7.00% Series O Cumulative
Redeemable Preferred Stock,
par value $.01 per share
WACHOVIA
CAPITAL MARKETS, LLC
J.P. MORGAN SECURITIES INC.
As
representatives of the several underwriters
named
in Schedule I hereto
c/o Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288
AMB Property
Corporation, a Maryland corporation (the “ REIT
”), proposes to issue and sell to the several Underwriters
named in Schedule I hereto (the “
Underwriters ”) 3,000,000 shares of its 7.00%
Series O Cumulative Redeemable Preferred Stock, par value $.01
per share (the “ Firm Shares ”). Wachovia
Capital Markets, LLC and J. P. Morgan 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 set forth on
Schedule II hereto (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 December 5, 2005 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 propose 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 (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. The
terms “ supplement ”, “ amendment
” and “ amend ” as
1
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 4:25 p.m. Eastern time on the date of this
Agreement.
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
2
statements
therein, in the light of the circumstances under which they were
made, not misleading, and (v) at the Applicable Time, the
General Disclosure Package did 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
qualified or registered to do business 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
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 qualified or registered to do business 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 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 in the Prospectus and the
General Disclosure Package.
(e) Each
Subsidiary is duly incorporated or organized, as the case may be,
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 Subsidiary is duly qualified or registered to
transact business in each jurisdiction in which
3
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 registered 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 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. The Subsidiaries are the only significant subsidiaries (as
defined in Rule 405 of Regulation C of the Securities
Act) of the REIT and the Operating Partnership.
(f) Each of the
joint venture partnerships or limited liability companies that are
consolidated in consolidated financial statements of the Company or
listed in the REIT’s or the Operating Partnership’s
annual report on Form 10-K for the year ended December 31,
2004 or quarterly report on Form 10-Q for the quarter ended
September 30, 2005 (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. 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 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 such
financial statements or such reports hereto (the “ Joint
Venture Interests ”), and each of the Joint Venture
Interests is validly issued and fully paid and free and clear of
any security interest, mortgage, pledge, lien encumbrance, claim or
equity. The ownership percentages and interests of the Company in
its unconsolidated joint ventures AMB Pier One, LLC, G.Accion S.A.
de C.V., AMB-SGP Mexico, LLC and AMB Japan Fund I, L.P. (the
“ Unconsolidated Joint Ventures ”), as stated in
the Form 10-Q for the quarter ended September 30, 2005 are true and
correct as of September 30, 2005. The Company has no other
interests in joint ventures, partnerships or limited liability
companies in which unrelated third parties have interests, other
than the Joint Ventures, the Unconsolidated Joint Ventures and the
Subsidiaries or as set forth in such financial statements or such
reports.
(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.
(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.
4
(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 in all material respects
to the description thereof contained 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, 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
5
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 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 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 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,
(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 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.
6
(q) Except as
otherwise disclosed in the General Disclosure Package and the
Prospectus:
(i) as of
September 30, 2005, the Company owned and operated (exclusive
of properties that the Company managed for third parties) 967
industrial buildings and two retail and other properties (the
“ Properties ”).
(ii) the Company
(directly or indirectly) has good and marketable fee simple title
to the land underlying the Properties and good and marketable title
to the improvements thereon, other than those improvements located
on land which the Company (directly or indirectly) acts as the
ground lessor (the “ Tenant Owned Improvements
”), and all other assets that are required for the effective
operation of such Properties in the manner in which they currently
are operated, subject, however, to existing mortgages on such
Properties, to utility easements serving such Properties and other
immaterial easements, reciprocal easement agreements and licenses,
to liens of ad valorem taxes and other assessments not delinquent,
to zoning and similar governmental land use matters affecting such
Properties that are consistent with the current uses of such
Properties, to matters of title not adversely affecting
marketability of title to such Properties, other immaterial
statutory liens not due and payable, title matters that may be
material in character, amount or extent but which do not materially
detract from the value, or interfere with the use of, the
Properties or otherwise materially impair the business operations
being conducted or proposed to be conducted thereon, service marks
and trade names used in connection with such Properties, ownership
by others of certain items of equipment and other items of personal
property that are not material to the conduct of business
operations at such Properties and ownership of improvements
pursuant to certain valid, existing and enforceable ground
leases;
(iii) except as
would not have a Material Adverse Effect, with respect to the
Properties held through Joint Ventures (the “ Joint
Venture Properties ”), the Joint Ventures that currently
own such Properties have good and marketable fee simple title to
the land underlying such Properties and good and marketable title
to the improvements thereon, other than the Tenant Owned
Improvements, and all other assets that are required for the
effective operation of such Properties in the manner in which they
currently are operated, subject to the exceptions set forth in
clause (ii) above;
(iv) there are no
liens, charges, encumbrances, claims, or restrictions on or
affecting any of the Properties or the assets of the Company that
are material to the Company taken as a whole;
(v) neither the
Company nor, to the knowledge of the REIT and the Operating
Partnership, any tenant of any of the Properties is in default
under any of the leases pursuant to which the Company, as lessor,
leases its Property (and the Company does not know of any event
which, but for the passage of time or
7
the giving of
notice, or both, would constitute a default under any of such
leases) other than such defaults that would not result in a
Material Adverse Effect;
(vi) any real
property and buildings held under lease by the Company are held by
it under valid, subsisting and enforceable leases with such
exceptions as are not material and do not materially interfere with
the use made and proposed to be made of such property and buildings
by the Company;
(vii) no person
has an option or right of first refusal to purchase all or part of
any Property or any interest therein which is material to the REIT,
the Operating Partnership and their subsidiaries, taken as a
whole;
(viii) each of the
Properties complies with all applicable codes, laws and regulations
(including, without limitation, building and zoning codes, laws and
regulations and laws relating to access to the Properties), except
for such failures to comply that would not individually or in the
aggregate result in a Material Adverse Effect;
(ix) neither of
the REIT or 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
(x) except as
would not result in a Material Adverse Effect,
(1)
the ground leases under which the Company (directly or indirectly)
or a Joint Venture holds or uses real property relating to the
Properties are in full force and effect, and
(2)
the Company and, to the knowledge of the REIT 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.
(r) Except as
disclosed in the General Disclosure Package and the
Prospectus:
(i) each Property,
including, without limitation, the Environment (as defined below)
associated with such Property, is free of any Hazardous Substance
(as defined below) in violation of any Environmental Law (as
defined below) applicable to such Property, except for Hazardous
Substances that would not result in a Material Adverse
Effect;
(ii) the Company
has not caused or suffered to occur any Release (as defined below)
of any Hazardous Substance into the Environment on, in, under
or
8
from any
Property, and no condition exists on, in, under or, to the
knowledge of the REIT and the Operating Partnership, adjacent to
any Property that could result in the incurrence of liabilities or
any violations of any Environmental Law applicable to such
Property, give rise to the imposition of any Lien (as defined
below) under any Environmental Law, or cause or constitute a
health, safety or environmental hazard to any property, person or
entity, except in each case that would not, singly or in the
aggregate, have a Material Adverse Effect;
(iii) neither the
Company nor, to the knowledge of the REIT and the Operating
Partnership, any tenant of any of the Properties has received any
written notice of a claim under or pursuant to any Environmental
Law applicable to a Property or under common law pertaining to
Hazardous Substances on or originating from any Property, except
for any such claims which would not, singly or in the aggregate,
have a Material Adverse Effect;
(iv) neither the
Company nor, to the knowledge of the REIT and the Operating
Partnership, any tenant of any of the Properties has received any
written notice from any Governmental Authority (as defined below)
claiming any violation of any Environmental Law applicable to a
Property that is uncured or unremediated as of the date hereof,
except for any such violations which would not, singly or in the
aggregate, have a Material Adverse Effect;
(v) no Property is
included or, to the knowledge of the REIT 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 ”),
nor has the Company received any written notice from the EPA or any
other Governmental Authority proposing the inclusion of any
Property on such list;
(vi) the Company
and, to the knowledge of the REIT and the Operating Partnership,
each tenant at any of the Properties (i) have received all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses and (ii) are in compliance with all terms and
conditions of any such permit, license or approval, except in each
case where such noncompliance, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly
or in the aggregate, have a Material Adverse Effect; and
(vii) there are no
costs or liabilities associated with Environmental Laws (including,
without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities
to third parties) which would, singly or in the aggregate, have a
Material Adverse Effect.
9
As used herein:
“ Hazardous Substance ” shall include, without
limitation, any hazardous substance, hazardous waste, toxic or
dangerous substance, pollutant, solid waste or similarly designated
materials, including, without limitation, oil, petroleum or any
petroleum-derived substance or waste, asbestos or
asbestos-containing materials, PCBs, pesticides, explosives,
radioactive materials, dioxins, urea formaldehyde insulation or any
constituent of any such substance, pollutant or waste, including
any such substance, pollutant or waste identified or regulated
under any Environmental Law (including, without limitation,
materials listed in the United States Department of Transportation
Optional Hazardous Material Table, 49 C.F.R. Section 172.101,
as heretofore amended, or in the EPA’s List of Hazardous
Substances and Reportable Quantities, 40 C.F.R. Part 302, as
heretofore amended); “ Environment ” shall mean
any surface water, drinking water, ground water, land surface,
subsurface strata, river sediment, buildings, structures, and
ambient, workplace and indoor air; “ Environmental Law
” shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C.
Section 9601 et seq.) (“ CERCLA ”), the
Resource Conservation and Recovery Act of 1976, as amended (42
U.S.C. Section 6901, et seq.), the Clean Air Act, as amended
(42 U.S.C. Section 7401, et seq.), the Clean Water Act, as
amended (33 U.S.C. Section 1251, et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. Section 2601, et
seq.), the Occupational Safety and Health Act of 1970, as amended
(29 U.S.C. Section 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Section 1801, et
seq.), and all other applicable federal, state and local laws,
ordinances, regulations, rules, orders, decisions and permits
relating to the protection of the environment or of human health
from environmental effects; “ Governmental Authority
” shall mean any federal, state or local governmental office,
agency or authority having the duty or authority to promulgate,
implement or enforce any Environmental Law; “ Lien
” shall mean, with respect to any Property, any mortgage,
deed of trust, pledge, security interest, lien, encumbrance,
penalty, fine, charge, assessment, judgment or other liability in,
on or affecting such Property; and “ Release ”
shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping,
emanating or disposing of any Hazardous Substance into the
Environment, including, without limitation, the abandonment or
discard of barrels, containers, tanks (including, without
limitation, underground storage tanks) or other receptacles
containing or previously containing any Hazardous Substance or any
release, emission, discharge or similar term, as those terms are
defined or used in any Environmental Law.
(s) 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, is an independent registered public accounting firm 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 it is engaged; the Company has
not been refused any insurance
10
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.
(u) The Company
possesses all certificates, authorizations and permits issued by
the appropriate federal, state or foreign regulatory authorities
necessary to conduct their respective businesses, except where the
failure to possess any such certificates, authorizations or
permits, singly or in the aggregate, would not have 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 the consolidated
financial position of the REIT, the Operating Partnership and their
consolidated subsidiaries at the respective dates indicated and the
consolidated results of 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 throughout the periods specified. The supporting schedules
included in the Registration Statement present fairly the
information required to be stated or incorporated by reference
therein. The financial information and data included in the
Registration Statement, the Prospectus and the General Disclosure
Package 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 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.
11
(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.
(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 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 t
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