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EXHIBIT 1.1
PAN PACIFIC RETAIL PROPERTIES, INC.
2,000,000 Shares(1)
Common Stock
UNDERWRITING AGREEMENT
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May [12], 1998
PRUDENTIAL SECURITIES INCORPORATED
BANCAMERICA XXXXXXXXX XXXXXXXX
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXX XXXXXX INC.
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Pan Pacific Retail Properties, Inc., a Maryland corporation qualified as
a real estate investment trust (the "Company"), hereby confirms its agreement
with the several underwriters named in Schedule 1 hereto (the "Underwriters"),
for whom you have been duly authorized to act as representatives (in such
capacities, the "Representatives"), as set forth below. If you are the only
Underwriters, all references herein to the Representatives shall be deemed to be
to the Underwriters.
1. Securities. Subject to the terms and conditions herein contained, the
Company proposes to issue and sell to the several Underwriters an aggregate of
2,000,000 shares (the "Firm Securities") of the Company's common stock, par
value $.01 per share ("Common Stock"). The Company also proposes to issue and
sell to the several Underwriters not more than 300,000 additional shares of
Common Stock if requested by the Representatives as provided in Section 3 of
this Agreement. Any and all shares of Common Stock to be purchased by the
Underwriters pursuant to such option are referred to herein as the "Option
Securities", and the Firm Securities and any Option Securities are collectively
referred to herein as the "Securities".
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each of the several Underwriters that:
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(1) Plus an option to purchase from Pan Pacific Retail Properties, Inc. up to
300,000 additional shares to cover over-allotments.
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(a) A registration statement on Form S-11 (File No. 333-50125)
with respect to the Securities, including a prospectus subject to completion,
has been filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), and one
or more amendments to such registration statement may have been so filed. After
the execution of this Agreement, the Company will file with the Commission
either (i) if such registration statement, as it may have been amended, has been
declared by the Commission to be effective under the Act, either (A) if the
Company relies on Rule 434 under the Act, a Term Sheet (as hereinafter defined)
relating to the Securities, that shall identify the Preliminary Prospectus (as
hereinafter defined) that it supplements containing such information as is
required or permitted by Rules 434, 430A and 424(b) under the Act or (B) if the
Company does not rely on Rule 434 under the Act, a prospectus in the form most
recently included in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement), with such
changes or insertions as are required by Rule 430A under the Act or permitted by
Rule 424(b) under the Act, and in the case of either clause (i)(A) or (i)(B) of
this sentence as have been provided to and approved by the Representatives prior
to the execution of this Agreement, or (ii) if such registration statement, as
it may have been amended, has not been declared by the Commission to be
effective under the Act, an amendment to such registration statement, including
a form of prospectus, a copy of which amendment has been furnished to and
approved by the Representatives prior to the execution of this Agreement. The
Company may also file a related registration statement with the Commission
pursuant to Rule 462(b) under the Act for the purpose of registering certain
additional Securities, which registration, assuming compliance with the
requirements of Rule 462(b), shall be effective upon filing with the Commission.
As used in this Agreement, the term "Original Registration Statement" means the
registration statement initially filed relating to the Securities, as amended at
the time when it was or is declared effective, including all financial schedules
and exhibits thereto and including any information omitted therefrom pursuant to
Rule 430A under the Act and included in the Prospectus (as hereinafter defined);
the term "Rule 462(b) Registration Statement" means any registration statement
filed with the Commission pursuant to Rule 462(b) under the Act (including the
Registration Statement and any Preliminary Prospectus or Prospectus incorporated
therein at the time such Registration Statement becomes effective); the term
"Registration Statement" includes both the Original Registration Statement and
any Rule 462(b) Registration Statement; the term "Preliminary Prospectus" means
each prospectus subject to completion filed with such registration statement and
any amendment or supplement thereto (including the prospectus subject to
completion, if any, included in the Registration Statement or any amendment
thereto at the time it was or is declared effective); the term "Prospectus"
means:
(i) if the Company relies on Rule 434 under the Act, the Term
Sheet relating to the Securities that is first filed pursuant to
Rule 424(b)(7) under the Act, together with the Preliminary
Prospectus identified therein that such Term Sheet supplements;
(ii) if the Company does not rely on Rule 434 under the Act, the
prospectus first filed with the Commission pursuant to Rule
424(b) under the Act; or
(iii) if the Company does not rely on Rule 434 under the Act and
if no prospectus is required to be filed pursuant to Rule 424(b)
under the Act, the prospectus included in the Registration
Statement;
and the term "Term Sheet" means any term sheet that satisfies the requirements
of Rule 434 under the Act. Any reference herein to the "date" of a Prospectus
that includes a Term Sheet shall mean the date of such Term Sheet.
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(b) The Commission has not issued any order preventing or
suspending use of any Preliminary Prospectus. Each Preliminary Prospectus
provided to Underwriters for use in connection with the issuance and sale of the
Securities (i) contained all statements required to be stated therein in
accordance with, and complied in all material respects with the requirements of,
the Act and the rules and regulations of the Commission thereunder and (ii) did
not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. When the
Registration Statement or any amendment thereto was or is declared effective, it
(i) contained or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects with the
requirements of, the Act and the rules and regulations of the Commission
thereunder and (ii) did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading. When the Prospectus or any Term Sheet that is
a part thereof or any amendment or supplement to the Prospectus is filed with
the Commission pursuant to Rule 424(b) (or, if the Prospectus or part thereof or
such amendment or supplement is not required to be so filed, when the
Registration Statement or the amendment thereto containing such amendment or
supplement to the Prospectus was or is declared effective) and on the Firm
Closing Date and any Option Closing Date (both as hereinafter defined), the
Prospectus, as amended or supplemented at any such time, (i) contained or will
contain all statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements of, the
Act and the rules and regulations of the Commission thereunder and (ii) did not
or will not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The foregoing
provisions of this paragraph (b) do not apply to statements or omissions made in
any Preliminary Prospectus, the Registration Statement or any amendment thereto
or the Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein.
(c) If the Company has elected to rely on Rule 462(b) and the
Rule 462(b) Registration Statement has not been declared effective (i) the
Company has filed a Rule 462(b) Registration Statement in compliance with and
that is effective upon filing pursuant to Rule 462(b) and has received
confirmation of its receipt and (ii) the Company has given irrevocable
instructions for transmission of the applicable filing fee in connection with
the filing of the Rule 462(b) Registration Statement, in compliance with Rule
111 promulgated under the Act or the Commission has received payment of such
filing fee.
(d) The Company and each of its subsidiaries (which are
corporations) have been duly organized and are validly existing as corporations
in good standing under the laws of their respective jurisdictions of
incorporation and are duly qualified to transact business as foreign
corporations and are in good standing under the laws of all other jurisdictions
where the ownership or leasing of their respective properties or the conduct of
their respective businesses requires such qualification, except where the
failure to be so qualified does not amount to a material liability or disability
to the Company and its subsidiaries, taken as a whole. Each of the Company's
subsidiaries (which are partnerships or limited liability companies) have been
duly organized and are validly existing as partnerships or limited liability
companies, as the case may be, in good standing under the laws of their
respective jurisdictions of organization and, as applicable, are duly qualified
to transact business as foreign partnerships and are in good standing under the
laws of all other jurisdictions where the ownership or leasing of their
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respective properties or the conduct of their respective businesses requires
such qualification, except where the failure to be so qualified does not amount
to a material liability or disability to the Company and its subsidiaries, taken
as a whole.
(e) The Company and each of its subsidiaries have full power
(corporate or other) to own or lease their respective properties and conduct
their respective businesses as described in the Registration Statement and the
Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus; and the Company has full power (corporate or other) to
enter into this Agreement and to carry out all the terms and provisions hereof
to be carried out by it.
(f) The issued shares of capital stock of each of the Company's
subsidiaries (which are corporations) have been duly authorized and validly
issued, are fully paid and nonassessable and, except as otherwise set forth in
the Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus, are owned beneficially by the Company free and clear of
any security interests, liens, encumbrances, equities or claims. The partnership
agreements of the Company's subsidiaries (which are partnerships) have been duly
authorized, executed and delivered by the general partners thereof and
constitute the valid and binding obligation of the general partners thereof.
Except as disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), such partnership agreements
reflect the Company and/or one or more of the Company's subsidiaries as the sole
beneficial owners of the partnership interests in such partnerships. The
operating agreements of the Company's subsidiaries (which are limited liability
companies) have been duly authorized, executed and delivered by the members
thereof and constitute the valid and binding obligation of the members thereof.
Such operating agreements reflect the Company and/or one or more of the
Company's subsidiaries as the sole beneficial owners of all the membership
interests in such limited liability companies.
(g) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus. All of the issued shares of
capital stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable. The Firm Securities and the Option Securities
have been duly authorized and at the Firm Closing Date or the related Option
Closing Date (as the case may be), after payment therefor in accordance
herewith, will be validly issued, fully paid and nonassessable. Except as
disclosed in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), no holders of outstanding shares of capital
stock of the Company are entitled as such to any preemptive or other rights to
subscribe for any of the Securities, and no holder of securities of the Company
has any right which has not been fully exercised or waived to require the
Company to register the offer or sale of any securities owned by such holder
under the Act in the public offering contemplated by this Agreement.
(h) The capital stock of the Company conforms to the description
thereof contained in the Prospectus or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus.
(i) Except as disclosed in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), there are no
outstanding (A) securities, equity interests or obligations of the Company or
any of its subsidiaries convertible into or exchangeable for any capital stock
or equity interests (as the case may be) of the Company or any such subsidiary,
(B) warrants, rights or options to subscribe for or purchase from the
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Company or any such subsidiary any such capital stock or equity interests or any
such convertible or exchangeable securities, equity interests or obligations, or
(C) obligations of the Company or any such subsidiary to issue any shares of
capital stock, equity interests, any such convertible or exchangeable
securities, equity interests or obligations, or any such warrants, rights or
options.
(j) The balance sheet of the Company (including the notes
thereto) included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) fairly
presents the financial position of the Company at the date therein specified.
The consolidated financial statements (including the notes thereto) of the
Company and the schedules of the Company included in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present the financial position, the results of
operations and cash flows of the Company, at the date and for the periods
therein specified. The combined historical summaries of certain revenues and
certain expenses (including the notes thereto) of certain of the Properties
included in the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) fairly present the
combined certain revenues and certain expenses of such properties for the
periods therein specified. All of the foregoing financial statements (including
the notes thereto) and schedules have been prepared in accordance with generally
accepted accounting principles consistently applied for each of the periods
presented. The selected financial data set forth under the captions "Summary
Selected Financial Data" and "Selected Consolidated Financial Data" in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present, on the basis stated in the Prospectus
(or such Preliminary Prospectus), the information included therein.
(k) The pro forma condensed consolidated financial statements
(including the notes thereto) of the Company included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) comply in all material respects with the
applicable requirements of Rule 11-02 of Regulation S-X of the Commission and
the pro forma adjustments have been properly applied to the historical amounts
in the compilation of such information and the assumptions used in the
preparation thereof are, in the opinion of the Company, reasonable. Other than
the historical and pro forma financial statements (and schedules) included
therein, no other historical or pro forma financial statements (or schedules)
are required to be included in the Registration Statement or Prospectus.
(l) KPMG Peat Marwick LLP, who have audited certain financial
statements and schedules and delivered their reports with respect to the
financial statements and schedules included in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), are independent public accountants as required by the
Act and the applicable rules and regulations thereunder.
(m) The execution and delivery of this Agreement have been duly
authorized by the Company and this Agreement has been duly executed and
delivered by the Company, and is the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject to the
effect of bankruptcy, insolvency, moratorium, fraudulent conveyance,
reorganization and similar laws relating to creditors' rights generally and to
the application of equitable principles in any proceeding, whether at law or in
equity.
(n) No legal or governmental proceedings are pending to which the
Company
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or any of its subsidiaries is a party or to which the property of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and are not described
therein, and no such proceedings have been threatened against the Company or any
of its subsidiaries or with respect to any of their respective properties; and
no contract or other document is required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the Registration
Statement that is not described therein (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) or filed as required.
(o) The issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by the
Company with the other provisions of this Agreement and the consummation of the
other transactions herein contemplated do not (i) require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, except such as have been obtained, such as may be required under
state securities or blue sky laws and, if the registration statement filed with
respect to the Securities (as amended) is not effective under the Act as of the
time of execution hereof, such as may be required (and shall be obtained as
provided in this Agreement) under the Act, or (ii) conflict with or result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or any of their respective
properties are bound, or the charter documents or by-laws or certificate of
limited partnership or partnership agreement (as the case may be) of the Company
or any of its subsidiaries, or any statute or any judgment, decree, order, rule
or regulation of any court or other governmental authority or any arbitrator
applicable to the Company or any of its subsidiaries.
(p) The Company and its subsidiaries has full power (corporate or
other) to enter into and deliver (as applicable) the agreements set forth on
Schedule 2 hereto (collectively, the "Transaction Documents") to which each is
party and to carry out all the terms and provisions thereof to be carried out by
each, respectively. The execution and delivery of the Transaction Documents have
been duly authorized by the Company and its subsidiaries (as applicable), and
the Transaction Documents have been or will be on the Firm Closing Date duly
executed and delivered by the Company and its subsidiaries (as applicable), and
each is the valid and binding agreement of the Company and its subsidiaries (as
applicable), enforceable against the Company and its subsidiaries (as
applicable) in accordance with its terms, subject to the effect of bankruptcy,
insolvency, moratorium, fraudulent conveyance, reorganization and similar laws
relating to creditors' rights generally and to the application of equitable
principles in any proceeding, whether at law or in equity.
(q) The execution and delivery of the Transaction Documents and
the compliance by Revenue Properties Company Limited, a publicly held Canadian
real estate company ("Revenue Properties"), Pan Pacific Development (U.S.) Inc.,
a Delaware corporation and its affiliates ("PPD") and the Company and its
subsidiaries (as applicable) with their respective obligations under the
Transaction Documents do not (i) require the consent, approval, authorization,
registration or qualification of or with any governmental authority, except such
as have been obtained, such as may be required under state securities or blue
sky laws and, if the registration statement filed with respect to the Securities
(as amended) is not effective under the Act as of the time of execution hereof,
such as may be required
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(and shall be obtained as provided in this Agreement) under the Act, or (ii)
conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries or
any of their respective properties are bound, or the charter documents or
by-laws or certificate of limited partnership or partnership agreement (as the
case may be) of the Company or any of its subsidiaries, or any statute or any
judgment, decree, order, rule or regulation of any court or other governmental
authority or any arbitrator applicable to the Company or any of its
subsidiaries.
(r) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), neither the Company
nor any of its subsidiaries has sustained any material loss or interference with
their respective businesses or properties from fire, flood, hurricane, accident
or other calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding and there has not been any
material adverse change, or any development involving a prospective material
adverse change, in the condition (financial or otherwise), management, business
prospects, net worth, or results of operations of the Company and its
subsidiaries, taken as a whole, except in each case as described in or
contemplated by the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
(s) The Company has not, directly or indirectly, (i) taken any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) since the filing of the Registration Statement (A) sold, bid
for, purchased, or paid anyone any compensation for soliciting purchases of, the
Securities or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(t) The Company has not distributed and, prior to the later of
(i) the Closing Date and (ii) the completion of the distribution of the
Securities, will not distribute any offering material in connection with the
offering and sale of the Securities other than the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or other materials, if any, permitted by the Act.
(u) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), (1) the Company and
its subsidiaries have not incurred any material liability or obligation, direct
or contingent, nor entered into any material transaction not in the ordinary
course of business; (2) the Company has not purchased any of its outstanding
capital stock (other than as contemplated by Section 2(j) hereof); and (3) there
has not been any material change in the capital stock or partnership interests
(as the case may be), short-term debt or long-term debt of the Company and its
consolidated subsidiaries, except in each case as described in or contemplated
by the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(v) The Company or its subsidiaries (as the case may be) has good
and marketable title in fee simple to all items of real property comprising part
of the Properties (as defined in the Registration Statement and the Prospectus,
or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) (except with respect to the Partially-Owned
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Properties (as defined in the Registration Statement and the Prospectus, or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus) and
to land held pursuant to a ground lease or subject to an air space lease) and
marketable title to all personal property comprising part of the Properties, in
each case free and clear of any security interests, liens, encumbrances,
equities, claims and other defects, except such as do not materially and
adversely affect the value of such property and do not interfere with the use
made or proposed to be made of such property by the Company or such subsidiary,
and any real property and buildings comprising part of the Properties held
pursuant to or subject to a ground lease, air space lease or other lease will be
held by the Company or any such subsidiary under or subject to valid, subsisting
and enforceable ground leases, air space leases or other leases, with such
exceptions as are not material and do not interfere with the use made or
proposed to be made of such property and buildings by the Company or such
subsidiary, in each case except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(w) No labor dispute with the employees of the Company or any of
its subsidiaries exists or is threatened or imminent that could result in a
material adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(x) The Company and its subsidiaries own or possess all material
patents, patent applications, trademarks, service marks, trade names, licenses,
copyrights and proprietary or other confidential information currently employed
or proposed to be employed by them in connection with the business now operated
by them as described in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), and neither the Company nor
any such subsidiary has received any notice of infringement of or conflict with
asserted rights of any third party with respect to any of the foregoing which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a material adverse change in the condition (financial
or otherwise), business prospects, net worth or results of operations of the
Company and its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(y) The Company and each of its subsidiaries own or possess all
contract rights that are material to the businesses now operated by them taken
as a whole as described in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), including all such contract
rights referred to in the Prospectus. All such contracts are in full force and
effect, and neither the Company nor any such subsidiary is aware of any material
breach by any party under any of such contracts.
(z) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which they
are engaged as described in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus); and neither the Company nor
any such subsidiary has any reason to believe that it will not be able to renew
such insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business at a
cost that would not materially and adversely affect the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Company and its subsidiaries, taken as a
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whole, except as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
(aa) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from making
any other distribution on such subsidiary's capital stock or partnership
interests, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiary's property or
assets to the Company or any other subsidiary of the Company, except as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and except pursuant to (i)
existing indebtedness as in effect on the date hereof, (ii) the Unsecured Credit
Facility, (iii) applicable law and (iv) with respect to prohibitions only
against transferring any of such subsidiary's property or assets to the Company
or any other subsidiary of the Company, (A) customary non-assignment provisions
contained in leases to which the Company or any of its subsidiaries is a party
and (B) security interests, including purchase money obligations, applicable to
any property of the Company or any of its subsidiaries as of the date hereof.
(bb) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective businesses, and
neither the Company nor any such subsidiary has received any notice of
proceedings relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, would result in a material adverse
change in the condition (financial or otherwise), business prospects, net worth
or results of operations of the Company and its subsidiaries, taken as a whole,
except as described in or contemplated by the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus).
(cc) The Company is not, and as of the Firm Closing Date and the
Option Closing Date will not be, subject to registration as an investment
company under the Investment Company Act of 1940, as amended.
(dd) Each of the Company and its subsidiaries has filed all
foreign, federal, state and local tax returns that are required to be filed or
has requested in a timely manner and/or has received extensions thereof (except
in any case in which the failure so to file would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole) and has paid all
taxes required to be paid by it and any other interest, assessment, fine or
penalty levied or assessed against it, to the extent that any of the foregoing
is due and payable, except for any such interest, assessment, fine or penalty
that is currently being contested in good faith or as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) and for which the Company has adequately
provided for on its financial statements under generally accepted accounting
principles.
(ee) (i) Except as described in or contemplated by the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus), the Company and its subsidiaries, the Properties and each business
operating at the Properties are in full compliance with Environmental Laws, and
have obtained and are in compliance with all permits, licenses or other
authorizations ("Permits") that are required under Environmental Laws except
where any non-compliance with Environmental Laws or the failure to obtain or
otherwise comply with any such Permits would not, individually or in the
aggregate, result in a material adverse change in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Company and its subsidiaries, taken as a whole.
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(ii) Except as disclosed in the environmental site assessments,
none of the Properties are currently or, to the knowledge of the Company
and its subsidiaries, have in the past been used for the generation,
storage, treatment, transportation disposal of Hazardous Material except
in full compliance with Environmental Laws and only in reasonable
amounts that are customary and necessary for the businesses located on
the Properties.
(iii) Except as disclosed in the environmental site assessments,
there are no Releases of Hazardous Materials at, from, onto or under any
of the Properties nor have their been any Releases of Hazardous
Substances in the past at, from, onto or under any of the Properties.
(iv) Except as disclosed in the environmental site assessments,
no Remedial Actions are currently being performed or, to the best
knowledge of the Company, are planned to be performed at any of the
Properties.
(v) Except as disclosed in the environmental site assessments,
none of the Properties have been listed or, to the best of the Company's
knowledge, have been proposed to be listed on the National Priorities
List ("NPL"), the CERCLA Information System ("CERCLIS") or any similar
state list or inventory of sites which have been potentially
contaminated with Release of Hazardous Materials.
(vi) No Environmental Claims have been asserted against the
Company and its subsidiaries, the Properties or any of the businesses
operating at the Properties.
(vii) Except as disclosed in the environmental site assessments,
the property condition reports or seismic risk assessments performed on
the Properties, the Company is not aware of any environmental or
engineering conditions at any of the Properties that would, individually
or in the aggregate, result in a material adverse change in the
condition (financial or otherwise), or business prospects, net worth or
results of operations of the Company and its subsidiaries, taken as a
whole,
(viii) None of the environmental consultants who have been
retained to prepare environmental site assessments, the property
condition reports or seismic risk assessments performed on the
Properties for the Company, have been employed on a contingent basis for
such purposes or have any substantial interest in the Company or any of
its subsidiaries and none of them or any of their directors, officers or
employees are connected in any way with the Company and its subsidiaries
as a promoter, selling agent, voting trustee, director, officer or
employee.
As used herein, "Environmental Claims" refers to any complaint,
summons, citation, notice, directive, order, claim, litigation, investigation,
judicial or administrative proceeding, judgment, letter or other communication
from any governmental agency, department, bureau, office or other authority, or
any third party involving (i) violations of Environmental Laws at the Properties
or (ii) Releases of Hazardous Materials at, from, onto or under any of the
Properties; (iii) Releases of Hazardous Materials migrating from adjoining
properties or businesses onto or under the Properties; or (iv) Releases of
Hazardous Materials migrating from the Properties onto or under adjoining
properties or businesses. "Environmental Laws" includes the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C.
9601 et seq., as amended; the Resource Conservation and Recovery Act ("RCRA"),
42 U.S.C. 6901 et seq., as amended; the Clean Air Act ("CAA"), 42 U.S.C. 7401 et
seq., as amended; the Clean Water Act ("CWA"), 33 U.S.C. 1251 et seq., as
amended; the
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Occupational Safety and Health Act ("OSHA"), 29 U.S.C. 655 et seq., and any
other federal, state, local or municipal laws, statutes, regulations, rules or
ordinances imposing liability or establishing standards of conduct for
protection of the environment.
As used herein, "Environmental Liabilities" means any monetary
obligations, losses, liabilities (including strict liability), damages, punitive
damages, consequential damages, treble damages, costs and expenses (including
all reasonable out-of-pocket fees, disbursements and expenses of counsel,
out-of-pocket expert and consulting fees and out-of-pocket costs for
environmental site assessments, remedial investigation and feasibility studies),
fines, penalties, sanctions and interest incurred as a result of any
Environmental Claim filed by any Governmental Authority or any third party which
relate to any violations of Environmental Laws, Remedial Actions, Releases or
threatened Releases of Hazardous Materials from or onto (i) any property
presently or formerly owned by the Company or any of its subsidiaries or a
predecessor in interest, or (ii) any facility which received Hazardous Materials
generated by the Company or any of its subsidiaries or a predecessor in
interest.
As used herein, "Hazardous Materials" shall include (a) any
element, compound, or chemical that is defined, listed or otherwise classified
as a contaminant, pollutant, toxic pollutant, toxic or hazardous substance,
extremely hazardous substance or chemical, hazardous waste, biohazardous or
infectious waste, special waste, or solid waste under Environmental Laws; (b)
petroleum, petroleum-based or petroleum-derived products; (c) polychlorinated
biphenyls; (d) any substance exhibiting a hazardous waste characteristic
including but not limited to corrosivity, ignitibility, toxicity or reactivity
as well as any radioactive or explosive materials; and (e) any
asbestos-containing materials.
As used herein, "Release" means any spilling, leaking, pumping,
emitting, emptying, discharging, injecting, escaping, leaching, migrating,
dumping, or disposing of Hazardous Materials (including the abandonment or
discarding of barrels, containers or other closed receptacles containing
Hazardous Materials) into the environment.
As used herein, "Remedial Action" means all actions taken to (i)
clean up, remove, remediate, contain, treat, monitor, assess, evaluate or in any
other way address Hazardous Materials in the indoor or outdoor environment; (ii)
prevent or minimize a Release or threatened Release of Hazardous Materials so
they do not migrate or endanger or threaten to endanger public health or welfare
or the indoor or outdoor environment; (iii) perform pre-remedial studies and
investigations and post-remedial operation and maintenance activities; or (iv)
any other actions authorized by 42 U.S.C. 9601.
(ff) Each certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters on the Firm
Closing Date or on the Option Closing Date shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
(gg) Except for the shares of capital stock of, or partnership
interests in (as applicable), each of its subsidiaries owned by the Company and
such subsidiaries, neither the Company nor any such subsidiary owns any shares
of stock or any other equity securities of any corporation or has any equity
interest in any firm, partnership, association or other entity, except as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(hh) The Company and each of its subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable assurance that
(1) transactions are
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executed in accordance with management's general or specific authorizations; (2)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (3) access to assets is permitted only in
accordance with management's general or specific authorization; and (4) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(ii) No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries or any of their respective properties is bound or may be
affected in any material adverse respect with regard to the property, business
or operations of the Company and its subsidiaries taken as a whole.
(jj) No foreclosures have been instituted and none are currently
threatened with respect to any property or assets directly or indirectly owned
(whether now or in the past) by the Company or any of its subsidiaries. Except
as otherwise described in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), the Company does not own or
operate any real property other than the real properties comprising part of the
Properties.
(kk) Except as otherwise described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), (i) no
proceeding or filing of a petition seeking relief under Title 11 of the United
States Code or any other federal, state or foreign bankruptcy, insolvency,
liquidation or similar law has been commenced or instituted (whether voluntary
or involuntary) by or with respect to the Company, (ii) the Company has not
applied for or consented to the appointment of a receiver, trustee, custodian,
sequestrator or similar official for any such persons or for a substantial part
of any such persons' property or assets and (iii) the Company has not made a
general assignment for the benefit of its creditors.
(ll) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers, stockholders, tenants,
customers or suppliers of the Company on the other hand, which is required to be
described in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) which is not so described.
(mm) At all times during its existence, the Company has been
organized as a real estate investment trust (a "REIT") under the Internal
Revenue Code of 1986, as amended and the rules and regulations thereunder (the
"Code"), and has no earnings and profits accumulated in a non-REIT year within
the meaning of Section 857(a)(3)(B) of the Code ("Non-REIT E&P") or distributed
any such Non-REIT E&P on or prior to the close of 1997 (or made such a
distribution that will be treated as having been made for federal income tax
purposes on or prior to the close of 1997), and the proposed method of operation
of the Company and its subsidiaries will enable the Company to meet the
requirements for taxation as a REIT under the Code beginning with its taxable
year ended December 31, 1997 and for its subsequent taxable years except as
described in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus). All statements in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
regarding the Company's qualification as a REIT are true, complete and correct
in all material respects.
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(nn) (i) Each of the Properties complies with all applicable
codes, laws, ordinances and regulations (including, without limitation, building
and zoning codes and laws and regulations relating to access to the Properties)
and deed restrictions or other covenants, except for such failures to comply
that would not materially impair the value of any of the Properties or would not
result in a forfeiture or reversion of title; (ii) neither the Company nor any
of its subsidiaries has knowledge of any pending or threatened litigation,
moratorium, condemnation proceedings, zoning change, or other similar proceeding
or action that could in any manner affect the size of, use of, improvements on,
construction on, access to or availability of utilities or other necessary
services to, the Properties, except such proceedings or actions which are not
reasonably expected to, singly or in the aggregate, result in a material adverse
change in the condition (financial or otherwise), business prospects, net worth
or results of operations of the Company and its subsidiaries, taken as a whole;
(iii) all liens, charges, encumbrances, claims, or restrictions on or affecting
the properties and assets (including the Properties) of the Company or any of
its subsidiaries that are required to be disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) are
disclosed therein; (iv) neither the Company, any of its subsidiaries nor any
tenant of any portion of any of the Properties is in default under any of the
ground leases or air space leases (as lessee), space leases (as lessor or
lessee, as the case may be) or other occupancy or license agreement relating to,
or under any of the mortgages or other security documents or other agreements
encumbering or otherwise recorded against, the Properties and there is no 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, except such
defaults that would not, singly or in the aggregate, result in a material
adverse change in the condition (financial or otherwise), business prospects,
net worth or results of operations of the Company and its subsidiaries, taken as
a whole; and (v) except as described in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and except as
otherwise provided by law, no tenant under any lease pursuant to which the
Company or any of its subsidiaries leases the Properties has an option or right
of first refusal to purchase the premises leased thereunder or the building of
which such premises are a part.
(oo) Each of the Properties is in substantial compliance with all
presently applicable provisions of the Americans with Disabilities Act and no
failure of the Company or any of its subsidiaries to comply with all presently
applicable provisions of the Americans with Disabilities Act would result in a
material adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole.
(pp) All of the representations and warranties of the Company
contained in the Transaction Documents are true and correct in all material
respects.
3. Purchase, Sale and Delivery of the Securities. (a) On the basis of
the representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company, at a purchase
price of $______ per share, the number of Firm Securities set forth opposite the
name of such Underwriter in Schedule 1 hereto. One or more certificates in
definitive form for the Firm Securities that the several Underwriters have
agreed to purchase hereunder, and in such denomination or denominations and
registered in such name or names as the Representatives request upon notice to
the Company at least 48 hours prior to the Firm Closing Date, shall be delivered
by or on behalf of the Company to the Representatives for the respective
accounts of the Underwriters, against payment by or on behalf of the
Underwriters of
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the purchase price therefor by wire transfer in same-day funds (the "Wired
Funds") to the account of the Company. Such delivery of and payment for the Firm
Securities shall be made at the offices of Xxxxxx & Xxxxxxx, 000 Xxxx Xxxxxx
Xxxxx, 00xx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000 at 6:00 A.M., local time, on May
15, 1998, or at such other place, time or date as the Representatives and the
Company may agree upon or as the Representatives may determine pursuant to
Section 9 hereof, such time and date of delivery against payment being herein
referred to as the "Firm Closing Date". The Company will make such certificate
or certificates for the Firm Securities available for checking and packaging by
the Representatives at the offices in New York, New York of the Company's
transfer agent or registrar or of Prudential Securities Incorporated at least 24
hours prior to the Firm Closing Date.
(b) For the purpose of covering any over-allotments in connection
with the distribution and sale of the Firm Securities as contemplated by the
Prospectus, the Company hereby grants to the several Underwriters an option to
purchase, severally and not jointly, the Option Securities. The purchase price
to be paid for any Option Securities shall be the same price per share as the
price per share for the Firm Securities set forth above in paragraph (a) of this
Section 3, plus, if the purchase and sale of any Option Securities takes place
after the Firm Closing Date and after the Firm Securities are trading
"ex-dividend", an amount equal to the dividends payable on such Option
Securities. The option granted hereby may be exercised as to all or any part of
the Option Securities from time to time within thirty days after the date of the
Prospectus (or, if such 30th day shall be a Saturday or Sunday or a holiday, on
the next business day thereafter when the New York Stock Exchange is open for
trading). The Underwriters shall not be under any obligation to purchase any of
the Option Securities prior to the exercise of such option. The Representatives
may from time to time exercise the option granted hereby by giving notice in
writing or by telephone (confirmed in writing) to the Company setting forth the
aggregate number of Option Securities as to which the several Underwriters are
then exercising the option and the date and time for delivery of and payment for
such Option Securities. Any such date of delivery shall be determined by the
Representatives but shall not be earlier than two business days or later than
five business days after such exercise of the option and, in any event, shall
not be earlier than the Firm Closing Date. The time and date set forth in such
notice, or such other time on such other date as the Representatives and Company
may agree upon or as the Representatives may determine pursuant to Section 9
hereof, is herein called the "Option Closing Date" with respect to such Option
Securities. Upon exercise of the option as provided herein, the Company shall
become obligated to sell to each of the several Underwriters, and, subject to
the terms and conditions herein set forth, each of the Underwriters (severally
and not jointly) shall become obligated to purchase from the Company, the same
percentage of the total number of the Option Securities as to which the several
Underwriters are then exercising the option as such Underwriter is obligated to
purchase of the aggregate number of Firm Securities, as adjusted by the
Representatives in such manner as they deem advisable to avoid fractional
shares. If the option is exercised as to all or any portion of the Option
Securities, one or more certificates in definitive form for such Option
Securities, and payment therefor, shall be delivered on the related Option
Closing Date in the manner, and upon the terms and conditions, set forth in
paragraph (a) of this Section 3, except that reference therein to the Firm
Securities and the Firm Closing Date shall be deemed, for purposes of this
paragraph (b), to refer to such Option Securities and Option Closing Date,
respectively.
(c) The Company hereby acknowledges that the wire transfer by or
on behalf of the Underwriters of the purchase price for any Securities does not
constitute closing of a purchase and sale of the Securities. Only execution and
delivery of a receipt for Securities by the Underwriters indicates completion of
the closing of a purchase of the Securities from the
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Company. Furthermore, in the event that the Underwriters wire funds to the
Company prior to the completion of the closing of a purchase of Securities, the
Company hereby acknowledges that until the Underwriters execute and deliver a
receipt for the Securities, by facsimile or otherwise, the Company will not be
entitled to the Wired Funds and shall return the Wired Funds to the Underwriters
as soon as practicable (by wire transfer of same-day funds) upon demand. In the
event that the closing of a purchase of Securities is not completed and the
Wired Funds are not returned by the Company to the Underwriters on the same day
the Wired Funds were received by the Company, the Company agrees to pay to the
Underwriters in respect of each day the Wired Funds are not returned by it, in
same-day funds, interest on the amount of such Wired Funds in an amount
representing the Underwriters' cost of financing as reasonably determined by
Prudential Securities Incorporated.
(d) It is understood that any of you, individually and not as one
of the Representatives, may (but shall not be obligated to) make payment on
behalf of any Underwriter or Underwriters for any of the Securities to be
purchased by such Underwriter or Underwriters. No such payment shall relieve
such Underwriter or Underwriters from any of its or their obligations hereunder.
4. Offering by the Underwriters. Upon your authorization of the release
of the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale to the public upon the terms set forth in the Prospectus.
5. Covenants of the Company. The Company covenants and agrees with each
of the Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto to become effective as promptly as
possible. If required, the Company will file the Prospectus or any Term Sheet
that constitutes a part thereof and any amendment or supplement thereto with the
Commission in the manner and within the time period required by Rules 434 and
424(b) under the Act. During any time when a prospectus relating to the
Securities is required to be delivered under the Act, the Company (i) will
comply with all requirements imposed upon it by the Act and the rules and
regulations of the Commission thereunder to the extent necessary to permit the
continuance of sales of or dealings in the Securities in accordance with the
provisions hereof and of the Prospectus, as then amended or supplemented, and
(ii) will not file with the Commission the Prospectus, Term Sheet or the
amendment referred to in the second sentence of Section 2(a) hereof, any
amendment or supplement to such Prospectus, Term Sheet or any amendment to the
Registration Statement or any Rule 462(b) Registration Statement unless the
Representatives previously have been advised and furnished with a copy for a
reasonable period of time prior to the proposed filing and as to which filing
the Representatives shall not have given their consent. The Company will prepare
and file with the Commission, in accordance with the rules and regulations of
the Commission, promptly upon request by the Representatives or counsel for the
Underwriters, any amendments to the Registration Statement or amendments or
supplements to the Prospectus that may be necessary or advisable in connection
with the distribution of the Securities by the several Underwriters, and will
use its best efforts to cause any such amendment to the Registration Statement
to be declared effective by the Commission as promptly as possible. The Company
will advise the Representatives, promptly after receiving notice thereof, of the
time when the Registration Statement or any amendment thereto has been filed or
declared effective or the Prospectus or any amendment or supplement thereto has
been filed and will provide evidence satisfactory to the Representatives of each
such filing or effectiveness.
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(b) The Company will advise the Representatives, promptly after
receiving notice or obtaining knowledge thereof, of (i) the issuance by the
Commission of any stop order suspending the effectiveness of the Original
Registration Statement or any Rule 462(b) Registration Statement or any
amendment thereto or any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
(ii) the suspension of the qualification of the Securities for offering or sale
in any jurisdiction, (iii) the institution, threatening or contemplation of any
proceeding for any such purpose or (iv) any request made by the Commission for
amending the Original Registration Statement or any Rule 462(b) Registration
Statement, for amending or supplementing the Prospectus or for additional
information. The Company will use its best efforts to prevent the issuance of
any such stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(c) The Company will arrange for the qualification of the
Securities for offering and sale under the securities or blue sky laws of such
jurisdictions as the Representatives may designate and will continue such
qualifications in effect for as long as may be necessary to complete the
distribution of the Securities, provided, however, that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction.
(d) If, at any time prior to the later of (i) the final date when
a prospectus relating to the Securities is required to be delivered under the
Act or (ii) the Option Closing Date, any event occurs as a result of which the
Prospectus, as then amended or supplemented, would include any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or if for any other reason it is necessary at any time to
amend or supplement the Prospectus to comply with the Act or the rules or
regulations of the Commission thereunder, the Company will promptly notify the
Representatives thereof and, subject to Section 5(a) hereof, will prepare and
file with the Commission, at the Company's expense, an amendment to the
Registration Statement or an amendment or supplement to the Prospectus that
corrects such statement or omission or effects such compliance.
(e) The Company will, without charge, provide (i) to the
Representatives and to counsel for the Underwriters a conformed copy of the
registration statement originally filed with respect to the Securities and each
amendment thereto (in each case including exhibits thereto) or any Rule 462(b)
Registration Statement, certified by the Secretary or an Assistant Secretary of
the Company to be true and complete copies thereof as filed with the Commission
by electronic transmission, (ii) to each other Underwriter, a conformed copy of
such registration statement or any Rule 462(b) Registration Statement and each
amendment thereto (in each case without exhibits thereto) and (iii) so long as a
prospectus relating to the Securities is required to be delivered under the Act,
as many copies of each Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto as the Representatives may reasonably request; without
limiting the application of clause (iii) of this sentence, the Company, not
later than (A) 6:00 P.M., New York City time, on the date of determination of
the public offering price, if such determination occurred at or prior to 10:00
A.M., New York City time, on such date or (B) 2:00 P.M., New York City time, on
the business day following the date of determination of the public offering
price, if such determination occurred after 10:00 A.M., New York City time, on
such date, will deliver to the Underwriters, without charge, as many copies of
the Prospectus and any amendment or supplement thereto as the Representatives
may reasonably request for purposes of confirming orders that are expected to
settle on the Firm Closing Date.
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(f) The Company, as soon as practicable, will make generally
available to its securityholders and to the Representatives a consolidated
earnings statement of the Company and its subsidiaries that satisfies the
provisions of Section 11(a) of the Act and Rule 158 thereunder.
(g) The Company will apply the net proceeds from the sale of the
Securities as set forth under "Use of Proceeds" in the Prospectus.
(h) The Company will not, directly or indirectly, without the
prior written consent of Prudential Securities Incorporated, on behalf of the
Underwriters, offer, sell, offer to sell, contract to sell, pledge, grant any
option to purchase or otherwise sell or dispose (or announce any offer, sale,
offer of sale, contract of sale, pledge, grant of any option to purchase or
other sale or disposition) of any shares of Common Stock or other capital stock
of the Company or any securities convertible into, or exchangeable or
exercisable for, shares of Common Stock or other capital stock of the Company
for a period of 180 days after the date hereof, except (A) pursuant to this
Agreement, (B) pursuant to a dividend reinvestment plan of the Company, (C)
pursuant to the Company's 1997 Stock Incentive Plan, (D) in connection with the
acquisition by the Company of real property or interests in entities holding
real property and (E) in connection with the sale of Common Stock to PPD upon
the exercise of PPD's participation rights, provided that the recipient or
transferee of such securities or interests agrees in writing to be subject to
the lock-up contained in this Section 5(h) (without giving effect to clauses
(A), (B), (C) and (D)) for a period ending on the date that is 180 days after
the date hereof.
(i) The Company will not cause any shelf or other registration
statement for the resale of Common Stock of the Company owned by Revenue
Properties, PPD or any of their corporate affiliates, to be filed with the
Commission before August 13, 2000, without the prior written consent of
Prudential Securities Incorporated; provided, however, that the filing of a
registration statement to cover the resale of Common Stock in connection with
the exercise of remedies pursuant to a pledge by Revenue Properties or PPD of
all of its respective shares of Common Stock to an affiliate of Prudential
Securities Incorporated or its transferees shall be permitted.
(j) The Company will not, directly or indirectly, (i) take any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) (A) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Securities or (B) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company.
(k) The Company will obtain the agreement described in Section
7(f) hereof prior to the Firm Closing Date.
(l) If at any time during the 25-day period after the
Registration Statement becomes effective or the period prior to the Option
Closing Date, any rumor, publication or event relating to or affecting the
Company shall occur as a result of which in your opinion the market price of the
Common Stock has been or is likely to be materially affected (regardless of
whether such rumor, publication or event necessitates a supplement to or
amendment of
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the Prospectus), subject to the Company's policy on issuing public statements,
the Company will, after notice from you advising the Company to the effect set
forth above, forthwith prepare, consult with you concerning the substance of,
and disseminate a press release or other public statement, reasonably
satisfactory to you, responding to or commenting on such rumor, publication or
event.
(m) If the Company elects to rely on Rule 462(b), the Company
shall both file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with Rule
111 promulgated under the Act by the earlier of (i) 10:00 P.M. Eastern time on
the date of this Agreement and (ii) the time confirmations are sent or given, as
specified by Rule 462(b)(2).
(n) The Company will cause the Securities to be duly authorized
for listing by the New York Stock Exchange prior to the Firm Closing Date,
subject to official notice of issuance.
(o) The Company will use its best efforts to meet the
requirements to qualify, commencing with the taxable year ended December 31,
1997, as a REIT under the Code and will file with its United States federal
income tax return for each taxable year commencing with the taxable year ended
December 31, 1997, the election to be a REIT as described in Section 856(c)(1)
of the Code.
6. Expenses. The Company will pay all costs and expenses incident to the
performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 11 hereof, including all costs and expenses incident to (i)
the printing or other production of documents with respect to the transactions,
including any costs of printing the registration statement originally filed with
respect to the Securities and any amendment thereto, any Rule 462(b)
Registration Statement, any Preliminary Prospectus and the Prospectus and any
amendment or supplement thereto, this Agreement and any blue sky memoranda, (ii)
all arrangements relating to the delivery to the Underwriters of copies of the
foregoing documents, (iii) the fees and disbursements of the counsel, the
accountants and any other experts or advisors retained by the Company, (iv)
preparation, issuance and delivery to the Underwriters of any certificates
evidencing the Securities, including transfer agent's and registrar's fees, (v)
the qualification of the Securities under state securities and blue sky laws,
including filing fees and fees and disbursements of counsel for the Underwriters
relating thereto, (vi) the filing fees of the Commission and the National
Association of Securities Dealers, Inc. relating to the Securities, (vii) any
listing of the Securities on the New York Stock Exchange, (viii) any meetings
with prospective investors in the Securities (other than as shall have been
specifically approved by the Representatives to be paid for by the Underwriters)
and (ix) advertising relating to the offering of the Securities (other than as
shall have been specifically approved by the Representatives to be paid for by
the Underwriters). If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 7 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 11 hereof or because of any failure, refusal or inability on
the part of the Company to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable
counsel fees and disbursements) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities. The Company
shall not in any event be liable to any of the Underwriters for the loss of
anticipated profits from the transactions covered by this Agreement.
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7. Conditions of the Underwriters' Obligations. The obligations of the
several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company contained herein as of the date
hereof and as of the Firm Closing Date, as if made on and as of the Firm Closing
Date, to the accuracy of the statements of the Company's officers made pursuant
to the provisions hereof, to the performance by the Company of its covenants and
agreements hereunder and to the following additional conditions:
(a) If the Original Registration Statement or any amendment
thereto filed prior to the Firm Closing Date has not been declared effective as
of the time of execution hereof, the Original Registration Statement or such
amendment and, if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have been declared effective not later than
the earlier of (i) 11:00 A.M., New York City time, on the date on which the
amendment to the registration statement originally filed with respect to the
Securities or to the Registration Statement, as the case may be, containing
information regarding the public offering price of the Securities has been filed
with the Commission and (ii) the time confirmations are sent or given as
specified by Rule 462(b)(2), or with respect to the Original Registration
Statement, or such later time and date as shall have been consented to by the
Representatives; if required, the Prospectus or any Term Sheet that constitutes
a part thereof and any amendment or supplement thereto shall have been filed
with the Commission in the manner and within the time period required by Rules
434 and 424(b) under the Act; no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto shall have been issued, and no
proceedings for that purpose shall have been instituted or threatened or, to the
knowledge of the Company or the Representatives, shall be contemplated by the
Commission; and the Company shall have complied with any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise).
(b) The Representatives shall have received an opinion, dated the
Firm Closing Date, of Xxxxxx & Xxxxxxx, counsel for the Company and its
subsidiaries, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Maryland, and the subsidiaries of the Company have been
duly incorporated and are validly existing as corporations or
partnerships (as applicable) under the laws of the States of
Florida, Kentucky, New Mexico and Tennessee (as applicable). The
Company is duly qualified to transact business as a foreign
corporation and is in good standing under the laws of the States
of California and Delaware, and based solely on certificates from
public officials, such counsel confirms that the Company is duly
qualified to transact business as a foreign corporation and is in
good standing under the laws of the States of Florida, Nevada,
Oregon and Washington and that each subsidiary of the Company is
duly qualified to transact business as a corporation or
partnership (as the case may be) in its respective state of
incorporation or formation and primary place of business.
(ii) the Company and each of its subsidiaries have
corporate or partnership power (as the case may be) to own or
lease their respective properties and to conduct their respective
businesses as described in the
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Registration Statement and the Prospectus, and each of the
Company and its subsidiaries has corporate or partnership power
(as the case may be) to enter into this Agreement and to carry
out all the terms and provisions hereof to be carried out by it;
(iii) the issued shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable and, except as otherwise
set forth in the Prospectus, are owned of record and, to the
knowledge of such counsel, beneficially by the Company or its
subsidiaries free and clear of any perfected security interests
or any other security interests, liens, encumbrances, equities or
claims. The issued shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and
nonassessable;
(iv) the authorized, issued and outstanding capital stock
of the Company is as set forth under the caption "Capitalization"
in the Prospectus; all necessary and proper corporate proceedings
have been taken in order to authorize validly the Common Stock
referred to therein; all outstanding shares of Common Stock
(including the Firm Securities, when issued and paid for by the
Underwriters in accordance with the terms of this Agreement) have
been (or, in the case of the Firm Securities, will be) duly and
validly issued, are fully paid and nonassessable, have been
issued in compliance with the registration requirements of
federal securities laws (or pursuant to an exemption therefrom),
were not, to the knowledge of such counsel, issued in violation
of or subject to, under the Company's charter or Maryland law or
any agreement to which the Company is a party and which is known
to such counsel based on a certificate of the Company's Chairman
of the Board of Directors and its President and Chief Executive
Officer, any preemptive rights or other rights to subscribe for
or purchase any securities, and conform to the description
thereof contained in the Prospectus; to the knowledge of such
counsel, based solely on the certificate of the Company's
President and Chief Executive Officer, except as disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), no holders of outstanding shares
of capital stock of the Company are entitled, under the Company's
charter or Maryland law or any agreement to which the Company is
a party and which is known to such counsel based solely on a
certificate of the Company's Chairman of the Board of Directors
and its President and Chief Executive Officer, as such, to any
preemptive or other rights to subscribe for any of the Firm
Securities; and to the knowledge of such counsel, no holders of
securities of the Company are entitled to have such securities
registered under the Registration Statement;
(v) except as disclosed in the Registration Statement and
the Prospectus, to the knowledge of such counsel there are no
outstanding (A) securities, equity interests or obligations of
the Company or any of its subsidiaries convertible into or
exchangeable for any capital stock or equity interests (as the
case may be) of the Company or any such subsidiary, (B) warrants,
rights or options to subscribe for or purchase from the Company
to any such subsidiary any such capital stock or equity interests
or any such convertible or exchangeable securities, equity
interests or obligations, or (C) obligations of the Company or
any such subsidiary to issue any shares of capital stock, equity
interests, any such convertible or exchangeable securities,
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equity interests or obligations, or any such warrants, rights or
options;
(vi) the statements set forth under the headings
"Description of Capital Stock", "Structure and Formation
Transactions of the Company", "Certain Relationships and Related
Transactions", "Certain Provisions of Maryland Law and of the
Company's Charter and Bylaws", "Shares Eligible for Future Sale",
"Federal Income Tax Consequences" and "ERISA Considerations" in
the Prospectus, insofar as such statements describe statutes,
rules or regulations, legal conclusions with respect to their
application or provisions of the organizational documents of the
Company, have been reviewed by such counsel, are correct in all
material respects and present fairly the information required to
be disclosed therein;
(vii) the execution and delivery of this Agreement have
been duly authorized by all necessary corporate or partnership
(as the case may be) action of the Company, and this Agreement
has been duly executed and delivered by the Company, and is the
valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, subject to the effect
of bankruptcy, insolvency, moratorium, fraudulent conveyance,
reorganization and similar laws relating to creditors' rights
generally, to the application of equitable principles in any
proceeding, whether at law or in equity, as limited by the
unenforceability under certain circumstances under law or court
decisions of provisions providing for the indemnification of or
contribution to a party with respect to a liability where such
indemnification or contribution is contrary to public policy and
to the extent that enforceability of such provisions may be
limited due to the existence of an untrue statement of a material
fact in the Prospectus or the Registration Statement or omission
to state a material fact therein necessary to make the statements
in the Prospectus or the Registration Statement, respectively,
not misleading, it being understood that such counsel need
express no view with respect thereto other than as set forth in
the paragraph immediately following clause (xvi) below;
(viii) to the knowledge of such counsel based solely on
the representations of the Company contained herein, review of
the letters of attorneys delivered to the Company's auditors with
respect to the existence of contingent liabilities of the Company
and a certificate of the Chief Executive Officer and the
principal financial or accounting officer of the Company, (A) no
legal or governmental proceedings are pending to which the
Company or any of its subsidiaries is a party or to which the
property of the Company or any of its subsidiaries is subject
that are required to be described in the Registration Statement
or the Prospectus and are not described therein, and no such
proceedings have been threatened against the Company or any of
its subsidiaries or with respect to any of their respective
properties and (B) no contract or other document is required to
be disclosed in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement that is
not disclosed therein or filed as required;
(ix) the issuance, offering and sale of the Securities to
the Underwriters by the Company pursuant to this Agreement, the
compliance by the Company with the other provisions of this
Agreement and the consummation of the other transactions herein
contemplated do not (A) require the consent,
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approval, authorization, registration or qualification of or with
any federal, or California, New York or Maryland governmental
authority, except such as have been obtained under the Act and
such as may be required under state securities or blue sky laws,
or (B) conflict with or result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or any
of their respective properties are bound identified by an officer
of the Company as material to the Company or any of its
subsidiaries (the "Material Agreements"), or the charter
documents or by-laws or certificate of limited partnership or
partnership agreement (as the case may be) of the Company or any
of its subsidiaries, or any provision of any California, New York
or Maryland statute, rule or regulation (other than federal or
state securities laws, which are addressed elsewhere herein), or
court orders specifically directed to the Company and identified
by an officer of the Company as material to the Company or any of
its subsidiaries (the "Court Orders");
(x) each of the Company and its subsidiaries has the
corporate or partnership power (as the case may be) to enter into
and deliver (as applicable) the Transaction Documents to which it
is party and to carry out all the terms and provisions thereof to
be carried out by it. The execution and delivery of the
Transaction Documents have been duly authorized by the Company
and its subsidiaries (as applicable) and the Transaction
Documents have been or will be on the Firm Closing Date duly
executed and delivered by the Company and its subsidiaries (as
applicable), and each is the valid and binding agreement of the
Company and its subsidiaries (as applicable), enforceable against
the Company and its subsidiaries (as applicable) in accordance
with its terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance, reorganization and similar
laws relating to creditors' rights generally and to the
application of equitable principles in any proceeding, whether at
law or in equity;
(xi) the execution and delivery of the Transaction
Documents and the compliance by the Company and its subsidiaries
(as applicable) with their respective obligations under the
Transaction Documents do not (A) require the consent, approval,
authorization, registration or qualification of or with any
federal, California, New York or Maryland governmental authority,
except such as have been obtained under the Act, such as may be
required under state securities or blue sky laws and, if the
registration statement filed with respect to the Securities (as
amended) is not effective under the Act as of the time of
execution hereof, such as may be required (and shall be obtained
as provided in this Agreement) under the Act, or (B) conflict
with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any Material
Agreement, or the charter documents or by-laws or certificate of
limited partnership or partnership agreement (as the case may be)
of the Company or any of its subsidiaries, or any provision of
any California, New York, Maryland, Florida, Kentucky, Nevada,
New Mexico, Oregon, Tennessee or Washington statute, rule or
regulation (other than federal or state securities laws, which
are addressed elsewhere herein), or any Court Order;
(xii) the Company is not, and after giving effect to the
transactions contemplated by this Agreement will not be, subject
to registration as an
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investment company under the Investment Company Act of 1940, as
amended;
(xiii) the Registration Statement is effective under the
Act; any required filing of the Prospectus, or any Term Sheet
that constitutes a part thereof, pursuant to Rules 424(b) and 434
has been made in the manner and within the time period required
thereby; and based upon such counsel's due inquiry made to the
Office of the Secretary of the Commission, no stop order
suspending the effectiveness of the Registration Statement or any
amendment thereto has been issued, and no proceedings for that
purpose have been instituted or threatened or, to the knowledge
of such counsel, are contemplated by the Commission;
(xiv) the Registration Statement originally filed with
respect to the Securities and each amendment thereto, any Rule
462(b) Registration Statement and the Prospectus (in each case,
other than the financial statements, schedules and other
financial and statistical data contained therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act and
the rules and regulations of the Commission thereunder;
(xv) if the Company elects to rely on Rule 434, the
Prospectus is not "materially different", as such term is used in
Rule 434, from the prospectus included in the Registration
Statement at the time of its effectiveness or an effective
post-effective amendment thereto (including such information that
is permitted to be omitted pursuant to Rule 430A); and
(xvi) at all times during its existence, the Company has
been organized in conformity with the requirements for
qualification as a real estate investment trust under the Code,
and its method of operation has enabled, and its proposed method
of operation will enable the Company to meet the requirements for
taxation as a real estate investment trust under the Code
beginning with the taxable year ended December 31, 1997. Such
opinion may be based on the method of operation of the Company as
described in the Registration Statement, the Prospectus and a
certificate of an authorized officer of the Company.
Such counsel shall also state that they have participated in conferences
with officers and other representatives of the Company, representatives of the
independent public accountants for the Company, and representatives of the
Underwriters, at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although such counsel is not
passing upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus and has not made any independent check or
verification thereof, during the course of such participation (relying as to
materiality to a large extent upon the statements of officers and other
representatives of the Company) no facts came to the attention of such counsel
that caused such counsel to believe that the Registration Statement, at the time
it became effective, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of its date or as
of the Firm Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; it being
understood that such counsel need express no belief with respect to the
financial statements, schedules and other financial data included in the
Registration Statement or the Prospectus.
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In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials. As to matters involving the
application of laws of any jurisdiction other than the State of California, the
State of New York, the Delaware General Corporation Law and the Delaware Revised
Limited Partnership Act or the United States, to the extent satisfactory in form
and scope to counsel for the Underwriters, such counsel may rely upon the
opinions of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP, Baltimore, Maryland, a copy
of which shall be delivered to the Underwriters and their counsel and which must
be in form and scope satisfactory to the Underwriters and their counsel. As to
matters involving the application of laws of Florida, Kentucky, Nevada, New
Mexico, Oregon, Tennessee and Washington, portions of the above opinions may be
rendered directly by local counsel to the Company in such jurisdictions,
provided that the identity of such counsel and the form and scope of such
opinions must be satisfactory to the Underwriters and their counsel.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion.
(c) The Representatives shall have received an opinion, dated the
Firm Closing Date, of Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, counsel for the
Underwriters, with respect to the issuance and sale of the Firm Securities, the
Registration Statement and the Prospectus, and such other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(d) The Representatives shall have received from KPMG Peat
Marwick LLP a letter or letters dated, respectively, the date hereof and the
Firm Closing Date, in form and substance satisfactory to the Representatives, to
the effect that:
(i) they are independent accountants with respect to the
Company and its consolidated subsidiaries, San Dimas Marketplace
and The Oregon Portfolio within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) in their opinion, the financial statements and
schedules and pro forma condensed consolidated financial
statements audited by them and included in the Registration
Statement and the Prospectus comply in form in all material
respects with the applicable accounting requirements of the Act
and the related published rules and regulations;
(iii) on the basis of a reading of the latest available
interim unaudited financial statements of the Company, San Dimas
Marketplace and The Oregon Portfolio, carrying out certain
specified procedures (which do not constitute an examination made
in accordance with generally accepted auditing standards) that
would not necessarily reveal matters of significance with respect
to the comments set forth in this paragraph (iii), a reading of
the minute books of the stockholders, the board of directors and
any committees thereof of the Company and its subsidiaries and
inquiries of certain officials of the Company and its
subsidiaries who have responsibility for financial and accounting
matters, nothing came to their attention that caused them to
believe that:
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(A) the unaudited consolidated condensed financial
statements of the Company, and the combined statement of revenue
and certain expenses of each of San Dimas Marketplace and The
Oregon Portfolio included in the Registration Statement and the
Prospectus do not comply in form in all material respects with
the applicable accounting requirements of the Act and the related
published rules and regulations thereunder or are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
consolidated financial statements included in the Registration
Statement and the Prospectus; and
(B) at a specific date (not more than five business
days prior to the date of such letter), there were any increases
in indebtedness or decrease in owner's equity of the Company or
the Properties as compared with amounts shown in the December 31,
1997 condensed consolidated balance sheet included in the
Registration Statement and the Prospectus, or for the period from
January 1, 1998 to April 30, 1998, there were any decreases, as
compared with the corresponding period of the preceding year, in
net income, total revenue or funds from operations of the Company
of the Properties, except in all instances for increases or
decreases which the Registration Statement and the Prospectus
disclose have occurred or may occur.
(iv) they have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts,
percentages and financial information that are derived from the
general accounting records of the Company, San Dimas Marketplace
and The Oregon Portfolio and are included in the Registration
Statement and the Prospectus and have compared such amounts,
percentages and financial information with such records of the
Company, San Dimas Marketplace and The Oregon Portfolio and with
information derived from such records and have found them to be
in agreement, excluding any questions of legal interpretation;
and
(v) on the basis of a reading of the unaudited pro forma
condensed consolidated financial statements included in the
Registration Statement and the Prospectus, carrying out certain
specified procedures that would not necessarily reveal matters of
significance with respect to the comments set forth in this
paragraph (v), inquiries of certain officials of the Company who
have responsibility for financial and accounting matters and
proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the unaudited pro
forma condensed consolidated financial statements, nothing came
to their attention that caused them to believe that the unaudited
pro forma condensed consolidated financial statements do not
comply as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that
the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (A) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (B) such
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changes, decreases or increases do not, in the sole judgment of the
Representatives, make it impractical or inadvisable to proceed with the purchase
and delivery of the Securities as contemplated by the Registration Statement, as
amended as of the date hereof.
References to the Registration Statement and the Prospectus in this
paragraph (d) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(e) The Representatives shall have received a certificate, dated
the Firm Closing Date, of the chief executive officer and the principal
financial or accounting officer of the Company to the effect that:
(i) the representations and warranties of the Company in
this Agreement are true and correct as if made on and as of the
Firm Closing Date; the Registration Statement, as amended as of
the Firm Closing Date, does not include any untrue statement of a
material fact or omit to state any material fact necessary to
make the statements therein not misleading, and the Prospectus,
as amended or supplemented as of the Firm Closing Date, does not
include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and the Company has performed all covenants
and agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Firm Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued,
and no proceedings for that purpose have been instituted or
threatened or, to the best of the Company's knowledge, are
contemplated by the Commission; and
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, neither the Company nor any of its subsidiaries has
sustained any material loss or interference with their respective
businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any
labor dispute or any legal or governmental proceeding, and there
has not been any material adverse change, or any development
involving a prospective material adverse change, in the condition
(financial or otherwise), management, business prospects, net
worth or results of operations of the Company and its
subsidiaries, taken as a whole, except in each case as described
in or contemplated by the Registration Statement and the
Prospectus (exclusive of any amendment or supplement thereto).
(f) The Representatives have received from PPD an agreement to
the effect that PPD will not, directly or indirectly, without the prior written
consent of Prudential Securities Incorporated, on behalf of the Underwriters,
offer, sell, offer to sell, contract to sell, pledge, grant any option to
purchase or otherwise sell or dispose (or announce any offer, sale, offer of
sale, contract of sale, pledge, grant of an option to purchase or other sale or
disposition) of any shares of Common Stock or other capital stock of the Company
or any securities convertible into, or exchangeable or exercisable for, shares
of Common Stock or other capital stock of the Company, until August 7, 2000;
provided, however, that PPD's agreement shall apply only to 4,162,702 shares of
Common Stock owned by it and providing that a pledge by PPD of all of its shares
of Common Stock to an affiliate of Prudential Securities Incorporated shall be
permitted.
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(g) On or before the Firm Closing Date, the Representatives and
counsel for the Underwriters shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Company.
(h) Prior to the commencement of the offering of the Securities,
the Securities shall have been approved for listing on the New York Stock
Exchange, subject to official notice of issuance.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and
pay for any Option Securities shall be subject, in their discretion, to each of
the foregoing conditions to purchase the Firm Securities, except that all
references to the Firm Securities and the Firm Closing Date shall be deemed to
refer to such Option Securities and the related Option Closing Date,
respectively.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934 (the "Exchange Act"), against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter or
such controlling person may become subject under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made
by the Company in Section 2 of this Agreement,
(ii) any untrue statement or alleged untrue statement of
any material fact contained in (A) the Registration Statement or
any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto or (B) any
application or other document, or any amendment or supplement
thereto, executed by the Company or based upon written
information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Securities under the
securities or blue sky laws thereof or filed with the Commission
or any securities association or securities exchange (each an
"Application"),
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement
thereto, or any Application a material fact required to be stated
therein or necessary to make the statements therein not
misleading or
(iv) any untrue statement or alleged untrue statement of
any material
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fact contained in any audio or visual materials used in
connection with the marketing of the Securities, including,
without limitation, slides, videos, films and tape recordings,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement or
any amendment thereto, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto or any Application in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein; and provided, further,
that the Company will not be liable to any Underwriter or any person controlling
such Underwriter with respect to any such untrue statement or omission made in
any Preliminary Prospectus that is corrected in the Prospectus (or any amendment
or supplement thereto) if the person asserting any such loss, claim, damage or
liability purchased Securities from such Underwriter but was not sent or given a
copy of the Prospectus (as amended or supplemented) at or prior to the written
confirmation of the sale of such Securities to such person in any case where
such delivery of the Prospectus (as amended or supplemented) is required by the
Act, unless such failure to deliver the Prospectus (as amended or supplemented)
was a result of noncompliance by the Company with Section 5(d) and (e) of this
Agreement. This indemnity agreement will be in addition to any liability which
the Company may otherwise have. The Company will not, without the prior written
consent of the Underwriter or Underwriters purchasing, in the aggregate, more
than fifty percent (50%) of the Securities, settle or compromise or consent to
the entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not any such Underwriter or any person who controls any such Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act is
a party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of all of the
Underwriters and such controlling persons from all liability arising out of such
claim, action, suit or proceeding.
(b) Each Underwriter, severally and not jointly, will indemnify
and hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which the
Company or any such director, officer or controlling person may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or any
Application or (ii) the omission or the alleged omission to state therein a
material fact required to be stated in the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or any Application or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
specifically for use therein; and, subject to the limitation set forth
immediately preceding this
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clause, will reimburse, as incurred, any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or any action in respect thereof. This indemnity agreement will be in
addition to any liability which such Underwriter may otherwise have. No
Underwriter will, without the prior consent of the Company, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim,
action, suit or proceeding in respect of which indemnification may be sought
hereunder (whether or not the Company, any of its directors or officers who
signed the Registration Statement or any person who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act is a
party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of the Company, its
officers and directors who signed the Registration Statement and such
controlling persons from all liability arising out of such claim, action, suit
or proceeding.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
(i) any liability which it may have to any indemnified party under this Section
8 except to the extent that the indemnifying party has been prejudiced as a
result thereof or (ii) any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such indemnified party
of counsel appointed to defend such action, the indemnifying party will not be
liable to such indemnified party under this Section 8 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the Representatives in the case of paragraph (a) of this Section
8, representing the indemnified parties under such paragraph (a) who are parties
to such action or actions) or (ii) the indemnifying party does not promptly
retain counsel satisfactory to the indemnified party or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. After such notice from the indemnifying party
to such indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying party.
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(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 8 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party on the other from the offering of the Securities or
(ii) if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters, the parties'
relative intents, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances. The Company and the Underwriters agree that it
would not be equitable if the amount of such contribution were determined by pro
rata or per capita allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
into account the equitable considerations referred to above in this paragraph
(d). Notwithstanding any other provision of this paragraph (d), no Underwriter
shall be obligated to make contributions hereunder that in the aggregate exceed
the total public offering price of the Securities purchased by such Underwriter
under this Agreement, less the aggregate amount of any damages that such
Underwriter has otherwise been required to pay in respect of the same or any
substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the Prudential Securities Incorporated Master Agreement Among Underwriters.
For purposes of this paragraph (d), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall
have the same rights to contribution as the Company.
9. Default of Underwriters. If one or more Underwriters default in their
obligations to purchase Firm Securities or Option Securities hereunder and the
aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the
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related Option Closing Date, as the case may be, the other Underwriters shall be
obligated severally in proportion to their respective commitments hereunder to
purchase the Firm Securities or Option Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase. If one or more
Underwriters so default with respect to an aggregate number of Securities that
is more than ten percent of the aggregate number of Firm Securities or Option
Securities, as the case may be, to be purchased by all of the Underwriters at
such time hereunder, and if arrangements satisfactory to the Representatives are
not made within 36 hours after such default for the purchase by other persons
(who may include one or more of the non-defaulting Underwriters, including the
Representatives) of the Securities with respect to which such default occurs,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company other than as provided in Section 10
hereof. In the event of any default by one or more Underwriters as described in
this Section 9, the Representatives shall have the right to postpone the Firm
Closing Date or the Option Closing Date, as the case may be, established as
provided in Section 3 hereof for not more than seven business days in order that
any necessary changes may be made in the arrangements or documents for the
purchase and delivery of the Firm Securities or Option Securities, as the case
may be. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 9. Nothing herein shall
relieve any defaulting Underwriter from liability for its default.
10. Survival. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company, its officers and the
several Underwriters set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement shall remain in full force and
effect, regardless of (i) any investigation made by or on behalf of the Company,
any of its officers or directors, any Underwriter or any controlling person
referred to in Section 8 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 6 and 8 hereof shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated with respect to
the Firm Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company given prior to the Firm Closing Date or
the related Option Closing Date, respectively, in the event that the Company
shall have failed, refused or been unable to perform all obligations and satisfy
all conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Firm Closing Date or such Option Closing Date,
respectively,
(i) the Company or any of its subsidiaries shall have, in
the sole judgment of the Representatives, sustained any material
loss or interference with their respective businesses or
properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding or there shall
have been any material adverse change, or any development
involving a prospective material adverse change (including
without limitation a change in management or control of the
Company), in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and
its subsidiaries, taken as a whole, except in each case as
described in or contemplated by the Registration Statement and
the Prospectus (exclusive of any amendment or supplement
thereto);
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(ii) trading in the Common Stock shall have been suspended
by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have
been suspended or minimum or maximum prices shall have been
established on any such exchange;
(iii) a banking moratorium shall have been declared by New
York, California or United States authorities; or
(iv) there shall have been (A) an outbreak or escalation
of hostilities between the United States and any foreign power,
(B) an outbreak or escalation of any other insurrection or armed
conflict involving the United States or (C) any other calamity or
crisis or material adverse change in general economic, political
or financial conditions having an effect on the U.S. financial
markets that, in the sole judgment of the Representatives, makes
it impractical or inadvisable to proceed with the public offering
or the delivery of the Securities as contemplated by the
Registration Statement, as amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 11
shall be without liability of any party to any other party except as provided in
Section(s) 6 and 10 hereof.
12. Information Supplied by Underwriters. The statements set forth in
the last paragraph on the inside front cover page and under the heading
"Underwriting" in any Preliminary Prospectus or the Prospectus (to the extent
such statements relate to the Underwriters) constitute the only information
furnished by any Underwriter through the Representatives to the Company for the
purposes of Sections 2(b) and 8 hereof. The Underwriters confirm that such
statements (to such extent) are correct.
13. Notices. All communications hereunder shall be in writing and, if
sent to any of the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to Prudential Securities
Incorporated, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity
Transactions Group; and if sent to the Company, shall be delivered or sent by
mail, telex or facsimile transmission and confirmed in writing to the Company at
0000-X Xxxxx Xxxxxxx Xxxxx, Xxxxx, Xxxxxxxxxx 00000, Attention: Chief Executive
Officer.
14. Successors. This Agreement shall inure to the benefit of and shall
be binding upon the several Underwriters, the Company and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company contained in Section 8 of this Agreement shall
also be for the benefit of any person or persons who control any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Underwriters contained in Section 8 of this
Agreement shall also be for the benefit of the directors of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act. No purchaser of Securities from any
Underwriter shall be deemed a successor because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT,
AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
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16. Consent to Jurisdiction and Service of Process. All judicial
proceedings arising out of or relating to this Agreement may be brought in any
state or federal court of competent jurisdiction in the State of New York, and
by execution and delivery of this Agreement, the Company accepts for itself and
in connection with its properties, generally and unconditionally, the
nonexclusive jurisdiction of the aforesaid courts and waives any defense of
forum non conveniens and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Agreement. The Company designates and appoints
Corporation Service Company, and such other persons as may hereafter be selected
by the Company irrevocably agreeing in writing to so serve, as its agent to
receive on its behalf service of all process in any such proceedings in any such
court, such service being hereby acknowledged by the Company to be effective and
binding service in every respect. A copy of any such process so served shall be
mailed by registered mail to the Company at its address provided in Section 13
hereof; provided, however, that, unless otherwise provided by applicable law,
any failure to mail such copy shall not affect the validity of service of such
process. If any agent appointed by the Company refuses to accept service, the
Company hereby agrees that service of process sufficient for personal
jurisdiction in any action against the Company in the State of New York may be
made by registered or certified mail, return receipt requested, to the Company
at its address provided in Section 13 hereof, and the Company hereby
acknowledges that such service shall be effective and binding in every respect.
Nothing herein shall affect the right to serve process in any other manner
permitted by law or shall limit the right of any Underwriter to bring
proceedings against the Company in the courts of any other jurisdiction.
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17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter shall constitute an agreement binding the Company and each of the
several Underwriters.
Very truly yours,
PAN PACIFIC RETAIL PROPERTIES, INC.
By:
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: President and Chief
Executive Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
BANCAMERICA XXXXXXXXX XXXXXXXX
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXX XXXXXX INC.
By: PRUDENTIAL SECURITIES INCORPORATED
By
---------------------------------------
Xxxx-Xxxxxx Canfin, Managing Director
For itself and on behalf of the Representatives.
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SCHEDULE 1
UNDERWRITERS
------------
Number of Firm Securities
Underwriter to be Purchased
----------- ---------------
Prudential Securities Incorporated
BancAmerica Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Xxxxx Xxxxxx Inc.
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SCHEDULE 2
TRANSACTION DOCUMENTS
---------------------
1. Lock-Up Agreement dated the Firm Closing Date among Prudential Securities
Incorporated, PPD and Revenue Properties.
