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EXHIBIT 10.1
AMB PROPERTY, L.P.
$400,000,000 SERIES B MEDIUM-TERM NOTES
DUE 9 MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
MAY 7, 2002
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MAY 7, 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 7, 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
10
<PAGE>
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
<PAGE>
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
<PAGE>
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:
<TABLE>
<CAPTION>
TERM
COMMISSION RATE
----
---------------
<S>
<C>
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
</TABLE>
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
<PAGE>
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
<PAGE>
(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
<PAGE>
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
<PAGE>
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
<PAGE>
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 c
