidiaries, taken as a whole;
(viii) each of the Properties complies with all applicable
codes, laws and regulations (including, without limitation,
building and zoning codes, laws and regulations and laws relating
to access to the Properties), except if and to the extent
disclosed or incorporated by reference in the Prospectus and
except for such failures to comply that would not individually or
in the aggregate result in a Material Adverse Effect;
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(ix) neither the Operating Partnership nor the Guarantor has
knowledge of any pending or threatened condemnation proceedings,
zoning change, or other similar proceeding or action that will in
any manner affect the size of, use of, improvements on,
construction on or access to any of the Properties, except such
proceedings or actions that would not have a Material Adverse
Effect; and
(x) except as would not result in a Material Adverse Effect,
(i) the ground leases under which the Company (directly
or indirectly) or a Joint Venture holds or uses real property
relating to the Properties are in full force and effect, and
(ii) the Company and, to the knowledge of the Company,
the Joint Ventures or other named lessees under such leases
(A) are not in default in respect of any of the terms or
provisions of such leases and (B) have not received notice of
the assertion of any claim by anyone adverse to such person's
or entity's rights as lessees under such leases, or affecting
or questioning such person's or entity's right to the
continued possession or use of the Property under such leases
or of a default under such leases.
(r) Except as disclosed or incorporated by reference in the
Prospectus:
(i) each Property, including, without limitation, the
Environment (as defined below) associated with such Property, is
free of any Hazardous Substance (as defined below) in violation
of any Environmental Law (as defined below) applicable to such
Property, except for Hazardous Substances that would not result
in a Material Adverse Effect;
(ii) the Company has not caused or suffered to occur any
Release (as defined below) of any Hazardous Substance into the
Environment on, in, under or from any Property, and no condition
exists on, in, under or, to the knowledge of the Company,
adjacent to any Property that could result in the incurrence of
liabilities or any violations of any Environmental Law applicable
to such Property, give rise to the imposition of any Lien (as
defined below) under any Environmental Law, or cause or
constitute a health, safety or environmental hazard to any
property, person or entity, except in each case that would not,
singly or in the aggregate, have a Material Adverse Effect;
(iii) neither the Company nor, to the knowledge of the
Company, any tenant of any of the Properties has received any
written notice of a claim under or pursuant to any Environmental
Law applicable to a Property or under common law pertaining to
Hazardous Substances on or originating from any Property, except
for any such claims which would not, singly or in the aggregate,
have a Material Adverse Effect;
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(iv) neither the Company nor, to the knowledge of the
Company, any tenant of any of the Properties has received any
written notice from any Governmental Authority (as defined below)
claiming any violation of any Environmental Law applicable to a
Property that is uncured or unremediated as of the date hereof,
except for any such violations which would not, singly or in the
aggregate, have a Material Adverse Effect;
(v) no Property is included or, to the knowledge of the
Company, proposed for inclusion on the National Priorities List
issued pursuant to CERCLA (as defined below) by the United States
Environmental Protection Agency (the "EPA"), nor has the Company
received any written notice from the EPA or any other
Governmental Authority proposing the inclusion of any Property on
such list;
(vi) the Company and, to the knowledge of the Company, each
tenant at any of the Properties (A) has received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (B)
is in compliance with all terms and conditions of any such
permit, license or approval, except in each case where such
noncompliance, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a Material Adverse Effect; and
(vii) there are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating
activities and any potential liabilities to third parties) which
would, singly or in the aggregate, have a Material Adverse
Effect.
As used herein: "HAZARDOUS SUBSTANCE" shall include, without
limitation, any hazardous substance, hazardous waste, toxic or dangerous
substance, pollutant, solid waste or similarly designated materials,
including, without limitation, oil, petroleum or any petroleum-derived
substance or waste, asbestos or asbestos-containing materials, PCBs,
pesticides, explosives, radioactive materials, dioxins, urea
formaldehyde insulation or any constituent of any such substance,
pollutant or waste, including any such substance, pollutant or waste
identified or regulated under any Environmental Law (including, without
limitation, materials listed in the United States Department of
Transportation Optional Hazardous Material Table, 49 C.F.R. Section
172.101, as heretofore amended, or in the EPA's List of Hazardous
Substances and Reportable Quantities, 40 C.F.R. Part 302, as heretofore
amended); "ENVIRONMENT" shall mean any surface water, drinking water,
ground water, land surface, subsurface strata, river sediment,
buildings, structures, and ambient, workplace and indoor air;
"ENVIRONMENTAL LAW" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section
9601 et seq.) ("CERCLA"), the
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Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C.
Section 6901, et seq.), the Clean Air Act, as amended (42 U.S.C. Section
7401, et seq.), the Clean Water Act, as amended (33 U.S.C. Section 1251,
et seq.), the Toxic Substances Control Act, as amended (15 U.S.C.
Section 2601, et seq.), the Occupational Safety and Health Act of 1970,
as amended (29 U.S.C. Section 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Section 1801, et seq.), and
all other applicable Federal, state and local laws, ordinances,
regulations, rules, orders, decisions and permits relating to the
protection of the environment or of human health from environmental
effects; "GOVERNMENTAL AUTHORITY" shall mean any Federal, state or local
governmental office, agency or authority having the duty or authority to
promulgate, implement or enforce any Environmental Law; "LIEN" shall
mean, with respect to any Property, any mortgage, deed of trust, pledge,
security interest, lien, encumbrance, penalty, fine, charge, assessment,
judgment or other liability in, on or affecting such Property; and
"RELEASE" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, emanating
or disposing of any Hazardous Substance into the Environment, including,
without limitation, the abandonment or discard of barrels, containers,
tanks (including, without limitation, underground storage tanks) or
other receptacles containing or previously containing any Hazardous
Substance or any release, emission, discharge or similar term, as those
terms are defined or used in any Environmental Law.
(s) Arthur Andersen LLP, who have certified certain financial
statements in the Registration Statement, whose report appears in the
Prospectus, are independent public accountants as required by the
Securities Act and the rules and regulations of the Commission
thereunder during the periods covered by the financial statements on
which they reported contained in the Prospectus.
(t) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; the
Company has not been refused any insurance coverage sought or applied
for; and the Company does not have any reason to believe that it will
not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as
may be necessary to continue its business at a cost that would not have
a Material Adverse Effect, except as described in or contemplated by the
Prospectus or in a document incorporated by reference in the Prospectus.
(u) The Company possesses all certificates, authorizations and
permits issued by the appropriate Federal, state or foreign regulatory
authorities necessary to conduct its businesses, and the Company has not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect, except as
described in or contemplated by the Prospectus or in a document
incorporated by reference in the Prospectus.
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(v) The Company has filed all Federal, state, and local income
tax returns which have been required to be filed and has paid all taxes
required to be paid and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable,
except, in all cases, for any such tax, assessment, fine or penalty that
is being contested in good faith (and except in any case in which the
failure to so file or pay would not have a Material Adverse Effect).
(w) The financial statements (including the notes thereto)
included in the Registration Statement and the Prospectus present fairly
the financial position of the respective entity or entities presented
therein at the respective dates indicated and the results of their
operations for the respective periods specified, and except as otherwise
stated or incorporated by reference in the Registration Statement, said
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis.
The supporting schedules included in the Registration Statement present
fairly the information required to be stated or incorporated by
reference therein. The financial information and data included in the
Registration Statement and the Prospectus present fairly the information
included therein and have been prepared on a basis consistent with that
of the books and records of the respective entities presented therein.
Pro forma financial information included or incorporated by reference in
the Prospectus has been prepared in accordance with the applicable
requirements of Rules 11-01 and 11-02 of Regulation S-X under the
Securities Act, and the necessary pro forma adjustments have been
properly applied to the historical amounts in the compilation of such
information, and, in management's opinion, the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
referred to therein.
(x) The Company is currently in compliance with all presently
applicable provisions of the Americans with Disabilities Act, except for
such noncompliance which would not, singly or in the aggregate, have a
Material Adverse Effect, and no failure of the Company to comply with
all presently applicable provisions of the Americans with Disabilities
Act would have a Material Adverse Effect.
(y) The Guarantor has elected to be taxed as a "real estate
investment trust" under the Internal Revenue Code of 1986, as amended
(the "CODE"), commencing with its taxable year ended December 31, 1997;
the Guarantor has qualified and expects that it will continue to qualify
as a "real estate investment trust" under the Code beginning with its
taxable year ended December 31, 1997, and will continue to qualify as a
"real estate investment trust" under the Code after consummation of the
transactions contemplated by the Prospectus; and the Guarantor's present
and contemplated operations, assets and income will enable it to meet
the requirements for qualification as a "real estate investment trust"
under the Code.
(z) Each of the Second Amended and Restated Credit Agreement
dated November 26, 1997 among the Operating Partnership and the banks
listed therein, the Amendment thereto dated as of May 29, 1998, the
Second Amendment thereto made
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as of September 30, 1998, and the Third Amendment thereto made as of
March 22, 1999 (collectively, the "PRIOR CREDIT AGREEMENT"), have been
superceded and terminated by all of the parties thereto and no longer
have any force or effect and the Company does not have any obligations
under or with respect to such agreements.
2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL.
(a) Solicitations as Agent. In connection with an Agent's actions
as agent hereunder, such Agent agrees to use reasonable best efforts to
solicit offers to purchase Notes upon the terms and conditions set forth
in the Prospectus as then amended or supplemented.
The Operating Partnership reserves the right, in its sole
discretion, to instruct the Agents to suspend at any time, for any
period of time or permanently, the solicitation of offers to purchase
Notes. As soon as practicable, but in any event not later than one
business day after written notice from the Operating Partnership, the
Agents will forthwith suspend solicitations of offers to purchase Notes
from the Operating Partnership until such time as the Operating
Partnership has advised the Agents that such solicitation may be
resumed. While such solicitation is suspended, the Company shall not be
required to deliver any certificates, opinions or letters in accordance
with Sections 5(a), 5(b) and 5(c); provided, however, that if the
Registration Statement or Prospectus is amended or supplemented during
the period of suspension (other than by an amendment or supplement
providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the Notes or
for a change the Agents deem to be immaterial), no Agent shall be
required to resume soliciting offers to purchase Notes until the Company
has delivered such certificates, opinions and letters as such Agent may
request.
The Operating Partnership agrees to pay to each Agent, as
consideration for the sale of each Note resulting from a solicitation
made or an offer to purchase received by such Agent, a commission in the
form of a discount from the purchase price of such Note equal to the
percentage set forth below of the purchase price of such Note:
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TERM COMMISSION RATE
- ----------------------------------- ---------------
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to less than 30 years .750%
From 30 years and beyond To be Negotiated
Each Agent shall communicate to the Operating Partnership, orally
or in writing, each offer to purchase Notes received by such Agent as
agent that in its judgment should be considered by the Operating
Partnership. The Operating Partnership shall have the sole right to
accept offers to purchase Notes and may reject any offer in whole or in
part. Each Agent shall have the right to reject any offer to purchase
Notes that it, in its reasonable discretion, considers to be
unacceptable, and any such rejection shall not be deemed a breach of its
agreements contained herein. Each Agent shall make reasonable best
efforts to assist the Operating Partnership in obtaining performance by
each purchaser whose offer to purchase Notes has been solicited by such
Agent and accepted by the Operating Partnership. The procedural details
relating to the issue and delivery of Notes sold by the Agents as agents
and the payment therefor shall be as set forth in the Administrative
Procedures (as hereinafter defined). All Notes sold through an Agent as
agent will be sold at 100% of their principal amount, unless otherwise
agreed to by the Operating Partnership and such Agent or provided in the
applicable Note or pricing supplement.
(b) Purchases as Principal. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms of this
Distribution Agreement. In connection with each such sale, the Operating
Partnership will enter into a Terms Agreement that will provide for the
sale of such Notes to and the purchase thereof by such Agent. Each Terms
Agreement will take the form of either (i) a written agreement between
such Agent and the Operating Partnership, which, unless otherwise agreed
by the Operating Partnership and such Agent, may be substantially in the
form of Exhibit A hereto (a "WRITTEN TERMS AGREEMENT"), or (ii) an oral
agreement between such Agent
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and the Operating Partnership confirmed in writing by such Agent to the
Operating Partnership.
An Agent's commitment to purchase Notes pursuant to a Terms
Agreement shall be deemed to have been made on the basis of the
representations and warranties of the Operating Partnership and
Guarantor herein contained and shall be subject to the terms and
conditions herein set forth. Each Terms Agreement shall specify the
principal amount of Notes to be purchased by such Agent pursuant
thereto, the maturity date of such Notes, the price to be paid to the
Operating Partnership for such Notes, the interest rate and interest
rate formula, if any, applicable to such Notes and any other terms of
such Notes. Each purchase of Notes, unless otherwise agreed, shall be at
a discount from the principal amount of each such Note equivalent to the
applicable commission set forth in Section 2(a) above. Each such Terms
Agreement may also specify any requirements for officers' certificates,
opinions of counsel and letters from the independent public accountants
of the Company pursuant to Section 4 hereof. A Terms Agreement may also
specify certain provisions relating to the reoffering of such Notes by
such Agent.
Each Terms Agreement shall specify the time and place of delivery
of and payment for such Notes. Unless otherwise specified in a Terms
Agreement, the procedural details relating to the issue and delivery of
Notes purchased by an Agent as principal and the payment therefor shall
be as set forth in the Administrative Procedures. Each date of delivery
of and payment for Notes to be purchased by an Agent as principal
pursuant to a Terms Agreement is referred to herein as a "SETTLEMENT
DATE."
Unless otherwise specified in a Terms Agreement, if an Agent is
purchasing Notes as principal it may resell such Notes to other dealers.
Any such sales may be at a discount, which shall not exceed the amount
set forth in the Prospectus Supplement relating to such Notes.
(c) Administrative Procedures. The Agents and the Operating
Partnership and Guarantor agree to perform their respective duties and
obligations specifically provided to be performed in the Medium-Term
Notes Administrative Procedures (attached hereto as Exhibit B) (the
"ADMINISTRATIVE PROCEDURES"), as amended from time to time. The
Administrative Procedures may be amended only by written agreement of
the Operating Partnership, the Guarantor and the Agents.
(d) Delivery. The documents required to be delivered by Section 4
of this Distribution Agreement as a condition precedent to each Agent's
obligation to begin soliciting offers to purchase Notes as an agent of
the Operating Partnership shall be delivered at the office of Latham &
Watkins, counsel for the Operating Partnership and the Guarantor, not
later than 9:00 A.M., San Francisco time, on the date hereof, or at such
other time and/or place as the Agents and the Operating Partnership and
the Guarantor may agree upon in writing, but in no event later than the
day prior to the earlier of (i) the date on which the Agents begin
soliciting offers to purchase Notes and (ii) the first date on which the
Operating Partnership accepts any offer by an Agent to purchase Notes
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pursuant to a Terms Agreement. The date of delivery of such documents is
referred to herein as the "COMMENCEMENT DATE."
(e) Obligations Several. The Operating Partnership and the
Guarantor acknowledge that the obligations of the Agents under this
Distribution Agreement are several and not joint.
3. AGREEMENTS. The Operating Partnership and the Guarantor agree
with each Agent that:
(a) Prior to the termination of the offering of the Notes
pursuant to this Distribution Agreement or any Terms Agreement, the
Operating Partnership and the Guarantor will not file any Prospectus
Supplement relating to the Notes or any amendment to the Registration
Statement unless the Operating Partnership and the Guarantor have
previously furnished to the Agents copies thereof for their review and
will not file any such proposed supplement or amendment to which the
Agents reasonably object; provided, however, that (i) the foregoing
requirement shall not apply to the filing of documents which are
incorporated by reference in the Prospectus and (ii) any Prospectus
Supplement that merely sets forth the terms or a description of
particular Notes shall only be reviewed and approved by the Agent or
Agents offering such Notes. Subject to the foregoing sentence, the
Operating Partnership and the Guarantor will promptly cause each
Prospectus Supplement to be filed with or transmitted for filing to the
Commission in accordance with Rule 424(b) under the Securities Act. The
Operating Partnership and the Guarantor will promptly advise the Agents
(A) of the filing of any amendment or supplement to the Basic Prospectus
(except that notice of the filing of an amendment or supplement to the
Basic Prospectus that merely sets forth the terms or a description of
particular Notes shall only be given to the Agent or Agents offering
such Notes and the Operating Partnership and the Guarantor shall not be
required to so advise the Agents of the filing of documents which are
incorporated by reference therein), (B) of the filing and effectiveness
of any amendment to the Registration Statement, except for the filing of
documents which are incorporated by reference therein, (C) of any
request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Basic Prospectus or for
any additional information, (D) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose and
(E) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Operating Partnership and the Guarantor will use best
efforts to prevent the issuance of any such stop order or notice of
suspension of qualification and, if issued, to obtain as soon as
possible the withdrawal thereof. If the Basic Prospectus is amended or
supplemented as a result of the filing under the Exchange Act of any
document incorporated by reference in the Prospectus, no Agent shall be
obligated to solicit offers to purchase Notes so long as it is not
reasonably satisfied with such document.
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(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs or
condition exists as a result of which the Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact, or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances when the Prospectus, as then
amended or supplemented, is delivered to a purchaser, not misleading, or
if, in the opinion of the Agents or in the opinion of the Operating
Partnership and the Guarantor, it is necessary at any time to amend or
supplement the Prospectus, as then amended or supplemented, to comply
with applicable law, the Operating Partnership and the Guarantor will
immediately notify the Agents by telephone (with confirmation in
writing) to suspend solicitation of offers to purchase Notes and, if so
notified by the Operating Partnership and the Guarantor, the Agents
shall forthwith suspend such solicitation and cease using the
Prospectus, as then amended or supplemented. If the Operating
Partnership and the Guarantor shall decide to amend or supplement the
Registration Statement or Prospectus, as then amended or supplemented,
it shall so advise the Agents promptly by telephone (with confirmation
in writing) and, at its expense, shall prepare and cause to be filed
promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to the Agents, that will correct such
statement or omission or effect such compliance and will supply such
amended or supplemented Prospectus to the Agents in such quantities as
they may reasonably request. If the documents, certificates, opinions
and letters furnished to the Agents pursuant to Sections 3(f), 5(a),
5(b) and 5(c) hereof in connection with the preparation and filing of
such amendment or supplement are satisfactory in all respects to the
Agents, upon the filing with the Commission of such amendment or
supplement to the Prospectus or upon the effectiveness of an amendment
to the Registration Statement, the Agents will resume the solicitation
of offers to purchase Notes hereunder. Notwithstanding any other
provision of this paragraph, until the distribution of any Notes an
Agent may own as principal has been completed, if any event described
above in this paragraph occurs, the Operating Partnership and the
Guarantor will, at their own expense, forthwith prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to such Agent and the Operating Partnership
and the Guarantor, will supply such amended or supplemented Prospectus
to such Agent in such quantities as it may reasonably request and shall
furnish to such Agent pursuant to Sections 3(f), 5(a), 5(b) and 5(c)
hereof such documents, certificates, opinions and letters specified
therein in connection with the preparation and filing of such amendment
or supplement.
(c) Each of the Operating Partnership and the Guarantor will make
generally available to its respective security holders and to the Agents
as soon as practicable earning statements that satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder covering twelve month periods beginning, in each
case, not later than the first day of the Operating Partnership's and
Guarantor's respective fiscal quarter next following the "effective
date" (as defined in Rule 158 under the Securities Act) of the
Registration Statement with respect to each sale of Notes. If such
fiscal quarter is the last fiscal quarter of the Operating Partnership's
and
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Guarantor's respective fiscal year, such earning statement shall be made
available not later than 90 days after the close of the period covered
thereby and in all other cases shall be made available not later than 45
days after the close of the period covered thereby.
(d) The Operating Partnership and the Guarantor will furnish to
each Agent, without charge, a signed copy of the Registration Statement,
including exhibits and all amendments thereto, and as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto as such Agent may reasonably request.
(e) The Operating Partnership and the Guarantor will endeavor to
qualify the Notes and the Guarantees for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Agents shall
reasonably request and to maintain such qualifications for as long as
the Agents shall reasonably request.
(f) The Operating Partnership and the Guarantor shall furnish to
the Agents such relevant documents and certificates of officers of the
Company relating to the business, operations and affairs of the Company,
the Registration Statement, the Basic Prospectus, any amendments or
supplements thereto, the Indenture, the Notes, this Distribution
Agreement, the Administrative Procedures, any Terms Agreement and the
performance by the Company of its obligations hereunder or thereunder as
the Agents may from time to time reasonably request.
(g) The Operating Partnership and Guarantor, as applicable, shall
notify the Agents promptly in writing of any downgrading, or of its
receipt of any notice of any intended or potential downgrading or of any
review for possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Operating
Partnership's or Guarantor's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act.
(h) The Operating Partnership and the Guarantor will, whether or
not any sale of Notes is consummated, pay all expenses incident to the
performance of its obligations under this Distribution Agreement and any
Terms Agreement, including: (i) the preparation and filing of the
Registration Statement and the Prospectus and all amendments and
supplements thereto, (ii) the preparation, issuance and delivery of the
Notes and the Guarantees, (iii) the fees and disbursements of the
Company's counsel and accountants and of the Trustee and its counsel,
(iv) the qualification of the Notes and Guarantees under securities or
Blue Sky laws in accordance with the provisions of Section 3(e) hereof,
including filing fees and the fees and disbursements of counsel for the
Agents in connection therewith and in connection with the preparation of
any Blue Sky or Legal Investment Memoranda, (v) the printing and
delivery to the Agents in quantities as hereinabove stated of copies of
the Registration Statement and all amendments thereto and of the
Prospectus and any amendments or supplements thereto, (vi) the printing
and delivery to the Agents of copies of any Blue Sky or Legal Investment
Memoranda, (vii) any fees charged by rating agencies for the rating of
the Notes, (viii) any expenses incurred by the Company in connection
with a "road show" presentation to
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potential investors and (ix) the reasonable fees and disbursements of
counsel for the Agents incurred in connection with the offering and sale
of the Notes, including any opinions to be rendered by such counsel
hereunder, and (x) any out-of-pocket expenses incurred by the Agents;
provided that any advertising expenses incurred by the Agents shall have
been approved by the Operating Partnership and the Guarantor.
(i) During the period beginning the date of any Terms Agreement
and continuing to and including the Settlement Date with respect to such
Terms Agreement, neither the Operating Partnership nor the Guarantor
will, without such Agent's prior written consent, offer, sell, contract
to sell or otherwise dispose of any debt securities of the Operating
Partnership or the Guarantor or warrants to purchase debt securities of
the Operating Partnership or the Guarantor substantially similar to such
Notes (other than (i) the Notes that are to be sold pursuant to such
Terms Agreement, (ii) Notes previously agreed to be sold by the
Operating Partnership or the Guarantor and (iii) commercial paper issued
in the ordinary course of business), except as may otherwise be provided
in such Terms Agreement.
4. CONDITIONS OF THE OBLIGATIONS OF THE AGENTS. Each Agent's
obligation to solicit offers to purchase Notes as agent of the Operating
Partnership, each Agent's obligation to purchase Notes pursuant to any Terms
Agreement and the obligation of any other purchaser to purchase Notes will be
subject to the accuracy of the representations and warranties on the part of the
Operating Partnership and the Guarantor herein, to the accuracy of the
statements of the Company's officers made in each certificate furnished pursuant
to the provisions hereof and to the performance and observance by the Company of
all covenants and agreements herein contained on its part to be performed and
observed (in the case of an Agent's obligation to solicit offers to purchase
Notes, at the time of such solicitation, and, in the case of an Agent's or any
other purchaser's obligation to purchase Notes, at the time the Operating
Partnership accepts the offer to purchase such Notes and at the time of issuance
and delivery) and (in each case) to the following additional conditions
precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Operating Partnership, the Guarantor and their
subsidiaries, taken as a whole, from that set forth in the
Prospectus, as amended or supplemented (including by
incorporation by reference) at the time of such solicitation or
at the time such offer to purchase was made, that, in the
judgment of the relevant Agent, is material and adverse and that
makes it, in the judgment of such Agent, impracticable to market
the Notes on the terms and in the manner contemplated by the
Prospectus, as so amended or supplemented;
(ii) there shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case
may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc.,
the Chicago Board Options Exchange, the
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Chicago Mercantile Exchange or the Chicago Board of Trade, (B)
suspension of trading of any securities of the Operating
Partnership or the Guarantor on any exchange or in any
over-the-counter market, (C) declaration of a general moratorium
on commercial banking activities in New York by either Federal or
New York State authorities or (D) any outbreak or escalation of
hostilities or any change in financial markets or any calamity or
crisis that, in the judgment of the relevant Agent, is material
and adverse and, in the case of any of the events described in
clauses 4(a)(ii)(A) through 4(a)(ii)(D), such event, singly or
together with any other such event, makes it, in the judgment of
such Agent, impracticable to market the Notes on the terms and in
the manner contemplated by the Prospectus, as amended or
supplemented (including by incorporation by reference) at the
time of such solicitation or at the time such offer to purchase
was made; and
(iii) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded the Operating Partnership, Guarantor or any of their
respective securities or the rating outlook for any of them by
any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act;
(A) except, in each case described in Section 4(a)(i),
4(a)(ii) or 4(a)(iii) above, as disclosed to the relevant
Agent in writing by the Operating Partnership and the
Guarantor prior to such solicitation or, in the case of a
purchase of Notes, as disclosed to the relevant Agent before
the offer to purchase such Notes was made; or
(B) unless in each case described in Section 4(a)(ii)
above, the relevant event shall have occurred and been known
to the relevant Agent before such solicitation or, in the
case of a purchase of Notes, before the offer to purchase
such Notes was made.
(b) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents
shall have received:
(i) An opinion, dated as of such date, of Latham & Watkins,
outside counsel for the Operating Partnership and the Guarantor,
to the effect that:
(A) the Operating Partnership has been duly formed and
is a limited partnership in good standing under the Delaware
Revised Uniform Limited Partnership Act, with partnership
power and authority to own, lease and operate its properties,
to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this
Distribution Agreement, the Notes, the Indenture, the
Calculation Agency Agreement and any applicable Written Terms
Agreement in the form
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attached as Exhibit A to this Distribution Agreement. Based
solely on certificates of public officials, counsel confirms
that the Operating Partnership is qualified to do business in
the following States: _____________;
(B) based solely on certificates of public officials,
counsel confirms that the Guarantor is qualified to do
business in the following states: ____________________.;
(C) each Subsidiary has been duly formed and is a
limited partnership, corporation or limited liability company
in good standing under the applicable laws of its
jurisdiction, with partnership, corporate or other power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus, and,
based solely on certificates of public officials, such
Subsidiaries are qualified to do business in the following
states: _________________;
(D) the issuance and sale of the Notes by the Operating
Partnership and the issuance of the Guarantees by the
Guarantor pursuant to this Distribution Agreement, the
Indenture and any applicable Written Terms Agreement in the
form attached as Exhibit A to this Distribution Agreement and
the execution and delivery by the Operating Partnership and
the Guarantor of, and the performance on or prior to the date
of such opinion by the Operating Partnership and the
Guarantor of their respective obligations under, this
Distribution Agreement, the Notes, the Guarantees, the
Indenture, the Calculation Agency Agreement and any
applicable Written Terms Agreement in the form attached as
Exhibit A to this Distribution Agreement and the consummation
of the transactions contemplated thereby, will not result in
the violation by the Operating Partnership of its certificate
of limited partnership, the Fourth Amended and Restated
Agreement of Limited Partnership of the Operating Partnership
dated as of August 10, 2000 or the Revised Uniform Limited
Partnership Act of the State of Delaware or the violation by
the Operating Partnership or the Guarantor of any federal,
New York or California statute, rule or regulation known to
counsel to be applicable to the Operating Partnership or the
Guarantor (other than federal or state securities laws, which
are specifically addressed elsewhere herein) or in the breach
or default under any of the agreements (the "MATERIAL
AGREEMENTS") listed as material agreements on the exhibit
lists to each of the Operating Partnership's and the
Guarantor's most recent annual report on Form 10-K, as
updated by the Operating Partnership's and the Guarantor's
quarterly reports on Form 10-Q for the subsequent quarterly
periods; it being understood, however, that counsel need
express no opinion with respect to the Credit Agreement dated
as of September 27, 1999 among AMB Institutional Alliance
Fund I, L.P., AMB Institutional Alliance REIT I, Inc., the
lenders and issuing bank party thereto, BT
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Realty Resources, Inc. and The Chase Manhattan Bank (the
"CREDIT AGREEMENT"), the Prior Credit Agreement, the
Revolving Credit Agreement dated as of May 24, 2000 among the
Operating Partnership and the banks listed therein (the
"REVOLVING CREDIT AGREEMENT"), or the Guaranty of Payment
made as of May 24, 2000 between the Guarantor and Morgan
Guaranty Trust Company of New York, as administrative agent
for the banks listed on the signature page of the Revolving
Credit Agreement (the "GUARANTY OF PAYMENT"). To the best of
counsel's knowledge, no consent, approval, authorization or
order of, or filing with, any federal, New York or California
court or governmental agency or body or under the Revised
Uniform Limited Partnership Act of the State of Delaware is
required for the consummation of the issuance and sale of the
Notes by the Operating Partnership or the issuance of the
Guarantees by the Guarantor pursuant to this Distribution
Agreement, the Indenture and any applicable Written Terms
Agreement in the form attached as Exhibit A to this
Distribution Agreement and the execution and delivery by the
Operating Partnership and the Guarantor of, and the
performance on or prior to the date hereof by the Operating
Partnership and the Guarantor of their respective obligations
under, this Distribution Agreement, the Notes, the
Guarantees, the Indenture, the Calculation Agency Agreement
and any applicable Written Terms Agreement in the form
attached as Exhibit A to this Distribution Agreement and the
consummation of the transactions contemplated hereby and
thereby, except such as have been or will be obtained under
the Securities Act and such as may be required under state
securities laws in connection with the issuance and sale of
the Notes;
(E) assuming due authorization by the Guarantor on its
own behalf and in its capacity as the general partner of the
Operating Partnership, this Distribution Agreement has been
duly authorized, executed and delivered by the Operating
Partnership;
(F) assuming due authorization by the Guarantor on its
own behalf and in its capacity as the general partner of the
Operating Partnership, when the terms of an applicable
Written Terms Agreement are determined by the Guarantor's
Board of Directors, the Medium-Term Note Committee of the
Guarantor's Board of Directors or an authorized officer of
the Guarantor, and when such Written Terms Agreement has been
executed by a duly authorized officer of the Guarantor, in
its capacity as general partner Operating Partnership, and
delivered to the other party thereto by a duly authorized
officer of the Guarantor on its own behalf and in its
capacity as general partner of the Operating Partnership, any
such Written Terms Agreement will have been duly authorized,
executed and delivered by the Operating Partnership;
(G) the Indenture has been duly qualified under the
Trust Indenture Act and (assuming due authorization by the
Guarantor on
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its own behalf and in its capacity as general partner of the
Operating Partnership) has been duly authorized, executed and
delivered by the Operating Partnership and (assuming due
authorization, execution and delivery by the Trustee) is the
legally valid and binding agreement of the Operating
Partnership and the Guarantor, enforceable against the
Operating Partnership and the Guarantor in accordance with
its terms;
(H) assuming due authorization by the Guarantor on its
own behalf and in its capacity as the general partner of the
Operating Partnership, when the remaining terms of the Notes
are determined by the Guarantor's Board of Directors, the
Medium-Term Note Committee of the Guarantor's Board of
Directors or an authorized officer of the Guarantor, and when
executed and authenticated in accordance with the terms of
the Indenture and delivered to and paid for by the purchasers
thereof in accordance with the terms of this Distribution
Agreement and any applicable Written Terms Agreement in the
form attached as Exhibit A to this Distribution Agreement,
the Notes will have been duly authorized, executed and
delivered by, and will be legally valid and binding
obligations of the Operating Partnership, enforceable against
the Operating Partnership in accordance with their terms and
entitled to the benefits of the Indenture;
(I) assuming due authorization by the Guarantor, when
the remaining terms of the Notes are determined by the
Guarantor's Board of Directors, the Medium Term Note
Committee of the Guarantor's Board of Directors or an
authorized officer of the Guarantor, and when executed in
accordance with the terms of the Indenture and upon due
execution, authentication and delivery of the Notes and
payment therefor, the Guarantees will be legally valid and
binding obligations of the Guarantor, enforceable against the
Guarantor in accordance with their terms and entitled to the
benefits of the Indenture;
(J) the statements (a) in the Base Prospectus (as
updated by the documents incorporated by reference therein)
under the captions "Description of Debt Securities,"
"Description of Certain Provisions of the Partnership
Agreement of the Operating Partnership" (as updated by the
documents incorporated by reference therein), "Plan of
Distribution," and (b) in the Prospectus Supplement (as
updated by the documents incorporated by reference therein)
under the captions "Description of Notes" and "Supplemental
Plan of Distribution," in each case insofar as such
statements constitute summaries of legal matters, are
accurate in all material respects;
(K) the statements (a) in the Base Prospectus (as
updated by the documents incorporated by reference therein)
under the caption "Certain Federal Income Tax Considerations"
(as updated by the
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Prospectus Supplement) and (b) in the Prospectus Supplement
(as updated by the documents incorporated by reference
therein) under the caption "Certain United States Federal
Income Tax Consequences," in each case insofar as such
statements constitute summaries of legal matters, are
accurate in all material respects;
(L) neither the Operating Partnership, the Guarantor
nor any Subsidiary is, and after giving effect to the
offering and sale of the Notes and the application of the
proceeds thereof as described in the Prospectus, neither the
Operating Partnership, the Guarantor not any Subsidiary will
be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended; and
(M) the Registration Statement and the Prospectus
comply as to form in all material respects with the
requirements for registration statements on Form S-3 under
the Act, the Trust Indenture Act and the rules and
regulations of the Commission thereunder; it being
understood, however, that counsel need express no opinion
with respect to the financial statements, schedules and other
financial data included in the Registration Statement or the
Prospectus, with respect to the Form T-1 or with respect to
the compliance as to form with the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder,
of the documents incorporated by reference therein. In
passing upon the compliance as to form of the Registration
Statement and the Prospectus, counsel may assumed that the
statements made and incorporated by reference in the
Registration Statement and the Prospectus are correct and
complete.
In addition, such counsel shall state that it has
participated in conferences with officers and other
representatives of the Operating Partnership and the Guarantor,
representatives of the independent public accountants for the
Operating Partnership and the Guarantor, and the Agent's
representatives, at which the contents of the Registration
Statement and the Prospectus and related matters were discussed
and, although counsel is not passing upon, and does not assume
any responsibility for, the accuracy, completeness or fairness of
the statements contained in the Registration Statement and the
Prospectus (except as specifically stated in paragraphs K and L
above) and has not made any independent check or verification
thereof, during the course of such participation, no facts came
to such counsel's attention that caused it to believe that the
Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or that the
Prospectus (including the documents incorporated by reference
therein), as of its date, contained an untrue statement of a
material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading; it being understood that
such counsel need
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express no belief with respect to the financial statements,
schedules and other financial data included in the Registration
Statement or the Prospectus or incorporated therein or with
respect to the Form T-1.
(ii) An opinion, dated as of such date, of Tamra D. Browne,
General Counsel to the Guarantor, to the effect that:
(A) the Guarantor is the sole general partner of the
Operating Partnership;
(B) assuming the due authorization by the Guarantor in
its capacity as the sole general partner of the Operating
Partnership, the Units held by the Guarantor are as set forth
in the Prospectus and have been duly authorized and validly
issued. The Units owned by the Guarantor are owned of record
directly by the Guarantor and, to the best of counsel's
knowledge, are free and clear of all liens and encumbrances;
(C) the issuance and sale of the Notes by the Operating
Partnership and the issuance of the Guarantees by the
Guarantor pursuant to this Distribution Agreement, the
Indenture and any applicable Written Terms Agreement in the
form attached as Exhibit A to this Distribution Agreement and
the execution and delivery by the Operating Partnership and
the Guarantor of, and the performance by the Company on or
prior to the date hereof of its obligations under, this
Distribution Agreement, the Notes, the Guarantees, the
Indenture, the Calculation Agency Agreement and any
applicable Written Terms Agreement in the form attached as
Exhibit A to this Distribution Agreement and the consummation
of the transactions contemplated thereby, will not result in
a breach or default under (i) the Revolving Credit Agreement,
(ii) the Guaranty of Payment or (iii) the Credit Agreement;
(D) each of the documents incorporated by reference in
the Registration Statement and the Prospectus complied as to
form in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder, except
with respect to the failure to file as exhibits to the
documents incorporated by reference amendments to the
partnership agreement of the Operating Partnership, which
amendments have subsequently been incorporated into the
Fourth Amended and Restated Agreement of Limited Partnership
of the Operating Partnership, which has been filed with the
Commission on Form 8-K on or prior to the Commencement Date;
it being understood, however, that counsel expresses no
opinion with respect to the financial statements, schedules
and other financial data included in the Incorporated
Documents; and
(E) to the best of counsel's knowledge, there are no
legal or governmental proceedings required to be described in
the Registration Statement or the Prospectus that are not so
described and
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there are no contracts or other documents of a character
required to be described in the Registration Statement or
Prospectus, to be filed as exhibits to the Registration
Statement or to be filed under the Exchange Act, if upon such
filing they would be incorporated by reference therein that
are not described or filed as required, except for the
failure to file as exhibits to the documents incorporated by
reference amendments to the partnership agreement of the
Operating Partnership, which amendments have subsequently
been incorporated into the Fourth Amended and Restated
Agreement of Limited Partnership of the Operating
Partnership, which has been filed with the Commission.
(iii) An opinion, dated as of such date, of Ballard
Spahr Andrews & Ingersoll, LLP, special Maryland counsel for the
Guarantor, to the effect that:
(A) the Guarantor has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Maryland, has the corporate power and
authority to own its properties and to conduct its business
as described in the Prospectus and to enter into and perform
its obligations under this Distribution Agreement, the
Guarantees, the Indenture and any applicable Written Terms
Agreement delivered in accordance with the terms of this
Distribution Agreement and the Indenture;
(B) the issuance of the Notes in accordance with the
terms of this Distribution Agreement and the Indenture has
been duly authorized by the Guarantor in its capacity as
general partner of the Operating Partnership pursuant to all
necessary corporate action required under the charter and
bylaws of the Guarantor and the Maryland General Corporation
Law (the "MGCL"); and when the remaining terms of the
issuance and sale of the Notes are determined in accordance
with the terms of this Distribution Agreement and the
Indenture by the Board of Directors or Medium Term Note
Committee of the Board of Directors of the Guarantor, or by
an authorized officer of the Guarantor, on behalf of the
Guarantor as general partner of the Operating Partnership and
such Notes, each with an executed Guarantee endorsed thereon,
are executed and delivered by a duly authorized officer of
the Guarantor in its capacity as the general partner of the
Operating Partnership, and authenticated, issued and
delivered against payment therefor in accordance with the
terms of the Indenture and this Distribution Agreement, the
Notes will have been duly executed, and, to the best of such
counsel's knowledge, delivered by the Guarantor in its
capacity as general partner of the Operating Partnership;
(C) the execution and delivery by the Guarantor, in its
individual capacity and in its capacity as general partner of
the Operating Partnership, of this Distribution Agreement
have been duly authorized by
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all necessary corporate action required under the charter and
bylaws of the Guarantor and the MGCL; and this Distribution
Agreement has been duly executed and, to the best of such
counsel's knowledge, delivered by the Guarantor in its
individual capacity and in its capacity as the general
partner of the Operating Partnership;
(D) the execution and delivery in accordance with the
terms of this Distribution Agreement and the Indenture by the
Guarantor, in its individual capacity and in its capacity as
general partner of the Operating Partnership, of any
applicable Written Terms Agreement have been duly authorized
by all necessary corporate action required under the charter
and bylaws of the Guarantor and the MGCL; and when the
remaining terms of the issuance and sale of the Notes are
determined in accordance with the terms of this Distribution
Agreement and the Indenture by the Board of Directors or
Medium Term Note Committee of the Board of Directors of the
Guarantor, or by an authorized officer of the Guarantor, on
behalf of the Guarantor as general partner of the Operating
Partnership and such Notes, each with an executed Guarantee
endorsed thereon, are authenticated, issued and delivered
against payment therefor in accordance with the terms of the
Indenture and this Distribution Agreement, any applicable
Written Terms Agreement executed and, to the best of such
counsel's knowledge, delivered on or before a Settlement Date
will have been duly executed and delivered by the Guarantor
in its individual capacity and in its capacity as the general
partner of the Operating Partnership;
(E) the execution and delivery by the Guarantor, in
accordance with the terms of this Distribution Agreement and
the Indenture in its individual capacity and in its capacity
as general partner of the Operating Partnership, of the
Indenture, have been duly authorized by all necessary
corporate action required under the charter and bylaws of the
Guarantor and the MGCL; and the Indenture has been duly
executed, and, to the best of such counsel's knowledge,
delivered by the Guarantor, in its individual capacity and in
its capacity as the general partner of the Operating
Partnership;
(F) the execution and delivery by the Guarantor of the
Guarantees in accordance with the terms of this Distribution
Agreement and the Indenture have been duly authorized by all
necessary corporate action required under the charter and
bylaws of the Guarantor and the MGCL; and when the remaining
terms of the issuance and sale of the Notes are determined in
accordance with the terms of this Distribution Agreement and
the Indenture by the Board of Directors or Medium Term Note
Committee of the Board of Directors of the Guarantor, or by
an authorized officer of the Guarantor, on behalf of the
Guarantor as general partner of the Operating Partnership and
such Notes, each with an
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executed Guarantee endorsed thereon, are authenticated,
issued and delivered against payment therefor in accordance
with the terms of the Indenture and this Distribution
Agreement, the Guarantees will have been duly executed, and,
to the best of such counsel's knowledge, delivered by the
Guarantor, in its individual capacity;
(G) the execution and delivery by the Guarantor of, and
the performance by the Guarantor of its obligations under
this Distribution Agreement, the Guarantees, the Indenture
and any applicable Written Terms Agreement and the
consummation of the transactions contemplated hereby and
thereby, in each case, in accordance with the terms of this
Distribution Agreement and the Indenture, (1) will not
contravene any provision of the MGCL, (2) will not result in
any violation of the provisions of the charter or by-laws of
the Guarantor and (3) will not, to the best of such counsel's
knowledge, result in any violation of any order, rule,
regulation or decree of any court or governmental agency or
authority of the State of Maryland issued under or pursuant
to the MGCL and applicable to the properties, assets or
businesses owned directly or indirectly by the Guarantor;
(H) no consent, approval, authorization, order of or
qualification with any court or governmental agency or
authority of the State of Maryland is required to be obtained
under the MGCL by the Guarantor, the Operating Partnership or
any Subsidiary organized under the laws of the State of
Maryland, in connection with the offer, issuance or sale of
the Notes, together with the corresponding Guarantees, under
this Distribution Agreement and in accordance with the terms
hereof and the Indenture, except for such as have been
obtained; and
(I) the information in the Prospectus under the
captions "Description of Common Stock," "Description of
Preferred Stock," "Description of Depositary Shares,"
"Description of Warrants," and "Certain Provisions of
Maryland Law and of Our Charter and Bylaws," to the extent
that it constitutes matters of Maryland Law, summaries of
legal matters, documents or proceedings, or legal conclusions
under Maryland corporate law, has been reviewed by such
counsel and is correct in all material respects, the
information in the Registration Statement under Item 15 to
the extent that it constitutes matters of Maryland Law or a
summary of provisions of the charter of the Guarantor has
been reviewed by such counsel and is correct in all material
respects, and the information in the Prospectus under
"Restrictions on Ownership and Transfer of Capital Stock," to
the extent that it constitutes a summary of the provisions of
the charter of the Guarantor has been reviewed by such
counsel and is correct in all material respects.
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(iv) An opinion, dated as of such date, of Gibson, Dunn &
Crutcher LLP, counsel for the Agents, in form and substance
satisfactory to the Agents.
The opinions of Latham & Watkins, Counsel to the Guarantor
and Ballard Spahr Andrews & Ingersoll described in paragraphs
(i), (ii) and (iii) above shall be rendered to the Agents at the
request of the Operating Partnership and the Guarantor and shall
so state therein.
(c) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents
shall have received a certificate, dated the Commencement Date or such
Settlement Date, as the case may be, in form and substance reasonably
satisfactory to such Agents and signed by an executive officer of the
Guarantor, on behalf of the Guarantor and on behalf of the Guarantor as
General Partner of the Operating Partnership, to the effect set forth in
Sections 4(a)(i) and 4(a)(iii) and to the effect that the
representations and warranties of the Operating Partnership and the
Guarantor contained in this Distribution Agreement are true and correct
as of such date and that the Company has complied in all material
respects with all of the agreements and satisfied all of the conditions
on its part to be performed or satisfied on or before such date.
The officers signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents
shall have received from Arthur Andersen LLP, independent public
accountants, a letter or letters, dated the Commencement Date or such
Settlement Date, as the case may be, in form and substance satisfactory
to such Agents containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Prospectus, as then amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate
further information, certificates and documents as they may reasonably
request.
5. ADDITIONAL AGREEMENTS OF THE OPERATING PARTNERSHIP AND THE
GUARANTOR.
(a) Each time the Registration Statement or Prospectus is amended
or supplemented (including the filing of documents which are
incorporated by reference in the Registration Statement or Prospectus
but excluding (i) amendments, supplements or the incorporation by
reference of documents relating to the terms of a particular issue of
the Notes or an offering of securities other than the Notes, (ii)
pricing supplements, (iii) amendments or supplements providing solely
for a change in the interest rates, redemption provisions, amortization
schedules, maturities or similar changes with respect
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to the Notes, (iv) the filing by the Guarantor of a proxy statement for
its annual meeting of shareholders, (v) the filing by the Operating
Partnership or the Guarantor of a Current Report on Form 8-K, unless in
the Agents' reasonable judgment, the information contained in such
report is of such a character that an officer's certificate should be
furnished and the Agents so specify in writing, or (iv) amendments or
supplements reflecting a change the Agents and the Operating Partnership
and the Guarantor deem to be immaterial) or if specified in a Terms
Agreement, the Operating Partnership and Guarantor will deliver or cause
to be delivered as soon as reasonably practicable to each Agent a
certificate signed by an executive officer of the Guarantor, on behalf
of the Guarantor and on behalf of the Guarantor as general partner of
the Operating Partnership, dated the date of such amendment, supplement
or filing of such incorporated document, or the date of delivery
specified pursuant to a Terms Agreement, as the case may be, in form
reasonably satisfactory to the Agents, to the effect that the statements
contained in the certificate referred to in Section 4(c) hereof are true
and correct as of the time of such amendment, supplement or filing or
specified delivery (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate) or, in lieu of
such certificate, a certificate signed by an executive officer of the
Guarantor, on behalf of the Guarantor and on behalf of the Guarantor as
general partner of the Operating Partnership, dated the date of such
amendment, supplement or filing or specified delivery, as the case may
be, in form reasonably satisfactory to the Agents, of the same tenor as
the certificate referred to in Section 4(c) modified as necessary to
relate to the Registration Statement and the Prospectus as amended or
supplemented to the date of such amendment, supplement or filing or
specified delivery.
(b) Each time the Operating Partnership and Guarantor furnish a
certificate pursuant to Section 5(a) (excluding the filing of documents
which are incorporated by reference in the Registration Statement or
Prospectus as a result of the filing by the Operating Partnership or the
Guarantor of a Quarterly Report on Form 10-Q, unless any Agent shall
otherwise request in writing, and excluding the filing of documents
which are incorporated by reference in the Registration Statement or
Prospectus as a result of the filing by the Operating Partnership or the
Guarantor of a Current Report on Form 8-K) or if specified in a Terms
Agreement, the Operating Partnership and Guarantor will furnish or cause
to be furnished as soon as reasonably practicable to each Agent written
opinions of independent and corporate counsel for the Operating
Partnership and Guarantor. Any such opinions shall be dated the date of
such amendment, supplement or filing, or the date of delivery specified
pursuant to a Terms Agreement, as the case may be, shall be in a form
satisfactory to the Agents and shall be of the same tenor as the
opinions referred to in Sections 4(b)(i), (ii) and (iii), but modified
as necessary to relate to the Registration Statement and the Prospectus
as amended and supplemented to the time of delivery of such opinions. In
lieu of such opinions, counsel last furnishing such an opinion to an
Agent may furnish to each Agent a letter to the effect that such Agent
may rely on such last opinion to the same extent as though it were dated
the date of such letter (except that statements in such last opinion
will be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented to the time of delivery of such
letter).
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(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated
by reference in the Prospectus or if specified in a Terms Agreement, the
Operating Partnership and Guarantor shall cause its independent public
accountants to as soon as reasonably practicable furnish each Agent with
a letter, dated the date of such amendment, supplement, or filing or the
date of delivery specified pursuant to a Terms Agreement, as the case
may be, in form satisfactory to the Agents, of the same tenor as the
letter referred to in Section 4(d), with regard to the amended or
supplemental financial information included or incorporated by reference
in the Registration Statement or the Prospectus as amended or
supplemented to the date of such letter.
6. INDEMNITY AND CONTRIBUTION.
(a) The Operating Partnership and the Guarantor jointly and
severally agree to indemnify and hold harmless each Agent and each
person, if any, who controls any Agent within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from
and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any amendment
thereof, or the Prospectus (as amended or supplemented ), or caused by
any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages
or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to
any Agent furnished to the Operating Partnership and Guarantor in
writing by such Agent expressly for use therein and set forth in Section
1(b) hereof.
(b) Each Agent agrees, severally and not jointly, to indemnify
and hold harmless the Operating Partnership and the Guarantor, the
Guarantor's directors and the officers who sign the Registration
Statement and each person, if any, who controls the Operating
Partnership or the Guarantor within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent
as the foregoing indemnities from the Operating Partnership and the
Guarantor to such Agent, but only with reference to information relating
to such Agent furnished to the Operating Partnership or the Guarantor in
writing by such Agent expressly for use in the Registration Statement,
the Prospectus or any amendments or supplements thereto, as set forth in
Section 1(b) hereof.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either Section 6(a) or 6(b)
above, such person (the "INDEMNIFIED PARTY") shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING
PARTY") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to
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represent the indemnified party and any others the indemnifying party
may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all such indemnified parties and that
all such fees and expenses shall be reimbursed as they are incurred.
Such firm shall be designated in writing by the Agents, in the case of
parties indemnified pursuant to Section 6(a), and by the Guarantor, in
the case of parties indemnified pursuant to Section 6(b). The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party in writing to reimburse
the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying
party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement
is entered into more than 60 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of each indemnified party,
effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such proceeding.
(d) To the extent the indemnification provided for in Section
6(a) or 6(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Operating
Partnership and the Guarantor on the one hand and the Agents on the
other hand from the offering of the Notes to which such losses, claims
damages or liabilities relates or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Operating
Partnership and the Guarantor on the one hand and of the Agents on the
other hand in
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connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the
Operating Partnership and the Guarantor on the one hand and the Agents
on the other hand in connection with such offering of the Notes shall be
deemed to be in the same respective proportions as the total net
proceeds from such offering of the Notes (before deducting expenses)
received by the Operating Partnership or the Guarantor bear to the total
discounts and commissions received by the Agents in respect thereof. The
relative fault of the Operating Partnership and the Guarantor on the one
hand and the Agents on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Operating
Partnership and the Guarantor or by the Agents and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Agents' respective obligations
to contribute pursuant to this Section 6 are several in the proportion
that the principal amount of the Notes the sale of which by or through
such Agent gave rise to such losses, claims, damages or liabilities
bears to the aggregate principal amount of the Notes the sale of which
by or through any Agent gave rise to such losses, claims, damages or
liabilities, and not joint.
(e) The Operating Partnership and Guarantor and the Agents agree
that it would not be just or equitable if contribution pursuant to this
Section 6 were determined by pro rata allocation (even if the Agents
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in Section 6(d) shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, no Agent shall be required to contribute
any amount in excess of the amount by which the total price at which the
Notes referred to in Section 6(d) that were offered and sold to the
public through such Agent exceeds the amount of any damages that such
Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 6 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6 and the representations, warranties and other statements of
the Company contained in this Distribution Agreement or any Terms
Agreement shall remain operative and in full force and effect regardless
of (i) any termination of this Distribution Agreement or any such Terms
Agreement, (ii) any investigation made by or on behalf of any Agent or
any person controlling any Agent or by or on behalf of the Company, the
Guarantor's officers or directors or any person controlling the
Operating Partnership or the Guarantor and (iii) acceptance of and
payment for any of the Notes.
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7. POSITION OF THE AGENTS. In acting under this Distribution
Agreement and in connection with the sale of any Notes by the Operating
Partnership (other than Notes sold to an Agent pursuant to a Terms Agreement),
each Agent is acting solely as agent of the Operating Partnership and does not
assume any obligation towards or relationship of agency or trust with any
purchaser of Notes. An Agent shall use its reasonable best efforts to assist the
Operating Partnership in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and accepted by the Operating
Partnership, but such Agent shall not have any liability to the Operating
Partnership or the Company in the event any such purchase is not consummated for
any reason. If the Operating Partnership shall default in its obligations to
deliver Notes to a purchaser whose offer it has accepted, the Operating
Partnership shall hold the relevant Agent harmless against any loss, claim,
damage or liability arising from or as a result of such default and shall, in
particular, pay to such Agent the commission it would have received had such
sale been consummated.
8. TERMINATION. This Distribution Agreement may be terminated at any
time by the Operating Partnership or, as to any Agent, by the Operating
Partnership or such Agent upon the giving of written notice of such termination
to the other parties hereto, but without prejudice to any rights, obligations or
liabilities of any party hereto accrued or incurred prior to such termination.
In the event of such termination with respect to any Agent, this Agreement shall
remain in full force and effect with respect to any Agent as to which such
termination has not occurred. The termination of this Distribution Agreement
shall not require termination of any Terms Agreement, and the termination of any
such Terms Agreement shall not require termination of this Distribution
Agreement. If this Distribution Agreement is terminated, the provisions of the
third paragraph of Section 2(a), Section 2(e), the last sentence of Section 3(b)
and Sections 3(c), 3(h), 6, 7, 9, 10 and 13 hereof shall survive; provided that
if at the time of termination an offer to purchase Notes has been accepted by
the Operating Partnership but the time of delivery to the purchaser or its agent
of such Notes has not occurred, the provisions of Sections 1, 2(b), 2(c), 3(a),
3(d), 3(e), 3(f), 3(g), 3(i), and 5 hereof shall also survive until such
delivery has been made.
9. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, with respect to any party hereto, will be
mailed, delivered or telefaxed and confirmed as follows:
to Morgan Stanley at: 1585 Broadway,
New York, New York, 10036
Attention: Manager, Credit
Department
Telefax number: 212-761-0780
with a copy to: 1585 Broadway,
New York, New York, 10036
Attention: COPS, Manager
Telefax number: 212-761-0780
34
36
to Banc of America Securities LLC at: 100 North Tryon Street
Charlotte, NC 28255-0001
Attention: Lynn T. McConnell
Telefax number: (704) 388-9939
to Banc One Capital Markets, Inc. at: 1 Banc One Plaza
Chicago, Illinois 60670
Attention: Corporate Securities
Structuring
Telefax number: (312) 732-4773
to Chase Securities Inc. at: 270 Park Avenue, 8th Floor
New York, New York 10017-2070
Attention: Medium-Term Note Desk
Telefax number: (212) 834-6081
to Merrill Lynch, Pierce, Fenner & 250 Vesey Street
Smith Incorporated at: WFCN-10
New York, New York 10281
Attention: Transaction Management
Group
Telefax number: (212) 449-2234
to J.P. Morgan Securities Inc. at: 60 Wall Street,
New York, New York 10260
Attention: Transactional Execution
Group
Telefax number: (212) 648-5151
to Salomon Smith Barney Inc. at: 388 Greenwich Street
32nd Floor
New York, NY 10013
Attention: Medium Term Note
Department
Telefax number: (212) 816-0949
to the Company at: 505 Montgomery St. Suite 500
San Francisco, California 94111
Attention: General Counsel
Telefax number: (415) 394-9001
with a copy to: Latham & Watkins
505 Montgomery St. Suite 1900
San Francisco, California 94111
Attention: Jeffery T. Pero and
Laura L. Gabriel
Telefax number: (415) 395-8095
35
37
10. SUCCESSORS. This Distribution Agreement and any Terms Agreement
will inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers, directors and controlling persons
referred to in Section 6 and the purchasers of Notes (to the extent expressly
provided in Section 4), and no other person will have any right or obligation
hereunder.
11. AMENDMENTS. This Distribution Agreement may be amended or
supplemented if, but only if, such amendment or supplement is in writing and is
signed by the Operating Partnership, the Guarantor and each Agent; provided that
the Operating Partnership may from time to time, on seven days prior written
notice to the Agents but without the consent of any Agent, amend this
Distribution Agreement to add as a party hereto one or more additional firms
registered under the Exchange Act, whereupon each such firm shall become an
Agent hereunder on the same terms and conditions as the other Agents that are
parties hereto. The Agents shall sign any amendment or supplement giving effect
to the addition of any such firm as an Agent under this Distribution Agreement.
12. COUNTERPARTS. This Distribution Agreement may be signed in two
or more counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. This Distribution Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York.
14. HEADINGS. The headings of the sections of this Distribution
Agreement have been inserted for convenience of reference only and shall not be
deemed a part of this Distribution Agreement.
36
38
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
AMB PROPERTY L.P.
By: AMB Property Corporation,
its General Partner
By: /s/ W. BLAKE BAIRD
---------------------------------
Name: W. Blake Baird
Title: President
AMB PROPERTY CORPORATION
By: /s/ W. BLAKE BAIRD
-------------------------------------
Name: W. Blake Baird
Title: President
The foregoing Distribution Agreement is hereby confirmed and accepted as of the
date first above written.
MORGAN STANLEY & CO. INCORPORATED
By: /s/ MICHAEL FUSCO
-----------------------------
Name: Michael Fusco
Title: Vice President
BANC OF AMERICA SECURITIES LLC
By: /s/ LILY CHANG
-----------------------------
Name: Lily Chang
Title: Principal
BANC ONE CAPITAL MARKETS, INC.
By: /s/ KATHERINE COKIC
-----------------------------
Name: Katherine Cokic
Title: Vice President
37
39
CHASE SECURITIES INC.
By: /s/ THERESE ESPERDY
------------------------------
Name: Therese Esperdy
Title: Managing Director
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: /s/ DIANE KENNA
------------------------------
Name: Diane Kenna
Title: Authorized Signatory
J.P. MORGAN SECURITIES INC.
By: /s/ ROB NORDLINGER
------------------------------
Name: /s/ Rob Nordlinger
Title: Vice President
SALOMON SMITH BARNEY INC.
By: /s/ ROBERT DECKEY
------------------------------
Name: Robert Deckey
Title: Director
38
40
SCHEDULE I
SUBSIDIARIES
MATERIAL SUBSIDIARIES OF THE OPERATING PARTNERSHIP
AMB Property II, L.P., a Delaware limited partnership
Long Gate, LLC, a Delaware limited liability company
MATERIAL SUBSIDIARIES OF THE GUARANTOR
AMB Property, L.P., a Delaware limited partnership
AMB Property II, L.P., a Delaware limited partnership
Long Gate, LLC, a Delaware limited liability company
41
SCHEDULE II
AGENTS
Morgan Stanley & Co. Incorporated
Banc of America Securities LLC
Banc One Capital Markets, Inc.
Chase Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
J.P. Morgan Securities Inc.
Salomon Smith Barney Inc.
42
SCHEDULE III
JOINT VENTURES
- --------------------------------------------------------------------------------------------------------------------------
JOINT VENTURE (PROPERTIES) OWNERS PERCENTAGE
- --------------------------------------------------------------------------------------------------------------------------
CH-VAF Orlando Joint Venture - AMB Property, L.P. 90%
(Chancellor) - 7575 Chancellor Associates L.P. 10%
- --------------------------------------------------------------------------------------------------------------------------
Hamilton Lakes/AMB IIF Limited - Hamilton Lakes Commerce Center #6
Partnership Limited Partnership (GP) 27%
(Nippon Express) - AMB Property, L.P. (LP) 73%
- --------------------------------------------------------------------------------------------------------------------------
Met Phase I 95, Ltd. - Met Phase One 95, Ltd. (GP) 12.87%
(Metric Center) - AMB Property, L.P. 87.15%
- --------------------------------------------------------------------------------------------------------------------------
AMB/Erie, L.P. - AMB Property, L.P. (GP) 50%
(Jamesburg; Minnetonka - Erie Indemnity Company (LP) 5%
Industrial; South Point Business Park) - Erie Indemnity Company as attorney
in fact for Erie Insurance Exchange (LP) 40%
- Erie Family Life Insurance Company (LP) 5%
- --------------------------------------------------------------------------------------------------------------------------
AMB Erie Local, L.P. - AMB Property II, L.P. (GP) 0.1%
(Corporate Park/Hickory Hill; - AMB/Erie, L.P. (LP) 99.9%
Garland Industrial)
- --------------------------------------------------------------------------------------------------------------------------
Sugar Magnolia LLC - TCC North Florida Development #1, Inc. 5%
(Orlando Central Park Development) - AMB Property, L.P. 95%
- --------------------------------------------------------------------------------------------------------------------------
AMB-TC Southriver Park NJ LLC - Trammell Crow Northeast Development, Inc. 5%
(South River Park Development) - AMB Property, L.P. 95%
- --------------------------------------------------------------------------------------------------------------------------
Keep Your Day Job LLC - Mansfield Land LLC 10%
(Cabot Business Park Land - Phase - AMB Property, L.P. 90%
I & II)
- --------------------------------------------------------------------------------------------------------------------------
Walstib, L.P. - Walstib Venture L.L.C (GP) $100,000
(North Great SW Industrial Park) - TCDFW Development, Ltd. (LP) 5% of remainder
- AMB Property, L.P. (LP) 95% of remainder
- --------------------------------------------------------------------------------------------------------------------------
TC NW Crossing Venture, LLC - TC NW Crossing Development, Ltd. 5%
(Northwest Crossing Distribution Center) - AMB Property, L.P. 95%
- --------------------------------------------------------------------------------------------------------------------------
Los Angeles Media Tech Center, LLC - AMB/Erie, L.P. 98%
(LA Media Tech Center) - Legacy Partners 2361, L.P. 2%
- --------------------------------------------------------------------------------------------------------------------------
Dark Starr Limited Partnership - LEF/Kendall Mall, Ltd. 49.9999%
(Kendall Mall) - AMB Property, L.P. 50.0001%
- --------------------------------------------------------------------------------------------------------------------------
Manhattan Village LLC - Macerich Manhattan Limited Partnership 10%
(Manhattan Village) 90%
- AMB Property, L.P.
- --------------------------------------------------------------------------------------------------------------------------
American Beauty General - LEF/Palm-Aire, Ltd. 49.9999%
Partnership - AMB Property, L.P. 50.0001%
(Palm Aire)
- --------------------------------------------------------------------------------------------------------------------------
St. Stephen Limited Partnership - LEF/Delray Mall Ltd. (GP) 49.9999%
(Plaza at Delray) - AMB Property, L.P. (LP) 50.0001%
- --------------------------------------------------------------------------------------------------------------------------
Terrapin Station Limited - LEF/Springs Gate Village, Ltd. (GP) 49.9999%
Partnership - AMB Property, L.P. (LP) 50.0001%
(Springs Gate)
- --------------------------------------------------------------------------------------------------------------------------
Built to Last Limited Partnership - LEF/Northridge Ltd. (GP) 49.9999%
(Northridge) - AMB Property, L.P. (LP) 50.0001%
- --------------------------------------------------------------------------------------------------------------------------
Casey Jones, LLC - AMB Property, L.P. 90%
(Around Lennox) - Alpine Investors, L.P. 8%
- Lenox Holdings, LLC 2%
- --------------------------------------------------------------------------------------------------------------------------
43
- ---------------------------------------------------------------------------------------------------------------------
JOINT VENTURE (PROPERTIES) OWNERS PERCENTAGE
- ---------------------------------------------------------------------------------------------------------------------
- AMB Property, L.P. (GP) 0.1892%
AMB Institutional Alliance Fund I, L.P. - AMB Fund Special GP, LLC (Special GP) 0.0019%
(Concord Industrial Portfolio; Diablo - AMB Institutional Alliance REIT I, Inc. (LP) 79.9943%
Industrial Park; Gateway Corporate - ABM Property, L.P. (LP) 19.8145%
Center; Gateway North; Bennington
Corporate Center; Southfield Logistics
Center; JFK Air Cargo Portfolio;
Gateway 58; Northbrook Distribution
Center)
- ---------------------------------------------------------------------------------------------------------------------
Trammell Crow Company/AMB Air Cargo, L.P. - AMB Property Holding II Corporation (GP) 1%
[Name changed to Fund I Sub OP, L.P.] - AMB Institutional Alliance Fund I, L.P. (LP) 99%
(DFW Int'l Air Cargo - Phase I;
DFW Airfreight Portfolio)
- ---------------------------------------------------------------------------------------------------------------------
M.O.R. IV Associates, LLP - AMB Institutional Alliance Fund I, L.P. (GP) 1%
(Oakridge IV) - AMB Property II, L.P. (LP) 98%
- AMB Institutional Alliance Fund I, L.P. (LP)
- ---------------------------------------------------------------------------------------------------------------------
M.O.R. VI Associates, LLP (Oakridge VI) - AMB Institutional Alliance Fund I, L.P. (GP) 1%
- AMB Property II, L.P. (LP) 1%
- AMB Institutional Alliance Fund I, L.P. (LP) 98%
- ---------------------------------------------------------------------------------------------------------------------
TC Aviation DFW, L.P. - TCW Aviation DFW, L.L.C. (GP) $150,000
(DFW Int'l Air Cargo - Phase II) - TCDFW Development, Ltd. (LP) 5% of remainder
- AMB Property, L.P. (LP) 1% of remainder
- AMB Property II, L.P. (LP) 94% of remainder
- ---------------------------------------------------------------------------------------------------------------------
TCC/AMB Aviation IAH, L.P. - TCC/AMB Aviation IAH Venture, LLC (GP) $115,000
(Houston Int'l Air Cargo) - Trammell Crow Houston, Ltd. 5% of remainder
- AMB Property, L.P. 1% of remainder
- AMB Institutional Alliance Fund I, L.P. 94% of remainder
- ---------------------------------------------------------------------------------------------------------------------
TCC/AMB Aviation PDX, LLC - TC Portland, Inc. 5%
(Portland Air Cargo) - AMB Property, L.P. 95%
- ---------------------------------------------------------------------------------------------------------------------
Van Nuys Industrial Center, LLC - [TCC Entity] 5%
(Van Nuys Industrial) - AMB Property, L.P. 95%
- ---------------------------------------------------------------------------------------------------------------------
44
EXHIBIT A
AMB PROPERTY, L.P.
MEDIUM-TERM NOTES
TERMS AGREEMENT
_________________, 2000
AMB PROPERTY, L.P.
505 Montgomery St., Suite 500
San Francisco, California 94556
Attention: General Counsel
Re: Distribution Agreement dated August 15, 2000 (the "Distribution
Agreement")
We agree to purchase your Medium-Term Notes having the following terms:
ALL NOTES:
- --------------------------------------------------------------------------------
Principal Amount: Settlement Date and Time
(Original Issue Date):
Specified Currency: Maturity Date:
Principal Financial Center: Trade Date:
Form: Agent's Commission or Discount:
Exchange Rate Agent: Net Proceeds to Issuer:
Interest Payment Dates: Authorized Denomination:
Redemption: Regular Record Dates:
Redemption Commencement Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Discount Note: Repayment:
Issue Price: Optional Repayment Date(s):
Total Amount of OID: Repayment Price:
Yield to Maturity:
Initial Accrual Period:
45
FIXED RATE NOTES: FLOATING RATE NOTES:
- -------------------------------------- -------------------------------
Interest Rate: Initial Interest Rate:
Other/Additional Terms: Calculation Agent:
Interest Rate Basis:
Index Maturity:
Interest Reset Frequency:
Initial Interest Reset Date:
Interest Reset Date(s):
Interest Determination Date(s):
Maximum Interest Rate:
Minimum Interest Rate:
Spread:
Spread Multiplier:
Interest Category:
Other/Additional Terms:
The provisions of Sections 1, 2(b), 2(c), 3 through 6, and 9 through 13
of the Distribution Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if set
forth in full herein.
This Terms Agreement may be terminated at any time any party upon the
giving of written notice of such termination to the other parties hereto, but
without prejudice to any rights, obligations or liabilities of any party hereto
accrued or incurred prior to such termination. The termination of the
Distribution Agreement shall not require termination of this Terms Agreement,
and the termination of this Terms Agreement shall not require termination of the
Distribution Agreement. This Agreement is also subject to termination on the
terms incorporated by reference herein. If this Agreement is terminated, the
provisions of Sections 3(h), 6, 9, 10 and 13 of the Distribution Agreement shall
survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the Distribution Agreement will be required:
________________
[NAME OF RELEVANT AGENT(S)]
By: ________________________________
Name:
Title:
Accepted:
AMB PROPERTY, L.P.
By: AMB Property Corporation,
its General Partner
By: ____________________________
Name:
Title:
2
46
EXHIBIT B
AMB PROPERTY L.P.
MEDIUM-TERM NOTES
ADMINISTRATIVE PROCEDURES
-------------------------------------
Explained below are the administrative procedures and specific terms of
the offering of Medium-Term Notes (the "NOTES"), on a continuous basis by AMB
Property L.P. (the "OPERATING PARTNERSHIP") pursuant to the Distribution
Agreement, dated as of August 15, 2000 (the "DISTRIBUTION AGREEMENT") among the
Operating Partnership, AMB Property Corporation, a Maryland corporation, the
sole general partner of the Operating Partnership and guarantor of the Notes
(the "GUARANTOR") and Morgan Stanley & Co. Incorporated, Banc of America
Securities LLC, Banc One Capital Markets, Inc., Chase Securities Inc., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities Inc. and
Salomon Smith Barney Inc. and each other agent set forth on Schedule II to the
Distribution Agreement (the "Agents"). The Notes will be issued under an
Indenture and the First Supplemental Indenture, the Second Supplemental
Indenture and the Third Supplemental Indenture thereto, each dated as of June
30, 1998, and the Fourth Supplemental Indenture, dated as of August 15, 2000
(collectively, the "INDENTURE"), and each by and among the Operating
Partnership, the Guarantor, and State Street Bank and Trust Company of
California, N.A., as Trustee (the "TRUSTEE"). In the Distribution Agreement, the
Agents have agreed to use reasonable best efforts to solicit purchases of the
Notes, and the administrative procedures explained below will govern the
issuance and settlement of any Notes sold through an Agent, as agent of the
Operating Partnership. An Agent, as principal, may also purchase Notes for its
own account, and if requested by such Agent, the Operating Partnership and such
Agent will enter into a terms agreement (a "TERMS AGREEMENT"), as contemplated
by the Distribution Agreement. The administrative procedures explained below
will govern the issuance and settlement of any Notes purchased by an Agent, as
principal, unless otherwise specified in the applicable Terms Agreement.
The Trustee will initially be the Registrar, Calculation Agent,
Authenticating Agent, Exchange Rate Agent and Paying Agent for the Notes and
will perform the duties specified herein. The Operating Partnership may from
time to time name other or additional Registrars, Calculation Agents,
Authenticating Agents, Exchange Rate Agents and Paying Agents. Each Note will be
represented by either a Global Security (as defined below) delivered to the
Trustee, as agent for The Depository Trust Company ("DTC"), and recorded in the
book-entry system maintained by DTC (a "BOOK-ENTRY NOTE") or a certificate
delivered to the holder thereof or a person designated by such holder (a
"CERTIFICATED NOTE"). Except as set forth in the Indenture, an owner of a
Book-Entry Note will not be entitled to receive a Certificated Note.
Book-Entry Notes, which may be payable only in U.S. dollars, will be
issued in accordance with the administrative procedures set forth in Part I
hereof as they may subsequently be amended as the result of changes in DTC's
operating procedures. Certificated Notes will be issued in accordance with the
administrative procedures set forth in Part II hereof. Unless otherwise defined
in the Indenture, the Notes or any prospectus supplement relating to the Notes,
capitalized terms used herein but not defined herein shall have the meanings
given to them in the Distribution Agreement.
47
Unless otherwise specified by the Operating Partnership, the Agents are
to communicate with the Chief Financial Officer regarding offers to purchase
Notes and the related settlement details.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Operating Partnership, Guarantor and the Trustee to DTC, dated as of
August 15, 2000, and a Medium-Term Note Certificate Agreement between the
Trustee and DTC, dated August 21, 1989 (the "MTN CERTIFICATE Agreement"), and
its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under "SETTLEMENT" below)
for one or more Book-Entry Notes, the Operating Partnership will
issue a single global security in fully registered form without
coupons (a "GLOBAL SECURITY") representing up to U.S.
$400,000,000 principal amount of all such Notes that have the
same Original Issue Date, Maturity Date and other terms. Each
Global Security will be dated and issued as of the date of its
authentication by the Trustee. Each Global Security will bear an
"INTEREST ACCRUAL DATE," which will be (i) with respect to an
original Global Security (or any portion thereof), its original
issuance date and (ii) with respect to any Global Security (or
any portion thereof) issued subsequently upon exchange of a
Global Security, or in lieu of a destroyed, lost or stolen Global
Security, the most recent Interest Payment Date to which interest
has been paid or duly provided for on the predecessor Global
Security (or if no such payment or provision has been made, the
original issuance date of the predecessor Global Security),
regardless of the date of authentication of such subsequently
issued Global Security. Book-Entry Notes may be payable only in
U.S. dollars. No Global Security will represent any Certificated
Note.
Denominations: Book-Entry Notes will be issued in principal amounts of U.S.
$1,000 or any amount in excess thereof that is an integral
multiple of U.S. $1,000. Global Securities will be denominated in
principal amounts not in excess of U.S. $400,000,000. If one or
more Book-Entry Notes having an aggregate principal amount in
excess of $400,000,000 would, but for the preceding sentence, be
represented by a single Global Security, then one Global Security
will be issued to represent each U.S. $400,000,000 principal
amount of such Book-Entry Note or Notes and an additional Global
Security will be issued to represent any remaining principal
amount of such Book-Entry Note or Notes. In such a case, each of
the Global Securities representing such Book-Entry Note or Notes
shall be assigned the same CUSIP number.
Preparation of If any offer to purchase a Book-Entry Note is accepted by or on
behalf of Pricing Supplement the Operating Partnership, the Operating
Partnership will prepare a pricing supplement (a "PRICING SUPPLEMENT")
reflecting the terms of such Note. The Operating
2
48
Partnership (i) will arrange to file such Pricing Supplement with the Commission
in accordance with the applicable paragraph of Rule 424(b) under the Act and
(ii) will, as soon as possible and in any event not later than the date on which
such Pricing Supplement is filed with the Commission, deliver the number of
copies of such Pricing Supplement to the relevant Agent as such Agent shall
request.
In each instance that a Pricing Supplement is prepared, the relevant
Agent will affix the Pricing Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements, and the Prospectuses to which they
are attached (other than those retained for files), will be destroyed.
Settlement: The receipt by the Operating Partnership of immediately available
funds in payment for a Book-Entry Note and the authentication and
issuance of the Global Security representing such Note shall
constitute "settlement" with respect to such Note. All offers
accepted by the Operating Partnership will be settled on the
third Business Day next succeeding the date of acceptance
pursuant to the timetable for settlement set forth below, unless
the Operating Partnership and the purchaser agree to settlement
on another day, which shall be no earlier than the next Business
Day.
Settlement Settlement Procedures with regard to each Book-Entry Note sold by
Procedures: the Operating Partnership to or through an Agent (unless
otherwise specified pursuant to a Terms Agreement) shall be as
follows:
The relevant Agent will advise the Operating Partnership by telephone that such
Note is a Book-Entry Note and of the following settlement information:
Principal amount.
Settlement date and time (Original Issue Date).
Specified Currency and Principal Financial Center.
Maturity Date.
Trade Date.
Exchange Rate Agent (if other than State Street Bank & Trust Company of
California N.A).
Agent's commission or discount (if any) determined as provided in the
Distribution Agreement.
Net Proceeds to Issuer.
Authorized Denomination (if other than $1,000 or integral multiples
thereof).
Interest Payment Date(s).
Regular Record Dates.
Redemption or repayment provisions (if any).
3
49
Whether the Note is an Original Issue Discount Note (an "OID NOTE"), and
if it is an OID Note, the total amount of OID, the yield to maturity,
the initial accrual period OID.
In the case of a Fixed Rate Note:
the Interest Rate. In the case of a Floating Rate Note:
the Initial Interest Rate (if known at such time).
Calculation Agent (if other than State Street Bank & Trust Company of
California, N.A).
Interest Rate Basis which may include:
CD Rate
Commercial Paper Rate
CMT Rate
EURIBOR
Federal Funds Rate
LIBOR
Prime Rate
Treasury Rate
Other
Index Maturity.
Interest Reset Frequency.
Maximum Interest Rate.
Minimum Interest Rate.
Initial Interest Reset Date.
Interest Reset Date(s).
Interest Determinations Date.
Spread and/or Spread Multiplier (if any). Whether the Note is:
a Regular Floating Rate Note a Floating Rate/Fixed Rate Note (in which
case the fixed rate commencement date and the fixed interest rate shall
be specified) or an Inverse Floating Rate Note (in which case the fixed
interest rate shall be specified). Any other applicable terms including
the applicability of an Addendum or Other Additional Provisions.
The Operating Partnership will advise the Trustee by telephone or electronic
transmission (confirmed in writing at any time on the same date) of the
information set forth in Settlement Procedure "A" above. The Trustee will then
assign a CUSIP number to the Global Security representing such Note and will
notify the Operating Partnership and the relevant Agent of such CUSIP number by
telephone as soon as practicable.
4
50
The Trustee will enter a pending deposit message through DTC's Participant
Terminal System, providing the following settlement information to DTC, the
relevant Agent and Standard & Poor's Corporation:
The information set forth in Settlement Procedure "A".
The Initial Interest Payment Date for such note, the number of days by
which such date succeeds the related DTC Record Date (which in the case
of Floating Rate Notes which reset daily or weekly, shall be the date
five calendar days immediately preceding the applicable Interest Payment
Date and, in the case of other Notes, shall be the Record Date as
defined in the Note) and, if known, the amount of interest payable on
such Initial Interest Payment Date.
The CUSIP number of the Global Security representing such Note.
Whether such Global Security will represent any other Book-Entry Note
(to the extent known at such time).
The number of participant accounts to be maintained by DTC on behalf of
the relevant Agent and the Trustee.
The Trustee will complete and authenticate the Global Security representing such
Note.
DTC will credit such note to the Trustee's participant account at DTC.
The Trustee will enter an SDFS deliver order through DTC's participant Terminal
System instructing DTC to (i) debit such Note to the Trustee's participant
account and credit such Note to the relevant Agent's participant account and
(ii) debit such Agent's settlement account and credit the Trustee's settlement
account for an amount equal to the price of such Note less such Agent's
commission (if any). The entry of such a deliver order shall constitute a
representation and warranty by the Trustee to DTC that (a) the Global Security
representing such Book-Entry Note has been issued and authenticated and (b) the
Trustee is holding such Global Security pursuant to the MTN Certificate
Agreement.
Unless the relevant Agent is the end purchaser of such Note, such Agent will
enter an SDFS deliver order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to such Agent's participant account and
credit such Note to the participant accounts of the Participants with respect to
such Note and (ii) to debit the settlement accounts of such Participants and
credit the settlement account of such Agent for an amount equal to the price of
such Note.
Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
The Trustee will credit to the account of the Operating Partnership maintained
at Bank of America, Dallas, Texas, ABA #111000012, Account # 3750785562, Account
Name: AMB Property, LP, or such other account as the Operating Partnership may
from time to time
5
51
direct, in immediately available funds the amount transferred to the Trustee in
accordance with Settlement Procedure "F".
Unless the relevant Agent is the end purchaser of such Note, such Agent will
confirm the purchase of such note to the purchaser either by transmitting to the
Participants with respect to such Note a confirmation order or orders through
DTC's institutional delivery system or by mailing a written confirmation to such
purchaser.
Monthly, the Trustee will send to the Operating Partnership, a statement setting
forth the principal amount of Notes outstanding as of that date under the
Indenture and setting forth a brief description of any sales of which the
Operating Partnership has advised the Trustee that have not yet been settled.
Settlement For Sales by the Operating Partnership of Book-Entry Notes to or
Procedures through an Agent (unless otherwise specified pursuant to a Terms
Timetable: Agreement) for settlement on the first Business Day after the
sale date, Settlement Procedures "A" through "J" set forth above
shall be completed as soon as possible but not later than the
respective times in New York City set forth below:
Settlement
Procedure Time
----------- ----
A 11:00 A.M. on sale date
B 12:00 Noon on sale date
C 2:00 P.M. on sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more than one (1) Business Day after
the sale date, Settlement Procedures "A", "B" and "C" shall be
completed as soon as practicable but no later than 11:00 A.M.,
12:00 Noon and 2:00 P.M., respectively, on the first Business Day
after the sale date. If the Initial Interest Rate for a Floating
Rate Book-Entry Note has not been determined at the time that
Settlement procedure "A" is completed, Settlement Procedures "B"
and "C" shall be completed as soon as such rate has been
determined but no later than 12:00 Noon and 2:00 P.M.,
respectively, on the first Business Day before the settlement
date. Settlement Procedure "H" is subject to extension in
accordance with any extension of Fedwire closing deadlines and in
the other events specified in the SDFS operating procedures in
effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or canceled,
the Trustee, after receiving notice from the Operating
Partnership or the relevant Agent, will deliver to DTC, through
DTC's Participant Terminal System, a
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cancellation message to such effect by no later than 2:00 P.M. on
the Business Day immediately proceeding the scheduled settlement
date.
If the Trustee fails to enter an SDFS deliver order with respect
to a Book-Entry Note pursuant to Settlement Procedure "F", the
Trustee may deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal message instructing
DTC to debit such Note to the Trustee's participant account,
provided that the Trustee's participant account contains a
principal amount of the Global Security representing such Note
that is at least equal to the principal amount to be debited. If
a withdrawal message is processed with respect to all the
Book-Entry Notes represented by a Global Security, the Trustee
will mark such Global Security "canceled," make appropriate
entries in the Trustee's records and send such canceled Global
Security to the Operating Partnership. The CUSIP number assigned
to such Global Security shall, in accordance with the procedures
of the CUSIP Service Bureau of Standard & Poor's Corporation, be
canceled and not immediately reassigned. If a withdrawal message
is processed with respect to one or more, but not all, of the
Book-Entry Notes represented by a Global Security, the Trustee
will exchange such Global Security for two Global Securities, one
of which shall represent such Book-Entry Note or Notes and shall
be canceled immediately after issuance and the other of which
shall represent the remaining Book-Entry Notes previously
represented by the surrendered Global Security and shall bear the
CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely paid
to the Participants with respect to such Note by the beneficial
purchaser thereof (or a person, including an indirect participant
in DTC, acting on behalf of such purchaser), such Participants
and, in turn, the relevant Agent may enter SDFS deliver orders
through DTC's Participant Terminal System reversing the orders
entered pursuant to Settlement Procedures "F" and "C",
respectively. Thereafter, the Trustee will deliver the withdrawal
message and take the related actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures then in effect.
In the event of a failure to settle with respect to one or more,
but not all, of the Book-Entry Notes to have been represented by
a Global Security, the Trustee will provide, in accordance with
Settlement procedures "D" and "F", for the authentication and
issuance of a Global Security representing the Book-Entry Notes
to be represented by such Global Security and will make
appropriate entries in its records.
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PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as Registrar in connection with the Certificated
Notes.
Issuance: Each Certificated Note will be dated and issued as of the date of
its authentication by the Trustee. Each Certificated Note will
bear an Original Issue Date, which will be (i) with respect to an
original Certificated Note (or any portion thereof), its original
issuance date (which will be the settlement date) and (ii) with
respect to any Certificated Note (or portion thereof) issued
subsequently upon transfer or exchange of a Certificated Note or
in lieu of a destroyed, lost or stolen Certificated Note, the
original issuance date of the predecessor Certificated Note,
regardless of the date of authentication of such subsequently
issued Certificated Note.
Preparation If any offer to purchase a Certificated Note is accepted by or on
of Pricing behalf of the Operating Partnership, the Operating Partnership
Settlement: will prepare a Pricing Supplement reflecting the terms of such
Note. The Operating Partnership (i) will arrange to file such
Pricing Supplement with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Act and (ii) will,
as soon as possible and in any event not later than the date on
which such Pricing Supplement is filed with the Commission,
deliver the number of copies of such Pricing Supplement to the
relevant Agent as such Agent shall request.
In each instance that a Pricing Supplement is prepared, the
relevant Agent will affix the Pricing Supplement to Prospectuses
prior to their use. Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other than those
retained for files), will be destroyed.
Settlement: The receipt by the Operating Partnership of immediately available
funds in exchange for an authenticated Certificated Note
delivered to the relevant Agent and such Agent's delivery of such
Note against receipt of immediately available funds shall
constitute "settlement" with respect to such Note. All offers
accepted by the Operating Partnership will be settled on the
third Business Day next succeeding the date of acceptance
pursuant to the timetable for settlement set forth below, unless
the Operating Partnership and the purchaser agree to settlement
on another date, which date shall be no earlier than the next
Business Day.
Settlement Settlement Procedures with regard to each Certificated Note sold
Procedures: by the Operating Partnership to or through an Agent (unless
otherwise specified pursuant to a Terms Agreement) shall be as
follows:
A. The relevant Agent will advise the Operating Partnership
by telephone that such Note is a Certificated Note and of
the following settlement information:
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Name in which such Note is to be registered ("REGISTERED HOLDER").
Address of the Registered Holder and address for payment of principal
and interest.
Taxpayer identification number of the Registered Holder (if available).
Principal amount.
Settlement date and time (Original Issue Date).
Specified Currency and Principal Financial Center.
Maturity Date.
Trade Date.
Exchange Rate Agent (if other than State Street Bank & Trust Company of
California, N.A).
Agent's commission or discount (if any) determined as provided in the
Distribution Agreement.
Authorized Denomination (if other than $1,000 or integral multiples
thereof).
Interest Payment Date(s).
Regular Record Dates
Redemption or repayment provisions (if any).
Whether the Note is an Original Issue Discount Note (an "OID NOTE"), and
if it is an OID Note, the total amount of OID, the yield to maturity,
the initial accrual period OID.
In the case of a Fixed Rate Note:
the Interest Rate. In the case of a Floating Rate Note:
the Initial Interest Rate (if known at such time).
Calculation Agent (if other than State Street Bank & Trust Company of
California, N.A).
Interest Rate Basis which may include:
CD Rate
Commercial Paper Rate
CMT Rate
EURIBOR
Federal Funds Rate
LIBOR
Prime Rate
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Treasury Rate
Other
Index Maturity.
Interest Reset Frequency.
Maximum Interest Rate.
Minimum Interest Rate.
Initial Interest Reset Date.
Interest Reset Date(s).
Interest Determinations Date.
Spread and/or Spread Multiplier (if any). whether the Note is:
a Regular Floating Rate Note a Floating Rate/Fixed Rate Note (in which
case the fixed rate commencement date and the fixed interest rate shall
be specified) or an Inverse Floating Rate Note (in which case the fixed
interest rate shall be specified). Any other applicable terms including
the applicability of an Addendum or Other/Additional Provisions.
The Operating Partnership will advise the Trustee by telephone or electronic
transmission (confirmed in writing at any time on the same date) of the
information set forth in Settlement Procedure "A" above.
The Operating Partnership will have delivered to the Trustee a pre-printed
four-ply packet for such Note, which packet will contain the following documents
in forms that have been approved by the Operating Partnership, the relevant
Agent and the Trustee:
Note with customer confirmation.
Stub One -- For the Trustee.
Stub Two -- For the relevant Agent.
Stub Three -- For the Operating Partnership.
The Trustee will complete such Note and authenticate such Note and deliver it
(with the confirmation) and Stubs One and Two to the relevant Agent, and such
Agent will acknowledge receipt of the Note by stamping or otherwise marking Stub
One and returning it to the Trustee. Such delivery will be made only against
such acknowledgment of receipt and evidence that instructions have been given by
such Agent for payment to the account of the Operating Partnership at Bank of
America, Dallas, Texas, ABA #111000012, Account # 3750785562, Account Name: AMB
Property, LP, or to such other account as the Operating Partnership shall have
specified to such Agent and the Trustee, in immediately available funds, of an
amount equal to the price of such Note less such Agent's commission (if any). In
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the event that the instructions given by such Agent for payment to the account
of the Operating Partnership are revoked, the Operating Partnership will as
promptly as possible wire transfer to the account of such Agent an amount of
immediately available funds equal to the amount of such payment made.
Unless the relevant Agent is the end purchaser of such Note, such Agent will
deliver such Note (with confirmation) to the customer against payment in
immediately available funds. Such Agent will obtain the acknowledgment of
receipt of such Note by retaining Stub Two.
The Trustee will send Stub Three to the Operating Partnership by first-class
mail. Monthly, the Trustee will also send to the Operating Partnership a
statement setting forth the principal amount of the Notes outstanding as of that
date under the Indenture and setting forth a brief description of any sales of
which the Operating Partnership has advised the Trustee that have not yet been
settled.
Settlement For sales by the Operating Partnership of Certificated Notes to
Procedures or through an Agent (unless otherwise specified pursuant to a
Timetable: Terms Agreement), Settlement Procedures "A" through "F" set forth
above shall be completed on or before the respective times in New
York City set forth below:
Settlement
Procedure Time
---------- ----
A. 2:00 P.M. on day before settlement date.
B. 3:00 P.M. on day before settlement date.
C-D. 2:15 P.M. on settlement date.
E. 3:00 P.M. on settlement date.
F. 5:00 P.M. on settlement date.
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Failure to If a purchaser fails to accept delivery of and make payment for
Settle: any Certificated Note, the relevant Agent will notify the
Operating Partnership and the Trustee by telephone and return
such Note to the Trustee. Upon receipt of such notice, the
Operating Partnership will immediately wire transfer to the
account of such Agent an amount equal to the amount credited to
the account of the Operating Partnership in accordance with
Settlement Procedure D. Such wire transfer will be made on the
settlement date, if possible, and in any event not later than the
Business Day following the settlement date. If the failure shall
have occurred for any reason other than a default by such Agent
in the performance of its obligations hereunder and under the
Distribution Agreement, then the Operating Partnership will
reimburse such Agent or the Trustee, as appropriate, on an
equitable basis for its loss of the use of the funds during the
period when they were credited to the account of the Operating
Partnership. Immediately upon receipt of the Certificated Note in
respect of which such failure occurred, the Trustee will mark
such Note "cancelled," make appropriate entries in the Trustee's
records and send such Note to the Operating Partnership.
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