Exhibit 1.1
PRIME GROUP REALTY TRUST
5,000,000 SERIES B REDEEMABLE PREFERRED SHARES/1/
OF BENEFICIAL INTEREST
UNDERWRITING AGREEMENT
----------------------
May [ ], 1998
PRUDENTIAL SECURITIES INCORPORATED
BEAR, XXXXXXX & CO. INC.
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
XXXXXX XXXXXX & COMPANY, INC.
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Prime Group Realty Trust, a Maryland real estate investment trust (the
"Company"), and Prime Group Realty, L.P., a Delaware limited partnership (the
"Operating Partnership"), each hereby confirms its agreement with the several
underwriters named in Schedule 1 hereto (the "Underwriters"), for whom the
Company understands 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 5,000,000 shares of ___% Series B Cumulative Redeemable Preferred Shares of
Beneficial Interest (the "Firm Securities"), par value $.01 per share, of the
Company (the "Preferred Shares"). The Company also proposes to issue and sell to
the several Underwriters not more than 750,000 additional Preferred Shares if
requested by the Representatives as provided in Section 3 of this Agreement. Any
and all Preferred Shares to
-------------------------
/1/ Plus an option to purchase from Prime Group Realty Trust up to 750,000
additional shares to cover over-allotments.
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 and the Operating
Partnership. The Company and the Operating Partnership, jointly and severally,
represent and warrant to, and agree with, each of the several Underwriters that:
(a) A registration statement on Form S-11 (File No. 333-51599)
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 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 (as
hereinafter defined) 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
2
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:
(A) if the Company relies on Rule 434 under the Act, the Term Sheet
relating to the Securities that is first filed pursuant to Rule 424(b)(7)
under the Act, together with the Preliminary Prospectus identified therein
that such Term Sheet supplements;
(B) if the Company does not rely on Rule 434 under the Act, the prospectus
first filed with the Commission pursuant to Rule 424(b) under the Act; or
(C) 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.
(b) The Commission has not issued any order preventing or
suspending use of any Preliminary Prospectus. When any Preliminary Prospectus
was filed with the Commission it (i) contained all statements required to be
stated therein in accordance with, and complied in all material respects with
the requirements of, the Act 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
3
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 with the Commission pursuant to, Rule 462(b) and
has received confirmation of the Commission's receipt and (ii) the Company has
given irrevocable instructions for transmission of the applicable filing fee in
connection with the filing of the Rule 462(b) Registration Statement, in
compliance with Rule 111 promulgated under the Act or the Commission has
received payment of such filing fee.
(d) The Company has been duly organized and is validly existing
as a real estate investment trust in good standing under the laws of Maryland
and is duly qualified to transact business as a foreign trust and is in good
standing under the laws of all other jurisdictions where the ownership or
leasing of its properties or the conduct of its business 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 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, including
the Property Partnerships that are partnerships (as defined in the Prospectus
or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) have been duly organized and are validly existing as partnerships in
good standing under the laws of their respective jurisdictions of organization
and 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 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 limited liability companies, including the Property Partnerships that are
limited liability companies have been duly organized and are validly existing as
limited liability companies in good standing under the laws of their respective
jurisdictions of
4
organization and are duly qualified to transact business as foreign limited
liability companies 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.
(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 each of the Company and the Operating Partnership
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. Such partnership agreements, other than the partnership agreement for
the Operating Partnership and for Professional Plaza, Ltd., a Tennessee limited
partnership, one of the Property Partnerships, reflect the Company and the
Operating Partnership, and/or one or more of the Company's subsidiaries as the
sole beneficial owners of the partnership interests in such partnerships.
(g) The Operating Partnership has been duly organized and is
validly existing as a limited partnership in good standing under the laws of its
jurisdiction of organization and is duly qualified to transact business as a
foreign limited partnership and is in good standing under the laws of all other
jurisdictions where the ownership or leasing of its properties or the conduct of
its business 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. All of the limited and general
partnership interests in the Operating Partnership (the "Common Units") and the
Preferred Units (as defined in the Prospectus, or if the Prospectus is not in
existence, the most recent Preliminary Prospectus) issued by the Operating
Partnership as of the date hereof have been duly authorized for issuance by the
Operating Partnership to the holders or prospective holders thereof, and are
validly issued, fully paid and owned in the amounts set forth on Schedule 2
hereto, and, in the case of the Common Units and the Preferred Units issued to
the Company, free and clear of any security interests, liens, encumbrances,
equities or claims. All of the Series B Preferred Units (as defined in the
Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary
5
Prospectus) to be issued to the Company in connection with the offering of the
Preferred Shares have been duly authorized for issuance by the Operating
Partnership and, at the Firm Closing Date, against the payment of consideration
therefor in accordance with the Amended and Restated Agreement of Limited
Partnership of the Operating Partnership dated November 17, 1997 (the "Operating
Partnership Agreement"), will be validly issued, fully paid and owned by the
Company, free and clear of any security interests, liens, encumbrances, equities
or claims. Immediately after the Firm Closing Date, [ ] Common Units
of limited partner interest, [13,307,100] Common Units of general partner
interest, 2,000,000 Preferred Units and 5,000,000 Series B Preferred Units of
the Operating Partnership will be issued and outstanding. The Common Units,
Preferred Units and Series B Preferred Units conform in all material respects to
the description thereof contained in the Prospectus or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus. The Company is the
managing general partner of the Operating Partnership.
(h) The authorized capital stock of the Company is as set forth
in the Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus under the caption "Description of Shares of Beneficial
Interest" and the issued and outstanding shares of beneficial interest of the
Company, as of the Firm Closing Date, will be as set forth in the Prospectus or,
if the Prospectus is not in existence, the most recent Preliminary Prospectus,
under the caption "Capitalization." All of the issued shares of beneficial
interest 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. No holders of outstanding
shares of beneficial interest of the Company are entitled as such to any
preemptive or other rights to subscribe for any of the Securities, and no holder
of securities of the Company has any right which has not been fully exercised or
waived to require the Company to register the offer or sale of any securities
owned by such holder under the Act in the public offering contemplated by this
Agreement.
(i) The capitalization 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.
(j) All of the issued and outstanding Convertible Preferred
Shares (as defined in the Prospectus or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) and Common Shares of the Company have
been offered and sold in compliance with all applicable laws (including, without
limitation, federal and state securities laws). Except as described in the
Registration Statement and the Prospectus (or, if the Prospectus does not exist,
the most recent Preliminary Prospectus), the Company has not issued or sold any
Convertible Preferred Shares or
6
Common Shares during the six-month period preceding the initial filing date of
the Registration Statement including any sales pursuant to Rule 144A under, or
Regulation D or S of, the Act.
(k) 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 beneficial
interests, capital stock or other 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 or any such subsidiary any such beneficial
interests, capital stock or other 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 beneficial interests,
capital stock, other equity interests, any such convertible or exchangeable
securities, equity interests or obligations, or any such warrants, rights or
options.
(l) The offer, issuance and exchange of the Series B Preferred
Units will be exempt from the registration requirements of the Act and
applicable state securities and blue sky laws.
(m) The pro forma condensed consolidated balance sheet and the
pro forma condensed consolidated statements of operations of the Company (in
each case, 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 present the financial position of the Company at
the dates therein specified. The combined financial statements (including the
notes thereto) of the Prime Properties (as defined in 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 present the
financial position, the results of operations and cash flows and changes in
financial condition of the Prime Properties, at the date and for the periods
therein specified. The combined statements of revenues and certain expenses
(including the notes thereto) of the Prime Industrial Contribution Properties
(as defined in 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 present the combined revenues and certain
expenses of the Prime Industrial Contribution Properties for the periods therein
specified. The combined statements of revenues and certain expenses (including
the notes thereto) of the IBD Contribution Properties (as defined in 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
present the combined revenues and certain expenses of the IBD Contribution
Properties for the periods therein specified. The combined statements of
revenues and certain expenses (including the notes thereto) of the NAC
Contribution Properties (as defined in 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 present the
7
combined revenues and certain expenses of the NAC Contribution Properties for
the periods therein specified. The statements of revenues and certain expenses
(including the notes thereto) of Citibank Office Plaza included in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) fairly present revenues and
certain expenses of Citibank Office Plaza for the periods therein specified.
The statements of revenues and certain expenses (including the notes thereto) of
Salt Creek Office Center included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present revenues and certain expenses of Salt
Creek Office Center for the periods therein specified. The statements of
revenues and certain expenses (including the notes thereto) of 000 Xxxxxxx
Xxxxxxxxx included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) fairly
present revenues and certain expenses of 000 Xxxxxxx Xxxxxxxxx for the periods
therein specified. The statements of revenues and certain expenses (including
the notes thereto) of 000 Xxxxxxxx Xxxxxx included in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present revenues and certain expenses of 000
Xxxxxxxx Xxxxxx for the periods therein specified. The statements of revenues
and certain expenses (including the notes thereto) of Continental Office Towers
included in the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) fairly present
revenues and certain expenses of Continental Office Towers for the periods
therein specified. The statements of revenues and certain expenses (including
the notes thereto) of 000 Xxxxx XxXxxxx Xxxxxx included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) fairly present revenues and certain expenses
of 000 Xxxxx XxXxxxx Xxxxxx for the periods therein specified. The statement of
revenues and certain expenses (including the notes thereto) of 2675 Mayfair
included in the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) fairly present
revenues and certain expenses of 2675 Mayfair for the period therein specified.
The statement of revenues and certain expenses (including the notes thereto) of
33 North Dearborn included in the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary Prospectus)
fairly present revenues and certain expenses of 33 North Dearborn for the period
therein specified. The statement of revenues and certain expenses (including
the notes thereto) of Commerce Point included in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present revenues and certain expenses of Commerce
Point for the period therein specified. The statement of revenues and certain
expenses (including the notes thereto) of 000 Xxxxx XxXxxxx Xxxxxx included in
the Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) fairly present revenues and
certain expenses of 000 Xxxxx XxXxxxx Xxxxxx for the period therein specified.
The statement of revenues and certain expenses (including the notes thereto) of
000 Xxxxx Xxxxxxxx Xxxxxx included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present revenues and
8
certain expenses of 000 Xxxxx Xxxxxxxx Xxxxxx for the period therein specified.
The statement of revenues and certain expenses (including the notes thereto) of
0000 Xxxxxx Xxxxx included in the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary Prospectus)
fairly present revenues and certain expenses of 0000 Xxxxxx Xxxxx for the period
therein specified. The statement of revenues and certain expenses (including
the notes thereto) of Two Century Center included in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present revenues and certain expenses of Two
Century Center for the period 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 caption "Selected 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.
(n) The pro forma condensed consolidated balance sheet and the
pro forma condensed consolidated statements of operations 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.
(o) Ernst & Young LLP, who have certified certain financial
statements and schedules, and delivered their reports with respect to the
audited 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.
(p) The execution and delivery of this Agreement have been duly
authorized by the Company and the Operating Partnership and this Agreement has
been duly executed and delivered by the Company and the Operating Partnership,
and is the valid and binding agreement of each of the Company and the Operating
Partnership, enforceable against the Company and the Operating Partnership in
accordance with its terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance, reorganization and similar laws relating to
creditors' rights
9
generally and to the application of equitable principles in any proceeding,
whether at law or in equity.
(q) 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 (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) and are not
described therein, and to the best of the Company's knowledge, 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.
(r) The execution, delivery and performance of this Agreement by
the Company and the Operating Partnership, the consummation of the transactions
contemplated in this Agreement and the Registration Statement (including the
completion of the Pending Acquisitions, the issuance, offering and sale of the
Securities to the Underwriters and the Series B Preferred Units to the Company
and the application of the proceeds from the sale of the Securities and the
Series B Preferred Units as described under the caption "Use of Proceeds" in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and compliance by the Company and the Operating
Partnership with their obligations under this Agreement 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, material
lease or other material agreement or material 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.
(s) the execution, delivery and performance of an amendment to
the Operating Partnership Agreement to be dated the date of the Firm Closing
Date (the "Operating Partnership Agreement Amendment") relating to the issuance
of the Series B Preferred Units has been duly authorized by the Company, as the
holder of a majority of the general partnership interests of the Operating
Partnership, and has been duly executed and delivered by the Company on the Firm
10
Closing Date; the Operating Partnership Agreement is a valid and binding
agreement of the Operating Partnership, enforceable against the Company and the
Operating Partnership in accordance with its terms, subject to the effect of
bankruptcy, insolvency, moratorium, fraudulent conveyance, reorganization and
similar laws relating to creditors' rights generally and to the application of
equitable principles in any proceeding, whether at law or in equity; and the
execution and delivery of the Operating Partnership Agreement Amendment by the
Company and the Operating Partnership, the consummation of the transactions
contemplated in the Operating Partnership Agreement (including the issuance,
offering and sale of the Series B Preferred Units to the Company) and compliance
by the Operating Partnership with its obligations under the Operating
Partnership Agreement Amendment do not (A) require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, except such as have been obtained, 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, material lease or other
material agreement or material instrument to which the Operating Partnership is
a party or by which the Operating Partnership or any of its properties are
bound, or the certificate of limited partnership or the Operating Partnership
Agreement of the Operating Partnership, or any provision of any statute, rule or
regulation applicable to the Operating Partnership, or any judgment, decree or
order of any court or other governmental authority or any arbitrator known to
such counsel and applicable to the Operating Partnership;
(t) 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).
(u) 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.
11
(v) 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.
(w) 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 shares of its
outstanding beneficial interests, nor declared, paid or otherwise made any
dividend or distribution of any kind on its shares of beneficial interests; and
(3) there has not been any material change in the beneficial interests, 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).
(x) The Company or its subsidiaries have obtained title
insurance policies insuring good and marketable title in fee simple to all items
of real property comprising part of the Properties (other than the Pending
Acquisitions) (as such term is defined in the Registration Statement and the
Prospectus, or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and, based upon UCC searches and representations from
the sellers of the Properties, marketable title to all personal property
comprising part of the Properties (other than the Pending Acquisitions), 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 in any material respect 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 (other than the Pending Acquisitions) held under lease by the Company
or any such subsidiary are held under valid, subsisting and enforceable leases,
with such exceptions as are not material and do not interfere with the use made
or proposed to be made of such property and buildings by the Company or 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).
(y) No labor dispute with the employees of the Company or any of
its subsidiaries exists or is threatened or, to the best of the Company's
knowledge, 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
12
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(z) The Company and its subsidiaries 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
or proposed to be 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).
(aa) The Company and each of its subsidiaries own or possess all
contract rights that are material to the businesses now operated or proposed to
be operated by them taken as a whole as such businesses are 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. The Company has not received any written notices that any of such
contracts are not in full force and effect, and neither the Company nor any such
subsidiary has received written notice of any material breach by any party under
any of such contracts.
(ab) 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 or will be 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 whole, except as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(ac) 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
13
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).
(ad) 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 written 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).
(ae) The Company conducts its operations in a manner that will
not subject it to registration as an investment company under the Investment
Company Act of 1940, as amended, and the transactions contemplated by this
Agreement will not cause the Company to become an investment company subject to
registration under such act.
(af) 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 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 assessment, fine or penalty levied against it, to the extent that
any of the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(ag) Neither the Company nor any of its subsidiaries is in
violation of any applicable federal or state law or regulation relating to
occupational safety and health or to the storage, handling or transportation of
hazardous or toxic materials and the Company and its subsidiaries have received
all permits, licenses or other approvals required of them under applicable
federal and state occupational safety and health and environmental laws and
regulations to conduct their respective businesses or the businesses proposed to
be conducted by them as described in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), and the Company and
each such subsidiary is in compliance with all terms and conditions of any such
permit, license or approval, except any such violation of law or regulation,
failure to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such
14
permits, licenses or approvals which 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, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) or the environmental site assessments and engineering
inspection reports listed on Schedule 3 hereto.
(ah) 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.
(ai) Except for the shares of capital stock of, or partnership
interests in (as applicable), each of the 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).
(aj) The Company and each of its subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable assurance that
(1) transactions are 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.
(ak) 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, partnership agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party and will
continue to be a party after the Firm Closing Date or by which the Company or
any of its subsidiaries or any of their respective properties is bound and will
continue to be bound after the Firm Closing Date or may be affected in any
material adverse respect with regard to property, business or operations of the
Company and its subsidiaries, taken as a whole.
(al) The Securities have been approved for listing on the New
York Stock Exchange, subject to official notice of issuance.
15
(am) Except as otherwise disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), since
January 1, 1990 no foreclosures have been instituted and, to the best of the
Company's knowledge, none are currently threatened with respect to any property
or assets directly or indirectly owned (whether now or in the past) by The Prime
Group, Inc. or the Company or any of its subsidiaries. Except for the assets of
The Prime Group, Inc. that were not transferred to the Company in the Formation
Transactions and that are described under the heading "Business and Prospectus -
Prime Assets Not Acquired by the Company" in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) (the
"Excluded Properties"), to the best of the Company's knowledge, neither The
Prime Group, Inc. nor any affiliate of The Prime Group, Inc. owns or operates
any office or industrial real property other than through its interests in the
Operating Partnership.
(an) No relationship, direct or indirect, exists between or
among the Company or the Operating Partnership on the one hand, and the
directors, officers, shareholders (in the case of the Company), partners (in the
case of the Operating Partnership), tenants, customers or suppliers of the
Company or the Operating Partnership 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.
(ao) The Company has been and is organized and operating in
conformity with the requirements for qualification as a real estate investment
trust (a "REIT") under the Internal Revenue Code of 1986, as amended (the
"Code"), and will have no earnings and profits accumulated in a non-REIT year
within the meaning of Section 857(a)(3)(B) of the Code, and the present method
of operation of the Company and its subsidiaries does and will enable the
Company to meet the requirements for taxation as a REIT under the Code in its
taxable year ending December 31, 1998 and for its subsequent taxable years. 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.
(ap) Except as disclosed in physical inspection reports, leases,
environmental reports and other written materials previously provided by the
Company to the Representatives and their counsel, (i) the Company has not
received any written notice that any of the Properties is not in compliance 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
16
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)
to the best of the Company's knowledge, 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 (as lessor), 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 which will remain in effect after the Firm Closing
Date 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
will lease 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.
(aq) Except as otherwise disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), the
mortgages and deeds of trust encumbering the properties and assets described in
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) which will remain in effect after the Firm Closing Date
are not convertible and neither the Company, any of its subsidiaries nor any
person affiliated therewith holds a participating interest therein, and such
mortgages and deeds of trust are not cross-defaulted or cross-collateralized to
any property not owned directly or indirectly by the Company or any of its
subsidiaries.
(ar) To the best knowledge of the Company, 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.
17
(as) Except as otherwise disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) or the
environmental site assessments and engineering inspection reports listed on
Schedule 3 hereto, and except as would not be reasonably likely to 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, (i) neither the Company nor any of its
subsidiaries nor, to the best knowledge of the Company, any other owners of the
Properties at any time or any other party has at any time, handled, stored,
treated, transported, manufactured, spilled, leaked, or discharged, dumped,
transferred or otherwise disposed of or dealt with, Hazardous Materials (as
hereinafter defined) on, to or from the Properties, other than by any such
action taken in compliance with all applicable Environmental Statutes; (ii)
neither the Company nor any of its subsidiaries intends to use the Properties or
any subsequently acquired properties for the purpose of handling, storing,
treating, transporting, manufacturing, spilling, leaking, discharging, dumping,
transferring or otherwise disposing of or dealing with Hazardous Materials,
except as necessary for the conduct of business and in compliance with
applicable environmental statutes; (iii) neither the Company nor any of its
subsidiaries knows of any seepage, leak, discharge, release, emission, spill, or
dumping of Hazardous Materials into waters on or adjacent to the Properties or
any other real property owned or occupied by any such party, or onto lands from
which Hazardous Materials might seep, flow or drain into such waters; (iv)
neither the Company nor any of its subsidiaries has received written notice of,
or has any knowledge of any occurrence or circumstance which, with notice or
passage of time or both, would give rise to a claim under or pursuant to any
federal, state or local environmental statute or regulation or under common law,
pertaining to Hazardous Materials on or originating from any of the Properties
or any assets described in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) or any other real property
owned or occupied by the Company or its subsidiaries or arising out of the
conduct of the Company or its subsidiaries, including without limitation a claim
under or pursuant to any Environmental Statute (as hereinafter defined); (v)
none of the Properties is included or, to the best of the Company's knowledge,
proposed for inclusion on the National Priorities List issued pursuant to CERCLA
(as hereinafter defined) by the United States Environmental Protection Agency
(the "EPA") or, to the best of the Company's knowledge, proposed for inclusion
on any similar list or inventory issued pursuant to any other Environmental
Statute or issued by any other Governmental Authority (as hereinafter defined).
As used herein, "Hazardous Material" shall include, without
limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, toxic substances, asbestos or any hazardous
materials as defined by any federal, state or local environmental law,
ordinance, rule or regulation in effect as of the date hereof and as of the Firm
Closing Date, including, without limitation, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. (S)(S)
9601-9675 ("CERCLA"), the Hazardous Materials Transportation Act, as amended, 49
U.S.C. (S)(S) 1801-1819, the Resource Conservation and Recovery
18
Act, as amended, 42 U.S.C. (S)(S) 6901-6992K, the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. (S)(S) 11001-11050, the Toxic
Substances Control Act, 15 U.S.C. (S)(S) 2601-2671, the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. (S)(S) 136-136y, the Clean Air Act, 42
U.S.C. (S)(S) 7401-7642, the Clean Water Act (Federal Water Pollution Control
Act), 33 U.S.C. (S)(S) 1251-1387, the Safe Drinking Water Act, 42 U.S.C. (S)(S)
300f-300j-26, and the Occupational Safety and Health Act, 29 U.S.C. (S)(S) 651-
678, and in the regulations promulgated pursuant to each of the foregoing
(individually, an "Environmental Statute") or by any federal, state or local
governmental authority having or claiming jurisdiction over the properties and
assets described in the Prospectus (a "Governmental Authority").
(at) None of the environmental consultants which prepared
environmental and asbestos inspection reports with respect to any of the
Properties, the engineering consultants which prepared engineering inspection
reports with respect to any of the Properties or Xxxxx Consulting Group, real
estate advisors, which prepared regional economic overviews and market analysis
for The Prime Group, Inc., dated April 23, 1998, were employed for such purpose
on a contingent basis or has any substantial interest in the Company or any of
its subsidiaries and none of them or any of their directors, officers or
employees is connected with the Company or any of its subsidiaries as a
promoter, selling agent, voting trustee, director, officer or employee.
(au) Except as set forth in the environmental site assessments
and engineering inspection reports prepared with respect to the Properties
listed on Schedule 3 hereto, neither the Company nor the Operating Partnership
is aware of any environmental or engineering condition at any of the Properties
that would 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.
Each reference in this Section 2 to "the condition (financial or
otherwise), management, business prospects, net worth, or results of operations
of the Company and its subsidiaries" means the condition (financial or
otherwise), management, business prospects, net worth, or results of operations
of the Company and its subsidiaries, taken as a whole as of the date hereof.
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 Preferred 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
19
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 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 [Winston & Xxxxxx, 00
Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, at 8:30 A.M., Chicago time,] [Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at
9:30 A.M., New York City time] on May [ ], 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
20
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 Company. Furthermore, in
the event that the Underwriters wire the Wired 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. Each of the Company and the Operating
Partnership 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
21
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 of which 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.
(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 promptly from time to time take such action
as the Representatives may reasonably request to qualify the Securities for
offering and sale under the securities or blue sky laws of such jurisdictions as
the Representatives may reasonably request and
22
will continue to comply with such laws 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 take any action that
would subject it to income taxation in such jurisdictions, 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 signed 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.
(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.
23
(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 Preferred Shares, or any securities
convertible into, or exchangeable or exercisable for, Preferred Shares or other
securities of the Company which are substantially similar to the Preferred
Shares, for a period of 90 days after the date hereof, except (i) pursuant to
this Agreement, and (ii) in connection with the acquisition by the Company or
the Operating Partnership of real property or interests in entities holding real
property, 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 (i) and (ii)) for a period ending
on the date that is 90 days after the date hereof.
(i) 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.
(j) The Company will obtain the lock-up agreements described in
Section 7(f) hereof prior to the Firm Closing Date.
(k) 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 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 Preferred Shares has been or is likely to be materially
affected (regardless of whether such rumor, publication or event necessitates a
supplement to or amendment of the Prospectus), 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.
(l) 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
24
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).
(m) 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.
(n) The Company will use its best efforts to continue to meet
the requirements to qualify as a REIT under the Code.
6. Expenses. The Company will pay all costs and expenses incident to
the performance of its and the Operating Partnership's 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 or the Operating
Partnership 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 reasonable 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 in no event
be liable to any of the Underwriters for the loss of anticipated profits from
the transactions covered by this Agreement.
25
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 and the Operating Partnership
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 and the Operating Partnership of their respective
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 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 initial 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 Winston & Xxxxxx, counsel for the Company and its
subsidiaries, to the effect that:
(i) the Company has been duly formed and is validly
existing as a real estate investment trust in good standing under the laws
of the State of Maryland and is duly qualified to transact business as a
foreign business trust and is in good standing under the laws of all other
jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified does not subject the Company and the
Subsidiaries (as defined below), taken as a whole, to a material liability
or disability. The Operating Partnership has been duly organized and is
validly existing as a limited partnership in good standing under the laws
of the State of Delaware and is duly qualified to transact business as a
foreign limited partnership and is in good standing under the laws of all
other jurisdictions where the ownership or leasing of its
26
properties or the conduct of its business requires such qualification,
except where the failure to be so qualified does not subject the Company
and the Subsidiaries, taken as a whole, to a material liability or
disability. Each of the subsidiaries of the Company, all of which have been
identified on an exhibit to such opinion (individually a "Subsidiary" and
collectively the "Subsidiaries") has been duly organized and is validly
existing as a corporation, partnership or as a limited liability company,
as appropriate, in good standing under the laws of its respective
jurisdiction of organization and is duly qualified to transact business as
a foreign corporation, partnership or limited liability company, as
appropriate, and is in good standing (to the extent applicable) 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 subject the Company and the Subsidiaries, taken as a whole, to a
material liability or disability.
(ii) the Company and each of the Subsidiaries have the
requisite real estate investment trust, corporate, partnership or limited
liability company power (as applicable) to own or lease their respective
properties and conduct their respective businesses as described in the
Registration Statement and the Prospectus, and each of the Company and the
Operating Partnership has the requisite real estate investment trust or
partnership power (as applicable) to enter into this Agreement and to
perform its obligations hereunder;
(iii) the issued and outstanding shares of capital stock or
partnership interests, as the case may be, of each of the Subsidiaries have
been duly authorized and validly issued, are fully paid and nonassessable
and, except as otherwise set forth in the Prospectus, are owned
beneficially by the Company free and clear of any perfected security
interests or any other security interests, liens, encumbrances, equities or
claims known to such counsel;
(iv) the authorized, issued and outstanding capitalization
of the Company is as set forth under the caption "Capitalization" in the
Prospectus; all necessary and proper real estate investment trust
proceedings have been taken in order to authorize validly the Preferred
Shares referred to therein; all outstanding shares of beneficial interest
(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, were not 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, any preemptive
rights or other rights to subscribe for or purchase any securities, and
conform to the description thereof contained in the Prospectus; no holders
of outstanding shares of beneficial interests of the
27
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, as such, to any preemptive or other rights to subscribe for any of
the Firm Securities; and no holders of securities of the Company are
entitled to have such securities registered under the Registration
Statement;
(v) the Series B Preferred Units to be issued to the
Company in connection with the offering and issuance of the Securities were
duly authorized for issuance by the Operating Partnership, and upon
contribution of cash in the amount specified in the Operating Partnership
Agreement, as amended, will be validly issued. The terms of the Series B
Preferred Units conform in all material respects to (x) the description
thereof contained in the Prospectus and (y) all statements related thereto
contained in the Prospectus. The issuances of securities described in Item
33 of the Registration Statement were not at the time of issue, and are not
as of the Firm Closing Date, required to be registered under the Act;
(vi) 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
the 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 an shares of capital stock, equity interests, any such
convertible or exchangeable securities, equity interests or obligations, or
any such warrants, rights or options;
(vii) the statements in the Prospectus set forth under the
headings "Business and Properties-Legal Proceedings," "Description of
Shares of Beneficial Interest," "Structure and Formation of the Company,"
"Certain Relationships and Related Transactions," "Partnership Agreement,"
"Certain Provisions of Maryland Law and of the Company's Declaration of
Trust and Bylaws," "Partnership Agreement," "Certain Federal Income Tax
Considerations" and "ERISA Considerations," 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, the Operating Partnership or the Services Company, are accurate in
all material respects and fairly present the information required to be
disclosed therein;
28
(viii) the execution and delivery of this Agreement have
been duly authorized by all necessary real estate investment trust or
partnership (as applicable) action of the Company and the Operating
Partnership, and this Agreement has been duly executed and delivered by the
Company and the Operating Partnership;
(ix) (A) to such counsel's knowledge and other than as
set forth in the Prospectus, no legal or governmental proceedings are
pending to which the Company or any of the Subsidiaries is a party or to
which the property of the Company or any of the Subsidiaries is subject
that are required to be described in the Registration Statement or the
Prospectus and are not described therein, and to such counsel's knowledge,
no such proceedings have been threatened against the Company or any of the
Subsidiaries or with respect to any of their respective properties and (B)
to such counsel's knowledge, no contract or other document of a character
required to be disclosed in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement is not disclosed
therein or filed as required;
(x) the execution, delivery and performance of this
Agreement by the Company and the Operating Partnership, the consummation of
the transactions contemplated in this Agreement and the Registration
Statement (including the completion of the Pending Acquisitions, the
issuance, offering and sale of the Securities to the Underwriters and the
Series B Preferred Units to the Company and the application of the proceeds
from the sale of the Securities and the Series B Preferred Units as
described under the caption "Use of Proceeds" in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) and
compliance by the Company and the Operating Partnership with their
obligations under this Agreement do not (A) require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, except the registration under the Act of the Securities and such
as have been obtained and such as may be required under state securities or
blue sky laws, or (B) conflict with or result in a breach or violation of
any of the terms and provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, material lease or other material
agreement or material instrument known to such counsel to which the Company
or any of the Subsidiaries is a party or by which the Company or any of the
Subsidiaries or any of their respective properties are bound (the "Material
Agreements"), or the charter documents or by-laws or certificate of limited
partnership or partnership agreement or other organizational document (as
applicable) of the Company or any of the Subsidiaries, or any provision of
any statute, rule or regulation applicable to the Company or the
Subsidiaries, or any judgment, decree or order of any court or other
governmental authority or any arbitrator known to such counsel and
applicable to the Company or the Subsidiaries;
29
(xi) the execution, delivery and performance of an
amendment to the Operating Partnership Agreement to be dated the date of
the Firm Closing Date (the "Operating Partnership Agreement Amendment")
relating to the issuance of the Series B Preferred Units has been duly
authorized by the Company, as the holder of a majority of the general
partnership interests of the Operating Partnership, and has been duly
executed and delivered by the Company on the Firm Closing Date; the
Operating Partnership Agreement is a valid and binding agreement of the
Operating Partnership, enforceable against the Company and the Operating
Partnership in accordance with its terms, subject to the effect of
bankruptcy, insolvency, moratorium, fraudulent conveyance, reorganization
and similar laws relating to creditors' rights generally and to the
application of equitable principles in any proceeding, whether at law or in
equity; and the execution and delivery of the Operating Partnership
Agreement Amendment by the Company and the Operating Partnership, the
consummation of the transactions contemplated in the Operating Partnership
Agreement (including the issuance, offering and sale of the Series B
Preferred Units to the Company) and compliance by the Operating Partnership
with its obligations under the Operating Partnership Agreement Amendment do
not (A) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have
been obtained, 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 of
the Material Agreements, or the certificate of limited partnership or the
Operating Partnership Agreement of the Operating Partnership, or any
provision of any statute, rule or regulation applicable to the Operating
Partnership, or any judgment, decree or order of any court or other
governmental authority or any arbitrator known to such counsel and
applicable to the Operating Partnership;
(xii) the Company is not, and (assuming the application by
the Company of the proceeds of the issue and sale of the Securities as
described in the Prospectus under "Use of Proceeds") after giving effect to
the transactions contemplated by this Agreement (including the completion
of the Pending Acquisitions) will not be, an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended;
(xiii) the transfer of interests or other assets pursuant
to the Transfer Documents does not violate the articles or certificate of
incorporation, by-laws, limited liability company agreement, declaration of
trust, certificate of limited partnership, partnership agreement or other
organizational documents, as the case may be, of either of The Prime Group,
Inc. or Prime Group Limited Partnership; each of the Transfer Documents has
been duly authorized, executed and delivered by The Prime Group, Inc. and
Prime Group Limited Partnership and is a valid and binding agreement of The
Prime Group, Inc. and Prime Group Limited Partnership, enforceable in
accordance with its terms, subject to the
30
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;
(xiv) The Articles Supplementary relating to the Preferred
Shares has been filed with the appropriate governmental authority and the
number of Preferred Shares and the title, par value, liquidation
preference, ranking, dividend rate or rates, dividend payment dates,
redemption or sinking fund requirements and other terms of the Preferred
Shares have been set forth therein;
(xv) the Registration Statement has become effective
under the Act; any required filing of the Prospectus pursuant to Rule
424(b) has been made in the manner and within the time period required
thereby; and to such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued, and no
proceeding for that purpose has been instituted or threatened by the
Commission;
(xvi) 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 and related notes thereto and the other financial,
statistical and accounting data included therein or omitted therefrom, as
to which such counsel need express no opinion) appeared on their face to be
appropriately responsive in all material respects to the applicable
requirements of the Act and the rules and regulations of the Commission
thereunder; and
(xvii) the Company was organized in conformity with the
requirements for qualification as a real estate investment trust under the
Code , and the present method of operation of the Company and the Operating
Partnership as described in the Registration Statement and the Prospectus
and a certificate of a responsible officer of the Company does and will
enable the Company to meet the requirements for taxation as a real estate
investment trust under the Code in the year ended December 31, 1998.
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
the factual matters upon the statements of officers and other representatives of
the Company and public
31
officials) 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 and related notes thereto and the other financial,
statistical and accounting data included in the Registration Statement or the
Prospectus or omitted therefrom.
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, the Operating Partnership and public officials and, as
to matters involving the application of laws of any jurisdiction other than the
State of Illinois, 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, upon the
opinion of Miles and Stockbridge, a Professional Corporation, as to Maryland
law. Copies of such local counsel opinions shall be delivered to the
Representatives and counsel for the Underwriters.
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 Skadden, Arps, Slate, Xxxxxxx & Xxxx 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 Ernst & Young
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 and the Prime Properties, the
Prime Contribution Properties and the IBD Properties, the NAC Properties,
Citibank Office Plaza, Salt Creek Office Center, 000 Xxxxxx Xxxxxxxxx, 475
Superior Avenue, Continental Office Towers, 000 Xxxxx XxXxxxx Xxxxxx, 0000
Xxxxxxx, 00 Xxxxx Xxxxxxxx, Xxxxxxxx Xxxxx, 000 Xxxxx XxXxxxx
32
Street, 000 Xxxxx Xxxxxxxx Xxxxxx, 0000 Xxxxxx Xxxxxxxxx and Two Century
Center within the meaning of the Act and the applicable rules and
regulations thereunder;
(ii) in their opinion, the audited consolidated financial
statements and schedules and pro forma financial statements examined 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 consolidated condensed financial statements of the
Company, the Prime Properties, the Prime Contribution Properties and the
IBD Properties, the NAC Properties, Citibank Office Plaza, Salt Creek
Office Center, 000 Xxxxxx Xxxxxxxxx, 475 Superior Avenue, Continental
Office Towers, 000 Xxxxx XxXxxxx Xxxxxx, 0000 Xxxxxxx, 00 Xxxxx Xxxxxxxx,
Xxxxxxxx Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, 000 Xxxxx Xxxxxxxx Avenue, 6400
Xxxxxx Courtyard and Two Century Center, carrying out certain specified
procedures (which do not constitute an examination made in accordance with
generally accepted auditing standards) that would not necessarily reveal
matters of significance with respect to the comments set forth in this
paragraph (iii), a reading of the minute books of the shareholders, the
board of trustees and any committees thereof of the Company and inquiries
of certain officials of the Company who have responsibility for financial
and accounting matters, nothing came to their attention that caused them to
believe that:
(A) at a specific date (not more than five business
days prior to the date of such letter), there were any increases in
debt or accumulated deficit of the Prime Properties or any decreases
in total assets of the Prime Properties, in each case as compared with
amounts shown in the December 31, 1997 combined balance sheet included
in the Registration Statement and the Prospectus, or for the period
from January 1, 1998 to March 31, 1998, there were any decreases, as
compared with the corresponding period of the previous year, in rental
income, total revenues or net income (as applicable) of the Prime
Properties, the Prime Contribution Properties and the IBD Properties,
the NAC Properties, Citibank Office Plaza, Salt Creek Office Center,
000 Xxxxxx Xxxxxxxxx, 475 Superior Avenue, Continental Office Towers,
000 Xxxxx XxXxxxx Xxxxxx, 0000 Xxxxxxx, 00 Xxxxx Xxxxxxxx, Xxxxxxxx
Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, 000 Xxxxx Xxxxxxxx Avenue, 6400
Xxxxxx Courtyard and Two Century Center, except in all instances for
changes, increases or decreases which the Registration Statement and
the Prospectus disclose have occurred or may occur; and
33
(B) at a specific date (not more than five business
days prior to the date of such letter), with respect to the Prime
Properties, there were any increases in borrowings as compared with
amounts shown in the December 31, 1997 balance sheet included in the
Registration Statement and the Prospectus, except in all instances for
changes or increases 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 identified by the Representatives that are derived
from the general accounting records of the Company and its consolidated
subsidiaries 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 and its consolidated
subsidiaries 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 and its consolidated subsidiaries who have
responsibility for financial and accounting matters and proving the
arithmetic accuracy of the application of the pro forma adjustments to the
historical amounts in the unaudited pro forma 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 in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X or that
the pro forma adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters under this Agreement 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 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.
34
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 and
the Operating Partnership 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 each of the Company and the
Operating Partnership 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 or the Operating Partnership'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 shall have received from each executive
officer and trustee an agreement to the effect that such person will not,
directly or indirectly, without the prior written consent of Prudential
Securities Incorporated, on behalf of the Underwriters, offer, sell, offer
35
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
Preferred Shares or any securities convertible into, or exchangeable or
exercisable for, Preferred Shares or other securities of the Company which are
substantially similar to the Preferred Shares, for a period of 90 days after the
date of this Agreement, shall continue to be in effect and shall not be amended
or revoked without the prior written consent of Prudential Securities
Incorporated.
(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.
(i) On or prior to the Firm Closing Date, the Company will cause
the Articles Supplementary relating to the Preferred Shares to be filed with the
appropriate governmental authority.
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) Each of the Company and the
Operating Partnership, jointly and severally, 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:
36
(i) any untrue statement or alleged untrue statement made
by the Company or the Operating Partnership 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 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 neither the Company nor the
Operating Partnership will 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 neither the Company
nor the Operating Partnership will 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
37
Company or the Operating Partnership with Section 5(d) and (e) of this
Agreement. This indemnity agreement will be in addition to any liability which
the Company or the Operating Partnership may otherwise have. Neither the Company
nor the Operating Partnership will, 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 trustees (including any person who,
with his or her consent, is named in the Registration Statement as about to
become a trustee of the Company), 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
trustee, 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 clause, will
reimburse, as incurred, any legal or other expenses reasonably incurred by the
Company or any such trustee, 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 written 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 trustees 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
38
consent includes an unconditional release of the Company, its trustees and
officers 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 materially
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.
39
(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 and the Operating
Partnership 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 of the
Securities (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 Operating Partnership 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
the Company and the Operating Partnership shall be deemed one party and jointly
and severally liable for any obligations to contribute hereunder and each
director of the Company,
40
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 and the Operating Partnership.
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 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 or the Operating
Partnership 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, the
Operating Partnership 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, the Operating
Partnership, 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
41
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 or
the Operating Partnership 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 whole,
except in each case as described in or contemplated by the Registration
Statement and the Prospectus (exclusive of any amendment or supplement
thereto);
(ii) trading in the Preferred Shares 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 such
exchange;
(iii) a banking moratorium shall have been declared by New
York, Illinois 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.
42
(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
Sections 6 and 10 hereof.
12. Information Supplied by Underwriters. The statements set forth
in the last paragraph on the front cover page and under the heading
"Underwriting" in any Preliminary Prospectus 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:
[__________________] 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 00 X. Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Chief Executive Officer, with a copy to the Company at 00 X. Xxxxxx Xxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attention: General Counsel (facsimile number:
(000) 000-0000).
14. Successors. This Agreement shall inure to the benefit of and
shall be binding upon the several Underwriters, the Company, the Operating
Partnership 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 and the Operating
Partnership 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.
43
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, each of the Company and the
Operating Partnership 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 The Corporation Trust Inc. and the Operating
Partnership designates and appoints The Corporation Trust Company, and such
other persons as may hereafter be selected by each of the Company and the
Operating Partnership 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 each of the Company and
the Operating Partnership to be effective and binding service in every respect.
A copy of any such process so served shall be mailed by registered mail to each
of the Company and the Operating Partnership 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 or the Operating Partnership
refuses to accept service, each of the Company and the Operating Partnership
hereby agrees that service of process sufficient for personal jurisdiction in
any action against the Company or the Operating Partnership in the State of New
York may be made by registered or certified mail, return receipt requested, to
the Company or the Operating Partnership at its address provided in Section 13
hereof, and each of the Company and the Operating Partnership 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 each of the Company and the Operating Partnership in the
courts of any other jurisdiction.
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.
44
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, the
Operating Partnership and each of the several Underwriters.
Very truly yours,
PRIME GROUP REALTY TRUST
By: _____________________________________
Name:
Title:
PRIME GROUP REALTY, L.P.
By: Prime Group Realty Trust,
its managing general partner
By: _____________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
BEAR, XXXXXXX & CO. INC.
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
XXXXXX XXXXXX & COMPANY, INC.
By: PRUDENTIAL SECURITIES INCORPORATED
By:____________________________________
Name:
Title:
For itself and on behalf of the Representatives as
Representatives of the other several Underwriters
named in Schedule 1 hereto
SCHEDULE 1
UNDERWRITERS
============
Number of
Firm Securities
Underwriter to be Purchased
----------- ---------------
Prudential Securities Incorporated............................ [ ]
Bear, Xxxxxxx & Co. Inc....................................... [ ]
Xxxxxxxx, Billlings, Xxxxxx & Co., Inc........................ [ ]
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated.......................... [ ]
Xxxxxx Xxxxxx & Company, Inc.................................. [ ]
Total......................................................... 5,000,000
=========
1-1
SCHEDULE 2
----------
OWNERSHIP OF OPERATING PARTNERSHIP
----------------------------------
Number of Percentage of
Managing General Partner Common Units All Common Units
------------------------ ------------ ----------------
Prime Group Realty Trust 12,380,000 55.3%
General Partner
---------------
The Xxxxx Group, L.L.C. 927,100 4.1
Limited Partners
----------------
Prime Group Limited Partnership 90,000 0.5
Xxxxxxx X. Xxxxxxxxx 110,000 0.5
Primestone Investment Partners, L.P. 7,944,893 35.5
IBD Contributors/1/ 919,450 4.1
------- -----
Total 22,371,443.00 100.0%
============= =====
Number of Preferred Percentage of
Units/2/ Preferred Units
-------- ---------------
Managing General Partner
------------------------
Prime Group Realty Trust 2,000,000 100.0%
--------------------------
/1/ The IBD Contributors consist of the following persons or entities: Xxxxxx
X. Xxxxxxxx Trust Dated May 22, 1992, Grandville/Northwestern Management
Corporation, Xxxxxxx X. Xxxxxxxx Trust Dated May 21, 1992, Xxxx Xxxxxxxx
1991 Trust, Xxxxxxx Xxxxxxxx 1991 Trust, Xxxxxx X. Xxxxx, Xxxxxxx X.
Xxxxxxx, Grandville Road Property, Inc. and Sky Harbor Associates.
/2/ Represents preferred units, the terms and conditions of which correspond to
the Convertible Preferred Shares issued by the Company.
2-1
SCHEDULE 3
==========
ENVIRONMENTAL SITE ASSESSMENTS AND ENGINEERING REPORTS
------------------------------------------------------
A. Environmental Site Assessments:
------------------------------
1. Xxxxx, Level I Site Assessment, Hilton Parking Garage, 000 Xxxxxx
Xxx., Knoxville, June 5, 1997.
2. Xxxxx, Level I Site Assessment, One Center Square Office Building, 620
Market Street, Knoxville, June 5, 1997.
3. Xxxxx, Level I Site Assessment, Two Center Square Office Building, 625
Gay Street, Knoxville, June 5, 1997.
4. Xxxxx, Level I Site Assessment, Suntrust Bank Building, 201 Fourth
Ave, North, Nashville, June 5, 1997. No issues. Also 0000 Xxxxx Xxxxx
I.
5. Xxxxx, Level I Site Assessment, The Weston, 4823 Old Kingston Pike,
Knoxville, June 12, 1997.
6. Xxxx & Xxx Xxxx, Summary Environmental Report, Chicago Enterprise
Center, Nov. 1995.
7. Versar, Phase I, Xxxxxxx Enterprise Center, Nov. 1995.
8. Xxxxxxxx & Northstar, Underground Tank Removal Report, Citibank Xxxxxx
Xxxxx, 0000 X. Xxxxxxxxx Xx., Xxxxxxxxxx, XX, Aug. 6, 1996.
9. Certified Engineering & Testing Co., Asbestos Audit Report and
Transformer Survey, Citicorp Office Building, 0000 Xxxxxx Xxxx,
Xxxxxxxx, XX, Mar. 17, 1989.
10. Environmental Hazard Control, Closeout Document, Vinyl Asbestos Floor
Tile and Mastic Removal, Xxxxxxxx Xxxxxx Xxxxx, 0000 X. Xxxxxxxxx Xx.,
Xxxxxxxxxx, XX, July 26, 1994.
11. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 0000
Xxxx Xxxxxxxxx Xx., Xxxxxxxxxx, XX., Citicorp Office Plaza, June 22,
1997.
12. Chicago Flameproof, Meta Caulk Fire Stopping Proposal, Mar. 13, 1997.
13. Environmental Remediation and Indemnity Agreement, May 20, 1996.
14. STS, Environmental Reconnaisance and Subsurface Exploration, 00 Xxxx
Xxxxxx Xxxxx, Xxx. 0000.
15. Xxxxxxx Environmental, Revised Phase I Environmental Assessment, 00
Xxxx Xxxxxx Xxxxx, Xxxxxxx, XX, May 20, 1997.
16. Xxxxxxx Environmental, Inc., Phase I of 000 Xxxxxxx Xxxxx, Xxxxxxxxxx,
XX, May 28, 1997.
3-1
17. Xxxxxxx Environmental, Limited Subsurface Soil Investigation Proposal,
Gurnee, IL, July 9, 1997.
18. Pioneer Environmental, Phase I Environmental Site Assessment, 0000
Xxxxxxxxxx Xxx, Xxxxxxxxxxxx, XX, July 11, 1996.
19. Xxxxxxx Environmental, Phase I Assessment Update, 0000 Xxxxxxxxxx Xxx,
Xxxxxxxxxxxx, XX, May 2, 1997.
20. Green Environmental Group, Phase I of vacant property in McHenry, IL,
July 1994.
21. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 0000
Xxxxxxxxx Xxxxx, XxXxxxx, XX, May 2, 1997.
22. Heritage, Xxxxxxx Enterprise Center Remediation Work Plan, Feb. 28,
1997.
23. Heritage, East Chicago Enterprise Center Remediation Work Plan, Feb.
28, 1997.
24. Xxxxxxx & Niple, Phase I Environmental Site Assessments, Columbus
Portfolio Properties, April 1997.
25. Xxxxxxx & Xxxxx, Xxxxx 0 Environmental Site Assessment of 0000
Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX (Xxx-Xxxx), June 1977.
26. Xxxxxxx & Niple, Letter regarding soil testing of AutoGlass site, 4849
Grovepoint, Obetz, OH, July 15, 1997.
27. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 000
Xxxxx Xxxx, Xxxxxxxx, XX, Oct. 13, 1997.
28. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 00000
Xxxx Xxx, Xxxxxxxx Xxxx, XX, Xxx. 13, 1997.
29. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 000
Xxxxx Xxxx, Xxxxxxxx, XX, Oct. 13, 1997.
30. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 00000
Xxxx Xxx., Xxxxxxxx Xxxx, XX, Xxx. 13, 1997
31. Xxxxxx, Environmental Assessment of North Western Proviso Center, 0000
Xxxxxxx Xxxxx, Xxxxxxx, XX, May 31, 1994.
32. Xxxxxxx Environmental, Draft Phase I, 0000 Xxxxxxx Xxxxx, Xxxxxxx, XX,
Oct. 16, 1997.
33. Xxxxxxx, Phase I Environmental Assessment, 000-000 Xxxxx Xxxx,
Xxxxxxxx, XX, Mar. 25, 1994.
34. Xxxxxxx Environmental, Draft Phase I Environmental Report, 000-000
Xxxxx Xxxx, Xxxxxxxx, XX, Xxx. 16, 1997.
3-2
35. Xxxxxxx, Phase I Environmental Assessment, 000 Xxxxx Xxxx, Xxxxxxxx,
XX, Mar. 25, 1994.
36. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 000
Xxxxx Xxxx, Xxxxxxxx, XX, Oct. 17, 1997.
37. Xxxxxx, Phase I of 0000-0000 000xx Xx. Xxxxxxx Xxxx, XX, 0000.
38. Xxxxxxx, Draft Phase I Environmental Assessment, 0000-0000 000xx Xx.,
Xxxxxxx Xxxx, XX, Xxx. 16, 1997.
39. Xxxxxx, Phase I of 000 X. Xxxxxxxxx, Xxxxx Xxxxxx, XX, Nov. 15, 1993.
40. Xxxxxxx Environmental, Draft Phase I Environmental Assessment of 000
X. Xxxxxxxxx, Xxxxx Xxxxxx, XX, Oct. 17, 1997.
41. Xxxxxx, Environmental Inspection of Narco-Elmhurst Center, 000 Xxxxxx
Xx., Xxxxxxxx, XX, May 31, 1990.
42. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 000
Xxxxxx Xxxxx., Xxxxxxxx, XX, Oct. 16, 1997.
43. Xxxxxxx Environmental, Phase I Environmental Assessment of Vacant
Parcel, 000 Xxxxx Xxxxx, Xxxxxxxx, XX. May 21, 1996.
44. Xxxxxxx Environmental, Draft Phase I Environmental Site Assessment,
000-000 Xxxxx Xxxxx, Xxxxxxxx, XX, Xxx. 17, 1997.
45. Xxxxxxx Environmental, Phase I Environmental Assessment of 000 Xxxxx
Xxxx., Xxxxx Xxxxxx. XX, July 10, 1996.
46. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 000
Xxxxx Xxxx., Xxxxx Xxxxxx, XX, Xxx. 16, 1997.
47. Xxxxxx, Environmental Assessment of 0000 Xxxxxxx, Xxxxxxxx, XX, June
3, 1992.
48. Xxxxxxx, Draft Phase I Environmental Assessment, 0000 Xxxxxxx Xx.,
Xxxxxxxx, XX, Oct. 17, 1997.
49. Xxxxxxx, Draft Phase I of Nine Vacant Lots, Carol Stream, IL, Oct. 16,
1997.
50. Xxxxxx, Environmental Assessment of 0000 Xxxxxxxx Xx, Xxxxx, XX, Mar.
29, 1989.
51. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 0000
Xxxxxxxx Xx., Xxxxx, XX, Oct. 15, 1997.
52. Xxxxxx, Environmental Assessment of 4250-4300 Madison, Hillside, IL,
Feb. 29, 1992.
53. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 0000
Xxxxxxx Xx., Xxxxxxxx, XX, Oct. 17, 1997.
3-3
54. Xxxxxx, Environmental Assessment of 0000 Xxxx Xx, Xxxxxxx, XX, Mar. 1,
1990.
55. Xxxxxxx, Draft Phase I Environmental Assessment, 0000 Xxxx Xx.,
Xxxxxxx, XX, Oct. 17, 1997.
56. Xxxxxx, Phase I Environmental Audit of 000 Xxxxx Xxxx, Xxxxx Xxxxxx,
XX. May 31, 1991.
57. Xxxxxxx, Draft Phase I Environmental Assessment, 000 Xxxxx Xxxx, Xxxxx
Xxxxxx, XX, Oct. 17, 1997.
58. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 000 X.
Xxxxx Xx., Xxx Xxxxxxx, XX, Xxx. 15, 1997.
59. Xxxxxx, Phase I of 0000 X. Xxxxxxxxx, Xxxxxxx, XX, Nov. 26, 1991.
60. Xxxxxxx Environmental, Draft Phase I Environmental Assessment of 0000
X. Xxxxxxxxx, Xxxxxxx, XX, Oct. 16, 1997.
61. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 0000
Xxxxx Xx., Xxxxxxxxxx, Xx, Oct. 16, 1997.
62. Xxxxxxx, Draft Phase I Environmental Assessment, 0000 Xxxxxxx Xxxxx,
Xxxxxxxxxx, XX, Oct. 15, 1997.
63. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 000-000
X. Xxxx Xxx., Xxxxx Xxxxxx, XX, Xxx. 16, 1997.
64. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 0000
Xxxxxxxxxxxx Xxx./0000 Xxxxxxxxxx Xxx., Xxxxxx, XX, May 9, 1997.
65. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 000
Xxxxx Xx., Xxxxxxxxxx, XX., 0/0/00; and addendum, June 5, 1997.
66. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 000-000
Xxx Xxxxx, Xxxxxxxxxx, XX, May 2, 1997, addendum, May 28, 1997.
67. Xxxxxxx Environmental, Phase I Environmental Assessment, Salt Creek
Office Center, Schaumburg, IL, Aug. 22, 1997.
68. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 4160-
4190 Madison, Hillside, IL, Oct. 17, 1997.
69. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 0000
Xxxxxxx Xxxxxx, Xxxxxxxx, XX, Oct. 17, 1997.
70. Xxxxxxx Environmental, Draft Phase I Environmental Site Assessment,
000 Xxxxx Xxxxxxxx Xx., Xxxxxxxx, XX, Oct. 16, 1997.
71. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, Two
Vacant Lots, Batavia, IL, Oct. 17, 1997.
3-4
72. Xxxxxxx Environmental, Draft Phase I Environmental Assessment of 000
Xxxxxxx Xxxx., Xxxxxxxxxx, XX, Oct. 21, 1997.
73. Xxxxxxx Environmental, Draft Phase I Environmental Assessment of 000
Xxxxxxxx Xxx., Xxxxxxx, XX, Oct. 21, 1997.
74. Xxxxxxx Environmental, Phase I Environmental Assessment Update of 000
Xxxx Xxxxxxxxx Xxxx, Xxxxxxxxx Xxxxxxx, XX Oct. 21, 1997.
75. Xxxxxxx Environmental, Phase I Environmental Assessment, 77 West
Xxxxxx Drive, August 20, 1997, plus correspondence dated November 11,
1997.
76. Xxxxxxx Environmental, Draft Phase I Environmental Assessment, 2205-
0000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxxx, XX.
77. Xxxxxxx Environmental, Removal Site Evaluation and Preliminary
Assessment Event and Work Plan (1/97) and Event and Report (4/97),
00000 X. Xxxxxxxx Xxx., Xxxxxxx, XX.
78. Xxxxxxx Environmental, Inc., Phase I Environmental Assessment, 0000
Xxxxx Xxxxx, Xxx Xxxxx, XX., April 3, 1998.
79. Xxxxxxx Environmental, Inc., Phase I Environmental Assessment Report,
Commerce Point, Arlington Heights, IL., Feb. 5, 1998.
80. Xxxxxxx Environmental, Inc., Phase I Environmental Assessment, Phoenix
Home Life Bldg., Wauwatosa, WI, Dec. 12, 1997. Xxxxxxx Environmental,
Inc., Phase I Environmental Assessment Addendum, Feb. 19, 1998.
81. Xxxxxxx Environmental, Inc., Phase I Environmental Assessment, Peoples
Gas Bldg, Chicago, IL, Dec. 19, 1997.
82. Xxxxxxx Environmental, Inc., Phase I Environmental Assessment, 000
Xxxxx XxXxxxx Xx, Xxxxxxx, XX, Mar. 23, 1998.
83. Xxxxxxx Environmental, Inc., Phase I Environmental Assessment, 00
Xxxxx Xxxxxxxx Xxxx, Xxxxxxx, XX, Dec. 12, 1997.
84. Xxxxxxx Environmental, Inc., Draft Phase I Environmental Assessment,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, XX., Nov. 18, 1997. Xxxxxxx
Environmental Inc., Phase I Environmental Assessment Addendum, Dec.
30, 1997.
85. Xxxxxxx Environmental, Inc., Phase I Environmental Assessment,
Continental Towers, Rolling Meadows, IL, Jan. 23, 1998.
86. Xxxxxxx Environmental, Inc., Phase I Environmental Assessment, 63-acre
Vacant Parcel - Aurora, IL, Apr. 24, 1998.
3-5
87. Xxxxxxx Environmental, Inc., Phase I Environmental Assessment, 000-
xxxx Xxxxxx Xxxxxx - Xxxxxx, XX, Apr. 24, 1998.
B. Engineering Reports;
-------------------
1. Wiss, Janney Engineering Report for the following Properties to be
contributed by NAC Contributors:
a. 0000 Xxxxxxxxx Xx.
b. 4211 Madison
c. 000 X. Xxxxxxxxx
d. 000 Xxxxx Xx.
x. 0000 Xxxxxxx
f. 000 Xxxxx Xxxx
g. 961 Xxxxxx
h. 4100-4190 Madison
i. 0000 Xxxxxxxx Xx.
j. 5600 Proviso Dr.
k. 00000 Xxxx Xxx.
l. 00000 Xxxx Xxx.
m. 000-000 Xxxxx Xx.
2. Wiss, Janney, Walkthrough Inspection of Eight Industrial Properties of
the Brazos Industrial Portfolio, 4/17/97, for the following
Properties:
a. 4849 Groveport
b. 0000 XxXxx Xx.
c. 0000 XxXxx Xx.
d. 2499 XxXxx
e. 4411 Marketing
f. 5160 Blazer
g. 341 Enterprise
h. 000 Xxxxxx Xx.
3. Xxxx, Xxxxx, Draft 3 Engineering Walkthrough for Citibank Office Plaza
and Salt Creek Office Center, 7/14/97.
4. Xxxx, Xxxxx, Draft Engineering Walkthrough for the following IBD
Industrial Properties:
a. 000 Xxxxx Xx.
b. 000 Xxxxx Xx.
c. 000 Xxxxxxx Xx.
d. 306-310 Era
e. 1200 Northwest
f. 0000 Xxxxxxxxxx Xxx
g. 1301 Ridgeview
3-6
