EXHIBIT 1.1
AMB PROPERTY, L.P.
$400,000,000 SERIES B MEDIUM-TERM NOTES
DUE 9 MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
MAY __, 2002
MAY __, 2002
Morgan Stanley & Co. Incorporated
A.G. Edwards & Sons, Inc.
Banc of America Securities LLC
Bear, Stearns & Co. Inc.
Commerzbank Capital Markets Corp.
First Union Securities, Inc.
J.P. Morgan Securities Inc.
Lehman Brothers Inc. and
PNC Capital Markets, Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Ladies and Gentleman:
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 Series B 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). 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, the Fourth
Supplemental Indenture, dated as of August 15, 2000 and the Fifth Supplemental
Indenture dated as of May __, 2002 (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"), A.G. Edwards & Sons, Inc., Banc of America
Securities LLC, Bear, Stearns & Co. Inc., Commerzbank Capital Markets Corp.,
First Union Securities, Inc., J.P. Morgan Securities Inc., Lehman Brothers Inc.
and PNC Capital Markets, Inc., and each other agent set forth on Schedule II
hereto (individually, an "AGENT" and collectively, the "AGENTS") as
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its agents, subject to 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 or through certain investment banking firms as
underwriters for resale to the public. 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. No commission will be
payable to the Agents on any Notes sold as described in the immediately
preceding two sentences.
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. 333-86842), including a prospectus, relating to the Notes
and the guarantees of the Notes (the "GUARANTEES"). 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 supplements
and/or 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, (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, third,
fourth and fifth sentences of the third paragraph, the first sentence
of fifth paragraph, beginning with the language "but have been advised
. . .", the sixth paragraph and the eighth paragraph (it being
understood that First Union Securities, Inc. shall be solely
responsible for the contents of this eighth paragraph) under the
heading "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 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
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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 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
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Adverse Effect. The Operating Partnership, the Guarantor or a
subsidiary of the Operating Partnership or the 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 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, the 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.
(l) All of the issued and outstanding partnership 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.
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(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 required.
(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.
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(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 note 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 March 31, 2002 the Company (directly or
indirectly) owned 921 buildings and centers (the
"Properties"), comprised of 914 industrial buildings and 7
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 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"),
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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;
(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
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(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;
(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;
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(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 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
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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) The independent auditors of the Company, 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.
(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
11
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 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
12
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:
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
13
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 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 the
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 the 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.
14
(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 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
15
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.
(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
16
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 the
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 the 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 the 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 the 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
17
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 potential investors, (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;
18
(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 Chicago
Mercantile Exchange or the Chicago Board of Trade or a
material disruption in securities settlement or clearance
services, (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, including,
without limitation, an act of terrorism, 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 or inadvisable 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, the
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,
19
lease and operate its properties, to conduct its
business as described in the Prospectus and to enter
into and perform its obligations under this
Agreement, the Notes, the Indenture, the Calculation
Agency Agreement and any applicable Written Terms
Agreement in the form attached as Exhibit A to this
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 conduct
its business as described in a certificate provided
to us by such Subsidiary, and, based solely on
certificates of public officials, is 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
Agreement, the Indenture and any applicable Written
Terms Agreement in the form attached as Exhibit A to
this 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 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 Agreement and the consummation of
the transactions contemplated thereby, will not
result in (i) the violation by the Operating
Partnership of its certificate of limited
partnership, the Sixth Amended and Restated Agreement
of Limited Partnership of the Operating Partnership
dated as of April 17, 2002 or the Revised Uniform
Limited Partnership Act of the State of Delaware or
(ii) the violation by the Operating Partnership or
the Guarantor of any federal, New York or California
statute, rule or regulation known to such 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 (iii) in the breach or default under any
of the Material Agreements; 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 Realty
Resources, Inc. and The Chase Manhattan Bank, the
Revolving Credit Agreement dated as of May 24, 2000
among the Operating
20
Partnership and the banks listed therein (the
"Revolving Credit Agreement"), the Guaranty of
Payment made as of May 24, 2000 between the Guarantor
and JP Morgan Chase Bank (formerly Morgan Guaranty
Trust Company of New York), as administrative agent
for the banks listed on the signature page of the
Revolving Credit Agreement or the Revolving Credit
Agreement dated as of August 23, 2001, among AMB
Institutional Alliance Fund II, L.P., AMB
Institutional Alliance REIT II, Inc., the banks and
financial institutions listed therein, Bank of
America, N.A., as Administrative Agent, Dresdner
Bank, AG, as Syndication Agent, and Bank One, N.A.,
as Documentation Agent. 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
Agreement, the Indenture and any applicable Written
Terms Agreement in the form attached as Exhibit A to
this 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, the 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 Agreement and the consummation of
the transactions contemplated hereby and thereby,
except such as have been obtained under the Act and
such as may be required under the Act or under state
securities laws in connection with the issuance and
sale of the Notes.
No opinion is expressed in this paragraph as
to the application of Section 548 of the Federal
Bankruptcy Code and comparable provisions of state
law, or under other laws customarily excluded from
such opinions, including federal securities laws
(certain aspects of which are expressly addressed
elsewhere herein), state securities laws, antifraud
laws, or antitrust or trade regulation laws, ERISA or
similar laws.
(E) assuming due authorization by the
Guarantor on its own behalf and in its capacity as
the general partner of the Operating Partnership,
this 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
21
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 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 Agreement and
any applicable Written Terms Agreement in the form
attached as Exhibit A to the 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 in the Prospectus under
the captions "Description of Notes" and "Plan of
Distribution," insofar as they purport to describe or
summarize certain provisions of the agreements,
statutes or regulations referred to therein, are
accurate descriptions or summaries in all material
respects;
(K) the statements in the Prospectus under
the caption "Certain Federal Income Tax
Considerations," insofar as they purport to describe
or
22
summarize certain provisions of the agreements,
statutes or regulations referred to therein, are
accurate descriptions or summaries 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 nor any Subsidiary will be, an
"investment company" within the meaning of the
Investment Company Act of 1940, as amended; and
(M) the Registration Statement, as of the
date it was declared effective, and the Prospectus,
as of its date, complied 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, other financial
data, or exhibits included in, incorporated by
reference in, or omitted from, the Registration
Statement, the Prospectus or the Incorporated
Documents, 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 Incorporated
Documents. In passing upon the compliance as to form
of the Registration Statement and the Prospectus,
counsel may have assume that the statements made and
incorporated by reference therein are correct and
complete.
In addition, such counsel shall state 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 Agents 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 or
incorporated by reference in the Registration Statement and
the Prospectus (except as specifically stated in paragraphs
(J) and (K) above) or the Incorporated Documents and have 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, including the Incorporated Documents, 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
Incorporated Documents), as of its date and the date hereof,
contained or contains an untrue statement of a material fact
or omitted or omits 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 express no belief with respect to the
23
financial statements, schedules, other financial data, or
exhibits included or incorporated by reference in, or omitted
from, the Registration Statement or the Prospectus 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 such 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
Agreement, the Indenture and any applicable Written
Terms Agreement in the form attached as Exhibit A to
this 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 Agreement, the
Notes, the Guarantees, the Indenture, the Calculation
Agency Agreement and any applicable Written Terms
Agreement in the form attached as Exhibit A hereto
and the consummation of the transactions contemplated
thereby, will not result in a breach or default under
(i) the Revolving Credit Agreement, (ii) the
Revolving Credit Agreement dated as of August 23,
2001, among AMB Institutional Alliance Fund II, L.P.,
AMB Institutional Alliance REIT II, Inc., the banks
and financial institutions listed therein, Bank of
America, N.A., as Administrative Agent, Dresdner
Bank, AG, as Syndication Agent, and Bank One, N.A.,
as Documentation Agent (the "Alliance Fund II Credit
Agreement") or (iii) the Guaranty of Payment made as
of May 24, 2000 between the Guarantor and JPMorgan
Chase Bank (formerly 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").;
(D) each of the Incorporated Documents
complied as to form in all material respects with the
requirements of the Exchange Act and the rules and
regulations thereunder; 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 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.
24
(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 Agreement, the
Guarantees, the Indenture and any applicable Written
Terms Agreement delivered in accordance with the
terms of this Agreement and the Indenture;
(B) the issuance of the Notes in accordance
with the terms of this 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 Agreement and the
Indenture, by the Board of Directors or the 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, and are authenticated, issued and
delivered against payment therefor in accordance with
the terms of the Indenture and this 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 Agreement have been duly
authorized by all necessary corporate action required
under the Charter and Bylaws of the Guarantor and the
MGCL; and this Agreement has been duly executed and,
to the best of such counsel's knowledge, delivered by
the Guarantor in its individual capacity and its
capacity as general partner of the Operating
Partnership;
(D) the execution and delivery in accordance
with the terms of this 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
Agreement and the Indenture by the Board of Directors
or the Medium Term Note Committee of the Board of
Directors
25
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 Agreement, any applicable Written
Terms Agreement executed and delivered on or before a
Settlement Date will have been duly executed and, to
the best of counsel's knowledge, 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 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 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 Agreement and
the Indenture, by the Board of Directors or the
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 Agreement, such 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 Agreement, the
Guarantees, the Indenture and any applicable Written
Terms Agreement, and the consummation of the
transactions contemplated thereby, in each case in
accordance with the terms of this Agreement and the
Indenture (i) will not contravene any provision of
the MGCL, (ii) will not result in any violation of
the provisions of the Charter or Bylaws of the
Guarantor, and (iii) will not, to 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;
26
(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, in accordance with this Agreement and the
Indenture, except for such as have been obtained; and
(I) the information in the Registration
Statement under Item 15 to the extent that it
constitutes matters of Maryland law or a summary of
the provisions of the Charter of the Guarantor has
been reviewed by us and is correct in all material
respects.
(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 the Company's 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.
27
(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 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 (vi) 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 the 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 the 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 the
Guarantor will furnish or cause to be furnished as soon as reasonably
28
practicable to each Agent written opinions of independent and corporate
counsel for the Operating Partnership and the 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).
(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) arising out of or 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 arising out of 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 the 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
29
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 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.
30
(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 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 the 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
31
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.
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:
32
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
to A.G. Edwards & Sons, Inc. at: One North Jefferson
St. Louis, MO 63103
Attention: Brian Hansen
Telefax number: (314) 955-4775
to Banc of America Securities
LLC at: NC1-007-08-17
100 North Tryon Street
Charlotte, NC 28255
Attention: Medium-Term Note Desk
Telefax number: (704) 388-9939
to Bear, Stearns & Co. Inc. at: 245 Park Avenue
New York, NY 10167
Attention: Daniel Blood
Telefax number: (212) 272-8217
to Commerzbank Capital
Markets Corp. at: 2 World Financial Center, 34th Floor
New York, NY 10281-1050
Attention: David Schwarz
Telefax number: (212) 266-7656
to First Union Securities, Inc.
at: One First Union Center
301 South College Street
Charlotte, NC 28288-5604
Attention: Daniel Sullivan
Telefax number: (704) 383-6205
to J.P. Morgan Securities Inc.
at: 270 Park Avenue
7th Floor
New York, NY 10017
Attention: Transaction Execution Group
Telefax number: (212) 834-6702
to Lehman Brothers Inc. at: 745 Seventh Avenue,
3rd Floor
New York, NY 10019
33
Attention: Fixed Income Syndicate, MTN
Desk
Telefax number: (212) 526-0943
to PNC Capital Markets, Inc. at: 249 Fifth Avenue, 26th Floor
Pittsburgh, PA 15219
Attention: Robert W. Thomas
Telefax number: (212) 705-2014
if to an Agent, with a copy to: Gibson, Dunn & Crutcher LLP
One Montgomery Street
31st Floor
San Francisco, CA 94104
Attention: Douglas D. Smith, Esq.
Telefax number: (415) 986-5309
to the Company at: Pier 1, Bay 1
San Francisco, California 94111
Attention: General Counsel
Telefax number: (415) 394-9000
with a copy to: Latham & Watkins 505 Montgomery St. Suite 1900
San Francisco, California 94111
Attention: Laura L. Gabriel and
Tracy M. Abels
Telefax number: (415) 395-8095
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 amend this Distribution
Agreement to add as a party hereto one or more additional firms registered under
the Exchange Act without prior notice to or the consent of any Agent or the
signature of any Agent on any such amendment, whereupon each such firm shall
become an Agent hereunder on the same terms and conditions as the other Agents
that are parties hereto. The Operating Partnership shall notify the Agents of
any such amendment to add one or more additional firms on or before the
Settlement Date to which such amendment relates.
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.
34
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.
[Signature Page Follows]
35
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:______________________
Name:
Title:
AMB PROPERTY CORPORATION
By: _________________________
Name:
Title:
[Signature page to Distribution Agreement]
The foregoing Distribution Agreement
is hereby confirmed and accepted
as of the date first above written.
MORGAN STANLEY & CO. INCORPORATED
By: _______________________________
Name:
Title:
A.G. EDWARDS & SONS, INC.
By: _______________________________
Name:
Title:
BANC OF AMERICA SECURITIES LLC
By: _______________________________
Name:
Title:
BEAR, STEARNS & CO. INC.
By: _______________________________
Name:
Title:
36
COMMERZBANK CAPITAL MARKETS CORP.
By: _______________________________
Name:
Title:
FIRST UNION SECURITIES, INC.
By: _______________________________
Name:
Title:
J.P. MORGAN SECURITIES INC.
By: _______________________________
Name:
Title:
LEHMAN BROTHERS INC.
By: _______________________________
Name:
Title:
PNC CAPITAL MARKETS, INC.
By: _______________________________
Name:
Title:
[Signature page to Distribution Agreement]
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
SCHEDULE II
AGENTS
Morgan Stanley & Co. Incorporated
A.G. Edwards & Sons, Inc.
Banc of America Securities LLC
Bear, Stearns & Co. Inc.
Commerzbank Capital Markets Corp.
First Union Securities, Inc.
J.P. Morgan Securities Inc.
Lehman Brothers Inc.
PNC Capital Markets, Inc.
SCHEDULE III
JOINT VENTURES PARTNERSHIP PERCENTAGES
- ------------------------------------------------------------------------------------------------------------------------------------
LEGAL ENTITY PARTNERS PERCENTAGE
- ------------------------------------------------------------------------------------------------------------------------------------
AIG AMB Greenfield Investment - AMB Development Services, LLC 50%
Alliance, L.L.C. - AIG Global Real Estate Investment Company 50%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB/Erie, L.P. - AMB Property, L.P. (GP) 50%
- Erie Indemnity Company (LP) 5%
- 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%
- AMB/Erie, L.P. (LP) 99.9%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB Florida Retail GP, LLC - AMB Property, L.P. 100%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB Institutional Alliance Fund I, - AMB Property, L.P. (GP) 0.1892%
L.P. - AMB Fund Special GP, LLC (Special GP) .0019%
- AMB Institutional Alliance REIT I, Inc. (LP) 79.9943%
- AMB Property, L.P. (LP) 19.8145%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB Institutional Alliance Fund II, - AMB Property, L.P. (GP) 1%
L.P. - AMB Property, L.P. (LP) 19%
- Bakar AMB Limited Partnership 8.15%
- AMB Institutional Alliance REIT II, Inc. 71.85%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB/MAR Carson, LLC - AMB Property, L.P. 95%
- Carson Town Center 5%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB Partners II, L.P. - AMB Property, L.P. 99%
- CCSFERS 1%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB Partners II Local, L.P. - AMB Property II, L.P. 99%
- CCSFERS 1%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB/AFCO Cargo, LLC - AMP Property, L.P. 95%
- Aviation Facilities Company, Inc. 4.5%
- AFCO EP, LLC .5%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB/AFCO Cargo BWI, LLC - AMB/AFCO Cargo, LLC 100%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB/AFCO Cargo BWI, L.P. - AMB/AFCO Cargo BWI, LLC (GP) 1%
- AMB/AFCO Cargo, LLC (LP) 99%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB/AFCO Cargo DFW, L.P. - AMB Property II, L.P. (GP) 1%
- AMB/AFCO Cargo, LLC (LP) 99%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB/AFCO Cargo LAX, LLC - AMB/AFCO Cargo, LLC 100%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB/AFCO Cargo SEA, LLC - AMB/AFCO Cargo, LLC 100%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB/AFCO Cargo SEA II, LLC - AMB/AFCO Cargo, LLC 100%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB/AFCO Cargo West*Pac, LLC - AMB/AFCO Cargo, LLC 100%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB-SGP, L.P. - GIC Real Estate 49.75%
- AMB Property, L.P. (GP) 1%
- AMB Property, L.P. (LP) 49.25%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB-SGP Corporation - 100 accomodation shareholders
- ------------------------------------------------------------------------------------------------------------------------------------
AMB-SGP California, LLC - AMB-SGP Operating Partnership, L.P. 100%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB-SGP CIF-California, LLC - AMB-SGP Operating Partnership, L.P. 100%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB-SGP CIF-I, LLC - AMB-SGP Operating Partnership, L.P. 100%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB-SGP Georgia, LLC - AMB-SGP Operating Partnership, L.P. 100%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB-SGP Docks, LLC - AMB-SGP Operating Partnership, L.P. 100%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB-SGP CIF-Illinois, L.P. - AMB Property II, L.P. (GP) 1%
- AMB-SGP Operating Partnership, L.P. (LP) 99%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB-SGP Operating Partnership, L.P. - AMB-SGP Corporation (GP) 1%
- AMB-SGP Corporation (LP) 98%
- AMB-SGP Special Partner Corporation (LP) .1%
- AMB-Property, L.P. (LP) .99%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB-SGP TX/IL, L.P. - AMB Property II, L.P. (GP) 1%
- AMB-SGP Operating Partnership, L.P. (LP) 99%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB-TC Southriver Park NJ, LLC - Researching if partnership interests changed
- ------------------------------------------------------------------------------------------------------------------------------------
AMB/TR Four 2001, Ltd. Limited - AMB Partners II Local, L.P. (GP) 1%
Partnership - AMB Partners II Local, L.P. (LP) 69%
- TR Section Four, Ltd. (LP) 30%
- ------------------------------------------------------------------------------------------------------------------------------------
AMB/TR Three 2000, Ltd. - AMB Property Holding II Corporation 1%
- AMB Institutional Alliance Fund I, L.P. 69%
- TR Section Three, Ltd. 30%
- ------------------------------------------------------------------------------------------------------------------------------------
American Beauty General Partnership - LEF/Palm-Aire, Ltd. 49.9999%
- ------------------------------------------------------------------------------------------------------------------------------------
-1-
- -----------------------------------------------------------------------------------------------------------------------------------
LEGAL ENTITY PARTNERS PERCENTAGE
- -----------------------------------------------------------------------------------------------------------------------------------
- AMB Property, L.P. 50.0001%
- -----------------------------------------------------------------------------------------------------------------------------------
Built to Last Limited Partnership - LEF/Northridge Ltd. (GP) 49.9999%
- AMB Property, L.P. (LP) 50.0001%
- -----------------------------------------------------------------------------------------------------------------------------------
CH-VAF Orlando Joint Venture - AMB Property, L.P. 90%
- 7575 Chancellor Associates L.P. 10%
- -----------------------------------------------------------------------------------------------------------------------------------
Casey Jones, LLC - AMB Property, L.P. 90%
- Alpine Investors, L.P. 8%
- Lenox Holdings, LLC 2%
- -----------------------------------------------------------------------------------------------------------------------------------
Dark Starr Limited Partnership - AMB Property, L.P. (was CCSFERS and then
assigned at IPO) 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Doug Fir, LLC - AMB Partners II, L.P. 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Fund I Sub OP, L.P. (f/k/a/ Trammell - AMB Property Holding II Corporation 99%
Crow Company/AMB Air Cargo, L.P.) - AMB Institutional Alliance Fund I, L.P. 1%
- -----------------------------------------------------------------------------------------------------------------------------------
Hamilton Lakes/AMB IIF Limited - Hamilton Lakes Commerce Center #6 Limited
Partnership Partnership (GP) 27%
- AMB Industrial Income Fund, Inc. (LP) 73%
- -----------------------------------------------------------------------------------------------------------------------------------
Jack Straw Limited Partnership - Plaza West GP, LLC 50.0001%
- Lef/Plaza West, Ltd. 49.9999%
- -----------------------------------------------------------------------------------------------------------------------------------
Keep Your Day Job LLC - Mansfield Land LLC 10%
- AMB Property, L.P. 90%
- -----------------------------------------------------------------------------------------------------------------------------------
Los Angeles Media Tech Center, LLC - AMB/Erie, L.P. 98%
- Legacy Partners 2361, L.P. 2%
- -----------------------------------------------------------------------------------------------------------------------------------
M.O.R. IV Associates, LLLP - AMB Property, L.P. (GP) 1%
- AMB Property II, L.P. (LP) 1%
- AMB Property, L.P. (LP) 98%
- -----------------------------------------------------------------------------------------------------------------------------------
M.O.R. VI Associates, LLLP - AMB Property, L.P. (GP) 1%
- AMB Property II, L.P. (LP) 1%
- AMB Property, L.P. (LP) 98%
- -----------------------------------------------------------------------------------------------------------------------------------
MOR Rivers, LLC (successor to MOR XIV -
Associates)
- -----------------------------------------------------------------------------------------------------------------------------------
Manhattan Village LLC - AMB Property II, L.P. 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Majestic/AMB Pico Rivera Associates, - Pico Rivera Business Center Subpartnership I 50%
LLC - AMB Property, L.P. 50%
- -----------------------------------------------------------------------------------------------------------------------------------
Met Phase I 95, Ltd. - Met Phase One 95, Ltd. (GP) 12.87%
- CCSFERS Met One, Inc. 87.15%
- -----------------------------------------------------------------------------------------------------------------------------------
Monte Vista Spectrum, LLC - Majestic Monte Visa Subpartnership 50%
- AMB Property, L.P. 50%
- -----------------------------------------------------------------------------------------------------------------------------------
Royal Palm Acquisitions, LLC - AMB Property, L.P. 100%
- -----------------------------------------------------------------------------------------------------------------------------------
St. Stephen Limited Partnership - LEF/Delray Mall Ltd. (GP) 49.9999%
- CCSFERS (LP) 50.0001%
- -----------------------------------------------------------------------------------------------------------------------------------
Sub-OP Fund II, L.P. - AMB Institutional Alliance Fund II, L.P. (LP)
- AMB Property II, L.P. (GP)
- -----------------------------------------------------------------------------------------------------------------------------------
Sugar Magnolia LLC - TCC North Florida Development #1, Inc. 5% (Phase II only)
- AMB Property, L.P. 95% (Phase II only;
100% owner of Phase I)
- -----------------------------------------------------------------------------------------------------------------------------------
TC Aviation DFW, LLC -
- -----------------------------------------------------------------------------------------------------------------------------------
TC NW Crossing Venture, LLC - TC NW Crossing Development, Ltd. 5%
- AMB Property, L.P. 95%
- -----------------------------------------------------------------------------------------------------------------------------------
TCC/AMB Aviation IAH, L.P. - TCC/AMB Aviation IAH Venture, LLC (GP) $115,000 initial
- Trammell Crow Houston, Ltd. contribution by GP,
- AMB Property, L.P. the remaining amount
- AMB Institutional Alliance Fund I, L.P. is split 5%, 1% and
94% respectively
- -----------------------------------------------------------------------------------------------------------------------------------
TCC/AMB Aviation PDX, LLC - TC Portland, Inc. (administrative member) 5%
- AMB Property, L.P. 95%
- -----------------------------------------------------------------------------------------------------------------------------------
Terrapin Station Limited Partnership - LEF/Springs Gate Village, Ltd. 49.9999%
- AMB Property, L.P. 50.0001%
- -----------------------------------------------------------------------------------------------------------------------------------
Van Nuys Industrial Center, LLC - Trammell Crow So Cal, Inc. 5%
- AMB Property, L.P. 95%
- -----------------------------------------------------------------------------------------------------------------------------------
Walstib, L.P. - TCDFW Development Ltd.
- AMB Property, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
-2-
EXHIBIT A
AMB PROPERTY, L.P.
SERIES B MEDIUM-TERM NOTES
TERMS AGREEMENT
[Date]
AMB PROPERTY, L.P.
Pier 1, Bay 1
San Francisco, California 94556
Attention: General Counsel
Re: Distribution Agreement dated May __, 2002 (the "DISTRIBUTION
AGREEMENT")
We agree to purchase your Series B 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:
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.
Exhibit A - Page 2
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:
Exhibit A - Page 3
EXHIBIT B
AMB PROPERTY L.P.
SERIES B MEDIUM-TERM NOTES
ADMINISTRATIVE PROCEDURES
-------------------------------------
Explained below are the administrative procedures and specific terms of
the offering of Series B 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 May __, 2002 (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, A.G. Edwards & Sons,
Inc., Banc of America Securities LLC, Bear, Stearns & Co. Inc., Commerzbank
Capital Markets Corp., First Union Securities, Inc., J.P. Morgan Securities
Inc., Lehman Brothers Inc. and PNC Capital Markets, 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, the Fourth Supplemental Indenture, dated as of August
15, 2000 and the Fifth Supplemental Indenture dated as of May __, 2002
(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,
38
capitalized terms used herein but not defined herein shall have the meanings
given to them in the Distribution Agreement.
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, the 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.
Exhibit B - Page 2
Preparation of
Pricing
Supplement: If any offer to purchase a Book-Entry Note is accepted by
or on behalf of the Operating Partnership, the Operating
Partnership will prepare a pricing supplement (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 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
Procedures: sold 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
Book-Entry Note and of the following settlement
information:
1. Principal amount.
2. Settlement date and time (Original Issue
Date).
3. Specified Currency and Principal Financial
Center.
4. Maturity Date.
5. Trade Date.
6. Exchange Rate Agent (if other than State
Street Bank & Trust Company of California
N.A).
Exhibit B - Page 3
7. Agent's commission or discount (if any)
determined as provided in the Distribution
Agreement.
8. Net Proceeds to Issuer.
9. Authorized Denomination (if other than
$1,000 or integral multiples thereof).
10. Interest Payment Date(s).
11. Regular Record Dates.
12. Redemption or repayment provisions (if any).
13. 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.
14. In the case of a Fixed Rate Note:
(a) the Interest Rate.
15. In the case of a Floating Rate Note:
(a) the Initial Interest Rate (if known at
such time).
(b) Calculation Agent (if other than State
Street Bank & Trust Company of
California, N.A).
(c) Interest Rate Basis which may include:
- CD Rate
- Commercial Paper Rate
- CMT Rate
- EURIBOR
- Federal Funds Rate
- LIBOR
- Prime Rate
- Treasury Rate
- Other
(d) Index Maturity.
(e) Interest Reset Frequency.
(f) Maximum Interest Rate.
(g) Minimum Interest Rate.
Exhibit B - Page 4
(h) Initial Interest Reset Date.
(i) Interest Reset Date(s).
(j) Interest Determinations Date.
(k) Spread and/or Spread Multiplier (if
any).
(l) 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).
16. Any other applicable terms including the
applicability of an Addendum or Other
Additional Provisions.
B. 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.
C. 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:
1. The information set forth in Settlement Procedure "A".
2. 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.
3. The CUSIP number of the Global Security representing such
Note.
4. Whether such Global Security will represent any other
Book-Entry Note (to the extent known at such time).
5. The number of participant accounts to be maintained by DTC on
behalf of the relevant Agent and the Trustee.
D. The Trustee will complete and authenticate the Global Security
representing such Note.
Exhibit B - Page 5
E. DTC will credit such note to the Trustee's participant account at DTC.
F. 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.
G. 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.
H. 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.
I. 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 direct, in immediately
available funds the amount transferred to the Trustee in accordance
with Settlement Procedure "F".
J. 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.
K. 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
Procedures or through an Agent (unless otherwise specified pursuant to a
Timetable: Terms 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:
Exhibit B - Page 6
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 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
Exhibit B - Page 7
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.
Exhibit B - Page 8
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
of Pricing by or on behalf of of the Operating Partnership, the
Supplement: Operating Partnership 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
Procedures: Note sold 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:
Exhibit B - Page 9
1. Name in which such Note is to be registered
("REGISTERED HOLDER").
2. Address of the Registered Holder and address
for payment of principal and interest.
3. Taxpayer identification number of the
Registered Holder (if available).
4. Principal amount.
5. Settlement date and time (Original Issue
Date).
6. Specified Currency and Principal Financial
Center.
7. Maturity Date.
8. Trade Date.
9. Exchange Rate Agent (if other than State
Street Bank & Trust Company of California,
N.A.).
10. Agent's commission or discount (if any)
determined as provided in the Distribution
Agreement.
11. Authorized Denomination (if other than
$1,000 or integral multiples thereof).
12. Interest Payment Date(s).
13. Regular Record Dates
14. Redemption or repayment provisions (if any).
15. 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.
16. In the case of a Fixed Rate Note:
(a) the Interest Rate.
17. In the case of a Floating Rate Note:
(a) the Initial Interest Rate (if known at
such time).
(b) Calculation Agent (if other than State
Street Bank & Trust Company of
California, N.A.).
(c) Interest Rate Basis which may include:
- CD Rate
Exhibit B - Page 10
- Commercial Paper Rate
- CMT Rate
- EURIBOR
- Federal Funds Rate
- LIBOR
- Prime Rate
- Treasury Rate
- Other
(d) Index Maturity.
(e) Interest Reset Frequency.
(f) Maximum Interest Rate.
(g) Minimum Interest Rate.
(h) Initial Interest Reset Date.
(i) Interest Reset Date(s).
(j) Interest Determinations Date.
(k) Spread and/or Spread Multiplier (if
any).
(l) 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).
(m) Any other applicable terms including the
applicability of an Addendum or
Other/Additional Provisions.
B. 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.
C. 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:
1. Note with customer confirmation.
Exhibit B - Page 11
2. Stub One - For the Trustee.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Operating Partnership.
D. 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 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.
E. 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.
F. 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
Procedures to or through an Agent (unless otherwise specified pursuant to
Timetable: a 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
Failure to If a purchaser fails to accept delivery of and make payment
Settle: for any Certificated Note, the relevant Agent will notify the
Operating Partnership
Exhibit B - Page 12
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.
Exhibit B - Page 13