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Pacific Gulf Properties Inc.
874,317 Shares
Common Stock
UNDERWRITING AGREEMENT
December 18, 1997
PRUDENTIAL SECURITIES INCORPORATED
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Pacific Gulf Properties Inc., a Maryland corporation (the
"Company"), hereby confirms its agreement with Prudential Securities
Incorporated (the "Underwriter"), as set forth below.
1. Securities. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the Underwriter an
aggregate of 874,317 shares (the "Securities") of the Company's Common Stock,
par value $.01 per share (the "Common Stock"). The Underwriter intends to
deposit the Securities with the trustee of the National Equity Trust Equity
Portfolio Series One (REIT Portfolio), a registered unit investment trust under
the Investment Company Act of 1940, as amended (the "Trust"), to which
Prudential Securities Incorporated acts as sponsor and depositor in exchange for
units in the Trust.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriter that:
(a) The Company meets the requirements for use of
Form S-3 under the Securities Act of 1933, as amended (the "Act"). A
registration statement on such Form (File No. 333- 23611) with respect to the
Securities, including a basic prospectus, has been filed by the Company with the
Securities and Exchange Commission (the "Commission") under the Act, and one or
more amendments to such registration statement may have been so filed. Such
registration statement, as so amended, has been declared by the Commission to be
effective under the Act. Such registration statement, as amended at the date of
this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the
Act and complies in all other material respects with said Rule. The Company will
next file with the Commission either (A) if the Company relies on Rule 434 under
the Act, a Term Sheet (as hereinafter defined) relating to the Securities that
shall
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identify the Preliminary Prospectus (as hereinafter defined) that it supplements
and, if required to be filed pursuant to Rules 434(c)(2) and 424(b), an
Integrated Prospectus (as hereinafter defined), in either case, containing such
information as is required or permitted by Rule 434, 430A and 424(b) under the
Act or (B) if the Company does not rely on Rule 434 under the Act, pursuant to
Rule 424(b) under the Act a final prospectus supplement to the basic prospectus
included in such registration statement, as so amended, describing the
Securities and the offering thereof, in such form as has been provided to, or
discussed with, and approved by the Underwriter as provided in Section 5(a) of
this Agreement. As used in this Agreement, the term "Registration Statement"
means such registration statement, as amended at the time when it was declared
effective, including (i) all financial schedules and exhibits thereto, (ii) all
documents incorporated by reference or deemed to be incorporated by reference
therein and (iii) any information omitted therefrom pursuant to Rule 430A under
the Act and included in the Prospectus (as hereinafter defined) or, if required
to be filed pursuant to Rule 434(c)(2) and 424(b) under the Act, in the
Integrated Prospectus; the term "Basic Prospectus" means the prospectus included
in the Registration Statement as amended by any form of prospectus filed
thereafter pursuant to Rule 424; the term "Preliminary Prospectus" means any
preliminary form of the Prospectus (as hereinafter defined) specifically
relating to the Securities, in the form first filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 under the Act; the term
"Prospectus Supplement" means any prospectus supplement specifically relating to
the Securities, in the form first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act; the term "Prospectus"
means (A) if the Company relies on Rule 434 under the Act, the Term Sheet
relating to the Securities that is first filed pursuant to Rule 424(b)(7) under
the Act, together with the Preliminary Prospectus identified therein that such
Term Sheet supplements; (B) if the Company does not rely on Rule 434 under the
Act, the Preliminary Prospectus; or (C) if the Company does not rely on Rule 434
under the Act and if no Preliminary Prospectus is required to be filed, the
Basic Prospectus, including, in each case, the Prospectus Supplement; "Basic
Prospectus," "Prospectus," "Preliminary Prospectus" and "Prospectus Supplement"
shall include in each case the documents, if any, filed by the Company with the
Commission pursuant to the United States Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference therein; the term
"Integrated Prospectus" means a prospectus first filed with the Commission
pursuant to Rules 434(c)(2) and 424(b) under the Act; and the term "Term Sheet"
means any abbreviated term sheet that satisfies the requirements of Rule 434
under the Act. Any reference in this Agreement to an "amendment" or "supplement"
to any Preliminary Prospectus, the Prospectus, or any Integrated Prospectus or
an "amendment" to any registration statement
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(including the Registration Statement) shall be deemed to include any document
incorporated by reference therein that is filed with the Commission under the
Exchange Act after the date of such Preliminary Prospectus, Prospectus,
Integrated Prospectus or registration statement, as the case may be. For
purposes of the preceding sentence, any reference to the "effective date" of an
amendment to a registration statement shall, if such amendment is effected by
means of the filing with the Commission under the Exchange Act of a document
incorporated by reference in such registration statement, be deemed to refer to
the date on which such document was so filed with the Commission; any reference
herein to the "date" of a Prospectus that includes a Term Sheet shall mean the
date of such Term Sheet.
(b) The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus. When any
Preliminary Prospectus and any amendment or supplement thereto was filed with
the Commission, it (i) contained all statements required to be stated therein in
accordance with, and complied in all material respects with the requirements of,
the Act, the Exchange Act and the respective rules and regulations of the
Commission thereunder, and (ii) did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. When the Registration Statement or any amendment thereto
was declared effective, it (i) contained all statements required to be stated
therein in accordance with, and complied in all material respects with the
requirements of, the Act, the Exchange Act and the respective rules and
regulations of the Commission thereunder and (ii) did not include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein not misleading. When the Prospectus or any Term
Sheet that is a part thereof or any Integrated Prospectus or any amendment or
supplement to the Prospectus is filed with the Commission pursuant to Rule
424(b) (or, if the Prospectus or part thereof or such amendment or supplement is
not required to be so filed, when the Registration Statement or the amendment
thereto containing such amendment or supplement to the Prospectus was or is
declared effective), on the date when the Prospectus is otherwise amended or
supplemented and on the Closing Date (as hereinafter defined), each of the
Prospectus, and, if required to be filed pursuant to Rules 434(c)(2) and 424(b)
under the Act, the Integrated Prospectus as amended or supplemented at any such
time, (i) contained or will contain all statements required to be stated therein
in accordance with, and complied or will comply in all material respects with
the requirements of, the Act, the Exchange Act and the respective rules and
regulations of the Commission thereunder and (ii) did not or will not include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which
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they were made, not misleading. The foregoing provisions of this paragraph (b)
do not apply to statements or omissions made in any Preliminary Prospectus or
any amendment or supplement thereto, the Registration Statement or any amendment
thereto, the Prospectus or, if required to be filed pursuant to Rules 434(c)(2)
and 424(b) under the Act, the Integrated Prospectus or any amendment or
supplement thereto, in reliance upon and in conformity with written information
furnished to the Company by the Underwriter.
(c) If the Company has elected to rely on Rule
462(b), (i) the Company has filed a Rule 462(b) Registration Statement in
compliance with and that is effective upon filing pursuant to Rule 462(b) and
has received confirmation of its receipt and (ii) the Company has given
irrevocable instructions for transmission of the applicable filing fee in
connection with the filing of the Rule 462(b) Registration Statement, in
compliance with Rule 111 promulgated under the Act or the Commission has
received payment of such filing fee.
(d) The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Maryland. PGP Inland Communities, L.P., a Delaware limited partnership (the
"Limited Partnership"), Pacific Inland Communities, LLC, a California limited
liability company (the "LLC"), PGP Xxx Xxxxxx Properties, a California general
partnership (the "General Partnership"), and PGP Newport Corp., a California
corporation ("PGP Newport"), Terrace Gardens- PGP L.P., a Delaware Limited
Partnership ("Terrace Gardens"), Morning View Terrace-PGP L.P., a Delaware
Limited Partnership ("Morning View Terrace") and PGP Northern Industrial, L.P.,
a Delaware Limited Partnership ("Northern Industrial," and together with the
Limited Partnership, the General Partnership, the LLC, PGP Newport, Terrace
Gardens, and Morning View Terrace, the "Subsidiaries") are the only subsidiaries
(direct or indirect) of the Company, each has been duly formed and is validly
existing and in good standing under the laws of its jurisdiction of formation.
The Company and the Subsidiaries are duly qualified to transact business as
foreign entities, and are in good standing under the laws of all other
jurisdictions where the ownership or leasing of their respective properties or
the conduct of their respective businesses requires such qualification, except
where the failure to be so qualified does not amount to a material liability or
disability to the Company and the Subsidiaries, taken as a whole.
(e) None of the Subsidiaries is currently
prohibited, directly or indirectly, from paying any dividends to the Company,
from making any other distribution on such Subsidiary's equity interests, from
repaying to the Company any loans or advances to such Subsidiary from the
Company or from transferring any of such Subsidiary's property or assets to the
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Company or any other Subsidiary of the Company, except as described in the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus).
(f) The Company and each of the Subsidiaries have
full power (corporate and/or other) to own or lease their respective properties
and conduct their respective businesses as described in the Registration
Statement and each of the Prospectus and any Integrated Prospectus or, if the
Prospectus and any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus; and the Company has full power (corporate and
other) to enter into this Agreement and to carry out all the terms and
provisions hereof to be carried out by it.
(g) The outstanding equity interests of each
Subsidiary have been duly authorized and validly issued, are fully paid and
non-assessable and to the extent shown in Exhibit A hereto are owned by the
Company free and clear of all liens, encumbrances, equities and claims; and no
options, warrants or other rights to purchase, agreements or other obligations
to issue or other rights to convert any obligations into ownership interests in
each Subsidiary are outstanding.
(h) The Company has an authorized, issued and
outstanding capitalization as set forth in the Prospectus and any Integrated
Prospectus or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus. All of the issued shares
of capital stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable. The Securities have been duly authorized and
at the Closing Date, after payment therefor in accordance herewith, will be
validly issued, fully paid and nonassessable. No holders of outstanding shares
of capital stock of the Company are entitled as such to any preemptive or other
rights to subscribe for any of the Securities, and no holder of securities of
the Company has any right which has not been fully exercised or waived to
require the Company to register the offer or sale of any securities owned by
such holder under the Act in the public offering contemplated by this Agreement.
(i) The capital stock of the Company conforms to
the description thereof contained in the Registration Statement and each of the
Prospectus and any Integrated Prospectus or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus.
(j) Except as disclosed in the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus), there
are not outstanding (i)
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securities, partnership interests or obligations of the Company or any
Subsidiary convertible into or exchangeable for any capital stock of the Company
or ownership interest in the Subsidiaries, (ii) warrants, rights or options to
subscribe for or purchase from the Company or any Subsidiary any such capital
stock or ownership interest or any such convertible or exchangeable securities,
partnership interests or obligations, or (iii) obligations of the Company or any
Subsidiary to issue any shares of capital stock or ownership interest, any such
convertible or exchangeable securities, partnership interests or obligations, or
any such warrants, rights or options.
(k) The consolidated financial statements and
schedules of the Company and the Subsidiaries included in the Registration
Statement, Prospectus and any Integrated Prospectus (or, if the Prospectus and
any required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus) fairly present the financial position of the Company and
the Subsidiaries and the results of operations and changes in financial
condition as of the dates and periods therein specified. Such financial
statements and schedules have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved (except as otherwise noted therein). The selected financial data set
forth under the caption "Selected Financial Information" in the Registration
Statement and each of the Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus) fairly present, on the basis stated in the
Registration Statement and each of the Prospectus and any Integrated Prospectus
(or such Preliminary Prospectus), the information included therein. The pro
forma financial statements and other pro forma financial information included in
the Registration Statement, Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus) comply in all material respects with the
applicable requirements of Rule 11-02 of Regulation S-X of the Commission and
the pro forma adjustments have been properly applied to the historical amounts
in the compilation of such statements and the assumptions used in the
preparation thereof are, in the opinion of the Company, reasonable.
(l) Ernst & Young LLP, who have certified certain
financial statements of the Company and the Subsidiaries and delivered their
report with respect to the audited consolidated financial statements and
schedules included in the Registration Statement and each of the Prospectus and
any Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus), are
independent public accountants as required by the Act, the Exchange Act and the
related published rules and
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regulations thereunder.
(m) The execution and delivery of this Agreement
have been duly authorized by the Company and this Agreement has been duly
executed and delivered by the Company and is the valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
subject to the effect of bankruptcy, insolvency, moratorium, fraudulent
conveyance, reorganization and similar laws relating to creditors' rights
generally and to the application of equitable principles in any proceeding,
whether at law or in equity and except as rights to indemnity and contribution
hereunder may be limited by federal or state securities laws or principles of
public policy.
(n) No legal or governmental proceedings are pending to
which the Company or any of the Subsidiaries is a party or to which the property
of the Company or of any of the Subsidiaries is subject that are required to be
described in the Registration Statement or each of the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus), and
are not described therein, and no such proceedings which may be material with
respect to the Company and the Subsidiaries taken as a whole have been
threatened against the Company or any of the Subsidiaries or with respect to any
of their respective properties; and no contract or other document is required to
be described in the Registration Statement or the Prospectus or any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus) or to be filed as an
exhibit to the Registration Statement that is not described therein or filed as
required.
(o) The issuance, offering and sale of the Securities to
the Underwriter by the Company pursuant to this Agreement, the compliance by the
Company with the other provisions of this Agreement and the consummation of the
other transactions herein contemplated do not (i) require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, except such as have been obtained, such as may be required under
state securities or blue sky laws and, such as may be required (and shall be
obtained as provided in this Agreement) under the Act, or (ii) conflict with or
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, lease or
other agreement or instrument to which the Company or any of the Subsidiaries is
a party or by which the Company or any of the Subsidiaries or any of their
respective properties are bound, or the charter documents (or other formation
documents) or by-laws of the Company or any of the Subsidiaries, or any statute
or any judgment, decree, order, rule or regulation of any court or other
governmental authority or any
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arbitrator applicable to the Company or any of the Subsidiaries.
(p) Subsequent to the respective dates as of
which information is given in the Registration Statement and each of the
Prospectus or any Integrated Prospectus or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus, neither the Company nor any of the Subsidiaries has sustained any
material loss or interference with their respective businesses or properties
from fire, flood, hurricane, accident or other calamity, or from any labor
dispute or any legal or governmental proceeding and there has not been any
material adverse change, or any development involving a prospective material
adverse change, in the condition (financial or otherwise), management, business
prospects, net worth, or results of operations of the Company and the
Subsidiaries considered as a whole, except in each case as described in or
contemplated by the Registration Statement and each of the Prospectus and any
Integrated Prospectus or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus.
(q) The Company has not, directly or indirectly,
(i) taken any action designed to cause or to result in, or that has constituted
or which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities or (ii) since the filing of the Registration
Statement (A) sold, bid for, purchased, or paid anyone any compensation for
soliciting purchases of, the Securities or (B) paid or agreed to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company other than with respect to the offering of the Class A Senior
Cumulative Convertible Preferred Stock pursuant to the Prospectus Supplement
dated December 31, 1996 to the Prospectus, dated May 26, 1996, and the offering
of Class B Senior Cumulative Convertible Preferred Stock pursuant to the
Prospectus Supplement dated May 29, 1997 to the Basic Prospectus.
(r) The Company has not distributed and, prior to the
later of (i) the Closing Date and (ii) the completion of the distribution of the
Securities, will not distribute any offering material in connection with the
offering and sale of the Securities other than the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or other materials, if any permitted by the Act.
(s) Subsequent to the respective dates as of which
information is given in the Registration Statement and each of the Prospectus or
any Integrated Prospectus (or, if the Prospectus or any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus), (i)
none of
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the Company or any of the Subsidiaries have incurred any material liability or
obligation, direct or contingent, nor entered into any material transaction not
in the ordinary course of business; (ii) the Company has not purchased any of
its outstanding capital stock, nor declared, paid or otherwise made any dividend
or distribution of any kind on its capital stock; and (iii) there has not been
any material change in the capital stock, ownership interest, short-term debt or
long-term debt of the Company and the Subsidiaries, except in each case as
described in or contemplated by the Prospectus or any Integrated Prospectus (or,
if the Prospectus or any required Integrated Prospectus are not in existence,
the most recent Preliminary Prospectus).
(t) The Company and each Subsidiary have good and
marketable title in fee simple to all items of real property and marketable
title to all personal property owned by each of them, in each case free and
clear of any security interests, liens, encumbrances, equities, claims and other
defects, except such as do not materially and adversely affect the value of such
property and do not interfere with the use made or proposed to be made of such
property by the Company and each Subsidiary, and any real property and buildings
held under lease by the Company or by any Subsidiary are held under valid,
subsisting and enforceable leases, with such exceptions as are not material and
do not interfere with the use made or proposed to be made of such property and
buildings by the Company or by any Subsidiary, in each case except as described
in or contemplated by the Prospectus or any Integrated Prospectus (or, if the
Prospectus or any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus).
(u) The Company and each Subsidiary are insured
by insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which they
are engaged; and none of the Company or any of the Subsidiaries have any reason
to believe that they will not be able to renew their existing insurance coverage
as and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue their business at a cost that would not
materially and adversely affect the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
Subsidiaries taken as a whole, except as described in or contemplated by the
Prospectus or any Integrated Prospectus (or, if the Prospectus or any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus).
(v) The Company and each Subsidiary possess all
material certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, and none of the Company or any of the Subsidiaries has
received any notice of
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proceedings relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a material adverse
change in the condition (financial or otherwise), business prospects, net worth
or results of operations of the Company and the Subsidiaries taken as a whole,
except as described in or contemplated by the Prospectus or any Integrated
Prospectus (or, if the Prospectus or any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus).
(w) The Company will conduct its operations in a
manner that will not subject it to registration as an investment company under
the Investment Company Act of 1940, as amended, (the "1940 Act") and this
transaction will not cause the Company to become an investment company subject
to registration under such act.
(x) The Company and each Subsidiary have filed
all foreign, federal, state and local tax returns that are required to be filed
or have requested extensions thereof (except in any case in which the failure so
to file would not have a material adverse effect on the Company and the
Subsidiaries taken as a whole) and have paid all taxes required to be paid by
them and any other assessment, fine or penalty levied against them, to the
extent that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good faith or
as described in or contemplated by the Registration Statement and each of the
Prospectus or any Integrated Prospectus (or, if the Prospectus or any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus). Such tax returns are true, correct, and complete in all material
respects.
(y) The Company and each Subsidiary maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences; and (v) the Company is complying with the REIT
requirements of the Internal Revenue Code of 1986, as amended.
(z) Except as would not have a material adverse
effect or otherwise require disclosure in the Prospectus or any
Integrated Prospectus (or, if the Prospectus or any required
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Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus), (i) the Company and the Subsidiaries are not in violation of any
federal, state or local laws and regula tions relating to pollution or
protection of human health or the environment or the use, treatment, storage,
disposal, transport or handling, emission, discharge, release or threatened
release of toxic or hazardous substances, materials or wastes, or petroleum and
petroleum products ("Materials of Environmental Concern") (collectively,
"Environmental Laws"), including, without limitation, noncompliance with or lack
of any permits or other environmental authorizations, and (ii) (A) the Company
and the Subsidiaries have not received any communication from any person or
entity alleging any violation of or noncompliance with any Environmental Laws,
and there are no past, present or reasonably foreseeable circumstances that
could reasonably be expected to lead to any such violation in the future, (B)
there is no pending or threatened claim, action, investigation or notice by any
person or entity against the Company or any Subsidiary or against any person or
entity for whose acts or omissions the Company or any Subsidiary are or may
reasonably be expected to be liable, either contractually or by operation of
law, alleging liability for investigatory, cleanup, or govern mental response
costs, or natural resources or property damages, or personal injuries,
attorney's fees or penalties relating to any Materials of Environmental Concern
or any violation or potential violation, of any Environmental Law (collectively,
"Environmental Claims"), and (C) there are no actions, activi ties,
circumstances, conditions, events or incidents that could reasonably be expected
to form the basis of any such Environ mental Claim. In the ordinary course of
business, each of the Company and the Subsidiaries (i) conducts a periodic
review of the effect of Environmental Laws on its business, operations and
properties, and the Company and the Subsidiaries have identified and evaluated
associated costs and liabilities, and any capital or operating expenditures,
required for cleanup, closure of properties or compliance with Environmental
Laws or any permit, license or approval, any related constraints on operating
activities, and any potential liabilities to third parties, and (ii) consistent
with industry standards have conducted environ mental investigations of, and
reviewed information regarding, its business, properties and operations; on the
basis of such reviews, investigations and inquiries, the Company and each
Subsidiary have reasonably concluded that, except as disclosed in the Prospectus
or any Integrated Prospectus, any costs and liabilities associated with such
matters would not have a material adverse effect on the Company or any
Subsidiary or otherwise require disclosure in the Prospectus or any Integrated
Prospectus.
(aa) The Company and each Subsidiary are in compliance in
all material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of
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1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
or any Subsidiary would have any liability; the Company has not incurred and
does not expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii) Sections 4971 of
the Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension plan" in
which employees or former employees of the Company or any Subsidiary participate
that is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether through any
action or by failure to act, which would cause the loss of such qualification.
(ab) The Company has been and is organized and
operated in conformity with the requirements for qualification as a real estate
investment trust (a "REIT") under Sections 856 through 860 of the Code and the
rules and regulations thereunder and the Company's proposed method of operation
will enable it to continue to meet the requirements for taxation as a real
estate investment trust under the Code.
3. Purchase, Sale and Delivery of the Securities.
(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to the
Underwriter, and Underwriter agrees, to purchase from the Company, at a purchase
price of $21.73 per share, the Securities. One or more certificates in
definitive form for the Securities that the Underwriter has agreed to purchase
hereunder, and in such denomination or denominations and registered in such name
or names as the Underwriter requests upon notice to the Company at least 48
hours prior to the Closing Date, shall be delivered by or on behalf of the
Company to the Underwriter, against payment by or on behalf of the Underwriter
of the purchase price therefor by wire transfer in same-day funds (the "Wired
Funds") to the account of the Company. Such delivery of and payment for the
Securities shall be made at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, at 9:30
A.M., New York time, on December 23, 1997, or at such other place, time or date
as the Underwriter and the Company may agree upon, such time and date of
delivery against payment being herein referred to as the "Closing Date." The
Company will make such certificate or certificates for the Securities available
for checking and packaging by the Underwriter at the offices in New York, New
York of the Company's transfer agent or registrar or of the Underwriter at least
24 hours prior to the Closing Date.
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(b) The Company hereby acknowledges that the wire
transfer by or on behalf of the Underwriter of the purchase price for any
Securities does not constitute closing of a purchase and sale of the Securities.
Only execution and delivery of a receipt for Securities by the Underwriter
indicates completion of the closing of a purchase of the Securities from the
Company. Furthermore, in the event that the Underwriter wires funds to the
Company prior to the completion of the closing of a purchase of Securities, the
Company hereby acknowledges that until the Underwriter executes and delivers a
receipt for the Securities, by facsimile or otherwise, the Company will not be
entitled to the wired funds and shall return the wired funds to the Underwriter
as soon as practicable (by wire transfer of same-day funds) upon demand. In the
event that the closing of a purchase of Securities is not completed and the wire
funds are not returned by the Company to the Underwriter on the same day the
wired funds were received by the Company, the Company agrees to pay to the
Underwriter, in respect of each day the wire funds are not returned by it, in
same-day funds, interest on the amount of such wire funds in an amount
representing the Underwriter's cost of financing as reasonably determined by the
Underwriter.
4. Offering by the Underwriter. Upon the Underwriter's
authorization of the release of the Securities, the Underwriter proposes to
deposit the Securities with the trustee of the Trust, for which Prudential
Securities Incorporated acts as a sponsor and depositor, in exchange for units
in the Trust, in accordance with the terms of the Prospectus.
5. Covenants of the Company. The Company covenants and agrees
with the Underwriter that:
The Company will file the Prospectus or any Term
Sheet that constitutes a part thereof, any Integrated Prospectus, Prospectus
Supplement, as the case may be, and any amendment or supplement thereto with the
Commission in the manner and within the time period required by Rules 434 and
424(b) under the Act. During any time when a prospectus relating to the
Securities is required to be delivered under the Act, the Company (i) will
comply with all requirements imposed upon it by the Act and the Exchange Act and
the respective rules and regulations of the Commission thereunder to the extent
necessary to permit the continuance of sales of or dealings in the Securities in
accordance with the provisions hereof and of the Prospectus and any Integrated
Prospectus, as then amended or supplemented, and (ii) will not file with the
Commission the Prospectus, Term Sheet any Integrated Prospectus or any amendment
or supplement thereto or any amendment to the Registration Statement or any Rule
462(b) Registration Statement of which the Underwriter shall not previously have
been advised and furnished with a copy for a reasonable period of time prior to
the proposed filing and as to which filing the Underwriter shall not have given
its consent.
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The Company will prepare and file with the Commission, in accordance with the
rules and regulations of the Commission, promptly upon request by the
Underwriter or counsel for the Underwriter, any amendments to the Registration
Statement or amendments or supplements to the Prospectus and any Integrated
Prospectus that may be necessary or advisable in connection with the
distribution of the Securities by the Underwriter, and will use its best efforts
to cause any such amendment to the Registration Statement to be declared
effective by the Commission as promptly as possible. The Company will advise the
Underwriter, promptly after receiving notice thereof, of the time when any
amendment to the Registration Statement has been filed or declared effective or
the Prospectus, any Integrated Prospectus or any amendment or supplement thereto
has been filed and will provide evidence satisfactory to the Underwriter of each
such filing or effectiveness.
(a) The Company will advise the Underwriter, promptly
after receiving notice or obtaining knowledge thereof, of (i) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement or any
post-effective amendment thereto or any order directed at any document
incorporated by reference in the Registration Statement, the Prospectus or any
Integrated Prospectus or any order preventing or suspending the use of any
Preliminary Prospectus, the Prospectus and any Integrated Prospectus or any
amendment or supplement thereto, (ii) the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, (iii) the institution,
threatening or contemplation of any proceeding for any such purpose or (iv) any
request made by the Commission for amending the Registration Statement or any
Rule 462(b) Registration Statement, for amending or supplementing any
Preliminary Prospectus or the Prospectus and any Integrated Prospectus or for
additional information. The Company will use its best efforts to prevent the
issuance of any such stop order and, if any such stop order is issued, to obtain
the withdrawal thereof as promptly as possible.
(b) The Company will arrange for the qualification of the
Securities for offering and sale under the securities or blue sky laws of such
jurisdictions as the Underwriter may designate and will continue such
qualifications in effect for as long as may be necessary to complete the
distribution of the Securities, provided, however, that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction.
(c) If, at any time prior to the later of (i) the
final date when a prospectus relating to the Securities is
required to be delivered under the Act or (ii) the Closing Date,
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any event occurs as a result of which the Prospectus or any Integrated
Prospectus, as then amended or supplemented, would include any 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, or if for any other reason it is necessary at any time to
amend or supplement the Prospectus or any Integrated Prospectus to comply with
the Act, the Exchange Act or the respective rules or regulations of the
Commission thereunder, the Company will promptly notify the Underwriter thereof
and, subject to Section 5(a) hereof, will prepare and file with the Commission,
at the Company's expense, an amendment to the Registration Statement or an
amendment or supplement to the Prospectus or any Integrated Prospectus that
corrects such statement or omission or effects such compliance.
(d) The Company will, without charge, provide (i)
to the Underwriter a conformed copy of the registration statement originally
filed with respect to the Securities or any Rule 462(b) Registration Statement
and each amendment thereto (in each case including exhibits thereto), and (ii)
so long as a prospectus relating to the Securities is required to be delivered
under the Act, as many copies of each Preliminary Prospectus, the Prospectus or
any Integrated Prospectus or any amendment or supplement thereto as the
Underwriter may reasonably request.
(e) The Company, as soon as practicable, will make
generally available to its security holders and to the Underwriter a
consolidated earnings statement of the Company and its subsidiaries that
satisfies the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(f) The Company will apply the net proceeds from
the sale of the Securities as set forth under "Use of Proceeds"
in the Prospectus or any Integrated Prospectus.
(g) The Company will not, directly or indirectly,
without the prior written consent of the Underwriter, offer, sell, offer to
sell, contract to sell, pledge, grant any option to purchase or otherwise sell
or dispose (or announce any offer, sale, offer of sale, contract of sale,
pledge, grant of any option to purchase or other sale or disposition) of any
shares of Common Stock or any securities convertible into, or exchangeable or
exercisable for, shares of Common Stock for a period of 30 days after the date
hereof, except (i) pursuant to this Agreement, (ii) for issuances pursuant to
the Company's Dividend Reinvestment Plan, (iii) for issuances pursuant to the
Company's 1993 Share Option Plan, (iv) for issuances to Five Arrows Realty
Securities L.L.C. of Class A Senior Cumulative Convertible Preferred Stock and
Class B Senior Cumulative Convertible Preferred Stock (including shares of
Common Stock issuable upon conversion of such Class A and Class B Senior
Cumulative
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Convertible Preferred Stock) pursuant to purchase agreements entered into as of
December 31, 1996 and May 27, 1997, (v) for issuances of restricted shares of
Common Stock issuable upon the purchase or conversion of partnership units in
the Limited Partnership, provided, that, no registration statement relating to
such restricted Common Stock shall become effective for a period of 30 days from
the date hereof and (vi) for issuances of partnership units in connection with
the potential acquisition by the Company of the Garden Grove Industrial Park and
the Baywood Business Center, which partnership units may be convertible into
shares of Common Stock, provided, that, no registration statement relating to
such restricted Common Stock shall become effective for a period of 30 days from
the date hereof; provided, that, the Underwriter may in its sole discretion and
at any time without notice, release all or any portion of the securities subject
to the lock-up agreements.
(h) The Company will not, directly or indirectly,
(i) take any action designed to cause or to result in, or that has constituted
or which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities or (ii) (A) sell, bid for, purchase, or pay anyone
any compensation for soliciting purchases of, the Securities or (B) pay or agree
to pay to any person any compensation for soliciting another to purchase any
other securities of the Company.
(i) The Company will obtain the agreements described in
Section 7(f) hereof prior to the Closing Date.
(j) If at any time during the 25-day period after
the Registration Statement becomes effective or the period prior to the Closing
Date, any rumor, publication or event relating to or affecting the Company shall
occur as a result of which in the Underwriter's opinion the market price of the
Common Stock has been or is likely to be materially affected (regardless of
whether such rumor, publication or event necessitates a supplement to or
amendment of the Prospectus and any Integrated Prospectus), the Company will,
after notice from the Underwriter advising the Company to the effect set forth
above, forthwith prepare, consult with the Underwriter concerning the substance
of, and disseminate a press release or other public statement, reasonably
satisfactory to the Underwriter, responding to or commenting on such rumor,
publication or event.
(k) The Company will use its best efforts to cause the
Securities to be duly authorized for listing by the New York Stock Exchange
prior to the Closing Date.
6. Expenses. The Company will pay all costs and
expenses incident to the performance of its obligations under
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this Agreement, whether or not the transactions contemplated herein are
consummated or this Agreement is terminated pursuant to Section 11 hereof,
including all costs and expenses incident to (i) the printing or other
production of documents with respect to the transactions, including any costs of
printing the registration statement originally filed with respect to the
Securities and any amendment thereto, any Preliminary Prospectus, the Prospectus
and any Integrated Prospectus and any amendment or supplement thereto, this
Agreement and any blue sky memoranda, (ii) all arrangements relating to the
delivery to the Underwriter of copies of the foregoing documents, (iii) the fees
and disbursements of the counsel, accountants and any other experts or advisors
retained by the Company, (iv) preparation, issuance and delivery to the
Underwriter of any certificates evidencing the Securities, including transfer
agent's and registrar's fees, (v) the qualification of the Securities under
state securities and blue sky laws, including filing fees and fees and
disbursements of counsel for the Underwriter relating thereto, (vi) the filing
fees of the Commission (and the National Association of Securities Dealers,
Inc.) relating to the Securities, and (vii) the listing of the Securities on the
New York Stock Exchange, (viii) meetings with prospective investors in the
Securities (other than shall have been specifically approved in writing by the
Underwriter to be paid for by the Underwriter) and (ix) advertising relating to
the offering of the Securities (other than shall have been specifically approved
in writing by the Underwriter to be paid for by the Underwriter). If the sale of
the Securities provided for herein is not consummated because any condition to
the obligations of the Underwriter set forth in Section 7 hereof is not
satisfied, because this Agreement is terminated pursuant to Section 10 (other
than Section 10(v)) hereof or because of any failure, refusal or inability on
the part of the Company to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder other than by reason of a
default by the Underwriter, the Company will reimburse the Underwriter upon
demand for all out-of-pocket expenses (including fees and disbursements of
counsel) that shall have been incurred by the Underwriter in connection with the
proposed purchase and sale of the Securities. The Company shall not in any event
be liable to the Underwriter or the loss of anticipated profits from the
transactions covered by this Agreement.
7. Conditions to the Underwriter's Obligations. The obligations
of the Underwriter to purchase and pay for the Securities shall be subject, in
the Underwriter's discretion, to the accuracy of the representations and
warranties contained in Section 2 hereof as of the date hereof and as of the
Closing Date, as if made on and as of the Closing Date, to the accuracy of the
statements of the Company's officers made pursuant to the provisions hereof, to
the performance by the Company of its covenants and agreements hereunder and to
the following
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additional conditions:
(a) The Prospectus, any Term Sheet that constitutes a part
thereof, any Integrated Prospectus or the Prospectus Supplement, as the case may
be, and any amendment or supplement thereto shall have been filed with the
Commission in the manner and within the time period required by Rules 434 and
424(b) under the Act; no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto and no order
directed at any document incorporated by reference in the Registration
Statement, the Prospectus or any Integrated Prospectus or any amendment or
supplement thereto shall have been issued and no proceedings for that purpose
shall have been instituted or threatened or, to the knowledge of the Company or
the Underwriter, shall be contemplated by the Commission; and the Company shall
have complied with any request of the Commission for additional information (to
be included in the Registration Statement, the Prospectus or any Integrated
Prospectus or otherwise).
(b) The Underwriter shall have received an opinion, dated
the Closing Date, of Piper & Marbury, LLP, Maryland counsel for the Company, to
the effect that:
(i) the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
the State of Maryland;
(ii) the Company has the corporate power to own
or lease its properties and conduct its businesses as described in the
Registration Statement and the Prospectus or any Integrated Prospectus,
and the Company has corporate power to enter into this Agreement and to
carry out all the terms and provisions hereof and thereof to be carried
out by it;
(iii) the Company has authorized, issued and
outstanding capitalization as set forth in each of the Prospectus or any
Integrated Prospectus; all of the issued shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid
and nonassessable, were not issued in violation of or subject to any
preemptive rights or other rights to subscribe for or purchase
securities; the Securities have been duly authorized by all necessary
corporate action of the Company, and when issued and delivered to and
paid for by the Underwriter pursuant to this Agreement, will be validly
issued, fully paid and nonassessable;
(iv) the statements set forth under
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the heading "Description of Common Stock" in each of the Prospectus and
any Integrated Prospectus, insofar as such statements purport to
summarize certain provisions of the capital stock of the Company,
provide a fair summary of such provisions; and the statements set forth
under the headings "Restrictions on Transfer of Capital Stock" and
"Certain Provisions of Maryland Law and of the Company's Articles and
Bylaws" in each of the Prospectus and any Integrated Prospectus, insofar
as such statements constitute a summary of the legal matters, documents
or proceedings referred to therein, provide a fair summary of such legal
matters, documents and proceedings;
(v) the execution and delivery of this Agreement
have been duly authorized by all necessary corporate action of the
Company; and
(vi) the issuance, offering and sale of the
Securities to the Underwriter by the Company pursuant to this Agreement,
the compliance by the Company with the other provisions of this
Agreement and the consummation of the other transactions herein
contemplated do not conflict with or result in a breach or violation of
any of the terms and provisions of, or constitute a default under the
charter documents or bylaws of the Company.
In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials.
References to the Registration Statement and the Prospectus and
any Integrated Prospectus in this paragraph (b) shall include any amendment or
supplement thereto at the date of such opinion.
(c) The Underwriter shall have received an opinion, dated
the Closing Date, of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company, to
the effect that:
(i) The LLC has been duly formed and is validly
existing in good standing under the laws of the State of California. The Limited
Partnership has been duly formed and is validly existing as a partnership in
good standing under the laws of the State of Delaware. The General Partnership
has been duly formed and is validly existing as a partnership in good standing
under the laws of the State of California. PGP Newport has been duly formed and
is validly existing as a corporation in good standing
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under the laws of the State of California. Terrace Gardens has been duly
formed and is validly existing in good standing under the laws of the
State of Delaware. Morning View Terrace has been duly formed and is
validly existing in good standing under the laws of the State of
Delaware. Northern Industrial has been duly formed and is validly
existing in good standing under the laws of the State of Delaware. The
Company and the Subsidiaries are duly qualified to transact business as
a foreign entity, respectively, and are in good standing under the laws
of all other jurisdictions where the ownership or leasing of their
respective properties or the conduct of their respective businesses
requires such qualification, except where the failure to be so qualified
does not amount to a material liability or disability to the Company and
the Subsidiaries, taken as a whole;
(ii) the Subsidiaries have the power (corporate
and/or other) to own or lease their respective properties and conduct
their respective businesses as described in the Registration Statement
and the Prospectus or any Integrated Prospectus;
(iii) the outstanding shares of stock of PGP
Newport have been duly authorized and validly issued, are fully paid and
nonassessable and, except as otherwise set forth in the Prospectus and
any Integrated Prospectus, such shares of stock and the Company's other
interests in the Subsidiaries are owned beneficially to the extent shown
in Exhibit A hereto by the Company free and clear of any security
interests perfected by possession or, to the best knowledge of such
counsel, any other security interests, liens, encumbrances, equities or
claims, except as otherwise disclosed in the Prospectus Supplement;
(iv) no holders of outstanding shares of capital
stock of the Company are entitled as such to any preemptive or other
rights to subscribe for any of the Securities; and no holders of
securities of the Company are entitled to have such securities
registered under the Registration Statement;
(v) this Agreement has been duly executed and
delivered by the Company;
(vi) to the best knowledge of such counsel, no
legal or governmental proceedings are pending to which the Company or
any of the Subsidiaries are a party or to which the property of the
Company or any of the Subsidiaries is subject that are required to
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be described in the Registration Statement, the Prospectus and any
Integrated Prospectus and are not described therein, and, to the best
knowledge of such counsel, no such proceedings have been threatened
against the Company or any of the Subsidiaries or with respect to any of
their respective properties;
(vii) the issuance, offering and sale of the
Securities to the Underwriter by the Company pursuant to this Agreement,
the compliance by the Company with the other provisions of this
Agreement and the consummation of the other transactions herein
contemplated do not (A) require the consent, approval, authorization,
registration or qualification of or with any governmental authority,
except such as have been obtained and such as may be required under
state securities or blue sky laws, or (B) conflict with or result in a
breach or violation of any of the terms and provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, lease or other
agreement or instrument, known to such counsel, to which the Company or
any Subsidiary is a party or by which the Company or any Subsidiary or
any of their respective properties are bound, charter or bylaws of
either of the Subsidiaries, or any statute or any judgment, decree,
order, rule or regulation of any court or other governmental authority
or any arbitrator known to such counsel and applicable to the Company or
any of the Subsidiaries;
(viii) the Registration Statement is effective
under the Act; any required filing of the Prospectus, or any Term Sheet
that constitutes a part thereof, and any Integrated Prospectus pursuant
to Rules 434 and 424(b) has been made in the manner and within the time
period required by Rules 434 and 424(b); and to the best knowledge of
such counsel no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto and no
order directed at any document incorporated by reference in the
Registration Statement, the Prospectus and any Integrated Prospectus or
any amendment or supplement thereto has been issued, and no proceedings
for that purpose have been instituted or threatened or, are contemplated
by the Commission;
(ix) the Registration Statement originally filed
with respect to the Securities and each amendment thereto and any Rule
462(b) Registration Statement, the Prospectus and any Integrated
Prospectus (in each case, including the documents incorporated by
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reference therein but not including the financial statements, notes
thereto and other financial information and schedules contained therein,
as to which such counsel need express no opinion) comply as to form in
all material respects with the applicable requirements of the Act, the
Exchange Act and the respective rules and regulations of the Commission
thereunder;
(x) if the Company elects to rely on Rule 434,
the Prospectus is not "materially different," as such term is used in
Rule 434, from the prospectus included in the Registration Statement at
the time of its effectiveness or any effective post-effective amendment
thereto (including such information that is permitted to be omitted
pursuant to Rule 430A);
(xi) except as described in or contemplated by
the Registration Statement, the Prospectus and any Integrated
Prospectus, to the best knowledge of such counsel, there are no
outstanding securities of the Company convertible or exchangeable into
or evidencing the right to purchase or subscribe for any shares of
capital stock of the Company and there are no outstanding or authorized
options, warrants or rights of any character obligating the Company to
issue any shares of its capital stock or any securities convertible or
exchangeable into or evidencing the right to purchase or subscribe for
any shares of such stock; and except as described in the Registration
Statement, the Prospectus and any Integrated Prospectus, to the best of
knowledge of such counsel, no holder of any securities of the Company or
any other person has the right, contractual or otherwise, which has not
been satisfied or effectively waived, to cause the Company to sell or
otherwise issue to them, or to permit them to underwrite the sale of,
any of the Securities or the right to have any Common Stock or other
securities of the Company included in the Registration Statement or the
right, as a result of the filing of the Registration Statement, to
require registration under the Act of any shares of Common Stock or
other securities of the Company;
(xii) to such counsel's best knowledge there are
no contracts or documents required to be filed as exhibits to or
incorporated by reference in the Registration Statement or described in
the Registration Statement, the Prospectus and any Integrated Prospectus
which are not so filed, incorporated by reference or described as
required, and such contracts and documents as are summarized in the
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Registration Statement or the Prospectus and any Integrated Prospectus
are fairly summarized in all material respects;
(xiii) the Company was organized in conformity
with the requirements for qualification as a REIT for federal income tax
purposes, and, based on the facts and assumptions set forth in the Basic
Prospectus, the Preliminary Prospectus and the Prospectus Supplement and
certain representations by the Company, including but not limited to
those set forth in the Officer's Certificate regarding certain federal
income tax matters, its method of operation has enabled it, and its
proposed method of operation will enable it, to meet the requirements
under the Code for qualification and taxation as a REIT; and
(xiv) The Company is not, and will not become, as
a result of the consummation of the transactions contemplated by this
Agreement, and application of the net proceeds therefrom as described in
the Prospectus and any Integrated Prospectus, required to register as an
investment company under the 1940 Act.
Such counsel shall also state that they have no reason to believe that the
Registration Statement, as of its effective date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus and any Integrated Prospectus, as of its date or the date of such
opinion, included or includes any 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.
In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials.
References to the Registration Statement and the Prospectus and
any Integrated Prospectus in this paragraph (b) shall include any amendment or
supplement thereto at the date of such opinion.
(d) The Underwriter shall have received an
opinion, dated the Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
counsel for the Underwriter, with respect to the Registration Statement, the
Prospectus or any Integrated Prospectus, and such other related matters as the
Underwriter may
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reasonably require, and the Company shall have furnished to such counsel such
documents as they may reasonably request for the purpose of enabling them to
pass upon such matters.
(e) The Underwriter shall have received from
Ernst & Young LLP, a letter or letters dated, respectively, the date hereof and
the Closing Date, in form and substance satisfactory to the Underwriter, to the
effect that:
(i) they are independent accountants with respect
to the Company and the Subsidiaries within the meaning of the Act, the
Exchange Act and the applicable rules and regulations thereunder;
(ii) in their opinion, the audited consolidated
financial statements and schedules examined by them and included in the
Registration Statement, the Prospectus and any Integrated Prospectus
comply in form in all material respects with the applicable accounting
requirements of the Act, the Exchange Act and the related published
rules and regulations thereunder;
(iii) on the basis of a reading of the latest
available interim unaudited consolidated and combined financial
statements of the Company and the Subsidiaries, carrying out certain
specified procedures (which do not constitute an examination made in
accordance with generally accepted auditing standards) that would not
necessarily reveal matters of significance with respect to the comments
set forth in this paragraph (iii), a reading of the minute books of the
shareholders, the board of directors and any committees thereof of the
Company and each of the Subsidiaries, and inquiries of certain officials
of the Company and the Subsidiaries who have responsibility for
financial and accounting matters, nothing came to their attention that
caused them to believe that:
(A) the unaudited consolidated financial statements of the
Company and the Subsidiaries included in the Registration
Statement, the Prospectus and any Integrated Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Act, the Exchange Act and the
related published rules and regulations thereunder, or are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
consolidated financial statements included in the Registration
Statement, the Prospectus and any Integrated Prospectus;
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(B) at a specific date not more than five business days
prior to the date of such letter, there were any changes in the
capital stock or long-term debt of the Company and the
Subsidiaries or any decreases in net current assets or
shareholders' equity of the Company and the Subsidiaries, in each
case compared with amounts shown on the December 31, 1996
unaudited consolidated balance sheet included in the Registration
Statement, the Prospectus and any Integrated Prospectus, or for
the period from January 1, 1997 to such specified date there were
any decreases, as compared with the corresponding period in the
preceding year, in sales, net revenues, net income before income
taxes or total or per share amounts of net income of the Company
and the Subsidiaries, except in all instances for changes,
decreases or increases set forth in the Registration Statement,
related Prospectus Supplement or in such letter; and
(iv) they have carried out certain specified
procedures, not constituting an audit, with respect to certain amounts,
percentages and financial information that are derived from the general
accounting records of the Company and the Subsidiaries and are included
in the Registration Statement, the Prospectus and any Integrated
Prospectus and in Exhibit 12 to the Registration Statement, including
the information included or incorporated in the Company's most recent
Annual Report on Form 10-K under the captions "Business" (Item 1),
"Selected Financial and Operating Data" (Item 6) and "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" (Item 7), the information included or incorporated in the
Company's Quarterly Reports on Form 10-Q under the caption "Management's
Discussion and Analysis of Financial Condition and Results of
Operations," Current Report on Form 8-K, filed with the Commission on
January 13, 1997 (as amended by Current Report on Form 8-K, filed with
the Commission on January 17, 1997); Current Report on Form 8-K, filed
with the Commission on January 21, 1997; Current Report on Form 8-K,
filed with the Commission on February 18, 1997; Current Report on Form
8-K, filed with the Commission on April 18, 1997; Current Report on Form
8-K, filed with the Commission on May 29, 1997; Current Report on Form
8-K, filed with the Commission on June 10, 1997; Current Report on Form
8-K, filed with the Commission on June 26, 1997; Current Report on Form
8-K, filed with the Commission on August 1, 1997; Current Report on
Form 8-K, filed with the Commission on October 31, 1997; and Current
Report on Form 8-K, filed with the Commission on December 18, 1997. With
respect
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to the items identified in the beginning of this paragraph having proved
the mathematical accuracy, they make no representations regarding the
sufficiency of the aforementioned procedures for the Underwriter's
purposes and have compared such amounts, percentages and financial
information with such records and with information derived from such
records and have found them to be in agreement, excluding any questions
of legal interpretations; and
(v) on the basis of a reading of the unaudited
pro forma consolidated condensed financial statements included in the
Registration Statement, the Prospectus and any Integrated Prospectus,
inquiries of certain officials of the Company and the Subsidiaries who
have responsibility for financial and accounting matters and proving the
arithmetic accuracy of the application of the pro forma adjustments to
the historical amounts in the unaudited pro forma consolidated condensed
financial statements, nothing came to their attention that caused them
to believe that the unaudited pro forma consolidated condensed financial
statements do not comply in form in all material respects with the
applicable accounting 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 statements.
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriter that (A) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Underwriter deems such explanation unnecessary, and (B) such changes, decreases
or increases do not, in the sole judgment of the Underwriter, make it
impractical or inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended as of the
date hereof.
References to the Registration Statement and the Prospectus and any
Integrated Prospectus in this paragraph (d) with respect to either letter
referred to above shall include any amendment or supplement thereto at the date
of such letter.
(f) The Underwriter shall have received a
certificate, dated the Closing Date, of the Chief Executive Officer and the
Chief Financial Officer of the Company to the effect that:
(i) the representations and warranties of the
Company in this Agreement are true and correct as if made on and as of
the Closing Date; the Registration Statement, as amended as of the
Closing
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Date, does not include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading, the Prospectus and any Integrated Prospectus, as amended or
supplemented as of the Closing Date, does not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the
Company has performed all covenants and agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) the Registration Statement has become
effective under the Act and no stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment thereto
and no order directed at any document incorporated by reference in the
Registration Statement or the Prospectus or any amendment or supplement
thereto has been issued, and no proceedings for that purpose have been
instituted or threatened or, to the best of the Company's knowledge, are
contemplated by the Commission;
(iii) subsequent to the respective dates as of
which information is given in the Registration Statement, the Prospectus
and any Integrated Prospectus, none of the Company or any of the
Subsidiaries has sustained any material loss or interference with their
respective businesses or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by insurance, except
as to damage caused by recent storms on the West Coast for which
uninsured losses do not exceed $100,000, or from any labor dispute or
any legal or governmental proceeding, and there has not been any
material adverse change, or any development involving a prospective
material adverse change, in the condition (financial or otherwise),
management, business prospects, net worth or results of operations of
the Company or any of the Subsidiaries, except in each case as described
in or contemplated by the Prospectus and any Integrated Prospectus; and
(iv) all filings required to have been made
pursuant to Rules 424 or 430A under the Act have been made.
(g) The Underwriter shall have received from each
person who is a director or officer of the Company an agreement
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to the effect that such person will not, directly or indirectly, without the
prior written consent of the Underwriter, offer, sell, offer to sell, contract
to sell, pledge, grant any option to purchase or otherwise sell or dispose (or
announce any offer, sale, offer of sale, contract of sale, pledge, grant of an
option to purchase or other sale or disposition) of any shares of Common Stock
or any securities convertible into, or exchangeable or exercisable for, shares
of Common Stock, prior to March 1, 1997.
(h) On or before the Closing Date, the Underwriter and
counsel for the Underwriter shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Company.
(i) Prior to the commencement of the offering of
the Securities, the Securities shall have been approved for listing on the New
York Stock Exchange, subject to official notice of issuance.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Underwriter and counsel
for the Underwriter. The Company shall furnish to the Underwriter such conformed
copies of such opinions, certificates, letters and documents in such quantities
as the Underwriter and counsel for the Underwriter shall reasonably request.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold
harmless the Underwriter and each person, if any, who controls the Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
against any losses, claims, damages or liabilities, joint or several, to which
the Underwriter or such controlling person may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue
statement made by the Company in Section 2 of this Agreement,
(ii) any untrue statement or alleged untrue
statement of any material fact contained in (A) the Registration
Statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus and any Integrated Prospectus or any amendment or supplement
thereto or (B) any application or other document, or any amendment or
supplement thereto, executed by the Company or any Subsidiary or based
upon written
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information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Securities under the securities or
blue sky laws thereof or filed with the Commission or any securities
association or securities exchange (each an "Application"),
(iii) the omission or alleged omission to state
in the Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus and any Integrated Prospectus or any
amendment or supplement thereto, or any Application a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or
(iv) any untrue statement or alleged untrue
statement of any material fact contained in any audio or visual
materials used in connection with the marketing of the Securities,
including without limitation, slides, videos, films, tape recordings
and will reimburse, as incurred, the Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by the
Underwriter or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in such
registration statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus and any Integrated Prospectus or any amendment or supplement thereto,
or any Application in reliance upon and in conformity with written information
furnished to the Company by the Underwriter specifically for use therein. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have. The Company will not, without the prior written consent of the
Underwriter, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not the Underwriter or any
person who controls the Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of the Underwriter and such controlling persons from all
liability arising out of such claim, action, suit or proceeding.
(b) The Underwriter will indemnify and hold harmless the
Company, each of its directors, each of its officers
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who signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities, joint and
several, to which the Company or any such director, officer or controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any Integrated
Prospectus or any amendment or supplement thereto, or any Application or (ii)
the omission or the alleged omission to state therein a material fact required
to be stated in the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or any Application or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter specifically for use therein; and, subject to the limitation set
forth immediately preceding this clause, will reimburse, as incurred, any legal
or other expenses reasonably incurred by the Company or any such director,
officer or controlling person in connection with investigating or defending any
such loss, claim, damage, liability or any action in respect thereof. This
indemnity agreement will be in addition to any liability which the Underwriter
may otherwise have.
(c) Promptly after receipt by an indemnified
party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which on the advice of counsel for the indemnified party may
conflict with those available to the indemnifying party, the indemnifying party
shall not have the right to direct the defense of such action on behalf of such
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indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and approval
by such indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated by the Underwriter in the
case of paragraph (a) of this Section 8, representing the indemnified parties
under such paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the consent
of the indemnifying party.
(d) In circumstances in which the indemnity agreement
provided for in the preceding paragraphs of this Section 8 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party on the other from the offering of the Securities or
(ii) if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriter on the other shall be deemed to be in the same
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proportion as the total proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions
received by the Underwriter. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Underwriter, the parties' relative intents, knowledge, access to information and
opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances. The Company and the
Underwriter agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to above in this paragraph (d). Notwithstanding any
other provision of this paragraph (d), no Underwriter shall be obligated to make
contributions hereunder that in the aggregate exceed the total public offering
price of the Securities purchased by such Underwriter under this Agreement, less
the aggregate amount of any damages that the Underwriter have otherwise been
required to pay in respect of the same or any substantially similar claim, and
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this paragraph (d),
each person, if any, who controls the Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, shall have the same rights to contribution as the
Company.
9. Survival. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, its
officers or directors and the Underwriter set forth in this Agreement, or made
by or on behalf of them, respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of (i) any investigation made by or on
behalf of the Company or any Subsidiary, any of its officers or directors, the
Underwriter or any controlling person referred to in Section 8 hereof and (ii)
delivery of and payment for the Securities. The respective agreements,
covenants, indemnities and other statements set forth in Sections 6 and 8 hereof
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement.
10. Termination. (a) This Agreement may be terminated with
respect to the Securities in the sole discretion of the
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Underwriter by notice to the Company given prior to the Closing Date, in the
event that the Company shall have failed, refused or been unable to perform all
obligations and satisfy all conditions on its part to be performed or satisfied
hereunder at or prior thereto or, if at or prior to the Closing Date,
respectively,
(i) the Company and the Subsidiaries
as a whole shall have, in the sole judgment of the Underwriter,
sustained any material loss or interference with its businesses or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or any
legal or governmental proceeding or there shall have been any material
adverse change, or any development involving a prospective material
adverse change (including without limitation a change in management or
control of the Company), in the condition (financial or otherwise),
business prospects, net worth or results of operations of the Company
and its subsidiaries, except in each case as described in or
contemplated by the Prospectus (exclusive of any amendment or supplement
thereto);
(ii) trading in the Common Stock shall have been
suspended by the Commission or the New York Stock Exchange;
(iii) trading in securities generally
on the New York Stock Exchange shall have been suspended or minimum or
maximum prices shall have been established on such exchange;
(iv) a banking moratorium shall have been
declared by California, Maryland, New York or United States authorities;
or
(v) there shall have been (A) an outbreak or
escalation of hostilities between the United States and any foreign
power, (B) an outbreak or escalation of any other insurrection or armed
conflict involving the United States or (C) any other calamity or crisis
or material adverse change in general economic, political or financial
conditions having an effect on the U. S. financial markets that, in the
judgment of the Underwriter, makes it impractical or inadvisable to (x)
commence or continue the offering of the units of the Trust to the
public, or (y) enforce contracts for the sale of the units of the Trust.
(b) Termination of this Agreement pursuant to
this Section 10 shall be without liability of any party to any other party
except as provided in Section 9 hereof.
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11. Information Supplied by Underwriters. The statements set
forth in the last paragraph on the front cover page and under the heading
"Underwriting" in any Preliminary Prospectus, the Prospectus or any Integrated
Prospectus (to the extent such statements relate to the Underwriter) constitute
the only information furnished by the Underwriter to the Company for the
purposes of Sections 2(b) and 8 hereof. The Underwriter confirms that such
statements (to such extent) are correct.
12. Notices. All communications hereunder shall be in writing
and, if sent to the Underwriter, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to Prudential Securities
Incorporated, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity
Transactions Group; and if sent to the Company, shall be delivered or sent by
mail, telex or facsimile transmission and confirmed in writing to the Company at
0000 Xxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000, Attention:
Xxxxx X. Xxxxxxxxx.
13. Successors. This Agreement shall inure to the benefit of and
shall be binding upon each of the Underwriter, the Company and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company contained in Section 8 of this Agreement shall
also be for the benefit of any person or persons who control the Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Underwriter contained in Section 8 of this
Agreement shall also be for the benefit of the directors of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act. No purchaser of Securities from the
Underwriter shall be deemed a successor because of such purchase.
14. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK,
EXCLUDING (TO THE GREATEST EXTENT PERMISSIBLE BY LAW) ANY RULE OF LAW THAT WOULD
CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF
NEW YORK. THE COMPANY, ON BEHALF OF ITSELF AND THE SUBSIDIARIES, HEREBY
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT
SITTING IN THE BOROUGH OF
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MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING
RELATED TO THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY IRREVOCABLY
WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT. THE COMPANY, ON BEHALF OF ITSELF AND THE
SUBSIDIARIES, IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, ANY OBJEC TION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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If the foregoing correctly sets forth our understanding, please indicate
the Underwriter's acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute an agreement binding the Company
and the Underwriter.
Very truly yours,
PACIFIC GULF PROPERTIES INC.
By: /s/ XXXXX X. XXXXXXXXX
---------------------------------
Xxxxx X. Xxxxxxxxx
Chief Executive Officer and
President
The foregoing Agreement is hereby confirmed
and accepted as of the date first
above written.
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ XXXX-XXXXXX CANFIN
-------------------------------
Xxxx-Xxxxxx Canfin
Managing Director
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EXHIBIT A
Ownership of PGP Inland Communities, L.P.
At least 78 % ownership by the Company.
Ownership of Pacific Inland Communities, LLC
As reflected in the Articles of Organization and in the
Operating Agreement for Pacific Inland Communities, LLC, a
California Limited Liability Company.
Ownership of PGP Newport Corp.
100% ownership by the Company.
Ownership of PGP Von Karman Properties
As reflected in the General Partnership Agreement of PGP Xxx
Xxxxxx Properties.
Ownership of Terrace Gardens-PGP L.P.
As reflected in the Agreement of Limited Partnership of Terrace
Gardens-PGP L.P.
Ownership of Morning View Terrace-PGP L.P.
As reflected in the Agreement of Limited Partnership of Morning View
Terrace-PGP L.P.
Ownership of PGP Northern Industrial, L.P.
As reflected in the Agreement of Limited Partnership of PGP Northern
Industrial, L.P.
37
