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EXHIBIT 1.1
____________ Shares
AMB PROPERTY CORPORATION
Common Stock, par value $.01 per share
UNDERWRITING AGREEMENT
________ __, 1997
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_________ __, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
BT Alex. Xxxxx Incorporated
Xxxxxx Brothers Inc.
Xxxxxxxxxx Securities
Xxxxx Xxxxxx Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
BT Alex. Xxxxx International, division of Bankers Trust
International PLC
Xxxxxx Brothers International (Europe)
Xxxxxxxxxx Securities
Xxxxx Xxxxxx Inc.
x/x Xxxxxx Xxxxxxx & Xx. Xxxxxxxxxxxxx Limited
000 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
AMB Property Corporation, a Maryland corporation (the "Company"),
proposes to issue and sell to the several Underwriters (as defined below)
___________ shares of its Common Stock, par value $.01 per share (the "Firm
Shares").
It is understood that, subject to the conditions hereinafter stated,
_______________ Firm Shares (the "U.S. Firm Shares") will be sold to the
several U.S. Underwriters named in Schedule I hereto (the "U.S. Underwriters")
in connection with the offering and sale of such U.S. Firm Shares in the
United States and Canada to United States and Canadian Persons (as such terms
are defined in the Agreement Between U.S. and International Underwriters of
even date herewith), and ______________ Firm Shares (the "International
Shares") will be sold to the several International Underwriters named in
Schedule II hereto (the "International Underwriters") in connection with the
offering and sale of such International Shares outside the United States and
Canada to persons other than United States and Canadian Persons. Xxxxxx
Xxxxxxx & Co. Incorporated, BT Alex. Xxxxx Incorporated, Xxxxxx Brothers Inc.,
Xxxxxxxxxx Securities and Xxxxx Xxxxxx Inc. shall act as representatives (the
"U.S. Representatives") of the several U.S. Underwriters, and Xxxxxx Xxxxxxx &
Co. International Limited, BT Alex. Xxxxx International, division of Bankers
Trust International PLC, Xxxxxx Brothers International (Europe), Xxxxxxxxxx
Securities and Xxxxx Xxxxxx Inc. shall act as representatives (the
"International
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Representatives") of the several International Underwriters. The U.S.
Underwriters and the International Underwriters are hereinafter collectively
referred to as the "Underwriters."
The Company also proposes to issue and sell to the several U.S.
Underwriters not more than an additional __________ shares of its Common Stock,
par value $.01 per share (the "Additional Shares"), if and to the extent that
the U.S. Representatives shall have determined to exercise, on behalf of the
U.S. Underwriters, the right to purchase such shares of common stock granted to
the U.S. Underwriters in Section 2 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "Shares." The shares of
Common Stock, par value $.01 per share, of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the "Common Stock."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-11 (File No. 333-35915)
relating to the Shares. The registration statement contains two prospectuses
to be used in connection with the offering and sale of the Shares: the U.S.
prospectus, to be used in connection with the offering and sale of Shares in
the United States and Canada to United States and Canadian Persons, and the
international prospectus, to be used in connection with the offering and sale
of Shares outside the United States and Canada to persons other than United
States and Canadian Persons. The international prospectus is identical to the
U.S. prospectus except for the outside front cover page. 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 U.S. prospectus and the international prospectus
in the respective forms first used to confirm sales of Shares are hereinafter
collectively referred to as the "Prospectus." If the Company has filed an
abbreviated registration statement to register additional shares of Common
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.
At or prior to the Closing Date (as hereinafter defined), the Company
and AMB Property, L.P., a Delaware limited partnership (the "Operating
Partnership"), will complete a series of transactions described in each of the
Preliminary Prospectus and the Prospectus (as hereinafter defined) under the
heading "Formation and Structure of the Company--Formation Transactions." As
part of these transactions, among other things, the Operating Partnership will
acquire direct or indirect interests in 70 industrial properties and 33 retail
properties (collectively, the "Properties") and the investment management
business of AMB Institutional Realty Advisors, Inc., a California corporation
("AMBIRA"), one of the Predecessor Entities (as defined below). As used
herein, the term "Formation Transactions" shall mean the occurrence of all the
events described in the Prospectus under the heading "Formation and Structure
of the Company--Formation Transactions" and the other transactions related
thereto, and the term "Formation Documents" shall mean all the material
contracts, agreements and other documents executed in connection with the
Formation Transactions set forth in Schedule III hereto.
As part of the offering contemplated by this Agreement, Xxxxxx Xxxxxxx
& Co. Incorporated ("Xxxxxx Xxxxxxx") has agreed to reserve out of the Shares
set forth opposite its
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name on Schedule I to this Agreement, up to ______ shares, for sale to the
Company's employees, officers and directors (collectively, "Participants"), as
set forth in the Prospectus under the heading "Underwriting" (the "Directed
Share Program"). The Shares to be sold by Xxxxxx Xxxxxxx pursuant to the
Directed Share Program (the "Directed Shares") will be sold by Xxxxxx Xxxxxxx
pursuant to this Agreement at the public offering price. Any Directed Shares
not orally confirmed for purchase by any Participants by the end of the first
business day after the date on which this Agreement is executed will be offered
to the public by Xxxxxx Xxxxxxx as set forth in the Prospectus.
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 and the Operating Partnership,
threatened by the Commission.
(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.
(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 and the
Formation Documents to which it is a party. 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 IV hereto (each, a "Subsidiary," and, collectively, the
"Subsidiaries"), taken as a whole (a "Material Adverse Effect").
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(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 and the
Formation Documents to which it is a party. 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 general
partner of the Operating Partnership and, immediately after the
Closing Date will be the sole general partner of the Operating
Partnership and will own approximately 97.2% of all outstanding
partnership interests in the Operating Partnership.
(e) Each Subsidiary of the Company 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 and to enter into and perform its
obligations under the Formation Documents to which it is a party.
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.
(f) Each of AMBIRA, AMB Current Income Fund, Inc., AMB
Value Added Fund, Inc. and AMB Western Properties Fund-I ("WPF," and
collectively, the "Predecessor Entities") has been duly formed and is
validly existing as a partnership or corporation in good standing
under the laws of its state of organization, with power and authority
to own, lease and operate its properties, to conduct the business in
which it is engaged and to enter into and perform its respective
obligations under the Formation Documents to which it is a party.
Each Predecessor Entity is duly qualified or registered as a foreign
corporation or partnership, as applicable, 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.
(g) Each of the joint venture partnerships or limited
liability companies listed on Schedule V hereto (the "Joint Ventures")
has been duly formed and is validly existing
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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, to conduct the business in
which it is engaged and to enter into and perform its respective
obligations under the Formation Documents to which it is a party.
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 of the Company owns the
partnership or other equity interest in each of the Joint Ventures as
set forth on Schedule V 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.
(h) (i) 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; (ii) on the Closing Date, the Agreement of Limited Partnership
of the Operating Partnership (the "Partnership Agreement") will have
been duly and validly authorized, executed and delivered by the
parties thereto and will be a valid and binding agreement, enforceable
in accordance with its terms; and (iii) on the Closing Date, each of
the Formation Documents to which the Company, the Operating
Partnership, any Subsidiary or any Predecessor Entity is a party
pursuant to the Formation Transactions will have been duly and validly
authorized, executed and delivered by such parties, and will be valid
and binding agreements of such parties, enforceable in accordance with
their terms; provided, however, that the enforceability of each of the
foregoing documents may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights
generally.
(i) Pursuant to the Agreement for Transfer of Realty and
Assets (the "Contribution Agreement"), the Company or the Operating
Partnership will acquire, as of the Closing Date, all, right, title
and interest to the Properties (as defined in the Contribution
Agreement) of the individual account investors named therein (the
"Transferors").
(j) The transfer of interests or other assets pursuant to
the Formation Documents does not violate the declaration of trust,
charter, limited liability company agreement, certificate of limited
partnership or partnership agreement, as the case may be, of any
Predecessor Entity or, to the knowledge of the Company and the
Operating Partnership based solely upon the representations and
warranties of the Transferors contained in their respective Proxy,
Representation Letter, Consent and Power of Attorney (the "Consents"),
any Transferor. The Formation Documents are sufficient to effect the
transfer to the Company or Operating Partnership of all direct or
indirect interests in the Properties and other assets specified
therein upon payment of the consideration therefor.
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(k) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description thereof
contained in the Prospectus.
(l) The shares of Common Stock outstanding prior to the
issuance of the Shares have been duly authorized and are validly
issued, fully paid and non-assessable, have been and will be offered
and sold on or prior to Closing Date in compliance with all applicable
laws (including, without limitation, federal and state securities
laws) and are not subject to preemptive or other 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.
(m) The units of the Operating Partnership (the "Units")
to be issued in connection with the Formation Transactions, including,
without limitation, the Units to be issued to the Company, have been
duly authorized for issuance by the Operating Partnership to the
holders or prospective holders thereof, and at the Closing Date will
be validly issued and fully paid and, with respect to the Units owned
by the Company, are owned directly by the Company, free and clear of
all liens, encumbrances, equities or claims. Immediately after the
Closing Date, ______ Units will be issued and outstanding. The Units
have been and will be offered and sold on or prior to the Closing Date
in compliance with all applicable laws (including, without limitation,
federal and state securities laws).
(n) The Shares have been duly authorized and, when issued
and delivered in accordance with the terms of this Agreement, 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.
(o) The execution, delivery and performance of this
Agreement by the Company and the Operating Partnership and the
consummation of the transactions contemplated hereby, including
without limitation the Formation Transactions, 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 material 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, any
Subsidiary or any Predecessor Entity is a party or by which the
Company, the Operating Partnership, any Subsidiary or any Predecessor
Entity is bound or to which any of the property or assets of the
Company, the Operating Partnership, any Subsidiary or any Predecessor
Entity is subject, nor will such actions 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, any Subsidiary or any
Predecessor Entity, as the case may be, or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company, the Operating Partnership, any
Subsidiary or any Predecessor Entity or any of properties, assets or
businesses to be owned by them after the Formation Transactions.
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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, including the Formation
Transactions, except for 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.
(p) 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, any Subsidiary or any Predecessor Entity is a party or to
which any of the properties of the Company, the Operating Partnership,
any Subsidiary or any Predecessor Entity 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.
(q) Upon completion of the Formation Transactions and the
sale of Shares hereunder, the Company is intended to be organized in
conformity with the requirements for qualification as a real estate
investment trust under the Internal Revenue Code of 1986, as amended
(the "Code"), and its proposed method of operation will enable it to
meet the requirements for taxation as a real estate investment trust
under the Code for its taxable periods beginning or otherwise
including the period after the Closing Date.
(r) 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.
(s) None of the Company, the Operating Partnership, the
Subsidiaries or any Predecessor Entity 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.
(t) 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.
(u) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
(i) the Company, the Operating Partnership,
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the Subsidiaries and the Predecessor Entities 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, other than
____ Units originally issued to an executive officer of the Company in
connection with the formation and nominal capitalization of the
Operating Partnership, 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, the
Subsidiaries or the Predecessor Entities, except in each case as
described in or contemplated by the Prospectus.
(v) (i) With respect to the Properties in which the
Operating Partnership will succeed to all of the ownership interest,
the Predecessor Entities and the Transferors that currently own such
Properties have, and at the Closing Date the Operating Partnership
will have, good and marketable fee simple title to the land underlying
such Properties and good and marketable title to the improvements
thereon 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, to liens of ad valorem
taxes not due and payable 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 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 (which are owned by the Predecessor Entities or
the Transferors and to which the Operating Partnership shall succeed),
and 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; (ii) with respect to the Properties in
which the Operating Partnership will acquire less than all of the
ownership interest (the "Joint Venture Properties"), the Joint
Ventures that currently own such Properties, to the knowledge of the
Company and the Operating Partnership have, and at the Closing Date
the Operating Partnership will have, good and marketable fee simple
title to the land underlying such Properties and good and marketable
title to the improvements thereon 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 and the
assets of the Company, the Operating Partnership, any Subsidiary, any
Predecessor Entity or any Transferor which are required to be
disclosed in the Prospectus are disclosed therein; (iv) neither any
Subsidiary nor any tenant of any of the Properties is in default under
any of the leases pursuant to which any Subsidiary, 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,
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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 and 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 and the Subsidiaries, in each case except as described in
or contemplated by the Prospectus; (vi) except as described in the
Prospectus, no person has an option or right of first refusal to
purchase all or part of any Property or any interest therein; (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
Company nor the Operating Partnership 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 listed on Schedule
VI hereto are in full force and effect, and the Company, the Operating
Partnership, the Subsidiaries and the Predecessor Entities 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
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;
(w) 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, any Subsidiary, any
Predecessor Entity or any Transferor 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, 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 material liabilities or any material 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 material health, safety or environmental
hazard to any property, person or entity; (iii) none of the Company,
the Operating Partnership, any Subsidiary, any Predecessor Entity or,
to the knowledge of the Company and the Operating Partnership, any
Transferor is engaged, and neither the Company, the Operating
Partnership or any of the Subsidiaries intends to engage in any
manufacturing or any other similar operations at the Properties that
(1) require the use,
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handling, transportation, storage, treatment or disposal of any
Hazardous Substance (other than cleaning solvents and similar
materials and other than insecticides and herbicides that are used in
the ordinary course of operating the Properties and in compliance with
all applicable Environmental Laws) or (2) require permits or are
otherwise regulated pursuant to any Environmental Law; (iv) none of
the Company, the Operating Partnership, any Subsidiary, any
Predecessor Entity or any Transferor 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; (v) none of the Company, the Operating
Partnership, any Subsidiary, any Predecessor Entity or any Transferor
has received any 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; (vi)
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") or on the
Comprehensive Environmental Response, Compensation, and Liability
Information System database maintained by the EPA, and has not
otherwise been identified by the EPA as a potential CERCLA removal,
remedial or response site or included or, to the knowledge of the
Company and the Operating Partnership, proposed for inclusion on, any
similar list of potentially contaminated sites pursuant to any other
applicable Environmental Law nor has the Company, the Operating
Partnership, any Subsidiary, any Predecessor Entity or any Transferor
received any written notice from the EPA or any other Governmental
Authority proposing the inclusion of any Property on such list; and
(vii) there are no underground storage tanks located on or in any
Property which have not been disclosed to the U.S. Representatives.
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
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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.
(x) The Company, the Operating Partnership, the
Subsidiaries and the Predecessor Entities (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of occupational health and
safety and all Environmental Laws, (ii) have received all permits,
licenses or other approvals required of them under applicable federal
and state occupational safety and health laws and regulations and
Environmental Laws to conduct their respective businesses and (iii)
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.
(y) 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.
(z) The Company, the Operating Partnership, the
Subsidiaries and the Predecessor Entities own or possess, or can
acquire on reasonable terms, all material patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and
trade names currently employed by them in connection with the business
now operated by them, and none of the Company, the Operating
Partnership, the Subsidiaries nor any Predecessor Entities have
received any notice of infringement of or conflict with asserted
rights of others with respect to any of the foregoing which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
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(aa) No material labor dispute with the employees of the
Company, the Operating Partnership or any of the Subsidiaries exists,
or, to the knowledge of the Company, is imminent; and the Company is
not aware of any existing, threatened or imminent labor disturbance by
the employees of any of its principal suppliers, manufacturers or
contractors that could result in a Material Adverse Effect.
(bb) Xxxxxx Xxxxxxxx LLP, who have certified certain
financial statements in the Registration Statement, whose report
appears in the Prospectus, are independent public accountants as
required by the Securities Act and the rules and regulations of the
Commission thereunder during the periods covered by the financial
statements on which they reported contained in the Prospectus.
(cc) 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 re 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.
(dd) The Company, the Operating Partnership, the
Subsidiaries and the Predecessor Entities 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, any
Subsidiary or any Predecessor Entity 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.
(ee) The Company, the Operating Partnership, the
Subsidiaries and the Predecessor Entities maintain 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.
(ff) The Company and the Operating Partnership have
complied with all provisions of Section 517.075, Florida Statutes
relating to doing business with the Government of Cuba or with any
person or affiliate located in Cuba.
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(gg) Each of the Company, the Operating Partnership, the
Subsidiaries and the Predecessor Entities 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).
(hh) 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 the opinion of the
Company, 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.
(ii) No relationship, direct or indirect, exists between
or among the Company or the Operating Partnership 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 Company or the Operating Partnership on the other
hand, which is required to be described in the Prospectus which is not
so described.
(jj) 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 Company or the Operating Partnership would have any
liability; the Company or the Operating Partnership has not 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"
or (ii) Sections 412 or 4971 of the Code including the regulations and
published interpretations thereunder; each "pension plan" for which
the Company or the Operating Partnership 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
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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.
(kk) Neither the Company nor the Operating Partnership,
nor any director, officer, agent, employee or other person associated
with or acting on behalf of the Company or the Operating Partnership,
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.
(ll) All of the representations and warranties of the
Company and the Operating Partnership contained in the Formation
Documents set forth on Schedule III hereof are true and correct in all
material respects.
(mm) The Company, the Operating Partnership, the
Subsidiaries and the Predecessor Entities are currently in substantial
compliance with all presently applicable provisions of the Americans
with Disabilities Act and no failure of the Company, the Operating
Partnership, any Subsidiary or any Predecessor Entity to comply with
all presently applicable provisions of the Americans with Disabilities
Act would have a Material Adverse Effect.
(nn) The Company has not offered, or caused the
Underwriters to offer, Shares to any person pursuant to the Directed
Share Program with the specific intent to unlawfully influence (i) a
customer or supplier of the Company or the Operating Partnership to
alter the customer's or supplier's level or type of business with the
Company or the Operating Partnership, or (ii) a trade journalist or
publication to write or publish favorable information about the
Company or its properties.
Furthermore, the Company represents and warrants to Xxxxxx
Xxxxxxx that (i) the Registration Statement, the Prospectus and any
preliminary prospectus comply, and any further amendments or
supplements thereto will comply, with any applicable laws or
regulations of foreign jurisdictions in which the Prospectus or any
preliminary prospectus, as amended or supplemented, if applicable, are
distributed in connection with the Directed Share Program, and that
(ii) no authorization, approval, consent, license, order, registration
or qualification of or with any government, governmental
instrumentality or court, other than such as have been obtained, is
necessary under the securities laws and regulations of foreign
jurisdictions in which the Directed Shares are offered outside the
United States.
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 Schedules I and II hereto opposite its names at
U.S.$___ a share ("Purchase Price").
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 U.S. Underwriters the Additional Shares, and the U.S. Underwriters shall
have a one-time right to purchase, severally and not jointly, up to ______
Additional Shares at the Purchase Price. If the U.S. Representatives, on
behalf of the U.S. Underwriters, elect to exercise such option, the U.S.
Representatives 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 U.S. 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 U.S. Underwriter agrees,
severally and not jointly, to purchase the number of Additional Shares (subject
to such adjustments to eliminate fractional shares as the U.S. Representatives
may determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of U.S. Firm Shares set forth in Schedule
I hereto opposite the name of such U.S. Underwriter bears to the total number
of U.S. Firm Shares.
The Company hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not,
during the period commencing on the date hereof and ending on the first
anniversary of 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 or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock 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 Common
Stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold
hereunder, (B) the issuance by the Company of shares of Common Stock upon the
exercise of an option granted under the Company's 1997 Stock Option and
Incentive Plan or the exercise of a warrant or the conversion of a security
outstanding on the date hereof of which the Underwriters have been advised in
writing, (C) the issuance of shares of Common Stock by the Company upon
conversion or redemption of Units and (D) the issuance of Units in connection
with strategic acquisitions by the Company, provided that such Units are not
convertible into shares of Common Stock prior to the first anniversary of the
date of the Prospectus.
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
U.S.$______ a share (the "Public Offering Price") and to certain dealers
selected by
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you at a price that represents a concession not in excess of U.S.$ ______ a
share under the Public Offering Price, and that any Underwriter may allow, and
such dealers may reallow, a concession, not in excess of U.S.$ ____ 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 ______ __, 1997, or
at such other time on the same or such other date, not later than ______ __,
1997, 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 _______, 1997, as shall be designated
in writing by the U.S. Representatives. 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 _________ (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 any of the Company'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; 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 and its 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, to the effect set forth in clause (a)(i) above
and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its 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 Xxxxxx & Xxxxxxx, 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 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 and the Formation Documents to which it is a party.
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 a Material Adverse Effect. The
Company is the sole general partner of the Operating
Partnership and, immediately after the Closing Date will be
the sole general partner of the Operating Partnership and will
own approximately 97.2% of all outstanding partnership
interests in the Operating Partnership.
(ii) each Subsidiary 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
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described in the Prospectus and to enter into and perform its
obligations under the Formation Documents to which it is a
party. 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. Each of the
partnership or member agreements of the Subsidiaries (as
applicable) is in full force and effect.
(iii) at the time that each of the Formation
Documents to which AMBIRA and WPF is a party, and at the time
of the consummation of the transactions contemplated thereby,
each of AMBIRA and WPF was duly formed and validly existing as
a corporation or partnership in good standing under the laws
of its state of organization, with power and authority to own,
lease and operate its properties, to conduct the business in
which it was engaged and to enter into and perform its
respective obligations under the Formation Documents to which
it is a party.
(iv) 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 described above, are owned
directly or indirectly by the Company or the Operating
Partnership, free and clear of all liens, encumbrances,
equities or claims
(v) the Units to be issued in connection with the
Formation Transactions, including, without limitation, the
Units to be issued to the Company, 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 or
prospective holders thereof, and at the Closing Date will be
validly issued and fully paid. Immediately after the Closing
Date, ______ Units will be issued and outstanding. The Units
have been and will be offered and sold on or prior to the
Closing Date in compliance with all federal and California
securities laws.
(vi) the execution, delivery and performance of
this Agreement by the Company and the Operating Partnership
and the consummation of the transactions contemplated hereby,
including without limitation the Formation Transactions, (A)
will not, to the best of such counsel's knowledge, 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 VII hereto, (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 Operating
Partnership, any Subsidiary or any Predecessor Entity, 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 and such consents, approvals, authorizations,
registrations or qualifications as
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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 assuming the accuracy of the representations and
warranties of the Transferors contained in their respective
Consents, no consent, approval, authorization or order of, or
filing or registration with, any federal or California court
or governmental agency or body is required by the Company, the
Operating Partnership, any Subsidiary or any Predecessor
Entity for the execution, delivery and performance of this
Agreement by the Company and the Operating Partnership and the
consummation of the transactions contemplated hereby,
including the Formation Transactions.
(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,
documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(viii) based upon the representations of the Company
contained in this Agreement, the representations of the
Transferors contained in their respective Consents and a
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,
any Subsidiary or any Predecessor Entity is a party or to
which any of the properties of the Company, the Operating
Partnership, any Subsidiary or any Predecessor Entity 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, any Subsidiary
or any Predecessor Entity 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;
(x) 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
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opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder;
(xi) commencing with its first taxable year and
through the termination of its S status as part of the
Formation Transactions, AMBIRA has been an S corporation
within the meaning of Section 1361 of the Code;
(xii) the Operating Partnership is and will be
treated as partnership for federal and state income tax
purposes; and
(xiii) any other partnership or limited liability
company in which the Company or the Operating Partnership will
have a direct or indirect ownership interest will be treated
as a partnership for federal and state income tax purposes.
(d) The Underwriters shall have received on the Closing
Date an opinion of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, special Maryland
counsel for the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Maryland, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under the Underwriting Agreement and the Formation
Documents to which it is a party. The Company 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;.
(ii) the authorized capital stock of the Company
conforms as to legal matters to the description thereof'
contained in the Prospectus;
(iii) the shares of Common Stock outstanding prior
to the issuance of the Shares have been duly authorized and
are validly issued, fully paid and non-assessable, have been
and will be offered and sold on or prior to Closing Date in
compliance with all applicable laws (including, without
limitation, federal and state securities laws) and are not
subject to preemptive or other similar rights arising by
operation of the MGCL or under the charter or bylaws of the
Company or any agreement or other instrument known to such
counsel;
(iv) the Shares have been duly authorized and,
when issued and delivered in accordance with the terms of this
Agreement, 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;
(v) this Agreement and each of the Formation
Documents has been duly authorized, executed and delivered by
the Company in its individual capacity and in its capacity as
the general partner of the Operating Partnership and,
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assuming due authorization, execution and delivery by the
other parties thereto, this Agreement and each such Formation
Document is a valid and binding agreement of the Company;
(vi) the execution, delivery and performance of
this Agreement by the Company and the consummation of the
transactions contemplated hereby, including without limitation
the Formation Transactions, (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 statute or any order, rule, regulation
or administrative court decree issued under or pursuant to the
MGCL and applicable to the properties, assets or businesses to
be owned by the Company after the Formation Transactions;
(vii) the Company has duly authorized and reserved
a sufficient number of shares of Common Stock for issuance
upon redemption of outstanding Units issued by the Operating
Partnership as contemplated by the Partnership Agreement and
for issuance upon the exercise of options under the Company's
Stock Option and Incentive Plan;
(viii) no consent, approval, authorization, order of
or qualification with any court or governmental agency or
authority or other entity is required to be obtained by the
Company, the Operating Partnership, any Subsidiary or any
Predecessor Entity under the MGCL in connection with the
offering, issuance or sale of the Shares under this Agreement
except for such as have been obtained;
(ix) the form of certificate used to evidence the
Shares is in due and proper form and complies with all
applicable statutory requirements under the laws of the State
of Maryland;
(x) 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 that
it constitutes matters of Maryland Law, summaries of legal
matters, documents or proceedings, or legal conclusions, has
been reviewed by them 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 them and is correct in
all material respects.
(e) The Underwriters shall have received on the Closing
Date an opinion of Xxxxxxxx & Xxxxxxxx LLP, special counsel to each of
CIF and VAF, to the effect that, commencing with each of CIF's and
VAF's first taxable year and through the closing of the Formation
Transactions, each of such corporations has been organized in
conformity with the requirements for qualification as a REIT, and its
method of operation has enabled each such corporation to qualify as a
REIT under the Code.
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23
(f) The Underwriters shall have received on the Closing
Date an opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the
Underwriters, dated the Closing Date, covering the matters referred to
in (viii) and (xii) of paragraph (c) above and (iv), (v) and (x) of
paragraph (d) above (but only as to the statements in the Prospectus
under "Description of Capital Stock" and "Underwriters").
With respect to subparagraph (xii) of paragraph (c) above,
Xxxxxx & Xxxxxxx and Xxxxxx, Xxxx & Xxxxxxxx LLP may state that their
opinion and belief are based upon their 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.
The opinions of Xxxxxx & Xxxxxxx, Xxxxxxx Xxxxx Xxxxxxx &
Ingersoll and Xxxxxxxx & Xxxxxxxx LLP described in paragraph (c), (d)
and (e) above shall be rendered to the Underwriters at the request of
the Company and shall so state therein.
(g) 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 Xxxxxx Xxxxxxxx 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.
(h) The "lock-up" agreements, each substantially in the
form of Exhibit A and Exhibit B hereto, between you and certain
executive officers and independent directors of the Company,
respectively, relating to sales and certain other dispositions of
shares of Common Stock or certain other securities, delivered to you
on or before the date hereof, shall be in full force and effect on the
Closing Date.
(i) The several obligations of the U.S. Underwriters to
purchase Additional Shares hereunder are subject to the delivery to
the U.S. Representatives on the Option Closing Date of such documents
as they may reasonably request with respect to the good standing of
the Company, 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) To furnish to you, without charge, 11 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
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in paragraph (c) below, as many copies of the Prospectus and any
supplements and amendments thereto or to the Registration Statement as
you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(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 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 not
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 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 ending December 31, 1998 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 the Company's counsel 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
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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 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. (the "NASD"), (v) all fees and
expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Common Stock and
all costs and expenses incident to listing the Shares on the New York
Stock Exchange, (vi) the cost of printing certificates representing
the Shares, (vii) the costs and charges of any transfer agent,
registrar or depositary, (viii) the costs and expenses 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 (ix) all other costs and expenses
incident to the performance of the obligations of the Company
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) that in connection with the Directed Share Program,
the Company will ensure that the Directed Shares will be restricted to
the extent required by the NASD or its rules from sale, transfer,
assignment, pledge or hypothecation for a period of three months
following the date of the effectiveness of the Registration Statement.
Xxxxxx Xxxxxxx will notify the Company in writing prior to the Closing
Date as to which Participants will need to be so restricted. At the
written request of Xxxxxx Xxxxxxx, the Company will direct the
transfer agent to place stop transfer restrictions upon such
securities for such period of time.
(h) to pay all reasonable fees and disbursements of
counsel incurred by the Underwriters in connection with the Directed
Share Program and stamp duties, similar taxes or duties or other
taxes, if any, incurred by the Underwriters in connection with the
Directed Share Program.
Furthermore, the Company covenants with Xxxxxx Xxxxxxx that
the Company will comply with all applicable securities and other
applicable laws, rules and regulations in each foreign jurisdiction in
which the Directed Shares are offered in connection with the Directed
Share Program.
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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 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; 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(a) hereof.
(b) The Company and the Operating Partnership jointly and
severally agree to indemnify and hold harmless Xxxxxx Xxxxxxx and each person,
if any, who controls Xxxxxx Xxxxxxx within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act ("Xxxxxx Xxxxxxx
Entities"), 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) (i) caused by any untrue statement or alleged untrue statement
of a material fact contained in the prospectus wrapper material prepared by or
with the consent of the Company for distribution in foreign jurisdictions in
connection with the Directed Share Program attached to the Prospectus or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statement therein, when considered in conjunction with the Prospectus or any
applicable preliminary prospectus, not misleading; provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Xxxxxx Xxxxxxx Entity from whom the person
asserting any such losses, claims,
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27
damages or liabilities purchased Shares, or any person controlling such Xxxxxx
Xxxxxxx Entity, 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 Xxxxxx Xxxxxxx Entity 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(a) hereof; (ii) caused by the
failure of any Participant to pay for and accept delivery of the shares which,
immediately following the effectiveness of the Registration Statement, were
subject to a properly confirmed agreement to purchase; or (iii) related to,
arising out of, or in connection with the Directed Share Program, provided
that, the Company shall not be responsible under this subparagraph (iii) for
any losses, claim, damages or liabilities (or expenses relating thereto) that
are finally judicially determined to have resulted from the bad faith or gross
negligence of Xxxxxx Xxxxxxx Entities.
(c) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company and the Operating Partnership, the
Company'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.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to paragraph (a), (b) or (c) of this Section
7, such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by Xxxxxx Xxxxxxx
& Co. Incorporated, in the case of parties indemnified pursuant to paragraphs
(a) and (b) of this Section 7, and by the Company or the Operating Partnership,
in the case of parties indemnified pursuant to paragraph (c) of this Section 7.
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
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this
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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. Notwithstanding anything contained herein to the contrary,
if indemnity may be sought pursuant to Section 7(b) hereof in respect of such
action or proceeding, then in addition to such separate firm for the
indemnified parties, the indemnifying party shall be liable for the reasonable
fees and expenses of not more than one separate firm (in addition to any local
counsel) for Xxxxxx Xxxxxxx for the defense of any losses, claims, damages and
liabilities arising out of the Directed Share Program, and all persons, if any,
who control Xxxxxx Xxxxxxx within the meaning of either Section 15 of the Act
or Section 20 of the Exchange Act.
(e) To the extent the indemnification provided for in
paragraph (a), (b) or (c) of this Section 7 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 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 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 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/or the Operating Partnership on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company 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.
(f) 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
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29
other method of allocation that does not take account of the equitable
considerations referred to in paragraph (e) of this Section 7. 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.
(g) 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 Operating Partnership, the Company'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 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
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be obligated severally in the proportions that the number of Firm Shares set
forth opposite their respective names in Schedule I or Schedule II 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 its obligations under this Agreement,
the Company will 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.
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:
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Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
BT ALEX. XXXXX INCORPORATED
XXXXXX BROTHERS INC.
XXXXXXXXXX SECURITIES
XXXXX XXXXXX INC.
Acting severally on behalf of themselves and the
several U.S. Underwriters named in Schedule I hereto.
By Xxxxxx Xxxxxxx & Co. Incorporated
By:________________________________________
Name:
Title:
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
BT ALEX. XXXXX INTERNATIONAL, DIVISION OF BANKERS
TRUST INTERNATIONAL PLC
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
XXXXXXXXXX SECURITIES
XXXXX XXXXXX INC.
Acting severally on behalf of themselves and the several
International Underwriters named in Schedule II hereto.
By Xxxxxx Xxxxxxx & Co. International Limited
By:________________________________________
Name:
Title:
31
33
SCHEDULE I
U.S. UNDERWRITERS
Number of Firm Shares
U.S. Underwriter to be Purchased
---------------- -----------------------
Xxxxxx Xxxxxxx & Co. Incorporated . . . . . . . . . . . . . . . . . . . .
BT Alex. Xxxxx Incorporated . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxx Brothers Inc. . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxxxxxx Securities . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
--------------
Total U.S. Firm Shares . . . . . . . . . . . . . . . . . . . . . . .
==============
34
SCHEDULE II
INTERNATIONAL UNDERWRITERS
Number of Firm Shares
International Underwriter to be Purchased
------------------------- -----------------------
Xxxxxx Xxxxxxx & Co. Incorporated Limited . . . . . . . . . . . . . . . .
BT Alex. Xxxxx International, division of Bankers Trust
International PLC . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxx Brothers International (Europe). . . . . . . . . . . . . . . . . .
Xxxxxxxxxx Securities . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
____________
Total International Firm Shares . . . . . . . . . . . . . . . . . . . ____________
============
35
SCHEDULE III
FORMATION DOCUMENTS
1. Agreement for Transfer of Realty and Assets, dated as of
_______ __, 1997, by and among the Transferors named therein and AMB Property
Corporation.
2. Agreement of Merger, dated _______ __, 1997, of AMB Current
Income Fund, Inc. with and into CIF Merger Sub, Inc.
3. Agreement of Merger, dated _______ __, 1997, of AMB Value
Added Fund, Inc. with and into VAF Merger Sub, Inc.
4. Agreement and Plan of Merger, dated as of _______ __, 1997, by
and among AMB Property Corporation, CIF Merger Sub, Inc. and VAF Merger Sub,
Inc.
5. Agreement of Merger, dated _______ __, 1997, of AMB
Institutional Realty Advisors, Inc. with and into AMB Property Corporation.
6. Escrow Agreements, dated ______ __, 1997, by and between the
[Operating Partnership] and each of __________, _____________, etc.
7. Agreement of Limited Partnership of AMB Property, L.P.
8. Registration Rights Agreement, dated as of ______ __, 1997, by
and among AMB Property Corporation, AMB Property, L.P. and the unit holders
listed on the signature pages thereto.
36
SCHEDULE IV
SUBSIDIARIES OF THE COMPANY
AMB Property II, L.P.
AMB Property Holding Company
Long Gate, LLC
AMB Institutional Realty Advisors, Inc.
AMB Institutional Realty Advisors, L.P.
37
SCHEDULE V
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 87.15% Member Interest
Xxxxxxxx Lakes/AMB CIF 50% L.P. Interest
Met Phase I 95, Ltd. 87.15% L.P. Interest
St. Xxxxxxx Limited Partnership 50.0001% L.P. Interest
Met 4/12, Ltd. 87.15% L.P. Interest
38
SCHEDULE VI
GROUND LEASES
[PLEASE LIST EACH GROUND LEASE AND THE PROPERTY LOCATION]
39
SCHEDULE VII
CERTAIN MATERIAL CONTRACTS
[LIST]
40
EXHIBIT A
[FORM OF LOCK-UP LETTER--EXECUTIVE OFFICERS]
________ __, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
BT Alex. Xxxxx Incorporated
Xxxxxx Brothers Inc.
Xxxxxxxxxx Securities
Xxxxx Xxxxxx Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. International Limited
BT Alex. Xxxxx International, division of Bankers Trust
International PLC
Xxxxxx Brothers International (Europe)
Xxxxxxxxxx Securities
Xxxxx Xxxxxx Inc.
x/x Xxxxxx Xxxxxxx & Xx. Xxxxxxxxxxxxx Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("Xxxxxx Xxxxxxx") and Xxxxxx Xxxxxxx & Co. International Limited ("MSIL")
propose to enter into an Underwriting Agreement (the "Underwriting Agreement")
with AMB PROPERTY CORPORATION, a Maryland corporation (the "Company"), and AMB
PROPERTY, L.P., a Delaware limited partnership (the "Operating Partnership"),
providing for the public offering (the "Public Offering") by the several
Underwriters, including Xxxxxx Xxxxxxx and MSIL (the "Underwriters") of ______
shares (the "Shares") of the Common Stock, par value $.01 per share of the
Company (the "Common Stock").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx on behalf of the Underwriters, the undersigned will not, during the
period commencing on the date hereof and ending on the second anniversary of
the date of the final prospectus relating to the Public Offering (the
"Prospectus"), (1) 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, or otherwise transfer or dispose of,
directly or
41
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, or (2) 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 Common Stock, whether any such
transaction described in clause (l) or (2) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. In addition,
the undersigned agrees that, without the prior written consent of Xxxxxx
Xxxxxxx on behalf of the Underwriters, the undersigned will not, during the
period commencing on the date hereof and ending on the second anniversary of
the date of the Prospectus, make any demand for or exercise any right with
respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
-------------------------------
(Name)
--------------------------------
(Address)
2
42
EXHIBIT B
[FORM OF LOCK-UP LETTER--INDEPENDENT DIRECTORS]
________ __, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
BT Alex. Xxxxx Incorporated
Xxxxxx Brothers Inc.
Xxxxxxxxxx Securities
Xxxxx Xxxxxx Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. International Limited
BT Alex. Xxxxx International, division of Bankers Trust
International PLC
Xxxxxx Brothers International (Europe)
Xxxxxxxxxx Securities
Xxxxx Xxxxxx Inc.
x/x Xxxxxx Xxxxxxx & Xx. Xxxxxxxxxxxxx Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("Xxxxxx Xxxxxxx") and Xxxxxx Xxxxxxx & Co. International Limited ("MSIL")
propose to enter into an Underwriting Agreement (the "Underwriting Agreement")
with AMB PROPERTY CORPORATION, a Maryland corporation (the "Company"), and AMB
PROPERTY, L.P., a Delaware limited partnership (the "Operating Partnership"),
providing for the public offering (the "Public Offering") by the several
Underwriters, including Xxxxxx Xxxxxxx and MSIL (the "Underwriters") of ______
shares (the "Shares") of the Common Stock, par value $.01 per share of the
Company (the "Common Stock").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx on behalf of the Underwriters, the undersigned will not, during the
period commencing on the date hereof and ending on the first anniversary of the
date of the final prospectus relating to the Public Offering (the
"Prospectus"), (1) 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, or otherwise transfer or dispose of,
directly or
43
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, or (2) 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 Common Stock, whether any such
transaction described in clause (l) or (2) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. In addition,
the undersigned agrees that, without the prior written consent of Xxxxxx
Xxxxxxx on behalf of the Underwriters, the undersigned will not, during the
period commencing on the date hereof and ending on the first anniversary of the
date of the Prospectus, make any demand for or exercise any right with respect
to, the registration of any shares of Common Stock or any security convertible
into or exercisable or exchangeable for Common Stock.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
-------------------------------
(Name)
--------------------------------
(Address)
2
