Exhibit 1.1
XXXX-XXXX REALTY, L.P.
UNDERWRITING AGREEMENT
----------------------
March 11, 1999
To the Representatives named in Schedule 1 hereto of the several Underwriters
named in Schedule 2 hereto
Ladies and Gentlemen:
Each of Xxxx-Xxxx Realty, L.P., a Delaware limited partnership (the
"Operating Partnership") and Xxxx-Xxxx Realty Corporation, a Maryland
corporation qualified as a real estate investment trust and the general partner
of the Operating Partnership (the "Company") hereby confirms its agreement with
the several underwriters named in Schedule 2 hereto (the "Underwriters"), for
whom you have been duly authorized to act as representatives (in such
capacities, the "Representatives"), as set forth below. If you are the only
Underwriters, all references herein to the Representatives shall be deemed to be
to the Underwriters.
1. SECURITIES. Subject to the terms and conditions herein contained,
the Operating Partnership proposes to issue and sell to the several Underwriters
certain securities of the Operating Partnership identified in Schedule 1 hereto
(the "Securities").
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Each of the
Company and the Operating Partnership represents and warrants to, and agrees
with, each of the several Underwriters that:
(a) Each of the Operating Partnership and the Company meets
the requirements for use of Form S-3 under the Securities Act of 1933, as
amended (the "Act"). A registration statement (the file number of which is set
forth in Schedule 1 hereto) on such Form with respect to the Securities,
including a base prospectus, has been filed by the Operating Partnership and the
Company with the Securities and Exchange Commission (the "Commission") under the
Act, and one or more amendments to such registration statement may also have
been so filed. Such registration statement, as so amended, has been declared by
the Commission to be effective under the Act and no stop orders suspending the
effectiveness of such registration statement has been issued under the Act and
no proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Operating Partnership or the Company, are contemplated by the
Commission,
and any request on the part of the Commission for additional information has
been complied with. Such registration statement, as amended at the date of this
Agreement as specified in Schedule 1 hereto, meets the requirements set forth in
Rule 415(a)(1)(x) under the Act and complies in all other material respects with
said Rule. The Operating Partnership will next file with the Commission either
(A) if the Operating Partnership 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 and, if
required to be filed pursuant to Rules 434(c)(2) and 424(b), an Integrated
Prospectus (as hereinafter defined), in either case, containing such information
as is required or permitted by Rules 434, 430A, and 424(b) under the Act or (B)
if the Operating Partnership does not rely on Rule 434 under the Act, pursuant
to Rule 424(b) under the Act a final prospectus supplement to the base
prospectus included in such registration statement, as so amended, describing
the Securities and the offering thereof, in such form as has been provided to,
or discussed with, and approved by the Representatives as provided in section
4(a) of this Agreement. As used in this Agreement, the term "Registration
Statement" means such registration statement, as amended at the time when it was
declared effective, including (i) all financial schedules and exhibits thereto,
(ii) all documents incorporated by reference or deemed to be incorporated by
reference therein and (iii) any information omitted therefrom pursuant to Rule
430A under the Act and included in the Prospectus (as hereinafter defined) or,
if required to be filed pursuant to Rules 434(c)(2) and 424(b), in the
Integrated Prospectus; the term "Base Prospectus" means the prospectus included
in the Registration Statement; the term "Preliminary Prospectus" means any
preliminary form of the Prospectus (as defined herein) specifically relating to
the Securities, in the form first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 of the Rules and Regulations; the term
"Prospectus Supplement" means any prospectus supplement specifically relating to
the Securities, in the form first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act; the term "Prospectus"
means: (A) if the Operating Partnership 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 Operating Partnership does
not rely on Rule 434 under the Act, the Preliminary Prospectus; or (C) if the
Operating Partnership does not rely on Rule 434 under the Act and if no
prospectus is required to be filed pursuant to Rule 424 under the Act, the Base
Prospectus, including, in each case, the Prospectus Supplement; "Base
Prospectus," "Prospectus," "Preliminary Prospectus" and "Prospectus Supplement"
shall include in each case the documents, if any, filed by the Operating
Partnership with the Commission pursuant to the United States Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by
reference therein; the term "Integrated Prospectus" means a prospectus first
filed with the Commission pursuant to Rules 434(c)(2) and 424(b) under the Act;
and the term "Term Sheet" means any abbreviated term sheet that satisfies the
requirements of Rule 434 under the Act. Any reference in this Agreement to an
"amendment" or "supplement" to any Preliminary Prospectus, the Prospectus, or
any Integrated Prospectus or an "amendment" to any registration statement
(including the
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Registration Statement) shall be deemed to include any document incorporated by
reference therein that is filed with the Commission under the Exchange Act after
the date of such Preliminary Prospectus, Prospectus, Integrated Prospectus or
registration statement, as the case may be. For purposes of the preceding
sentence, any reference to the "effective date" of an amendment to a
registration statement shall, if such amendment is effected by means of the
filing with the Commission under the Exchange Act of a document incorporated by
reference in such registration statement, be deemed to refer to the date on
which such document was so filed with the Commission; 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 the 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, the Exchange Act and the respective
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, the
Exchange Act and the respective 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 Integrated Prospectus or any amendment or supplement to
the Prospectus is filed with the Commission pursuant to Rule 424(b), on the date
when the Prospectus is otherwise amended or supplemented and on the Closing Date
(as hereinafter defined), each of the Prospectus and, if required to be filed
pursuant to Rules 434(c)(2) and 424(b) under the Act, the Integrated 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
Exchange Act and the respective rules and regulations of the Commission
thereunder and (ii) did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The foregoing provisions of this paragraph (b) do not
apply to (x) statements or omissions made in any Preliminary Prospectus or any
amendment or supplement thereto, the Registration Statement or any amendment
thereto, the Prospectus or, if required to be filed pursuant to Rules 434(c)(2)
and 424(b) under the Act, the Integrated Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company or the Operating Partnership by any Underwriter through
the Representatives specifically for use therein and (y) that part of the
Registration
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Statement which constitutes the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Trust Indenture
Act") of the Trustee (as defined in Schedule 1 hereto).
(c) 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 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 Operating Partnership and its
subsidiaries, taken as a whole.
(d) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Maryland and is duly qualified to transact business 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.
(e) Each of the subsidiaries of the Operating Partnership (the
"Subsidiaries") has been duly organized and is validly existing as a general or
limited partnership or corporation in good standing under the laws of the
jurisdiction of its organization, and is duly qualified to transact business 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 Operating Partnership and its
subsidiaries, taken as a whole. The issued shares of capital stock of each of
the Subsidiaries that is a corporation are duly authorized, validly issued,
fully paid and nonassessable, and all of the partnership interests in each
Subsidiary that is a partnership are validly issued and fully paid. Except as
described in the Prospectus and any Integrated Prospectus (or, if the Prospectus
and any required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus), all of such shares and interests in the Subsidiaries
owned by the Operating Partnership are owned beneficially by the Operating
Partnership or another Subsidiary free and clear of any security interests,
mortgages, pledges, grants, liens, encumbrances, equities or claims.
(f) There are no outstanding (A) securities or obligations of
the Operating Partnership or any of the Subsidiaries convertible into or
exchangeable for any capital stock of the Operating Partnership or any
Subsidiary, (B) warrants, rights or options to subscribe for or purchase from
the Company, the Operating Partnership or any Subsidiary any such capital stock
or any such convertible or exchangeable securities or obligations, or (C)
obligations of the Company, the Operating Partnership or any such Subsidiary to
issue any shares of capital stock, any such
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convertible or exchangeable securities or obligations, or any such warrants,
rights or options, except as described in the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus).
(g) The Operating Partnership, the Company and each of the
Subsidiaries has full power, corporate or other, to own or lease their
respective properties and conduct their respective businesses as described in
the Registration Statement, the Prospectus and any Integrated Prospectus (or, if
the Prospectus and any required Integrated Prospectus are not in existence, the
most recent Preliminary Prospectus); and the Operating Partnership and the
Company have full power, corporate or other, to enter into this Agreement and
any other agreement pursuant to which the Securities are issued as specified in
Schedule 1 to this Agreement (the "Securities Documents") and to carry out all
the terms and provisions hereof and thereof to be carried out by them.
(h) The Operating Partnership has an authorized, issued and
outstanding capitalization as set forth in the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus). All of the partnership
interests of the Operating Partnership have been duly authorized and the
partnership interests of the Operating Partnership outstanding are validly
issued and fully paid.
(i) The Securities have been duly authorized, and, when such
securities are issued, authenticated and delivered pursuant to the terms of this
Agreement and the applicable Securities Documents such securities will have been
duly and validly executed, authenticated, issued and delivered and will be the
legal, valid, binding and enforceable obligations of the Operating Partnership,
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.
(j) The securities of the Operating Partnership issuable in
exchange for or upon conversion of the Securities, if any, as specified in
Schedule 1 to this Agreement (the "Underlying Securities") have been duly
authorized and reserved, and, when such securities are issued and delivered as
contemplated by the terms of the applicable Securities Document, such securities
will be validly issued, fully paid and non-assessable.
(k) The execution and delivery of the Securities Documents has
been duly authorized by all necessary action of the Operating Partnership, and,
at the Closing Date, such agreements will have been duly executed and delivered
by the Operating Partnership, and assuming due authorization, execution and
delivery of the Securities Documents by parties other than the Operating
Partnership as specified in the applicable Securities Documents, such agreements
will constitute valid and binding instruments of the Operating Partnership
enforceable against the
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Operating Partnership in accordance with their respective 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 Securities Documents have been duly qualified under the Trust
Indenture Act.
(l) No holders of outstanding shares of capital stock of the
Operating Partnership or the Company are entitled as such to any preemptive or
other rights to subscribe for any of the Securities or Underlying Securities,
and no holder of securities of the Operating Partnership, the Company or any
Subsidiary has any right which has not been waived to require the Operating
Partnership to register the offer or sale of any securities owned by such holder
under the Act in the public offering contemplated by this Agreement.
(m) The Securities, Underlying Securities and the Securities
Documents conform to their description contained in the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus).
(n) The combined financial statements, schedules and selected
financial data of the Operating Partnership and the Property Partnerships (as
defined in the Registration Statement) and the consolidated financial
statements, schedules and selected financial data of the Operating Partnership
and the Company and their consolidated subsidiaries included in or incorporated
by reference in the Registration Statement, the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus) fairly present the
combined financial position of the Operating Partnership and the Property
Partnerships and fairly present the consolidated financial position of the
Operating Partnership and the Company and their consolidated subsidiaries, as
the case may be, and the results of operations and changes in financial
condition as of the dates and periods therein specified. Such combined and
consolidated financial statements and schedules have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved (except as otherwise noted therein).
(o) The selected financial data set forth under the caption
"Selected Financial Data" in the Prospectus and any Integrated Prospectus (or,
if the Prospectus and any required Integrated Prospectus are not in existence,
the most recent Preliminary Prospectus) fairly present, on the basis stated in
the Prospectus and any Integrated Prospectus (or such Preliminary Prospectus),
the information included therein. The pro forma financial statements and other
pro forma financial information included in or incorporated therein in the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus) comply in all material respects with the applicable requirements
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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
statements and the assumptions used in the preparation thereof are, in the
opinion of the Operating Partnership and the Company, reasonable.
(p) PricewaterhouseCoopers LLP, which has certified certain
financial statements of the Operating Partnership and of the Company and
delivered its reports with respect to the audited consolidated and combined
financial statements and schedules, and any other accounting firm that has
certified financial statements and delivered its reports with respect thereto,
included or incorporated by reference in the Registration Statement, the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus), are independent public accountants as required by the Act, the
Exchange Act and the respective rules and regulations thereunder.
(q) The execution and delivery of this Agreement has been duly
authorized by the Operating Partnership and the Company and this Agreement has
been duly executed and delivered by the Operating Partnership and the Company.
(r) No legal or governmental proceedings are pending to which
the Company, the Operating Partnership or any of their respective subsidiaries
or to which the property of the Company, the Operating Partnership or any of
their respective subsidiaries is subject, that are required to be described in
the Registration Statement, the Prospectus or any Integrated Prospectus (or, if
the Prospectus and any required Integrated Prospectus are not in existence, the
most recent Preliminary Prospectus) and are not described therein, and no such
proceedings have been threatened against the Company, the Operating Partnership
or any of their respective subsidiaries; and no contract or other document is
required to be described in the Registration Statement, the Prospectus or any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus) or to
be filed as an exhibit to the Registration Statement that is not described
therein or filed as required.
(s) The issuance, offering and sale of the Securities to the
Underwriters by the Operating Partnership pursuant to this Agreement and the
Securities Documents, the compliance by the Operating Partnership with the other
provisions of this Agreement, the Securities and the Securities Documents and
the consummation of the other transactions herein and therein contemplated do
not (i) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have been
obtained, such as may be required under state securities or blue sky laws and,
if the registration statement filed with respect to the Securities (as amended)
is not effective under the Act as of the time of execution hereof, such as may
be required (and shall be obtained as provided in this Agreement) under the Act,
or (ii) conflict with
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or result in a breach or violation of any 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 of the properties or assets of the Operating
Partnership, the Company or any of their respective subsidiaries pursuant to any
indenture, mortgage, deed of trust, lease or other agreement or instrument to
which the Operating Partnership, the Company or any of their respective
subsidiaries is a party or by which the Operating Partnership, the Company or
any of their respective subsidiaries or any other of their respective properties
are bound, or the Agreement of Limited Partnership, Articles of Incorporation,
By-laws or other organizational documents, as the case may be, of the Operating
Partnership, the Company or any of their respective 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 Operating Partnership
or any of the Subsidiaries or any of their properties.
(t) Each of the Operating Partnership and 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 Operating
Partnership 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 Operating Partnership.
(u) Subsequent to the respective dates as of which information
is given in the Registration Statement, the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus), (1) neither the Operating
Partnership nor any of the Subsidiaries has incurred any material liability or
obligation, direct or contingent, or entered into any material transaction,
which is not in the ordinary course of business; (2) the Operating Partnership
has not purchased any of its outstanding preferred units, common units or
warrants, nor declared, paid or otherwise made any dividend or distribution of
any kind on its partners' capital; and (3) there has not been any material
change in the partners' capital, short-term debt or long-term debt of the
Operating Partnership or the Subsidiaries, except in each case as described in
or contemplated by the Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus).
(v) The Operating Partnership or the Subsidiaries have good
and indefeasible title in fee simple to all of the properties described under
the section entitled "Property Information -- Properties" of the Prospectus (the
"Properties") and marketable title to all other property owned by each of them,
in each case free and clear of any security interest, lien, mortgage, pledge,
encumbrance, equity, claim and other defect, except liens which do not
materially and adversely affect the value of such property and will not
interfere with the use made or proposed to
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be made of such property by the Operating Partnership or such Subsidiary, and
any and all real property and buildings held under lease by the Operating
Partnership 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 Operating Partnership or such Subsidiary, in each case except
as described in the Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus).
(w) No labor dispute with the employees of the Company or any
of its subsidiaries exists or is threatened or imminent that could result in a
material adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole, except as described in the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus).
(x) The Operating Partnership, the Company and their
subsidiaries own or possess, or can acquire on reasonable terms, all material
patents, trademarks, service marks, trade names, licenses, copyrights and
proprietary and other confidential information currently employed by them in
connection with their respective businesses, and none of the Operating
Partnership, the Company nor any of their subsidiaries has received any notice
of infringement of or conflict with asserted rights of any third party with
respect to 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 Operating Partnership and the Subsidiaries,
taken as a whole, except as described in the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus).
(y) The Operating Partnership and each of the Subsidiaries is
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 will be engaged; neither the Operating Partnership nor any of the
Subsidiaries has been refused any insurance coverage sought or applied for; and
neither the Operating Partnership nor any of the Subsidiaries has any reason to
believe that any of them will not be able to renew its existing 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 have material adverse effect on the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Operating Partnership and the Subsidiaries, taken as a whole, except as
described in the Prospectus and any Integrated Prospectus (or, if the Prospectus
and any required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
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(z) None of the Subsidiaries is currently prohibited, directly
or indirectly, from paying any dividends to the Operating Partnership, from
making any other distribution on such subsidiary's capital stock or other equity
interest, from repaying to the Operating Partnership any loans or advances to
such Subsidiary from the Operating Partnership or from transferring any of such
Subsidiary's property or assets to the Operating Partnership or any of the other
Subsidiaries, except as described in the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus).
(aa) The Operating Partnership and each of the Subsidiaries
has complied with all laws, regulations and orders applicable to it or its
respective business and properties except where the failure to so comply would
not result in a material adverse change in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Operating Partnership and the Subsidiaries, taken as a whole; the Operating
Partnership and the Subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state, municipal or foreign
regulatory authorities necessary to conduct their respective businesses except
where the failure to possess the same would not result in a material adverse
change in the condition (financial or otherwise), business prospects, net worth
or results of operations of the Operating Partnership and the Subsidiaries,
taken as a whole; and neither the Operating Partnership nor any of the
Subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of 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
Operating Partnership and the Subsidiaries, taken as a whole, except as
described in the Prospectus and any Integrated Prospectus (or, if the Prospectus
and any required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(bb) The Operating Partnership will conduct its operations in
a manner that will not subject it to registration as an investment Operating
Partnership under the Investment Company Act of 1940, as amended, and the
transactions contemplated by this Agreement will not cause the Operating
Partnership to become an investment company subject to registration under such
Act.
(ab) The Operating Partnership, the Company and each of their
subsidiaries has filed all foreign, federal, state and local tax returns that
are required to be filed or have requested extensions thereof (except in any
case in which the failure so to file would not have a material adverse effect on
the condition (financial or otherwise), business prospects, net worth or results
of operations of the Operating Partnership and the 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
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currently being contested in good faith or as described in the Prospectus and
any Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus).
(ac) The Company is organized 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 the
present and contemplated 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.
(ad) None of the Operating Partnership, the Company nor any of
their subsidiaries is in violation of any federal or state law or regulation
relating to occupational safety and health and the Operating Partnership, the
Company and their 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, and the Operating Partnership, the Company and each of
their subsidiaries 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 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 Operating Partnership and the Subsidiaries, taken
as a whole, except as described in the Prospectus and any Integrated Prospectus
(or, if the Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus).
(ae) Except for the shares of capital stock of each of the
Subsidiaries owned by the Operating Partnership or another Subsidiary, neither
the Operating Partnership nor any of the Subsidiaries 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 and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus).
(af) The Operating Partnership and the 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.
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(ag) Neither the Operating Partnership nor any of the
Subsidiaries is in violation of any term or provision of its Certificate of
Formation, Articles of Incorporation, By-laws, partnership agreements or other
organizational documents, as the case may be; no default exists, and no event
has occurred which, with notice or lapse of time or both, would constitute a
default, and the consummation of the transactions by this Agreement and under
the Securities Documents will not result in any default in the due performance
and observance of any term, covenant or condition of any indenture, mortgage,
deed of trust, lease or other agreement or instrument to which the Operating
Partnership or any Subsidiary is a party or by which the Operating Partnership,
the Subsidiaries or the Properties or any of their respective other properties
is bound or may be affected except such as would not result in any material
adverse effect in the condition (financial or otherwise), business prospects,
net worth or results of operations of the Operating Partnership and the
Subsidiaries, taken as a whole.
(ah) If required as set forth in Schedule 1 hereto, the
Securities and any Underlying Securities have been approved for listing on the
New York Stock Exchange, subject to official notice of issuance.
(ai) (A) None of the Operating Partnership, the Company nor
any Subsidiary knows of any violation of any municipal, state or federal law,
rule or regulation (including those pertaining to environmental matters)
concerning the Properties or any part thereof which would have a material
adverse effect in the condition (financial or otherwise), business prospects,
net worth or results of operations of the Operating Partnership and the
Subsidiaries, taken as a whole; (B) each of the Properties complies with all
applicable zoning laws, ordinances, regulations and deed restrictions or other
covenants in all material respects and, if and to the extent there is a failure
to comply, such failure does not materially impair the value of any of the
Properties and will not result in a forfeiture or reversion of title; (C) none
of the Operating Partnership, the Company nor any Subsidiary has received from
any governmental authority any written notice of any condemnation of or zoning
change affecting the Properties or any part thereof, and none of the Operating
Partnership, the Company nor any Subsidiary knows of any such condemnation or
zoning change which is threatened and which if consummated would have a material
adverse effect in the condition (financial or otherwise), business prospects,
net worth or results of operations of the Operating Partnership and the
Subsidiaries, taken as a whole; (D) all liens, charges, encumbrances, claims, or
restrictions on or affecting the properties and assets (including the
Properties) of the Operating Partnership or any of the Subsidiaries that are
required to be described in the Prospectus and any Integrated Prospectus (or, if
the Prospectus and any required Integrated Prospectus are not in existence, the
most recent Preliminary Prospectus) are disclosed therein; (E) no lessee of any
portion of any of the Properties is in default under any of the leases governing
such 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 leases,
except such defaults that would not have a material adverse effect in the
12
condition (financial or otherwise), business prospects, net worth or results of
operations of the Operating Partnership and the Subsidiaries, taken as a whole;
and (F) no tenant under any lease pursuant to which the Operating Partnership or
any of the Subsidiaries leases the Properties has an option or right of first
refusal to purchase the premises leased thereunder or the building of which such
premises are a part, except as such options or rights of first refusal which, if
exercised, would not have a material adverse effect in the condition (financial
or otherwise), business prospects, net worth or results of operations of the
Operating Partnership and the Subsidiaries, taken as a whole, and except as
provided by law.
(aj) Except as otherwise disclosed in the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus) or in
the Phase I Environmental Audits previously delivered to the Representatives
(the "Audits"), (i) none of the Operating Partnership, the Company, any of the
Subsidiaries nor, to the best knowledge of the Operating Partnership and the
Company, any other owners of the property 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 or by the Operating Partnership, the Company, any of the
Subsidiaries or any other party in connection with the ordinary use of
residential, retail or commercial properties owned by the Operating Partnership;
(ii) the Operating Partnership and the Company do not intend 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 other than by any such action taken in compliance with all applicable
Environmental Statues or by the Operating Partnership, the Company, any of the
Subsidiaries or any other party in connection with the ordinary use of
residential, retail or commercial properties owned by the Operating Partnership;
(iii) none of the Operating Partnership, the Company, nor any of the
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) none
of the Operating Partnership, the Company, nor any of the Subsidiaries has
received any 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 and any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus) or any
other real property owned or occupied by any such party or arising out of the
conduct of any such party, including without limitation a claim under or
pursuant to any Environmental Statute (hereinafter
13
defined); (v) neither the Properties nor any other land owned by the Operating
Partnership or any of the Subsidiaries is included or, to the best of the
Operating Partnership'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
Operating Partnership's and 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, or related materials, asbestos
or any hazardous material as defined by any federal, state or local
environmental law, ordinance, rule or regulation including without limitation
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended, 42 U.S.C. Sections 9601-9675 ("CERCLA"), the Hazardous
Materials Transportation Act, as amended, 49 U.S.C. Sections 1801-1819, the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. Sections
6901-6992K, the Emergency Planning and Community Right-to-Know Act of 1986,
42 U.S.C. Sections 11001-11050, the Toxic Substances Control Act, 15 U.S.C.
Sections 2601-2671, the Federal Insecticide, Fungicide and Rodenticide Act, 7
U.S.C. Sections 136-136y, the Clean Air Act, 42 U.S.C. Sections 7401-7642,
the Clean Water Act (Federal Water Pollution Control Act), 33 U.S.C. Sections
1251-1387, the Safe Drinking Water Act, 42 U.S.C. Sections 300f-300j-26, and
the Occupational Safety and Health Act, 29 U.S.C. Sections 651-678, as any of
the above statutes may be amended from time to time, 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").
(ak) Each certificate signed by any officer of the Operating
Partnership and delivered to the Representatives or counsel for the Underwriters
shall be deemed to be a representation and warranty by the Operating Partnership
to each Underwriter as to the matters covered thereby.
(al) The Operating Partnership and 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
material in connection with the offering and sale of the Securities other than
the Registration Statement or any amendment thereto, any Preliminary Prospectus,
the Prospectus or any Integrated Prospectus or any amendment or supplement
thereto, or other materials, if any, permitted by the Act.
3. PURCHASE, SALE AND DELIVERY OF THE SECURITIES.
14
(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Operating Partnership agrees to issue and sell
to each of the Underwriters, and each of the Underwriters, severally and not
jointly, agrees to purchase from the Operating Partnership, at the purchase
price specified in Schedule 1 hereto, the number of Securities set forth
opposite the name of such Underwriter in Schedule 2 hereto. One or more
certificates in definitive form for the Securities that the several Underwriters
have agreed to purchase hereunder, and in such denomination or denominations and
registered in such name or names as the Representatives request upon notice to
the Operating Partnership at least 48 hours prior to the Closing Date, shall be
delivered by or on behalf of the Operating Partnership to the Representatives
for the respective accounts of the Underwriters, against payment by or on behalf
of the Underwriters of the purchase price therefor to the Operating Partnership
in such funds as are specified in Schedule 1 hereto. Such delivery of and
payment for the Securities shall be made at the date, time and place identified
in Schedule 1 hereto, or at such other date, time or place as the
Representatives and the Operating Partnership may agree upon or as the
Representatives may determine pursuant to Section 8 hereof, such date and time
of delivery against payment being herein referred to as the "Closing Date". The
Operating Partnership will make such certificate or certificates for the
Securities available for checking and packaging by the Representatives at the
offices in New York, New York of the Operating Partnership's transfer agent or
registrar or warrant agent or of X.X. Xxxxxx Securities Inc. at least 24 hours
prior to the Closing Date.
(b) 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. COVENANTS OF THE OPERATING PARTNERSHIP AND THE COMPANY. Each of
the Operating Partnership and the Company covenant and agree with each of the
Underwriters that:
(a) The Operating Partnership will file the Prospectus or any
Term Sheet that constitutes a part thereof, any Integrated Prospectus or the
Prospectus Supplement, as the case may be, 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 Operating
Partnership (i) will comply with all requirements imposed upon it by the Act and
the Exchange Act and the respective 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 and any Integrated Prospectus, as then amended or supplemented, and
(ii) will not file
15
with the Commission the Prospectus, Term Sheet, any Integrated Prospectus or any
amendment or supplement thereto or any amendment to the Registration Statement
of which the Representatives shall not 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 Operating Partnership 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 amendment to
the Registration Statement or amendment or supplement to the Prospectus and any
Integrated 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 Operating
Partnership will advise the Representatives, promptly after receiving notice
thereof, of the time when any amendment to the Registration Statement has been
filed or declared effective or the Prospectus, any Integrated 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 Operating Partnership 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
Registration Statement or any post-effective amendment thereto or any order
directed at any document incorporated by reference in the Registration
Statement, the Prospectus or any Integrated Prospectus or any amendment or
supplement thereto or any order preventing or suspending the use of any
Preliminary Prospectus, the Prospectus or any Integrated 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 Registration Statement, for
amending or supplementing any Preliminary Prospectus, the Prospectus or any
Integrated Prospectus or for additional information. The Operating Partnership
and the Company will use their 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) If required by applicable law, the Operating Partnership
will arrange for the qualification of the Securities and any Underlying
Securities for offering and sale under the securities or blue sky laws of such
jurisdictions as the Representatives may designate and will continue such
qualifications in effect for as long as may be necessary to complete the
distribution of the Securities and any Underlying Securities; PROVIDED, HOWEVER,
that in connection therewith the Operating Partnership shall not be required to
qualify as a foreign corporation or to execute a general consent to service of
process in any jurisdiction.
16
(d) If at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus or any Integrated 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 or any Integrated Prospectus to comply with the Act or Exchange Act
or the respective rules or regulations of the Commission thereunder, the
Operating Partnership will promptly notify the Representatives thereof and,
subject to Section 4(a) of this Agreement, will prepare and file with the
Commission, at the Operating Partnership's expense, an amendment to the
Registration Statement or an amendment or supplement to the Prospectus and any
Integrated Prospectus that corrects such statement or omission or effects such
compliance.
(e) The Operating Partnership will, without charge, provide
(i) to the Representatives and to counsel for the Underwriters, a conformed copy
of the registration statement originally filed with respect to the Securities
and any amendment thereto (in each case including exhibits thereto), (ii) to
each other Underwriter, a conformed copy of such registration statement and any
amendment thereto relating to the Securities (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, the Prospectus or any Integrated Prospectus or any amendment or
supplement thereto as the Representatives may reasonably request; without
limiting the application of clause (iii) of this sentence, the Operating
Partnership, 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 AM, New York City time, on such date or (B) 12:00 Noon, 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 AM, New York city
time, on such date, will deliver to the Representatives, without charge, as many
copies of the Prospectus or any Integrated 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 Closing Date.
(f) The Operating Partnership, as soon as practicable, will
make generally available to its securityholders and to the Representatives a
consolidated earning statement of the Operating Partnership and its subsidiaries
that satisfies the provisions of Section 11(a) of the Act and Rule 158
thereunder.
(g) The Operating Partnership will apply the net proceeds from
the sale of the Securities as set forth under "Use of Proceeds" in the
Prospectus and any Integrated Prospectus.
17
(h) [Intentionally omitted].
(i) If required as set forth in Schedule 1 hereto, the
Operating Partnership will obtain the agreements described in Section 6(g)
hereof prior to the Closing Date.
(j) The Operating Partnership 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 Operating
Partnership 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 Operating
Partnership.
(k) If at any time during the 25-day period after the
Registration Statement becomes effective, any rumor, publication or event
relating to or affecting the Operating Partnership shall occur as a result of
which in your opinion the market price of the Securities 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 or any
Integrated Prospectus), the Operating Partnership will, after written notice
from you advising the Operating Partnership 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 required as set forth in Schedule 1 hereto, the
Operating Partnership will cause the Securities and any Underlying Securities to
be duly authorized for listing by the New York Stock Exchange.
(m) The Company will continue to use its best efforts to meet
the requirements to qualify as a REIT under the Code.
5. EXPENSES. The Operating Partnership will pay all costs and
expenses incident to the performance of its obligations under this Agreement,
whether or not the transactions contemplated herein are consummated or this
Agreement is terminated pursuant to Section 10 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 Preliminary Prospectus, the Prospectus and any Integrated
Prospectus and any amendment or supplement thereto, this Agreement, the
Securities Documents 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
18
disbursements of counsel, accountants and any other experts or advisors retained
by the Operating Partnership and the Company, (iv) preparation, issuance and
delivery to the Underwriters of any certificates evidencing the Securities,
including the fees and expenses of the transfer agent, exchange agent or
registrar, (v) the qualification, if any, of the Securities and any Underlying
Securities under state securities and blue sky laws and real estate syndication
laws, including filing fees and fees and disbursements of counsel for the
Underwriters relating thereto and relating to the preparation of a blue sky
memoranda, (vi) the filing fees of the Commission relating to the Securities,
(vii) any listing of the Securities and Underlying Securities on the New York
Stock Exchange, (viii) any meetings with prospective investors in the Securities
arranged by the Operating Partnership (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 requested by the
Operating Partnership (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 6 of this Agreement is not
satisfied, because this Agreement is terminated pursuant to Section 10 of this
Agreement or because of any failure, refusal or inability on the part of the
Operating Partnership or the Company to perform all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder other than by
reason of a default by and of the Underwriters, the Operating Partnership will
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
(including counsel fees and disbursements) that shall have been incurred by them
in connection with the proposed purchase and sale of the Securities. The
Operating Partnership shall not in any event be liable to any of the
Underwriters for the loss of anticipated profits from the transactions covered
by this Agreement.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters to purchase and pay for the Securities shall be subject, in the
Representatives' sole discretion, to the accuracy of the representations and
warranties of the Operating Partnership and the Company contained herein as of
the date of this Agreement as specified in Schedule 1 hereto and as of the
Closing Date, as if made on and as of the Closing Date, to the accuracy of the
statements of the Operating Partnership's officers made pursuant to the
provisions hereof, to the performance by the Operating Partnership and the
Company of their covenants and agreements hereunder and to the following
additional conditions:
(a) The Prospectus, any Integrated Prospectus or the
Prospectus Supplement, as the case may be, 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 post-effective
amendment thereto and no order directed at any document incorporated by
reference in the Registration Statement, the Prospectus or any Integrated
Prospectus or any amendment or
19
supplement thereto shall have been issued, and no proceedings for that purpose
shall have been instituted or threatened or, to the knowledge of the Operating
Partnership, the Company or the Representatives, shall be contemplated by the
Commission; and the Operating Partnership shall have complied with any request
of the Commission for additional information (to be included in the Registration
Statement, the Prospectus or any Integrated Prospectus or otherwise).
(b) The Representatives shall have received an opinion, dated
the Closing Date, from Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, counsel for the
Company, to the effect that:
(i) 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 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
Operating Partnership and the Subsidiaries, taken as a whole. Each of the
Subsidiaries has been duly organized and is validly existing as a general
or limited partnership or corporation in good standing under the laws of
the jurisdiction of its organization, and is duly qualified to transact
business 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
Operating Partnership and the Subsidiaries, taken as a whole;
(ii) the Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Maryland and is duly qualified to transact business 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.
(iii) the Operating Partnership, the Company and each of
their 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, the Prospectus and any Integrated
Prospectus and each of the Operating Partnership, the Company and their
subsidiaries have full power, corporate or other, to enter into this
Agreement and the Securities Documents and to carry out all the terms and
provisions hereof and thereof to be carried out by it;
20
(iv) the issued shares of capital stock of each of the
Subsidiaries that is a corporation are duly authorized, validly issued,
fully paid and nonassessable, and all of the partnership interests in each
Subsidiary that is a partnership are validly issued and fully paid. Except
as described in the Registration Statement, the Prospectus and any
Integrated Prospectus, all of such shares and interests owned by the
Operating Partnership or another Subsidiary are owned beneficially by the
Operating Partnership or such Subsidiary free and clear of any security
interest, mortgage, pledge, lien, encumbrance, equity or claim;
(v) the Operating Partnership has an authorized, issued
and outstanding capitalization as set forth in the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus).
All of the partnership interests of the Operating Partnership are validly
issued and fully paid;
(vi) the Securities have been duly authorized and
executed and when authenticated in accordance with the terms of the
Securities Documents and delivered against payment therefor in accordance
with this Underwriting Agreement, will be the legal, valid, binding and
enforceable obligations of the Operating Partnership entitled to the
benefits provided by the Securities Documents, 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;
(vii) the Underlying Securities have been duly
authorized and reserved, and, when such securities are issued and
delivered as contemplated by the terms of the applicable Securities
Document such securities will be validly issued, fully paid and
non-assessable;
(viii) the execution and delivery of the Securities
Documents have been duly authorized by the Operating Partnership, and the
Securities Documents have been duly executed and delivered by the
Operating Partnership, and assuming due authorization, execution and
delivery of the Securities Documents by parties other than the Operating
Partnership as specified in the applicable Securities Documents, such
agreements are valid and binding instruments of the Operating Partnership
enforceable against the Operating Partnership in accordance with their
respective 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 Securities Documents have been duly qualified under the Trust
Indenture Act;
21
(ix) no holders of outstanding shares of capital stock
of the Operating Partnership are entitled as such to any preemptive or
other rights to subscribe for any of the Securities or Underlying
Securities, and no holder of securities of the Operating Partnership or
any Subsidiary has any right which has not been waived to require the
Operating Partnership to register the offer or sale of any securities
owned by such holder under the Act in the public offering contemplated by
this Agreement;
(x) the Securities and the Securities Documents conform
in all material respects to the descriptions thereof under the headings
"Description of the Notes" and "Description of Debt Securities" in the
Prospectus; and the statements set forth under the headings "Restrictions
on Ownership of Offered Securities", "Material United States Federal
Income Tax Considerations to the Company of its REIT Election", "Risk
Factors", "Certain United States Federal Income Tax Considerations to
Holders of Notes" and "Underwriting", in the Prospectus, insofar as such
statements constitute a summary of the legal matters, documents or
proceedings referred to therein, provide a fair summary of such legal
matters, documents and proceedings;
(xi) the execution and delivery of this Agreement has
been duly authorized by all necessary corporate action of the Company and
the Operating Partnership and this Agreement has been duly executed and
delivered by the Company and the Operating Partnership;
(xii) (A) no legal or governmental proceedings are
pending to which the Company, the Operating Partnership, any of their
respective subsidiaries, or any of their respective directors or officers
in their capacity as such, is a party or to which the Properties or any
other property of the Company, the Operating Partnership or any of their
respective subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not described
therein, and, to the best knowledge of such counsel, no such proceedings
have been threatened against the Company, the Operating Partnership or any
of their respective subsidiaries or with respect to the Properties or any
of their respective other properties and (B) no contract or other document
is required to be described in the Registration Statement, the Prospectus
or any Integrated Prospectus or to be filed as an exhibit to the
Registration Statement that is not described therein or filed as required;
(xiii) the issuance, offering and sale of the Securities
to the Underwriters by the Operating Partnership and the Company pursuant
to this Agreement, the compliance by the Operating Partnership with the
other provisions of this Agreement, any Securities Documents and the
consummation of the other transactions herein contemplated
22
do not (A) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have
been obtained and such as may be required under state securities or blue
sky laws (as to which such counsel need not opine) or (B) conflict with or
result in a breach or violation of any 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 of the Properties or any other
properties or assets of the Operating Partnership, the Company or any of
their respective subsidiaries pursuant to any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which the Operating
Partnership, the Company or any of their respective subsidiaries is a
party or by which the Operating Partnership, the Company or any of their
respective subsidiaries or the Properties or any other of their respective
properties are bound, or the Agreement of Limited Partnership, Articles of
Incorporation, By-laws or other organizational documents, as the case may
be, of the Operating Partnership, the Company or any of their respective
subsidiaries, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or (to the best
knowledge of such counsel) any arbitrator applicable to the Operating
Partnership, the Company or any of their respective subsidiaries or any of
the Properties;
(xiv) none of the Subsidiaries is currently
contractually prohibited, directly or indirectly, from paying any
dividends to the Operating Partnership, from making any other distribution
on such subsidiary's capital stock or other equity interests, from
repaying to the Operating Partnership any loans or advances to such
Subsidiary from the Operating Partnership or from transferring any of such
Subsidiary's property or assets to the Operating Partnership or any of the
other Subsidiaries, except as described in the Prospectus and any
Integrated Prospectus;
(xv) to the best knowledge of such counsel, the
Operating Partnership and the Subsidiaries possess all certificates,
authorizations, licenses and permits issued by the appropriate federal,
state, municipal or foreign regulatory authorities necessary to conduct
their respective businesses except for such certificates, authorizations,
licenses and permits the failure of which to possess would not be expected
to result in a material adverse change in the condition (financial or
otherwise), business, prospects, net worth or results of operations of the
Operating Partnership and the Subsidiaries, taken as a whole, and neither
the Operating Partnership nor any of the Subsidiaries has received any
notice of proceedings relating to the revocation or modification of any
such certificate, authorization, license or permit 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
Operating
23
Partnership and the Subsidiaries, taken as a whole, except as described in
the Prospectus and any Integrated Prospectus;
(xvi) the Operating Partnership and the Company is not
subject 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 Operating Partnership or the Company to
become an investment company subject to registration under such Act;
(xvii) none of the Operating Partnership, the Company
nor any of the Subsidiaries is in violation of any term or provision of
its articles of incorporation, bylaws, partnership agreements or other
organizational documents, as the case may be; no default exists, and no
event has occurred which, with notice or lapse of time or both, would
constitute a default, and the issuance, offering and sale of the
Securities to the Underwriters by the Operating Partnership pursuant to
this Agreement and the Securities Documents, the compliance by the
Operating Partnership and the Company with the other provisions of this
Agreement, the Securities and the Securities Documents and the
consummation of the other transactions herein and therein contemplated
will not result in any default, in the due performance and observance of
any term, covenant or condition of any indenture, mortgage or deed of
trust, or any material lease or other agreement or instrument known to
such counsel after due inquiry to which the Operating Partnership and the
Company or any of the Subsidiaries is a party or by which the Operating
Partnership and the Company, any of the Subsidiaries, any of the
Properties or any of their respective other properties is bound or may be
affected except such as would not result in any material adverse effect in
the condition (financial or otherwise), business prospects, net worth or
results of operations of the Operating Partnership and its subsidiaries,
taken as a whole;
(xviii) the Registration Statement is effective under
the Act; the Prospectus or any Term Sheet that constitutes a part thereof
and any Integrated Prospectus or the Prospectus Supplement, as the case
may be, has been filed with the Commission in the manner and within the
time period required by Rules 434 and 424(b); and no stop order suspending
the effectiveness of the Registration Statement or any post-effective
amendment thereto and no order directed at any document incorporated by
reference in the Registration Statement, the Prospectus, any Integrated
Prospectus or any amendment or supplement thereto has been issued, and no
proceedings for that purpose have been instituted or, to the best
knowledge of such counsel, threatened by the Commission; and
(xix) the Registration Statement originally filed with
respect to the Securities and each amendment thereto, the Prospectus and
any Integrated Prospectus (in
24
each case, including the documents incorporated by reference therein but
not including the financial statements and other financial and statistical
data contained therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules and
regulations of the Commission thereunder.
Such counsel shall also state that they have no reason to believe
that the Registration Statement, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that the Prospectus or any Integrated Prospectus, as of the date of the
Prospectus Supplement or any required Integrated Prospectus and the date of such
opinion, included or includes any untrue statement of a material fact or omitted
or omits 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.
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 Operating Partnership and public officials and, as to matters
involving the application of laws of any jurisdiction other than the States of
New York, New Jersey and Delaware or the United States, to the extent
satisfactory in form and scope to counsel for the Underwriters, upon the opinion
of local counsel. The foregoing opinion shall also state that the Underwriters
are justified in relying upon such opinion of local counsel, and copies of such
opinion shall be delivered to the Representatives and counsel for the
Underwriters.
References to the Registration Statement, the Prospectus and any
Integrated 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 Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Underwriters, with respect to the issuance and sale of the Securities, the
Registration Statement, the Prospectus, and any Integrated Prospectus and such
other related matters as the Representatives may reasonably require, and the
Operating Partnership 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
PricewaterhouseCoopers LLP and each other accounting firm that has certified
financial statements, and delivered its report with respect thereto, included or
incorporated by reference in the Registration Statement, the Prospectus and any
Integrated Prospectus, a letter or letters dated, respectively, the date of this
25
Agreement as specified in Schedule 1 hereto and the Closing Date, in form and
substance satisfactory to the Representatives, to the effect that:
(i) they are independent accountants with respect to the
Operating Partnership, the Company and their subsidiaries within the
meaning of the Act, the Exchange Act and the applicable published rules
and regulations thereunder;
(ii) in their opinion, the financial statements audited
by them and incorporated by reference in the Registration Statement, the
Prospectus and any Integrated Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act, the
Exchange Act and the related published rules and regulations thereunder;
(iii) a reading of the minute books of the shareholders,
the board of directors, partners and any committees thereof of the
Operating Partnership, the Company and each of their consolidated
subsidiaries, and inquiries of certain officials of the Operating
Partnership, the Company and their consolidated subsidiaries who have
responsibility for financial and accounting matters, nothing came to their
attention that caused them to believe that:
(A) (i) any unaudited consolidated condensed financial
statements of the Operating Partnership, the Company and their
consolidated subsidiaries included in the Registration
Statement, the Prospectus and any Integrated Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Act, the Exchange Act and the
related published rules and regulations thereunder, or (ii)
any material modification should be made to the unaudited
consolidated condensed financial statements for them to be in
conformity with generally accepted accounting principles;
(B) at a specific date not more than five business days
prior to the date of such letter, there were any changes in
the partners' capital or increase in mortgages and loans
payable of the Operating Partnership and its consolidated
subsidiaries, in each case compared with amounts shown on the
most recent consolidated balance sheet included in the
Registration Statement, the Prospectus and any Integrated
Prospectus, except for such changes set forth in such letter;
26
(iv) they have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts, percentages
and financial information that are derived from the general accounting
records of the Operating Partnership, the Company and their consolidated
subsidiaries and are included in the Registration Statement, the
Prospectus and any Integrated Prospectus and in Exhibit 12 to the
Registration Statement, including the information included or incorporated
in the Operating Partnership's and the Company's most recent Annual Report
on Form 10-K under the captions "Business" (Item 1), "Selected Financial
Data" (Item 6) and "Management's Discussion and Analysis of Financial
Condition and Results of Operations" (Item 7) and the information included
or incorporated in the Operating Partnership's and the Company's Quarterly
Reports on Form 10-Q under the caption "Management's Discussion and
Analysis of Financial Condition and Results of Operations,"and have
compared such amounts, percentages and financial information with such
records 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 any unaudited pro forma
consolidated condensed financial statements included in the Registration
Statement, the Prospectus and any Integrated 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 Operating Partnership, the Company,
their consolidated subsidiaries and any acquired Company who have
responsibility for financial and accounting matters and proving the
arithmetic accuracy of the application of the pro forma adjustments to the
historical amounts in the unaudited pro forma consolidated condensed
financial statements, nothing came to their attention that caused them to
believe that the unaudited pro forma consolidated condensed 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 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.
27
References to the Registration Statement, the Prospectus and any
Integrated 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 Closing Date, of the chief executive officer or an executive vice
president and the chief financial or accounting officer of the Company, as the
general partner of the Operating Partnership, to the effect that:
(i) the representations and warranties of the Operating
Partnership and the Company in this Agreement are true and correct as if
made on and as of the Closing Date; the Registration Statement, as amended
as of the 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 or any Integrated
Prospectus, as amended or supplemented as of the Closing Date, does not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and
the Operating Partnership and the Company have performed all covenants and
agreements and satisfied all conditions on their part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto and no
order directed at any document incorporated by reference in the
Registration Statement, the Prospectus or any Integrated Prospectus or any
amendment or supplement thereto has been issued, and no proceedings for
that purpose have been instituted or threatened or, to the best of 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, the Prospectus and any
Integrated Prospectus, none of the Operating Partnership, the Company nor
any of their 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 Operating Partnership, the Company
or any of their subsidiaries, except in each case as described in or
contemplated by the Prospectus or any Integrated Prospectus (exclusive of
any amendment or supplement thereto).
28
(f) On or before the 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
Operating Partnership or the Company.
(g) [Intentionally omitted].
(h) If applicable, prior to the commencement of the offering
of the Securities, the Securities and any Underlying Securities shall have been
approved for listing on the New York Stock Exchange, subject to official notice
of issuance.
(i) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have been any downgrading in the
rating of any debt securities or preferred stock of the Operating Partnership or
the Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of any
debt securities or preferred stock of the Operating Partnership or the Company
(other than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating).
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 Operating Partnership 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.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and the
Operating Partnership agree 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 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, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement
made by the Company and 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 or any Preliminary Prospectus, the Prospectus or any
Integrated Prospectus or any amendment or
29
supplement thereto or (B) any application or other document, or any
amendment or supplement thereto, executed by the Company or the Operating
Partnership or based upon written information furnished by or on behalf of
the Company or the Operating Partnership 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, the Prospectus or any Integrated 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 the Company and the
Operating Partnership will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any Integrated Prospectus or any amendment or
supplement thereto, or any Application in reliance upon and in conformity with
written information furnished to the Company or the Operating Partnership by
such Underwriter through the Representatives specifically for use therein. This
indemnity agreement will be in addition to any liability which the Company or
the Operating Partnership may otherwise have. The Company or the Operating
Partnership will not, without the prior written consent of the Underwriter or
Underwriters purchasing, in the aggregate, more than 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.
30
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company and the Operating Partnership, each of
its directors, each of its officers who signed the Registration Statement, as
amended at the date of this Agreement as specified in Schedule 1 hereto, and
each person, if any, who controls the Company or the Operating Partnership
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, the
Operating Partnership or any such director, officer or controlling person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, as amended at the date of this
Agreement as specified in Schedule 1 hereto, any Preliminary Prospectus, the
Prospectus or any Integrated 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, as amended
at the date of this Agreement as specified in Schedule 1 hereto, any Preliminary
Prospectus, the Prospectus or any Integrated 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 or the Operating Partnership 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, the
Operating Partnership or any such director, officer or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or any action in respect thereof. This indemnity agreement will be in
addition to any liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 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 7, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. 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
31
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 7 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
7, 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.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 7 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 (before
deducting expenses) received by the Company or the Operating Partnership, as the
case may be, 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 Operating Partnership or
the Underwriters, the parties' relative
32
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 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 X.X. Xxxxxx Securities Inc. Master Agreement Among Underwriters. For
purposes of this paragraph (d), each person, if any, who controls an Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
shall have the same rights to contribution as such Underwriter, and each
director of the Company, each partner of the Operating Partnership, each officer
of the Operating Partnership or the Company who signed the Registration
Statement as amended at the date of this Agreement as specified in Schedule 1
hereto and each person, if any, who controls the Company or the Operating
Partnership 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.
8. DEFAULT OF UNDERWRITERS. If one or more Underwriters default in
their obligations to purchase 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 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 Closing Date the other Underwriters shall be
obligated severally in proportion to their respective commitments hereunder to
purchase the 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 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
33
terminate without liability on the part of any non-defaulting Underwriter, the
Company or the Operating Partnership other than as provided in Section 9 hereof.
In the event of any default by one or more Underwriters as described in this
Section 8, the Representatives shall have the right to postpone the Closing
Date, established as provided in Section 3 of this Agreement 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 Securities. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section 8. Nothing herein shall relieve any
defaulting Underwriter from liability for its default.
9. SURVIVAL. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company and the Operating
Partnership, their officers and the several Underwriters set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Operating Partnership, the Company,
any of its officers or directors, any Underwriter or any controlling person
referred to in Section 7 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 5 and 7 hereof shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement.
10. TERMINATION. (a) This Agreement may be terminated with respect
to the Securities in the sole discretion of the Representatives by notice to the
Company and the Operating Partnership given prior to the Closing Date 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 Closing Date:
(i) the Operating Partnership or any of the 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, which includes the termination of the employment
of Xxxxxx X. Xxxx), in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company, the
Operating Partnership and the Subsidiaries, except in each case as
described in or contemplated by the Prospectus (exclusive of any amendment
or supplement thereto);
34
(ii) trading in the Company's Common Stock shall have
been suspended by the Commission or the New York Stock Exchange or trading
in securities generally on the New York Stock Exchange shall have been
suspended or minimum or maximum prices shall have been established on such
exchange;
(iii) there shall have been any downgrading in the
rating of any debt securities or preferred stock of the Operating
Partnership or the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities or preferred
stock of the Operating Partnership or the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating);
(iv) a banking moratorium shall have been declared by
New York or United States authorities; or
(v) 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 at the date of this
Agreement as specified in Schedule 1 hereto
(b) Termination of this Agreement pursuant to this Section 10
shall be without liability of any party to any other party except as provided in
Section 9 hereof.
11. INFORMATION SUPPLIED BY UNDERWRITERS. The statements set forth
under the heading "Underwriting" in the Prospectus Supplement (to the extent
such statements relate to the Underwriters) constitute the only information
furnished by any Underwriter through the Representatives to the Operating
Partnership for the purposes of Sections 2(b) and 7(b) hereof. The Underwriters
confirm that such statements (to such extent) are correct.
12. 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 X.X. Xxxxxx Securities Inc.,
00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000-0000, Attention: Syndicate Department;
and if sent to the Operating Partnership or the Company, shall be
35
delivered or sent by mail, telex or facsimile transmission and confirmed in
writing to the Operating Partnership at 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx,
00000, Attention: Xxxxxx X. Xxxx.
13. SUCCESSORS. This Agreement shall inure to the benefit of and
shall be binding upon the several Underwriters, the Operating Partnership, the
Company and their respective successors and legal representatives, and nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement, or any provisions herein contained, this Agreement
and all conditions and provisions hereof being intended to be and being for the
sole and exclusive benefit of such persons and for the benefit of no other
person except that (i) the indemnities of the Operating Partnership and the
Company contained in Section 7 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 7 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 as amended at the date of this Agreement
as specified in Schedule 1 hereto 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.
14. 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.
15. 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.
36
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,
XXXX-XXXX REALTY CORPORATION
By: /s/ XXXXX X. XXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President,
General Counsel and
Secretary
XXXX-XXXX REALTY, L.P.
By: Xxxx-Xxxx Realty Corporation,
as general partner
By: /s/ XXXXX X. XXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President,
General Counsel and
Secretary
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
Bear, Xxxxxxx & Co. Inc.
Chase Securities Inc.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Prudential Securities Incorporated
By: X.X. XXXXXX SECURITIES, INC.
By: /s/ XXXXXX XXXX
-----------------------------------
Name: Xxxxxx Xxxx
Title: Managing Director
SCHEDULE 1
DESCRIPTION OF SECURITIES; TERMS OF OFFERING
--------------------------------------------
1. REGISTRATION STATEMENT:
File No. 333-57103
2. DATE OF UNDERWRITING AGREEMENT:
March 11, 1999
3. REPRESENTATIVES:
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Barney Inc.
Bear, Xxxxxxx & Co. Inc.
Chase Securities Inc.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Prudential Securities Incorporated
4. TITLE OF SECURITIES:
7.00% Notes due 2004 (the "2004 Notes") and
7.25% Notes due 2009 (the "2009 Notes" and together with the 2004 Notes,
the "Securities")
5. AGGREGATE AMOUNT OF SECURITIES:
$300,000,000 of 2004 Notes and $300,000,000 of 2009 Notes
6. SECURITIES DOCUMENTS:
Indenture, to be dated as of March 16, 1999 (the "Original Indenture"),
between Xxxx-Xxxx Realty, L.P. and Wilmington Trust Company, as trustee
(the "Trustee") and the First Supplemental Indenture, to be dated as of
March 16, 1999 (the "Supplemental Indenture" and together with the
Original Indenture, the "Indenture"), between Xxxx-Xxxx Realty, L.P. and
the Trustee.
1
7. PRICE TO PUBLIC:
99.867% of the principal amount of the 2004 Notes and 99.217% of the
principal amount of the 2009 Notes, in each case, plus accrued interest,
if any, from March 16, 1999.
8. PURCHASE PRICE BY UNDERWRITERS:
99.267% of the principal amount of the 2004 Notes and 98.567% of the
principal amount of the 2009 Notes, in each case, plus accrued interest,
if any, from March 16, 1999.
9. SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Wire transfer of same day funds
10. TERMS OF SECURITIES:
Maturity: March 15, 2004 with respect to the 2004
Notes and March 15, 2009 with respect to the
2009 Notes.
Interest Rate: 7.00% with respect to the 2004 Notes and
7.25% with respect to the 2009 Notes.
Interest Payment Dates: Semi-annually on March 15 and September 15
commencing September 15, 1999.
Option Redemption: The Notes may be redeemed at any time at the
option of the Operating Partnership, in
whole or in part, at a redemption price
equal to the sum of (i) the principal amount
of the Notes being redeemed plus accrued
interest thereon to the redemption date and
(ii) the Make-Whole Amount (as defined in
the Indenture), if any, with respect to such
Notes.
Sinking Fund: N/A
11. LOCK-UP REQUIREMENTS:
N/A
2
12. DELIVERY OF SECURITIES:
X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000-0000 on or about March 16, 1999.
13. PRE-CLOSING LOCATION:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx on
March 15, 1999
14. CLOSING LOCATION:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx on
March 16, 1999
15. STOCK EXCHANGE LISTING
The Notes will not be listed on any national securities exchange.
16. UNDERLYING SECURITIES
N/A
17. MISCELLANEOUS:
3
SCHEDULE 2
UNDERWRITERS
Principal Amount Principal Amount
Underwriters of 2004 Notes of 2009 Notes
------------ ------------- -------------
X.X. Xxxxxx Securities Inc........................... $ 97,500,000 $ 97,500,000
Xxxxxxx Xxxxx Xxxxxx Inc............................. 97,500,000 97,500,00
Bear, Xxxxxxx & Co. Inc.............................. 15,000,000 15,000,000
Chase Securities Inc................................. 15,000,000 15,000,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.. 15,000,000 15,000,000
Xxxxxxx, Sachs & Co.................................. 15,000,000 15,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated... 15,000,000 15,000,000
Xxxxxx Xxxxxxx & Co. Incorporated.................... 15,000,000 15,000,000
Prudential Securities Incorporated................... 15,000,000 15,000,000
============ ============
Total................................................ $300,000,000 $300,000,000
4
