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EXHIBIT 1.1
4,000,000 SHARES
AMB PROPERTY CORPORATION
SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK,
PAR VALUE $.01 PER SHARE
UNDERWRITING AGREEMENT
JULY , 1998
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July , 1998
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
PaineWebber Incorporated
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
AMB Property Corporation, a Maryland corporation (the "COMPANY"),
proposes to issue and sell to the several Underwriters named in Schedule I
hereto (the "UNDERWRITERS") 4,000,000 shares of its ___% Series A Cumulative
Redeemable Preferred Stock, par value $.01 per share (the "FIRM SHARES"). The
Company also proposes to issue and sell to the several Underwriters not more
than an additional 600,000 shares of its ___% Series A Cumulative Redeemable
Preferred Stock, par value $.01 per share (the "ADDITIONAL SHARES") if and to
the extent that you, as representatives of the offering (the "REPRESENTATIVES"),
shall have determined to exercise, on behalf of the Underwriters, the right to
purchase such shares of preferred stock granted to the Underwriters in Section 2
hereof. The Firm Shares and the Additional Shares are hereinafter collectively
referred to as the "SHARES".
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-11 (File No. 333-58107)
relating to the Shares. The registration statement as amended at the time it
becomes effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "SECURITIES Act"), is hereinafter
referred to as the "REGISTRATION STATEMENT"; the prospectus in the form first
used to confirm sales of Shares is hereinafter referred to as the "PROSPECTUS."
If the Company has filed an abbreviated registration statement to register
additional shares of ___% Series A Cumulative Redeemable Preferred Stock
pursuant to Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION
STATEMENT"), then any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462 Registration Statement.
1. REPRESENTATIONS AND WARRANTIES. The Company and the Operating
Partnership, jointly and severally, represent and warrant to and agree with each
of the Underwriters that:
(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 Company, threatened by the Commission.
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(b) (i) The Registration Statement, when it became effective,
did 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 required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement and
the Prospectus 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 (iii)
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 the representations and warranties set forth in
this paragraph 1(b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein, which are (i) the
legend on the inside front cover page of the Prospectus with respect to
stabilizing activity and (ii) the allocation table, and the _______ and
_________ paragraphs under the caption "Underwriters" contained in the
Prospectus.
(c) The Company 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 Agreement. The
Company is duly qualified or registered as a foreign corporation and is
in good standing in California and is in good standing in each other
jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or be
registered or to be in good standing in such other jurisdiction would
not result in a material adverse effect on the consolidated financial
position, results of operations or business of the Company, the
Operating Partnership and each subsidiary of the Company set forth on
Schedule II hereto (each, a "SUBSIDIARY," and, collectively, the
"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 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 Company is the
sole
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general partner of the Operating Partnership and owns the percentage
interest in the Operating Partnership as set forth in the Prospectus.
(e) Each Subsidiary has been, as the case may be, duly
incorporated or organized, is validly existing as a partnership,
corporation, limited liability company or real estate investment trust
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 in the Prospectus, are owned directly or indirectly by the
Company or the Operating Partnership, free and clear of all liens,
encumbrances, equities or claims. The Company has no subsidiaries other
than the Subsidiaries and the joint venture entities listed on Schedule
III hereto.
(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 Adverse Effect. The
Company, the Operating Partnership or a Subsidiary owns 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.
(g) This Agreement has been duly authorized, executed and
delivered by the Company and the Operating Partnership and constitutes
the valid and binding agreement of the Company and the Operating
Partnership, enforceable against them in accordance with its terms;
provided, however, that the enforceability of this Agreement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally.
(h) The Company has an authorized capitalization as set forth
in the Prospectus, and the authorized capital stock of the Company
conforms as to legal matters to the description thereof contained in
the Prospectus.
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(i) All of the issued and outstanding units of the Operating
Partnership (the "UNITS") have been duly and validly authorized and
issued and conform to the description thereof contained in the
Prospectus. The Units owned by the Company are owned directly by the
Company, free and clear of all liens, encumbrances, equities or claims.
(j) The Shares have been duly authorized and classified for
issuance and sale to the Underwriters pursuant to this Agreement. On or
prior to the Closing Date, the Company will have executed and filed
Articles Supplementary ("ARTICLES SUPPLEMENTARY") to its Articles of
Incorporation establishing the terms of the Shares with the State
Department of Assessments and Taxation of Maryland (the "SDAT") and,
when the Shares are duly paid for and certificates therefor are duly
countersigned and delivered as provided herein, the Shares will be
validly issued, fully paid and nonassessable. The issuance of the
Shares is not subject to preemptive or similar rights.
(k) The execution, delivery and performance of this Agreement
by the Company and the Operating Partnership and the consummation of
the transactions contemplated hereby will not (A) 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, the Operating Partnership or any Subsidiary is a
party or by which the Company, the Operating Partnership or any
Subsidiary is bound or to which any of the property or assets of the
Company, the Operating Partnership or any Subsidiary is subject, except
for such breach or violation which would not, singly or in the
aggregate, have a Material Adverse Effect, (B) result in any violation
of the provisions of the charter, by-laws, certificate of limited
partnership, partnership agreement or other organizational documents of
the Company, the Operating Partnership or any Subsidiary, as the case
may be, or (C) 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, the Operating Partnership or any
Subsidiary, 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,
delivery and performance of this Agreement by the Company and the
Operating Partnership and the consummation of the transactions
contemplated hereby, except for (i) the registration of the Shares
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and applicable
state and foreign securities laws in connection with the purchase and
distribution of the Shares by the Underwriters and (ii) consents,
approvals, authorizations, orders, filings or registrations that will
be completed on or prior to the Closing Date.
(l) There are no legal or governmental proceedings pending or,
to the knowledge of the Company and the Operating Partnership,
threatened, to which the Company, the Operating Partnership or any
Subsidiary is a party or to which any of the
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properties of the Company, the Operating Partnership or any Subsidiary
are subject that are required to be described in the Registration
Statement or the Prospectus and are not so described, 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
or filed as required.
(m) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of' the Commission thereunder.
(n) None of the Company, the Operating Partnership or any
Subsidiary is, and after giving effect to the offering and sale of the
Shares 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.
(o) Other than as set forth in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to the Registration
Statement.
(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 Company from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement). Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus:
(i) the Company, the Operating Partnership and the Subsidiaries have
not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the
ordinary course of business; (ii) the Company has not purchased any of
its outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock; (iii) the
Operating Partnership has not purchased any of its outstanding Units,
nor declared, paid or otherwise made any dividend or distribution of
any kind on its Units; and (iv) there has not been any material change
in the capital stock, short-term debt or long-term debt of the Company,
the Operating Partnership or the Subsidiaries, except in each case as
described in or contemplated by the Prospectus.
(q) Except as otherwise disclosed in the Prospectus:
(i) the Company has good and marketable fee simple
title to the land underlying the Properties (as defined in the
Prospectus) and good and marketable title to the improvements
thereon, other than those improvements located on land which
the Company acts as the ground lessor, as disclosed in the
Prospectus (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
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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 as of the Closing Date, 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 material statutory liens not
due and payable as of the Closing Date, 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;
(ii) with respect to the Properties held through
Joint Ventures (the "JOINT VENTURE PROPERTIES"), the Joint
Ventures that currently own such Properties have good and
marketable fee simple title to the land underlying such
Properties and good and marketable title to the improvements
thereon, other than the Tenant Owned Improvements, and all
other assets that are required for the effective operation of
such Properties in the manner in which they currently are
operated, subject to the exceptions set forth in clause (i)
above;
(iii) 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 therein;
(iv) neither the Company nor 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 neither
the Company nor the Operating Partnership knows 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;
(v) any real property and buildings held under lease
by the Company, the Operating Partnership or the Subsidiaries
are held by them 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, the Operating
Partnership or the Subsidiaries, in each case except as
described in or contemplated by the Prospectus;
(vi) 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 Company;
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(vii) 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 in the Prospectus and except for such
failures to comply that would not individually or in the
aggregate result in a Material Adverse Effect;
(viii) neither of the Operating Partnership or the
Company 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
(ix) the ground leases identified in the Prospectus
are in full force and effect, and the Company, the Operating
Partnership and the Subsidiaries and, to the knowledge of the
Company and the Operating Partnership, 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,
other than any such defaults which would not, singly or in the
aggregate, have a Material Adverse Effect 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 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) none of the Company, the Operating Partnership
or any Subsidiary has caused or suffered to occur any Release
(as defined below) of any Hazardous Substance into the
Environment on, in, under or from any Property in violation of
any Environmental Law applicable to such Property, other than
such Releases which, singly or in the aggregate, do not
require significant remediation, and no condition exists on,
in, under or, to the knowledge of the Company and the
Operating Partnership, 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;
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(iii) none of the Company, the Operating Partnership
or any Subsidiary is engaged, and neither the Company, the
Operating Partnership nor any Subsidiary intends to engage in
any manufacturing or any other similar operations at the
Properties that (A) require the use, handling, transportation,
storage, treatment or disposal of any Hazardous Substance
(other than cleaning solvents and similar materials and other
than insecticides and herbicides or other Hazardous Substances
that are used in the ordinary course of operating the
Properties and in compliance with all applicable Environmental
Laws) or (B) require permits or are otherwise regulated
pursuant to any Environmental Law;
(iv) neither the Company, the Operating Partnership
nor any Subsidiary 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;
(v) neither the Company, the Operating Partnership
nor any Subsidiary 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;
(vi) (A) no Property is included or, to the knowledge
of the Company and the Operating Partnership, proposed for
inclusion on the National Priorities List issued pursuant to
CERCLA (as defined below) by the United States Environmental
Protection Agency (the "EPA"); (B) to the knowledge of the
Company and the Operating Partnership, no Property (1) is
included or proposed for inclusion on the Comprehensive
Environmental Response, Compensation and Liability Information
System database maintained by the EPA, (2) has otherwise been
identified by the EPA as a potential CERCLA removal, remedial
or response site or (3) is included or proposed for inclusion
on any similar list of potentially contaminated sites pursuant
to any other applicable Environmental Law; (C) nor has the
Company, the Operating Partnership or any Subsidiary received
any written notice from the EPA or any other Governmental
Authority proposing the inclusion of any Property on such list
set forth in (A) and (B) above;
(vii) the Company, the Operating Partnership and the
Subsidiaries (i) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws
to conduct their respective businesses and (ii) are 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
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(viii) 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 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) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified certain financial
statements in the Registration Statement, whose report appears in the
Prospectus, are independent
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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, the Operating Partnership and each of the
Subsidiaries are 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; none
of the Company, the Operating Partnership nor any Subsidiary has been
refused any insurance coverage sought or applied for; and none of the
Company, the Operating Partnership nor any Subsidiary has 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 materially and adversely affect the
condition, financial or otherwise, or the earnings, business or
operations of the Company, the Operating Partnership and the
Subsidiaries, taken as a whole, except as described in or contemplated
by the Prospectus.
(u) The Company, the Operating Partnership and the
Subsidiaries possess all certificates, authorizations and permits
issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, and none
of the Company, the Operating Partnership nor any Subsidiary has
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.
(v) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(w) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the
Government of Cuba (the "CUBA ACT") or with any person or affiliate
located in Cuba.
(x) Each of the Company, the Operating Partnership, the
Subsidiaries, AMB Institutional Realty Advisors, Inc. ("AMBIRA"), AMB
Current Income Fund, Inc. ("CIF"), AMB Value Added Fund, Inc. ("VAF")
and AMB Western Properties Fund-I ("WPF," and collectively with AMBIRA,
CIF and VAF, the "PREDECESSOR ENTITIES") has filed, when due, all
federal, state and local returns for Taxes (as defined below) which
have been required to be filed; all such returns were prepared in the
manner required by applicable law and were true, correct and complete
in all material respects; and the
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Company, the Operating Partnership, the Subsidiaries and the
Predecessor Entities have paid all Taxes reported as due in such
returns and have paid any other material Taxes for which they may be
liable, to the extent that any of the foregoing is due and payable,
except, in all cases, for any Tax 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). No audit, inquiry, investigation
or similar proceeding with respect to Taxes is currently pending or
threatened against the Company or any of its assets with respect to
which it may be liable for the payment of Taxes, an adverse outcome of
which would have a Material Adverse Effect. As used in the above
paragraph, the term "TAX" or "TAXES" shall include all United States
federal, state, local and foreign taxes, assessments or other
governmental charges (whether imposed directly or through withholding),
including any interest, penalties and additions to taxes applicable
thereto.
(y) 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 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 therein. The financial
information and data included in the Registration Statement and the
Prospectus present fairly the information included therein and have
been prepared on a basis consistent with that of the books and records
of the respective entities presented therein. Pro forma financial
information included 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 1933 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.
(z) No relationship, direct or indirect, exists between or
among the Operating Partnership or the Company on the one hand, and the
directors, officers, stockholders (in the case of the Company), limited
partners (in the case of the Operating Partnership), customers or
suppliers of the Operating Partnership or the Company on the other
hand, which is required to be described in the Prospectus which is not
so described.
(aa) The Company and the Operating Partnership are in
compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has
occurred with respect to any "pension plan" (as defined in ERISA) for
which the Operating Partnership or the Company would have any
liability; neither the Company nor the Operating Partnership has
incurred and does not expect to incur liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any "pension
plan"
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or (ii) Sections 412 or 4971 of the Code including the regulations and
published interpretations thereunder; each "pension plan" for which the
Operating Partnership or the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such
qualification; and each "pension plan" for which the Company, the
Operating Partnership or any of their affiliates has any liability or
with respect to which the Company, the Operating Partnership or any of
their affiliates is a disqualified person (as defined in the Code) or
party-in-interest (as defined in ERISA) has not been a party to any
"prohibited transaction" (as defined in ERISA and the Code), except for
such noncompliance, reportable events, liabilities, or failures to
qualify that would not have a Material Adverse Effect.
(bb) Neither the Company nor the Operating Partnership, nor
any director, officer, agent, employee or other person associated with
or acting on behalf of the Operating Partnership or the Company, has
used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity;
made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; violated or is in
violation of any provision of the Foreign Corrupt Practices Act of
1977; or made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(cc) The Company, the Operating Partnership and the
Subsidiaries are 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, the Operating
Partnership or any Subsidiary to comply with all presently applicable
provisions of the Americans with Disabilities Act would have a Material
Adverse Effect.
(dd) Beginning with its taxable year ended December 31, 1997,
the Company has been and is organized to qualify as a "real estate
investment trust" under the Internal Revenue Code of 1986, as amended
(the "CODE"), and the Company's assets, income and its method of
operation has at all times enabled it, and its proposed assets, income
and method of operation will enable it, to meet the requirements for
qualification and taxation as a "real estate investment trust" under
the Code.
(ee) Neither the Company, the Operating Partnership nor any
Subsidiary, nor any of their directors, officers or controlling
persons, has taken or will take, directly or indirectly, any action
designed to cause or result under the Exchange Act, or otherwise in, or
which has constituted or which reasonably might be expected to
constitute, the unlawful stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Shares.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees to sell
to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties
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herein contained, but subject to the conditions hereinafter stated, agrees,
severally and not jointly, to purchase from the Company the respective numbers
of Firm Shares set forth in Schedule I hereto opposite its name at $_____ a
share (the "PURCHASE PRICE") plus accrued dividends, if any, to the Closing
Date.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to 600,000 Additional
Shares at the Purchase Price plus accrued dividends, if any, to the Closing
Date. If you, on behalf of the Underwriters, elect to exercise such option, you
shall so notify the Company in writing not later than 30 days after the date of
this Agreement, which notice shall specify the number of Additional Shares to be
purchased by the Underwriters and the date on which such shares are to be
purchased. Such date may be the same as the Closing Date (as defined below) but
not earlier than the Closing Date nor later than ten business days after the
date of such notice. Additional Shares may be purchased as provided in Section 4
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. If any Additional Shares are to be
purchased, each Underwriter agrees, severally and not jointly, to purchase the
number of Additional Shares (subject to such adjustments to eliminate fractional
shares as you may determine) that bears the same proportion to the total number
of Additional Shares to be purchased as the number of Firm Shares set forth in
Schedule I hereto opposite the name of such Underwriter bears to the total
number of Firm Shares.
The Company hereby agrees that, without the prior written consent of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated on behalf of the Underwriters, it will not,
during the period commencing on the date hereof and ending 30 days after the
date of the Prospectus, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend or otherwise transfer or dispose
of, directly or indirectly, any shares of ___% Series A Cumulative Redeemable
Preferred Stock (the "SERIES A PREFERRED STOCK"), any other equity securities of
the Company which are substantially similar to the Series A Preferred Stock or
any securities convertible into or exercisable or exchangeable for Series A
Preferred Stock or such substantially similar equity securities or (ii) enter
into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of the Series A Preferred
Stock or any other equity securities of the Company which are substantially
similar to the Series A Preferred Stock, whether any such transaction described
in clause (i) or (ii) above is to be settled by delivery of Series A Preferred
Stock or such other securities, in cash or otherwise. The restrictions described
in the foregoing sentence shall not apply to the Shares to be sold hereunder.
3. TERMS OF PUBLIC OFFERING. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
$25.00 a share (the "PUBLIC OFFERING PRICE") plus accrued dividends, if any, to
the Closing Date, and to certain dealers selected by you at a price that
represents a concession not in excess of $.___ a share under the Public Offering
Price, and that any Underwriter may allow,
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and such dealers may reallow, a concession, not in excess of $.___ a share, to
any Underwriter or to certain other dealers.
4. PAYMENT AND DELIVERY. Payment for the Firm Shares shall be made to
the Company in federal or other funds immediately available in New York City
against delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 A.M., New York City time, on July ___, 1998, or at such
other time on the same or such other date, not later than July ___, 1998, as
shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "CLOSING DATE."
Payment for any Additional Shares shall be made to the Company in
federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 A.M., New York City time, on the date specified in the
notice described in Section 2 or at such other time on the same or on such other
date, in any event not later than August ___, 1998, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as
the "OPTION CLOSING DATE."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
5. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Company to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than 5:30 P.M. (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) 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 Company, the Operating Partnership,
any of their respective securities or in the rating outlook
for either 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; and
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(ii) 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 Company, the Operating Partnership and the
Subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Shares on the terms and
in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company on behalf of the Company and in the Company's capacity
as general partner of the Operating Partnership, to the effect set
forth in clause (a)(i) above and to the effect that the representations
and warranties of the Company and the Operating Partnership contained
in this Agreement are true and correct as of the Closing Date and that
the Company and the Operating Partnership have complied with all of the
agreements and satisfied all of the conditions on their part to be
performed or satisfied hereunder on or before the Closing Date. The
officer signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, outside counsel for the Company, dated
the Closing Date, to the effect that:
(i) the Operating Partnership is a limited
partnership duly formed and existing under and by virtue of
the laws of the State of Delaware and, based solely upon the
certificates of public officials, 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 the Underwriting
Agreement. Based solely upon the certificates of public
officials, the Operating Partnership is duly qualified or
registered as a foreign partnership and is in good standing in
each jurisdiction listed on Exhibit A-1 to such opinion. The
Operating Partnership is duly qualified or registered as a
foreign partnership but is not in good standing in each
jurisdiction listed on Exhibit A-2 to such opinion, if any.
The Company is the sole general partner of the Operating
Partnership and, assuming the due authorization by the
Company, in its capacity as the sole general partner of the
Operating Partnership, and assuming the valuation of the
property and other assets contributed by the partners to the
Operating Partnership as set forth in Exhibit A to the
Partnership Agreement, owns outstanding partnership interests
in the Operating Partnership as set forth in the Prospectus;
(ii) based solely upon the certificates of public
officials, the Company is duly qualified to transact business
and is in good standing in each jurisdiction
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listed on Exhibit B-1 to such opinion. The Company is duly
qualified or registered as a foreign corporation but is not in
good standing in each jurisdiction listed on Exhibit B-2 to
such opinion, if any;
(iii) each of AMB Property II, L.P., a Delaware
limited partnership ("AMB Property II"), and Long Gate, LLC, a
Delaware limited liability company ("Long Gate," and together
with AMB Property II, the "Subsidiaries"), has been duly
incorporated, 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 listed
on Exhibit C-1 to such opinion. The Subsidiaries are duly
qualified or registered as a foreign partnership or limited
liability company (as applicable) but are not in good standing
in each jurisdiction listed on Exhibit C-2 to such opinion, if
any. To such counsel's knowledge, each of the partnership or
member agreements of the Subsidiaries (as applicable) is in
full force and effect;
(iv) the issued and outstanding Units of the
Operating Partnership have been, assuming the due
authorization by the Company in its capacity as the sole
general partner of the Operating Partnership, duly authorized
for issuance by the Operating Partnership to the holders
thereof and are validly issued and conform to the description
thereof contained in the Prospectus. The Units owned by the
Company are owned of record directly by the Company, to the
best of such counsel's knowledge in reliance upon a UCC lien
search in the State of Delaware and an officers' certificate,
free and clear of all liens, encumbrances, equities or claims;
(v) the execution, delivery and performance of this
Agreement by the Company and the Operating Partnership and the
consummation of the transactions contemplated hereby (A) will
not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
of the documents set forth on Schedule IV hereto as of the
Closing Date, except for any such conflicts, breaches or
violations which are not, singly or in the aggregate,
material, (B) will not result in any violation of the
provisions of the charter, by-laws, certificate of limited
partnership, partnership agreement or other organizational
documents of the Company, the Operating Partnership or any
Subsidiary, as the case may be and (C) will not, to the best
of such counsel's knowledge, result in any violation of
federal securities laws, California law and the General
Corporation Law of the State of Delaware. Except for the
registration of the Shares under the Securities Act, such
consents, approvals, authorizations, registrations and
qualifications as may be required under the Exchange Act, and
applicable state Blue Sky and foreign securities laws in
connection with the purchase and distribution of the Shares by
the Underwriters and such other consents, approvals,
authorizations, registrations and qualifications which if not
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obtained 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 federal or
California court or governmental agency or body is required
under the covered laws by the Company, the Operating
Partnership or any Subsidiary for the execution, delivery and
performance of this Agreement by the Company and the Operating
Partnership and the consummation of the transactions
contemplated hereby;
(vi) the Underwriting Agreement has been duly
authorized, executed and delivered by the Operating
Partnership (assuming due authorization by the Company in its
capacity as the sole general partner of the Operating
Partnership) and is a valid and binding agreement of the
Operating Partnership and the Company;
(vii) the statements (A) in the Prospectus under the
captions "Federal Income Tax Consequences," "ERISA
Considerations" and "Underwriters" and (B) in the Registration
Statement in Items 33 and 34, in each case insofar as such
statements constitute summaries of the legal matters referred
to therein, have been reviewed by such counsel and are
accurate in all material respects in each case insofar as such
statements constitute summaries of the documents or
proceedings referred to therein, and such statements fairly
present the information called for with respect to such
documents and proceedings and fairly summarize the matters
referred to therein;
(viii) based solely upon the representations of the
Company contained in this Agreement and the certificate of an
officer of the Company, such counsel does not know of any
legal or governmental proceedings pending or threatened to
which the Company, the Operating Partnership or any Subsidiary
is a party or to which any of the properties of the Company,
the Operating Partnership or any Subsidiary is subject that
are required to be described in the Registration Statement or
the Prospectus and are not so described 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 or filed as required. To the best knowledge
of such counsel, all descriptions in the Registration
Statement of contracts and other documents to which the
Company, the Operating Partnership or any Subsidiary is a
party fairly present the information called for with respect
to such documents and fairly summarize the matters referred to
therein;
(ix) none of the Company, the Operating Partnership
or any Subsidiary is, and, after giving effect to the offering
and sale of the Shares 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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(x) commencing with the Company's taxable year ended
December 31, 1997, the Company has been organized and operated
in conformity with the requirements for qualification and
taxation as a "real estate investment trust" under the Code,
and the Company's present and contemplated operations, assets
and income will enable it to meet the requirements for
qualification and taxation as a "real estate investment trust"
under the Code;
(xi) the Operating Partnership is and will be treated
as a partnership for federal income tax purposes; and
(xii) such counsel is of the opinion that the
Registration Statement and Prospectus (except for financial
statements and schedules and other financial and statistical
data included therein as to which such counsel need not
express any opinion) comply as to form in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(d) The Underwriters shall have received on the Closing Date
an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, special Maryland
counsel for the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Maryland;
(ii) the Company has the requisite corporate power
and corporate 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;
(iii) the Company has duly executed and filed the
Articles Supplementary with the State Department of
Assessments and Taxation of Maryland (the "SDAT");
(iv) the Shares have been duly authorized and, when
issued and delivered in accordance with the terms of this
Agreement, against payment of the agreed consideration, will
be validly issued, fully paid and non-assessable, and the
issuance of such Shares will not be subject to any preemptive
or similar rights arising by operation of the Maryland General
Corporation Law (the "MGCL") or under the charter or bylaws of
the Company or any agreement or other instrument known to such
counsel;
(v) the execution and delivery by the Company, in its
individual capacity and in its capacity as the 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 Company and the MGCL; and
this Agreement has been duly executed and, to such counsel's
knowledge, delivered by the Company in its individual capacity
and in its capacity as the general partner of the Operating
Partnership;
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(vi) the execution, delivery and performance of this
Agreement by the Company, in its individual capacity and in
its capacity as the general partner of the Operating
Partnership, and the consummation of the transactions
contemplated hereby: (A) will not contravene any provision of
the MGCL, (B) will not result in any violation of the
provisions of the charter or by-laws of the Company; and (C)
will not, to the best of such counsel's knowledge, result in
any violation of any order, rule, regulation or decree of any
court or governmental agency or authority of the State of
Maryland issued under or pursuant to the MGCL and applicable
to the properties, assets or businesses owned directly or
indirectly by the Company;
(vii) 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
by the Company, the Operating Partnership or any Subsidiary
under the MGCL in connection with the offering, issuance or
sale of the Shares to the Underwriters under this Agreement,
except for such as have been obtained;
(viii) the form of certificate used to evidence the
Shares is in due and proper form and complies in all material
respects with all applicable statutory requirements under the
laws of the State of Maryland;
(ix) the information in the Prospectus under the
caption "Description of Capital Stock" (except for the
information under the subsection thereof entitled
"Restrictions on Ownership and Transfer"), to the extent to
which it constitutes matters of Maryland corporate law,
summaries of legal matters, documents or proceedings, or legal
conclusions under Maryland corporate law, has been reviewed by
such counsel and is correct in all material respects, and the
information under "Description of Capital Stock--Restrictions
on Ownership and Transfer," to the extent that it constitutes
a summary of the provisions of the Company's charter, has been
reviewed by such counsel and is correct in all material
respects.
(e) The Underwriters shall have received on the Closing Date
an opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters, dated the Closing Date, in form and substance
satisfactory to the Underwriters.
With respect to Section 5(c)(xii), ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may state
that its opinion and belief are based upon (i) its participation in the
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification,
except as specified, and (ii) representations of the Company, the
Operating Partnership and the Subsidiaries as to factual matters.
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The opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Ingersoll, LLP described in paragraph (c) and (d) above shall be
rendered to the Underwriters at the request of the Company and shall so
state therein.
(f) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public
accountants, 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 the Registration Statement and the Prospectus;
provided that the letter delivered on the Closing Date shall use a
"cut-off date" not earlier than the date hereof.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to you on the Option Closing Date
of such documents as you may reasonably request with respect to the good
standing of the Company and the Operating Partnership, the due authorization and
issuance of the Additional Shares and other matters related to the issuance of
the Additional Shares.
6. COVENANTS OF THE COMPANY. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) The Company will advise the Representatives promptly of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the institution of
any proceedings for that purpose, and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible the lifting thereof, if issued. The Company will advise the
Representatives promptly of any request by the Commission for any
amendment of or supplement to the Registration Statement or the
Prospectus or for additional information, and will not at any time file
any amendment to the Registration Statement or supplement to the
Prospectus which shall not previously have been submitted to the
Representatives a reasonable time prior to the proposed filing or use
thereof or to which the Representatives shall reasonably object or
which is not in compliance with the Securities Act and the rules and
regulations thereunder. The Company will advise you promptly when the
Prospectus has been filed pursuant to Rule 424(b) of the Securities
Act.
(b) To furnish to you, without charge, six signed copies of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and to furnish to you in New York
City, without charge, prior to 10:00 A.M. New York City time on the
business day next succeeding the date of this Agreement and during the
period mentioned in Section 6(c) below, as many copies of the
Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(c) If, during such period after the first date of the public
offering of the Shares, in the opinion of counsel for the Underwriters,
the Prospectus is required by law
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to be delivered in connection with sales by an Underwriter or dealer,
any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading when the Prospectus is delivered to a
purchaser, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which
Shares may have been sold by you on behalf of the Underwriters and to
any other dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances under which
they were made, be misleading when the Prospectus is delivered to a
purchaser, or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws and real estate syndication laws of
such jurisdictions as you shall reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earnings statement
covering the twelve-month period beginning after the effective date of
the Registration Statement that satisfies the provisions of Section
11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of counsel for the Company and the Company's
accountants in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in
connection with the preparation and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and amendments
and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof
to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and
delivery of the Shares to the Underwriters, including any transfer or
other taxes payable thereon, (iii) the cost of printing or producing
any Blue Sky or Legal Investment memorandum in connection with the
offer and sale of the Shares under state securities laws and all
expenses in connection with the qualification of the Shares for offer
and sale under state securities laws as provided in Section 6(d)
hereof, including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection with such qualification
and in connection with the Blue Sky or Legal Investment memorandum,
(iv) all filing fees and the reasonable fees and disbursements of
counsel to the Underwriters incurred in connection with the review and
qualification of the offering of the Shares by the National Association
of Securities Dealers, Inc., if any, (v) any fees charged by the rating
agencies for the rating of the Shares, (vi) all fees and
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expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Shares, (vii) all
costs and expenses incident to listing the Shares on the New York Stock
Exchange, (viii) the cost of printing certificates representing the
Shares, (ix) the fees and expenses of any transfer agent, registrar or
depositary in connection with the issuance of the Shares, (x) the costs
and expenses of the Company relating to investor presentations on any
"road show" undertaken in connection with the marketing of the offering
of the Shares, including, without limitation, expenses associated with
the production of road show slides and graphics, fees and expenses of
any consultants engaged in connection with the road show presentations
with the prior approval of the Company, travel and lodging expenses of
the representatives and officers of the Company and any such
consultants, and, with the prior approval of the Company, the cost of
any aircraft chartered in connection with the road show and (xi) all
other costs and expenses incident to the performance of the obligations
of the Company and the Operating Partnership hereunder for which
provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 7 entitled
"Indemnity and Contribution" and the last paragraph of Section 9 below,
the Underwriters will pay all of their costs and expenses, including
fees and disbursements of their counsel, stock transfer taxes payable
on resale of any of the Shares by them and any advertising expenses
connected with any offers they may make.
(g) The Company will use the net proceeds received by it from
the sale of the Shares sold by it in the manner specified in the
Prospectus under the caption "Use of Proceeds."
(h) The Shares will be listed on the New York Stock Exchange
(the "NYSE") on or prior to the date hereof, and the Company shall use
its best efforts to maintain the listing of such Shares on the NYSE.
(i) Except for the authorization of actions permitted to be
taken by the underwriters as contemplated herein or in the Prospectus,
neither the Company nor the Operating Partnership will (i) take,
directly or indirectly, any action designed to cause or to result in,
or that might reasonably be expected to constitute, the stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares, (ii) sell, bid for or
purchase the Shares or pay any person any compensation for soliciting
purchases of the Shares or (iii) pay or agree to pay to any person any
compensation for soliciting another to purchase any other securities of
the Company.
(j) In accordance with the provisions of the Cuba Act, if
applicable, and without limitation to the provisions of Section 7
hereof, the Company and the Operating Partnership will indemnify each
Underwriter against any and all losses, claims, damages, liabilities
and expenses (including attorneys' fees) arising out of or based upon
any violation by the Company of the Cuba Act.
7. INDEMNITY AND CONTRIBUTION. (a) The Company and the Operating
Partnership, jointly and severally, agree to indemnify and hold harmless each
Underwriter and each person, if
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any, who controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), 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
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein and set forth in Section 1(b) hereof; provided,
however, that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Shares, or any person controlling such Underwriter, if a copy of the Prospectus
(as then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of the Shares to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities, unless such failure
is the result of noncompliance by the Company with Section 6(b) hereof.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company and the Company, the Operating
Partnership's directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company or the Operating Partnership
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnities from the
Company and the Operating Partnership to such Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(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 Section 7(a) or 7(b), 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
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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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated, in the case of parties indemnified pursuant to Section 7(a),
and by the Company or the Operating Partnership, in the case of parties
indemnified pursuant to Section 7(b). The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party in writing to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 60 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of each indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section
7(a) or 7(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 Company and the Operating Partnership on the one hand
and the Underwriters on the other hand from the offering of the Shares 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
Company and the Operating Partnership on the one hand and of the Underwriters 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 Company and the
Operating Partnership on the one hand and the Underwriters on the other hand in
connection with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate Public
Offering Price of the Shares. The relative fault of the Company and the
Operating Partnership on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things,
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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 Company or the Operating Partnership or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective number of Shares they have purchased hereunder, and not joint.
(e) The Company, the Operating Partnership and the
Underwriters agree that it would not be just or equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the
Underwriters 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 7(d). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph 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 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 7 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 7 and the representations, warranties and other statements of the
Company and the Operating Partnership contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the Company or the
Company, the Operating Partnership's officers or directors or any person
controlling the Company or the Operating Partnership and (iii) acceptance of and
payment for any of the Shares.
8. TERMINATION. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited 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 of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event, singly or
together with any other such event, makes it, in
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your judgment, impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
9. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares that
it has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9 by an amount in excess of one-ninth of such
number of Shares without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares to
be purchased, and arrangements satisfactory to you and the Company for the
purchase of such Firm Shares are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company or the
Operating Partnership to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company or the Operating
Partnership shall be unable to perform their obligations under this Agreement,
the Company and the Operating Partnership will, jointly and severally, reimburse
the Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
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10. COUNTERPARTS. This 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.
11. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
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12. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
AMB PROPERTY CORPORATION
By:
------------------------------
Name:
Title:
AMB PROPERTY, L.P.
By: AMB PROPERTY CORPORATION,
its General Partner
By:
---------------------
Name:
Title:
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
PAINEWEBBER INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
Acting severally on behalf of themselves
and the several Underwriters named in
Schedule I hereto.
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By:
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
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SCHEDULE I
UNDERWRITERS
NUMBER OF FIRM SHARES
UNDERWRITER TO BE PURCHASED
----------- -------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.......................................
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc................................................
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated......................
PaineWebber Incorporated................................................
▇▇▇▇▇ ▇▇▇▇▇▇ Inc........................................................
Total Firm Shares................................................... 4,000,000
=========
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SCHEDULE II
SUBSIDIARIES OF THE COMPANY
AMB Property II, L.P.
AMB Property Holding Corporation
Long Gate LLC
AMB Investment Management, Inc.
AMB Investment Management Limited Partnership
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SCHEDULE III
JOINT VENTURES
OWNERSHIP INTEREST
NAME OF JOINT VENTURE IN JOINT VENTURE
American Beauty General 50.0001% G.P. Interest
CH-VAF Orlando Joint Venture 90% G.P. Interest
Dark Starr Limited Partnership 50.0001% L.P. Interest
Fairway Drive Venture LLC 70.00% Member Interest
▇▇▇▇▇▇▇▇ Lakes/AMB CIF 50% L.P. Interest
Met Phase I 95, Ltd. 87.15% L.P. Interest
St. ▇▇▇▇▇▇▇ Limited Partnership 50.0001% L.P. Interest
Met 4/12, Ltd. 87.15% L.P. Interest
Manhattan Village, LLC 90.00% Member Interest
AMB/ERIE, L.P. 50.0005% G.P. Interest
Sugar Magnolia L.L.C. (formerly AMB-TC 95% Member Interest
OCP FL 2000 L.L.C.
Elk Grove Village Industrial Park, Ltd. 56.0617% Beneficial L.P.
Interest
Terrapin Station Limited Partnership 50.0001% L.P. Interest
Keep Your Day Job, LLC 90% Member Interest
AMB-TC Southriver Park NJ L.L.C. 95% Member Interest
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SCHEDULE IV
CERTAIN MATERIAL CONTRACTS
1. All agreements filed as Exhibits (including by incorporation by
reference) to the Company's Registration Statements on Form S-11 (Files
No. 333-35915 and 333-49163).
2. All joint venture agreements documenting the interests of the Company,
the Operating Partnership or one of their subsidiaries in the Joint
Ventures listed on Schedule III hereto.
3. The loan agreements and other documents governing the $500 million
Credit Facility with ▇▇▇▇▇▇ Guaranty Trust Company of New York.
4. The loan agreements and other documents governing the $73 million CIF
secured credit facility that bears interest at a fixed rate of 7.53%.
