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XXXXXXX REAL ESTATE, INC.
Up to $60,000,000 in Gross Proceeds
from the Sale of Shares
of
Common Stock
($0.01 Par Value)
UNDERWRITING AGREEMENT
October 21, 1997
PAINEWEBBER INCORPORATED
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
Xxxxxxx Real Estate, Inc., a Maryland corporation (the
"Company"), confirms its agreement with you as follows:
1. DESCRIPTION OF DISTRIBUTION PROGRAM. As of the date hereof,
the Company has authorized the issuance and sale from time to time under the
terms and subject to the conditions of this Agreement of up to $60,000,000 in
gross proceeds from the sale of shares of its Common Stock, $0.01 par value (the
"Common Stock"). Subject to the terms and conditions of this Agreement, you have
agreed to purchase such shares (referred to herein as the "Securities") as
underwriter for resale by you to investors.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to you as follows:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form
S-3 (No. 333-28167) for the registration of shares of Common Stock,
including the Securities, and other equity securities of the Company,
under the Securities Act of 1933, as amended (the "1933 Act"), and the
offering thereof from time to time in accordance with Rule 415 of the
rules and regulations of the Commission under the 1933 Act (the "1933
Act Rules and Regulations"). Such registration statement has been
declared effective by the Commission. Such registration statement and
the prospectus constituting a part thereof, as from time to time
amended or supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or the
1933 Act or otherwise, is referred to herein as the "Registration
Statement." A
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prospectus supplement (the "Prospectus Supplement") setting forth the
terms of the offer and sale of the Securities contemplated by this
Agreement, and additional information concerning the Company and its
business has been or will be prepared and will be filed by the Company
pursuant to Rule 424(b) of the 1933 Act Rules and Regulations, on or
before the second business day after it is first used in connection
with the offer and sale of Securities under this Agreement (or such
earlier time as may be required by the 1933 Act Rules and Regulations).
The final form of prospectus included in the Registration Statement, as
supplemented by the Prospectus Supplement, is referred to herein as the
"Prospectus," except that if any revised prospectus, whether or not
such revised prospectus is required to be filed by the Company pursuant
to Rule 424(b) of the 1933 Act Rules and Regulations, or Pricing
Supplement (as herein defined) shall be provided to you by the Company
for use in connection with the offer and sale of any of the Securities
under this Agreement, the term "Prospectus" shall refer to such revised
prospectus and Pricing Supplement from and after the time such
documents are first provided to you for such use.
(b) The Registration Statement and the Prospectus, at
the time the Registration Statement became effective and at each time
thereafter at which an Annual Report on Form 10-K, a Quarterly Report
on Form 10-Q or a Current Report on Form 8-K was filed by the Company
with the Commission, complied, and as of each applicable Representation
Date (as herein defined) will comply, in all material respects with the
requirements of the 1933 Act and the 1933 Act Rules and Regulations;
the Registration Statement, at the time it became effective and at each
time thereafter at which a Quarterly Report on Form 10-Q or a Current
Report on Form 8-K was filed by the Company with the Commission, did
not, and at each time thereafter at which any amendment to the
Registration Statement becomes effective or any Annual Report on Form
10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K is
filed by the Company with the Commission and as of each Representation
Date, will not, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and the Prospectus, as of
the date hereof, does not, and as of each Representation Date will not,
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus relating to you and made in
reliance upon and in conformity with information
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furnished to the Company in writing by you expressly for use in the
Registration Statement or Prospectus.
(c) The documents incorporated by reference in the
Registration Statement and the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply, as
the case may be, in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission thereunder
(the "1934 Act Rules and Regulations"), and, when read together with
the other information in the Registration Statement and the Prospectus,
at the time the Registration Statement became effective, as of each
Representation Date or during the period specified in Section 4(c)
hereof, did not and will not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) The financial statements of the Company set forth
or incorporated by reference in the Registration Statement and
Prospectus fairly present the financial condition of the Company as of
the dates indicated and the results of operations and changes in
financial position for the periods therein specified in conformity with
generally accepted accounting principles consistently applied through
the periods involved (except as otherwise stated therein). The summary
financial, pro forma financial and statistical data included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the information shown therein and, to the
extent based upon or derived from the financial statements, have been
compiled on a basis consistent with the financial statements presented
therein. No other financial statements are required to be set forth in
the Registration Statement or the Prospectus under the 1933 Act or the
1933 Act Rules and Regulations.
(e) The only subsidiaries (as defined in the 1933 Act
Rules and Regulations) of the Company are the subsidiaries listed on
Schedule A hereto (the "Subsidiaries") which includes Xxxxxxx Operating
Limited Partnership, a Delaware limited partnership (the
"Partnership"). The Company and each of its Subsidiaries has been duly
incorporated or formed, as the case may be, and is an existing
corporation or general or limited partnership, as the case may be, in
good standing under the laws of its jurisdiction of incorporation or
formation, as the case may be. The Company and each of its Subsidiaries
has full power and authority (corporate and other) to conduct its
business as described in the Registration Statement and Prospectus, and
is duly qualified to do business in each jurisdiction in which it owns
or leases
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real property or in which the conduct of its business requires such
qualification, except where the failure to be so qualified, considering
all such cases in the aggregate, does not involve a material risk to
the business, properties, financial position or results of operations
of the Company; and, other than the Subsidiaries, the Company owns no
material amounts of stock or beneficial interest in any corporation,
partnership, joint venture or other business entity and does not own
10% or more of the outstanding voting stock of any entity separately
taxable as a corporation under the Internal Revenue Code of 1986, as
amended (the "Code").
(f) The Securities have been duly authorized and are,
or when issued as contemplated hereby will be, validly issued, fully
paid and non-assessable by the Company and conform, or when so issued
will conform, to the description thereof in the Prospectus. The
stockholders of the Company have no preemptive rights with respect to
the Securities. All of the partnership interests of the Partnership
have been duly and validly authorized and issued and are fully paid and
approximately 95% of such partnership interests are owned of record and
beneficially by the Company free and clear of all liens, encumbrances,
equities or claims.
g) Except as contemplated in the Prospectus,
subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, the Company and its
Subsidiaries have not incurred any liabilities or obligations, direct
or contingent, or entered into any transactions, not in the ordinary
course of business, that are material to the Company and its
Subsidiaries on a consolidated basis, and there has not been any
material change in the capital stock, short-term debt or long-term debt
of the Company and its Subsidiaries, or any material adverse change, or
any development involving a prospective material adverse change, in the
condition (financial or other), business, prospects, net worth or
results of operations of the Company and its Subsidiaries on a
consolidated basis.
(h) Except as set forth in the Prospectus, there is
not pending or, to the knowledge of the Company, threatened any action,
suit or proceeding to which the Company or any of its Subsidiaries is a
party, before or by any court or governmental agency or body, that
might result in any material adverse change in the condition (financial
or other), business, prospects, net worth or results of operations of
the Company and its Subsidiaries, or might materially and adversely
affect the properties or assets thereof.
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(i) There are no contracts or documents of the
Company that are required to be filed as exhibits to the Registration
Statement or to any of the documents incorporated by reference therein
by the 1933 Act or the 1934 Act or by the 1933 Act or 1934 Act Rules
and Regulations that have not been so filed.
(j) The performance of this Agreement and the
consummation of the transactions herein contemplated will not result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any agreement or instrument to
which the Company is a party or by which it is bound or to which any of
the property of the Company is subject, the Company's charter or
by-laws, or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
properties; no consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance or sale of the Securities by the Company,
except such as may be required under the 1933 Act or state securities
laws; and the Company has full power and authority to authorize, issue
and sell the Securities as contemplated by this Agreement, free of any
preemptive rights.
(k) The Company has complied in all respect with all
laws, regulations and orders applicable to it or its respective
businesses; the Company is not in default under any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement, bond
debenture, note agreement or the evidence of indebtedness, lease,
contract or other agreement or instrument to which it is a party or by
which it or any of its properties are bound, violation of which would
individually or in the aggregate have a material adverse effect on the
Company, and no other party under any such agreement or instrument to
which the Company is a party is, to the knowledge of the Company, in
default in any material respect thereunder; and the Company is not in
violation of its charter or by-laws.
(l) Except as described in the Prospectus, and except
for defects or exceptions that are not material in relation to the
business of the Company, its Subsidiaries and Related Entities: the
Company, each of its Subsidiaries and any partnership or joint venture
in which such party is a participant (a "Related Entity") have good and
marketable title to all properties and assets, owned by them free and
clear of all liens, charges, encumbrances or restrictions; the Company,
its Subsidiaries and Related Entities have valid, subsisting and
enforceable (subject to limitations on enforceability of the type set
forth in the following Section 2(x) below) leases for the properties
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described in the Prospectus as leased by them; no tenant under any of
the leases pursuant to which the Company, its Subsidiaries and Related
Entities lease their properties has an option or right of first refusal
to purchase the premises demised under such lease; the use and
occupancy of each of the properties of the Company, its Subsidiaries
and Related Entities complies in all material respects with all
applicable codes and zoning laws and regulations; the Company, its
Subsidiaries and Related Entities have no knowledge of any pending or
threatened condemnation or zoning change that will in any material
respect affect the size of, use of, improvement of, construction on, or
access to any of the properties of the Company, its Subsidiaries or
Related Entities; and the Company, its Subsidiaries and Related
Entities have no knowledge of any pending or threatened proceeding or
action that will in any manner materially affect the size of, use of,
improvements on, construction on, or access to any of the properties of
the Company, its Subsidiaries or Related Entities.
(m) Title insurance in favor of the mortgagee, the
Company, its Subsidiaries and Related Entities is maintained with
respect to each of the properties owned by the Company, its
Subsidiaries and Related Entities in an amount at least equal to the
greater of (i) the cost of acquisition of such property and (ii) the
cost of construction by the Company, its Subsidiaries or Related
Entities of the improvements located on such property (measured at the
time of such construction), except, in each case, where the failure to
maintain such title insurance would not have a material adverse effect
on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company, its Subsidiaries and
Related Entities taken as a whole.
(n) The mortgages and deeds of trust encumbering the
properties and assets described in the Prospectus are not convertible
nor does the Company or the Partnership hold a participating interest
therein.
(o) Except as set forth in the Prospectus, neither
the Company nor any of its Subsidiaries has any knowledge of (i) the
unlawful presence of any hazardous substances, hazardous materials,
toxic substances or waste materials (collectively, "Hazardous
Materials") on any of the properties owned by each of them, or (ii) any
unlawful spills, releases, discharges or disposal of Hazardous
Materials that have occurred or are presently occurring off such
properties as a result of any construction on or operation and use of
such properties, which presence or occurrence 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 taken as whole. In connection
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with the construction on or operation and use of the properties owned
by the Company and its Subsidiaries, the Company and each of its
Subsidiaries represents that, as of the date of this Agreement, it has
no knowledge of any failure to comply with all applicable local, state
and federal environmental laws, regulations, ordinances and
administrative and judicial orders relating to the generation,
recycling, sale, storage, handling, transport and disposal of any
Hazardous Materials, which failure 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 taken
as a whole.
(p) Property and casualty insurance in favor of each
of the Company and its Subsidiaries is maintained with respect to each
of the properties owned by each of them in an amount and on such items
as is reasonable and customary for businesses of this type.
(q) No holder of outstanding shares of capital stock
of the Company has any rights to the registration of shares of capital
stock of the Company which would or could require such securities to be
included in the Registration Statement.
(r) The Company has filed all federal, state and
foreign income tax returns which have been required to be filed and has
paid all taxes indicated by said returns and all assessments received
by it to the extent that such taxes have become due.
(s) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body necessary in connection with
the execution and delivery by the Company of this Agreement and the
consummation of the transactions herein contemplated (except such
additional steps as may be required by the National Association of
Securities Dealers, Inc. (the "NASD") or by the New York Stock Exchange
(the "NYSE"), or as may be necessary under state securities laws) has
been obtained or made and is in full force and effect.
(t) The Company holds all material licenses,
certificates and permits from governmental authorities which are
necessary to the conduct of its business; and the Company has not
infringed any patents, patent rights, trade names, trademarks or
copyrights, which infringement is material to the business of the
Company as a whole.
(u) For all applicable tax years as to which the
Company's tax returns are subject to audit and the
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Company is subject to assessment for taxes reportable therein, the
Company has continuously been organized and operating in conformity
with the requirements for qualification as a real estate investment
trust under the Code. The Company's method of operation will permit it
to continue to meet the requirements for taxation as a real estate
investment trust under the Code. The Company has no intention of
changing its operations or engaging in activities which would adversely
affect its ability to qualify, or make economically undesirable its
continued qualification as, a real estate investment trust.
(v) Neither the Company nor any Subsidiary is an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended.
(w) The Securities have been approved for listing
upon official notice of issuance on the NYSE.
(x) Each of the partnership and joint venture
agreements to which the Company or any of its Subsidiaries is a party,
and which relates to real property described in the Prospectus, has
been duly authorized, executed and delivered by such applicable party
and constitutes the valid agreement thereof, enforceable in accordance
with its terms, except to the extent that enforcement thereof may be
limited by (1) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally and (2) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in
equity) and the executing, delivery and performance of any of such
agreements did not and will not, at the time of execution and delivery,
and does not and will not constitute a breach of, or a default under,
the charter, partnership agreement or bylaws of the Company or any of
its Subsidiaries or any material contract, lease or other instrument to
which the Company or any of its Subsidiaries is a party or to which any
of their property may be bound or any law, administrative regulation or
administrative or court decree.
3. PURCHASE, SALE AND DELIVERY OF SECURITIES. In order for you
to become obligated to purchase Securities from the Company, as underwriter,
under this Agreement, the Company shall deliver to you not later than 4:30 p.m.
New York time on any NYSE trading day (the "Notice Date") a Securities Purchase
Notice in substantially the form of Exhibit I hereto. On the Notice Date, in
addition to sending the Securities Purchase Notice in accordance with Section 11
of this Agreement, the Company shall, not later than [4:30 p.m.] New York time,
also make a telephone call to the office of each individual listed in such
Section 11 as a recipient of notices on your behalf. On the basis of the
representations, warranties and agreements contained herein, but
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subject to the terms and conditions set forth herein, the Company agrees to
issue and sell to you, and you agree to purchase from the Company, as
underwriter, the Securities specified in the Securities Purchase Notice at a
purchase price equal to the closing price of the shares of Common Stock as
reported on the composite tape of the NYSE (a "Closing Price") on the NYSE
trading date following the Notice Date minus an underwriting discount which
shall be specified in the applicable Pricing Supplement relating to the
Securities specified in such Securities Purchase Notice and which shall not
exceed 4.25% (or 4.0% for the first purchase made under this Agreement)(the
applicable discount rate being referred to herein as the "Discount Rate");
PROVIDED, HOWEVER, that if on the business day immediately following the Notice
Date the Common Stock would not qualify as Actively-Traded Securities within the
meaning of Rule 101(c)(1) of Regulation M under the 1934 Rules and Regulations,
the purchase price shall be based on the Closing Price on the second NYSE
trading day following the Notice Date (the date on which the Closing Price is
used to determine the purchase price, in either case described above, is
referred to herein as the "Securities Pricing Date"). The Company shall not be
permitted to deliver a Securities Purchase Notice to you under this Agreement
within 10 business days following a Related Closing Date for Securities that are
sold hereunder.
Notwithstanding anything to the contrary set forth above:
(a) you shall not be obligated to purchase the
Securities specified in the Securities Purchase Notice if (i) the Dow
Xxxxx Industrial Average at the close of trading on the NYSE on the
Securities Pricing Date declines by 2.0% or more compared to the Dow
Xxxxx Industrial Average at the close of trading on the NYSE on the
Notice Date, (ii) the Closing Price of the Common Stock on the
Securities Pricing Date increases by 4.0% or more compared to the
Closing Price of the Common Stock on the Notice Date, or (iii) you
notify the Company (a "Black-Out Notice"), which you may do not more
frequently than three times during the term of this Agreement, on or
prior to the Securities Pricing Date that you wish to cancel the
Securities Purchase Notice, in which event the Company may not
redeliver a new Securities Purchase Notice for a period of four
business days following the date the Black-Out Notice is given; and
(b) the Company shall not be obligated to sell the
Securities specified in the Securities Purchase Notice if the Closing
Price on the Securities Pricing Date (i) declines by 4.0% or more
compared to the Closing Price on the Notice Date, or (ii) is less than
$18.00.
The Black-Out Notice shall be sent in accordance with Section 11
of this Agreement, and you shall also make a telephone
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call to the office of each individual listed in such Section 11 as a recipient
of notices on the Company's behalf.
Any party relieved of an obligation in accordance with either
clause (a) or (b) above may nevertheless proceed with such obligation by
providing notice to the other party to this Agreement by 9:00 a.m. New York time
on the first business day after the Securities Pricing Date. Such notice shall
be sent in accordance with Section 11 of this Agreement, and the party sending
such notice shall also make a telephone call to the office of each individual
listed in such Section 11 as a recipient of notices on the other party's behalf.
The Securities to be purchased from time to time by you under
this Agreement will be delivered by the Company to you at your office at 1285
Avenue of the Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in accordance with the terms
of this Agreement and against payment of the purchase price therefore by wire
transfer of same day funds payable to the order of the Company in the amount of
the Closing Price for such Securities on the applicable Securities Pricing Date
less the applicable Discount Rate, at 10:00 a.m., New York time, on the fourth
NYSE trading day following the Securities Pricing Date, or at such other time
not later than eight full NYSE trading days thereafter as you and the Company
mutually agree. The time for the closing of a purchase of Securities covered by
a Securities Purchase Notice is referred to herein as the "Related Closing Date"
and the closing with respect to such purchase is referred to herein as the
"Related Closing." The wire transfer referred to above for each purchase of
Securities hereunder shall be made to the bank account designated in writing by
the Company at least one business day prior to the Related Closing Date. If
requested by you, the Securities for each Related Closing will be prepared in
definitive form and in such authorized denominations and registered in such
names as you may request upon at least two business days' prior notice to the
Company and will be made available for checking and packaging at your office at
least one business day prior to the Related Closing Date.
Unless otherwise agreed to by you and the Company, Securities
shall be purchased by you as underwriter for public distribution to investors.
All such purchases under this Agreement shall be deemed to have been made on the
basis of the representations and warranties of the Company herein contained and
shall be subject to the terms and conditions herein set forth. In connection
with the Securities purchased by you hereunder, you may engage the services of
any other broker or dealer in connection with the resale of the Securities and
may allow or reallow any portion of the discount received in connection with
such purchases from the Company to such brokers and dealers.
The purchase price and other terms of the distribution of the
Securities (as applicable) shall be specified in a pricing
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supplement to the Prospectus (each, a "Pricing Supplement") to be prepared in
connection with each Securities Purchase Notice delivered under this Agreement.
Except as you and the Company may otherwise agree, each Securities Purchase
Notice shall cover Securities with gross proceeds to the Company of a minimum of
$5,000,000 and a maximum of $20,000,000. Administrative procedures with respect
to the sale of Securities shall be agreed upon from time to time by you and the
Company (the "Procedures"). You and the Company agree to perform their
respective duties and obligations specifically provided to be performed by them
in the Procedures.
Nothing herein shall be construed as requiring the Company to
issue or sell any Securities to you under this Agreement, except Securities that
are the subject of a Securities Purchase Notice hereunder.
4. COVENANTS. The Company covenants and agrees with you that:
(a) The Company will notify you immediately, and
confirm such notice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the transmittal to the
Commission for filing of any amendment or supplement to the Prospectus
or any document to be filed pursuant to the 1934 Act, (iii) the receipt
of any comments from the Commission with respect to the Registration
Statement or the Prospectus, (iv) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, (v) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose and (vi) any change in the rating assigned by any nationally
recognized statistical rating organization to any debt securities of
the Company or the Partnership or the public announcement by any
nationally recognized statistical rating organization that it has under
surveillance or review, with possible negative implications, its rating
of any debt securities of the Company. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest
possible moment. In addition, the Company will prepare and file with
the Commission, promptly upon your request, any amendments or
supplements to the Registration Statement or the Prospectus that, in
your opinion or the opinion of your counsel, may be necessary or
advisable in connection with your distribution of the Securities.
(b) The Company will give you advance notice of its
intention to file or prepare any amendment to the Registration
Statement or any amendment or supplement to the Prospectus, whether by
filing of documents pursuant to
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the 1934 Act or the 1933 Act or otherwise, and will furnish to you
copies of any such amendment or supplement or other documents proposed
to be filed or used a reasonable time in advance of such proposed
filing or use, as the case may be, and will not file any such amendment
or supplement or other documents in a form to which you or counsel for
you shall reasonably object.
(c) The Company will deliver to you as many signed
and conformed copies of the Registration Statement (as originally
filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) as you reasonably request.
The Company will furnish to you as many copies of the Prospectus (as
amended or supplemented) as you reasonably request so long as you are
required to deliver a Prospectus in connection with sales or
solicitations of offers to purchase the Securities.
(d) The Company will prepare, with respect to any
Securities to be offered and sold pursuant to this Agreement, a Pricing
Supplement with respect to such Securities, which Pricing Supplement
shall meet the requirements of Rule 434 of the 1933 Act Rules and
Regulations and shall otherwise be in a form previously approved and
reasonably acceptable by you and will file such Pricing Supplement
pursuant to Rule 424(b)(7) under the 1933 Act Rules and Regulations not
later than the close of business of the Commission on the second
business day after the applicable Securities Pricing Date on which such
Pricing Supplement is first used.
(e) If at any time during the term of this Agreement
any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for you or counsel for the
Company, to amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein not misleading in the light of the circumstances
existing at the time the Prospectus is delivered to a purchaser of
Securities sold by you as underwriter hereunder, or if it shall be
necessary, in the opinion of either such counsel, to amend or
supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Rules and
Regulations, the Company shall give immediate notice, confirmed in
writing, to you to cease the solicitation of offers to purchase any of
the Securities, and the Company will promptly amend the Registration
Statement and the Prospectus, whether by filing documents pursuant to
the 1934 Act or the 1933 Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the
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Registration Statement and Prospectus comply with such requirements.
(f) On or prior to the date on which there shall be
released to the general public interim financial statement information
related to the Company with respect to each of the first three quarters
of any fiscal year or preliminary financial statement information with
respect to any fiscal year, the Company shall furnish such information
to you, confirmed in writing, and shall cause the Prospectus to be
amended or supplemented to include or incorporate by reference
financial information with respect thereto and corresponding
information for the comparable period of the preceding fiscal year, as
well as such other information and explanations as shall be necessary
for an understanding thereof or as shall be required by the 1933 Act or
the 1933 Act Rules and Regulations.
(g) On or prior to the date on which there shall be
released to the general public financial information included in or
derived from the audited financial statements of the Company for the
preceding fiscal year, the Company shall furnish such information to
you, confirmed in writing, and shall cause the Registration Statement
and the Prospectus to be amended, whether by the filing of documents
pursuant to the 1934 Act or the 1933 Act or otherwise, to include or
incorporate by reference such audited financial statements and the
report or reports, and consent or consents to such inclusion or
incorporation by reference, of the independent accountants with respect
thereto, as well as such other information and explanations as shall be
necessary for an understanding of such financial statements or as shall
be required by the 1933 Act or the 1933 Act Rules and Regulations.
(h) The Company will make generally available to its
security holders as soon as practicable, but not later than 90 days
after the close of the period covered thereby, an earning statement (in
form complying with the provisions of Rule 158 of the 1933 Act Rules
and Regulations) covering each twelve month period beginning, in each
case, not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Securities.
(i) The Company will endeavor, in cooperation with
you, to file any notices or other documents required with respect to
the offer and sale of the Securities under the applicable securities
laws of such states and other jurisdictions of the United States as you
may designate; PROVIDED, HOWEVER, that the Company shall not be
obligated to file any general consent to service of process or to
qualify as a foreign corporation in any
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jurisdiction in which it is not so qualified. The Company will promptly
advise you of the receipt by the Company of any notification by any
governmental authority responsible for administering such laws with
respect to the Securities in any such state or jurisdiction.
(j) The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934
Act in connection with sales of the Securities, will file all documents
required to be filed with the Commission pursuant to Section 13, 14 or
15 of the 1934 Act within the time periods prescribed by the 1934 Act
and the 1934 Act Rules and Regulations.
(k) During the term of this Agreement, the Company
agrees that it will comply with Rule 3-05 and/or Rule 3-14 of
Regulation S-X before each delivery to you of a Securities Purchase
Notice by the Company.
(l) During the term of this Agreement, the Company
will, and will cause all affiliated purchasers within the meaning of
Rule 100 of Regulation M under the 1934 Act to, comply with Regulation
M under the 1934 Act.
(m) During the term of this Agreement, the Company
will not, without your prior written consent, offer or sell, grant any
option for the sale of, or enter into any agreement to sell, any shares
of capital stock of the Company (other than (i) Securities sold
pursuant to this Agreement), (ii) shares issued pursuant to the
Company's Dividend Reinvestment and Optional Share Purchase Plan in
existence (or as authorized to be amended by the Board of Directors) as
of the date of this Agreement, (iii) options granted under and shares
issued pursuant to the Company's Stock Option and Incentive Plan in
existence as of the date of this Agreement, and (iv) shares issued as
consideration for, or upon redemption of any limited partner units of
the Partnership issued in connection with, the acquisition of
properties.
(n) The Company will use its best efforts to meet the
requirements to qualify as a "real estate investment trust" under the
Code for the taxable year in which sales of the Securities are to
occur, unless otherwise specified in the Prospectus.
(o) The Company, whether or not the transactions
contemplated hereunder are consummated or this Agreement is terminated,
(i) will pay the costs and charges of any transfer agent or registrar,
as well as the cost of preparing stock certificates, (ii) will pay all
other expenses incident to the performance of its obligations
hereunder, including, but not limited to, the expenses of printing all
documents relating to the offering and (iii)
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will reimburse you for any filing fee of the NASD relating to the
Securities. If the sale of Securities provided for herein is not
consummated by reason of any failure, refusal or inability on the part
of the Company to perform any of its obligations hereunder, or because
any other condition of your obligations hereunder required to be
fulfilled by the Company is not fulfilled, the Company will reimburse
you for all reasonable out-of-pocket disbursements (including
reasonable fees and disbursements of counsel) incurred by you in
connection with your investigation, preparing to market and marketing
the Securities or in contemplation of performing your obligations
hereunder; but the Company will have no reimbursement obligation solely
because it does not deliver a Securities Purchase Notice with respect
to all or any part of the $60,000,000 of Securities that are the
subject of this Agreement. The Company shall not in any event be liable
to you for loss of anticipated profits from the transactions covered by
this Agreement.
5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS AT THE FIRST RELATED
CLOSING. Your obligation to purchase and pay for the Securities at the first
Related Closing as provided herein shall be subject to the accuracy of the
representations and warranties of the Company herein and to the performance by
the Company of its obligations hereunder and to the following additional
conditions:
(a) You shall have received the opinion of Xxxxxxx,
Procter & Xxxx LLP, counsel for the Company, dated the Related Closing
Date, to the effect that:
(i) The Company and each of its Subsidiaries
has been duly incorporated or formed, as the case may be, and is
validly existing as a corporation or general or limited
partnership, as the case may be, and in good standing under the
laws of its jurisdiction of incorporation or formation, as the
case may be, has full power and authority to conduct its business
as described in the Registration Statement and Prospectus, and is
duly qualified to do business in each jurisdiction in which it
owns or leases real property or in which the conduct of its
business requires such qualification except where the failure to
be so qualified, considering all such cases in the aggregate,
does not involve a material risk to a business, properties,
financial position or results of operations of the Company and
its Subsidiaries taken as a whole;
(ii) The outstanding shares of capital stock of
the Company and the Securities have been duly authorized and are,
or when issued as contemplated hereby will be, fully paid and
nonassessable by the Company and conform, or when so
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issued will conform, to the description thereof in the
Prospectus, and the stockholders of the Company have no
preemptive rights with respect to the Securities. All of the
partnership interests of the Partnership owned by the Company are
owned by the Company free and clear of all liens, charges and
encumbrances;
(iii) The Registration Statement has become
effective under the 1933 Act, the Prospectus Supplement has been
filed as required by Section 2(a) hereof and the Pricing
Supplement has been filed as required by Section 4(d) hereof; and
no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that
purpose shall have been instituted or, to the knowledge of such
counsel or of the Company, threatened by the Commission;
(iv) Each part of the Registration Statement,
when such part became effective, and the Prospectus and any
amendment or supplement thereto, on the date of filing thereof
with the Commission and at the Related Closing Date, complied as
to form in all material respects with the requirements of the
1933 Act and the 1933 Act Rules and Regulations; and such counsel
has no reason to believe that either any part of the Registration
Statement, when such part became effective, 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 and any amendment
or supplement thereto, on the date of filing thereof with the
Commission and at the Closing Date, included an untrue statement
of a material fact or omitted to state a material fact necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the documents
incorporated by reference in the Registration Statement or
Prospectus or any amendment or supplement thereto, when they
became effective under the 1933 Act or were filed with the
Commission under the 1934 Act, as the case may be, complied as to
form in all material respects with the requirements of the 1933
Act or the 1934 Act, as applicable, and the 1933 Act or 1934 Act
Rules and Regulations, as applicable; it being understood that
such counsel need express no opinion as to the financial
statements or other financial data included in any other
documents mentioned in this clause;
(v) The descriptions in the Registration
Statement and Prospectus of statutes, legal and governmental
proceedings, contracts and other documents are accurate and
fairly present the
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information required to be shown; and such counsel does not know
of any statutes or legal or governmental proceedings required to
be described in the Prospectus that are not described as
required, or of any contracts or documents of a character
required to be described in the Registration Statement or
Prospectus (or required to be filed under the 1934 Act if upon
such filing they would be incorporated by reference therein) or
to be filed as exhibits to the Registration Statement that are
not described and filed as required;
(vi) The Company has the corporate power and
authority to enter into this Agreement, and this Agreement has
been duly authorized, executed and delivered by the Company; the
performance of this Agreement and the consummation of the
transactions herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any statute, any agreement or instrument known to
such counsel to which the Company is a party or by which it is
bound or to which any of the property of the Company is subject,
the Company's charter or by-laws, or any order, rule or
regulation known to such counsel of any court of governmental
agency or body having jurisdiction over the Company or any of its
properties; and no consent, approval, authorization or order of,
or filing with, any court or governmental agency or body is
required for the consummation of the transactions contemplated by
this Agreement in connection with the issuance or sale of the
Securities by the Company, except such as have been obtained
under the 1933 Act and such as may be required under state
securities laws in connection with the purchase and distribution
of the Securities by you;
(vii) For all applicable tax years as to which
the Company's tax returns are subject to audit and the Company is
subject to assessment for taxes reportable therein, the Company
has continuously been organized and operated in conformity with
the requirements for qualification as a "real estate investment
trust" under the Code. The Company's method of operation will
permit it to continue to meet the requirements for taxation as a
"real estate investment trust" under the Code. The federal income
tax treatment described in the Prospectus under the caption
"Taxation" is accurate;
(viii) Neither the Company nor any Subsidiary is
an "investment company" within the meaning of the Investment
company Act of 1940, as amended; and
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(ix) The Company is eligible to use a Form S-3
Registration Statement under the 1933 Act Rules and Regulations.
(b) You shall have received from Xxxxxx & Xxxxx, your
counsel, such opinion or opinions, dated the Related Closing Date, with
respect to the organization of the Company, the validity of the
Securities, the Registration Statement, the Prospectus and other
related matters as you reasonably may request, and such counsel shall
have received such papers and information as they request to enable
them to pass upon such matters.
(c) At the time of execution of this Agreement and at
the first Related Closing Date, you shall have received a letter from
KPMG Peat Marwick LLP, dated at the date of delivery thereof, to the
effect set forth in EXHIBIT II hereto.
(d) You shall have received from the Company a
certificate, signed by the president or a vice president and by the
principal financial or accounting officer of the Company, dated the
first Related Closing Date, to the effect that, to the best of their
knowledge based upon reasonable investigation:
(i) The representations and warranties of the
Company in this Agreement are true and correct, as if made at and
as of the Related Closing Date, and the Company has complied with
all the agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to the Related Closing
Date;
(ii) No stop order suspending the effectiveness
of the Registration Statement has been issued, and no proceeding
for that purpose has been instituted or is threatened, by the
Commission; and
(iii) Since the effective date of the
Registration Statement, there has occurred no event required to
be set forth in an amendment or supplement to the Registration
Statement or Prospectus that has not been so set forth, and there
has been no document required to be filed under the 1934 Act and
the 1934 Act Rules and Regulations that upon such filing would be
deemed to be incorporated by reference in the Prospectus that has
not been so filed.
(e) The Securities shall have been duly authorized
for listing by the NYSE upon official notice of issuance.
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(f) On the date hereof and on the first Related
Closing Date, counsel to you shall have been furnished with such
documents and opinions as such counsel may reasonably require for the
purpose of enabling such counsel to pass upon the issuance and sale of
Securities as herein contemplated and related proceedings, or in order
to evidence the accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection with
the issuance and sale of Securities as herein contemplated shall be
satisfactory in form and substance to you and to counsel to you.
(g) To the extent required by its rules, the NASD
shall have approved the underwriting terms and arrangements and such
approval shall not have been withdrawn or limited.
(h) All such opinions, certificates, letters and
other documents will be in compliance with the provisions hereof only
if they are satisfactory in form and substance to you and your counsel.
The Company will furnish you with such conformed copies of such
opinions, certificates, letters and other documents as you shall
reasonably request and the Company shall furnish to you such further
certificates and documents as you shall have reasonably requested.
6. CONDITIONS OF UNDERWRITER'S OBLIGATIONS AT SUBSEQUENT
RELATED CLOSINGS.
Your obligation to purchase and pay for additional Securities
subsequent to the first Related Closing as provided herein shall be subject to
the accuracy of the representations and warranties of the Company herein and to
the performance by the Company of its obligations hereunder, including, but not
limited to, the Company's covenants in Sections 4 and 7, and to the following
additional conditions:
(a) You shall have received from Xxxxxx & Xxxxx, your
counsel, an opinion, substantially similar in substance to the opinion
required by Section 5(b) of this Agreement.
(b) The Securities to be issued and sold subsequent
to the first Related Closing will be duly authorized for listing by the
NYSE upon official notice of issuance.
(c) On the date of any Related Closing Date
subsequent to the first Related Closing, counsel to you shall have been
furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass
upon the issuance and sale of Securities as herein contemplated and
related proceedings, or in order to
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evidence the accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection with
the issuance and sale of Securities subsequent to the first Related
Closing as herein contemplated shall be satisfactory in form and
substance to you and to counsel to you.
7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company agrees with you that following the first Related
Closing Date the following covenants will apply:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES.
Each purchase and sale by you of Securities of the Company under this
Agreement shall be deemed to be an affirmation that the representations
and warranties of the Company contained in this Agreement and in any
certificate theretofore delivered to you pursuant hereto are true and
correct at the time of the applicable Securities Pricing Date and
Related Closing Date, as the case may be, and an undertaking that such
representations and warranties will be true and correct as of such
dates, as though made at and as of such dates (and it is understood
that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to
each such time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time
that (i) the Registration Statement or the Prospectus shall be amended
or supplemented, (ii) there is filed with the Commission any document
incorporated by reference into the Prospectus, or (iii) a Related
Closing occurs (each such date, as well as each Securities Pricing
Date, being referred to as a "Representation Date"), the Company shall
furnish or cause to be furnished to you forthwith a certificate dated
the date of filing with the Commission of such supplement or document,
the date of effectiveness of such amendment, or the date of such sale,
as the case may be, in form satisfactory to you to the effect that the
statements contained in the certificate referred to in Section 5(d)
hereof which were last furnished to you are true and correct at the
time of such amendment, supplement, filing or sale, as the case may be,
as though made at and as of such time (except that such statements
shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of
such certificate, a certificate of the same tenor as the certificate
referred to in Section 5(d) hereof, modified as necessary to relate to
the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate.
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(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time
that (i) the Registration Statement or the Prospectus shall be amended
or supplemented (other than an amendment or Supplement providing solely
for the inclusion of additional financial information), (ii) there is
filed with the Commission any document incorporated by reference into
the Prospectus (other than any Current Report on Form 8-K, unless you
shall otherwise specify), (iii) a Related Closing Date occurs, the
Company shall furnish or cause to be furnished forthwith to you and to
counsel to you the written opinion of Xxxxxxx, Procter & Xxxx LLP,
counsel to the Company, or other counsel reasonably satisfactory to
you, dated the date of filing with the Commission of such supplement or
document, the date of effectiveness of such amendment, or the date of
such sale, as the case may be, in form and substance satisfactory to
you, of the same tenor as the opinion referred to in Section 5(a)
hereof, but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such opinion or, in lieu of such opinion, counsel last
furnishing such opinion to you shall furnish you with a letter
substantially to the effect that you may rely on such last opinion to
the same extent as though it was dated the date of such letter
authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such letter
authorizing reliance); PROVIDED, HOWEVER, that counsel need not render
the opinion required under Section 5(a)(vii) upon the filing of any
Quarterly Report on Form 10-Q which does not include information
relating to such tax matters, unless you shall otherwise specify.
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time
that (i) the Registration Statement or the Prospectus shall be amended
or supplemented to include additional financial information, (ii) there
is filed with the Commission any document incorporated by reference
into the Prospectus which contains additional financial information, or
(iii) a Related Closing Date occurs, the Company shall cause KPMG Peat
Marwick LLP forthwith to furnish to you a letter, dated the date of
effectiveness of such amendment, supplement or document with the
Commission, or the date of such sale, as the case may be, in form
satisfactory to you, of the same tenor as the letter referred to in
Section 5(c) hereof but modified to relate to the Registration
Statement and Prospectus as amended and supplemented to the date of
such letter, and with such changes as may be necessary to reflect
changes in the financial statements and other information derived from
the accounting records of the Company.
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(e) SUBSEQUENT DELIVERY OF REQUESTED DOCUMENTATION.
In accordance with this Agreement, the Company shall provide to you
and/or to your counsel, on a monthly basis, such documents and opinions
as you and/or such counsel may reasonably require for the purpose of
enabling such counsel to pass upon the issuance and sale of Securities
as herein contemplated and related proceedings, or in order to evidence
the continuing accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the covenants or
conditions, herein contained.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company will indemnify and hold harmless you
and your directors, officers, employees and agents and each person, if
any, who controls you within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act from and against any and all losses,
claims, liabilities, expenses and damages (including, but not limited
to, any and all investigative, legal and other expenses reasonably
incurred in connection with, and any and all amounts paid in settlement
of, any action, suit or proceeding between any of the indemnified
parties and any indemnifying parties or between any indemnified party
and any third party, or otherwise, or any claim asserted), as and when
incurred, to which you, or any such person, may become subject under
the 1933 Act, the 1934 Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
liabilities, expenses or damages arise out of or are based on (i) any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus or any
amendment or supplement to the Registration Statement or the Prospectus
or in any documents filed under the 1934 Act and deemed to be
incorporated by reference into the Prospectus, or in any application or
other document executed by or on behalf of the Company or based on
written information furnished by or on behalf of the Company filed in
any jurisdiction in order to qualify the Securities under the
securities laws thereof or filed with the Commission, (ii) the omission
or alleged omission to state in such document a material fact required
to be stated in it or necessary to make the statements in it not
misleading or (iii) any act or failure to act or any alleged act or
failure to act by you in connection with, or relating in any manner to,
the Securities or the offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, liability,
expense or damage arising out of or based upon matters covered by
clause (i) or (ii) above (provided that the Company shall not be liable
under this clause (iii) to the extent it is finally judicially
determined by a court of competent jurisdiction that such loss, claim,
liability, expense or damage resulted
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directly from any such acts or failures to act undertaken or omitted to
be taken by you through gross negligence or willful misconduct);
provided that the Company will not be liable to the extent that such
loss, claim, liability, expense or damage arises from the sale of the
Securities to any person by you and is based on an untrue statement or
omission or alleged untrue statement or omission made in reliance on
and in conformity with information relating to you furnished in writing
to the Company by you expressly for inclusion in the Registration
Statement or the Prospectus.
(b) You will indemnify and hold harmless the Company,
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, each director
of the Company and each officer of the Company who signs the
Registration Statement to the same extent as the foregoing indemnity
from the Company to you, but only insofar as losses, claims,
liabilities, expenses or damages arise out of or are based on any
untrue statement or omission or alleged untrue statement or omission
made in reliance on and in conformity with information relating to you
furnished in writing to the Company by you expressly for use in the
Registration Statement or the Prospectus. This indemnity will be in
addition to any liability that you might otherwise have; PROVIDED,
HOWEVER, that in no case shall you be liable or responsible for any
amount in excess of the underwriting discounts and commissions received
by you.
(c) Any party that proposes to assert the right to be
indemnified under this Section 8 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a
claim is to be made against an indemnifying party or parties under this
Section 8, notify each such indemnifying party of the commencement of
such action, enclosing a copy of all papers served, but the omission so
to notify such indemnifying party will not relieve it from any
liability that it may have to any indemnified party under the foregoing
provisions of this Section 8 unless, and only to the extent that, such
omission results in the forfeiture of substantive rights or defenses by
the indemnifying party. If any such action is brought against any
indemnified party and it notifies the indemnifying party of its
commencement, the indemnifying party will be entitled to participate in
and, to the extent that it elects by delivering written notice to the
indemnified party promptly after receiving notice of the commencement
of the action from the indemnified party, jointly with any other
indemnifying party similarly notified, to assume the defense of the
action, with counsel satisfactory to the indemnified party, and after
notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be
liable to the indemnified party for any legal or
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other expenses except as provided below and except for the reasonable
costs of investigation subsequently incurred by the indemnified party
in connection with the defense. The indemnified party will have the
right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the expense of
such indemnified party unless (i) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying
party, (ii) the indemnified party has reasonably concluded (based on
advice of counsel) that there may be legal defenses available to it or
other indemnified parties that are different from or in addition to
those available to the indemnifying party, (iii) a conflict or
potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to
direct the defense of such action on behalf of the indemnified party)
or (iv) the indemnifying party has not in fact employed counsel to
assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which
cases the reasonable fees, disbursements and other charges of counsel
will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm admitted to practice in
such jurisdiction at any time for all such indemnified party or
parties. All such fees, disbursements and other charges will be
reimbursed by the indemnifying party promptly as they are incurred. An
indemnifying party will not be liable for any settlement of any action
or claim effected without its written consent (which consent will not
be unreasonably withheld). No indemnifying party shall, without the
prior written consent of each indemnified party, settle or compromise
or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding relating to the matters contemplated by
this Section 8 (whether or not any indemnified party is a party
thereto), unless such settlement, compromise or consent includes a
unconditional release of each indemnified party form all liability
arising or that may arise out of such claim, action or proceeding.
Notwithstanding any other provision of this Section 8(c), if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement
effected without its written consent if (i) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall
not have reimbursed
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such indemnified party in accordance with such request prior to the
date of such settlement.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for
in the foregoing paragraphs of this Section 8 is applicable in
accordance with its terms but for any reason is held to be unavailable
from the Company or you, the Company and you will contribute to the
total losses, claims, liabilities, expenses and damages (including any
investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit
or proceeding or any claim asserted, but after deducting any
contribution received by the Company from persons other than you, such
as persons who control the Company within the meaning of the 1933 Act,
officers of the Company who signed the Registration Statement and
directors of the Company, who also may be liable for contribution) to
which the Company and you may be subject in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on
the one hand and you on the other. The relative benefits received by
the Company on the one hand and you on the other 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 you, in each case as
set forth in the table on the cover page of the Prospectus Supplement
and/or the Pricing Supplement(s). If, but only if, the allocation
provided by the foregoing sentence is not permitted by applicable law,
the allocation of contribution shall be made in such proportion as is
appropriate to reflect not only the relative benefits referred to in
the foregoing sentence but also the relative fault of the Company, on
the one hand, and you, on the other, with respect to the statements or
omissions which resulted in such loss, claim, liability, expense or
damage, or action in respect thereof, as well as any other relevant
equitable considerations with respect to such offering. Such relative
fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or
you, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by an indemnified party as a
result of the loss, claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 8(d) shall be deemed
to include, for purpose of this Section 8(d), any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(d), you shall not be
required to contribute any
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amount in excess of the underwriting discounts, commissions and other
compensation received by you and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx)
will be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 8(d),
any person who controls a party to this Agreement within the meaning of
the 1933 Act will have the same rights to contribution as that party,
and each officer of the Company who signed the Registration Statement
will have the same rights to contribution as the Company, subject in
each case to the provisions hereof. Any party entitled to contribution,
promptly after receipt of notice of commencement of any action against
such party in respect of which a claim for contribution may be made
under this Section 8(d), will notify any such party or parties from
whom contribution may be sought but the omission so to notify will not
relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have under this Section 8(d).
Except for a settlement entered into pursuant to the last sentence of
Section 8(c) hereof, no party will be liable for contribution with
respect to any action or claim settled without its written consent
(which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements
contained in this Section 8 and the representations and warranties of
the Company contained in this Agreement shall remain operative and in
full force and effect regardless of (i) any investigation made by you
or on your behalf, (ii) acceptance of the Securities and payment
therefore or (iii) any termination of this Agreement.
9. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements of the Company contained herein or in
certificates delivered pursuant hereto, and your agreements contained in Section
8 hereof, shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of you or any controlling persons, or the
Company or any of its officers, directors or any controlling persons, and shall
survive delivery of and payment for the Securities hereunder.
10. TERMINATION.
(a) TERM AND TERMINATION OF THIS AGREEMENT. This
Agreement shall be for a term of six months beginning on the date
hereof subject to earlier termination upon any of the following events:
(i) The Company shall have sold $60,000,000 in
gross proceeds of Securities pursuant to this Agreement; or
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(ii) Upon notice by you to the Company if the
rating assigned by any nationally recognized statistical rating
organization ("Rating Organization") to the Company, the
Partnership or, the securities of either of them as of or
subsequent to the date of this Agreement shall have been lowered
since that date or if such Rating Organization shall have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the Company, the
Partnership or the securities of either of them.
(b) TERMINATION OF OBLIGATIONS TO PURCHASE SECURITIES
SUBJECT TO A SECURITIES PURCHASE NOTICE. You may terminate your
obligation, subject to the terms and conditions of this Agreement, to
purchase any Securities subject to a Securities Purchase Notice,
immediately upon notice to the Company, if since the Securities Pricing
Date relating to such Securities Purchase Notice or since the
respective dates as of which information is given in the Prospectus,
(i) either any material adverse change has occurred or any development
has actually occurred and is reasonably expected to cause material
adverse change in the condition (financial or other), business,
prospects, net worth or results of operations of the Company and its
subsidiaries, (ii) the Company shall have failed, refused or been
unable, at or prior to the Related Closing Date, to perform any
agreement on its part to be performed hereunder, (iii) any other
condition of your obligations hereunder is not fulfilled, (iv) there
shall have come to your attention any facts that would cause you to
believe that the Prospectus, at the time it was required to be
delivered to a purchaser of Securities, included an untrue statement of
a material fact or omitted to state a material fact necessary in order
to make the statements therein, in light of the circumstances existing
at the time of such delivery, not misleading, (v) there shall have
occurred any material adverse change in the financial markets in the
United States or any outbreak or escalation of hostilities or other
national or international calamity or crisis the effect of which is
such as to make it, in your judgment, impracticable to market the
Securities or enforce contracts for the sale of the Securities, (vi)
trading on the NYSE or the American Stock Exchange shall have been
wholly suspended, (vii) minimum or maximum prices for trading shall
have been fixed, or maximum ranges for prices for securities shall have
been required, on the NYSE or the American Stock Exchange, by such
Exchange or by order of the Commission or any other governmental
authority having jurisdiction, (viii) a banking moratorium shall have
been declared by federal or New York authorities, (ix) an outbreak of
major hostilities in which the United States is involved, a declaration
of war by Congress, any other substantial national or international
calamity or any other event or occurrence of a similar
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character shall have occurred since such Pricing Date that, in your
judgment, makes it impractical or inadvisable to proceed with the
completion of the sale of and payment for the Securities. If you elect
to terminate your obligation pursuant to this subsection, the Company
shall be notified promptly by you by telephone, telex or telecopy,
confirmed by letter.
(c) The Company may terminate its participation in
this Agreement by sending notice in accordance with Section 11 hereof
to you, in which event the Company shall be obligated to pay to you an
amount equal to 0.6% of the $60,000,000 of gross proceeds of the
Securities that have not been sold hereunder as of the date of
termination.
(d) In the event of any termination pursuant to any
of Sections 10(a), 10(b) or 10(c), neither party will have any
liability to the other party hereto, except as described in Section
10(c) above, and except that (i) if at the time of termination you
shall hold any Securities purchased by you as principal with the
intention of reselling them, the covenants set forth in Sections 4 and
7 hereof shall remain in effect until such Securities are so resold or
delivered, as the case may be, (ii) the covenant set forth in Section
4(h) hereof, the indemnity and contribution agreements set forth in
Section 8 hereof, and the provisions of Sections 9, 12 and 13 hereof
shall remain in effect and (iii) if termination is pursuant to Section
10(b) only, all of the provisions of this Agreement shall remain in
effect with respect to purchases and sales of Securities that are the
subject of a subsequent Securities Purchase Notice.
11. NOTICES. All notices or communications hereunder shall be
in writing and if sent to you shall be mailed, delivered, telexed or telecopied
and confirmed to you at (a) 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, c/o Real Estate Investment Banking, attention: Xxxxx X. Xxxxxx (phone
212-713- 7911; fax 000-000-0000), (b) 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, c/o Equity Capital Markets, attention: Xxxx Xxxxx and Xxxxx Xxxxxx
(phone 000-000-0000; fax 000-000-0000), (with a copy to Xxx X. Xxxxxxxxx, Esq.,
c/o Rogers & Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, phone
000-000-0000; fax 000-000-0000), or if sent to the Company, shall be mailed,
delivered, telexed or telecopied and confirmed to Xxxxxx X. D'Arcy, CEO, or
Xxxxxx X. Xxxxx, Xx., CFO, Xxxxxxx Real Estate, Inc., 00 Xxxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxxx 00000 (phone 000-000-0000; fax 000-000-0000) (with
copy to Xxxxxxx X. Xxxx, Esq., x/x Xxxxxxx, Xxxxxxx & Xxxx XXX, Xxxxxxxx Xxxxx,
Xxxxxx, XX 00000; phone 000-000-0000; fax 000-000-0000). Any party to this
Underwriting Agreement may change such address for notices by sending to the
other party to this Underwriting Agreement written notice of a new address for
such purpose.
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12. PARTIES. This Agreement shall inure to the benefit of, and
be binding upon, the Company and you and our respective successors and the
controlling persons, officers and directors referred to in Section 8(f) hereof,
and no other person will have any right or obligation hereunder.
13. APPLICABLE LAW. This Underwriting Agreement shall be
governed by, and construed in accordance with, the laws of the State of
New York.
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Very truly yours,
XXXXXXX REAL ESTATE, INC.
By: /s/ Xxxxxx X. D'Arcy
-----------------------
Name: Xxxxxx X. D'Arcy
Title: President and Chief
Executive Officer
ACCEPTED as of the date first above
written
PAINEWEBBER INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
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EXHIBIT I
SECURITIES PURCHASE NOTICE
In accordance with Section 3 of the Underwriting Agreement dated
October 21, 1997 (the "Agreement"), we, the undersigned, hereby notify you of
our intent to sell Securities (as defined in the Agreement). We propose to sell
___ shares, and in accordance with Section 4(d) of the Agreement, we have
prepared, with respect to the Securities to be sold, a Pricing Supplement in the
form previously approved by you. A draft copy of such Pricing Supplement is
attached to this Securities Purchase Notice. We intend to file such Pricing
Supplement pursuant to Rule 424(b)(7) under the 1933 Act not later than the
close of business of the Commission on the second business day after the date of
this Securities Purchase Notice.
In addition, we covenant that all requirements of Rules 3-05 and
3-14 of Regulation S-X have been met, including the filing and incorporation by
reference of the required information in the Registration Statement of the
Company.
Very truly yours,
XXXXXXX REAL ESTATE, INC.
By: _____________________
Name:
Title:
A-1
