WELLSFORD RESIDENTIAL PROPERTY TRUST
(a Maryland real estate investment trust)
Medium-Term Notes
Due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
October 28, 1996
X.X. XXXXXX SECURITIES INC.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
FIRST CHICAGO CAPITAL MARKETS, INC.
0 Xxxxx Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0315
XXXXXXX, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
World Financial Center, 10th Floor
New York, New York 10281-1380
XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Wellsford Residential Property Trust, a Maryland real estate
investment trust (the "Trust"), confirms its agreement with X.X.
Xxxxxx Securities Inc., First Chicago Capital Markets, Inc.,
Xxxxxxx, Xxxxx & Co., Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx,
Xxxxxx & Xxxxx Incorporated and Xxxxx Xxxxxx Inc. (each, an
"Agent", and collectively, the "Agents") with respect to the
issue and sale by the Trust of a series of its debt securities
entitled "Medium-Term Notes Due Nine Months or More from Date of
Issue" (the "Notes"). The Notes are to be issued, and the terms
and rights thereof established, pursuant to an Indenture, dated
as of October 25, 1996, as amended, supplemented or modified from
time to time (the "Indenture"), between the Trust and United
States Trust Company of New York, as trustee (the "Trustee"). As
of the date hereof, the Trust has authorized the issuance and
sale of up to U.S. $100,000,000 aggregate initial offering price
(or its equivalent, based upon the applicable exchange rate at
the time of issuance, in such foreign or composite currencies as
the Trust shall designate at the time of issuance) of Notes to or
through the Agents pursuant to the terms of this Agreement. It
is understood, however, that the Company may from time to time
authorize the issuance of additional Notes and that such
additional Notes may be sold through or to the Agents pursuant to
the terms of this Agreement, all as though the issuance of such
Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the
Trust to one or more Agents as principal for resale to investors
and other purchasers, or directly to investors (as may from time
to time be agreed to by the Trust and the applicable Agent), in
which case such Agent will act as an agent of the Trust in
soliciting purchases of Notes.
The Trust has filed with the Securities and Exchange
Commission (the "SEC") a registration statement on Form S-3
(No. 333-8077) for the registration of various securities,
including the Notes, under the Securities Act of 1933, as amended
(the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the SEC
under the 1933 Act (the "1933 Act Regulations"). Such registra-
tion statement has been declared effective by the SEC and the
Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended (the "1939 Act"). Such registration
statement (and any further registration statements which may be
filed by the Trust for the purpose of registering additional
Notes and in connection with which this Agreement is included or
incorporated by reference as an exhibit) and the prospectus
constituting a part thereof, on the one hand, and such prospectus
and any prospectus supplement and pricing supplement relating to
the Notes, on the other hand, in each case including all
documents incorporated therein by reference, as from time to time
amended or supplemented by the filing of documents pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"),
the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively,
except that if any revised prospectus shall be provided to the
Agents by the Trust for use in connection with the offering of
the Notes, whether or not such revised prospectus is required to
be filed by the Trust pursuant to Rule 424(b) of the 1933 Act
Regulations, then, unless otherwise specified herein, the term
"Prospectus" shall refer to such revised prospectus from and
after the time it is first provided to the Agents for such use.
All references in this Agreement to financial statements and
schedules and other information which are "contained",
"included", "described", "disclosed" or "stated" in the
Registration Statement or the Prospectus (and all other
references of like import) shall be deemed to mean and include
all such financial statements and schedules and other information
which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be; and
all references in this Agreement to amendments or supplements to
the Registration Statement or the Prospectus shall be deemed to
mean and include, without limitation, the filing of any document
under the 1934 Act which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the
case may be.
It is understood that the Trust may from time to time
authorize the issuance of and may register additional Notes and
that such additional Notes may be sold to or through the Agents
pursuant to the terms of this Agreement, all as though the issu-
ance of such Notes were authorized as of the date hereof.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to (i) the terms and conditions
stated herein and (ii) the reservation by the Trust of the right
to sell Notes to any broker or dealer (as principal) other than
an Agent or directly on its own behalf, upon such terms and
conditions as the Trust may determine from time to time, the
Trust hereby agrees that Notes will be sold to or through the
Agents and will not appoint any other agents to act on its
behalf, or to assist it, in the placement of the Notes, except as
set forth in the following sentence. Notwithstanding anything to
the contrary contained herein, the Trust may solicit or accept
offers to purchase Notes through any broker or dealer (as agent)
other than an Agent, provided that (i) such broker or dealer is
engaged on the same terms and conditions (including the same
commission schedule) as those contained in this Agreement and
(ii) the Trust shall notify the Agents promptly following the
acceptance of such offer.
(b) Sale of Notes. The Trust shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which
shall be authorized by the Trust from time to time or in excess
of the aggregate initial offering price of Notes registered
pursuant to the Registration Statement. The Agents shall have no
responsibility for maintaining records with respect to the
aggregate initial offering price of Notes sold, or of otherwise
monitoring the availability of Notes for sale, under the
Registration Statement.
(c) Purchases as Principal. The Agents shall not have any
obligation to purchase Notes from the Trust as principal, but one
or more Agents may agree from time to time to purchase Notes as
principal for resale to investors and other purchasers determined
by such Agent or Agents. Any such purchase of Notes by an Agent
as principal shall be made in accordance with Section 3(a)
hereof.
(d) Solicitations as Agent. If agreed upon by an Agent and
the Trust, such Agent, acting solely as an agent for the Trust
and not as principal, will solicit purchases of the Notes. Such
Agent will communicate to the Trust, orally, each offer to
purchase Notes solicited by it on an agency basis, other than
those offers rejected by such Agent. Such Agent shall have the
right, in its discretion reasonably exercised, to reject any
proposed purchase of Notes, as a whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained
herein. The Trust may accept or reject any proposed purchase of
Notes, in whole or in part. Such Agent shall make reasonable
efforts to assist the Trust in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by it
and accepted by the Trust. Such Agent shall not have any
liability to the Trust in the event that any such purchase is not
consummated for any reason. If the Trust shall default on its
obligation to deliver Notes to a purchaser whose offer it has
accepted, the Trust shall (i) hold such Agent harmless against
any loss, claim or damage arising from or as a result of such
default by the Trust and (ii) pay to such Agent any commission to
which it would otherwise be entitled absent such default.
(e) Reliance. The Trust and the Agents agree that any
Notes purchased by one or more Agents as principal shall be pur-
chased, and any Notes the placement of which an Agent arranges as
agent shall be placed by such Agent, in reliance on the
representations, warranties, covenants and agreements of the
Trust contained herein and on the terms and conditions and in the
manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Trust represents and warrants to each Agent as of
the date hereof, as of the date of each acceptance by the Trust
of an offer for the purchase of Notes (whether to such Agent as
principal or through such Agent as agent), as of the date of each
delivery of Notes (whether to such Agent as principal or through
such Agent as agent) (the date of each such delivery to the Agent
as principal being hereafter referred to as a "Settlement Date"),
and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented or there is filed
with the SEC any document incorporated by reference into the
Prospectus (each of the times referenced above being referred to
herein as a "Representation Date"), as follows:
(i) Due Establishment and Qualification. The
Trust is a real estate investment trust duly organized and
validly existing under and by virtue of the laws of the
State of Maryland and is in good standing with the State
Department of Assessments and Taxation of Maryland; the
Trust has the power and authority to hold mortgages, to own
and lease real property and to conduct its business as
described in the Prospectus; and the Trust is duly qualified
and is in good standing in each jurisdiction in which the
ownership of its property or the conduct of its business
requires such qualification, except where the failure to so
qualify and be in good standing would not (1) have a materi-
al adverse effect on the condition, financial or otherwise,
earnings, business affairs, prospects, properties,
shareholders' equity or results of operations of the Trust
and the Subsidiaries (as defined below), considered as a
whole, (2) adversely affect the issuance, validity, or
enforceability of the Notes or the enforceability of the
Indenture or (3) adversely affect the consummation of any of
the transactions contemplated by this Agreement (each of
(1), (2) and (3) above, a "Material Adverse Effect").
(ii) Subsidiaries. Each subsidiary of the Trust
which is a significant subsidiary (each, a "Significant
Subsidiary"), as defined in Rule 405 of Regulation C of the
1933 Act Regulations, is identified on Annex 2(a)(ii)
hereto, has been duly organized and is validly existing as a
corporation in good standing under the laws of the juris-
diction of its incorporation, has corporate power and
authority to hold mortgages, to own and lease and operate
property and conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which such qualification is required, except
where the failure to so qualify and be in good standing
would not have a Material Adverse Effect; and all of the
issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and is owned by the Trust,
directly or indirectly, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(iii) Joint Venture. Except for the Trust's
subsidiaries (within the meaning of Regulation S-X under the
1933 Act) (the "Subsidiaries"), the joint venture listed in
Annex 2(a)(iii) hereto (the "Joint Venture"), neither the
Trust nor any Subsidiary owns directly or indirectly any
interest or investment (whether equity or debt) in any
corporation, partnership, joint venture, business, trust or
entity (other than investments in short-term investment
securities and approximately $18.0 million in mortgage loans
outstanding to third parties); with respect to the Joint
Venture, the Trust's Subsidiary, Wellsford Xxxxx Residential
Properties, Inc. ("WHRP"), is a joint venture partner, owns
such interests free and clear of all liens, pledges,
security interests, claims, options or other encumbrances,
is not in breach of any material provision of any agreement,
document or contract governing WHRP's rights in or to the
interests owned or held, all of which agreements, documents
and contracts are in full force and effect and, to the best
knowledge of the Trust, the other parties to such agree-
ments, documents or contracts are not in breach of any of
their respective material obligations under such agreements,
documents or contracts, and to the best knowledge of the
Trust, if the Joint Venture were included within the defi-
nition of Subsidiaries for purposes of this Agreement, there
would be no exceptions or breaches to the representations
and warranties made in this Section 4 for the Subsidiaries.
(iv) Registration Statement and Prospectus. The
Registration Statement has been declared effective by the
SEC under the 1933 Act; no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been instituted or,
to the knowledge of the Trust, threatened by the SEC; and
the Registration Statement and the Prospectus, at the time
the Registration Statement became effective, complied, and
as of each Representation Date will comply, in all material
respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and
regulations of the SEC promulgated thereunder; the
Registration Statement, at the time it became effective, did
not, and at each time thereafter at which any amendment to
the Registration Statement becomes effective or any Annual
Report on Form 10-K is filed by the Trust with the SEC and
as of each Representation Date will not, contain an 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; and the Prospectus, as of
the date hereof does not, and as of each Representation Date
will not, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however,
that the representations and warranties in this subsection
shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon
and in conformity with information furnished to the Trust in
writing by the Agents expressly for use in the Registration
Statement or Prospectus or to that part of the Registration
Statement consisting of the Trustee's Statement of
Eligibility on Form T-1 under the 1939 Act (the "Statement
of Eligibility").
(v) Incorporated Documents. The documents
incorporated or deemed incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3 under the 1933
Act, at the time they were or hereafter are filed with the
SEC, complied or when so filed will comply, as the case may
be, in all material respects with the requirements of the
1934 Act and the rules and regulations promulgated
thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at
the time the Registration Statement became effective, did
not, and at each time thereafter at which any amendment to
the Registration Statement becomes effective or Annual
Report on Form 10-K is filed by the Trust with the SEC and
as of each Representation Date will not, include an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circum-
stances under which they were or are made, not misleading.
(vi) Accountants. The accountants who certified
the financial statements and any supporting schedules
thereto included or incorporated by reference in the
Registration Statement and the Prospectus are independent
public accountants within the meaning of the 1933 Act and
the 1933 Act Regulations.
(vii) Financial Statements. The financial
statements of the Trust and the Subsidiaries included or
incorporated by reference in the Registration Statement and
the Prospectus, together with the related schedules and
notes, as well as any financial statements, schedules and
notes of any other entity or property included or
incorporated by reference therein, present fairly in all
material respects the financial position of the Trust and
the Subsidiaries, or such other entity or property, as the
case may be, at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Trust
and the Subsidiaries, or such other entity or property, as
the case may be, for the periods specified; such financial
statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved; the supporting schedules,
if any, included or incorporated by reference in the
Registration Statement and the Prospectus present fairly in
all material respects in accordance with generally accepted
accounting principles the information required to be stated
therein; the selected financial data and the summary
financial information included or incorporated by reference
in the Registration Statement and the Prospectus present
fairly in all material respects the information shown
therein and have been compiled on a basis consistent with
that of the audited financial statements included or
incorporated by reference in the Registration Statement and
the Prospectus; and any pro forma financial statements and
the related notes thereto included or incorporated by
reference in the Registration Statement and the Prospectus
present fairly in all material respects the information
shown therein, have been prepared in accordance with the
SEC's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the
bases described therein, and 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.
(viii) Authorization and Validity of this Agreement,
the Indenture and the Notes. This Agreement has been duly
authorized, executed and delivered by the Trust and
constitutes the valid and legally binding agreement of the
Trust enforceable against the Trust in accordance with its
terms, except to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity) and
except as rights to indemnity and contribution hereunder may
be limited by applicable law; the Indenture has been duly
authorized, executed and delivered by the Trust and
constitutes a valid and legally binding agreement of the
Trust enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting enforcement of creditors' rights
generally or by general equity principles (regardless of
whether enforcement is considered in a proceeding in equity
or at law), and except further as enforcement thereof may be
limited by (1) requirements that a claim with respect to any
Notes payable other than in U.S. dollars (or a foreign
currency or composite currency judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law
or (2) governmental authority to limit, delay or prohibit
the making of payments outside the United States; the Notes
have been duly authorized for issuance, offer and sale
pursuant to this Agreement and, when issued, authenticated
and delivered pursuant to the provisions of this Agreement
and the Indenture against payment of the consideration
therefor, the Notes will constitute valid and legally bind-
ing obligations of the Trust enforceable in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting enforcement of
creditors' rights generally or by general equity principles
(regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as
enforcement thereof may be limited by (1) requirements that
a claim with respect to any Notes payable other than in U.S.
dollars (or a foreign currency or composite currency
judgment in respect of such claim) be converted into U.S.
dollars at a rate or exchange prevailing on a date
determined pursuant to applicable law or (2) governmental
authority to limit, delay or prohibit the making of payments
outside the United States; the Notes and the Indenture will
be substantially in the form heretofore delivered to the
Agents and conform in all material respects to all
statements relating thereto contained in the Prospectus; the
Indenture has been qualified under the 1939 Act; and each
holder of Notes will be entitled to the benefits of the
Indenture.
(ix) Material Changes, Material Transactions or
Distributions. Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as may otherwise be stated therein, (1)
there has been no material adverse change in the condition,
financial or otherwise, earnings, business affairs,
prospects, properties, shareholders' equity or results of
operations of the Trust and the Subsidiaries, considered as
a whole, whether or not arising in the ordinary course of
business, (2) there have been no transactions or
acquisitions entered into by the Trust or any of the Subsid-
iaries (whether or not arising in the ordinary course of
business) which are material with respect to the Trust and
the Subsidiaries considered as one enterprise, and (3)
except for regular quarterly distributions on the Trust's
common shares of beneficial interest, par value $.01 per
share (the "Common Shares"), Common Shares issued pursuant
to the Trust's Dividend Reinvestment and Share Purchase
Plan, or distributions declared, paid or made in accordance
with the terms of any series of the Trust's preferred shares
of beneficial interest, par value $.01 per share
(collectively, the "Preferred Shares"), there has been no
dividend or distribution of any kind declared, paid or made
by the Trust on any class of its Common Shares or Preferred
Shares.
(x) No Defaults. Neither the Trust nor any of
the Subsidiaries is, or with the giving of notice or lapse
of time or both would be, in violation of or in default
under, (i) its Amended and Restated Declaration of Trust, as
amended (the "Declaration of Trust") or Amended and Restated
By-Laws (the "By-Laws"), in the case of the Trust, or its
charter or by-laws, in the case of the Subsidiaries, or (ii)
any indenture, mortgage, deed of trust, loan agreement,
partnership agreement, other governing instruments, or other
agreement or instrument to which the Trust or any of the
Subsidiaries is a party or by which it or any of them or any
of their respective properties is bound, except, with re-
spect to this clause (ii), for violations or defaults which
individually or in the aggregate would not have a Material
Adverse Effect; the issue and sale of the Notes and the per-
formance by the Trust of all of its obligations under the
Notes, the Indenture and this Agreement and the consummation
of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Trust or any of the Subsidiaries
is a party or by which the Trust or any of the Subsidiaries
is bound or to which any of the property or assets of the
Trust or any of the Subsidiaries is subject, except for such
conflicts, breaches or defaults which individually or in the
aggregate would not have a Material Adverse Effect, nor will
any such action result in any violation of (A) the
provisions of the Declaration of Trust or the By-Laws of the
Trust or (B) any applicable law or statute or any order,
rule or regulation of any court or governmental agency or
body having jurisdiction over the Trust, the Subsidiaries or
any of their respective properties, except, with respect to
this clause (B), for violations which individually or in the
aggregate would not have a Material Adverse Effect.
(xi) Regulatory Approvals. No authorization,
approval or consent of any court or governmental agency or
body is required for the consummation by the Trust of the
transactions contemplated by this Agreement or in connection
with the sale of Notes hereunder, except such as have been
obtained or rendered, as the case may be, such the failure
of which to obtain would not have a Material Adverse Effect
or such as may be required under state securities laws.
(xii) Legal Proceedings. Other than as set forth
or contemplated in the Prospectus, there are no legal or
governmental proceedings pending or, to the knowledge of the
Trust, threatened to which the Trust or any of the
Subsidiaries is or may be a party or to which any property
of the Trust or any of the Subsidiaries is or may be the
subject which, if determined adversely to the Trust or such
Subsidiary, could individually or in the aggregate reason-
ably be expected to have a Material Adverse Effect, and, to
the best of the Trust's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others.
(xiii) Contracts. There are no contracts or
documents of the Trust or any of the Subsidiaries which are
required to be filed as exhibits to the Registration
Statement or required to be described in the Registration
Statement or the Prospectus by the 1933 Act or by the 1933
Act Regulations which have not been so filed or described;
and the descriptions of the terms of all such contracts and
documents contained or incorporated by reference in the
Registration Statement or Prospectus are complete and
correct in all material respects.
(xiv) Capitalization. The Trust's authorized,
issued and outstanding capitalization is as set forth in the
Prospectus; and all of the issued shares of beneficial
interest of the Trust have been duly and validly authorized
and issued, are fully paid and non-assessable, except as
described under the caption "Description of Shares of
Beneficial Interest" contained in the Registration Statement
(Registration No. 33-52406) on Form S-11 (the "Form S-11"),
which Form S-11 is incorporated by reference in the Trust's
Registration Statement on Form 8-A (the "Form 8-A"), which
Form 8-A is incorporated by reference in the Prospectus.
(xv) Possession of Licenses and Permits. Each of
the Trust and the Subsidiaries owns, possesses or has
obtained all material licenses, permits, certificates, con-
sents, orders, approvals and other authorizations from, and
has made all material declarations and filings with, all
federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory
organizations and all courts and other tribunals, domestic
or foreign, necessary to own or lease, as the case may be,
and to operate its properties and to carry on its business
as conducted as of the date hereof, except in each case
where the failure to obtain licenses, permits, certificates,
consents, orders, approvals and other authorizations, or to
make all declarations and filings, would not have a Material
Adverse Effect, and none of the Trust or any of the Subsid-
iaries has received any notice of any proceeding relating to
revocation or modification of any such license, permit,
certificate, consent, order, approval or other authoriza-
tion, except as described in the Registration Statement and
the Prospectus and except, in each case, where such
revocation or modification would not have a Material Adverse
Effect; and the Trust and each of the Subsidiaries are in
compliance with all laws, rules and regulations relating to
the conduct of their respective businesses as conducted as
of the date hereof, except where noncompliance with such
laws, rules or regulations would not have a Material Adverse
Effect.
(xvi) Title to Property. Each of the Trust and the
Subsidiaries have good title in fee simple to all real
property and interests in real property owned by it in each
case free and clear of all liens, encumbrances and defects
except such as are described in the Prospectus or such as do
not materially adversely affect or detract from the value of
such property or interests and do not materially interfere
with the use made and proposed to be made of such property
or interests by the Trust or such Subsidiary, as the case
may be.
(xvii) Insurance. The Trust and the Subsidiaries
are insured by insurers of recognized financial responsi-
bility against such losses and risks and in such amounts as
are customary in the business in which they are engaged and
is adequate for the value of their properties; all policies
of insurance insuring the Trust or the Subsidiaries or their
respective business, assets, employees, officers and
trustees or directors, as the case may be, are in full force
and effect; the Trust and the Subsidiaries are in compliance
with the terms of such policies and instruments in all
material respects and there are no claims by the Trust or by
the Subsidiaries under any such policy or instrument as to
which any insurance company is denying liability or de-
fending under a reservation of rights clause, other than
claims which individually or in the aggregate would not have
a Material Adverse Effect.
(xviii) Internal Revenue Code; Investment Company
Act. With respect to its taxable years ended December 31,
1995, 1994 and 1993 and for all other tax periods regarding
which the Internal Revenue Service is or will be entitled to
assert any claim against the Trust, the Trust has met the
requirements for qualification as a real estate investment
trust under Sections 856 through 860 of the Internal Revenue
Code of 1986, as amended (the "Internal Revenue Code"), and
the Trust's present and contemplated organization,
ownership, operations, assets and income continue to meet
such requirements; and the Trust is not required to be
registered or regulated under the Investment Company Act of
1940, as amended (the "1940 Act").
(xix) Investments. The investments of the Trust
described in the Prospectus are permitted investments under
the Declaration of Trust of the Trust.
(xx) Environmental Laws. None of the Trust or any
of the Subsidiaries or, to the actual knowledge of the
Trust, any other person, has caused or permitted (a) the
unlawful presence of any hazardous substances, hazardous
materials, toxic substances or waste materials (collec-
tively, "Hazardous Materials") on any of the properties
owned by the Trust or any of the Subsidiaries (the
"Properties") or (b) any unlawful spills, releases, dis-
charges or disposal of Hazardous Materials to have occurred
or be presently occurring on or from such Properties as a
result of any construction on or operation and use of such
Properties, which presence or occurrence would, individually
or in the aggregate, have a Material Adverse Effect; and in
connection with the construction on or operation and use of
the Properties, the Trust and the Subsidiaries have not
failed to comply, in any material respect, with all appli-
cable local, state and federal environmental laws, regu-
lations, ordinances and administrative and judicial orders
relating to the generation, recycling, reuse, sale, storage,
handling, transport and disposal of any Hazardous Materials.
(xxi) Mortgages and Deeds of Trust. The mortgages
and deeds of trust encumbering the Properties described in
the Prospectus are not (i) cross-defaulted to any indebt-
edness other than indebtedness of the Trust or any of the
Subsidiaries or (ii) cross-collateralized to any property
not owned by the Trust or any of the Subsidiaries.
(xxii) Changes in Capitalization. Subsequent to the
respective dates as of which information is given in the
Prospectus, there has not been any material change in the
shares of beneficial interest, short-term debt or long-term
debt of the Trust, except as described in or contemplated by
the Prospectus.
(xxiii) Accounting Controls. The Trust maintains a
system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authoriza-
tion; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability
for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to
any differences.
(xxiv) Commodity Exchange Act. The Notes, when
issued, authenticated and delivered pursuant to the
provisions of this Agreement and the Indenture, will be
excluded or exempted under the provisions of the Commodity
Exchange Act, 7 U.S.C. Section 1 et. seq.
(b) Additional Certifications. Any certificate signed by
any trustee or executive officer of the Trust and delivered to
one or more Agents or to counsel for the Agents in connection
with an offering of Notes to one or more Agents as principal or
through an Agent as agent shall be deemed a representation and
warranty by the Trust to such Agent or Agents as to the matters
covered thereby on the date of such certificate.
SECTION 3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Unless otherwise agreed by an
Agent and the Trust, Notes shall be purchased by one or more
Agents as principal in accordance with terms agreed upon by such
Agent or Agents and the Trust (which terms shall be agreed upon
orally (with written confirmation prepared promptly by such Agent
or Agents and delivered promptly to the Trust) and, unless
otherwise agreed, shall, to the extent applicable, include those
terms specified in Exhibit A hereto). An Agent's commitment to
purchase Notes as principal shall be deemed to have been made on
the basis of the representations and warranties of the Trust
herein contained and shall be subject to the terms and conditions
herein set forth. Unless the context otherwise requires,
references herein to "this Agreement" shall include the
applicable agreement of one or more Agents to purchase Notes from
the Trust as principal.
Each purchase of Notes, unless otherwise agreed, shall
be at a discount from the principal amount of each such Note
equivalent to the applicable commission set forth in Schedule A
hereto. The Agents may engage the services of any other broker
or dealer in connection with the resale of the Notes purchased by
them as principal and may allow all or any portion of the
discount received in connection with such purchases from the
Trust to such brokers and dealers. At the time of each purchase
of Notes by one or more Agents as principal, such Agent or Agents
shall specify the requirements for the officers' certificate,
opinions of counsel and comfort letter pursuant to Sections 7(b),
7(c) and 7(d) hereof. In addition, such Agent or Agents shall
promptly notify the Trust when the related Notes are no longer
held as principal pursuant hereto.
(b) Solicitations as Agent. On the basis of the represen-
tations and warranties herein contained, but subject to the terms
and conditions herein set forth, when agreed by the Trust and an
Agent, such Agent, as an agent of the Trust, will use its
reasonable efforts to solicit offers to purchase the Notes upon
the terms and conditions set forth in the Prospectus. The Agents
are not authorized to appoint sub-agents with respect to Notes
sold through them as agent. All Notes sold through an Agent as
agent will be sold at 100% of their principal amount unless
otherwise agreed to by the Trust and such Agent.
The Trust reserves the right, in its sole discretion, to
suspend solicitation of purchases of the Notes through an Agent,
as agent, commencing at any time for any period of time or perma-
nently. As soon as practicable after receipt of instructions
from the Trust, such Agent will suspend solicitation of purchases
from the Trust until such time as the Trust has advised such
Agent that such solicitation may be resumed.
The Trust agrees to pay each Agent a commission, in the form
of a discount, equal to the applicable percentage of the
principal amount of each Note sold by the Trust as a result of a
solicitation made by such Agent as set forth in Schedule A here-
to.
(c) Administrative Procedures. The purchase price,
interest rate or formula, maturity date and other terms of the
Notes (as applicable) specified in Exhibit A hereto shall be
agreed upon by the Trust and the applicable Agent or Agents and
specified in a pricing supplement to the Prospectus (each, a
"Pricing Supplement") to be prepared in connection with each sale
of Notes. Except as may be otherwise specified in the applicable
Pricing Supplement, the Notes will be issued in denominations of
U.S. $1,000 or any larger amount that is an integral multiple of
U.S. $1,000. Administrative procedures (the "Procedures") with
respect to the sale of Notes shall be agreed upon from time to
time by the Trust, the Agents and the Trustee. The current
Procedures are attached hereto as Exhibit B. The Agents and the
Trust agree to perform, and the Trust agrees to cause the Trustee
to agree to perform, their respective duties and obligations
specifically provided to be performed by them in the Procedures.
(d) Obligations Several. The Trust acknowledges that the
obligations of the Agents under this Agreement are several and
not joint.
SECTION 4. Covenants of the Trust.
The Trust covenants with the Agents as follows:
(a) Notice of Certain Events. The Trust will notify the
Agents immediately, and confirm such notice in writing, of (i)
the effectiveness of any amendment to the Registration Statement,
(ii) the transmittal to the SEC for filing of any amendment or
supplement to the Prospectus (it being understood that only the
applicable Agent(s) will receive notice and a copy of the related
pricing supplement) or any document to be filed pursuant to the
1934 Act (other than any amendment, supplement or document
relating solely to securities other than the Notes), (iii) the
receipt of any comments from the SEC with respect to the
Registration Statement or the Prospectus, (iv) any request by the
SEC for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional
information relating to the Notes, (v) the issuance by the SEC of
any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose
and (vi) any change or withdrawal in the rating assigned by
Xxxxx'x Investors Service, Inc. or Standard & Poor's Ratings
Group to any debt securities of the Trust or the public
announcement by Xxxxx'x Investors Service, Inc. or Standard &
Poor's Ratings Group that it has under surveillance or review,
with possible negative implications, its rating of any debt
securities of the Trust. The Trust will make every reasonable
effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Notice of Certain Proposed Filings. The Trust will
give the Agents advance notice of its intention to file any
additional registration statement with respect to the registra-
tion of additional Notes, any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (other
than an amendment or supplement providing solely for a change in
the interest rate or formula applicable to the Notes or relating
solely to the issuance and/or offering of securities other than
the Notes), whether by the filing of documents pursuant to the
1934 Act or the 1933 Act or otherwise. In the event of such
additional registration statement, amendment or supplement, the
Trust will furnish to the Agents copies thereof a reasonable time
in advance of the related proposed filing or use thereof, as the
case may be, and will not file any such additional registration
statement, amendment or supplement in a form to which the Agents
or counsel for the Agents shall reasonably object; provided,
however, that, in lieu of the foregoing, in the event that the
conditions of subsection (k) of this Section have been satisfied
and the Trust has notified the Agents in writing that offerings
of Notes are suspended, then the Trust shall be required to
deliver copies of all such additional registration statements,
amendments and supplements at least five business days prior to
the date that offerings of Notes may be resumed.
(c) Copies of the Registration Statement and the Prospec-
tus. The Trust will deliver to the Agents as many signed and
conformed copies of the Registration Statement (as originally
filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) as the Agents
reasonably request. The Trust will furnish to the Agents as many
copies of the Prospectus (as amended or supplemented) as the
Agents reasonably request so long as the Agents are required to
deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Trust will
prepare, with respect to any Notes to be sold to or through one
or more Agents pursuant to this Agreement, a Pricing Supplement
with respect to such Notes in a form previously approved by the
Agents and will file such Pricing Supplement in accordance with
Rule 424(b) under the 1933 Act within the appropriate time period
specified therein.
(e) Revisions of Prospectus -- Material Changes. Except as
otherwise provided in subsection (k) of this Section, if at any
time during the term of this Agreement any event shall occur or
condition exist as a result of which it is necessary, in the
opinion of counsel for the Agents or counsel for the Trust, to
amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the
statements therein not misleading in the light of the
circumstances existing at the time the Prospectus is delivered to
a purchaser, or if it shall be necessary, in the opinion of
either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the require-
ments of the 1933 Act or the 1933 Act Regulations, the Trust
shall give immediate notice, confirmed in writing, to the Agents
to cease the solicitation of offers to purchase the Notes in
their capacity as agents and to cease sales of any Notes they may
then own as principal, and the Trust will promptly amend the
Registration Statement and the Prospectus, whether by filing
documents pursuant to the 1934 Act or the 1933 Act or otherwise,
as may be necessary to correct such untrue statement or omission
or to make the Registration Statement and Prospectus comply with
such requirements.
(f) Prospectus Revisions -- Periodic Financial Information.
Except as otherwise provided in subsection (k) of this Section,
on or prior to the date on which there shall be released to the
general public interim financial statement information related to
the Trust with respect to each of the first three quarters of any
fiscal year or preliminary financial statement information with
respect to any fiscal year, the Trust shall furnish such informa-
tion in writing to the Agents and shall cause the Prospectus to
be amended or supplemented to include or incorporate by reference
financial information with respect thereto and corresponding
information for the comparable period of the preceding fiscal
year, as well as such other information and explanations as shall
be required by the 1933 Act or the 1933 Act Regulations.
(g) Prospectus Revisions -- Audited Financial Information.
Except as otherwise provided in subsection (k) of this Section,
on or prior to the date on which there shall be released to the
general public financial information included in or derived from
the audited financial statements of the Trust for the preceding
fiscal year, the Trust shall furnish such information in writing
to the Agents and shall cause the Registration Statement and the
Prospectus to be amended, whether by the filing of documents
pursuant to the 1934 Act or the 1933 Act or otherwise, to include
or incorporate by reference such audited financial statements and
the report or reports, and consent or consents to such inclusion
or incorporation by reference, of the independent accountants
with respect thereto, as well as such other information and
explanations as shall be required by the 1933 Act or the 1933 Act
Regulations.
(h) Earnings Statements. The Trust will make generally
available to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby,
an earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering each twelve month
period beginning, in each case, not later than the first day of
the Trust's fiscal quarter next following the "effective date"
(as defined in such Rule 158) of the Registration Statement with
respect to each sale of Notes.
(i) Blue Sky Qualifications. The Trust will endeavor, in
cooperation with the Agents, to qualify the Notes for offering
and sale under the applicable securities laws of such states and
other jurisdictions of the United States as the Agents may desig-
nate, and will maintain such qualifications in effect for as long
as may be required for the distribution of the Notes; provided,
however, that the Trust shall not be obligated to file any
general consent to service of process or to qualify as a foreign
entity in any jurisdiction in which it is not so qualified. The
Trust will file such statements and reports as may be required by
the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Trust will promptly advise the
Agents of the receipt by the Trust of any notification with
respect to the suspension of the qualification of the Notes for
sale in any such state or jurisdiction or the initiating or
threatening of any proceeding for such purpose.
(j) 1934 Act Filings. The Trust, during the period when
the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act in connection with sales of the Notes, will file all
documents required to be filed with the SEC pursuant to Sections
13, 14 or 15(d) of the 1934 Act within the time periods
prescribed by the 1934 Act and the 1934 Act Regulations.
(k) Suspension of Certain Obligations. The Trust shall not
be required to comply with the provisions of subsections (b),
(e), (f) or (g) of this Section during any period from the time
(i) the Agents shall have suspended solicitation of purchases of
the Notes in their capacity as agents pursuant to a request from
the Trust and (ii) no Agent shall then hold any Notes purchased
as principal pursuant hereto, until the time the Trust shall
determine that solicitation of purchases of the Notes should be
resumed or an Agent shall subsequently purchase Notes from the
Trust as principal.
(l) Code Requirements. The Trust will use its best
efforts to continue to meet the requirements to qualify as a
"real estate investment trust" under the Code for the taxable
year in which sales of the Notes are to occur.
(m) Limit on Amount of Offered Securities. Immediately
after any sale of Notes by the Trust hereunder, the aggregate
amount of Notes which shall have been issued and sold by the
Trust hereunder and of any debt securities of the Trust (other
than the Notes) that shall have been issued and sold pursuant to
the Registration Statement will not exceed the amount of debt
securities registered under the Registration Statement.
(n) Offerings of Other Debt. From the date of any
agreement by an Agent to purchase Notes as principal and
continuing to and including the business day following the
related Settlement Date, the Trust will not offer, sell, contract
to sell or otherwise dispose of any debt securities, or options
or warrants for any such debt securities, of or guaranteed by the
Trust which are substantially similar to the Notes, without the
prior written consent of such Agent.
SECTION 5. Conditions of Obligations.
The obligations of the Agents to purchase Notes from the
Trust as principal and to solicit offers to purchase Notes as
agent of the Trust, and the obligations of any purchasers of
Notes sold through an Agent as agent, will be subject to the
accuracy of the representations and warranties on the part of the
Trust herein and to the accuracy of the statements of the Trust's
trustees or executive officers made in any certificate furnished
pursuant to the provisions hereof, to the performance and
observance by the Trust of all its covenants and agreements
herein contained and to the following additional conditions prec-
edent:
(a) Legal Opinions. On the date hereof, the Agents shall
have received the following legal opinions, dated as of the date
hereof and in form and substance satisfactory to the Agents:
(1) Opinion of Trust Counsel. The favorable opinion
of Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP, counsel
to the Trust (or, with respect to matters involving the laws
of the State of Maryland, Xxxxxxx Xxxxx Xxxxxxx &
Xxxxxxxxx), to the effect that:
(i) The Trust is a real estate investment trust
duly organized and existing under and by virtue of the
laws of the State of Maryland and is in good standing
with the State Department of Assessments and Taxation
of Maryland.
(ii) The Trust has power and authority to own, lease
and operate its current properties and to conduct its
business as described in the Prospectus and possesses
all licenses, permits, authorizations, consents and
orders required for the conduct of its business as
described in the Prospectus, the absence of which would
materially adversely affect the business of the Trust
and its subsidiaries considered as one enterprise.
(iii) This Agreement has been duly authorized,
executed and delivered by the Trust and is a valid and
legally binding agreement of the Trust, enforceable
against the Trust in accordance with its terms, except
to the extent that enforcement thereof may be limited
by (i) bankruptcy, insolvency, reorganization, morato-
rium or similar laws now or hereafter in effect
relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or
in equity) and except as rights to indemnity and
contribution hereunder may be limited by applicable
law.
(iv) The Indenture has been duly authorized,
executed and delivered by the Trust and (assuming the
Indenture has been duly authorized, executed and
delivered by the Trustee) constitutes a legal, valid
and binding agreement of the Trust, enforceable in
accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or
by general equity principles (regardless of whether
enforcement is considered in a proceeding in equity or
at law), and except further as enforcement thereof may
be limited by (1) requirements that a claim with
respect to any Notes payable other than in U.S. dollars
(or a foreign currency or composite currency judgment
in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (2)
governmental authority to limit, delay or prohibit the
making of payments outside the United States.
(v) The Notes, in the form(s) certified by the
Trust as of the date hereof, have been duly authorized
for issuance, offer and sale pursuant to this Agreement
by all necessary trust action and, when issued,
authenticated and delivered pursuant to the provisions
of this Agreement and the Indenture against payment of
the consideration therefor, will constitute valid and
legally binding obligations of the Trust, enforceable
in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or
by general equity principles (regardless of whether
enforcement is considered in a proceeding in equity or
at law), and except further as enforcement thereof may
be limited by (1) requirements that a claim with
respect to any Notes payable other than in U.S. dollars
(or a foreign currency or composite currency judgment
in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (2)
governmental authority to limit, delay or prohibit the
making of payments outside the United States; and each
holder of Notes will be entitled to the benefits of the
Indenture.
(vi) The Notes and the Indenture conform in all
material respects to the statements relating thereto in
the Prospectus; and the statements in the Prospectus
under the captions "Description of Notes", "Special
Provisions Relating to Foreign Currency Notes",
"Description of Debt Securities", "ERISA Matters",
"Certain United States Federal Income Tax
Considerations" and "Federal Income Tax
Considerations," the statements in the Prospectus
incorporated by reference from Item 3 of Part I of the
Trust's Annual Report on Form 10-K most recently filed
with the SEC and from Item 1 of Part II of the Trust's
Quarterly Reports on Form 10-Q, if any, filed with the
SEC since such Annual Report, and the statements in
Item 15 of the Registration Statement, insofar as such
statements constitute a summary of the legal matters,
proceedings or documents referred to therein, are true
and correct in all material respects.
(vii) The Indenture has been duly qualified under the
1939 Act.
(viii) The Registration Statement has been declared
effective by the SEC under the 1933 Act and, to the
best of such counsel's knowledge and information, no
stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by
the SEC.
(ix) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference
therein, as of their respective effective or issue
dates, comply as to form in all material respects with
the requirements for registration statements on Form S-
3 under the 1933 Act and the 1933 Act Regulations; it
being understood, however, that no opinion need be
rendered with respect to the financial statements,
schedules and other financial and statistical data
included or incorporated by reference in the
Registration Statement or the Prospectus or with
respect to the Statement of Eligibility of the Trustee.
(x) Each document filed pursuant to the 1934 Act
(other than the financial statements, schedules and
other financial and statistical data included therein,
as to which no opinion need be rendered) and
incorporated or deemed to be incorporated by reference
in the Prospectus complied when so filed as to form in
all material respects with the 1934 Act and the 1934
Act Regulations.
(xi) The Notes, in the form(s) certified by the
Trust as of the date hereof, when issued, authenticated
and delivered pursuant to the provisions of this
Agreement and the Indenture, will be excluded or
exempted from the provisions of the Commodity Exchange
Act; provided that such counsel need not express any
opinion as to compliance with Part 34 of the Commodity
Exchange Act ("Regulation of Hybrid Instruments"), or
any exclusion thereunder, of Notes bearing interest
determined by reference to one or more interest rate or
other indices not described in the Prospectus.
(xii) The Trust is not required to be registered or
regulated under the 1940 Act.
(xiii) The issue and sale of the Notes and the perfor-
xxxxx by the Trust of all of its obligations under the
Notes, the Indenture and this Agreement and the con-
summation of the transactions herein and therein
contemplated, assuming the Trust complies with the
covenants and agreements set forth below the applicable
agreements identified on Annex 5(a)(1)(xiii) attached
hereto at the time of, and immediately after giving
effect to, the issuance and sale of the Notes, will not
conflict with or result in a breach of any of the terms
or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument, known to such counsel to
which the Trust or any of the Subsidiaries is a party
or by which the Trust or any of the Subsidiaries is
bound or to which any of the property or assets of the
Trust or any of the Subsidiaries is subject (including,
without limitation, the agreements identified on Annex
5(a)(1)(xiii) attached hereto), except for such
conflicts, breaches or defaults which individually or
in the aggregate would not have a Material Adverse Ef-
fect, nor will any such action result in any violation
of the provisions of the Declaration of Trust or By-
Laws of the Trust or any applicable law or statute or
any order, rule or regulation of any court or govern-
mental agency or body having jurisdiction over the
Trust, any of the Subsidiaries or any of their respec-
tive properties, the violation of which would have a
Material Adverse Effect; and no authorization, approval
or consent of any court or governmental authority or
agency is required that has not been obtained in
connection with the consummation by the Trust of the
transactions contemplated by this Agreement and the
Indenture except such as may be required under state
securities laws or real estate syndication laws or such
the failure of which to obtain would not have a
Material Adverse Effect.
(xiv) Other than as set forth or contemplated in the
Prospectus, to the best of such counsel's knowledge
there are no legal or governmental proceedings pending
(in which service or notice of process has been
received by an employee or other representative of the
Trust or any of the Subsidiaries) or, to the best of
such counsel's knowledge, threatened to which the Trust
or any of the Subsidiaries is or may be a party or to
which any property of the Trust or the Subsidiaries is
or may be the subject which, if determined adversely to
the Trust or such Subsidiaries, could individually or
in the aggregate reasonably be expected to have a
Material Adverse Effect; to the best of such counsel's
knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened
by others.
(xv) To the best of such counsel's knowledge and
information, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other
instruments of a character required to be described or
referred to in the Registration Statement or the
Prospectus or to be filed as exhibits to the
Registration Statement other than those described or
referred to therein or filed as exhibits thereto, the
descriptions thereof or references thereto are correct
in all material respects, and, to the best of such
counsel's knowledge and information, no default exists
in the due performance or observance of any obligation,
agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note,
lease or other instrument so described, referred to or
filed which would have a Material Adverse Effect.
(xvi) The Trust's authorized, issued and outstanding
shares of beneficial interest are as set forth in the
Prospectus under the captions "Description of Preferred
Shares" and "Description of Common Shares" and all of
the issued shares of beneficial interest of the Trust
as described in the Prospectus under the captions
"Description of Preferred Shares" and "Description of
Common Shares" have been duly and validly authorized
and issued, are fully paid and non-assessable, except
as described under the caption "Description of Shares
of Beneficial Interest" contained in the Form S-11,
which is incorporated by reference in the Form 8-A,
which is incorporated by reference in the Prospectus;
(xvii) To the best of such counsel's knowledge, based
solely upon inquiries of certain officers of the Trust
and representations of the Trust, neither the Trust nor
any of the Subsidiaries is, or with the giving of no-
xxxx or lapse of time or both would be, in violation of
or in default under, (i) its Declaration of Trust or
By-Laws, in the case of the Trust, or its charter or
by-laws, in the case of the Subsidiaries, or (ii) any
indenture, mortgage, deed of trust, loan agreement,
partnership agreement, other governing instruments, or
other agreement or instrument known to such counsel to
which the Trust or any of the Subsidiaries is a party
or by which it or any of them or any of their respec-
tive properties is bound, except with respect to this
clause (ii), for violations or defaults which individu-
ally or in the aggregate would not have a Material
Adverse Effect.
(xviii) To the best of such counsel's knowledge based
solely upon representations of the Trust, the Trust (i)
has qualified to be taxed as a real estate investment
trust pursuant to Sections 856 through 860 of the
Internal Revenue Code, for the fiscal years ended De-
cember 31, 1993 through December 31, 1995, (ii) pres-
ently has and contemplates having organization, owner-
ship, operations, assets and income such that the Trust
will be in a position under present law to so qualify
for the fiscal year ending December 31, 1996 and (iii)
intends to endeavor to continue to so qualify in subse-
quent years.
(xix) The investments of the Trust described in the
Prospectus are permitted investments under the Declara-
tion of Trust of the Trust.
(2) Additional Opinions of Trust Counsel. The
favorable opinion of Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx &
Xxxxxx LLP, or other counsel satisfactory to the Agents, to
the effect that:
(i) The Trust is duly qualified as a foreign entity
to transact business and is in good standing in each
jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure to so qualify and be in good standing would not
have a Material Adverse Effect.
(ii) Each Significant Subsidiary has been duly
incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction of
its incorporation and has corporate power and authority
to hold mortgages, own, lease and operate its
properties and conduct its business as described in the
Prospectus; and all of the issued and outstanding
capital stock of each Significant Subsidiary has been
duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Trust, directly or
indirectly, free and clear of any perfected security
interests, or to the best of such counsel's knowledge,
any other liens, encumbrances, security interests and
claims.
(iii) Each Significant Subsidiary is duly qualified
as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such
qualification is required, except where the failure to
so qualify and be in good standing would not have a
Material Adverse Effect.
(3) Opinion of Counsel to the Agents. The favorable
opinion of Xxxxxxx, Xxxx, Slate, Xxxxxxx & Xxxx LLP, counsel
to the Agents, covering the validity of the Indenture, the
Notes, the Registration Statement, the Prospectus and other
related matters as the Agents may reasonably request.
Xxxxxxx, Xxxx, Slate, Xxxxxxx & Xxxx LLP may rely upon, or
assume the accuracy of, the opinion of Xxxxxxx Xxxxx Xxxxxxx
& Xxxxxxxxx as to matters involving the laws of the State of
Maryland.
(4) Disclosure Documents. In giving their opinions
required by subsection (a)(1) and (a)(3), respectively, of
this Section 5, Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx
LLP and Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP shall each
additionally state that nothing has come to their attention
that would lead them to believe that the Registration
Statement, at the time it became effective (or, if an
amendment to the Registration Statement or an Annual Report
on Form 10-K has been filed by the Trust with the SEC
subsequent to the effectiveness of the Registration
Statement, then at the time such amendment became effective
or at the time of the most recent such filing, as the case
may be) or at the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to
state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading or that the Prospectus, at the date hereof (or,
if such opinion is being delivered in connection with the
purchase of Notes from the Trust by one or more Agents as
principal pursuant to Section 7(c) hereof, at the date of
any agreement by such Agent or Agents to purchase Notes as
principal and at the Settlement Date with respect thereto,
as the case may be) (included or) includes an untrue
statement of a material fact or (omitted or) omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading (it being understood that counsel
need not comment on the financial statements, schedules and
other financial and statistical data included or
incorporated by reference in the Registration Statement or
the Prospectus).
In giving their opinions, the foregoing counsel may
rely upon, or assume the accuracy of, (1) as to all matters
of fact, the certificates and written statements of officers
and employees of and accountants for the Trust and (2) as to
the qualification and good standing of the Trust or any of
its subsidiaries to do business in any state or
jurisdiction, the certificates of appropriate government
officials or opinions of counsel in such jurisdictions.
(b) Officer's Certificate. On the date hereof, the Agents
shall have received a certificate of the Chairman of the Board,
Chief Executive Officer, President or any Vice President and the
principal financial officer or principal accounting officer of
the Trust, dated as of the date hereof, to the effect that (i)
since the respective dates as of which information is given in
the Prospectus or, if such certificate is required pursuant to
Section 7(b) hereof, since the date of the agreement, if any, by
one or more Agents to purchase Notes from the Trust as principal,
(A) there has not been any material adverse change in the
condition, financial or otherwise, earnings, business affairs,
prospects, properties, shareholders' equity or results of
operations of the Trust and the Subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business, and
(B) there has been no downgrading or withdrawal, and the Trust
has not received any notice of (1) any intended or potential
downgrading or (2) any review or surveillance with possible
negative implications, in the rating accorded any securities of
or guaranteed by the Trust by any "nationally recognized
statistical rating organization," as that term is defined by the
SEC for purposes of Rule 436(g)(2) under the 1993 Act, (ii) the
representations and warranties of the Trust contained in Section
2 hereof are true and correct with the same force and effect as
though expressly made at and as of the date of such certificate
and (iii) the Trust has performed or complied with all agreements
and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the date of such certificate.
As used in this Section 5(b), the term "Prospectus" means the
Prospectus in the form first provided to the applicable Agent or
Agents for use in confirming sales of the Notes.
(c) Comfort Letter of Ernst & Young LLP. On the date
hereof, the Agents shall have received a letter from Xxxxx &
Young LLP, dated as of the date hereof, in form and substance
satisfactory to the Agents, containing statements and information
ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information relating to the Trust contained in or
incorporated by reference in the Registration Statement and the
Prospectus, including, without limitation, the following:
(i) They are independent public accountants with respect
to the Trust and its subsidiaries within the meaning of the
1933 Act, the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations.
(ii) It is their opinion that the consolidated financial
statements and supporting schedules of the Trust and its
subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus covered by their
opinions therein comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act,
the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations.
(iii) They have performed specified procedures, not
constituting an audit, including a reading of the latest
available interim financial statements of the Trust and its
indicated subsidiaries, a reading of the minute books of the
Trust and such subsidiaries since the end of the most recent
fiscal year with respect to which an audit report has been
issued, inquiries of and discussions with certain officials
of the Trust and such subsidiaries responsible for financial
and accounting matters with respect to the unaudited
consolidated financial statements included or incorporated
by reference in the Registration Statement and Prospectus
and the latest available interim unaudited financial
statements of the Trust and its subsidiaries, and such other
inquiries and procedures as may be specified in such letter,
and on the basis of such inquiries and procedures, nothing
came to their attention that caused them to believe that:
(A) any material modifications should be made to the
unaudited consolidated financial statements of the Trust and
its subsidiaries included or incorporated by reference in
the Registration Statement and Prospectus for them to be in
conformity with generally accepted accounting principles in
the United States, (B) the unaudited consolidated financial
statements of the Trust and its subsidiaries included or
incorporated by reference in the Registration Statement and
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act
and the 1934 Act Regulations or (C) at a specified date not
more than three days prior to the date of such letter, there
was any change in the consolidated capital stock, any
increase in consolidated long-term debt or any decrease in
the consolidated net current assets or consolidated net
assets of the Trust and its subsidiaries, in each case as
compared with the amounts shown on the most recent con-
solidated balance sheet of the Trust and its subsidiaries
included or incorporated by reference in the Registration
Statement and Prospectus or, during the period from the date
of such balance sheet to a specified date not more than
three days prior to the date of such letter, there were any
decreases, as compared with the corresponding period in the
preceding year, in consolidated revenues or in the total or
per-share amounts of income before extraordinary items or of
net income of the Trust and its subsidiaries, except in all
instances for changes, increases or decreases that the
Registration Statement and Prospectus disclose have occurred
or may occur or except for such exceptions enumerated in
such letter as shall have been agreed to by the Agents and
the Trust.
(iv) In addition to the audit referred to in their
opinions and the limited procedures referred to in clause
(iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which
are included or incorporated by reference in the
Registration Statement and the Prospectus and which are
specified by the Agents, and have found such amounts,
percentages and financial information to be in agreement
with the relevant accounting, financial and other records of
the Trust and its subsidiaries identified in such letter.
(d) Comfort Letter of Applicable Accountants. On the date
hereof, the Agents shall have received, with respect to the
financial statements and any supporting schedules for properties
or entities acquired by the Trust which are included or
incorporated by reference in the Registration Statement and the
Prospectus, a letter from the applicable accountants covering
such financial statements and supporting schedules, dated as of
the date hereof, in form and substance satisfactory to the
Agents, containing statements and information ordinarily included
in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information
relating to the properties or entities so acquired, including,
without limitation, the following statements: (i) they are
independent public accountants within the meaning of the 1933
Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations with respect to the Trust and its subsidiaries and
the applicable properties or entities acquired by the Trust, (ii)
it is their opinion that the financial statements and supporting
schedules of the properties or entities acquired by the Trust
which are included or incorporated by reference in the
Registration Statement and the Prospectus and covered by their
opinions therein, comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act, the 1933
Act Regulations, the 1934 Act and the 1934 Act Regulations and
(iii) with respect to any pro forma financial statements and any
supporting schedules for properties or entities acquired by the
Trust which are included or incorporated by reference in the
Registration Statement and the Prospectus, they have read such
pro forma financial statements, have performed an audit or review
in accordance with SAS 71 of the historical financial statements
of the properties or entities acquired, have made appropriate
inquiries about the basis for the pro forma adjustments and
whether such pro forma financial statements comply as to form in
all material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X and have proved the arithmetic
accuracy of the application of the pro forma adjustments to the
historical amounts in such pro forma adjustments, and on the
basis of such review, inquiries and procedures, nothing came to
their attention that caused them to believe that such pro forma
financial statements do not comply as to form in all material
respects with the applicable requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
such pro forma financial statements.
(e) Other Documents. On the date hereof and on each
Settlement Date, counsel to the Agents shall have been furnished
with such documents and opinions as such counsel may reasonably
require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Trust in connection with the issuance
and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, this Agree-
ment may be terminated by the applicable Agent or Agents by
notice to the Trust at any time and any such termination shall be
without liability of any party to any other party, except that
the covenant regarding provision of an earnings statement set
forth in Section 4(h) hereof, the provisions concerning payment
of expenses under Section 9 hereof, the indemnity and
contribution agreement set forth in Section 8 hereof, the
provisions concerning the representations, warranties and
agreements to survive delivery set forth in Section 10 hereof,
the termination provisions set forth in Section 11 hereof, the
provisions relating to governing law and forum set forth in
Section 13 and the provisions relating to parties set forth in
Section 14 hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through an
Agent as Agent.
Delivery of Notes sold through an Agent as agent shall be
made by the Trust to such Agent for the account of any purchaser
only against payment therefor in immediately available funds. In
the event that a purchaser acting through an Agent shall fail
either to accept delivery of or to make payment for a Note on the
date fixed for settlement, the applicable Agent shall promptly
notify the Trust and deliver such Note to the Trust and, if such
Agent has theretofore paid the Trust for such Note, the Trust
will promptly return such funds (without interest) to such Agent.
SECTION 7. Additional Covenants of the Trust.
The Trust covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each
acceptance by the Trust of an offer for the purchase of Notes
(whether to one or more Agents as principal or through an Agent
as agent), and each delivery of Notes (whether to one or more
Agents as principal or through an Agent as agent), shall be
deemed to be an affirmation that the representations and warran-
ties of the Trust contained in this Agreement and in any
certificate theretofore delivered to the Agents pursuant hereto
are true and correct at the time of such acceptance or sale, as
the case may be, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to
such Agent or Agents or to the purchaser or its agent, as the
case may be, of the Note or Notes relating to such acceptance or
sale, as the case may be, as though made at and as of each such
time (and it is understood that such representations and
warranties shall relate to the Registration Statement and
Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that
(i) the Registration Statement or the Prospectus shall be amended
or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rate or formula
applicable to the Notes or relating solely to the issuance and/or
offering of securities other than the Notes), (ii) there is filed
with the SEC any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K relating
solely to the issuance and/or offering of securities other than
the Notes), (iii) (if required in connection with the purchase of
Notes from the Trust by one or more Agents as principal) the
Trust sells Notes to such Agent or Agents as principal or (iv)
the Trust sells Notes in a form not previously certified to the
Agents by the Trust, the Trust shall furnish or cause to be
furnished to the Agent(s), forthwith a certificate dated the date
of filing with the SEC of such supplement or document, the date
of effectiveness of such amendment, or the date of such sale, as
the case may be, in form and substance reasonably satisfactory to
the Agent(s) to the effect that the statements contained in the
certificate referred to in Section 5(b) hereof which were last
furnished to the Agents are true and correct at the time of such
amendment, supplement, filing or sale, as the case may be, as
though made at and as of such time (except that such statements
shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu
of such certificate, a certificate of the same tenor as the
certificate referred to in Section 5(b) hereof, modified as
necessary to relate to the Registration Statement and the Pro-
spectus as amended and supplemented to the time of delivery of
such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that
(i) the Registration Statement or the Prospectus shall be amended
or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rate or formula
applicable to the Notes, providing solely for the inclusion of
additional financial information, or relating solely to the
issuance and/or offering of securities other than the Notes),
(ii) there is filed with the SEC any document incorporated by
reference into the Prospectus (other than any Current Report on
Form 8-K relating solely to the issuance and/or offering of
securities other than the Notes), (iii) (if required in
connection with the purchase of Notes from the Trust by one or
more Agents as principal) the Trust sells Notes to such Agent or
Agents as principal or (iv) the Trust sells Notes in a form not
previously certified to the Agents by the Trust, the Trust shall
furnish or cause to be furnished forthwith to the Agent(s) and to
counsel to the Agents the written opinions of Xxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxx & Xxxxxx LLP, Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx,
or other counsel satisfactory to the Agent(s), dated the date of
filing with the SEC of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the
case may be, in form and substance reasonably satisfactory to the
Agent(s), of the same tenor as the opinions referred to in
Sections 5(a)(1) and 5(a)(2), as the case may be, hereof, but
modified, as necessary, to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of
delivery of such opinion or, in lieu of such opinion, counsel
last furnishing such opinion to the Agents shall furnish the
Agent(s) with a letter substantially to the effect that the
Agent(s) may rely on such last opinion to the same extent as
though it was dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to
relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such letter
authorizing reliance); provided that with respect to the opinion
set forth in Section 5(a)(1)(xiii), if such opinion is being
rendered pursuant to clause (iii) or (iv) above, such counsel may
not rely on the assumptions set forth therein with respect to the
Notes being sold on the date of such opinion, but with respect to
the matters to which such assumptions apply in
Section 5(a)(1)(xiii), such counsel may qualify such opinion to
its knowledge based upon an officer's certificate delivered to
such counsel; provided, however, that, with respect to (i) and
(ii) above, in the event that the conditions of Section 4(k)(i)
hereof have been satisfied and the Trust has notified the Agents
in writing that offerings of Notes are suspended, then the Trust
shall be required to furnish or cause to be furnished such
opinions or such letter, as the case may be, only immediately
upon notification by the Trust that offerings of Notes may be
resumed.
(d) Subsequent Delivery of Comfort Letters. Each time that
(i) the Registration Statement or the Prospectus shall be amended
or supplemented to include additional financial information
(other than by an amendment or supplement relating solely to the
issuance and/or offering of securities other than the Notes),
(ii) there is filed with the SEC any document incorporated by
reference into the Prospectus which contains additional financial
information, or (iii) (if required in connection with the
purchase of Notes from the Trust by one or more Agents as
principal) the Trust sells Notes to such Agent or Agents as
principal, the Trust shall cause Xxxxx & Young LLP forthwith to
furnish to the Agent(s) a letter, dated the date of such filing
with the SEC of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the
case may be, in form and substance reasonably satisfactory to the
Agent(s), of the same tenor as the portions of the letter
referred to in clauses (i) and (ii) of Section 5(c) hereof but
modified to relate to the Registration Statement and Prospectus
as amended and supplemented to the date of such letter, and of
the same general tenor as the portions of the letter referred to
in clauses (iii) and (iv) of said Section 5(c) with such changes
as may be necessary to reflect changes in the financial state-
ments and other information derived from the accounting records
of the Trust; provided, however, that with respect to (i) and
(ii) above, in the event that the conditions of Section 4(k)(i)
hereof have been satisfied and the Trust has notified the Agents
in writing that offerings of Notes are suspended, then the Trust
shall be required to furnish or cause to be furnished such letter
only prior to the date that offerings of Notes may be resumed.
In addition, each time that the Registration Statement or the
Prospectus shall be amended or supplemented to include financial
statements and any supporting schedules thereto of properties or
entities acquired by the Trust, the Trust shall cause the
applicable accountants covering such financial statements and
supporting schedules to furnish to the Agents a letter, dated the
date of such amendment or supplement with the SEC, in form
satisfactory to the Agents, of the same tenor as the letter
referred to in Section 5(d) hereof; provided, however, that in
the event that the conditions of Section 4(k)(i) hereof have been
satisfied and the Trust has notified the Agents in writing that
offerings of Notes are suspended, then the Trust shall be
required to furnish or cause to be furnished such letter only
immediately upon notification by the Trust that offerings of
Notes may be resumed.
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Trust agrees to
indemnify and hold harmless each Agent and each person, if any,
who controls such Agent within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act, from and against
any and all losses, claims, damages and liabilities (including
without limitation the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue state-
ment of a material fact contained in the Registration Statement
or any amendment thereof or the Prospectus (as amended or sup-
plemented) or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein, in the case of the
Prospectus, in light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Agent
furnished to the Trust in writing by such Agent expressly for use
therein.
(b) Indemnification of the Trust. Each Agent agrees, sever-
ally and not jointly, to indemnify and hold harmless the Trust,
its trustees, its officers who sign the Registration Statement
and each person who controls the Trust within the meaning of Sec-
tion 15 of the 1933 Act and Section 20 of the 1934 Act, to the
same extent as the foregoing indemnity from the Trust to each
Agent, but only with reference to information relating to such
Agent furnished to the Trust in writing by such Agent expressly
for use in the Registration Statement, the Prospectus, or any
amendment or supplement thereto.
(c) General. If any suit, action, proceeding (including
any governmental or regulatory investigation), claim or demand
shall be brought or asserted against any person in respect of
which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person")
shall promptly notify the person against whom such indemnity may
be sought (the "Indemnifying Person") in writing, and the
Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified
Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall
pay the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indem-
nified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary,
(ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (in-
cluding any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. If, pursuant to
the preceding sentence, the Indemnifying Person is required to
pay the fees and expenses of counsel retained by the Indemnified
Person, the Indemnifying Person will not be required to retain
counsel for the Indemnified person pursuant to the first sentence
of this paragraph. It is understood that the Indemnifying Person
shall not, in connection with any proceeding or related
proceeding 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 Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such
separate firm for the Agents and such control persons of the
Agents shall be designated in writing by X.X. Xxxxxx Securities
Inc. or, if X.X. Xxxxxx Securities Inc. is not an Indemnified
Person by the Agents that are Indemnified Persons and any such
separate firm for the Trust, its trustees, its officers who sign
the Registration Statement and such control persons of the Trust
shall be designated in writing by the Trust. The Indemnifying
Person 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 Person agrees to indemnify any Indemnified Person
from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by the second sentence of
this paragraph, the Indemnifying Person 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
30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not
have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. If by reason of
the provisions of this Section 8, an Indemnifying Person shall
have made any payment to an Indemnified Person and it is
ultimately determined that an Indemnified Person was not entitled
to indemnification hereunder, such person shall be responsible
for repaying or reimbursing such amounts to the Indemnifying
Person. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemni-
fied Person is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Person, unless
such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the
subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in
paragraphs (a) or (b) this Section 8 is unavailable to an
Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to herein in connection
with any offering of Notes, then each Indemnifying Person under
such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by
such Indemnified Person 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 Trust on the one
hand and each Agent on the other hand from the offering of the
Notes or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appro-
priate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Trust on the
one hand and each Agent 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 Trust on
the one hand and each Agent on the other in connection with the
offering of such Notes shall be deemed to be in the same respec-
tive proportion as the net proceeds from the offering of such
Notes (before deducting expenses) received by the Trust and the
total discounts and commissions received by each Agent in respect
thereof bear to the aggregate offering price of such Notes. The
relative fault of the Trust on the one hand and of each Agent on
the other 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 Trust on the
one hand or by such Agent on the other and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Trust and each Agent agrees that it would not be just
and equitable if contribution pursuant to this subsection (d)
were determined by pro rata allocation (even if all Agents 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 above in this subsection (d). The
amount paid or payable by an Indemnified Person 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 incurred by such Indemnified Person in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, in no event
shall an Agent be required to contribute any amount in excess of
the amount by which the total price at which the Notes referred
to in Section 8(d) that were sold by or through such Agent
exceeds the amount of any damages that such Agent 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 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
The obligation of each Agent to contribute pursuant to this
subsection (d) is several (in the proportion that the principal
amount of the Notes the sale of which by or through such Agent
gave rise to such losses, claims, damages or liabilities bears to
the aggregate principal amount of the Notes the sale of which by
or through any Agent gave rise to such losses, claims, damages or
liabilities) and is not joint.
(e) Not Exclusive. The indemnity and contribution agree-
ments contained 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.
SECTION 9. Payment of Expenses.
The Trust will pay all expenses incident to the performance
of its obligations under this Agreement, whether or not any sale
of the Notes is consummated, including, without limiting the
generality of the foregoing:
(a) The preparation and filing of the Registration State-
ment and all amendments thereto and the Prospectus and any
amendments or supplements thereto;
(b) The preparation, filing, reproduction and delivery of
this Agreement, any Blue Sky Surveys and any Legal Investment
Surveys;
(c) The preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the
eligibility and issuance of Notes in book-entry form;
(d) The fees and disbursements of the Trust's accountants
and counsel, of the Trustee and its counsel, and of any
calculation agent or exchange rate agent;
(e) The reasonable fees and disbursements of counsel to the
Agents incurred in connection with the establishment of the
program relating to the Notes and incurred from time to time in
connection with the transactions contemplated hereby;
(f) The qualification of the Notes under state securities
laws in accordance with the provisions of Section 4(i) hereof,
including filing fees and the reasonable fees and disbursements
of counsel for the Agents in connection therewith and in connec-
tion with the preparation of any Blue Sky Survey;
(g) The printing and delivery to the Agents in quantities
as hereinabove stated of copies of the Registration Statement and
any amendments thereto, and of the Prospectus and any amendments
or supplements thereto, and the delivery by the Agents of the
Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales of the
Notes;
(h) The preparation, reproduction and delivery to the
Agents of copies of the Indenture and all amendments, supplements
and modifications thereto;
(i) Any fees charged by nationally recognized statistical
rating organizations for the rating of the Notes;
(j) The fees and expenses incurred in connection with any
listing of Notes on a securities exchange;
(k) The fees and expenses incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
and
(l) The cost of providing any CUSIP or other identification
numbers for the Notes.
SECTION 10. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Trust
submitted pursuant hereto shall remain operative and in full
force and effect, regardless of any investigation made by or on
behalf of the Agents or any controlling person of an Agent, or by
or on behalf of the Trust, and shall survive each delivery of and
payment for any of the Notes.
SECTION 11. Termination.
(a) Termination of this Agreement. This Agreement (exclud-
ing any agreement by one or more Agents to purchase Notes from
the Trust as principal) may be terminated for any reason, at any
time by either the Trust or an Agent, as to itself, upon the
giving of 7 days' written notice of such termination to the other
party hereto.
(b) Termination of Agreement to Purchase Notes as
Principal. The applicable Agent or Agents may terminate any
agreement by such Agent or Agents to purchase Notes from the
Trust as principal, immediately upon notice to the Trust, at any
time prior to the Settlement Date relating thereto, if (i) there
has been, since the date of such agreement or since the
respective dates as of which information is given in the
Prospectus, any material adverse change in the condition,
financial or otherwise, earnings, business affairs, prospects,
properties, shareholders' equity or results of operations of the
Trust and the Subsidiaries, considered as a whole, whether or not
arising in the ordinary course of business, or (ii) there shall
have occurred, since the date of such agreement, any outbreak or
escalation of hostilities or any change in financial markets or
other national or international calamity or crisis that, in the
judgment of such Agent or Agents, is material and adverse and
which in the judgment of such Agent or Agents makes it
impracticable to market the Notes on the terms and in the manner
contemplated in the Prospectus as amended or supplemented at the
time of solicitation or at the time such offer to purchase was
made, or (iii) since the date of such agreement, trading
generally shall have been suspended or materially limited on or
by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, or (iv) since
the date of such agreement or since the respective dates as of
which information is given in the Prospectus, trading of any
securities of or guaranteed by the Trust shall have been
suspended on any exchange or in any over-the-counter market, or
(v) since the date of such agreement, a general banking morato-
rium shall have been declared by either Federal, New York or
Maryland authorities or if a banking moratorium shall have been
declared by the relevant authorities in the country or countries
of origin of any foreign currency or currencies in which the
Notes are denominated or payable, or (vi) since the date of such
agreement or since the respective dates as of which information
is given in the Prospectus, there shall have occurred any
downgrading or withdrawal, or any notice shall have been given of
(A) any intended or potential downgrading or (B) any review or
surveillance, with possible negative implications, in the rating
accorded any securities of or guaranteed by the Trust by any
"nationally recognized statistical rating organization", as that
term is defined by the SEC for purposes of Rule 436(g)(2) under
the Securities Act; or (vii) there shall have come to the
attention of such Agent or Agents any facts that would cause them
to believe that the Prospectus, at the time it was required to be
delivered to a purchaser of Notes, included an untrue statement
of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the circum-
stances existing at the time of such delivery, not misleading.
As used in this Section 12(b), the term "Prospectus" means the
Prospectus in the form first provided to the applicable Agent or
Agents for use in confirming sales of the related Notes.
(c) General. In the event of any such termination, neither
party will have any liability to the other party hereto, except
that (i) the Agents shall be entitled to any commission earned as
a result of a sale of a Note by the Trust, (ii) if at the time of
termination (a) any Agent shall own any Notes purchased by it as
principal with the intention of reselling them or (b) an offer to
purchase any of the Notes has been accepted by the Trust but the
time of delivery to the purchaser or his agent of the Note or
Notes relating thereto has not occurred, the covenants set forth
in Sections 4 and 7 hereof shall remain in effect until such
Notes are so resold or delivered, as the case may be, and (iii)
the covenant set forth in Section 4(h) hereof, the provisions of
Section 9 hereof, the indemnity and contribution agreements set
forth in Section 8 hereof, and the provisions of Sections 10, 13
and 14 hereof shall remain in effect.
SECTION 12. Notices.
Unless otherwise provided herein, all notices required under
the terms and provisions hereof shall be in writing, either
delivered by hand, by mail or by telex, telecopier or telegram,
and any such notice shall be effective when received at the
address specified below.
If to the Trust:
Wellsford Residential Property Trust
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to the Agents:
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium-Term Note Desk
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
First Chicago Capital Markets, Inc.
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0595
Attention: Structuring Group
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Credit Control-Medium Term Notes
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Xxxxxxx Xxxxx & Co.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MTN Product Management/Origination
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Xxxxx Xxxxxx Inc.
Brooklyn Army Terminal
000 00xx Xxxxxx - 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Prospectus Fulfillment - Xxxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
or at such other address as such party may designate from time to
time by notice duly given in accordance with the terms of this
Section 13.
SECTION 13. Governing Law; Forum.
This Agreement and all the rights and obligations of the
parties shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and
to be performed in such State. Any suit, action or proceeding
brought by either party in connection with or arising under this
Agreement shall be brought solely in the state or federal court
of appropriate jurisdiction located in the Borough of Manhattan,
The City of New York.
SECTION 14. Parties.
This Agreement shall inure to the benefit of and be binding
upon the Agents and the Trust and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the
controlling persons and officers and trustees referred to in
Section 8 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the parties hereto and respective
successors and said controlling persons and officers and trustees
and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Notes
shall be deemed to be a successor by reason merely of such
purchase.
SECTION 15. No Liability of Shareholders, Trustees or
Officers.
This Agreement and all documents, agreements, understandings
and arrangements relating to any transaction contemplated hereby
or thereby have been executed or entered into by an officer of
the Trust in his/her capacity as an officer of the Trust which
has been formed as a Maryland real estate investment trust
pursuant to the Declaration of Trust, and not individually, and
neither the trustees, officers or shareholders of the Trust shall
be bound or have any personal liability hereunder or thereunder.
Each party hereto shall look solely to the assets of the Trust
for satisfaction of any liability of the Trust in respect of this
Agreement and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or
thereby and will not seek recourse or commence any action against
any of the trustees, officers or shareholders of the Trust or any
of their personal assets for the performance or payment of any
obligation hereunder or thereunder. The foregoing shall also
apply to any future documents, agreements, understandings,
arrangements and transactions between the parties hereto.
SECTION 16. Counterparts.
This Agreement may be executed in one or more counterparts
and, if executed in more than one counterpart, the executed
counterparts hereof shall constitute a single instrument.
If the foregoing is in accordance with the Agents' under-
standing of our agreement, please sign and return to the Trust a
counterpart hereof, whereupon this instrument along with all
counterparts will become a binding agreement between the Agents
and the Trust in accordance with its terms.
SECTION 17. Amendments.
This Agreement may not be amended or supplemented unless
such amendment or supplement is in writing and is signed by the
Trust and each Agent or is solely to enable the Trust to carry
out its rights under and in accordance with Section 1(a) hereof.
Very truly yours,
WELLSFORD RESIDENTIAL PROPERTY TRUST
By:/s/ Xxxxxxx Xxxxxxx
________________________________
Name: Xxxxxxx Xxxxxxx
Title: Chairman of the Board
Confirmed and Accepted, as of the date
first above written:
X.X. XXXXXX SECURITIES INC.
By:/s/ Xxxxxx Xxxxxx
__________________________________
Name: Xxxxxx Xxxxxx
Title: Vice President
FIRST CHICAGO CAPITAL MARKETS, INC.
By:/s/ Xxxxxx X. Xxxxxx
_________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXXX, XXXXX & CO.
/s/ Xxxxxxx, Xxxxx & Co.
____________________________________
(Xxxxxxx, Xxxxx & Co.)
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxx
___________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Authorized Signatory
XXXXX XXXXXX INC.
By: /s/ Xxxxxx X. Xxxxxxxx
_____________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
EXHIBIT A
The following terms, if applicable, shall be agreed to by
one or more Agents and the Trust in connection with each sale of
Notes:
Principal Amount: $_______
(or principal amount of foreign currency or composite
currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Default Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
__ LIBOR Reuters
Page:
__ LIBOR Telerate
Page:
Index Currency:
If CMT Rate,
Designated CMT Telerate Page:
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Default Rate:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If Repayable:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from
___________
Price to Public: ___%, plus accrued interest, if any, from
___________
Closing Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Trust by
one or more Agents as principal, agreement as to whether the
following will be required:
Officers' Certificate pursuant to Section 7(b) of the
Distribution Agreement.
Legal Opinions pursuant to Section 7(c) of the Distribution
Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution
Agreement.
SCHEDULE A
As compensation for the services of the Agents hereunder,
the Trust shall pay the applicable Agent, on a discount basis, a
commission for the sale of each Note equal to the principal
amount of such Note multiplied by the appropriate percentage set
forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months to less than 1 year. . . . . .125%
From 1 year to less than 18 months . . . . .150
From 18 months to less than 2 years. . . . .200
From 2 years to less than 3 years. . . . . .250
From 3 years to less than 4 years. . . . . .350
From 4 years to less than 5 years. . . . . .450
From 5 years to less than 6 years. . . . . .500
From 6 years to less than 7 years. . . . . .550
From 7 years to less than 10 years . . . . .600
From 10 years to less than 15 years. . . . .625
From 15 years to less than 20 years. . . . .700
From 20 years to 30 years. . . . . . . . . .750
Greater than 30 years. . . . . . . . . . . . . . . . . .
Annex 2(a)(ii)
Significant Subsidiaries
Wellsford Xxxxx Residential Properties, Inc.
Xxxxx Property Holdings, Inc.
Annex 2(a)(iii)
Joint Venture
Xxx Street Associates
Annex 5(a)(1)(xiii)
Agreements
1. Second Amended and Restated Revolving Credit Agreement,
dated June 30, 1995, among Wellsford Residential Property
Trust and The First National Bank of Boston, the Other Banks
which are a Party to the Agreements and Other Banks which
may become Parties to the Agreement and The First National
Bank of Boston, as Agent, as amended by First Amendment,
dated as of December 1, 1995.
Section 8.1 (i) and (j). Restrictions on Indebtedness
Section 8.12. Additional Restrictions on Liens on
Real Estate and Indebtedness
Section 9.1. Liabilities to Assets Ratio
Section 9.2. Consolidated Operating Cash Flow
Coverage
2. Letter of Credit Reimbursement Agreement among Palomino Park
Public Improvements Corporation and Wellsford Residential
Property Trust and Dresdner Bank AG, New York Branch, dated
as of December 1, 1995, relating to Palomino Park Public
Improvements Corp. Assessment Lien Revenue Bonds Series
1995 - $14,755,000.
Section 6.3 (h) and (i). Restrictions on Indebtedness
Section 6.14. Additional Restrictions on Wellsford
REIT Liens on Real Estate and
Indebtedness
Section 6.17. Financial Covenants of Wellsford REIT
3. Indenture, dated as of January 30, 1995, between Wellsford
Residential Property Trust and The First National Bank of
Boston.
Section 1004. Limitations on Incurrence of Debt
4. Indenture, dated as of August 21, 1995, between Wellsford
Residential Property Trust and United States Trust Company
of New York.
Section 1004. Limitations on Incurrence of Debt
5. Indenture, dated as of October 25, 1996, between Wellsford
Residential Property Trust and United States Trust Company
of New York.
Section 1004. Limitations on Incurrence of Debt
