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EXHIBIT 1.0
XXXXXXX PACIFIC PROPERTIES, INC.
__________ Shares of
Common Stock
(No Par Value Per Share)
UNDERWRITING AGREEMENT
____________________, 1997
________________________
________________________
________________________
________________________
As Representatives of the several Underwriters
c/o __________________
__________________
__________________
Dear Sirs:
1. INTRODUCTORY. Xxxxxxx Pacific Properties, Inc., a corporation
organized under the laws of the State of California (the "Company"), proposes to
issue and sell, pursuant to the terms of this Agreement, to the several
Underwriters named in Schedule A hereto (the "Underwriters" which term also
shall include any underwriter substituted as hereinafter provided in Section
11), an aggregate of __________ shares of Common Stock, no par value per share
("Common Stock"), of the Company. The aggregate of __________ shares of Common
Stock so to be sold by the Company is herein called the "Firm Shares". The
Company also proposes to sell severally to the Underwriters, on a pro rata
basis, at the option of the Underwriters, an aggregate of not more than
__________ additional shares of Common Stock as provided in Section 3 of this
Agreement. The aggregate of __________ shares of Common Stock so proposed to be
sold is herein called the "Optional Shares". The Firm
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Shares and the Optional Shares are collectively referred to herein as the
"Shares". ____________________, ____________________, _____________________ and
____________________ are acting as representatives of the several Underwriters
and in such capacity are hereinafter referred to as the "Representatives".
2. (a) REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the several Underwriters, as of the date hereof, as of the First
Closing Date (as defined in Section 3), and as of the Option Closing Date (as
defined in Section 3), if any, and agrees with the several Underwriters, as
follows:
(i) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 33-68712) for
the registration under the Securities Act of 1933, as amended (the "1933
Act"), of the Shares and certain other securities and has filed such
amendments thereto, if any, as may have been required to the date hereof.
Such registration statement, as amended (if applicable) at the time such
registration became effective (including all exhibits thereto, and all
documents incorporated or deemed to be incorporated by reference therein
and the information, if any, deemed to be a part thereof pursuant to Rule
430A(b) of the rules and regulations of the Commission under the 1933 Act
(the "Rules and Regulations")), as from time to time amended or
supplemented pursuant to the 1933 Act, the Securities Exchange Act of 1934,
as amended (the "1934 Act"), or otherwise, is hereinafter referred to as
the "Registration Statement". The Company proposes to file with the
Commission, pursuant to Rule 424(b) of the Rules and Regulations, the
Prospectus Supplement (as defined in Section 4(i) hereof) and the related
prospectus dated ___________, 1997 (the "Base Prospectus"), and has
previously advised you of all information (financial and other) with
respect to the Company set forth therein. The Base Prospectus and the
Prospectus Supplement, each in the form first provided to the Underwriters
by the Company for use in connection with the offering of the Shares (being
the forms in which they are to be filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations), including all documents
incorporated or deemed to be incorporated by reference therein, are
hereinafter referred to collectively, as the "Prospectus", except that if
any revised prospectus or prospectus supplement shall be provided to the
Underwriters by the Company for use in connection with the offering and
sale of the Shares which differs from the Prospectus first provided to the
Underwriters for such purpose (whether or not such revised prospectus or
prospectus supplement is required to be filed by the Company pursuant to
Rule 424(b) of the Rules and Regulations), the term "Prospectus" shall
refer to such revised prospectus or prospectus supplement, as the case may
be, from and after the time it is first provided to the Underwriters for
such use. Unless the context otherwise requires, all references in this
Agreement to documents, financial statements and schedules and other
information which is "contained", "included", "stated", "described in" or
"referred to" in the Registration Statement or the Prospectus (and all
other references of like import) shall be deemed to mean and include all
such documents, financial statements and schedules and other information
which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be; and all references in this
Agreement to amendments or
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supplements to the Registration Statement or the Prospectus shall be deemed
to mean and include the filing of any document under the 1934 Act, after
the date of this Agreement which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may
be.
(ii) The Registration Statement has become effective under the 1933
Act and no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with. At the
respective times the Registration Statement and any post-effective
amendments thereto became or become effective, as the case may be, and at
the First Closing Date (and, if any Option Shares are purchased, at the
Option Closing Date), the Registration Statement complied and will comply
in all material respects with the requirements of the 1933 Act, and the
Rules and Regulations, and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus does not and will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that the foregoing
representations, warranties and agreements shall not apply to information
contained in or omitted from the Registration Statement or the Prospectus
in reliance upon, and in conformity with, written information furnished to
the Company by or on behalf of any Underwriter, directly or through the
Representatives, specifically for use in the preparation thereof.
(iii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, when they were
filed with the Commission, comply in all material respects to the
requirements of the 1934 Act and the published rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and
any further documents so filed and incorporated or deemed to be
incorporated by reference, when they are filed with the Commission, will
comply in all material respects to the requirements of the 1934 Act and the
published rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(iv) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, (A) there has been no material adverse
change in the condition (financial or otherwise) or in the earnings,
business affairs or business prospects of the Company and its subsidiaries,
its partnerships and its limited liability companies (collectively, the
Company's partnership interests in the limited partnerships (the
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"Limited Partnerships"), the Company's interests in the limited liability
company and the subsidiary corporations identified in Schedule D hereto are
referred to herein as the "Subsidiaries") considered as one enterprise,
whether or not arising in the ordinary course of business, or any change in
the consolidated capital stock or consolidated long-term debt of the
Company, (B) there have been no transactions entered into by the Company or
any of its Subsidiaries which are material to the Company and its
Subsidiaries considered as one enterprise, other than those entered into in
the ordinary course of its business, and (C) except for regular quarterly
dividends, there has been no dividend or distribution of any kind declared,
paid or made by the Company on its shares of capital stock. As used in this
paragraph (iv), the term "Prospectus" means the Prospectus in the form
first used to confirm sales of the Shares.
(v) The financial statements, together with the related notes and
supporting schedules (if any) in the Prospectus and elsewhere in the
Registration Statement, present fairly the financial position, results of
operations, cash flows and shareholders' equity of the Company, as at the
respective dates and for the respective periods therein indicated, and such
financial statements and related notes and supporting schedules have been
prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved,
except as may be set forth therein or in the Prospectus. The selected
financial data and the summary financial information included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement. The Company's ratios of
earnings to fixed charges (actual and, if any, pro forma) included in the
Prospectus and as an exhibit to the Registration Statement have been
calculated in compliance with Item 503(d) of Regulation S-K of the
Commission.
(vi) The accountants who have delivered their reports with respect
to the audited financial statements and supporting schedules included in
the Registration Statement and the Prospectus, are independent public
accountants as required by the 1933 Act and the Rules and Regulations.
(vii) The pro forma condensed financial statements, together with the
related notes and any supporting schedules, included in the Prospectus
present fairly the information shown therein, have been prepared on a basis
substantially consistent with the audited financial statements of the
Company set forth therein, the assumptions on which such pro forma
financial statements have been prepared are reasonable and are set forth in
the notes thereto, and such pro forma condensed financial statements have
been prepared, and the pro forma adjustments set forth therein have been
applied, in accordance with the applicable accounting requirements of the
1933 Act and the Rules and Regulations (including, without limitation,
Regulation S-X promulgated by the Commission), and such pro forma
adjustments have been properly applied to the historical amounts in the
compilation of such statements.
(viii) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of California;
the Company
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has power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and the
Prospectus; the Company's operations and business activities are not such
as to require the Company to be qualified as a foreign corporation to
transact business in any other jurisdiction where the failure to be so
qualified would have a material adverse effect on the condition (financial
or otherwise) or the earnings, business affairs or business prospects of
the Company and its Subsidiaries considered as one enterprise; and, except
for its interests in the Subsidiaries, the Company owns no material amounts
of capital stock or other beneficial interest in any other corporation,
partnership, joint venture, limited liability company or other business
entity.
(ix) Each Subsidiary has been duly organized and is validly existing
and in good standing under the laws of the jurisdiction of its
organization, has power and authority to own, lease and operate its
property and conduct its business as described in the Registration
Statement and the Prospectus, and is duly qualified to transact business
and is in good standing in each jurisdiction in which such qualification is
required, except where the failure to be so qualified or in good standing
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise; and except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of each Subsidiary that is a corporation has been
duly authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equity
and the Company owns its interests in the Limited Partnerships and the
limited liability company identified in Schedule D hereto free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(x) The Company is not, and upon the issuance and sale of the
Shares as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an "investment
company" or an entity "controlled" by an "investment company" as such terms
are defined in the Investment Company Act of 1940, as amended (the "1940
Act").
(xi) The authorized, issued and outstanding shares of capital stock
of the Company are as set forth in the Prospectus under the caption
"Capitalization" (except for subsequent issuances, if any, of Common Stock
pursuant to employee benefit plans referred to in the Prospectus); the
shares of issued and outstanding Common Stock have been duly authorized and
validly issued and are fully-paid and non-assessable; the Shares have been
duly authorized for issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein, will be
validly issued and fully paid and non-assessable; the Common Stock and the
Company's charter and bylaws conform in all material respects to all
statements relating thereto contained in the Prospectus; the form of
certificate used to evidence the Common Stock is in due
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and proper form and complies with all applicable statutory requirements;
and the issuance of the Shares is not subject to preemptive or other
similar rights.
(xii) Neither the Company nor any of its Subsidiaries is in violation
of its charter or by-laws or certificate of limited partnership, agreement
of limited partnership or other similar certificates or agreements, as the
case may be; neither the Company nor any of its Subsidiaries is in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which it is a party or by which it or any of its property or assets may be
bound, except for such defaults which would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise) or the earnings, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise; and the
execution, delivery and performance of this Agreement, the consummation of
the transactions contemplated herein and in the Registration Statement
(including the issuance and sale of the Shares and the use of the proceeds
from the sale of the Shares as described in the Prospectus under the
caption "Use of Proceeds"), and compliance by the Company with its
obligations hereunder, have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of,
or default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its Subsidiaries pursuant to, any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its
Subsidiaries may be bound or to which any of the property or assets of the
Company or any of its Subsidiaries is subject, nor will such action result
in any violation of the provisions of the charter or by-laws or certificate
of limited partnership, agreement of limited partnership or other similar
certificates or agreements, as the case may be, of the Company or any of
its Subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality, governmental agency or body or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
assets, properties or operations; and no filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of
any court or governmental authority or agency is necessary or required for
the performance by the Company of its obligations hereunder in connection
with the offering, issuance or sale of the Shares or the consummation by
the Company of the transactions contemplated by this Agreement, except such
as may be required under state securities or Blue Sky laws of any
jurisdiction or real estate syndication laws in connection with the
purchase and distribution of the Shares by the Underwriters. As used
herein, a "Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company or any Subsidiary.
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(xiii) The Company was and is organized in conformity with the
requirements for qualification as a "real estate investment trust" under
the Internal Revenue Code of 1986, as amended (the "Code"); the Company at
all times since its organization has met and continues to meet all the
requirements of the Code for qualification as a "real estate investment
trust"; the Company is qualified as a "real estate investment trust" under
the Code and will be so qualified after consummation of the transactions
contemplated by the Prospectus; and the Company's present and contemplated
operations, assets and income will enable the Company to meet the
requirements for qualification as a "real estate investment trust" under
the Code. United States Federal income tax returns of the Company have been
examined and closed through the fiscal year of the Company ended
___________, 199__.
(xiv) Each of the Limited Partnerships listed in Schedule D to this
Agreement is a partnership for California state income tax purposes under
the applicable laws and regulations of the State of California, and Ladera
Center Associates, LLC is a limited liability company for Delaware state
income tax purposes under the applicable laws and regulations of the State
of Delaware.
(xv) There is no action, suit or proceeding before or by any court,
government, government instrumentality, governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened against or affecting the Company or any of its Subsidiaries,
which is required to be disclosed in the Registration Statement and the
Prospectus (other than as disclosed therein) or which might result in any
material adverse change in the condition (financial or otherwise) or the
earnings, business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise, or which might materially and
adversely affect the properties or assets of the Company or any of its
Subsidiaries; and there are no contracts or documents of the Company or any
of its Subsidiaries which are required to be filed as exhibits to the
Registration Statement or any document incorporated or deemed to be
incorporated therein by the 1933 Act, the Rules and Regulations, the 1934
Act or the rules and regulations of the Commission thereunder which have
not been so filed.
(xvi) The Company and its Subsidiaries possess such permits,
licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by them; the Company and its Subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except where
the failure to so comply would not, singly or in the aggregate, result in
any material adverse change in the condition (financial or otherwise) or
the earnings, business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise, or which might materially and
adversely affect a material amount of the properties or assets of the
Company and its Subsidiaries; all of the Governmental Licenses are valid
and in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not have a material or adverse effect on the
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properties or assets of the Company or any of its Subsidiaries; and neither
the Company nor any of its Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a material and
adverse effect on a material amount of the properties or assets of the
Company and its Subsidiaries.
(xvii) The Company is eligible to use a Form S-3 registration
statement under the 1933 Act. The Company is also eligible to use Form S-3
pursuant to the standards for that form in effect prior to October 21,
1992.
(xviii) Neither the Company nor any of its Subsidiaries nor any of
their respective officers or directors has taken nor will any of them take,
directly or indirectly, any action resulting in a violation of Regulation M
under the 1934 Act, or designed to cause or result in, or which has
constituted or which reasonably might be expected to constitute, the
stabilization or manipulation of the price of the shares of Common Stock or
facilitation of the sale or resale of the Shares.
(xix) Neither the Company nor any of its Subsidiaries is required
to own or possess any trademarks, service marks, trade names or copyrights
in order to conduct the business now operated by it.
(xx) The Company has full right, power and authority to enter into
this Agreement; this Agreement has been duly authorized, executed and
delivered by the Company.
(xxi) The outstanding shares of Common Stock are listed on the New
York Stock Exchange and the Shares have been approved for listing, subject
to official notice of issuance, on the New York Stock Exchange.
(xxii) Except as otherwise disclosed in the Prospectus: (A) the
Company and its Subsidiaries have good and marketable title in fee simple
to all real property and improvements owned by the Company and its
Subsidiaries, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any kind
except such as (a) are described in the Prospectus or (b) do not, singly or
in the aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company or any of its Subsidiaries; (B) all of the leases and subleases
material to the business of the Company and its Subsidiaries, considered as
one enterprise, and under which the Company or any of its Subsidiaries
holds properties described in the Prospectus, are in full force and effect,
and neither the Company nor any Subsidiary has any notice of any material
claim of any sort that has been asserted by any one adverse to the right of
the Company or any Subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or
such Subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease; (C) all liens, charges,
encumbrances, claims or restrictions on or affecting the
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real property and improvements of the Company or any of its Subsidiaries
which are required to be disclosed in the Prospectus are disclosed therein;
(D) neither the Company nor any of its Subsidiaries nor any lessee of any
portion of the real property or improvements of the Company or any of its
Subsidiaries is in default under any of the leases pursuant to which the
Company or any of its Subsidiaries leases (as lessor) its real property or
improvements and the Company knows of no event which, but for the passage
of time or the giving of notice, or both, would constitute a default under
any of such leases, except such defaults that would not, individually or in
the aggregate, have a material adverse effect on the condition (financial
or otherwise) or the earnings, business affairs or business prospects of
the Company and its Subsidiaries considered as one enterprise; (E) no
tenant under any of the leases pursuant to which the Company or any of its
Subsidiaries leases any of its real property or improvements has an option
or right of first refusal to purchase the premises demised under such
lease; (F) all of the real property and improvements of the Company and its
Subsidiaries comply with all applicable codes and zoning laws and
regulations, except for such failures to comply which would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise) or the earnings, business affairs or
business prospects of the Company and its Subsidiaries considered as one
enterprise; and (G) the Company has no knowledge of any pending or
threatened condemnation, zoning change or other proceeding or action that
would in any manner affect the size of, use of, improvements on,
construction on, or access to any of the real property of the Company or
any of its Subsidiaries, except such proceedings or actions that would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise) or the earnings, business affairs or
business prospects of the Company and its Subsidiaries considered as one
enterprise.
(xxiii) The Company and its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances
that (A) transactions are executed in accordance with management's general
or specific authorizations; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (C) access to assets is permitted only
in accordance with management's general or specific authorizations; and (D)
the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. Neither the Company nor any of its Subsidiaries nor any of
their respective employees or agents has made any payment of funds of the
Company or any of its Subsidiaries or received or retained any funds in
violation of any law, rule or regulation which payment, receipt or
retention of funds is of a character required to be disclosed in the
Prospectus.
(xxiv) Except as otherwise set forth in the Registration Statement,
(A) neither the Company nor any of its Subsidiaries has at any time, and no
other party has at any time, handled, buried, stored, retained, refined,
transported, processed, manufactured, generated, produced, spilled, allowed
to seep, leak, escape or xxxxx, or pumped, poured, emitted, emptied,
discharged, injected, dumped, transferred or otherwise disposed of or dealt
with Hazardous Materials (hereinafter defined) on, to or from real
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property owned, leased or otherwise utilized by the Company or any of its
Subsidiaries or in which the Company or any of its Subsidiaries has any
ownership interest, including without limitation any subsurface soils and
ground water (the "Premises"), except for such cases as (u) are not
required to be disclosed in the Registration Statement and (v) would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise) or the earnings, business affairs or
business prospects of the Company and its Subsidiaries considered as one
enterprise, (B) no seepage, leak, escape, xxxxx, discharge, injection,
release, emission, spill, pumping, pouring, emptying or dumping of
Hazardous Materials from or to the Premises has occurred, except for such
cases as (w) are not required to be disclosed in the Registration Statement
and (x) would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise) or the earnings,
business affairs or business prospects of the Company and its Subsidiaries
considered as one enterprise, (C) there are no events or circumstances that
might reasonably be expected to form the basis of, and neither the Company
nor any of its Subsidiaries has received notice of any claim, and has
knowledge of any occurrence or circumstance which with notice or passage of
time or both would give rise to an order for clean-up or remediation,
claim, action, suit or proceeding under or pursuant to any Environmental
Statute (as hereinafter defined) by any private party or governmental body
or agency, (D) there are not pending or threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Statute (as hereinafter defined) against the
Company or any of its Subsidiaries, (E) neither the Company nor any of its
Subsidiaries is in violation of any Environmental Statute with respect to
any Hazardous Materials, (F) to the best of Company's knowledge and
information, no part of the Premises is included or proposed for inclusion
on the National Priorities List issued pursuant to CERCLA (hereinafter
defined) by the United States Environmental Protection Agency (the "EPA")
or on the inventory of other potential "problem" sites issued by the EPA
and has not otherwise been identified by the EPA as a potential CERCLA site
or included or proposed for inclusion on any list or inventory issued
pursuant to any other Environmental Statute or issued by any other
Governmental Authority (hereinafter defined), and (G) the Company and its
Subsidiaries have all permits, authorizations and approvals required under
any applicable Environmental Statutes and are each in compliance with their
requirements. As used herein "Hazardous Material" shall include without
limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances, or related
materials, asbestos or any material containing asbestos, or any other
substance or material as defined by any federal, state or local
environmental law, ordinance, rule, or regulation including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. Sections 9601, ET SEQ.)
("CERCLA"), the Hazardous Materials Transportation Act, as amended (49
U.S.C. Sections 1801, ET SEQ.), the Resource Conservation and Recovery Act,
as amended (42 U.S.C. Sections 6901 ET SEQ.) and in the regulations adopted
and publications promulgated pursuant to each of the foregoing
(individually, an "Environmental Statute") or by any federal, state or
local governmental authority having or claiming jurisdiction over the
Premises (a "Governmental Authority").
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(xxv) Attached hereto as Schedule D is a true and complete list of
all corporations, limited liability companies and partnerships in which the
Company holds an interest. The Company owns the general partner interest in
each of the Limited Partnerships identified in Schedule D. The Company has
no other subsidiaries other than those listed in Schedule D, and it holds
no other interests in any partnerships or limited liability companies other
than those listed in Schedule D.
(b) Any certificate signed by any officer of the Company and delivered to
the Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
3. PURCHASE BY AND SALE AND DELIVERY TO, THE UNDERWRITERS; CLOSING DATE.
On the basis of the representations, warranties, covenants and agreements herein
contained, and subject to the terms and conditions herein set forth, the Company
agrees to sell to the Underwriters, severally and not jointly, and the
Underwriters agree, severally and not jointly, to purchase from the Company at
the price per share set forth in Schedule B hereto, the number of Firm Shares
set forth opposite their respective names in Schedule A, subject to adjustment
in accordance with Section 11 hereof.
The Company will deliver the Firm Shares to the Representatives for the
respective accounts of the several Underwriters (in the form of definitive
certificates, issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company given at or prior
to 12:00 Noon, New York time, on the business day preceding the First Closing
Date or, if no such direction is received, in the names of the respective
Underwriters), against payment of the purchase price therefor by wire transfer
of immediately available funds, at the offices of Xxxxx & Wood LLP, Xxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The time and date of delivery and
closing shall be at 10:00 A.M., New York time, on the third (fourth, if the
pricing occurs after 4:30 P.M. (New York time) on any given day), business day
after the date hereof; PROVIDED, HOWEVER, that such date and time may be
accelerated or extended by agreement between the Company and the Representatives
or postponed pursuant to the provisions of Section 11 hereof. The time and date
of such payment and delivery are herein referred to as the "First Closing Date".
The Company shall make the certificates for the Firm Shares available to the
Representatives for examination on behalf of the Underwriters not later than
10:00 A.M., New York time, on the business day preceding the First Closing Date
in New York, New York.
In addition, on the basis of the representations, warranties, covenants and
agreements herein contained, and subject to the terms and conditions herein set
forth, the Company hereby grants the Underwriters an option to purchase,
severally and not jointly, up to an additional __________ shares of Common Stock
for the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Shares as contemplated by the Prospectus. The
purchase price per share to be paid for the Optional Shares shall be the same
price per share as for the Firm Shares, less an amount per share equal to any
dividends or distributions declared by the Company and payable on any Firm
Shares and not payable on such Optional Shares. The option granted hereby may be
exercised as to all or any part of the Optional Shares at any time not more than
30 days subsequent to the date of this
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Agreement. No Optional Shares shall be sold and delivered unless the Firm Shares
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Shares or any portion thereof may be surrendered and
terminated at any time upon notice by the Representatives to the Company.
The option granted hereby may be exercised by the Representatives on behalf
of the Underwriters by giving written notice to the Company setting forth the
number of Optional Shares to be purchased by them and the date and time for
delivery of and payment for the Optional Shares. Such date and time for delivery
of and payment for the Optional Shares (which may be the First Closing Date) is
herein called the "Option Closing Date" (the First Closing Date and the Option
Closing Date are herein called, collectively, the "Closing Dates" and,
individually, a "Closing Date") and shall not be later than seven full business
days after written notice is given. Optional Shares shall be purchased for the
account of each Underwriter in the same proportion as the number of Firm Shares
set forth opposite such Underwriter's name in Schedule A hereto bears to the
total number of Firm Shares (subject to adjustment by the Representatives to
eliminate fractional shares or odd lots). Upon exercise of the option by the
Representatives, the Company agrees to sell to the Underwriters the number of
Optional Shares set forth in the written notice of exercise and the Underwriters
agree, severally and not jointly, subject to the terms and conditions herein set
forth, to purchase such Optional Shares.
The Company will deliver the Optional Shares to the Representatives for the
respective accounts of the several Underwriters (in the form of definitive
certificates, issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company given at or prior
to 12:00 Noon, New York time, on the business day preceding the Option Closing
Date or, if no such direction is received, in the names of the respective
Underwriters), against payment of the purchase price therefor by wire transfer
of immediately available funds, at the offices of Xxxxx & Xxxx LLP, Xxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Company shall make the certificates
for the Optional Shares available to the Representatives for examination on
behalf of the Underwriters not later than 10:00 A.M., New York time, on the
business day preceding the Option Closing Date in New York, New York.
It is understood that the Representatives, individually and not as
Representatives of the several Underwriters, may (but shall not be obligated to)
make payment to the Company on behalf of any Underwriter or Underwriters, for
the Shares to be purchased by such Underwriter or Underwriters. Any such payment
by any of the Representatives shall not relieve such Underwriter or Underwriters
from any of its or their other obligations hereunder.
After the Registration Statement becomes effective, the several
Underwriters propose to make an initial public offering of the Shares at the
initial public offering price.
4. COVENANTS AND AGREEMENTS OF THE COMPANY. The Company covenants and
agrees with the several Underwriters that:
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(a) The Company will advise the Representatives promptly of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the institution of any proceedings for that
purpose, and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible the lifting thereof, if issued. The
Company will advise the Representatives promptly of the receipt of any comments
from the Commission and any request by the Commission for any amendment of or
supplement to the Registration Statement or the Prospectus or for additional
information, and will not at any time file any amendment to the Registration
Statement or supplement to the Prospectus which shall not previously have been
submitted to the Representatives a reasonable time prior to the proposed filing
thereof or to which the Representatives shall reasonably object in writing or
which is not in compliance with the 1933 Act and the Rules and Regulations. The
Company will advise the Representatives promptly when the Prospectus has been
timely filed pursuant to Rule 424(b) of the Rules and Regulations. The Company
will advise the Representatives promptly when any post-effective amendment to
the Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed.
(b) The Company will prepare and file with the Commission, promptly upon
the request of the Representatives, any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may be necessary to enable the several Underwriters to continue
the distribution of the Shares and, in the case of any such amendments to the
Registration Statement, will use its best efforts to cause the same to become
effective as promptly as possible. The Company will promptly file all reports
and any definitive proxy or information statements required to be filed with the
Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act for so long as
the delivery of a prospectus is required in connection with the offering or sale
of the Shares.
(c) If at any time when a prospectus relating to the Shares is required to
be delivered under the 1933 Act any event occurs as a result of which the
Prospectus would include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
at any time to amend the Prospectus to comply with the 1933 Act or the Rules and
Regulations, the Company will promptly notify the Representatives thereof and
will prepare an amended or supplemented Prospectus (in form and substance
reasonably satisfactory to counsel to the Underwriters) or, with the consent of
counsel to the Underwriters, make an appropriate filing pursuant to Section 13
or 14 of the 1934 Act which will correct such statement or omission; and, in
case any Underwriter is required to deliver a prospectus relating to the Shares
nine months or more after the date of this Agreement, the Company upon the
request of the Representatives and at the expense of such Underwriters will
prepare promptly such prospectus or prospectuses as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the 1933 Act.
(d) The Company will deliver to the Representatives, at or before the
First Closing Date, signed copies of the Registration Statement and all
amendments thereto (including all financial statements and exhibits thereto and
all documents incorporated or deemed to be incorporated by reference therein)
and signed copies of all consents and certificates of experts,
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and will deliver to the Representatives such number of copies of the
Registration Statement, including such financial statements and all documents
incorporated or deemed to be incorporated by reference therein but without
exhibits, and of all amendments thereto, as the Representatives may reasonably
request. The copies of the Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX"), except to the extent
permitted by Regulation S-T. The Company will deliver or mail to or upon the
order of the Representatives on the date of the initial public offering, and
thereafter from time to time during the period when delivery of a prospectus
relating to the Shares is required under the 1933 Act, as many copies of the
Prospectus, in final form or as thereafter amended or supplemented, as the
Representatives may reasonably request; PROVIDED, HOWEVER, that the expense of
the preparation and delivery of any prospectus required for use nine months or
more after the date of this Agreement shall be borne by the Underwriters
required to deliver such prospectus. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will make generally available to its security holders as
soon as practicable, but in any event not later than 60 days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the 0000 Xxx) which will be in reasonable detail
(but which need not be audited) and which will comply with Section 11(a) of the
1933 Act, covering a period of at least twelve months beginning not later than
the first day of the Company's fiscal quarter next following the "effective
date" (as defined in said Rule 158) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the
Shares to be qualified for sale under the securities laws and real estate
syndication laws of such states and other jurisdictions as the Representatives
may reasonably designate and at the request of the Representatives will make
such applications and furnish such information as may reasonably be required of
it as the issuer of the Shares for that purpose; PROVIDED, HOWEVER, that the
Company shall not be required to qualify to do business or to file a general
consent to service of process in any such jurisdiction. The Company will, from
time to time, prepare and file such statements and reports as are or may be
required of it as the issuer of the Shares to continue such qualifications in
effect for so long a period as the Representatives may reasonably request for
the distribution of the Shares.
(g) The Company will furnish to its shareholders annual reports containing
financial statements certified by independent public accountants and with
quarterly summary financial information, in reasonable detail which may be
unaudited. During the period of five years from the date hereof, the Company
will deliver to the Representatives and, upon request, to each of the other
Underwriters, copies of each annual report of the Company and each other report
furnished by the Company to its shareholders; and will deliver to the
Representatives, as soon as they are available, copies of any other reports
(financial or other) which the Company shall publish or otherwise make available
to any of its securityholders as
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such and, as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange.
(h) The Company will use its best efforts to effect and to maintain the
listing of the Shares on the New York Stock Exchange.
(i) Immediately following the execution of this Agreement, the Company
will prepare a prospectus supplement, dated the date hereof (the "Prospectus
Supplement"), containing the public offering price of the Shares, the
underwriting discounts and commissions, the plan of distribution of the Shares
and such other information as may be required by the 1933 Act or the Rules and
Regulations or as the Representatives and the Company deem appropriate, and will
file or transmit for filing with the Commission in accordance with Rule 424(b)
of the Rules and Regulations copies of the Prospectus (including such Prospectus
Supplement).
(j) The Company will use the net proceeds received by it from the sale of
the Shares in the manner specified in the Prospectus Supplement under "Use of
Proceeds".
(k) During a period of 90 days from the date of this Agreement, the
Company will not, without the prior written consent of ____________________, (i)
directly or indirectly, offer, pledge, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or dispose of any
share of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under the 1933
Act with respect to any of the foregoing or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Common Stock,
whether any such transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Stock, other securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the Shares to be sold hereunder, or
(B) any shares of Common Stock issued by the Company pursuant to any employee
stock option plan of the Company referred to in the Prospectus.
(l) The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the Code.
(m) In accordance with the Cuba Act (if applicable) and without limitation
to the provisions of Section 6 hereof, the Company will indemnify each
Underwriter against any and all losses, claims, damages, liabilities and
expenses (including attorneys' fees) arising out of or based upon any violation
by the Company of the Cuba Act.
5. PAYMENT OF EXPENSES. The Company will pay (directly or by
reimbursement) all expenses incident to the performance of its obligations under
this Agreement, including but not limited to all expenses and taxes incident to
delivery of the Shares to the Representatives, all expenses incident to the
registration of the Shares under the 1933 Act and the printing of copies of the
Registration Statement, any preliminary prospectus (including any preliminary
prospectus supplement), the Prospectus, any amendments or supplements thereto,
all expenses
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incident to the preparation, word processing, printing and delivery of all "Blue
Sky" memoranda and this Agreement and furnishing the same to the Underwriters
and dealers except as otherwise provided in Section 4(d), the fees and
disbursements of the Company's counsel and accountants, all filing and printing
fees and expenses (including reasonable legal fees and disbursements of counsel
for the Underwriters) incurred in connection with qualification or exemption of
the Shares for sale under securities laws and real estate syndication laws of
such jurisdictions as the Representatives may designate, all fees and expenses
paid or incurred in connection with any filings made with the National
Association of Securities Dealers, Inc., the fees and expenses incurred in
connection with the listing of the Shares on the New York Stock Exchange, the
costs of preparing certificates evidencing the Shares, the costs and fees of any
registrar or transfer agent and all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter, and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, against any and all losses, claims, damages,
liabilities or expenses (including the reasonable cost of investigating and
defending against any claims therefor and counsel fees incurred in connection
therewith), joint or several, as incurred, which may be based upon the 1933 Act,
or any other statute or at common law, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the information deemed to be
part of the Registration Statement pursuant to Rule 430A(b) of the Rules and
Regulations, if applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus (including
any preliminary prospectus supplement) or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, unless such statement
or omission was made in reliance upon, and in conformity with, written
information furnished to the Company by any Underwriter, directly or through the
Representatives, specifically for use in the preparation thereof; PROVIDED,
HOWEVER, that the Company shall not be liable with respect to any claims made
against any Underwriter or any such controlling person under this subsection
unless such Underwriter or controlling person shall have notified the Company in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim which shall have been served upon
such Underwriter or controlling person, but failure to notify the Company of any
such claim shall not relieve the Company from any liability which it may have to
such Underwriter or controlling person otherwise than on account of the
indemnity agreement contained in this paragraph; and PROVIDED, further, that
with respect to any such untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus (including any
preliminary prospectus supplement), the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased the
Shares concerned (or to the benefit of any person controlling such Underwriter)
to the extent that any such loss, claim, damage or liability of such Underwriter
or controlling person results from the fact that a copy of the Prospectus
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(excluding documents incorporated by reference therein) was not sent or given to
such person at or prior to the written confirmation of the sale of such Shares
to such person as required by the 1933 Act, and if the untrue statement or
omission concerned was corrected in the Prospectus (excluding documents
incorporated by reference therein). The Company will be entitled to participate
at its own expense in the defense, or, if the Company so elects, to assume the
defense, of any suit brought to enforce any such liability, but, if the Company
elects to assume the defense, such defense shall be conducted by counsel chosen
by it. In the event the Company elects to assume the defense of any such suit
and retain such counsel, the Underwriter or Underwriters or controlling person
or persons, defendant or defendants in the suit may retain additional counsel
but shall bear the fees and expenses of such counsel unless (i) the Company
shall have specifically authorized the retaining of such counsel or (ii) the
parties to such suit include such Underwriter or Underwriters or controlling
person or persons and the Company and such Underwriter or Underwriters or
controlling person or persons have been advised by counsel that one or more
legal defenses may be available to it or them which may not be available to the
Company, in which case the Company shall not be entitled to assume the defense
of such suit notwithstanding its obligation to bear the fees and expenses of
such counsel. The Company shall not be liable to indemnify any person for any
settlement of any such claim effected without the Company's written consent. In
no event shall the Company be liable under this subsection (a) for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from the Company's own counsel for all indemnified persons in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. This
indemnity agreement will be in addition to any liability which the Company might
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of the Company's directors, each of the Company's officers who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all losses, claims, damages, liabilities or expenses
(including unless the Underwriter or Underwriters elect to assume the defense,
the reasonable cost of investigating and defending against any claims therefor
and counsel fees incurred in connection therewith), joint or several, as
incurred, which may be based upon the 1933 Act, or any other statute or at
common law, arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), including the information deemed to be part of the Registration
Statement pursuant to Rule 430A(b) of the Rules and Regulations, if applicable,
or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus (including any preliminary
prospectus supplement) or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but only insofar as
any such statement or omission was made in reliance upon, and in conformity
with, written information furnished to the Company by such Underwriter, directly
or through the Representatives, specifically for use in the preparation thereof;
PROVIDED, HOWEVER, that an Underwriter shall not be liable with respect to any
claims made against the Company or any person against whom the action is
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brought unless the Company or such person shall have notified such Underwriter
in writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been served
upon the Company or such person, but failure to notify such Underwriter of such
claim shall not relieve it from any liability which it may have to the Company
or such person otherwise than on account of its indemnity agreement contained in
this paragraph. Such Underwriter shall be entitled to participate at its own
expense in the defense, or, if it so elects, to assume the defense of any suit
brought to enforce any such liability, but, if such Underwriter elects to assume
the defense, such defense shall be conducted by counsel chosen by it. In the
event that any Underwriter elects to assume the defense of any such suit and
retain such counsel, the Company, said officers and directors and any other
Underwriter or Underwriters or controlling person or persons, defendant or
defendants in the suit, shall bear the fees and expenses of any additional
counsel retained by them, respectively. The Underwriter against whom indemnity
may be sought shall not be liable to indemnify any person for any settlement of
any such claim effected without such Underwriter's written consent. In no event
shall the Underwriter against whom indemnity may be sought be liable under this
subsection (b) for fees and expenses of more than one counsel (in addition to
any local counsel) separate from such Underwriter's own counsel for all
indemnified persons in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. This indemnity agreement will be in addition to
any liability which such Underwriter might otherwise have.
(c) No indemnifying party shall, without the prior written consent of the
indemnified party or parties, settle or compromise or consent to the entry of
any judgment with respect to any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 6 is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages, liabilities or expenses (or
actions in respect thereof) referred to herein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses (or actions in
respect thereof), as incurred, in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party, as incurred, in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses (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 Underwriters on the other
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shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault 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 Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
referred to above shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such claim. Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute are several in proportion to their respective underwriting
obligations and not joint.
7. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The
respective indemnities, covenants, agreements, representations, warranties and
other statements of the Company, and of the several Underwriters, as set forth
in this Agreement or made by them, respectively, pursuant to this Agreement,
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or the Company or any of its officers or
directors or any controlling person, and shall survive delivery of and payment
for the Shares.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective obligations
of the several Underwriters hereunder shall be subject to the accuracy, at and
(except as otherwise stated herein) as of the date of this Agreement, the First
Closing Date and the Option Closing Date, of the representations and warranties
made herein by the Company and of the statements of the Company's officers or
directors in any certificates furnished pursuant to the provisions hereof, to
compliance at and as of such First Closing Date or Option Closing Date (if any),
as the case may be, by the Company with its covenants and agreements herein
contained and other provisions hereof to be satisfied at or prior to such First
Closing Date or Option Closing Date, as the case may be, and to the following
additional conditions:
(a) The Registration Statement shall be effective and, at such
Closing Date (i) no stop order suspending the effectiveness thereof shall
have been issued and no proceedings for that purpose shall have been
initiated or, to the knowledge of the
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Company or the Representatives, threatened by the Commission, and any
request for additional information on the part of the Commission (to be
included in the Registration Statement or the Prospectus or otherwise)
shall have been complied with to the reasonable satisfaction of the
Representatives, and (ii) there shall not have come to the attention of the
Representatives any facts that would cause them to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of
the Shares, contained any untrue statement of a material fact or omitted 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. If the Company has elected to rely upon Rule 430A of the Rules
and Regulations, the price of the Shares and any price related information
previously omitted from the Registration Statement pursuant to Rule 430A
shall have been transmitted to the Commission for filing pursuant to Rule
424(b) of the Rules and Regulations within the prescribed time period, and
before the First Closing Date and the Company shall have provided evidence
satisfactory to the Representatives of such timely filing, or a
post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the requirements
of Rule 430A of the Rules and Regulations.
(b) At the date of this Agreement, the Representatives shall have
received from Deloitte & Touche LLP a letter, dated the date of this
Agreement, in form and substance previously approved by the
Representatives, together with signed or reproduced copies of such letter
for each of the Underwriters, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus (including,
without limitation, as to any pro forma financial statements and as to all
historical financial statements of the Company, __________ and __________).
(c) The Representatives shall have received from Deloitte & Touche
LLP a letter dated the First Closing Date to the effect that they reaffirm
the statements made in the letter furnished pursuant to Section 8(b) above,
except that the specified date referred to therein shall be a date not more
than three business days prior to the First Closing Date.
(d) The Representatives shall have received from Xxxxxxx, Procter &
Xxxx LLP, special counsel for the Company, a favorable opinion dated the
First Closing Date, in form and substance satisfactory to the
Representatives, 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 California.
(ii) The Company has the corporate power and authority to own,
lease and operate its properties and conduct its business as described
in the Registration Statement and the Prospectus; and to enter into
and perform its obligations under this Agreement.
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(iii) The Company's operations and business activities, whether
by reason of the ownership or leasing of property or the conduct of
its business, are not such as to require the Company to be qualified
as a foreign corporation to transact business in any other
jurisdiction where the failure to be so qualified or in good standing
would have a material adverse effect on the condition (financial or
otherwise) or the earnings, business affairs or business prospects of
the Company and its Subsidiaries considered as one enterprise.
(iv) Each Subsidiary has been duly organized and is validly
existing and in good standing under the laws of the jurisdiction of
its organization, has power and authority to own, lease and operate
its property and to conduct its business as described in the
Registration Statement and the Prospectus, and is duly qualified to
transact business and is in good standing in each jurisdiction in
which such qualification is required, except where the failure to be
so qualified or in good standing would not have a material adverse
effect on the condition (financial or otherwise) or the earnings,
business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise; and except as otherwise
disclosed in the Registration Statement, all of the issued and
outstanding capital stock of each Subsidiary that is a corporation has
been duly authorized and validly issued, is fully paid and
non-assessable and, to the best of their knowledge, is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity and the Company owns its interests in the Limited Partnerships
and the limited liability company identified in Schedule D hereto free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(v) The authorized, issued and outstanding shares of capital
stock of the Company are as set forth in the Prospectus under the
caption "Capitalization" (except for subsequent issuances, if any, of
Common Stock pursuant to employee benefit plans referred to in the
Prospectus or pursuant to this Agreement); and the shares of issued
and outstanding capital stock outstanding prior to the issuance of the
Shares have been duly authorized and validly issued and are fully-paid
and non-assessable and such shares of capital stock were not issued in
violation of the preemptive or other similar rights of any
securityholder of the Company.
(vi) The Shares have been duly authorized by the Company for
issuance and sale to the Underwriters pursuant to this Agreement and,
when issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth herein, will be validly
issued and fully-paid and non-assessable; and the issuance of the
Shares is not subject to preemptive or other similar rights arising by
operation of law, under the charter or by-laws of the Company or
otherwise.
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(vii) The Common Stock conforms to the description thereof
contained in the Prospectus in all material respects, and the form of
certificate used to evidence the Common Stock is in due and proper
form and complies in all material respects with all applicable
statutory requirements.
(viii) This Agreement has been duly authorized, executed and
delivered by the Company; and the execution, delivery and performance
of this Agreement, the consummation of the transactions herein
contemplated and in the Registration Statement (including the issuance
and sale of the Shares and the use of the proceeds from the sale of
the Shares as described in the Prospectus under the caption "Use of
Proceeds"), and compliance by the Company with its obligations
hereunder, do not and will not whether with or without the giving of
notice or lapse of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined in Section 2(a)(xiii) of
this Agreement) under or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company
or any subsidiary pursuant to any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or any other agreement
or instrument, known to us, to which the Company or any Subsidiary is
a party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any Subsidiary is subject,
nor will such action result in any violation of the provisions of the
charter or bylaws or certificate of limited partnership, agreement of
limited partnership or other similar certificates or agreements, as
the case may be, of the Company or any Subsidiary, or any applicable
law, statute, rule, regulation, judgment, order, writ or decree, known
to us, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any
Subsidiary or any of their respective properties, assets or
operations.
(ix) The Registration Statement is effective under the 1933
Act and, to the best of such counsel's knowledge and information, no
stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act or proceedings therefor initiated
or are pending or threatened by the Commission.
(x) At the time the Registration Statement became effective
and at the date of this Agreement, the Registration Statement and the
Prospectus, and each amendment or supplement to the Registration
Statement and the Prospectus (other than the financial statements and
supporting schedules included therein, as to which no opinion need be
rendered) complied as to form in all material respects with the
requirements of the 1933 Act and the Rules and Regulations; and
nothing has come to such counsel's attention that would lead it to
believe that the Registration Statement, at the time it became
effective or at the date of this Agreement, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of its date
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or at the Closing Date, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that
no statement need be made as to financial statements or supporting
schedules included in the Registration Statement or the Prospectus).
(xi) The documents incorporated or deemed to be incorporated
by reference in the Prospectus (other than the financial statements
and supporting schedules included therein, as to which no opinion need
be rendered), as of the dates they were filed with the Commission (or,
if such incorporated documents were amended, when such amendment was
filed or became effective), complied as to form in all material
respects with the requirements of the 1934 Act and the published rules
and regulations thereunder.
(xii) No filing with, consent, approval, authorization,
license, registration, qualification, decree or order of any court or
governmental authority or agency, domestic or foreign is necessary or
required in connection with the due authorization, execution and
delivery of this Agreement or for the offering, issuance, sale or
delivery of the Shares to the Underwriters, except such as has been
obtained under the 1933 Act or the Rules and Regulations or such as
may be required under state securities laws or real estate syndication
laws.
(xiii) The Company is not, and upon the issuance and sale of the
Shares as contemplated by this Agreement and the application of the
net proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the 1940 Act.
(xiv) The Company is eligible to use a Form S-3 registration
statement under the 1933 Act. The Company is also eligible to use Form
S-3 pursuant to the standards for that form in effect prior to October
21, 1992.
(xv) The Company has all legal right, power and authority
necessary to qualify as a "real estate investment trust" under the
Code; the Company currently is organized in conformity with, the
requirements for qualification as a "real estate investment trust"
under the Code; the Company has qualified as a "real estate investment
trust" for its fiscal years ending December 31, 1993, December 31,
1994 and December 31, 1995 (the years, to the best knowledge of
counsel, that are still subject to audit by the Internal Revenue
Service); the Company is organized and operates in a manner that will
enable it to qualify to be taxed as a "real estate investment trust"
under the Code for its taxable year ending December 31, 1996 and
thereafter provided the Company continues to meet the requirements of
the Code necessary for the Company to qualify as a "real estate
investment trust".
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(xvi) The information in the Prospectus under the captions
"Federal Income Tax Considerations" and "Description of Common Stock",
to the extent that it constitutes matters of law, summaries of legal
matters, the Company's charter or by-laws or legal proceedings, or
legal conclusions, is correct in all material respects; and the
opinion of such counsel under the caption "Federal Income Tax
Considerations" is confirmed.
(xvii) There is not pending or threatened any action, suit,
proceeding, inquiry or investigation, to which the Company or any
Subsidiary is a party or to which the property or assets of the
Company or any Subsidiary is subject, before or brought by any court
or any governmental agency or body, domestic or foreign, which might
reasonably be expected to result in a material adverse effect on the
condition (financial or otherwise) or the earnings, business affairs
or business prospects of the Company and its Subsidiaries considered
as one enterprise, or which might reasonably be expected to materially
and adversely affect a material amount of the properties or assets
thereof or the consummation of the transactions contemplated in this
Agreement or the performance by the Company of its obligations
hereunder.
(xviii) There are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or in the
documents incorporated by reference therein or to be filed as exhibits
thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, the descriptions
thereof or references thereto are correct in all material respects,
and, no default exists in the due performance or observance of any
obligation, agreement, covenant or condition contained in any material
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument so described,
referred to or filed or incorporated by reference and all descriptions
in the Registration Statement of contracts and other documents to
which the Company or its Subsidiaries are a party are accurate in all
material respects.
(xix) Each of the Limited Partnerships listed in Schedule D to
this Agreement was validly formed and validly exists as a partnership
for purposes of the laws of the State of California and for purposes
of the Code, and is for both state and federal tax purposes a
partnership, and Ladera Center Associates, LLC was validly formed and
validly exists as a limited liability company for purposes of the laws
of the State of Delaware and for purposes of the Code, and is for both
state and federal tax purposes a limited liability company.
(xx) To the best of such counsel's knowledge, there are no
statutes or regulations that are required to be described in the
Prospectus that are not described as required herein.
(xxi) To the best of such counsel's knowledge, neither the
Company nor any Subsidiary is in violation of its charter or bylaws or
certificate of
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limited partnership, agreement of limited partnership or other similar
certificates or agreements.
In giving their opinion, Xxxxxxx, Procter & Xxxx LLP may rely (i) as
to the qualification of the Company and its Subsidiaries to do business in
any state or jurisdiction, upon certificates of appropriate government
officials, (ii) as to matters of fact, upon certificates and written
statements of officers of and accountants for the Company, and (iii) as to
matters arising under the laws of the State of California, upon the opinion
of Loeb & Loeb LLP delivered pursuant to Section 8(e) hereof.
(e) The Representatives have received from Loeb & Loeb LLP,
California counsel for the Company, a favorable opinion dated the First
Closing Date, in form and substance satisfactory to the Representatives, as
to the matters contained in paragraphs (i) through (viii) inclusive and
paragraph (xix) of Section 8(d) and further to the effect that:
(i) Each of the Limited Partnerships is a partnership for
California state income tax purposes under the applicable laws and
regulations of the State of California.
In giving their opinion, Loeb & Loeb LLP may rely as to matters of
fact, upon certificates and written statements of officers of and
accountants for the Company.
(f) The Representatives shall have received from Xxxxx & Xxxx LLP,
counsel for the Underwriters, their favorable opinion or opinions dated the
First Closing Date with respect to the organization of the Company, the
validity of the Shares, this Agreement, the Registration Statement, the
Prospectus and such other related matters as the Representatives may
require, and the Company shall have furnished to such counsel such
documents as they may request for the purpose of enabling them to pass upon
such matters.
(g) At the First Closing Date (i) the Registration Statement and the
Prospectus shall contain all statements which are required to be stated
therein in accordance with the 1933 Act and the Rules and Regulations and
in all material respects shall conform to the requirements of the 1933 Act
and the Rules and Regulations, and neither the Registration Statement nor
the Prospectus shall contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and no action, suit or
proceeding at law or in equity shall be pending or, to the knowledge of the
Company, threatened against the Company or any of its Subsidiaries which
would be required to be set forth in the Registration Statement or the
Prospectus other than as set forth therein, (ii) there shall not have been,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus (which term, as used in this
clause (ii), means the Prospectus in the form first used to confirm sales
of the Shares), any material adverse change in the condition (financial or
otherwise) or the earnings, business affairs or business prospects of the
Company and its Subsidiaries
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considered as one enterprise, whether or not arising in the ordinary course
of business, from that set forth in the Registration Statement and the
Prospectus, (iii) no proceeding shall be pending or, to the knowledge of
the Company, threatened against the Company or any of its Subsidiaries
before or by any federal, state or other court, commission, board or
administrative agency wherein an unfavorable decision, ruling or finding
would materially and adversely affect the business, property, financial
condition or income of the of the Company and its Subsidiaries considered
as one enterprise other than as set forth in the Registration Statement and
the Prospectus, (iv) neither the Company nor any of its Subsidiaries shall
be in default in the performance or observance of any contract to which it
is a party, except such defaults that would not have a material adverse
effect on the condition (financial or otherwise) of the Company and its
Subsidiaries considered as one enterprise or the earnings, business affairs
or business prospects of the Company and its Subsidiaries considered as one
enterprise, (v) no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act and no
proceeding therefor shall have been instituted or threatened by the
Commission and (vi) the Representatives shall have received, at such First
Closing Date, a certificate of the President and the Chief Financial
Officer of the Company, dated as of the First Closing Date, evidencing
compliance with the appropriate provisions of this subsection (g).
(h) The Representatives shall have received a certificate, dated the
First Closing Date, of the President and the Chief Financial Officer of the
Company to the effect that the representations and warranties of the
Company contained in Section 2(a) are true and correct with the same force
and effect as though expressly made at and as of the First Closing Date.
(i) The Company shall have furnished to the Representatives such
additional certificates as the Representatives may have reasonably
requested as to the accuracy, at and as of the relevant Closing Date, of
the representations and warranties made herein by the Company, as to
compliance at and as of such Closing Date by the Company with its covenants
and agreements herein contained and other provisions hereof to be satisfied
at or prior to such Closing Date and as to other conditions to the
obligations of the Underwriters hereunder.
(j) At the date of this Agreement, the Representatives shall have
received an agreement substantially in the form of Exhibit A hereto signed
by the persons listed on Schedule C hereto.
(k) In the event the Underwriters exercise the option granted in
Section 3 hereof to purchase all or any portion of the Optional Shares, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any of its
officers or directors hereunder shall be true and correct as of the Option
Closing Date, and the Representatives shall have received:
(i) A letter from Deloitte & Touche LLP in form and substance
satisfactory to the Representatives and dated the Option Closing Date,
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substantially the same in scope and substance as the letter furnished
to the Representatives pursuant to Section 8(b), except that the
specified date in the letter furnished pursuant to this Section
8(k)(i) shall be a date not more than five days prior to the Option
Closing Date.
(ii) The favorable opinion of Xxxxxxx, Procter & Xxxx LLP,
counsel for the Company, in form and substance satisfactory to the
Representatives, dated the Option Closing Date, relating to the
Optional Shares and otherwise to the same effect as the opinion
required by Section 8(d).
(iii) The favorable opinion of Loeb & Loeb LLP, California
counsel for the Company, in form and substance satisfactory to the
Representatives, dated the Option Closing Date, relating to the
Optional Shares and otherwise to the same effect as the opinion
required by Section 8(e).
(iv) The favorable opinion of Xxxxx & Xxxx LLP, counsel for the
Underwriters, dated the Option Closing Date, relating to the Optional
Shares and otherwise to the same effect as the opinion required by
Section 8(f).
(v) A certificate, dated the Option Closing Date, of the
President and the Chief Financial Officer of the Company confirming
that the certificate or certificates delivered at the First Closing
Date pursuant to Section 8(g) and Section 8(h) remains or remain true
as of the Option Closing Date.
(vi) Such additional certificates, dated the Option Closing
Date, as the Representatives may have reasonably requested pursuant to
section 8(i).
If any of the conditions hereinabove provided for in this Section 8 shall
not have been satisfied when and as required by this Agreement, this Agreement
may be terminated by the Representatives by notifying the Company of such
termination in writing or by telegram or telecopy at or prior to the First
Closing Date, but the Representatives shall be entitled to waive any of such
conditions.
9. TERMINATION. This Agreement may be terminated by the Representatives
by notice to the Company at or prior to the First Closing Date and the
obligations of the Underwriters to purchase Optional Shares on any Option
Closing Date which occurs after the First Closing Date may be terminated by the
Representatives by notice to the Company prior to such Option Closing Date, if,
(i) trading in the Common Stock has been suspended or materially limited by the
Commission or the New York Stock Exchange or any other governmental authority or
if trading generally on the New York or American Stock Exchanges or the Nasdaq
National Market shall have been suspended or materially limited or minimum or
maximum prices or maximum price ranges shall have been established on either
such exchange, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority or a
banking moratorium shall have been declared by New York, California or United
States authorities, (ii) there shall have been any
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material adverse change in the financial markets in the United States or any
outbreak or escalation of hostilities or any insurrection, armed conflict or
other calamity or crisis or any change or development involving a prospective
change in national or international political, financial or economic conditions,
in any such case the effect of which is such as to make it, in the judgment of
the Representatives, impracticable or inadvisable to offer, sell or deliver the
Shares to be purchased by the Underwriters on such Closing Date on the terms
contemplated by the Prospectus or this Agreement, (iii) there shall have been
since the time of execution of this Agreement or since the respective dates as
of which information is given in the Prospectus, any material adverse change in
the condition (financial or otherwise) or in the earnings, business affairs or
business prospects of the Company and its Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, which, in
the judgment of the Representatives, makes it impracticable or inadvisable to
offer, sell or deliver the Shares to be purchased by the Underwriters on such
Closing Date on the terms contemplated by the Prospectus or this Agreement or
(iv) if there shall be any litigation, pending or threatened, which, in the
judgment of the Representatives, makes it impracticable or inadvisable to offer,
sell or deliver the Shares on the terms contemplated by the Prospectus or this
Agreement. As used in this Section 9, the term "Prospectus" means the Prospectus
in the form first used to confirm sales of Shares.
10. REIMBURSEMENT OF UNDERWRITERS. Notwithstanding any other provisions
hereof, if this Agreement shall be terminated by the Representatives under
Section 8, Section 9 or Section 12, the Company will bear and pay the expenses
specified in Section 5 hereof and, in addition to its obligations pursuant to
Section 6 hereof, except when the Representatives terminate this Agreement
pursuant to clauses (i) or (ii) of Section 9, the Company will reimburse the
reasonable out-of-pocket expenses of the several Underwriters (including
reasonable fees and disbursements of counsel for the Underwriters) incurred in
connection with this Agreement and the proposed purchase and offers of the
Shares, and promptly upon demand the Company will pay such amounts to you as
Representatives. In addition, the provisions of Section 6 hereof will survive
any termination of this Agreement.
11. DEFAULT BY UNDERWRITERS. If any Underwriter or Underwriters shall
default in its or their obligations to purchase any of the Shares which it or
they are obligated to purchase under this Agreement on the First Closing Date
(including, without limitation, any Optional Shares to be purchased on the First
Closing Date), and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total number of Shares which the Underwriters are obligated to purchase at
the First Closing Date, the other Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Shares
which such defaulting Underwriter or Underwriters agreed but failed to purchase.
If any Underwriter or Underwriters shall so default and the aggregate number of
Shares with respect to which such default or defaults occur is more than 10% of
the total number of Shares which the Underwriters are obligated to purchase on
the First Closing Date and arrangements satisfactory to the Representatives and
the Company for the purchase of such Shares by other persons are not made within
48 hours after such default, this Agreement shall terminate.
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If the remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the Shares of a defaulting Underwriter
or Underwriters as provided in this Section 11, (i) the Company shall have the
right to postpone the First Closing Date for a period of not more than five full
business days, in order that the Company may effect whatever changes may thereby
be made necessary in the Registration Statement or the Prospectus, or in any
other documents or arrangements, and the Company agrees promptly to file any
amendments to the Registration Statement or supplements to the Prospectus which
may thereby be made necessary, and (ii) the respective numbers of Firm Shares to
be purchased by the remaining Underwriters or substituted Underwriters shall be
taken as the basis of their underwriting obligation for all purposes of this
Agreement. Nothing herein contained shall relieve any defaulting Underwriter of
its liability to the Company or the Underwriters for damages occasioned by its
default hereunder. Any termination of this Agreement pursuant to this Section 11
shall be without liability on the part of any non-defaulting Underwriter or the
Company, except for expenses to be paid or reimbursed pursuant to Section 5 and
except for the provisions of Section 6.
12. DEFAULT BY THE COMPANY. If the Company shall fail at the First
Closing Date to sell and deliver the number of Shares which it is obligated to
sell hereunder, then this Agreement shall terminate without any liability on the
part of any non-defaulting party. No action taken pursuant to this Section shall
relieve the Company from liability, if any, in respect of such default.
13. NOTICES. All communications hereunder shall be in writing and, if
sent to the Underwriters shall be mailed, delivered or telecopied and confirmed
to you, as their Representatives c/o ____________________ at
__________________ , _________________ , _________________ ____________,
Attention: ____________________, except that notices given to an Underwriter
pursuant to Section 6 hereof shall be sent to such Underwriter at the address
furnished by the Representatives or, if sent to the Company shall be mailed,
delivered or telecopied and confirmed at Xxxxxxx Pacific Properties, Inc., 000
Xxxx Xxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxx.
14. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the several Underwriters, the Company and their respective
successors and legal representatives. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person other than the
persons mentioned in the preceding sentence 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 the representations, warranties,
covenants, agreements and indemnities of the Company contained in this Agreement
shall also be for the benefit of the person or persons, if any, who control any
Underwriter or Underwriters within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, and the indemnities of the several Underwriters
shall also be for the benefit of each director of the Company, each of the
Company's officers who has signed the Registration Statement and the person or
persons, if any, who control the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act.
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15. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in said state. Unless otherwise expressly stated, specified
times of day refer to New York City time.
16. AUTHORITY OF THE REPRESENTATIVES. In connection with this Agreement,
the Representatives will act for and on behalf of the several Underwriters, and
any action taken under this Agreement by the Representatives jointly as
representatives of the several Underwriters, will be binding on all the
Underwriters.
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If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding agreement between us.
Very truly yours,
XXXXXXX PACIFIC PROPERTIES, INC.
By:
-------------------------------
Name:
Title:
Accepted and delivered, as of the date first above written:
------------------------
------------------------
------------------------
------------------------
BY:
-------------------
By:
---------------------------------------
Authorized Signature
Acting on their own behalf and as Representatives of the several
Underwriters referred to in the foregoing Agreement.
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SCHEDULE A
Number of
Firm Shares
to be
Purchased
-----------
. . . . . . . . . . . . . . . . . ,000
-------------------- ---
. . . . . . . . . . . . . . . . . ,000
-------------------- ---
. . . . . . . . . . . . . . . . . ,000
-------------------- ---
. . . . . . . . . . . . . . . . . ,000
-------------------- ---
--------
Total. . . . . . . . . . . . . . . . . . . . . . . . .
--------
Sch. A-1
33
SCHEDULE B
1. The initial public offering price per share for the Shares shall be
$__________.
2. The purchase price per share for the Shares to be paid by the several
Underwriters shall be $__________, being an amount equal to the initial public
offering price set forth above less $__________ per share; provided that the
purchase price per share for any Optional Shares purchased upon the exercise of
the over-allotment option described in Section 3 shall be reduced by an amount
per share equal to any dividends or distributions declared by the Company and
payable on the Firm Shares but not payable on the Optional Shares.
Sch. B-1
34
SCHEDULE C
[List of persons and entities subject to lock-up]
Sch. C-1
35
SCHEDULE D
Subsidiaries of the Company
Wholly-Owned Corporate Subsidiaries of the Company:
BPP/Valley Central, Inc. (Delaware)
BPP/Xxxxx, Inc. (California)
Partnerships in which the Company holds interests:
BPP/Richmond L.P. (California)
BPP/Xxxxx X.X. (California)
BPP/Hilltop L.P. (California)
BPP/Pleasant Xxxx X.X. (California)
BPP/Van Ness L.P. (California)
BPP/East Palo Alto L.P. (California)
BPP/Valley Central L.P. (California)
BPP/Cameron Park L.P. (California)
BPP/Xxxxx X.X. (California)
Limited Liability Company in which the Company holds an interest:
Ladera Center Associates, LLC (Delaware)
Sch. D-1
36
Exhibit A
[Form of lock-up agreement]
, 1997
--------------------
----------------------------
----------------------------
----------------------------
----------------------------
as Representatives of the several
Underwriters to be named in the
within-mentioned Underwriting Agreement
c/o
----------------------
----------------------
----------------------
Re: PROPOSED PUBLIC OFFERING BY XXXXXXX PACIFIC PROPERTIES, INC.
Ladies and Gentlemen:
The undersigned, a stockholder and an officer and/or director of Xxxxxxx
Pacific Properties, Inc., a California corporation (the "Company"), understands
that ____________________, ____________________, ____________________ and
____________________, as representatives of the several underwriters, propose to
enter into an Underwriting Agreement (the "Underwriting Agreement") with the
Company providing for the public offering of shares (the "Shares") of the
Company's common stock, no par value per share (the "Common Stock"). In
recognition of the benefit that such an offering will confer upon the
undersigned as a stockholder and an officer and/or director of the Company, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned agrees with each underwriter to be
named in the Underwriting Agreement that, during a period of 90 days from the
date of the Underwriting Agreement, the undersigned will not, without the prior
written consent of ____________________, directly or indirectly, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of, or otherwise dispose of or transfer any shares of the Company's
Common Stock or any securities convertible into or exchangeable or exercisable
for Common Stock, whether now owned or hereafter acquired by the undersigned or
with respect to which the undersigned has or hereafter acquires the power of
disposition, or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic
A-1
37
consequence of ownership of the Common Stock, whether any such swap or other
agreement or transaction is to be settled by delivery of Common Stock or other
securities, in cash or otherwise.
Very truly yours,
Signature:
------------------------
Print Name:
-----------------------
A-2
