Exhibit 1.1
5,700,000 SHARES
GREAT LAKES REIT, INC.
Common Stock
UNDERWRITING AGREEMENT
_____ __, 1997
XXXXXX BROTHERS INC.
X.X. XXXXXXX & SONS, INC.
XXXXX XXXXXX INC.
EVEREN SECURITIES, INC.,
as Representatives of the several Underwriters,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Great Lakes REIT, Inc., a Maryland corporation (the "Company") which
qualifies for federal income tax purposes as a real estate investment trust
pursuant to sections 856 through 860 of the Internal Revenue Code of 1986, as
amended (the "Code"), and Great Lakes REIT, L.P., a Delaware limited partnership
(the "Operating Partnership" and, together with the Company, the "Transaction
Entities"), each wish to confirm as follows its agreement with the Underwriters
named in Schedule 1 hereto (the "Underwriters", which term shall also include
any underwriter substituted as hereinafter provided in Section 9 of this
Agreement) for whom Xxxxxx Brothers Inc., X.X. Xxxxxxx & Sons, Inc., Xxxxx
Xxxxxx Inc. and EVEREN Securities, Inc. are acting as representatives (the
"Representatives") with respect to the sale by the Company and the purchase by
the Underwriters, acting severally and not jointly, of an aggregate of 5,700,000
shares (the "Firm Shares") of the Company's common stock, par value $.01 per
share (the "Common Shares"). In addition, the Company proposes to grant to the
Underwriters an option to purchase up to an additional 855,000 Common Shares on
the terms and for the purposes set forth in Section 2 (the "Option Shares").
The Firm Shares and the Option Shares, if purchased, are hereinafter
collectively called the "Shares."
Capitalized terms used but not otherwise defined herein shall have the
meanings given to those terms in the Prospectus (as herein defined).
The Transaction Entities understand that the Underwriters propose to
make a public offering of the Shares as soon as the Representatives deem
advisable after the Registration Statement becomes effective and this Agreement
has been executed and delivered.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE TRANSACTION
ENTITIES. Each of the Transaction Entities, jointly and severally, represents,
warrants and agrees that, as of the date hereof:
(a) A registration statement on Form S-11 (No. 333-22619), and
any amendments thereto, with respect to the Shares has (i) been
prepared by the Company in conformity with the requirements of the
United States Securities Act of 1933, as amended (the "Securities
Act") and the rules and regulations (the "Rules and Regulations") of
the United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under
the Securities Act and (iii) become effective under the Securities
Act. Copies of such registration statement and any amendments thereto
have been delivered by the Company to you as the Representatives of
the Underwriters. As used in this Agreement, "Effective Time" means
the date and the time as of which such registration statement, or the
most recent post-effective amendment thereto, if any, was declared
effective by the Commission; "Effective Date" means the date of the
Effective Time; "Preliminary Prospectus" means each prospectus
included in such registration statement, or amendments thereto, before
it became effective under the Securities Act and any prospectus filed
with the Commission by the Company with the consent of the
Representatives pursuant to Rule 424(a) of the Rules and Regulations;
"Registration Statement" means such registration statement, as amended
at the Effective Time, including all information contained in the
final prospectus filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations and deemed to be a part of the registration
statement as of the Effective Time pursuant to paragraph (b) of Rule
430A of the Rules and Regulations, and shall include any registration
statement filed pursuant to Rule 462(b) of the Rules and Regulations;
and "Prospectus" means such final prospectus, as first filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations.
(b) Each Preliminary Prospectus included as part of the
Registration Statement as originally filed or as part of any amendment
or supplement thereto, or filed pursuant to Rule 424 under the Rules
and Regulations, complied when so filed in all material respects with
the provisions of the Securities Act, and each Preliminary Prospectus
delivered to the Representatives for use in connection with this
offering was 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.
(c) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus
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will, when they become effective or are filed with the Commission, as
the case may be, conform in all respects to the requirements of the
Securities Act and the Rules and Regulations and do not and will not,
as of the applicable Effective Date (as to the Registration Statement
and any amendment thereto) and as of the applicable filing date and at
the First Delivery Date (as to the Prospectus and any amendment or
supplement thereto) 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; PROVIDED that
no representation or warranty is made as 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 through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein. The Prospectus
delivered to the Representatives for use in connection with this
offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(d) No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or, to the knowledge
of either of the Transaction Entities, threatened by the Commission or
by the state securities authority of any jurisdiction. No order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of either of the Transaction Entities,
after due inquiry, threatened by the Commission or by the state
securities authority of any jurisdiction.
(e) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Maryland and
is in good standing with the State Department of Assessments and
Taxation of Maryland (the "SDAT"), is duly qualified to do business
and is in good standing as a foreign corporation in each jurisdiction
in which its ownership or lease of property or the conduct of its
business requires such qualification, and has all corporate power
necessary to own or hold its properties, to conduct the business in
which it is engaged and to enter into and perform its obligations
under this Agreement and the other Operative Documents (as herein
defined) to which it is a party. The Company has no significant
subsidiaries (as such term is defined in Regulation S-X of the Rules
and Regulations) other than the Operating Partnership. The Operating
Partnership has no subsidiaries.
(f) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued Common Shares and shares of
preferred stock, par value $.01 per share (the "Preferred Shares") of
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description thereof
contained in the Prospectus. Upon the closing of the Offering, except
as disclosed in the Prospectus, and except with respect to stock
options outstanding on the date of the Prospectus and units of
partnership interest in the Operating Partnership ("Units"), each
as described therein, no Common Shares of the Company are reserved
for any purpose and, except for the Xxxxx,
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Preferred Shares and such outstanding stock options, there are no
outstanding securities convertible into or exchangeable for any
Common Shares of the Company, and no outstanding options or
warrants to purchase or subscribe for Common Shares or any other
securities of the Company. Upon the closing of the Offering,
there will be no outstanding rights to purchase or subscribe for
Common Shares or any other securities of the Company other than
such outstanding stock options and Units.
(g) The Operating Partnership has been duly formed and is
validly existing as a limited partnership in good standing under the
laws of the State of Delaware, is duly qualified to do business and is
in good standing as a foreign limited partnership in each jurisdiction
in which its ownership or lease of property or the conduct of its
business requires such qualification, and has all partnership power
necessary to own or hold its properties, to conduct the business in
which it is engaged and to enter into and perform its obligations
under this Agreement and the other Operative Documents to which it is
a party. At the First Delivery Date (as defined herein), the Company
will be the sole general partner of the Operating Partnership. At the
First Delivery Date, the Agreement of Limited Partnership of the
Operating Partnership (the "Operating Partnership Agreement") will be
in full force and effect, and the aggregate percentage interests of
the Company and the limited partners in the Operating Partnership will
be as set forth in the Prospectus; provided that to the extent any
portion of the over-allotment option described in Section 2 hereof is
exercised at the First Delivery Date, the percentage interest of such
partners in the Operating Partnership will be adjusted accordingly.
Additionally, to the extent any portion of such over-allotment option
is exercised subsequent to the First Delivery Date, the Company will
contribute the proceeds from the sale of the Option Shares to the
Operating Partnership in exchange for a number of Units equal to the
number of Option Shares issued.
(h) The Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued, and fully paid and non-assessable. Upon
payment of the purchase price and delivery of the Shares in accordance
herewith, each of the Underwriters will receive good, valid and
marketable title to the Shares, free and clear of all security
interests, mortgages, pledges, liens, encumbrances, claims,
restrictions and equities. The terms of the Common Shares conform in
substance to all statements and descriptions related thereto contained
in the Prospectus. The form of the certificates to be used to
evidence the Common Shares will at the First Delivery Date be in due
and proper form and will comply with all applicable legal
requirements. The issuance of the Shares is not subject to any
preemptive or other similar rights.
(i) The Units issued, including, without limitation, the Units
to be issued to the Company at the First Delivery Date, will have been
duly and validly authorized, duly and validly issued and fully paid
and the limited partnership Units are non-assessable. Immediately
after the First Delivery Date and not including any Units issued in
exchange for proceeds received by the Company in connection with the
sale of the Shares, [ ] Units will be issued and outstanding.
The terms of the Units conform in
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substance to all statements and descriptions related thereto contained
in the Prospectus.
(j) (A) This Agreement has been duly and validly authorized,
executed and delivered by each of the Transaction Entities, and
assuming due authorization, execution and delivery by the
Representatives, is a valid and binding agreement of each of the
Transaction Entities, enforceable against the Transaction Entities in
accordance with its terms; (B) at the First Delivery Date, the
Operating Partnership Agreement will have been duly and validly
authorized, executed and delivered by the parties thereto and will be
a valid and binding agreement of the parties thereto, enforceable
against such parties in accordance with its terms. This Agreement and
the Operating Partnership Agreement are sometimes hereinafter
collectively called the "Operative Documents."
(k) The execution, delivery and performance of each Operative
Document by each of the Transaction Entities and the consummation of
the transactions contemplated thereby will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which either of the
Transaction Entities is a party or by which either of the Transaction
Entities is bound or to which any of the Properties or other assets of
either of the Transaction Entities is subject, nor will such actions
result in any violation of the provisions of the charter, by-laws or
agreement of limited partnership of either of the Transaction
Entities, or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over either of the
Transaction Entities or any of its properties or assets; and except
for the registration of the Shares under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under the Exchange Act and applicable state
securities laws in connection with the purchase and distribution of
the Shares by the Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery
and performance of the Operative Documents by the Transaction Entities
and the consummation of the transactions contemplated hereby and
thereby.
(l) Except as disclosed in the Prospectus and as filed as
Exhibit 10.17 to the Registration Statement, there are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Securities Act.
(m) Except as described in the Registration Statement, neither
of the Transaction Entities has sold or issued any securities during
the six-month period
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preceding the date of the Prospectus, including any sales pursuant to
Rule 144A under, or Regulations D or S of, the Securities Act.
(n) Neither of the Transaction Entities nor any of the
Properties has sustained, since the date of the latest audited
financial statements included in the Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, other than
as set forth or contemplated in the Prospectus; and, since such date,
there has not been any material change in the capital stock or long-
term debt of either of the Transaction Entities or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting any of the Properties or the general
affairs, management, financial position, stockholders' equity or
results of operations of either of the Transaction Entities, other
than as set forth or contemplated in the Prospectus.
(o) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included in the Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown thereby,
at the dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved. Pro forma financial
information included in the Prospectus has been prepared in accordance
with the applicable requirements of the Securities Act, the Rules and
Regulations and AICPA guidelines with respect to pro forma financial
information and includes all adjustments necessary to present fairly
the pro forma financial position of the Company at the respective
dates indicated and the results of operations for the respective
periods specified.
(p) Ernst & Young LLP, who have certified certain financial
statements of the Company, whose reports appear in the Prospectus and
who have delivered the initial letter referred to in Section 7(f)
hereof, are independent public accountants as required by the
Securities Act and the Rules and Regulations.
(q) (A) At the First Delivery Date, the Company or the
Operating Partnership will have good and marketable title to each of
the Properties, free and clear of all liens, encumbrances, claims,
security interests and defects, other than those referred to in the
Prospectus or those which are not material in amount or those which
would not have a material adverse effect on the business, operations
or use of any of the Properties and all material consents or approvals
with respect to the transfers reflected in the Prospectus of any of
the Properties to the Company or the Operating Partnership shall have
been received; (B) all liens, charges, encumbrances, claims or
restrictions on or affecting any of the Properties and the assets of
either of the Transaction Entities which are required to be disclosed
in the Prospectus are disclosed therein; (C) except as otherwise
described in the Prospectus, there are no material defaults by either
Transaction Entity under (i) any
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space leases (as lessor or lessee, as the case may be) relating to the
Properties, or (ii) any of the mortgages or other security documents
or other agreements encumbering or otherwise recorded against the
Properties, and neither of the Transaction Entities knows of any event
which, but for the passage of time or the giving of notice, or both,
would constitute a default under any of such documents or agreements;
(D) except as disclosed in the Prospectus, no tenant under any of the
leases at the Properties has a right of first refusal to purchase the
premises demised under such lease which has not been waived; (E) each
of the Properties complies with all applicable codes, laws and
regulations (including, without limitation, building and zoning codes,
laws and regulations and laws relating to access to the Properties),
except for such failures to comply that would not have a material
adverse effect on the business operations, use or value of such
Property; and (F) neither of the Transaction Entities has knowledge of
any pending or threatened condemnation proceedings, zoning change or
other proceeding or action that will in any material manner affect the
size of, use of, improvements on, construction on or access to the
Properties.
(r) Immediately following the application of the net proceeds of
the sale of the Firm Shares in the manner set forth in the Prospectus,
the mortgages and deeds of trust which will encumber the Properties
will not be convertible into equity securities of the entity owning
such Property and said mortgages and deeds of trust will not be cross-
defaulted or cross-collateralized with any property other than other
Properties.
(s) At the First Delivery Date, the Company or the Operating
Partnership will have obtained title insurance on the fee interests in
each of the Properties, in an amount at least equal to the greater of
(A) the mortgage indebtedness of each such Property or (B) the
purchase price of each such Property.
(t) Except as disclosed in the Prospectus: (A) to the knowledge
of the Transaction Entities, after due inquiry, the operations of the
Properties are in material compliance with all Environmental Laws (as
defined below) and all requirements of applicable permits, licenses,
approvals and other authorizations issued pursuant to Environmental
Laws; (B) to the knowledge of the Transaction Entities, after due
inquiry, none of the Transaction Entities or any Property has caused
or suffered to occur any Release (as defined below) of any Hazardous
Substance (as defined below) into the Environment (as defined below)
on, in, under or from any Property that has not been addressed as
required by Environmental Laws, and no condition exists on, in, under
or adjacent to any Property that could result in the incurrence of
liabilities under, or any violations of, any Environmental Law by the
Transaction Entities or give rise to the imposition of any Lien (as
defined below), under any Environmental Law; (C) none of the
Transaction Entities has received any written notice of a claim under
or pursuant to any Environmental Law or under common law pertaining to
Hazardous Substances on, in, under or originating from any Property
that has not been addressed as required by Environmental Laws;
(D) neither of the Transaction Entities has actual knowledge
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of, or received any written notice from any Governmental Authority (as
defined below) claiming, any violation of any Environmental Law or a
determination to undertake and/or request the investigation,
remediation, clean-up or removal of any Hazardous Substance released
into the Environment on, in, under or from any Property that has not
been addressed as required by Environmental Laws; and (E) no Property
is included or, to the knowledge of either of the Transaction
Entities, after due inquiry, proposed for inclusion on the National
Priorities List issued pursuant to CERCLA (as defined below) by the
United States Environmental Protection Agency (the "EPA") or on the
Comprehensive Environmental Response, Compensation, and Liability
Information System database maintained by the EPA, and neither of the
Transaction Entities has actual knowledge that any Property has
otherwise been identified in a published writing by the EPA as a
potential CERCLA removal, remedial or response site or, to the
knowledge of either of the Transaction Entities, is included on any
similar list of potentially contaminated sites pursuant to any other
Environmental Law (except for inclusion on a list of leaking
underground storage tank sites, provided that the leak has been
addressed as required by Environmental Laws).
As used herein, "Hazardous Substance" shall include any hazardous
substance, hazardous waste, toxic substance, pollutant or hazardous
material, including, without limitation, oil, petroleum or any
petroleum-derived substance or waste, asbestos or asbestos-containing
materials, PCBs, pesticides, explosives, radioactive materials,
dioxins, urea formaldehyde insulation or any constituent of any such
substance, pollutant or waste which is subject to regulation under any
Environmental Law (including, without limitation, materials listed in
the United States Department of Transportation Optional Hazardous
Material Table, 49 C.F.R. Section 172.101, or in the EPA's List of
Hazardous Substances and Reportable Quantities, 40 C.F.R. Part 302);
"Environment" shall mean any surface water, drinking water, ground
water, land surface, subsurface strata, river sediment, buildings,
structures, and ambient, workplace and indoor and outdoor air;
"Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Section 9601 ET SEQ.) ("CERCLA"), the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C. Section 6901, ET SEQ.),
the Clean Air Act, as amended (42 U.S.C. Section 7401, ET SEQ.), the
Clean Water Act, as amended (33 U.S.C. Section 1251, ET SEQ.), the
Toxic Substances Control Act, as amended (15 U.S.C. Section 2601, ET
SEQ.), the Occupational Safety and Health Act of 1970, as amended (29
U.S.C. Section 651, ET SEQ.), the Hazardous Materials Transportation
Act, as amended (49 U.S.C. Section 1801, ET SEQ.), and all other
federal, state and local laws, ordinances, regulations, rules and
orders relating to the protection of the environments or of human
health from environmental effects; "Governmental Authority" shall mean
any federal, state or local governmental office, agency or authority
having jurisdiction over the Properties and having the duty or
authority to promulgate, implement or enforce any Environmental Law;
"Lien" shall mean, with respect to any Property, any mortgage, deed of
trust, pledge, security interest, lien, encumbrance, penalty, fine,
charge, assessment, judgment or other liability in, on or affecting
such Property; and "Release" shall mean any spilling, leaking,
pumping,
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pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, emanating or disposing of any Hazardous Substance
into the Environment in violation of any Environmental Law, including,
without limitation, the abandonment or discard of barrels, containers,
tanks (including, without limitation, underground storage tanks) or
other receptacles containing or previously containing any Hazardous
Substance.
(u) Each Transaction Entity and Property carries, or is covered
by, insurance in such amounts and covering such risks as is adequate
for the conduct of its business and as is customary for companies
engaged in similar businesses in similar industries.
(v) Each Transaction Entity owns or possesses adequate rights
to use all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service xxxx
registrations, copyrights and licenses necessary for the conduct of
its business and has no reason to believe that the conduct of its
business will conflict with, and has not received any notice of any
claim of conflict with, any such rights of others.
(w) Except as described in the Prospectus, there are no legal
or governmental proceedings pending to which any Transaction Entity is
a party or of which any property or assets of any Transaction Entity
is the subject which, if determined adversely to such Transaction
Entity, might have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations, or
business of the Company; and to the best knowledge of the Transaction
Entities, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(x) There are no contracts or other documents which are required
to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed
as exhibits to the Registration Statement.
(y) No relationship, direct or indirect, exists between or among
either of the Transaction Entities on the one hand, and the directors,
officers or stockholders of either of the Transaction Entities on the
other hand, which is required to be described in the Prospectus which
is not so described.
(z) No labor disturbance by the employees of either
Transaction Entity exists or, to the knowledge of the Transaction
Entities, is imminent which might be expected to have a material
adverse effect on the consolidated financial position, stockholders'
equity, results of operations, business or prospects of such
Transaction Entity.
(aa) Each Transaction Entity is in compliance in all
material respects with all presently applicable provisions of the
Employee Retirement Income Security Act
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of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as
defined in ERISA) has occurred with respect to any "pension plan" (as
defined in ERISA) for which either Transaction Entity would have any
liability; neither Transaction Entity has incurred or expects to incur
liability (i) under Title IV of ERISA with respect to termination of,
or withdrawal from, any "pension plan" or (ii) for violation of
section 412 or for any tax under 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for
which either Transaction Entity would have any liability that is
intended to be qualified under section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification.
(bb) Each Transaction Entity has filed all federal, state
and local income and franchise tax returns required to be filed
through the date hereof and has paid all taxes due thereon, and no tax
deficiency has been determined adversely to any Transaction Entity
which has had (nor does either Transaction Entity have any knowledge
of any tax deficiency which, if determined adversely to it might have)
a material adverse effect on the financial position, stockholders'
equity, results of operations, business or prospects of such
Transaction Entity.
(cc) Upon completion of the transactions described in the
Prospectus and the sale of the Shares hereunder, the Company and the
Operating Partnership will continue to be organized and operated in
conformity with the requirements for qualification of the Company as a
real estate investment trust under the Code, and the proposed method
of operation of the Company and the Operating Partnership will enable
the Company to continue to meet the requirements for qualification and
taxation as a real estate investment trust under the Code.
(dd) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, neither Transaction Entity has (i) issued
or granted any securities (other than securities issued pursuant to
the exercise of stock options outstanding as of the date information
is given in the Prospectus), (ii) incurred any material liability or
obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of business,
(iii) entered into any transaction not in the ordinary course of
business or (iv) declared or paid any dividend on its capital stock.
(ee) Each Transaction Entity (i) makes and keeps accurate
books and records and (ii) maintains internal accounting controls
which provide reasonable assurance that (A) transactions are executed
in accordance with management's authorization, (B) transactions are
recorded as necessary to permit preparation of its financial
statements and to maintain accountability for its assets, (C) access
to its assets is permitted only in accordance with management's
authorization and (D) the
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reported accountability for its assets is compared with existing
assets at reasonable intervals.
(ff) No Transaction Entity (i) is in violation of its
charter, by-laws, certificate of limited partnership, agreement of
limited partnership, trust instrument or other similar organizational
document, (ii) is in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term,
covenant or condition contained in any material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of the
Properties or any of its other properties or assets is subject or
(iii) is in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or the
Properties or any of its other properties or assets may be subject or
has failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary to
the ownership of the Properties or any of its other properties or
assets or to the conduct of its business.
(gg) Neither Transaction Entity, nor any director, officer,
agent, employee or other person associated with or acting on behalf of
either Transaction Entity, has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect unlawful
payment to any foreign or domestic government official or employee
from corporate funds; violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
(hh) Neither Transaction Entity is an "investment company"
within the meaning of such term under the Investment Company Act of
1940 and the rules and regulations of the Commission thereunder.
(ii) The Common Shares have been approved for listing on the
New York Stock Exchange upon notice of issuance.
(jj) Other than this Agreement and as set forth in the
Prospectus under the heading "Underwriting", there are no contracts,
agreements or understandings between either Transaction Entity and any
person that would give rise to a valid claim against either
Transaction Entity or any Underwriter for a brokerage commission,
finder's fee or other like payment with respect to the consummation of
the transactions contemplated by this Agreement.
(kk) Each Transaction Entity has complied with all
applicable provisions of Florida Statutes Section 517.075, relating to
issuers doing business with Cuba.
2. PURCHASE OF THE SHARES BY THE UNDERWRITERS. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this
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Agreement, the Company agrees to sell 5,700,000 Firm Shares, severally and not
jointly, to the several Underwriters and each of the Underwriters, severally and
not jointly, agrees to purchase the number of Firm Shares set forth opposite
that Underwriter's name in Schedule 1 hereto. The respective purchase
obligations of the Underwriters with respect to the Firm Shares shall be rounded
among the Underwriters to avoid fractional shares, as the Representatives may
determine.
In addition, the Company grants to the Underwriters an option to
purchase up to 855,000 Option Shares. Such option is granted solely for the
purpose of covering over-allotments in the sale of Firm Shares and is
exercisable as provided in Section 4 hereof. Option Shares shall be purchased
severally for the account of the Underwriters in proportion to the number of
Firm Shares set forth opposite the names of such Underwriters in Schedule 1
hereto. The respective purchase obligations of each Underwriter with respect to
the Option Shares shall be adjusted by the Representatives so that no
Underwriter shall be obligated to purchase Option Shares other than in 100 share
amounts. The price of both the Firm Shares and any Option Shares shall be
$_____ per share.
The Company shall not be obligated to deliver any of the Shares to be
delivered on the First Delivery Date or the Second Delivery Date (as hereinafter
defined), as the case may be, except upon payment for all the Shares to be
purchased on such Delivery Date as provided herein.
3. OFFERING OF SHARES BY THE UNDERWRITERS. Upon authorization by
the Representatives of the release of the Firm Shares, the several Underwriters
propose to offer the Firm Shares for sale upon the terms and conditions set
forth in the Prospectus.
4. DELIVERY OF AND PAYMENT FOR THE SHARES. Delivery of and payment
for the Firm Shares shall be made at the office of Xxxxxx & Xxxxx, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other date or place as shall be
determined by agreement between the Representatives and the Company, at 10:00
A.M., New York City time, on the third full business day following the date of
this Agreement or on the fourth full business day if the Agreement is executed
after the daily closing time of the New York Stock Exchange (unless postponed in
accordance with the provisions of Section 9 hereof). This date and time are
sometimes referred to as the "First Delivery Date." On the First Delivery Date,
the Company shall deliver or cause to be delivered certificates representing the
Firm Shares to the Representatives for the account of each Underwriter against
payment to or upon the order of the Company of the purchase price by wire
transfer in same day funds. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of each Underwriter hereunder. Upon delivery, the Firm Shares
shall be registered in such names and in such denominations as the
Representatives shall request in writing not less than two full business days
prior to the First Delivery Date. For the purpose of expediting the checking
and packaging of the certificates for the Firm Shares, the Company shall make
the certificates representing the Firm Shares available for inspection by the
Representatives in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement, the option granted in Section 2 may be exercised by written notice
being given to the Company by the Representatives. Such notice shall set forth
the aggregate number of Option Shares as to which the
12
option is being exercised, the names in which the Option Shares are to be
registered, the denominations in which the Option Shares are to be issued and
the date and time, as determined by the Representatives, when the Option Shares
are to be delivered; PROVIDED, HOWEVER, that this date and time shall not be
earlier than the First Delivery Date nor earlier than the second business day
after the date on which the option shall have been exercised nor later than the
fifth business day after the date on which the option shall have been exercised.
The date and time the Option Shares are delivered are sometimes referred to as
the "Second Delivery Date" and the First Delivery Date and the Second Delivery
Date are sometimes each referred to as a "Delivery Date."
Delivery of and payment for the Option Shares shall be made at the
place specified in the first sentence of the first paragraph of this Section 4
(or at such other place as shall be determined by agreement between the
Representatives and the Company) at 10:00 A.M., New York City time, on the
Second Delivery Date. On the Second Delivery Date, the Company shall deliver or
cause to be delivered the certificates representing the Option Shares to the
Representative for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by certified or official bank
check or checks payable in same day funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder. Upon delivery, the
Option Shares shall be registered in such names and in such denominations as the
Representatives shall request in the aforesaid written notice. For the purpose
of expediting the checking and packaging of the certificates for the Option
Shares, the Company shall make the certificates representing the Option Shares
available for inspection by the Representatives in New York, New York, not later
than 2:00 P.M., New York City time, on the business day prior to the Second
Delivery Date.
5. FURTHER AGREEMENTS OF THE TRANSACTION ENTITIES. Each of the
Transaction Entities jointly and severally agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the Commission's close of
business on the second business day following the execution and
delivery of this Agreement or, if applicable, such earlier time as may
be required by Rule 430A(a)(3) under the Securities Act; to make no
further amendment or any supplement to the Registration Statement or
to the Prospectus except as permitted herein; to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Representatives
with copies thereof; to advise the Representatives, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
13
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) To furnish promptly to the Representatives and to counsel
for the Underwriters five copies of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed
with the Commission, including all consents and exhibits filed
therewith, and will also furnish to the Representatives and their
counsel such number of conformed copies of the Registration Statement
as originally filed and of each amendment thereto, as the
Representatives may reasonably request;
(c) To deliver promptly to the Representatives such number of
the following documents as the Representatives shall reasonably
request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits other than this Agreement and the
computation of per share earnings) and (ii) each Preliminary
Prospectus, the Prospectus and any amended or supplemented Prospectus;
and, if the delivery of a prospectus is required by applicable laws or
regulations of any governmental authority at any time after the
Effective Time and prior to the 270th day after the Effective Date in
connection with the offering or sale of the Shares or any other
securities relating thereto and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary to amend or supplement the
Prospectus in order to comply with the Securities Act or the Exchange
Act, to notify the Representatives and, upon its request, to file such
document and to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many copies as the Representatives
may from time to time reasonably request of an amended or supplemented
Prospectus which will correct such statement or omission or effect
such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested by the
Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Representatives and counsel for the
Underwriters and obtain the consent of the Representatives to the
filing except where obtaining such consent is impracticable after
using reasonable efforts to obtain the consent;
14
(f) The Company will make generally available to its security
holders as soon as practicable but no later than 60 days after the
close of the period covered thereby an earnings statement (in form
complying with the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Rules and Regulations), which need not be
certified by independent certified public accountants unless required
by the Securities Act or the Rules and Regulations, covering a twelve-
month period commencing after the "effective date" (as defined in said
Rule 158) of the Registration Statement;
(g) The Company will furnish to each Underwriter, from time to
time during the period when the Prospectus is required to be delivered
under the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), such number of copies of the Prospectus
(as amended or supplemented) as such Underwriter may reasonably
request for the purposes contemplated by the Securities Act or the
Exchange Act or the respective applicable rules and regulations of the
Commission thereunder;
(h) For a period of five years following the Effective Date, to
furnish to the Representatives copies of all materials furnished by
the Company to its stockholders and all public reports and all reports
and financial statements furnished by the Company to the principal
national securities exchange upon which the Common Shares may be
listed pursuant to requirements of or agreements with such exchange or
to the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder;
(i) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Shares for
offering and sale under the securities, real estate syndication or
Blue Sky laws of such jurisdictions as the Representatives may request
and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Shares;
(j) For a period of 180 days from the date of the Prospectus,
the Company will not offer for sale, contract to sell, sell or
otherwise dispose of, directly or indirectly, (or enter into any
transaction or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the future of)
any Common Shares or securities convertible into or exercisable or
exchangeable for Common Shares (other than the Shares and shares
issued pursuant to the (x) Stock Option Plans, (y) exchanges of Units
or (z) acquisitions of real property), or sell or grant options,
rights or warrants with respect to any Common Shares (other than the
grant of options pursuant to the Stock Option Plans or pursuant to the
issuance of Units), without the prior written consent of Xxxxxx
Brothers Inc.;
15
(k) Prior to the Effective Date, to apply for the listing of the
Shares on the New York Stock Exchange, Inc. and to use its best
efforts to complete that listing, subject only to official notice of
issuance, prior to the First Delivery Date;
(l) Prior to filing with the Commission any reports on Form SR
pursuant to Rule 463 of the Rules and Regulations, to furnish a copy
thereof to the counsel for the Underwriters and receive and consider
its comments thereon, and to deliver promptly to the Representatives a
signed copy of each report on Form SR filed by it with the Commission;
(m) To take such reasonable steps to ensure that the net
proceeds from the sale of the Shares are applied in a manner that is
consistent in all material respects with the description set forth in
the Prospectus under the caption "Use of Proceeds";
(n) To take such steps as shall be necessary to ensure that
neither of the Transaction Entities shall become an "investment
company" within the meaning of such term under the Investment Company
Act of 1940 and the rules and regulations of the Commission
thereunder;
(o) Except as stated in this Agreement and in the Preliminary
Prospectus and Prospectus, neither Transaction Entity has taken, nor
will take, directly or indirectly, any action designed to or that
might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Shares to facilitate the sale
or resale of the Shares;
(p) The Company will use its best efforts to continue to meet
the requirements to qualify as a "real estate investment trust" under
sections 856-860 of the Code; and
(q) If this Agreement shall be terminated by the Underwriters
because of any failure or refusal on the part of the Transaction
Entities to comply with the terms or fulfill any of the conditions of
this Agreement, the Transaction Entities jointly and severally agree
to reimburse the Representatives for all reasonable out-of-pocket
expenses (including fees and expenses of counsel for the Underwriters)
incurred by the Representatives in connection herewith.
6. EXPENSES. The Transaction Entities jointly and severally agree
to pay (a) the costs incident to the authorization, issuance, sale and delivery
of the Shares and any taxes payable in that connection; (b) the costs incident
to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), any Preliminary Prospectus, the Prospectus and any amendment or
supplement to the Prospectus, all as provided in this Agreement; (d) the costs
of producing and distributing this Agreement and any other related documents in
connection with the offering, purchase, sale and delivery of the Shares; (f) the
filing fees incident to securing any required review by the National Association
of Securities Dealers, Inc.
16
of the terms of sale of the Shares; (g) any applicable listing or other fees;
(h) the fees and expenses of qualifying the Shares under the securities laws of
the several jurisdictions as provided in Section 5(i) and of preparing, printing
and distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters); and (j) all other costs and expenses incident to
the performance of the obligations of the Transaction Entities under this
Agreement; PROVIDED that, except as provided in this Section 6 and in Section 12
the Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Shares which they may sell
and the expenses of advertising any offering of the Shares made by the
Underwriters.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the
Transaction Entities contained herein, to the performance by each Transaction
Entity of its obligations hereunder, and to each of the following additional
terms and conditions:
(a) If, at the time this Agreement is executed and delivered, it
is necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective before the offering of the
Shares may commence, the Registration Statement or such post-effective
amendment shall have become effective not later than 5:30 P.M., New
York City time, on the date hereof, or at such later date and time as
shall be consented to in writing by you, and all filings, if any,
required by Rules 424 and 430A under the Rules and Regulations shall
have been timely made; 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
the Transaction Entities or any Underwriter, threatened by the
Commission, and any request of the Commission for additional
information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the
satisfaction of the Representatives.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the financial condition, business,
properties, net worth, or results of operations of either Transaction
Entity, not contemplated by the Prospectus, which in the opinion of
the Representatives, would materially adversely affect the market for
the Shares, or (ii) any event or development relating to or involving
either Transaction Entity, or any partner, officer, director or
trustee of either Transaction Entity or any Property, which makes any
statement of a material fact made in the Prospectus untrue or which,
in the opinion of the Company and its counsel or the Underwriters and
their counsel, requires the making of any addition to or change in the
Prospectus in order to state a material fact required by the
Securities Act or any other law 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, if amending
or supplementing the Prospectus to reflect such event or development
would, in your opinion, adversely affect the market for the Shares.
17
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Shares,
the Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to
counsel for the Underwriters, and the Company shall have furnished to
such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d) Xxxxx, Day, Xxxxxx & Xxxxx shall have furnished to the
Representatives its written opinion, as counsel to the Company,
addressed to the Underwriters and dated such Delivery Date, in form
and substance reasonably satisfactory to the Representatives, to the
effect that:
(i) The Operating Partnership has been duly formed and
is validly existing as a limited partnership in good standing
under the laws of the State of Delaware, is duly qualified to do
business and is in good standing as a foreign limited partnership
in each jurisdiction in which its ownership or lease of property
or the conduct of its business requires such qualification, and
has all partnership power necessary to own or hold its
properties, to conduct the business in which it is engaged as
described in the Registration Statement and the Prospectus, and
to enter into and perform its obligations under this Agreement
and the other Operative Documents to which it is a party. The
Company is the sole general partner of the Operating Partnership.
The Operating Partnership Agreement is in full force and effect.
(ii) The Units issued, including, without
limitation, the Units issued to the Company, have been duly
and validly authorized, duly and validly issued and fully
paid. The terms of the Units conform in all material respects
to all statements and descriptions related thereto contained
in the Prospectus.
(iii) (A) This Agreement has been duly and validly
authorized, executed and delivered by the Operating
Partnership Entities; and (B) the Operating Partnership
Agreement has been duly and validly authorized, executed and
delivered by the Operating Partnership. The Operating
Partnership Agreement is a valid and binding agreement of the
Operating Partnership, enforceable against the Operating
Partnership in accordance with its terms.
(iv) The execution, delivery and performance of each
Operative Document by each of the Transaction Entities and the
consummation of the transactions contemplated thereby will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument of which such counsel is aware
to which either of the Transaction Entities is a party or by
which
18
either of the Transaction Entities is bound or to which any of
the Properties or other assets of either of the Transaction
Entities is subject, nor will such actions result in any
violation of the charter, bylaws or agreement of limited
partnership of either of the Transaction Entities or any statute
or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over either of the Transaction
Entities or any of its properties or assets; and except for the
registration of the Shares under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase
and distribution of the Shares by the Underwriters, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required
for the execution, delivery and performance of the Operative
Documents by the Transaction Entities and the consummation of the
transactions contemplated hereby and thereby.
(v) Except as disclosed in the Prospectus, to the
knowledge of such counsel there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities
of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
(vi) To the knowledge of such counsel, there is no
litigation or any legal or governmental proceeding pending,
threatened against or affecting either Transaction Entity or
any Property or assets of either Transaction Entity that would
affect the subject matter of this Agreement or is required to
be described in the Prospectus that is not so described.
19
(vii) No consent, approval, authorization or other order
of, or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or
official is required on the part of the Company (except as have
been obtained under the Securities Act and the Exchange Act or
such as may be required under state securities, real estate
syndication or Blue Sky laws governing the purchase and
distribution of the Shares) for the valid issuance and sale of
the Shares to the Underwriters as contemplated by this Agreement.
(viii) Neither Transaction Entity is an "investment
company" within the meaning of such term under the Investment
Company Act of 1940 and the rules and regulations of the
Commission thereunder.
(ix) The Common Shares have been approved for listing
on the New York Stock Exchange upon notice of issuance.
(x) The Registration Statement was declared
effective under the Securities Act as of the date and time
specified in such opinion and, to the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge
of such counsel, no proceeding for that purpose is pending or
threatened by the Commission.
(xi) The Registration Statement and the Prospectus and
any further amendments or supplements thereto made by the Company
prior to such Delivery Date (other than the financial statements
and related schedules therein, as to which such counsel need
express no opinion) comply as to form in all material respects
with the requirements of the Securities Act and the Rules and
Regulations.
(xii) The statements contained in the Prospectus under
the captions "Management," "Certain Transactions," "Partnership
Agreement," "Shares Available for Future Sale," "Certain Federal
Income Tax Considerations" and "ERISA Considerations" insofar as
those statements are descriptions of contracts, agreements or
other legal documents, or they describe federal statutes, rules
and regulations, constitute a fair summary thereof.
20
(xiii) The opinion of such counsel filed as Exhibit 8.1
to the Registration Statement is confirmed as of the applicable
Delivery Date and the Underwriters may rely upon such opinion as
if it were addressed to them on that Delivery Date.
In rendering such opinion, such counsel may (i) state that its opinion
is limited to matters governed by the Federal laws of the United States
of America; (ii) rely (to the extent such counsel deems proper and
specifies in their opinion), as to matters involving the application of
the laws of the States of Maryland and Delaware upon the opinion of
other counsel of good standing, PROVIDED that such other counsel is
satisfactory to counsel for the Underwriters and furnishes a copy of its
opinion to the Representatives; and (iii) in giving the opinion referred
to in subclause (B) in Section 7(d)(iii)(b), state that such opinion
with respect to the enforceability of such document may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium, and other laws relating to or affecting creditors' rights
generally and by general equitable principles. Such counsel shall also
have furnished to the Representatives a written statement, addressed to
the Underwriters and dated such Delivery Date, in form and substance
satisfactory to the Representatives, to the effect that (x) such counsel
has acted as counsel to the Company in connection with the preparation
of the Registration Statement and the Prospectus, and (y) based solely
on the foregoing, no facts have come to the attention of such counsel
which lead it to believe that the Registration Statement, as of the
Effective Date, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or
that the Prospectus, as of its date or the applicable Date of Delivery,
contains any untrue statement of a material fact or omits 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. The foregoing opinion and
statement may be qualified by a statement to the effect that such
counsel has not independently verified and does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus
except to the extent of the opinion contained in clause (xiv), and may
state that such counsel expresses no belief with respect to the
financial statements and other financial data included in, and except
for the information referred to under the caption "Experts" as having
been included in the Registration Statement and the Prospectus on the
authority of Ernst & Young LLP, as experts.
In addition to the foregoing opinions, Xxxxx, Day Xxxxxx & Xxxxx shall
have furnished to the Representatives its written opinion, as special
tax counsel to the Company, addressed to the Underwriters and dated such
Delivery Date, in form and substance reasonable satisfactory to the
Representatives, with respect to additional tax matters.
(e) Xxxxxxx Xxxxx Xxxxxxx & Ingersoll shall have furnished to
the Representatives its written opinion, as Maryland counsel to the
Company, addressed
21
to the Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Representatives, to the
effect that:
(i) The Company is a corporation duly incorporated and
validly existing under and by virtue of the laws of the State of
Maryland and is in good standing with the SDAT. The Company has
full corporate power (i) to own or hold its properties and to
conduct the business in which it is engaged as described in the
Registration Statement and the Prospectus and (ii) to enter into
and perform its obligations under this Agreement and the other
Operative Documents to which the Company is a party.
(ii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the shares of Common
Stock of the Company outstanding as of the date of Closing
(not including the Shares) (the "Outstanding Shares") have
been duly and validly authorized and, assuming receipt of
consideration therefor as provided in the resolutions of the
Board of Directors of the Company authorizing their issuance,
are duly and validly issued and are fully paid and
nonassessable. The Shares have been duly and validly
authorized and, when issued and delivered against payment
therefor as provided in (i) the resolutions of the Board of
Directors of the Company authorizing their issuance and (ii)
this Agreement, will be duly and validly issued, fully paid
and nonassessable. The terms of the Shares and the
Outstanding Shares conform in all material respects to all
statements and descriptions thereof contained in the
Prospectus.
(iii) The form of certificates to be used to
represent the Shares are in due and proper form and comply
with all applicable requirements of the Maryland General
Corporation Law, as amended (the "MGCL"). The issuance of the
Shares is not subject to any preemptive or other similar rights
arising under the Company's charter or bylaws or the MGCL.
(iv) The statements contained in the Prospectus
under the captions "Management - Limitation of Liability and
Indemnification," "Policies with Respect to Certain
Activities," "Capital Stock of the Company," and "Certain
Provisions of Maryland Law and the Company's Charter and
Bylaws," insofar as those statements describe Maryland
statutes, rules and regulations, constitute a fair summary
thereof.
(v) This Agreement and the Operating Partnership
Agreement have been duly and validly authorized, executed and
delivered by the Company.
22
(vi) The execution, delivery and performance of this
Agreement and the Operating Partnership Agreement by the Company
and the consummation of the transactions contemplated hereby and
thereby by the Company will not result in any violation of (i)
the provisions of the Company's Charter or bylaws, or (ii) any
Maryland statute or any order, rule or regulation of any Maryland
court or governmental agency or body of the State of Maryland
having jurisdiction over the Company or any of its properties or
assets. So far as is known to such counsel, and except for (a)
the registration of the Shares under the 1933 Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act or
applicable state and foreign securities laws in connection with
the purchase and distribution of the Shares by the Underwriters,
and (b) such consents, approvals, authorizations, orders, filings
or registrations, the absence of which, individually or in the
aggregate, would not have a material adverse effect on the
consummation of the transactions contemplated by this Agreement,
no consent, approval, authorization or order of, or filing or
registration with, any such Maryland court or governmental agency
or body of the State of Maryland is required for the execution,
delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby.
(f) Xxxxxxx X. Xxxxxx, Esq., General Counsel for the Company,
shall have furnished to the Representatives his written opinion,
addressed to the Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to the Representatives
to the effect that no Transaction Entity (i) is in violation of its
charter, by-laws, certificate of limited partnership, agreement of
limited partnership, deed of trust or other similar organizational
document or (ii) is in default in any respect, and no event has
occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other material agreement
or instrument of which such counsel is aware to which it is a party
or by which it is bound or to which any of the Properties or any of
its other properties or assets is subject.
(g) The Representatives shall have received from Xxxxxx & Xxxxx,
counsel for the Underwriters, such opinion or opinions, dated such
Delivery Date, with respect to the issuance and sale of the Shares,
the Registration Statement, the Prospectus and other related matters
as the Representatives may reasonably require, and the Company shall
have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(h) At the time of execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP a letter,
in form and substance satisfactory to the Representatives, addressed
to the Underwriters and dated the date hereof (i) confirming that they
are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, and (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information
is given in the Prospectus, as of a date not more than five days prior
to the date hereof), the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily
covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings.
(i) With respect to the letter of Ernst & Young LLP referred to
in the preceding paragraph and delivered to the Representatives
concurrently with the execution of this Agreement (the "initial
letter"), the Company shall have furnished to the Representatives a
letter (the "bring-down letter") of such accountants,
23
addressed to the Underwriters and dated such Delivery Date
(i) confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as
of the date of the bring-down letter (or, with respect to matters
involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date of the bring-down
letter), the conclusions and findings of such firm with respect to the
financial information and other matters covered by the initial letter
and (iii) confirming in all material respects the conclusions and
findings set forth in the initial letter.
(j) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, of its Chairman of the Board,
its President or a Vice President and its chief financial officer
stating that:
(i) The representations, warranties and agreements of
the Transaction Entities in Section 1 are true and correct as of
such Delivery Date; the Company has complied with all its
agreements contained herein; and the conditions set forth in
Sections 7(a) and 7(i) have been fulfilled; and
(ii) They have carefully examined the Registration
Statement and the Prospectus and, in their view (A) as of the
Effective Date, the Registration Statement and Prospectus did not
include any untrue statement of a material fact and did not omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (B)
since the Effective Date no event has occurred which should have
been set forth in a supplement or amendment to the Registration
Statement or the Prospectus.
(k) (i) No Transaction Entity or Property shall have sustained
since the date of the latest audited financial statements included in
the Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus or (ii) since such date there shall not have been any
change in the capital stock or long-term debt of either Transaction
Entity or any change, or any development involving a prospective
change, in or affecting any Property or the general affairs,
management, financial position, stockholders' equity or results of
operations of any Transaction Entity, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is, in the judgment of the
Representatives, so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of
the Shares being delivered on such Delivery Date on the terms and in
the manner contemplated in the Prospectus.
24
(l) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have
been declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall
have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse
change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the
United States shall be such) as to make it, in the reasonable judgment
of a majority in interest of the several Underwriters, impracticable
or inadvisable to proceed with the public offering or delivery of the
Shares being delivered on such Delivery Date on the terms and in the
manner contemplated in the Prospectus.
(m) The New York Stock Exchange, Inc. shall have approved the
Shares for listing, subject only to official notice of issuance.
(n) The Transaction Entities shall not have failed at or prior
to such Delivery Date to have performed or complied with any of their
agreements herein contained and required to be performed or complied
with by them hereunder at or prior to such Delivery Date.
(o) On the First Delivery Date, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
require for the purpose of enabling them to pass upon the issuance and
sale of the Shares as herein contemplated and related proceedings, or
in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Transaction Entities in
connection with the issuance and sale of the Shares as herein
contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(p) You shall have been furnished with the written agreements
referred to in Section 5(j) hereof.
(q) The Company shall have furnished or caused to be furnished
to you such further certificates and documents as the Representatives
shall have reasonably requested.
(r) In the event that the Underwriters exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the
Option Shares, the representations and warranties of the Transaction
Entities contained herein and the
25
statements in any certificates furnished by the Transaction Entities
hereunder shall be true and correct as of each Date of Delivery and,
at the relevant Date of Delivery, the Representatives shall have
received:
(i) A certificate, dated such Date of Delivery, of the
President or a Vice President of each Transaction Entity and of
the chief financial or chief accounting officer of each
Transaction Entity confirming that the certificate delivered on
the First Delivery Date pursuant to Section 7(i) hereof remains
true and correct as of such Date of Delivery.
(ii) The favorable opinions of Xxxxx, Day, Xxxxxx & Xxxxx,
counsel for the Company, and Xxxxxxx Xxxxx Xxxxxxx & Ingersoll,
Maryland counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Shares to be purchased on such
Date of Delivery and otherwise to the same effect as the opinions
required by Sections 7(d), 7(e) and 7(f) hereof.
(iii) The favorable opinion of Xxxxxx & Xxxxx, counsel
for the Underwriters, dated such Date of Delivery, relating to
the Option Shares to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section
(g) hereof.
(iv) A letter from Ernst & Young LLP, in form and substance
satisfactory to the Representatives and dated such Date of
Delivery, substantially the same in form and substance as the
letters furnished to the Representatives pursuant to Section 7(g)
hereof.
Any certificate or document signed by any officer of the Transaction
Entities and delivered to the Underwriters, or to counsel for the Underwriters,
shall be deemed a representation and warranty by the Transaction Entities to
each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase Option Shares
hereunder are subject to the satisfaction on and as of any Date of Delivery of
the conditions set forth in this Section 7, except that, if any Date of Delivery
is other than the First Delivery Date, the certificates, opinions and letters
referred to in Sections 7(d) through 7(i) hereof shall be dated the Date of
Delivery in question and the opinions called for by Sections 7(d), 7(e)
and 7(f) hereof shall be revised to reflect the sale of Option Shares.
8. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective: (i) upon the execution hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of the Registration Statement or such post-effective amendment
has been released by the Commission.
26
9. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If, on either
Delivery Date, any Underwriter defaults in the performance of its obligations
under this Agreement, the remaining non-defaulting Underwriters shall be
obligated to purchase the Shares which the defaulting Underwriter agreed but
failed to purchase on such Delivery Date in the respective proportions which the
number of Firm Shares set forth opposite the name of each remaining non-
defaulting Underwriter in Schedule 1 hereto bears to the total number of Firm
Shares set forth opposite the names of all the remaining non-defaulting
Underwriters in Schedule 1 hereto; PROVIDED, HOWEVER, that the remaining non-
defaulting Underwriters shall not be obligated to purchase any of the Shares on
such Delivery Date if the total number of Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such date exceeds
9.09% of the total number of Shares to be purchased on such Delivery Date, and
any remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the number of Shares which it agreed to purchase on such Delivery
Date pursuant to the terms of Section 2. If the foregoing maximums are
exceeded, the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representatives who so agree, shall have the right, but
shall not be obligated, to purchase, in such proportion as may be agreed upon
among them, all the Shares to be purchased on such Delivery Date. If the
remaining Underwriters or other underwriters satisfactory to the Representatives
do not elect to purchase the Shares which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such Delivery Date, this Agreement
(or, with respect to the Second Delivery Date, the obligation of the
Underwriters to purchase, and of the Company to sell, the Option Shares) shall
terminate without liability on the part of any non-defaulting Underwriter or the
Transaction Entities, except that the Transaction Entities will continue to be
liable for the payment of expenses to the extent set forth in Sections 6 and 12.
As used in this Agreement, the term "Underwriter" includes, for all purposes of
this Agreement unless the context requires otherwise, any party not listed in
Schedule 1 hereto who, pursuant to this Section 9, purchases Initial Shares
which a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Transaction Entities for damages caused by its
default. If other underwriters are obligated or agree to purchase the Shares of
a defaulting or withdrawing Underwriter, either the Representatives or the
Company may postpone the Delivery Date for up to seven full business days in
order to effect any changes that in the opinion of counsel for the Company or
counsel for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
10. INDEMNIFICATION AND CONTRIBUTION. (a) The Transaction Entities
jointly and severally, shall indemnify and hold harmless each Underwriter, its
officers and employees and each person, if any, who controls any Underwriter
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Shares), to which that Underwriter, officer,
employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto or (B) in
any blue sky application or other document prepared or executed by the Company
(or based upon any written information furnished
27
by the Company) specifically for the purpose of qualifying any or all of the
Shares under the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a "Blue Sky
Application"), (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading or
(iii) any act or failure to act or any alleged act or failure to act by any
Underwriter in connection with, or relating in any manner to, the Shares or the
offering contemplated hereby, and which is included as part of or referred to in
any loss, claim, damage, liability or action arising out of or based upon
matters covered by clause (i) or (ii) above (PROVIDED that the Transaction
Entities shall not be liable under this clause (iii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction that such
loss, claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Underwriter through
its gross negligence or willful misconduct), and shall reimburse each
Underwriter and each such officer, employee or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by that Underwriter,
officer, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; PROVIDED, HOWEVER, that the Transaction
Entities shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus, or in
any such amendment or supplement, or in any Blue Sky Application, in reliance
upon and in conformity with written information concerning such Underwriter
furnished to the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein. The foregoing indemnity
agreement is in addition to any liability which the Transaction Entities may
otherwise have to any Underwriter or to any officer, employee or controlling
person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless each Transaction Entity, its officers and employees, each of its
directors, and each person, if any, who controls each Transaction Entity within
the meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which each
Transaction Entity or any such director, officer or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained (A) in
any Preliminary Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto, or (B) in any Blue Sky Application or (ii)
the omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information concerning such Underwriter furnished to the Company through
the Representatives by or on behalf of that Underwriter specifically for
inclusion therein, and shall reimburse each Transaction Entity and any such
director, officer or controlling person for any legal or other expenses
reasonably incurred by each Transaction Entity or any such director, officer or
controlling person in connection with investigating or defending or preparing to
defend against any such loss,
28
claim, damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Underwriter may
otherwise have to each Transaction Entity or any such director, officer,
employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
10 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 10, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 10 except to the extent it has
been materially prejudiced by such failure, and PROVIDED FURTHER that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 10.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 10 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that
the Representatives shall have the right to employ counsel to represent jointly
the Representatives and those other Underwriters and their respective officers,
employees and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the Underwriters
against the Transaction Entities under this Section 10 if, in the reasonable
judgment of the Representatives, it is advisable for the Representatives and
those Underwriters, officers, employees and controlling persons to be jointly
represented by separate counsel, and in that event the fees and expenses of such
separate counsel shall be paid by the Transaction Entities. No indemnifying
party shall (i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding,
or (ii) be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with the consent of the indemnifying party or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 10 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 10(a) or 10(c) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Transaction Entities on the one hand and the Underwriters on
the
29
other from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Transaction Entities on the one hand
and the Underwriters on the other with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Transaction Entities on the one hand and the
Underwriters on the other with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering of the Shares
purchased under this Agreement (before deducting expenses) received by the
Transaction Entities, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the Shares purchased
under this Agreement, on the other hand, bear to the total gross proceeds from
the offering of the Shares under this Agreement, 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 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 Transaction Entities or the Underwriters, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Transaction
Entities and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section were to be 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 into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section shall be deemed to
include, for purposes of this Section 10(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 10(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 was offered to the public exceeds the amount
of any damages which such Underwriter has otherwise paid or become liable to pay
by reason of any 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 10(d) are
several in proportion to their respective underwriting obligations and not
joint.
(e) The Underwriters severally confirm and each Transaction Entity
acknowledges that the statements with respect to the public offering of the
Shares by the Underwriters set forth on the cover page of, the legend concerning
stabilization on the inside front cover page of, the names of the Underwriters
and the number of Shares which they are purchasing, the concession and
reallowance figures and the information contained in the tenth, eleventh,
twelfth and fourteenth paragraphs, in each case appearing under the caption
"Underwriting" in, the Prospectus are correct and constitute the only
information concerning such Underwriters furnished in writing to the Company by
or on behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
30
11. TERMINATION. The obligations of the Underwriters hereunder may
be terminated by the Representatives by written notice given to and received by
the Company prior to delivery of and payment for the Firm Shares if, prior to
that time, any of the events described in Section 7(i), 7(j) or 7(l), shall have
occurred or if the Underwriters shall decline to purchase the Shares for any
reason permitted under this Agreement.
12. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) the Company
shall fail to tender the Shares for delivery to the Underwriters by reason of
any failure, refusal or inability on the part of the Transaction Entities to
perform any agreement on their part to be performed, or because any other
condition of the Underwriters' obligations hereunder required to be fulfilled by
the Transaction Entities is not fulfilled, the Transaction Entities will
reimburse the Underwriters for all reasonable out-of-pocket expenses (including
fees and disbursements of counsel) incurred by the Underwriters in connection
with this Agreement and the proposed purchase of the Shares, and upon demand the
Transaction Entities shall pay the full amount thereof to the Representatives.
If this Agreement is terminated pursuant to Section 9 by reason of the default
of one or more Underwriters, the Transaction Entities shall not be obligated to
reimburse any defaulting Underwriter on account of those expenses.
13. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to Xxxxxx Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate
Department (Fax: 000-000-0000), with a copy, in the case of any notice
pursuant to Section 10(c), to the Director of Litigation, Office of
the General Counsel, Xxxxxx Brothers Inc., Three World Financial
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (Fax: (000) 000-0000);
(b) if to the Transaction Entities, shall be delivered or sent
by mail, telex or facsimile transmission to the Company, 000 Xxxxxxxx
Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxxx (Fax: (000) 000-0000); with a copy to Xxxxx, Day, Xxxxxx &
Xxxxx, 00 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxxx (Fax: (000) 000-0000).
PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to Section 10(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Transaction
Entities shall be entitled to act and rely upon any request, consent, notice or
agreement given or made on behalf of the Underwriters by Xxxxxx Brothers Inc.
14. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Transaction
Entities and their respective personal representatives and successors. This
Agreement and the terms and provisions hereof are
31
for the sole benefit of only those persons, except that (A) the representations,
warranties, indemnities and agreements of the Transaction Entities contained in
this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Underwriters contained
in Section 10(b) of this Agreement shall be deemed to be for the benefit of
directors of the Transaction Entities, officers of the Company who have signed
the Registration Statement and any person controlling the Transaction Entities
within the meaning of section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 14, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
15. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Transaction Entities and the Underwriters
contained in this Agreement or made by or on behalf on them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Shares and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
16. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Shares Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
17. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of New York.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
32
19. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the
Company and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
GREAT LAKES REIT, INC.
By:
---------------------------------------------
Name:
Title:
GREAT LAKES REIT, L.P.
By: Great Lakes REIT, Inc., its general partner
By:
----------------------------------------
Name:
Title:
Accepted:
XXXXXX BROTHERS INC.
By:
-------------------------
AUTHORIZED REPRESENTATIVE
For itself and as Representative of
the several Underwriters named in
Schedule 1 hereto
33
SCHEDULE 1
Number of
Underwriters Shares
------------ -------
Xxxxxx Brothers Inc. . . . . . . . . . . . . . . . . . . . . . . _________
X. X. Xxxxxxx & Sons, Inc. . . . . . . . . . . . . . . . . . . . _________
Xxxxx Xxxxxx Inc.. . . . . . . . . . . . . . . . . . . . . . . . _________
EVEREN Securities, Inc.. . . . . . . . . . . . . . . . . . . . . _________
[Add Others] . . . . . . . . . . . . . . . . . . . . . . . . . . _________
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . ---------
=========
34
