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EXHIBIT 1.1
XXXXXXX REAL ESTATE, INC.
392,638 Shares
Common Stock
($.01 Par Value)
UNDERWRITING AGREEMENT
February 18, 1998
X.X. XXXXXXX & SONS, INC.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
The undersigned, Xxxxxxx Real Estate, Inc., a Maryland corporation (the
"Company") hereby confirms its agreement with you (the "Underwriter") as
follows:
1. Description of Shares. The Company proposes to issue and sell to
you 392,638 shares of its Common Stock, par value $.01 per share (the "Shares").
The Shares are more fully described in the Prospectus hereinafter defined.
2. Purchase, Sale and Delivery of Shares. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to you, and
you agree to purchase from the Company at a purchase price of $19.3600 per
share, 392,638 Shares.
The Company will deliver definitive certificates for the Shares at the
office of X.X. Xxxxxxx & Sons, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
("Xxxxxxx' Office"), or such other place as you and the Company may mutually
agree upon (the "Place of Closing"), for your account against payment to the
Company of the purchase price for the Shares sold to you by wire transfer of
immediately available funds, at 10:00 a.m., St. Louis time, on February 23,
1998, or at such other time and date not later than three full business days
thereafter as you and the Company may agree, such time and date of payment and
delivery being herein called the "Closing Date."
The certificates for the Shares so to be delivered will be made
available to you for inspection at Xxxxxxx' Office (or such other place as you
and the Company may mutually agree upon) at least one full business day prior to
the Closing Date and will be in such names and denominations as you may request
at least one full business day prior to the Closing Date.
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3. Representations, Warranties and Agreements of the Company. (a) The
Company represents and warrants to and agrees with you that:
(i) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"); a
registration statement (Registration No. 333-28167) on Form S-3,
including a prospectus relating to the registration of the Shares and
such other securities which may be offered from time to time in
accordance with Rule 415 under the Act, and such amendments to such
registration statement as may have been required to the date of this
Agreement, has been carefully prepared by the Company pursuant to and
in conformity with the requirements of the Act, and the Rules and
Regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, was filed with the
Commission under the Act, and was declared effective on June 11, 1997.
Copies of such registration statement, including any amendments
thereto, each related preliminary prospectus contained therein, the
exhibits, financial statements and schedules have heretofore been
delivered by the Company to you. A prospectus supplement (the
"Prospectus Supplement") setting forth the terms of the offering, sale
and plan of distribution of the Shares and additional information
concerning the Company and its business has been or will be so prepared
and will be filed pursuant to Rule 424(b) of the Rules and Regulations
on or before the second business day after the date hereof (or such
earlier time as may be required by the Rules and Regulations). The term
"Registration Statement" as used herein means the registration
statement, and the basic prospectus included therein, as amended at the
time it or any amendment thereto became effective under the Act or, at
the time any Annual Report on Form 10-K is filed by the Company with
the Commission (the "Effective Date"), including financial statements
and all exhibits and all documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act. Any document filed by
the Company under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") after the effective date of the Registration Statement
and incorporated by reference in the Prospectus shall be deemed to be
included in the Registration Statement and the Prospectus as of the
date of such filing. The term "Prospectus" as used herein means (i) the
base prospectus included in the Registration Statement at the Effective
Date, as supplemented by the Prospectus Supplement as first filed with
the Commission pursuant to Rule 424(b) of the Rules and Regulations,
except that, if such base prospectus is amended or supplemented
subsequent to the Effective Date, the term "Prospectus" shall refer to
the base prospectus as so amended or supplemented and as further
supplemented by the Prospectus Supplement, (ii) if no such filing is
required, the form of final prospectus included in the Registration
Statement at the Effective Date or (iii) if a Term Sheet or Abbreviated
Term Sheet (as such terms are defined in Rule 434(b) and 434(c),
respectively, of the Rules and Regulations) is filed with the
Commission pursuant to Rule 424(b)(7) of the Rules and Regulations, the
Term Sheet or Abbreviated Term Sheet and the last Preliminary
Prospectus filed with the Commission prior to the time the Registration
Statement became effective, taken together (including, in each case,
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Act). The term "Preliminary Prospectus"
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as used herein shall mean a preliminary prospectus included at any time
in the Registration Statement.
(ii) The Commission has not issued, and is not to the knowledge
of the Company threatening to issue, an order preventing or suspending
the use of any Preliminary Prospectus or the Prospectus nor instituted
proceedings for that purpose. Each Preliminary Prospectus at its date
of issue, the Registration Statement at the Effective Date, and the
Prospectus at its date of issue and any amendments or supplements
thereto contains or will contain, as the case may be, all statements
which are required to be stated therein by, and in all material
respects conform or will conform, as the case may be, to the
requirements of, the Act and the Rules and Regulations. Neither the
Registration Statement nor any amendment thereto, as of the applicable
effective date, and neither the Prospectus nor any supplement thereto,
as of its applicable issue date or the Closing Date, contains or will
contain, as the case may be, any untrue statement of a material fact or
omits or will omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representation or warranty as to
information contained in or omitted from the Registration Statement or
the Prospectus, or any such amendment or supplement, in reliance upon,
and in conformity with, written information furnished to the Company by
you specifically for use in the preparation thereof.
(iii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the Act, at the time they were
filed with the Commission, complied in all material respects with the
requirements of the Exchange Act, and the rules and regulations adopted
by the Commission thereunder (the "Exchange Act Rules and
Regulations"), and, when read together and with the other information
in the Prospectus, at the time the Registration Statement became
effective and at the Closing Date, did not or will not, as the case may
be, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iv) The filing of the Registration Statement and the execution
and delivery of this Agreement have been duly authorized by the Board
of Directors of the Company; this Agreement constitutes a valid and
legally binding obligation of the Company enforceable in accordance
with its terms (except to the extent the enforceability of the
indemnification and contribution provisions of Section 6 hereof may be
limited by public policy considerations as expressed in the Act as
construed by courts of competent jurisdiction, and except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditors' rights
generally and by general principles of equity, regardless of whether
enforceability is considered in a proceeding at law or equity); the
issue and sale of the Shares by the Company and the performance of this
Agreement and the consummation of the transactions herein contemplated
will not result in a violation of the Company's articles of
incorporation or bylaws or result in a material breach or violation of
any
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of the terms and provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any properties or assets of the Company or its subsidiaries under,
any statute, or under any indenture, mortgage, deed of trust, note,
loan agreement, sale and leaseback arrangement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which they are bound or to which any of the properties or assets
of the Company or its subsidiaries is subject, or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or its subsidiaries or their properties,
except to such extent as does not materially adversely affect the
business of the Company and its subsidiaries taken as a whole; no
consent, approval, authorization, order, registration or qualification
of or with any court or governmental agency or body is required for the
consummation of the transactions herein contemplated, except such as
may be required by the National Association of Securities Dealers, Inc.
(the "NASD") or under the Act or Rules and Regulations or any state
securities laws.
(v) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, except as may
be disclosed in the Prospectus. Except as contemplated in the
Prospectus, subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, the Company
and its subsidiaries taken as a whole have not incurred any material
liabilities or material obligations, direct or contingent, other than
in the ordinary course of business, or entered into any material
transactions not in the ordinary course of business, and there has not
been any material change in the capital stock or long-term debt of the
Company and its subsidiaries taken as a whole or any material adverse
change in the condition (financial or other), net worth, business,
affairs, management, prospects or results of operations of the Company
and its subsidiaries taken as a whole. The Company and its subsidiaries
have filed all necessary federal, state and foreign income and
franchise tax returns and paid all taxes shown as due thereon; all tax
liabilities are adequately provided for on the books of the Company and
its subsidiaries except to such extent as would not materially
adversely affect the business of the Company and its subsidiaries taken
as a whole; the Company and its subsidiaries have made all necessary
payroll tax payments and are current and up-to-date as of the date of
this Agreement; and the Company and its subsidiaries have no knowledge
of any tax proceeding or action pending or threatened against the
Company or its subsidiaries which might materially adversely affect
their business or property.
(vi) Except as described in the Prospectus, there is not now
pending or, to the knowledge of the Company, threatened or
contemplated, any action, suit or proceeding to which the Company or
its subsidiaries is a party before or by any court or public,
regulatory or governmental agency or body which might be expected to
result (individually or in the aggregate) in any material adverse
change in the
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condition (financial or other) or business of the Company and its
subsidiaries taken as a whole, or might be expected to materially and
adversely affect the properties or assets thereof, and there are no
contracts or documents of the Company or its subsidiaries which would
be required to be filed as exhibits to the Registration Statement by
the Act or by the Rules and Regulations which have not been filed as
exhibits to the Registration Statement or incorporated by reference
therein.
(vii) The Company has duly authorized capital stock as described
in the Prospectus; all outstanding shares of Common Stock of the
Company and the Shares conform, or when issued will conform, to the
description thereof in the Prospectus and have been, or, when issued
and paid for will be, duly authorized, validly issued, fully paid and
nonassessable; and the issuance of the Shares to be purchased from the
Company hereunder is not subject to preemptive rights.
(viii) Each of the Company and its subsidiaries have been duly
incorporated or formed, as the case may be, and is a validly existing
corporation, general or limited partnership, or other legal entity, as
the case may be, in good standing under the laws of the state or other
jurisdiction in which it is incorporated or formed, as the case may be.
The Company and its subsidiaries have full power and authority
(corporate and other) to own, lease and operate their properties and
conduct their businesses as described in the Prospectus; each of the
Company and its subsidiaries is duly qualified or registered to do
business and is in good standing in each state or other jurisdiction in
which its ownership or leasing of property or conduct of business
legally requires such qualification, except where the failure to be so
qualified, considering all such cases in the aggregate, would not have
a material adverse effect on the ability of the Company and its
subsidiaries, taken as a whole, to conduct their business as described
in the Prospectus; and the outstanding shares of capital stock or
ownership interests of the Company's subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable and
those shares of capital stock or ownership interest owned by the
Company are owned by it free and clear of any perfected security
interest and are not the subject of any agreement or understanding with
any person; no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligations into shares of capital stock or ownership interest in the
subsidiaries are outstanding.
(ix) KPMG Peat Marwick LLP, the accounting firm which has
certified the financial statements filed with or incorporated by
reference in and as a part of the Registration Statement, is an
independent public accounting firm within the meaning of the Act and
the Rules and Regulations.
(x) The consolidated financial statements of the Company
together with the related schedules and notes thereto, set forth or
included or incorporated by reference in the Registration Statement and
Prospectus fairly present the financial condition of the Company and
its consolidated subsidiaries as of the dates indicated and the results
of operations, changes in financial position, shareholders' equity and
cash flows for the periods therein specified, in conformity with
generally accepted accounting
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principles consistently applied throughout the periods involved (except
as otherwise stated therein). The summary and selected financial and
statistical data included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the
information shown therein and, to the extent based upon or derived from
the financial statements, have been compiled on a basis consistent with
the financial statements presented therein. In addition, the pro forma
financial statements of the Company, and the related notes thereto,
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the basis described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances
referred to therein. Furthermore, all financial statements required by
Rule 3-14 of Regulation S-X ("Rule 3-14") have been included or
incorporated by reference in the Registration Statement and the
Prospectus and any such financial statements are in conformity with the
requirements of Rule 3-14. No other financial statements are required
to be set forth or to be incorporated by reference in the Registration
Statement or the Prospectus under the Act or the Rules and Regulations
thereunder.
(xi) Neither the Company nor any subsidiary is in default with
respect to any contract or agreement to which it is a party; provided
that this representation shall not apply to defaults which in the
aggregate are not materially adverse to the condition, financial or
other, or the business or prospects of the Company and its subsidiaries
taken as a whole.
(xii) Neither the Company nor any subsidiary is in violation of
any other laws, ordinances or governmental rules or regulations to
which it is subject, including, without limitation, Section 13 of the
Exchange Act, and neither the Company nor any subsidiary has failed to
obtain any license, permit, franchise, easement, consent, or other
governmental authorization necessary to the ownership, leasing and
operation of its properties or to the conduct of its business, which
violation or failure would materially adversely affect the business,
operations, affairs, properties, profits or condition (financial or
other) of the Company and its subsidiaries taken as a whole. Neither
the Company nor any subsidiary has, at any time during the past five
years, (A) made any unlawful contributions to any candidate for any
political office, or failed fully to disclose any contribution in
violation of law, or (B) made any payment to any state, federal or
foreign government official, or other person charged with similar
public or quasi-public duty (other than payment required or permitted
by applicable law).
(xiii) There are no holders of securities of the Company having
rights to registration thereof or preemptive rights to purchase Common
Stock of the Company except as disclosed in the Prospectus.
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(xiv) Except as described in the Prospectus, the Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent licenses, trademarks, service marks and trade
names necessary to conduct the business now operated by them, and
neither the Company nor any subsidiary has received any notice of
infringement of or conflict with asserted rights of others with respect
to any patents, patent licenses, trademarks, service marks or trade
names which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially adversely
affect the business, operations, affairs, properties, profits,
condition (financial or other) of the Company and its subsidiaries
taken as a whole.
(xv) The Company and each of its subsidiaries has good and
marketable title to all properties and assets described in the
Prospectus as owned by it, free and clear of all perfected security
interests, except such as (i) are described in the Prospectus or (ii)
are not material to the business of the Company or its subsidiaries,
taken as a whole. The Company and each of its subsidiaries has valid,
subsisting and enforceable leases for the properties described in the
Prospectus as leased by it, with such exceptions as are not material
and do not materially interfere with the use made and proposed to be
made of such properties by the Company and such subsidiaries; no tenant
under any of the leases pursuant to which the Company leases its
properties has an option or right of first refusal to purchase the
premises demised under such lease; the use and occupancy of each of the
properties of the Company complies in all material respects with all
applicable codes and zoning laws and regulations; the Company has no
knowledge of any pending or threatened condemnation or zoning change
that will in any material respect affect the size of, use of,
improvements of, construction on, or access to any of the properties of
the Company; and the Company has no knowledge of any pending or
threatened proceeding or action that will in any manner affect the size
of, use of, improvements on, construction on, or access to any of the
properties of the Company.
(xvi) Title insurance in favor of the Company (or the subsidiary
which holds title to such property) is maintained with respect to each
of the properties owned by the Company in an amount at least equal to
the greater of (i) the cost of acquisition of such property of (ii) the
cost of construction by the Company of the improvements located on such
property (measured at the time of such construction), except, in each
case, where the failure to maintain such title insurance would not
materially adversely affect the business, operations, affairs,
properties, profits or condition (financial or other) of the Company
and its subsidiaries taken as a whole. Title insurance in favor of the
mortgagee is maintained in an amount equal to the maximum commitment of
the related loan.
(xvii) (a) Except as disclosed in the Prospectus, the Company has
no knowledge of (a) the unlawful presence of any hazardous substances,
hazardous materials, toxic substances, pollutants or waste materials
(collectively, "Hazardous Materials") on any of its properties, except
that which is in compliance with all Environmental Laws or (b) any
unlawful spills, releases, discharges or disposals of Hazardous
Materials that have occurred or are presently occurring on or from its
properties, which presence or
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occurrence would individually or in the aggregate materially adversely
affect the business, operations, affairs, properties, profits or
condition (financial or other) of the Company and its subsidiaries taken
as a whole.
(b) Except as disclosed in the Prospectus, to the Company's
knowledge, the Company, its subsidiaries and its properties (i) are in
compliance with any and all Environmental Laws, (ii) have received all
permits, licenses or other approvals required under applicable
Environmental Laws to conduct its business and (iii) are in compliance
with all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not individually or in the aggregate materially
adversely affect the business, operations, affairs, properties, profits
or condition (financial or other) of the Company and its subsidiaries
taken as a whole.
(c) The Company engages environmental consultants to perform
phase I environmental site assessments in accordance with the ASTM
Standard to identify any environmental conditions prior to the purchase
of its properties. On the basis of such phase I environmental site
assessments, or such additional investigations as may have been
performed based on the findings of a phase I assessment, and, except as
described in the Prospectus, the Company and its subsidiaries have
reasonably concluded that no such environmental conditions exist which
would, individually or in the aggregate, materially adversely affect
the business, operations, affairs, properties, profits or condition
(financial or other) of the Company and its subsidiaries taken as a
whole.
(d) As used herein, "Hazardous Material" shall include, without
limitation any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances, or related
materials, asbestos, polychlorinated biphenyls ("PCBs"), petroleum
products and by-products and substances defined or listed as "hazardous
substances," "toxic substances," "hazardous waste," or "hazardous
materials" in any Federal, state or local Environmental Law.
(e) As used herein, "Environmental Law" shall mean all laws,
regulations or ordinances of any Federal, state or local governmental
authority having or claiming jurisdiction over any of its properties (a
"Governmental Authority") that are designed to protect public health
and the environment or regulate the handling of Hazardous Materials,
including, without limitation, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. Section 9601 et seq.) ("CERCLA"), the Hazardous Material
Transportation Act, as amended (49 U.S.C. Section 1801 et seq.), the
Resource Conservation and Recovery Act, as amended (42 U.S.C. Section
6901 et seq.), the Federal Water Pollution Control Act, as amended (33
U.S.C. Section 1251 et seq.), and the Clean Air Act, as amended (42
U.S.C. Section 7401 et seq.), and any and all analogous future federal
or present or future state or local laws.
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(xviii) No labor disturbance exists with the employees of the
Company or its subsidiaries or, to the Company's knowledge, is imminent
which would materially adversely affect the business, operations,
affairs, properties, profits or condition (financial or other) of the
Company and its subsidiaries taken as a whole.
(xix) The Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of the Common Stock, and the Company is not aware of any such
action taken or to be taken by affiliates of the Company.
(xx) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(xxi) The mortgages and deeds of trust encumbering the properties
and assets described in the Prospectus are not convertible nor does the
Company hold a participating interest therein.
(xxii) Property and casualty insurance in favor of the Company or
its subsidiaries is maintained with respect to each of the properties
owned by it in an amount and on such terms as is reasonable and
customary for businesses of this type.
(xxiii) The Company has continuously been organized and operated in
conformity with the requirements for qualification as a real estate
investment trust under the Internal Revenue Code of 1986, as amended
(the "Code") for all applicable tax years as to which the Company's tax
returns are subject to audit and the Company is subject to assessment
taxes reported thereon. The Company has filed an election to be taxed
as a real estate investment trust for all subsequent taxable years, and
no such election has been terminated. The Company's method of operation
will permit it to continue to meet the requirements for taxation as a
real estate investment trust under the Code. The Company intends to
continue to operate in a manner which would permit it to qualify as a
real estate investment trust under the Code.
(xxiv) Except as disclosed in the Prospectus, each entity
identified in the Prospectus as a tenant of any property, or a
subtenant thereof, has entered into a lease or a sublease, if
applicable, for the possession of such property; except as disclosed in
the Prospectus, each such lease is in full force and effect and neither
the Company nor any of its subsidiaries has notice of any defense to
the obligations of the tenant thereunder or any claim asserted or
threatened by any person or entity, which claim, if sustained, would
materially adversely affect the business, operations, affairs,
properties, profits or condition (financial or other) of the Company
and its subsidiaries taken as a whole; and except as disclosed in the
Prospectus, the lessor under each lease has complied with its
obligations under such lease in all material respects and neither the
Company nor any of its subsidiaries has notice of any default by the
tenant under such lease which, individually or in the aggregate with
other such defaults, would materially adversely affect the business,
operations, affairs,
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properties, profits or condition (financial or other) of the Company
and its subsidiaries taken as a whole.
(xxv) Any certificate signed by any officer of the Company and
delivered to you or to your counsel shall be deemed a representation
and warranty by the Company to you as to the matters covered thereby.
(xxvi) A registration statement relating to the Common Stock of
the Company has been declared effective by the Commission pursuant to
the Exchange Act and the Common Stock of the Company is duly registered
thereunder. The Shares have been listed on the New York Stock Exchange,
subject to notice of issuance or sale of the Shares, as the case may
be.
4. Additional Covenants. The Company covenants and agrees with you
that:
(a) The Company will (i) prepare a Prospectus Supplement
setting forth the number of Shares covered thereby and their terms not
otherwise specified in the Prospectus pursuant to which the Shares are
being issued, the name of the Underwriter and the number of Shares
which the Underwriter has agreed to purchase, the price at which the
Shares are to be purchased by the Underwriter from the Company and such
other information as the Underwriter and the Company deem appropriate
in connection with the offering of the Shares, and file the Prospectus
in a form approved by you pursuant to Rule 424(b) under the Act no
later than the Commission's close of business on the second business
day following the date of the determination of the offering price of
the Shares; (ii) not file any amendment to the Registration Statement
or supplement to the Prospectus of which you shall not previously have
been advised and furnished with a copy or to which you shall have
reasonably objected in writing or which is not in compliance with the
Rules and Regulations; and (iii) promptly notify you after it shall
have received notice thereof of the time when any amendment to the
Registration Statement becomes effective or when any supplement to the
Prospectus has been filed.
(b) The Company will advise you promptly, after it shall
receive notice or obtain knowledge thereof, of any request of the
Commission for amendment of the Registration Statement or for
supplement to the Prospectus or for any additional information, or of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the use of the
Prospectus or of the institution or threatening of any proceedings for
that purpose, and the Company will use its best efforts to prevent the
issuance of any such stop order preventing or suspending the use of the
Prospectus and to obtain as soon as possible the lifting thereof, if
issued.
(c) The Company will cooperate with you and your counsel in
endeavoring to qualify the Shares for sale under the securities laws of
such jurisdictions as they may have designated and will make such
applications, file such documents, and furnish such information as may
be necessary for that purpose, provided the Company shall
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not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction where it is
not now so qualified or required to file such a consent or to subject
itself to taxation as doing business in any jurisdiction where it is
not now so taxed. The Company will, from time to time, file such
statements, reports, and other documents, as are or may be required to
continue such qualifications in effect for so long a period as you may
reasonably request.
(d) The Company will deliver to you, without charge as many
copies of the Prospectus (including all documents incorporated by
reference therein), or as it thereafter may be amended or supplemented,
as you may from time to time reasonably request. The Company consents
to the use of such Prospectus by you, both in connection with the
offering or sale of the Shares and for such other purposes and for such
period of time thereafter as the Prospectus is required by law to be
delivered in connection with the offering or sale of the Shares. The
Company will deliver to you at or before the Closing Date two conformed
copies of the Registration Statement and all amendments thereto
including all exhibits filed therewith or incorporated by reference
therein and all documents incorporated by reference in the Prospectus
and will deliver to you such number of copies of the Registration
Statement, without exhibits, and of all amendments thereto, as you may
reasonably request.
(e) If, during the period in which a prospectus is required by
law to be delivered by an underwriter or dealer, any event shall occur
as a result of which, in the judgment of the Company or in your
judgment or in the opinion of your counsel, it becomes necessary to
amend or supplement the Prospectus in order to make the statements
therein, in light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, not misleading, or, if it is
necessary at any time to amend or supplement the Prospectus to comply
with any law, the Company promptly will prepare and file with the
Commission an appropriate amendment to the Registration Statement or
supplement to the Prospectus so that the Prospectus as so amended or
supplemented will not, in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with
law.
(f) To the extent required, the Company will make generally
available to its shareholders and will file as an exhibit in a report
pursuant to the Exchange Act, as soon as it is practicable to do so,
but in any event not later than 15 months after the effective date of
the Registration Statement, an earnings statement in reasonable detail,
covering a period of at least 12 consecutive months beginning after the
effective date of the Registration Statement, which earnings statement
shall satisfy the requirements of Section 11(a) of the Act and Rule 158
of the Rules and Regulations and will advise you in writing when such
statement has been so made available.
(g) The Company will, for a period of five years from the
Closing Date, deliver to you at your principal executive offices a
reasonable number of copies of annual reports, quarterly reports,
current reports and copies of all other documents, reports and
information furnished by the Company to its shareholders or filed with
any securities exchange pursuant to the requirements of such exchange
or with the
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Commission pursuant to the Act or the Exchange Act. The Company will
deliver to you similar reports with respect to any significant
subsidiaries, as that term is defined in the Rules and Regulations,
which are not consolidated in the Company financial statements. Any
report, document or other information required to be furnished under
this paragraph (g) shall be furnished as soon as practicable after such
report, document or information becomes available.
(h) The Company will apply the proceeds from the sale of the
Shares as set forth in the description under "Use of Proceeds" in the
Prospectus, which description complies in all material respects with
the requirements of Item 504 of Regulation S-K.
(i) The Company will supply you with copies of all
correspondence to and from, and all documents issued to and by, the
Commission in connection with the registration of the Shares under the
Act.
(j) Prior to the Closing Date, the Company will furnish to
you, as soon as they have been prepared, copies of any unaudited
interim consolidated financial statements of the Company and its
subsidiaries for any periods subsequent to the periods covered by the
financial statements appearing in the Registration Statement and the
Prospectus.
(k) Prior to the Closing Date, the Company will not issue any
press releases or other communications directly or indirectly and will
hold no press conference, with respect to the Company or any of its
subsidiaries, the financial condition, results of operations, business,
properties, assets or liabilities of the Company or any of its
subsidiaries, or the offering of the Shares, without your prior written
consent.
(1) The Company will use its best efforts to obtain approval
for, and maintain the listing of the Shares on, the New York Stock
Exchange.
(m) The Company and its subsidiaries will maintain and keep
accurate books and records reflecting their assets and maintain
internal accounting controls which provide reasonable assurance that
(1) transactions are executed in accordance with management's
authorization, (2) transactions are recorded as necessary to permit the
preparation of the Company's consolidated financial statements and to
maintain accountability for the assets of the Company and its
subsidiaries, (3) access to the assets of the Company and its
subsidiaries is permitted only in accordance with management's
authorization, and (4) the recorded accounts of the assets of the
Company and its subsidiaries are compared with existing assets at
reasonable intervals.
(n) During any period in which a prospectus is required by law
to be delivered by an Underwriter or dealer, the Company will promptly
file all documents required to be filed with the Commission pursuant to
Sections 13, 14 or 15(d) of the Exchange Act.
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(o) The Company intends to continue to elect to qualify as a
"real estate investment trust" under the Code, and intends to use its
best efforts to continue to meet the requirements to qualify as a "real
estate investment trust."
5. Conditions of Underwriter's Obligation. Your obligations, as
Underwriter to purchase and pay for the Shares, as provided herein, shall be
subject to the accuracy in all material respects, as of the dare hereof and as
of the Closing Date, of the representations and warranties of the Company
contained herein, to the performance in all material respects by the Company of
its covenants and obligations hereunder, and to the following additional
conditions:
(a) All filings required by Rule 424 of the Rules and
Regulations shall have been made. No stop order suspending the
effectiveness of the Registration Statement, as amended from time to
time, shall have been issued and no proceeding for that purpose shall
have been initiated or, to your knowledge or the knowledge of the
Company, threatened or contemplated by the Commission, and any request
of the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been
complied with to your reasonable satisfaction.
(b) You shall not have disclosed in writing to the Company on
or prior to the Closing Date, that the Registration Statement or
Prospectus or any amendment or supplement thereto contains an untrue
statement of fact which, in the opinion of your counsel, is material,
or omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading.
(c) On the Closing Date, you shall have received the opinion
of Xxxxxxx, Procter & Xxxx LLP, counsel for the Company, addressed to
you and dated the Closing Date, as to the matters set forth in Schedule
I attached hereto.
(d) You shall have received on the Closing Date, from Xxxxxxx
and Xxxxxx, your counsel, such opinion or opinions, dated the Closing
Date with respect to the incorporation of the Company, the validity of
the Shares, the Registration Statement, the Prospectus and other
related matters as you may reasonably require; the Company shall have
furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass on such matters. In giving such
opinion, such counsel may rely, as to all matters arising under or
governed by the laws of the State of Maryland, upon the opinion of
Xxxxxxx, Procter & Xxxx LLP delivered pursuant to 5(c).
(e) You shall have received at or prior to the Closing Date
from Xxxxxxx and Xxxxxx a memorandum or memoranda, in form and
substance satisfactory to you, with respect to the qualification for
offering and sale by you of the Shares under state securities or Blue
Sky laws of such jurisdictions as you may have designated to the
Company.
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(f) On the date of this Agreement and on the Closing Date, you
shall have received from KPMG Peat Marwick LLP, a letter or letters,
dated the date of this Agreement and the Closing Date, respectively, in
form and substance satisfactory to you, confirming that they are
independent public accountants with respect to the Company within the
meaning of the Act and the published Rules and Regulations, and stating
to the effect set forth in Schedule II hereto.
(g) Except as contemplated in the Prospectus, (i) neither the
Company nor any of its subsidiaries shall have sustained since the date
of the latest audited financial statements included or incorporated by
reference in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree; and (ii) 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 shall have
incurred any liability or obligation, direct or contingent, or entered
into transactions, and there shall not have been any change in the
capital stock or long-term debt of the Company and its subsidiaries or
any change in the condition (financial or other), net worth, business,
affairs, management or results of operations of the Company or its
subsidiaries, the effect of which, in any such case described in clause
(i) or (ii), is in your reasonable judgment so material or adverse as
to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered on the Closing
Date on the terms and in the manner contemplated in the Prospectus.
(h) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on
the New York Stock Exchange or the American Stock Exchange or the
establishing on such exchanges by the Commission or by such exchanges
of minimum or maximum prices which are not in force and effect on the
date hereof; (ii) a general moratorium on commercial banking activities
declared by either federal or state authorities; (iii) the outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this clause (iii) in your
reasonable judgment makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares in the manner
contemplated in the Prospectus; (iv) any calamity or crisis, change in
national, international or world affairs, act of God, change in the
international or domestic markets, or change in the existing financial,
political or economic conditions in the United States or elsewhere, if
the effect of any such event specified in this clause (iv) makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares in the manner contemplated in the Prospectus; or
(v) the enactment, publication, decree, or other promulgation of any
federal or state statute, regulation, rule, or order of any court or
other governmental authority, or the taking of any action by any
federal, state or local government or agency in respect of fiscal or
monetary affairs, if the effect of any such event specified in this
clause (v) in your reasonable judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares in the manner contemplated in the Prospectus.
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(i) You shall have received certificates, dated the Closing
Date and signed by the President and the Chief Financial Officer of the
Company stating that (i) they have carefully examined the Registration
Statement and the Prospectus as amended or supplemented and all
documents incorporated by reference therein and, that (ii) all
representations and warranties made herein by the Company are true and
correct in all material respects at the Closing Date, with the same
effect as if made on and as of the Closing Date, and all agreements
herein to be performed by the Company on or prior to the Closing Date
have been duly performed in all material respects, and (iii) no stop
order suspending the effectiveness of the Registration Statement has
been issued, and no proceeding for that purpose has been instituted or
is threatened, by the Commission; and (iv) since the effective date of
the Registration Statement, there has occurred no event required to be
set forth in an amendment or supplement to the Registration Statement
or Prospectus that has not been so set forth, and there has been no
document required to be filed under the Exchange Act and the Exchange
Act Rules and Regulations that upon such filing would be deemed to be
incorporated by reference in the Prospectus that has not been so filed.
(j) The Company shall not have failed, refused, or been
unable, at or prior to the Closing Date to have performed in all
material respects any agreement on their part to be performed or any of
the conditions herein contained and required to be performed or
satisfied by them at or prior to the Closing Date.
(k) The Company shall have furnished to you at the Closing Date
such other certificates as you may have reasonably requested as to the
accuracy, on and as of the Closing Date, of the representations and
warranties of the Company herein and as to the performance by the
Company of their obligations hereunder.
(l) The Shares shall have been approved for trading upon
official notice of issuance on the New York Stock Exchange.
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
to you and to Xxxxxxx and Xxxxxx, your counsel. The Company will furnish you
with such conformed copies of such opinions, certificates, letters and documents
as you may reasonably request.
If any of the conditions specified above in this Section 5 shall not
have been satisfied at or prior to the Closing Date or waived by you in writing,
this Agreement may be terminated by you on notice to the Company.
6. Indemnification. (a) The Company will indemnify and hold you
harmless and each person, if any, who controls you within the meaning of the
Act, against any losses, claims, damages or liabilities, joint or several, to
which you 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 an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto,
or in any
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blue sky application or other document executed by the Company or based on any
information furnished in writing by the Company, filed in any jurisdiction in
order to qualify any or all of the Shares under the securities laws thereof
("Blue Sky Application"), or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; and will reimburse you and each such
controlling person for any legal or other expenses reasonably incurred by you or
such controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, such Preliminary Prospectus or the Prospectus, or such
amendment or supplement, or any Blue Sky Application in reliance upon and in
conformity with written information furnished to the Company by you,
specifically for use in the preparation thereof; and provided, further, that if
any Preliminary Prospectus or the Prospectus contained any alleged untrue
statement or allegedly omitted to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading and
such statement or omission shall have been corrected in a revised Preliminary
Prospectus or in the Prospectus or in an amended or supplemented Prospectus, the
Company shall not be liable to you or controlling persons under this subsection
(a) with respect to such alleged untrue statement or alleged omission to the
extent that any such loss, claim, damage or liability of such person results
from the fact that you sold Shares to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, such revised
Preliminary Prospectus or Prospectus or amended or supplemented Prospectus. In
addition to its other obligations under this Section 6(a), the Company agrees
that, as an interim measure during the pendency of any claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
statement or omission, or any alleged statement or omission, described in this
Section 6(a), it will reimburse you for all reasonable legal and other expenses
incurred in connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the Company's
obligation to reimburse you for such expenses and the possibility that such
payments might later be held to have been improper by a court of competent
jurisdiction. This indemnity agreement shall be in addition to any liabilities
which the Company may otherwise have.
(b) You will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the Registration Statement and
each person, if any, who controls the Company within the meaning of the Act,
against any losses, claims, damages or liabilities, joint or several, to which
the Company or any such director, officer or controlling person may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, any Preliminary Prospectus, the Prospectus, any
amendment or supplement thereto, or any Blue Sky Application or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they
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were made, 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 the Registration Statement, such Preliminary Prospectus or
the Prospectus, such amendment or supplement, or any Blue Sky Application in
reliance upon and in conformity with written information furnished to the
Company by you specifically for use in the preparation thereof; and will
reimburse any legal or other expenses reasonably incurred by the Company or any
such director, officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action. In addition to your
other obligations under this Section 6(b), you agree that, as an interim measure
during the pendency of any claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission, described in this Section 6(b), you will
reimburse the Company on a monthly basis for all reasonable legal and other
expenses incurred in connection with investigating or defending any such claim,
action, investigation, inquiry or other proceeding, notwithstanding the absence
of a judicial determination as to the propriety and enforceability of your
obligation to reimburse the Company for such expenses and the possibility that
such payments might later be held to have been improper by a court of competent
jurisdiction. This indemnity agreement shall be in addition to any liabilities
which you may otherwise have.
(c) Any party which proposes to assert the right to be indemnified
under this Section 6 shall, within ten days after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim is to be made against an indemnifying party under this Section 6,
notify each such indemnifying party of the commencement of such action, suit or
proceeding, enclosing a copy of all papers served, but the omission so to notify
such indemnifying party of any such action, suit or proceeding shall not relieve
such indemnifying party from any liability which it may have to any indemnified
party otherwise than under this Section 6. In case any such action, suit or
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate in, and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such indemnified
party in connection with the defense thereof. The indemnified party shall have
the right to employ its own counsel in any such action, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment of counsel by such indemnified party at the expense of
the indemnifying party has been authorized by the indemnifying party, (ii) the
indemnified party shall have been advised by such counsel in a written opinion
that there may be a conflict of interest between the indemnifying party and the
indemnified party in the conduct of the defense, or certain aspects of the
defense, of such action (in which case the indemnifying party shall not have the
right to direct the defense of such action with respect to those matters or
aspects of the defense on which a conflict exists or may exist on behalf of the
indemnified party) or (iii) the indemnifying party shall not in fact have
employed counsel to assume the defense of such action, in any of which events
such fees and expenses
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to the extent applicable shall be borne by the indemnifying party. An
indemnifying party shall not be liable for any settlement of any action or claim
effected without its consent. Each indemnified party, as a condition of such
indemnity, shall cooperate in good faith with the indemnifying party in the
defense of any such action or claim.
(d) If the indemnification provided for in this Section 6 is for any
reason, other than pursuant to the terms thereof, judicially determined (by the
entry of a final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right to appeal) to be
unavailable to an indemnified party under subsections (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company and you from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault, as applicable, of the Company and you in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as other relevant
equitable considerations. The relative benefits received by, as applicable, the
Company and you shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by you, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the 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 you and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and you agree that
it would not be just and equitable if contributions pursuant to this subsection
(d) were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), you shall not be required
to contribute any amount in excess of the underwriting discounts and commissions
applicable to the Shares purchased by you. 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.
7. Representations and Agreements to Survive Delivery. All
representations, warranties, and agreements of the Company contained herein or
in certificates delivered pursuant hereto, and your agreements contained in
Section 6 hereof, shall remain operative and in full force and effect regardless
of any termination or cancellation of this Agreement
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or any investigation made by or on behalf of you or any controlling person, the
Company or any of its officers, directors or any controlling persons, and shall
survive delivery of the Shares to you hereunder.
8. Effective Date and Termination. (a) This Agreement shall become
effective upon execution.
(b) This Agreement may be terminated by you at any time at or prior to
the Closing Date by notice to the Company if any condition specified in Section
5 hereof shall not have been satisfied on or prior to the Closing Date. Any such
termination shall be without liability of any party to any other party except as
provided in Sections 6 and 9 hereof.
If you terminate this Agreement as provided in Sections 8(b), you shall
notify the Company by telephone or telegram, confirmed by letter.
9. Cost and Expenses. The Company will bear and pay the costs and
expenses incident to the registration of the Shares and public offering thereof,
including, without limitation, (a) the fees and expenses of the Company's
accountants and the fees and expenses of counsel for the Company, (b) the
preparation, printing, filing, delivery and shipping of the Registration
Statement, each Preliminary Prospectus, the Prospectus, and any amendments or
supplements thereto (c) the furnishing of copies of such documents to you, (d)
the registration or qualification of the Shares for offering and sale under the
securities laws of the various states, including the reasonable fees and
disbursements of your counsel relating to such registration or qualification,
(e) the fees payable to the NASD (if any) and the Commission in connection with
their review of the proposed offering of the Shares, (f) all printing and
engraving costs related to preparation of the certificates for the Shares,
including transfer agent and registrar fees, (g) all initial transfer taxes, if
any, (h) all fees and expenses relating to the authorization of the Shares for
trading on the New York Stock Exchange, (i) all travel expenses, including air
fare and accommodation expenses, of representatives of the Company in connection
with the offering of the Shares and (j) all of the other costs and expenses
incident to the performance by the Company of the registration and offering of
the Shares; provided, however, that you will bear and pay the fees and expenses
of your counsel (other than fees and disbursements relating to the registration
or qualification of the Shares for offering and sale under the securities laws
of the various states), your out-of-pocket expenses, and any advertising costs
and expenses incurred by you incident to the public offering of the Shares.
If this Agreement is terminated by you in accordance with the
provisions of Section 8(c), the Company shall reimburse you for all of your
reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of your counsel, incurred by you in connection with the Agreement.
10. Notices. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to you shall be
mailed, delivered, sent by facsimile transmission, or telegraphed and confirmed
c/o X.X. Xxxxxxx & Sons, Inc. at
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Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Syndicate,
facsimile number (000) 000-0000, or if sent to the Company shall be mailed,
delivered, sent by facsimile transmission, or telegraphed and confirmed to the
Company at Xxxxxxx Real Estate, Inc., 00 Xxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. D'Arcy, Chief Executive Officer
or Xxxxxx X. Xxxxx, Xx., Chief Financial Officer, telephone number: (847)
000-0000, facsimile number: (000) 000-0000 (with copy to Xxxxxxx X. Xxxx, P.C.,
c/o Goodwin, Procter & Xxxx XXX, Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
telephone number: (000) 000-0000, facsimile number: (000) 000-0000).
11. Parties. This Agreement shall inure to the benefit of and be
binding upon you and the Company and their respective successors and assigns.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, corporation or other entity, other than the
parties hereto and their respective successors and assigns and the controlling
persons, officers and directors referred to in Section 6, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained; this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of the parties
hereto and their respective successors and assigns and said controlling persons
and said officers and directors, and for the benefit of no other person,
corporation or other entity. No purchaser of any of the Shares from you shall be
construed a successor or assign by reason merely of such purchase.
12. Counterparts. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
13. Pronouns. Whenever a pronoun of any gender or number is used
herein, it shall, where appropriate, be deemed to include any other gender and
number.
14. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Missouri.
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If the foregoing is in accordance with your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement between the Company and you.
XXXXXXX REAL ESTATE, INC.
By: /s/ XXXXXX X. XXXXX, XX.
------------------------
Title: Treasurer
Accepted in St. Louis,
Missouri as of the date
first above written.
X.X. Xxxxxxx & Sons, Inc.
By: Xxxxxxx X. Xxxxx
--------------------
Title: Managing Director
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SCHEDULE I
(1) The Company and each of its subsidiaries has been duly
incorporated or formed, as the case may be, and is validly existing as a
corporation or general or limited partnership, as the case may be, and in good
standing under the laws of its jurisdiction of incorporation or formation, as
the case may be, has full power and authority to conduct its business as
described in the Registration Statement and Prospectus, and is duly qualified to
do business in each jurisdiction in which it owns or leases real property or in
which the conduct of its business requires such qualification except where the
failure to be so qualified, considering all such cases in the aggregate, does
not involve a material risk to the business, properties, financial position or
results of operations of the Company and its subsidiaries taken as a whole;
(2) The outstanding shares of capital stock of the Company and the
Shares have been duly authorized and are, or when issued as contemplated hereby
will be, fully paid and nonassessable by the Company and conform, or when so
issued will conform, to the description thereof in the Prospectus, and the
stockholders of the Company have no preemptive rights with respect to the
Shares. All of the partnership interests of the Partnership that are owned by
the Company are owned by the Company free and clear of all liens, charges and
encumbrances;
(3) The Registration Statement has become effective under the Act, the
Prospectus Supplement has been filed as required by Section 4(a) of the
Underwriting Agreement and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that purpose
shall have been instituted or, to our knowledge or the knowledge of the Company,
threatened by the Commission;
(4) Each part of the Registration Statement, when such part became
effective, and the Prospectus and any amendment or supplement thereto, on the
date of filing thereof with the Commission and at the date hereof, complied as
to form in all material respects with the requirements of the Act and the Rules
and Regulations; and the documents incorporated by reference in the Registration
Statement or Prospectus or any amendment or supplement thereto, when they became
effective under the Act or were filed with the Commission under the Exchange
Act, as the case may be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and the Act or
Exchange Act Rules and Regulations, as applicable; it being understood that we
express no opinion as to the financial statements or other financial data
included in any other documents mentioned in this clause;
(5) The descriptions in the Registration Statement and Prospectus of
statutes, legal and governmental proceedings, contracts and other documents are
accurate and fairly present the information required to be shown; and we have no
knowledge of
23
any statutes or legal or governmental proceedings required to be described in
the Prospectus that are not described as required, or of any contracts or
documents of a character required to be described in the Registration Statement
or Prospectus (or required to be filed under the Exchange Act if upon such
filing they would be incorporated by reference therein) or to be filed as
exhibits to the Registration Statement that are not described and filed as
required;
(6) The Company has the corporate power and authority to enter into
the Underwriting Agreement, and the Underwriting Agreement has been duly
authorized, executed and delivered by the Company; the performance of the
Underwriting Agreement and the consummation of the transactions therein
contemplated will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any agreement or
instrument known to us to which the Company is a party or by which it is bound
or to which any of the property of the Company is subject, the Company's Charter
or By-Laws, or any order, rule or regulation known to us of any court or
governmental agency or body having jurisdiction over the Company or any of its
properties; and no consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required for the consummation of the
transactions contemplated by the Underwriting Agreement in connection with the
issuance or sale of the Shares by the Company, except such as have been obtained
under the Act and such as may be required under state securities laws in
connection with the purchase and distribution of the Shares by you;
(7) For all applicable tax years as to which the Company's tax returns
are subject to audit and the Company is subject to assessment for taxes
reportable therein, the Company has continuously been organized and operated in
conformity with the requirements for qualification as a "real estate investment
trust" under the Code. The Company's method of operation will permit it to
continue to meet the requirements for taxation as a "real estate investment
trust" under the Code. The federal income tax treatment described in the
Prospectus under the caption "Federal Income Tax Considerations" is accurate;
(8) Neither the Company nor any subsidiary is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended; and
(9) The Company is eligible to use a Form S-3 Registration Statement
under the Act Rules.
From time to time through the date of the Prospectus, such counsel
participated in conferences with representatives of the Company and its
accountants, in some of which the Underwriter and their counsel participated and
in which the affairs of the Company and the contents of the Registration
Statement and Prospectus were discussed. However, there is no assurance that all
possible material facts as to the Company were disclosed to us at these
conferences. Based upon such counsel's examination of the Registration Statement
and Prospectus and such documents and our participation in the foregoing
conferences, no facts
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have come to their attention which would lead such counsel to believe that
either the Registration Statement at the time it became effective, or the
Prospectus as of the date of filing thereof with the Commission and as of the
date hereof, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading (it being understood that we express no comment with respect to
the financial statements and other financial and statistical data included in
the Registration Statement or in the Prospectus).
In rendering such opinion, such counsel shall state that Xxxxxxx and
Xxxxxx, in rendering its opinion pursuant to the Underwriting Agreement, may
rely upon such opinion as to all matters arising under or governed by the laws
of the State of Maryland.
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25
SCHEDULE II
Pursuant to Section 5(f) of the Underwriting Agreement, KPMG Peat
Marwick LLP shall furnish letters to you to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable Rules and Regulations thereunder.
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, prospective financial statements and/or pro forma financial
information examined) by them and included or incorporated by reference
in the Prospectus or the Registration Statement comply as to form in
all material respects with the applicable accounting requirements of
the Act and the applicable Rules and Regulations with respect to
registration statements on Form S-3; and, if applicable, they have made
a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited consolidated
interim financial statements, selected financial data, pro forma
financial information, prospective financial statements and/or
condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been furnished
to you.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, performing the procedures specified by
the AICPA for a review of interim financial information as discussed in
SAS No. 71, Interim Financial Information, on the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) any material modifications should be made to the
unaudited statements of consolidated income, statements of
consolidated financial position and statements of consolidated
cash flows included in the Prospectus for them to be in conformity
with generally accepted accounting principles, or the unaudited
statements of consolidated income, statements of consolidated
financial position and statements of consolidated cash flows
included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of
the Act and the related published Rules and Regulations
thereunder.
26
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
in the Prospectus.
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived any
unaudited condensed financial statements referred to in Clause (A)
and any unaudited income statement data and balance sheet items
included in the Prospectus and referred to in Clause (B) were not
determined on a basis substantially consistent with the basis for
the audited consolidated financial statements included in the
Prospectus.
(D) any unaudited pro forma consolidated condensed
financial statements included in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements.
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated working capital, net current assets or
net assets, or any changes in any other items specified by you, in
each case as compared with amounts shown in the latest balance
sheet included in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter.
(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date
referred to in Clause (E) there were any decreases in consolidated
net revenues or operating profit or the total or per share amounts
of consolidated net income or any changes in any other items
specified by you, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by you, except in each case for
changes, decreases or increases which the Prospectus discloses
have occurred or may occur or which are described in such letter.
(iv) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraph (iii) above, they have carried out certain
specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by you, which are
derived
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from the general accounting records of the Company and its subsidiaries
for the periods covered by their reports and any interim or other
periods since the latest period covered by their reports, which appear
in the Prospectus, or in Part II of, or in exhibits and schedules to,
the Registration Statement specified by you, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
