2,000,000 Shares AMB PROPERTY CORPORATION UNDERWRITING AGREEMENT August 18, 2006
Exhibit 1.1
2,000,000 Shares
AMB PROPERTY CORPORATION
6.85% Series P Cumulative Redeemable Preferred Stock,
par value $.01 per share
par value $.01 per share
August 18, 2006
August 18, 2006
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
As representatives of the several underwriters
named in Schedule I hereto
c/o ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
As representatives of the several underwriters
named in Schedule I hereto
c/o ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
AMB Property Corporation, a Maryland corporation (the “REIT”), proposes to issue and sell to
the several Underwriters named in Schedule I hereto (the “Underwriters”) 2,000,000 shares
of its 6.85% Series P Cumulative Redeemable Preferred Stock, par value $.01 per share (the “Firm
Shares”). ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc. have agreed to act as
representatives of the several Underwriters (in such capacity, the “Representatives”) in connection
with the offering and sale of the Shares. As used herein, the “Company” shall include the REIT,
AMB Property, L.P., a Delaware limited partnership (the “Operating Partnership”), and each of the
subsidiaries of the REIT or the Operating Partnership which is a significant subsidiary as defined
in Rule 405 of Regulation C of the Securities Act of 1933, as amended (the “Securities Act”) (each,
a “Subsidiary,” and, collectively, the “Subsidiaries”). The REIT also proposes to issue and sell
to the several Underwriters not more than an additional zero (0) shares (the “Additional Shares”),
if and to the extent that the Representatives shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such shares of preferred stock granted to the Underwriters in
Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred
to as the “Shares”.
The REIT and the Operating Partnership have filed with the Securities and Exchange Commission
(the “Commission”) a registration statement on Form S-3 (File No. 333-68283), including a
prospectus, relating to the Shares. Such registration statement, including the exhibits thereto,
as amended (or deemed to have been amended pursuant to Rules 430A, 430B or 430C under the
Securities Act of 1933, as amended (the “Securities Act”)), is hereinafter referred to as the
“Registration Statement.” The prospectus in the form in which it appears in the Registration
Statement, including the documents, if any, incorporated by reference therein, is hereinafter
referred to as the “Basic Prospectus.” The REIT filed on August 17, 2006 with the Commission
pursuant to Rule 424 under the Securities Act a preliminary prospectus supplement to the Basic
Prospectus relating to the Shares (the “Preliminary Prospectus Supplement”) and proposes to file
with the Commission pursuant to Rule 424 under the Securities Act a final prospectus supplement to
the Basic Prospectus relating to the Shares and in the form first used (or made available upon the
request of the purchasers pursuant to Rule 173 of the Securities Act) in connection with the
confirmation of sales (the “Prospectus Supplement”). The term “Prospectus” means the Basic
Prospectus together with the Preliminary Prospectus Supplement and the Prospectus Supplement and
the documents, if any, incorporated by reference therein.
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The terms “supplement”, “amendment” and “amend” as used herein with respect to the Basic
Prospectus, the Preliminary Prospectus Supplement, the Prospectus Supplement and the Prospectus
shall include all documents incorporated by reference, or deemed to be incorporated by reference,
therein that are filed subsequent to the date of the Basic Prospectus by the REIT or the Operating
Partnership with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) or the Securities Act.
As used herein, the term “General Disclosure Package” means (i) any Issuer Represented Free
Writing Prospectus(es) issued at or prior to the Applicable Time, (ii) the Basic Prospectus and the
Preliminary Prospectus Supplement immediately prior to the Applicable Time, including any document
incorporated by reference, or deemed to be incorporated by reference, therein, or any amendment or
supplement thereto, and (iii) the Permitted Free Writing Prospectus Attached as Exhibit E.
As used herein, the term “Issuer Represented Free Writing Prospectus” means any “issuer free
writing prospectus” as defined in Rule 433 of the Securities Act relating to the Shares that (i) is
required to be filed with the Commission by the Company or (ii) is exempt from filing pursuant to
Rule 433(d)(5)(i) because it contains a description of the Shares or of the offering that does not
reflect the final terms, in each case, in the form filed or required to be filed with the
Commission, or if not required to be filed, in the form required to be retained in the Company’s
records pursuant to Rule 433(g), including without limitation any Permitted Free Writing
Prospectus, as defined in Section 2 below. As used herein, the term “Applicable Time” means at or
prior to the time when sales of the Shares were first made.
1. Representations and Warranties. The REIT and Operating Partnership, jointly and
severally, represent and warrant to and agree with each of the Underwriters as of the date hereof,
at the Applicable Time and on the Closing Date 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 REIT and the Operating Partnership,
threatened by the Commission.
(b) Except for statements in such documents which do not constitute part of the
Registration Statement or the Prospectus or the General Disclosure Package pursuant to Rule
412 of Regulation C under the Securities Act, (i) each document filed pursuant to the
Exchange Act or the Securities Act and incorporated by reference or deemed to be
incorporated by reference in the Prospectus complied when filed or will comply when so filed
in all material respects with the Exchange Act or the Securities Act, as the case may be,
and the applicable rules and regulations of the Commission thereunder, (ii) each part of the
Registration Statement, when such part became or becomes effective, did not contain any
untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (iii) each part of the
Registration Statement, when such part became or becomes effective, and the Prospectus, when
originally filed, complied and, as amended or supplemented, will comply in all material
respects with the Securities Act and the applicable rules and regulations of the Commission
thereunder, (iv) the Prospectus, on the date of filing with the Commission, did not contain
and, as amended or supplemented at each of the Applicable Time, the Closing Date and any
Option Closing Date, will not contain, any untrue statement of a material fact or omit to
state a material fact necessary to make the
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statements therein, in the light of the circumstances under which they were made, not
misleading, and (v) the General Disclosure Package, at the Applicable Time did not, and at
the Closing Date 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; provided that the representations and
warranties set forth in this paragraph 1(b) do not apply to statements in or omissions from
the Registration Statement, the Permitted Free Writing Prospectus or the Prospectus, or any
amendment or supplement thereto, based upon and in conformity with information relating to
any Underwriter furnished to the REIT in writing by any Underwriter expressly for use in the
Registration Statement, the Permitted Free Writing Prospectus or the Prospectus, which
information is limited to the information set forth in Exhibit A hereto.
(c) The REIT 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 the General Disclosure
Package and to enter into and perform its obligations under this Agreement. The REIT 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 REIT, the
Operating Partnership and their subsidiaries, taken as a whole (a “Material Adverse
Effect”).
(d) The Operating Partnership is a limited partnership duly formed and existing under
and by virtue of the laws of the State of Delaware and is in good standing under the
Delaware Revised Uniform Limited Partnership Act with partnership power and authority to
own, lease and operate its properties, to conduct the business in which it is engaged or
proposes to engage as described in the Prospectus and the General Disclosure Package and to
enter into and perform its obligations under this Agreement. The Operating Partnership is
duly qualified or registered as a foreign partnership and is in good standing in California
and is in good standing in each other jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or be registered or to be in
good standing in such other jurisdiction would not have Material Adverse Effect. The REIT
is the sole general partner of the Operating Partnership and owns the percentage interest in
the Operating Partnership as set forth or incorporated by reference in the Prospectus and
the General Disclosure Package.
(e) Each Subsidiary is, as the case may be, duly incorporated or organized, and is
validly existing as a partnership, corporation or limited liability company in good standing
under the laws of its respective jurisdiction of organization, and has the corporate,
partnership or other power and authority to own its property and to conduct its business as
described in the Prospectus and the General Disclosure Package. Each
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Subsidiary is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a Material Adverse Effect; all of the issued shares of
capital stock or other ownership interests of each Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable and, except as set forth or
incorporated by reference in the Prospectus and the General Disclosure Package, are owned
directly or indirectly by the REIT or the Operating Partnership, free and clear of all
liens, encumbrances, equities or claims.
(f) Each of the joint venture partnerships or limited liability companies that is
consolidated in the consolidated financial statements of the Company or that is listed in
the REIT’s or the Operating Partnership’s annual report on Form 10-K (collectively, the
“Annual Report”) for the year ended December 31, 2005 or quarterly report on Form 10-Q
(collectively, the “Quarterly Report”) for the quarter ended June 30, 2006 (collectively,
the “Joint Ventures”) has been duly formed and is validly existing as a limited partnership
or limited liability company in good standing under the laws of its state of organization,
with power and authority to own, lease and operate its properties and to conduct the
business in which it is engaged, except where the failure to be duly formed, validly
existing or in good standing or where to own, lease and operate its properties and to
conduct its business would not have a Material Adverse Effect. 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. Except as would not have a Material Adverse Effect, the REIT, the Operating
Partnership or a subsidiary of the REIT or the Operating Partnership owns the percentage of
the partnership or other equity interest in each of the Joint Ventures as set forth in the
Annual Report and Quarterly Report (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, except for any security
interest, mortgage, pledge, lien, encumbrance, claim or equity which would not, singly or in
the aggregate, have a Material Adverse Effect. The Company has no other interests in joint
venture partnerships or limited liability companies in which unrelated third parties have
interests which are, individually or in the aggregate, material to the consolidated
financial position, results of operations or business of the REIT, the Operating Partnership
and their subsidiaries, taken as a whole, other than as set forth in the Annual Report and
Quarterly Report or as reflected in the financial statements and schedules therein.
(g) This Agreement has been duly authorized, executed and delivered by the REIT and the
Operating Partnership and constitutes the valid and binding agreement of each of them,
enforceable against them in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally
and general principles of equity.
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(h) The REIT has an authorized capitalization as set forth in the Prospectus and the
General Disclosure Package, and the authorized capital stock of the REIT conforms in all
material respects to the description thereof contained in the Prospectus and the General
Disclosure Package.
(i) All of the issued and outstanding partnership units of the Operating Partnership
(the “Units”) have been duly and validly authorized and issued and conform to the
description thereof contained or incorporated by reference in the Prospectus and the General
Disclosure Package. The Units owned by the REIT are owned directly by the REIT, free and
clear of all liens, encumbrances, equities or claims.
(j) The Shares have been duly authorized and classified for issuance and sale to the
Underwriters pursuant to this Agreement. On or prior to the Closing Date, the REIT will
have executed and filed with the State Department of Assessments and Taxation of Maryland
(the “SDAT”) Articles Supplementary (“Articles Supplementary”) to its Articles of
Incorporation establishing the terms of the Shares and, when the Shares are duly paid for
and certificates therefor are duly countersigned and delivered as provided herein, the
Shares will be validly issued, fully paid and nonassessable. The issuance of the Shares is
not subject to preemptive or similar rights.
(k) The execution and delivery by the REIT and the Operating Partnership of, and the
performance by each of the REIT and the Operating Partnership of its respective obligations
under, this Agreement and the consummation of the transactions contemplated hereby and
thereby, as described in the Prospectus and the General Disclosure Package, will not (i)
conflict with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan agreement, joint
venture agreement, partnership agreement, limited liability company agreement or any other
agreement or instrument to which the Company is a party or by which the Company is bound or
to which any of the property or assets of the Company is subject, except for such conflicts,
breaches or violations which would not, singly or in the aggregate, have a Material Adverse
Effect, (ii) result in any violation of the provisions of the charter, by-laws, certificate
of limited partnership, partnership agreement or other organizational documents of the REIT,
the Operating Partnership or any Subsidiary, as the case may be, or (iii) result in any
violation of any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, except where such noncompliance or
violation of any such statute, order, rule or regulation would not, singly or in the
aggregate, have a Material Adverse Effect. No consent, approval, authorization or order of,
or filing or registration with, any such court or governmental agency or body is required
for the execution and delivery by the REIT or the Operating Partnership of, and the
performance by each of the REIT and the Operating Partnership of its respective obligations
under, this Agreement and the consummation of the transactions contemplated hereby and
thereby, except for (A) the registration of the Shares under the Securities Act or the rules
and regulations thereunder and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Securities Act, the Exchange Act, or the rules
and regulations thereunder, and applicable state and foreign securities laws in connection
with issuance, offer and sale of the Shares, (B) the listing of the Shares on the NYSE, or
(C) consents,
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approvals, authorizations, orders, filings or registrations that will be completed on
or prior to the Closing Date.
(l) There are no legal or governmental proceedings pending or, to the knowledge of the
REIT and the Operating Partnership, threatened, to which the Company is a party or to which
any of the properties of the Company is subject that are required to be described in the
Registration Statement, the Prospectus or the General Disclosure Package and are not so
described or incorporated by reference, or any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement, the Prospectus or
the General Disclosure Package or to be filed as exhibits to the Registration Statement that
are not described, incorporated by reference or filed as required.
(m) The Preliminary Prospectus Supplement and each Issuer Represented Free Writing
Prospectus when so filed with the Commission complied in all material respects with the
Securities Act and the applicable rules and regulations of the Commission thereunder.
(n) None of the REIT, 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 and the General Disclosure Package, none will be, an “investment
company” as such term is defined in the Investment Company Act of 1940, as amended.
(o) Other than as contemplated by the General Disclosure Package and the Prospectus,
there are no contracts, agreements or understandings between the REIT and any person
granting such person the right to require the REIT to file a registration statement under
the Securities Act with respect to any securities of the REIT, other than with respect to a
de minimis number of shares of the common stock, par value $0.01 per share (the “Common
Stock”), of the REIT, or to require the REIT to include such securities with the Shares
registered pursuant to the Registration Statement.
(p) There has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise, or in the
earnings, business or operations of the REIT, the Operating Partnership, and their
subsidiaries, taken as a whole, from that set forth or incorporated by reference in the
Prospectus and the General Disclosure Package. Subsequent to the respective dates as of
which information is given in the Registration Statement, the Prospectus and the General
Disclosure Package, except as described in or contemplated by the Prospectus or the General
Disclosure Package or a document incorporated therein by reference, (i) the Company has not
incurred any liability or obligation, direct or contingent, nor entered into any transaction
not in the ordinary course of business that is material with respect to the REIT, the
Operating Partnership and their subsidiaries, taken as a whole; (ii) the REIT has not
purchased any of its outstanding capital stock other than pursuant to its stock repurchase
program, nor declared, paid or otherwise made any dividend or distribution of any kind on
its capital stock; (iii) the Operating Partnership has not purchased any of its outstanding
Units, nor declared, paid or otherwise made any dividend or distribution of any kind on its
Units other than in the normal course of
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business, and (iv) there has not been any change in the capital stock or increase in
the short-term debt or long-term debt that is, in either case, material with respect to the
Company taken as a whole (excluding debt resulting from a draw down on the credit facilities
of the REIT, the Operating Partnership or any of their subsidiaries).
(q) Except as otherwise disclosed in the General Disclosure Package and the Prospectus,
the REIT, the Operating Partnership and their respective subsidiaries each has good and
marketable title to, or valid and enforceable leasehold estates in, all items of real and
personal property referred to therein as owned or leased by them, in each case free and
clear of all liens, encumbrances, claims, security interests and defects, other than those
referred to therein or which would not materially affect the value thereof or materially
interfere with the use made or to be made by them.
(r) Except as disclosed or incorporated by reference in the General Disclosure Package
and the Prospectus: The REIT and the Operating Partnership each has no knowledge of any of
the following which could have a Material Adverse Effect: (1) the unlawful presence of any
hazardous substances, hazardous materials, toxic substances or waste materials
(collectively, “Hazardous Materials”) on any of the properties currently owned by it or any
of its subsidiaries or any of the properties previously owned by it or any of its
subsidiaries for which it retains any liability with respect to Hazardous Materials or (2)
any unlawful spills, releases, discharges or disposal of Hazardous Materials that have
occurred or are presently occurring off such properties as a result of any construction on
or operation and use of such properties. In connection with the construction on or operation
and use of the properties owned by the REIT, the Operating Partnership or any of their
respective subsidiaries, the REIT and the Operating Partnership each represents that it has
no knowledge of any material failure to comply with all applicable local, state and federal
environmental laws, regulations, ordinances and administrative and judicial orders relating
to the generation, recycling, reuse, sale, storage, handling, transport and disposal of any
Hazardous Materials.
(s) The independent auditors of the Company, who have certified certain financial
statements incorporated by reference in the Registration Statement, the Prospectus and the
General Disclosure Package, whose report appears in the Prospectus and the General
Disclosure Package, 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 and the General
Disclosure Package.
(t) The Company is insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary in the businesses in
which they are engaged; the Company has not been refused any insurance coverage sought or
applied for; and the Company does not have any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business at a cost that
would not have a Material Adverse Effect, except as described in or contemplated by the
Prospectus and the General Disclosure Package, or in a document incorporated by reference
therein.
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(u) The Company possesses all certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities necessary to conduct its
businesses, except where the failure to possess such certificates, authorizations and
permits, singly or in the aggregate, would not result in a Material Adverse Effect, and the
Company has not received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect, except as described in or contemplated by the Prospectus and the
General Disclosure Package.
(v) The Company has filed all Federal, state, and local income tax returns which have
been required to be filed and has paid all taxes required to be paid and any other
assessment, fine or penalty levied against it, to the extent that any of the foregoing is
due and payable, except, in all cases, for any such tax, assessment, fine or penalty that is
being contested in good faith (and except in any case in which the failure to so file or pay
would not have a Material Adverse Effect).
(w) The financial statements (including the notes thereto) included or incorporated by
reference in the Registration Statement, the Prospectus and the General Disclosure Package
present fairly in all material respects the financial position of the respective entity or
entities presented therein at the respective dates indicated and the results of their
operations for the respective periods specified, and except as otherwise stated or
incorporated by reference in the Registration Statement, the Prospectus and the General
Disclosure Package, 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 in all material
respects the information required to be stated or incorporated by reference therein. The
financial information and data included in the Registration Statement, the Prospectus and
the General Disclosure Package present fairly in all material respects the information
included therein and have been prepared on a basis consistent with that of the books and
records of the respective entities presented therein. Pro forma financial information
included or incorporated by reference in the Prospectus and the General Disclosure Package
has been prepared in accordance with the applicable requirements of Rules 11-01 and 11-02 of
Regulation S-X under the Securities Act, and the necessary pro forma adjustments have been
properly applied to the historical amounts in the compilation of such information, and, in
management’s opinion, the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(x) The Company is currently in compliance with all presently applicable provisions of
the Americans with Disabilities Act, except for such noncompliance which would not, singly
or in the aggregate, have a Material Adverse Effect, and no failure of the Company to comply
with all presently applicable provisions of the Americans with Disabilities Act would have a
Material Adverse Effect.
(y) The REIT has elected to be taxed as a “real estate investment trust” under the
Internal Revenue Code of 1986, as amended (the “Code”), commencing with its taxable year
ended December 31, 1997; the REIT has qualified and expects that it will
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continue to qualify as a “real estate investment trust” under the Code beginning with
its taxable year ended December 31, 1997, and will continue to qualify as a “real estate
investment trust” under the Code after consummation of the transactions contemplated by the
Prospectus and the General Disclosure Package; and the REIT’s present and contemplated
operations, assets and income will enable it to meet the requirements for qualification as a
“real estate investment trust” under the Code.
(z) Neither the REIT, the Operating Partnership nor any Subsidiary, nor any of their
directors, officers or controlling persons, has taken or will take, directly or indirectly,
any action designed to cause or result under the Exchange Act, or otherwise in, or which has
constituted or which reasonably might be expected to constitute, the unlawful stabilization
or manipulation of the price of any security of the REIT to facilitate the sale or resale of
the Shares.
2. Representations and Warranties Regarding Free Writing Prospectuses. The Company
represents and agrees that, unless it obtains the prior consent of the Representatives on behalf of
the several Underwriters, and each Underwriter represents and agrees that, unless it obtains the
prior consent of the Company and the other Underwriters, it has not made and will not make any
offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined
in Rule 433 under the Securities Act, or that would otherwise constitute a “free writing
prospectus,” as defined in Rule 405 under the Securities Act, required to be filed with the
Commission. Any such free writing prospectus consented to by the Company and the Underwriters is
hereinafter referred to as a “Permitted Free Writing Prospectus,” each of which Permitted Free
Writing Prospectus as of the date hereof is attached as Exhibit E. The Company represents
that it has treated, and agrees that it will treat, each Permitted Free Writing Prospectus as an
“issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the
requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely
filing with the Commission where required, legending and record keeping. The Company represents
that each Issuer Represented Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Shares did not, does not and will
not include any information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus, including any information in the
Preliminary Prospectus Supplement or any other prospectus deemed to be a part of the Prospectus
that has not been superseded or modified, provided that this representation does not apply
to information contained in the Permitted Free Writing Prospectus based upon and in conformity with
information relating to any Underwriter furnished to the REIT in writing by any Underwriter
expressly for use in the Permitted Free Writing Prospectus, which information is limited to the
information set forth in Exhibit A hereto.
3. Agreement to Sell and Purchase. The REIT hereby agrees to issue and sell to the
several Underwriters, and each Underwriter, upon the basis of the representations and warranties
herein contained and upon the terms and subject to the conditions herein set forth, agrees,
severally and not jointly, to purchase from the REIT, the respective number of Firm Shares set
forth in Schedule I hereto opposite its name. The purchase price per share of the Shares
to be paid by the several Underwriters to the REIT shall be $24.2125 a share (the “Purchase
Price”).
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In addition, REIT hereby agrees to issue and sell to the several Underwriters, and the
Underwriters, upon the basis of the representations and warranties herein contained and upon the
terms and subject to the conditions herein set forth, shall have a one-time right to purchase,
severally and not jointly, from the REIT any or all of the Additional Shares at the Purchase Price.
If you, on behalf of the Underwriters, elect to exercise such option, you shall so notify the REIT
in writing not later than 30 days after the date of this Agreement, which notice shall specify the
number of Additional Shares to be purchased by the Underwriters and the date on which such shares
are to be purchased. Such date may be the same as the Closing Date (as defined below), but not
earlier than the Closing Date nor later than ten (10) business days after the date of such notice.
Additional Shares may be purchased as provided in Section 5 hereof solely for the purpose of
covering over-allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each Underwriter agrees, severally and not jointly, to
purchase the number of Additional Shares (subject to such adjustments to eliminate fractional
shares as you may determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of Firm Shares set forth in Schedule I hereto opposite
the name of such Underwriter bears to the total number of Firm Shares.
Each of the REIT and the Operating Partnership hereby agrees that, without the prior written
consent of the Representatives on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending 30 days after the date hereof, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of, directly
or indirectly, any shares of its 6.85% Series P Cumulative Redeemable Preferred Stock (the “Series
P Preferred Stock”), or any securities convertible into or exercisable or exchangeable for Series P
Preferred Stock or any other securities substantially similar to the Series P Preferred Stock
(other than in connection with the acquisition of properties) 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 shares of Series P Preferred Stock, whether any such transaction described in clause
(i) or (ii) above is to be settled by delivery of Series P Preferred Stock, in cash or otherwise.
The restrictions described in the foregoing sentence shall not apply to the Shares to be sold
hereunder or the Common Stock or prevent the Company from redeeming or repurchasing any of its
securities, including, without limitation, limited partnership units of the Operating Partnership
and AMB Property II, L.P.
4. Terms of Public Offering. The REIT is advised by you that the Underwriters propose
to make a public offering of their respective portions of the Shares as soon after this Agreement
has become effective as in your judgment is advisable. The REIT is further advised by you that the
Shares are to be offered to the public initially at $25.00 a share (the “Public Offering Price”)
plus accrued dividends, if any, to the Closing Date, and to certain dealers selected by you at a
price that represents a concession not in excess of $0.50 a share under the Public Offering Price,
and that any Underwriter may allow, and such dealers may reallow, a concession, not in excess of
$0.45 a share, to any Underwriter or to certain other dealers.
5. Payment and Delivery. Payment of the aggregate Purchase Price for the Firm Shares
shall be made to the REIT 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 the fifth full business day following the date of this
10
Agreement, or at such other time on the same or such other date as shall be agreed to in
writing by the REIT and the Representatives. The time and date of such payment are hereinafter
referred to as the “Closing Date.”
Payment for the Additional Shares shall be made to the REIT 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 3 or at such other time on the same or such other date
as shall be agreed to in writing by the REIT and the Representatives. The time and date of such
payment are hereinafter referred to as the “Option Closing Date.”
Certificates for 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 (1) 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.
6. Conditions to the Underwriters’ Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and warranties on the
part of the REIT and the Operating Partnership herein, to the accuracy of the statements of the
Company’s officers made in each certificate furnished pursuant to the provisions hereof and to the
performance and observance by the Company of all covenants and agreements herein contained on its
part to be performed and observed and to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the
Applicable Time and the Closing Date, as the case may be:
(i) there shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the earnings,
business or operations of the REIT, the Operating Partnership and their
subsidiaries, taken as a whole, from that set forth in the Prospectus and the
General Disclosure Package (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 and the General
Disclosure Package; and
(ii) there shall not have occurred any downgrading, nor shall any notice have
been given of any intended or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible change, in the rating
accorded the REIT, the Operating Partnership, any of their subsidiaries, any of
their respective securities or in the rating outlook for any of them by any
“nationally recognized statistical rating organization,” as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act.
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(b) The Underwriters shall have received on the Closing Date a certificate, dated the
Closing Date, and signed by an executive officer of the REIT on behalf of the REIT and in
the REIT’s capacity as general partner of the Operating Partnership, to the effect set forth
in subsection (a) and subsection (c) of this Section 6, and to the effect that:
(i) the representations and warranties of the REIT and the Operating Partnership
contained in this Agreement are true and correct at the Applicable Time and on the Closing
Date, as if made at the Applicable Time and on the Closing Date; and
(ii) all of the covenants and agreements contained herein to be performed on the part
of the Company and all conditions contained herein to be fulfilled or complied with by the
Company at or prior to the Applicable Time or the Closing Date, as the case may be, shall
have been duly performed, fulfilled or complied with in all material respects at or prior to
the time such performance, fulfillment or compliance was required.
The officer signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Prospectus and any Issuer Represented Free Writing Prospectus required to be
filed shall have been filed with the Commission as required by the Securities Act and/or
this Agreement and no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purposes shall be pending or threatened
by the Commission.
(d) The Underwriters shall have received on the Closing Date (i) an opinion or opinions
of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the REIT, dated the Closing Date, in form and
substance satisfactory to the Underwriters, as to the matters set forth in Exhibit
B-1 attached hereto, (ii) an opinion or opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special tax
counsel for the REIT, dated the Closing Date, in form and substance satisfactory to the
Underwriters, as to the matters set forth in Exhibit B-2 attached hereto, and (iii)
a letter of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the REIT, dated the Closing Date, in
form and substance satisfactory to the Underwriters, as to the matters set forth in
Exhibit B-3 attached hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, General Counsel to the REIT, dated the Closing Date, in form and substance
satisfactory to the Underwriters, as to the matters set forth in Exhibit C attached
hereto.
(f) The Underwriters shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, Maryland corporate counsel for the REIT, dated the Closing
Date, in form and substance satisfactory to the Underwriters, as to the matters set forth in
Exhibit D attached hereto.
(g) The Underwriters shall have received on the Closing Date an opinion(s) of ▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated the Closing Date, in form and
substance satisfactory to the Underwriters.
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(h) The Underwriters shall have received on the date hereof a letter(s) dated the date
hereof, in form and substance reasonably satisfactory to the Underwriters, from
PricewaterhouseCoopers LLP, the Company’s independent registered public accounting firm,
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. On the
Closing Date, PricewaterhouseCoopers LLP shall have furnished to the Underwriters a letter,
dated the Closing Date, which shall confirm, on the basis of a review in accordance with the
procedures set forth in the letter from PricewaterhouseCoopers LLP, that nothing has come to
their attention during the period from the date of the letter referred to in the prior
sentence to a date (specified in the letter) not more than three days prior to the Closing
Date which would require any change in their letter dated the date hereof if it were
required to be dated and delivered at the Closing Date.
(i) The Shares shall be qualified for sale in such states as the Underwriters may
reasonably request, and each such qualification shall be in effect and not subject to any
stop order or other proceeding at the Applicable Time and on the Closing Date.
(j) At the Applicable Time and on the Closing Date, the Company shall have furnished to
the Underwriters such appropriate further information, certificates and documents as they
may reasonably request.
The several obligations of the Underwriters to purchase Additional Shares hereunder are
subject to the delivery to you on the Option Closing Date of such documents as you may reasonably
request with respect to the good standing of the REIT and the Operating Partnership, the due
authorization and issuance of the Additional Shares and other matters related to the issuance of
the Additional Shares, including, without limitation, (i) a certificate dated and as of the Option
Closing Date to same effect as the certificate described in paragraph (b) above, (ii) opinions of
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP dated the Option
Closing Date to same effect as the opinions described in paragraphs (d), (e) and (f) but relating
to the Additional Shares, (iii) an opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ dated the Option Closing Date
relating to the Additional Shares, (iv) a letter from PricewaterhouseCoopers LLP dated the Option
Closing Date to same effect as the described in paragraph (h), and (v) such appropriate further
information, certificates and documents as you may reasonably request.
7. Covenants of the REIT and the Operating Partnership. In further consideration of
the agreements of the Underwriters herein contained, the REIT and the Operating Partnership
covenant with each Underwriter as follows:
(a) The REIT will advise the Representatives promptly of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or of the
institution of any proceedings for that purpose, and will use their best efforts to prevent
the issuance of any such stop order and to obtain as soon as possible the lifting thereof,
if issued, and will advise the Representatives promptly of any examination pursuant to 8(e)
of the Securities Act or of the REIT or Operating Partnership becoming the subject of a
proceeding under 8A of the Securities Act in connection with any
13
offering of the Shares. The REIT and the Operating Partnership will advise the
Representatives promptly of any request by the Commission for any amendment of or supplement
to the Registration Statement or the Prospectus or the General Disclosure Package or for
additional information, and will not at any time file any amendment to the Registration
Statement or supplement to the Prospectus or the General Disclosure Package which shall not
previously have been submitted to the Representatives a reasonable time prior to the
proposed filing or use thereof or to which the Representatives shall reasonably object or
which is not in compliance with the Securities Act and the rules and regulations thereunder.
The REIT and the Operating Partnership will cause the Preliminary Prospectus Supplement,
the Prospectus Supplement and any Issuer Represented Free Writing Prospectus to be filed and
will advise you promptly when the Prospectus has been filed pursuant to Rule 424(b) under
the Securities Act and any Issuer Represented Free Writing Prospectus has been filed
pursuant to Rule 433 under the Securities Act.
(b) To furnish to you, upon request and without charge, a signed copy of the
Registration Statement (including exhibits thereto) and for delivery to each other
Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to
furnish to you in New York City, without charge, prior to 10:00 A.M. New York City time on
the business day next succeeding the date of this Agreement and during the period mentioned
in Section 7(c) below, as many copies of the General Disclosure Package and Prospectus and
any supplements and amendments thereto or to the Registration Statement as you may
reasonably request.
(c) If, during such period after the first date of the public offering of the Shares,
in the opinion of counsel for the Underwriters, the Prospectus or the General Disclosure
Package 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 General Disclosure Package or the Prospectus in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading when the General Disclosure Package or 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 and the General Disclosure Package to comply with applicable
law, the Company will immediately notify the Underwriters and forthwith 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 REIT and the Operating Partnership) 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 and the General
Disclosure Package so that the statements in the Prospectus and the General Disclosure
Package as so amended or supplemented will not, in the light of the circumstances under
which they were made, be misleading when the Prospectus or the General Disclosure Package is
delivered to a purchaser, or so that the Prospectus and the General Disclosure Package, as
amended or supplemented, will comply with law.
14
(d) To endeavor to qualify the Shares for offer and sale under the securities or Blue
Sky laws and real estate syndication laws of such jurisdictions as you shall reasonably
request.
(e) To make generally available to the REIT’s security holders and to you as soon as
practicable (but no event later than the last day of the fifteenth full calendar month
following the end of the REIT’s current fiscal quarter), an earnings statement covering the
twelve-month period beginning after the date upon which the Prospectus Supplement is filed
pursuant to Rule 424 under the Securities Act that satisfies the provisions of Section 11(a)
of the Securities Act and the rules and regulations of the Commission thereunder.
(f) Whether or not the transactions contemplated in this Agreement are consummated or
this Agreement is terminated, to pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including: (i) the fees, disbursements
and expenses of counsel for the Company and the Company’s accountants in connection with the
registration and delivery of the Shares under the Securities Act and all other fees or
expenses in connection with the preparation and filing of the Registration Statement, the
Preliminary Prospectus Supplement, the Prospectus Supplement, the Prospectus and any Issuer
Represented Free Writing Prospectus, and any amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing and delivering
of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified,
(ii) all costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of
printing or producing any Blue Sky or Legal Investment memorandum in connection with the
offer and sale of the Shares under state securities laws and all expenses in connection with
the qualification of the Shares for offer and sale under state securities laws as provided
in Section 7(d) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and in connection with
the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable fees
and disbursements of counsel to the Underwriters incurred in connection with the review and
qualification of the offering of the Shares by the National Association of Securities
Dealers, Inc., if any, (v) any fees charged by the rating agencies for the rating of the
Shares, (vi) all fees and expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Shares, (vii) all costs and expenses
incident to listing the Shares on the New York Stock Exchange, (viii) the cost of printing
certificates representing the Shares, (ix) the fees and expenses of any transfer agent,
registrar or depositary in connection with the issuance of the Shares, (x) the costs and
expenses of the Company relating to investor presentations on any “road show” undertaken in
connection with the marketing of the offering of the Shares, including, without limitation,
expenses associated with the production of road show slides and graphics, fees and expenses
of any consultants engaged in connection with the road show presentations with the prior
approval of the REIT, travel and lodging expenses of the representatives and officers of the
REIT and any such consultants, and, with the prior approval of the REIT, the cost of any
aircraft chartered in connection with the road show and (xi) all other costs and expenses
incident to the performance of the obligations of the Company hereunder for
15
which provision is not otherwise made in this Section. It is understood, however, that
except as provided in this Section, Section 8 entitled “Indemnity and Contribution” and the
last paragraph of Section 10 below, the Underwriters will pay all of their costs and
expenses, including fees and disbursements of their counsel, stock transfer taxes payable on
resale of any of the Shares by them and any advertising expenses connected with any offers
they may make.
(g) The Company will use the net proceeds received by it from the sale of the Shares
sold by it in the manner specified in the Prospectus and the General Disclosure Package
under the caption “Use of Proceeds.”
(h) The Company shall have applied to list the Shares, and the Shares shall have been
approved for listing, subject to notice of issuance, on the New York Stock Exchange (the
“NYSE”) on or prior to the Closing Date, and the REIT and the Operating Partnership shall
use its best efforts to maintain the listing of such Shares on the NYSE.
(i) Except for the authorization of actions permitted to be taken by the Underwriters
as contemplated herein or in the Prospectus or the General Disclosure Package, neither the
REIT nor the Operating Partnership will, within 30 days of the date of the Prospectus, (i)
take, directly or indirectly, any action designed to cause or to result in, or that might
reasonably be expected to constitute, the stabilization or manipulation of the price of any
security of the REIT to facilitate the sale or resale of the Shares, (ii) sell, bid for or
purchase the Shares or pay any person any compensation for soliciting purchases of the
Shares or (iii) pay or agree to pay to any person any compensation for soliciting another to
purchase any other securities of the REIT, which payment or agreement is designed to cause
or to result in the stabilization or manipulation of the price of the Shares.
(j) The Company will use its best efforts to enable ▇▇▇▇▇’▇ Investor Service, Inc. and
Standard and Poor’s Rating Services to provide their respective credit ratings of the REIT,
the Operating Partnership or the Shares, as the case may be.
(k) Prior to the Closing Date the REIT will file the Articles Supplementary with the
Maryland State Department of Assessments and Taxation establishing and fixing the rights and
preferences of the Shares. The REIT shall first provide the form of Articles Supplementary
to counsel to the Underwriters and shall not file any form of Articles Supplementary to
which counsel to the Underwriters has objected in good faith.
(l) The Company acknowledges and agrees that (i) the purchase and sale of the Shares
pursuant to this Agreement, including the determination of the public offering price of the
Shares and any related discounts and commissions, is an arm’s-length commercial transaction
between the Company, on the one hand, and the several Underwriters, on the other hand, (ii)
in connection with the offering contemplated hereby and the process leading to such
transaction each Underwriter is and has been acting solely as a principal and is not the
agent or fiduciary of the Company, or its stockholders, creditors, employees or any other
party, (iii) no Underwriter has assumed or will assume an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or
the process leading thereto (irrespective of whether such
16
Underwriter has advised or is currently advising the Company on other matters) and no
Underwriter has any obligation to the Company with respect to the offering contemplated
hereby except the obligations expressly set forth in this Agreement, (iv) the Underwriters
and their respective affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Company, and (v) the Underwriters have not provided
any legal, accounting, regulatory or tax advice with respect to the offering contemplated
hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors
to the extent it deemed appropriate.
8. Indemnity and Contribution.
(a) The REIT 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, liabilities and expenses (including, without limitation, any legal
or other expenses reasonably incurred in connection with defending or investigating any such action
or claim) arising out of or caused by (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof, the Preliminary
Prospectus Supplement, Prospectus Supplement, the Prospectus or any Issuer Represented Free Writing
Prospectus (in each case, as amended or supplemented if the REIT and the Operating Partnership
shall have furnished any amendments or supplements thereto) or in any documents filed under the
Securities Act or the Exchange Act and incorporated by reference or deemed to be incorporated by
reference into the Registration Statement, the Preliminary Prospectus Supplement, Prospectus
Supplement, the Prospectus or the General Disclosure Package or in any application or other
document executed by or on behalf of the Company or based on written information furnished by or on
behalf of the Company filed in any jurisdiction in order to qualify the Shares under the securities
or blue sky laws thereof or filed with the Commission, (ii) any omission or alleged omission to
state in the Registration Statement, the Prospectus or the General Disclosure Package a material
fact required to be stated therein or necessary to make the statements therein not misleading, or
(iii) any act or failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Shares or the offering contemplated hereby, and
which is included as part of or referred to in any loss, claim, damage, liability or expense
arising out of or based upon matters covered by clause (i) or (ii) above (provided,
however, that the REIT and the Operating Partnership shall not be liable under this clause
(iii) to the extent it is finally judicially determined by a court of competent jurisdiction that
such loss, claim, damage, liability or expense resulted directly from any such acts or failures to
act undertaken or omitted to be taken by such Underwriter through its gross negligence or willful
misconduct), except insofar as such losses, claims, damage, liabilities or expenses 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 REIT and the Operating Partnership in
writing by such Underwriter through you expressly for use in the Registration Statement, the
Permitted Free Writing Prospectus or the Prospectus, which information is limited to that set forth
on Exhibit A hereof. This indemnity agreement will be in addition to any liability that
the REIT or the Operating Partnership might otherwise have.
17
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
REIT, the Operating Partnership and the REIT’s directors, its officers who sign the Registration
Statement and each person, if any, who controls the REIT 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 REIT and the Operating Partnership to such
Underwriter, but only with reference to information relating to such Underwriter furnished to the
REIT in writing by such Underwriter through you expressly for use in the Registration Statement,
the Permitted Free Writing Prospectus or the Prospectus, which information is limited to that set
forth on Exhibit A hereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b),
such person (the “indemnified party”) shall promptly notify the person against whom such indemnity
may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by the Representatives,
in the case of parties indemnified pursuant to Section 8(a), and by the REIT or the Operating
Partnership, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party
shall not be liable for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or liability by reason of
such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party in writing to reimburse the indemnified party for
fees and expenses of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 60 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of each indemnified
party, effect any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of such proceeding.
18
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to
an indemnified party or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion
as is appropriate to reflect the relative benefits received by the REIT and the Operating
Partnership on the one hand and the Underwriters on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the REIT and the Operating Partnership on the one hand and of
the Underwriters on the other hand in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the REIT and the Operating Partnership on the
one hand and the Underwriters on the other hand in connection with the offering of the Shares shall
be deemed to be in the same respective proportions as the net proceeds from the offering of the
Shares (before deducting expenses) received by the REIT 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 REIT and 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 REIT or the Operating Partnership or by the Underwriters and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Underwriters’ respective obligations to contribute pursuant to
this Section 8 are several in proportion to the respective number of Shares they have purchased
hereunder, and not joint.
(e) The REIT, the Operating Partnership and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred to in Section 8(d).
The amount paid or payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, 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 8 are not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the REIT and the Operating Partnership
19
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 REIT, the Operating
Partnership or the REIT’s officers or directors or any person controlling the REIT or the Operating
Partnership and (iii) acceptance of and payment for any of the Shares.
9. Termination. The obligations of the Underwriters under this Agreement may be
terminated at any time on or prior to the Closing Date, by notice to the REIT and the Operating
Partnership from the Underwriters, without liability on the part of the Underwriters to the REIT
and the Operating Partnership, if, prior to delivery and payment for the Shares, in the sole
judgment of the Underwriters, (i) trading in any of the securities of the REIT or the Operating
Partnership shall have been suspended by the Commission, by any exchange that lists such securities
or in any over-the-counter market, (ii) trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum or maximum prices shall have been
generally established on such exchange, or additional material governmental restrictions, not in
force on the date of this Agreement, shall have been imposed upon trading in securities generally
by such exchange or by order of the Commission or any court or other governmental authority, (iii)
a general banking moratorium shall have been declared by either Federal or New York State
authorities or (iv) any material adverse change in the financial or securities markets in the
United States or in political, financial or economic conditions in the United States or any
material outbreak or material escalation of hostilities or declaration by the United States of a
national emergency or war or other material calamity or crisis, including, without limitation, an
act of terrorism, shall have occurred the effect of any of which is such as to make it, in the
judgment of the Underwriters, impracticable or inadvisable to proceed with the offering, sale or
delivery of the Shares on the terms and in the manner contemplated by the Prospectus, the General
Disclosure Package and this Agreement.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become effective
upon the execution and delivery hereof by the parties hereto. If, on the Closing Date or the
Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse
to purchase Shares that it has or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate number of the Shares to be
purchased on such date, the other Underwriters shall be obligated severally in the proportions that
the number of Firm Shares set forth opposite their respective names in Schedule I bears to
the aggregate number of Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date;
provided that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 10 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 the
Representatives and the REIT 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 REIT. In any such case, either the Representatives
20
or the REIT shall have the right to postpone the Closing Date, but in no event for longer than
seven (7) days, in order that the required changes, if any, in the Registration Statement, the
Prospectus and the General Disclosure Package 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 REIT 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 REIT or the Operating
Partnership shall be unable to perform their obligations under this Agreement, the REIT and the
Operating Partnership will, jointly and severally, reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated hereunder.
11. Representations and Agreements to Survive Delivery. All representations,
warranties, agreements and covenants of the REIT and the Operating Partnership herein or in
certificates delivered pursuant hereto and the agreements of the Underwriters in Section 8 herein
shall remain operative and in full force and effect regardless of any investigation made by or on
behalf of any Underwriter or any controlling persons, or the REIT or the Operating Partnership or
any of its officers, trustees, or any controlling persons, and shall survive (i) termination of
this Agreement and (ii) delivery of and payment for the Shares hereunder.
12. Notices. All communications hereunder will be in writing and effective only on
receipt, and, with respect to any party hereto, will be mailed, delivered or telefaxed and
confirmed as follows:
| if to the Company: | AMB Property Corporation | |||
| ▇▇▇▇ ▇, ▇▇▇ ▇ | ||||
| ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
| Attention: General Counsel | ||||
| Telefax number: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| with a copy to: | ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP | |||
| ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇ | ||||
| ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
| Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||
| Telefax number: (▇▇▇) ▇▇▇-▇▇▇▇ |
21
| if to the Underwriters: | ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. | |||
| ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||||
| ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||||
| Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President, Manager | ||||
| Telefax number: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| with a copy to: | ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP | |||
| One ▇▇▇▇▇▇▇▇▇▇ Street | ||||
| ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ | ||||
| ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
| Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||||
| Telefax number: (▇▇▇) ▇▇▇-▇▇▇▇ |
13. 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.
14. Applicable Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
15. Parties. This Agreement has been and is made solely for the benefit of the
Underwriters and the REIT and the Operating Partnership and of the controlling persons, directors,
trustees, and officers referred to in Section 8, and their respective successors and assigns, and
no other person shall acquire or have any right under or by virtue of this Agreement. The term
“successors and assigns” as used in this Agreement shall not include a purchaser, as such
purchaser, of Shares from the Underwriters.
16. Amendments. This Agreement may be amended or supplemented if, but only if, such
amendment or supplement is in writing and is signed by the REIT, the Operating Partnership and the
Representatives.
17. Severability. In case any provision in this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
18. Waiver of Trial by Jury. The REIT and each of the Underwriters each hereby
irrevocably waive any right they may have to a trial by jury in respect of any claim based upon or
arising out of this Agreement or the transactions contemplated hereby.
19. 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.
[Signature Page Follows]
22
Please confirm that the foregoing correctly sets forth the agreement between the REIT,
the Operating Partnership and the Underwriters.
| Very truly yours, | ||||||
| AMB PROPERTY CORPORATION | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: Vice President, Capital Markets |
||||||
| AMB PROPERTY, L.P. | ||||||
| By: | AMB PROPERTY CORPORATION, | |||||
| its sole general partner | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: Vice President, Capital Markets |
||||||
[Signature Page to AMB Underwriting Agreement]
Accepted as of the date hereof:
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
Acting on behalf of themselves and the
several Underwriters named in Schedule I hereto.
several Underwriters named in Schedule I hereto.
BY: ▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Director - Investment Banking |
[Signature Page to AMB Underwriting Agreement]
Schedule I
Underwriters
| Number of Firm Shares | ||||
| Underwriter | to be Purchased | |||
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. |
960,000 | |||
▇.▇. ▇▇▇▇▇▇ Securities Inc. |
960,000 | |||
BB&T Capital Markets, a Division of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, Inc. |
20,000 | |||
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated |
20,000 | |||
KeyBanc Capital Markets, a Division of McDonald Investments Inc. |
20,000 | |||
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated |
20,000 | |||
Total Firm Shares |
2,000,000 | |||