EXHIBIT 1
$50,000,000
BRE PROPERTIES, INC.
7.20% Notes due 2007
UNDERWRITING AGREEMENT
June 18, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
BancAmerica Securities, Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Salomon Brothers Inc,
As Representatives of the several Underwriters
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
1. INTRODUCTORY. BRE Properties, Inc., a corporation organized under the
laws of the State of Maryland (the "Company"), proposes to issue and sell,
pursuant to the terms of this Agreement, to the several Underwriters named in
Schedule A hereto (the "Underwriters" which term also shall include any
underwriter substituted as hereinafter provided in Section 10), $50,000,000
aggregate principal amount of its 7.20% Notes due 2007 (the "Securities") to be
issued pursuant to an Indenture dated as of June 23, 1997 (the "Indenture")
between the Company and Chase Trust Company of California, as trustee (the
"Trustee").
Xxxxxx Xxxxxxx & Co. Incorporated, BancAmerica Securities, Inc., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Salomon Brothers Inc are acting
as representatives
of the several underwriters and in such capacity are hereinafter referred to as
the "Representatives".
2. (a) REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the several Underwriters, as of the date hereof and
as of the Closing Date (as defined in Section 3), and agrees with the several
Underwriters, as follows:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3
(No. 333-24915) for the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of the Securities and certain other securities
and has filed such amendments thereto, if any, as may have been required to
the date hereof. Such registration statement (including all exhibits
thereto, and all documents incorporated or deemed to be incorporated by
reference therein and the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) of the rules and regulations of the Commission
under the 1933 Act (the "Rules and Regulations")), as amended (if
applicable) at the time such registration became effective, and as from
time to time amended or supplemented pursuant to the 1933 Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or otherwise,
is hereinafter referred to as the "Registration Statement." The Company
proposes to file with the Commission pursuant to Rule 424(b) of the Rules
and Regulations the Prospectus Supplement (as defined in Section 4(i)
hereof) and the related prospectus dated June 18, 1997 (the "Base
Prospectus"), and has previously advised you of all information (financial
and other) set forth therein. The Base Prospectus and the Prospectus
Supplement, each in the form first provided to the Underwriters by the
Company for use in connection with the offering of the Securities (being
the forms in which they are to be filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations), including all documents
incorporated or deemed to be incorporated by reference therein, are
hereinafter referred to, collectively, as the "Prospectus", except that if
any revised prospectus or prospectus supplement shall be provided to the
Underwriters by the Company for use in connection with the offering and
sale of the Securities which differs from the Prospectus first provided to
the Underwriters for such purpose (whether or not such revised prospectus
or prospectus supplement is required to be filed by the Company with the
Commission pursuant to Rule 424(b) of the Rules and Regulations), the term
"Prospectus" shall refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first
provided to the Underwriters for such use. Unless the context otherwise
requires, all references in this Agreement to documents, financial
statements and schedules and other information which is "contained",
"included", "stated", "described in" or "referred to" in the Registration
Statement or the Prospectus (and all other references of like import) shall
be deemed to mean and include all such documents, financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to
the Registration Statement or the Prospectus shall be deemed to mean and
include the filing of any document under the 1934 Act after the date of
this Agreement which is or is deemed to be incorporated by reference in the
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Registration Statement or the Prospectus, as the case may be. For purposes
of this Agreement, all references to the Registration Statement, any
preliminary prospectus supplement, any preliminary prospectus, the
Prospectus Supplement, the Prospectus or any amendment or supplement to any
of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
(ii) The Registration Statement has become effective under the 1933
Act, and no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with. The
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"), and the Trustee has duly filed with the
Commission a Statement of Eligibility on Form T-1 as part of the
Registration Statement.
At the respective times the Registration Statement and any
post-effective amendments thereto became or become effective, as the case
may be, and at the Closing Date, the Registration Statement complied and
will comply in all material respects with the requirements of the 1933 Act
and the Rules and Regulations and with the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"), and did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus does not and will not 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; PROVIDED, HOWEVER, that the foregoing
representations, warranties and agreements shall not apply to information
contained in or omitted from the Registration Statement or the Prospectus
in reliance upon, and in conformity with, written information furnished to
the Company by or on behalf of any Underwriter, directly or through the
Representatives, specifically for use in the preparation thereof.
Any preliminary prospectus supplement, any preliminary
prospectus and the Prospectus and any amendment or supplement thereto
delivered to the Underwriters for use in connection with the offering of
the Securities was identical to the respective electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(iii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, when they were
filed with the Commission, complied in all material respects to the
requirements of the 1934 Act and the published rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein,
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in the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated or deemed
to be incorporated by reference, when they are filed with the Commission,
will comply in all material respects to the requirements of the 1934 Act
and the published rules and regulations of the Commission thereunder and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(iv) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement). Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), except as otherwise stated
therein or contemplated thereby, (A) there has been no change in the
consolidated capital stock or the consolidated long-term debt of the
Company, (B) there have been no transactions entered into by the Company or
any of its subsidiaries which are material to the Company and its
subsidiaries considered as one enterprise, other than those entered into in
the ordinary course of its business, and (C) except for regular quarterly
dividends, there has been no dividend or distribution of any kind declared,
paid or made by the Company on its shares of capital stock.
(v) The financial statements of the Company, of Promontory Point
Apartments ("PPA"), of Red Hawk Ranch ("RHR"), and of Xxxxxx'x Landing
Apartments ("FLA"), included in the Registration Statement and the
Prospectus, in each case, together with the related notes and supporting
schedules (if any), present fairly the financial position of the Company,
of PPA, of RHR, and of FLA, respectively, at the dates indicated and the
results of operations, cash flows and shareholders' equity or partners'
capital, as the case may be, of the Company and the gross income and direct
operating expenses of PPA, of RHR, and of FLA, respectively, as at the
respective dates and for the respective periods therein indicated, and such
financial statements and related notes and supporting schedules have been
prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved,
except as may be set forth therein or in the Prospectus. The selected
financial data and the summary financial information included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the Company's audited financial
statements included in the Registration Statement.
(vi) The accountants who have certified the financial statements and
supporting schedules included in the Registration Statement and the
Prospectus are independent public accountants as required by the 1933 Act
and the Rules and Regulations.
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(vii) The pro forma condensed financial statements, together with the
related notes and any supporting schedules, included in the Registration
Statement and the Prospectus present fairly the information shown therein,
have been prepared on a basis substantially consistent with the audited
financial statements of the Company set forth therein, the assumptions on
which such pro forma financial statements have been prepared are reasonable
and are set forth in the notes thereto, and such pro forma condensed
financial statements have been prepared, and the pro forma adjustments set
forth therein have been applied, in accordance with the applicable
accounting requirements of the 1933 Act and the Rules and Regulations
(including, without limitation, Regulation S-X promulgated by the
Commission), and such pro forma adjustments have been properly applied to
the historical amounts in the compilation of such statements.
(viii) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Maryland; the
Company has power and authority to own, lease and operate its properties
and conduct its business as described in the Registration Statement and the
Prospectus; the Company is duly qualified as a foreign corporation to
transact business and is in good standing in the State of Arizona, the
State of California, the State of Washington, the State of Nevada and the
State of Oregon; the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, except where the failure to be so
qualified or in good standing would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise; and, except for its limited partnership interest in Westbar
Limited Partnership, Metro Village Limited Partnership and Chateau De Ville
Apt. Fund Ltd. and the capital stock of the Company's subsidiaries referred
to in paragraph (ix) below, the Company owns no material amounts of capital
stock or other beneficial interest in any other corporation, partnership,
joint venture or other business entity.
(ix) Each subsidiary of the Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has power and authority to own, lease
and operate its property and conduct its business as described in the
Registration Statement and the Prospectus, and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, except where the
failure to be so qualified or in good standing would not have a material
adverse effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and all of the issued and
outstanding capital stock of each such subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and is and, at all
times since the date on which such subsidiary was organized, has been owned
by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity.
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(x) The Company and its subsidiaries own or possess or have obtained
all material governmental licenses, permits, consents, orders, approvals
and other authorizations necessary to lease or own, as the case may be, and
to operate their respective properties and to carry on their respective
businesses as contemplated in the Prospectus.
(xi) The Company is not required to be registered under the
Investment Company Act of 1940, as amended.
(xii) The authorized, issued and outstanding shares of capital stock
of the Company are as set forth in the Prospectus under the caption
"Capitalization" (except for subsequent issuances, if any, of the Company's
common stock, par value $.01 per share (the "Common Stock"), pursuant to
employee benefit, employee and director stock option and dividend
reinvestment plans or upon conversion of convertible securities referred to
in the Prospectus). The shares of issued and outstanding Common Stock have
been duly authorized and validly issued, are fully paid and non-assessable;
and none of the outstanding shares of Common Stock was issued in violation
of any preemptive or other similar rights arising by operation of law,
under the charter or by-laws of the Company, under any agreement or
instrument to which the Company or any of its subsidiaries is a party or
otherwise.
(xiii) The Company is not in violation of its charter or by-laws;
neither the Company nor any of its subsidiaries is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which it is a party or by which it or
any of its property or assets may be bound, except for such defaults which
would not, individually or in the aggregate, have a material adverse effect
on the condition (financial or otherwise) or on the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; and the execution, delivery and performance
of this Agreement, the Indenture and the Securities, the consummation of
the transactions contemplated herein and therein (including, without
limitation, the incurrence of the indebtedness evidenced by the
Securities), and compliance by the Company with its obligations hereunder
and thereunder, have been duly authorized by all necessary corporate action
and will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries
pursuant to, any Subject Agreement (as defined below) or any other
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries may be bound or to which any
of the property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the provisions of
the charter or by-laws of the Company or any applicable law, administrative
regulation or administrative or court decree; and no consent, approval,
authorization or order of any court or governmental authority or agency is
required for the consummation by the Company of the transactions
contemplated by this Agreement, the Indenture or the Securities, except
such as may
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be required under state securities or Blue Sky laws of any jurisdiction or
real estate syndication laws in connection with the purchase and
distribution of the Securities by the Underwriters. "Subject Agreements"
means (i) the Loan Agreement dated as of January 31, 1994 between The
Prudential Insurance Company of America and the Company (as successor by
merger to Real Estate Investment Trust of California), as amended by the
First Amendment to Loan Agreement dated as of July 7, 1995, the Second
Amendment to Loan Agreement dated as of April 30, 1996, the Third Amendment
to Loan Agreement dated as of November 20, 1996 and the Fourth Amendment to
Loan Agreement dated as of February 25, 1997, (ii) the Loan Agreement dated
as of July 7, 1995 between The Prudential Insurance Company of America and
the Company (as successor by merger to Real Estate Investment Trust of
California), as amended by the First Agreement to Loan Agreement dated as
of April 30, 1996, the Second Agreement to Loan Agreement dated as of
November 20, 1996 and the Third Amendment to Loan Agreement dated as of
February 25, 1997, (iii) the Unsecured Line of Credit Loan Agreement dated
as of April 4, 1996 between Bank of America Trust and Savings Association
and the Company, as amended by the Modification Agreement dated as of April
4, 1996 and the Second Modification Agreement dated as of October 22, 1996
and (iv) the Unsecured Line of Credit Loan Agreement dated as of March 9,
1996 between Sanwa Bank California and the Company, as amended by the First
Amendment to Credit Agreement dated as of December 12, 1996; and
"Prudential Agreements" means the Loan Agreements, as amended, referred to
in clauses (i) and (ii) of this sentence. All amendments and supplements
to the Subject Agreements are set forth in clauses (i) through (iv) of the
preceding sentence.
(xiv) The Company was and is organized to qualify as a "real estate
investment trust" under the Internal Revenue Code of 1986, as amended (the
"Code"); the Company at all times since its organization has elected to be
taxed as a "real estate investment trust"; the Company has qualified as a
"real estate investment trust" under the Code for its taxable years ended
July 31, 1994, July 31, 1995, its short taxable year ended December 31,
1995 and its taxable year ended December 31, 1996 and will continue to
qualify as a "real estate investment trust" under the Code after
consummation of the transactions contemplated by the Prospectus; and the
Company's present and contemplated operations, assets and income will
enable the Company to meet the requirements for qualification as a "real
estate investment trust" under the Code. United States Federal income tax
returns of the Company have been closed through the fiscal year of the
Company ended July 31, 1993. As used in this paragraph (xiv), the term
"Company" includes BankAmerica Realty Investors, a California business
trust and predecessor to BRE Properties, Inc., a Delaware corporation.
(xv) Each subsidiary of the Company is a "qualified REIT subsidiary"
within the meaning of the Code.
(xvi) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened against or affecting the Company or
any of its subsidiaries,
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which is required to be disclosed in the Registration Statement or the
Prospectus (other than as disclosed therein) or which might result in any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, or which might materially and
adversely affect the properties or assets of the Company or any of its
subsidiaries; and there are no contracts or documents of the Company or any
of its subsidiaries which are required to be filed as exhibits to the
Registration Statement or any document incorporated or deemed to be
incorporated therein by the 1933 Act, the Rules and Regulations, the 1934
Act or the rules and regulations of the Commission thereunder which have
not been so filed.
(xvii) The Company is eligible to use a Form S-3 registration statement
under the 1933 Act. The Company is also eligible to use Form S-3 pursuant
to the standards for that Form in effect immediately prior to October 21,
1992.
(xviii) Neither the Company nor any of its subsidiaries nor any of their
respective officers or directors has taken nor will any of them take,
directly or indirectly, any action resulting in a violation of Regulation M
under the 1934 Act, or designed to cause or result in, or which has
constituted or which reasonably might be expected to constitute, the
stabilization or manipulation of the price of the Securities or
facilitation of the sale or resale of the Securities.
(xix) Neither the Company nor any of its subsidiaries is required to
own or possess any trademarks, service marks, trade names or copyrights in
order to conduct the business now operated by it.
(xx) The Company has full right, power and authority to enter into
this Agreement, the Indenture and the Securities; this Agreement has been
duly authorized, executed and delivered by the Company.
(xxi) Except as otherwise disclosed in the Prospectus: (A) the Company
and its subsidiaries have good and marketable title in fee simple to all
real property and improvements described in the Prospectus as being owned
by the Company (none of which is leased by the Company or any of its
subsidiaries, as lessee); (B) all liens, charges, encumbrances, claims or
restrictions on or affecting the real property and improvements of the
Company or any of its subsidiaries which are required to be disclosed in
the Prospectus are disclosed therein; (C) neither the Company nor any of
its subsidiaries nor any lessee of any portion of the real property or
improvements of the Company or any of its subsidiaries is in default under
any of the leases pursuant to which the Company or any of its subsidiaries
leases (as lessor) its real property or improvements and the Company knows
of 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, individually or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, or on earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; (D) no tenant under any of the leases
pursuant to which the Company or any of its
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subsidiaries leases any of its real property or improvements has an option
or right of first refusal to purchase the premises demised under such
lease; (E) all of the real property and improvements of the Company and its
subsidiaries comply with all applicable codes and zoning laws and
regulations, except for such failures to comply which would not,
individually or in the aggregate, have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise; and (F) the Company has no knowledge of any pending or
threatened condemnation, zoning change or other proceeding or action that
would in any manner affect the size of, use of, improvements on,
construction on, or access to any of the real property of the Company or
any of its subsidiaries, except such proceedings or actions that would not,
individually or in the aggregate, have a material adverse effect on the
condition, financial or otherwise, or earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise.
(xxii) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific
authorizations; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (C) access
to assets is permitted only in accordance with management's general or
specific authorizations; and (D) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. Neither the Company nor
any of its subsidiaries nor any of their respective employees or agents has
made any payment of funds of the Company or any of its subsidiaries or
received or retained any funds in violation of any law, rule or regulation
which payment, receipt or retention of funds is of a character required to
be disclosed in the Prospectus.
(xxiii) Except as otherwise set forth in the Registration Statement, (A)
to the best knowledge and information of the Company, neither the Company
nor any of its subsidiaries has at any time, and no other party has at any
time, handled, buried, stored, retained, refined, transported, processed,
manufactured, generated, produced, spilled, allowed to seep, leak, escape
or xxxxx, or pumped, poured, emitted, emptied, discharged, injected,
dumped, transferred or otherwise disposed of or dealt with Hazardous
Materials (hereinafter defined) on, to or from real property owned, leased
or otherwise utilized by the Company or any of its subsidiaries or in which
the Company or any of its subsidiaries has any ownership interest,
including without limitation any subsurface soils and ground water (the
"Premises"), except for such cases as (u) are not required to be disclosed
in the Registration Statement and (v) would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise) or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, (B) to the best
knowledge and information of the Company, no seepage, leak, escape, xxxxx,
discharge, injection, release, emission, spill, pumping, pouring, emptying
or dumping of Hazardous Materials from or to the Premises has occurred,
except for such cases as
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(w) are not required to be disclosed in the Registration Statement and (x)
would not, individually or in the aggregate, have a material adverse effect
on the condition (financial or otherwise) or the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, (C) neither the Company nor any of its subsidiaries has
received notice of any claim, or has 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 Environmental Statute, except for such
claims as (y) are not required to be disclosed in the Registration
Statement and (z) would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise) or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, and (D) to the best of Company's
knowledge and information, no part of the Premises is included or proposed
for inclusion on the National Priorities List issued pursuant to CERCLA
(hereinafter defined) by the United States Environmental Protection Agency
(the "EPA") or on the inventory of other potential "problem" sites issued
by the EPA and has not otherwise been identified by the EPA as a potential
CERCLA site or included or proposed for inclusion on any list or inventory
issued pursuant to any other Environmental Statute or issued by any other
Governmental Authority (hereinafter defined). As used herein "Hazardous
Material" shall include without limitation, any flammable explosives,
radioactive materials, hazardous materials, hazardous wastes, hazardous or
toxic substances, or related materials, asbestos or any material containing
asbestos, or any other substance or 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, ET SEQ.)
("CERCLA"), the Hazardous Materials Transportation Act, as amended (49
U.S.C. Sections 1801, ET SEQ.), the Resource Conservation and Recovery Act,
as amended (42 U.S.C. Sections 6901 ET SEQ.) and in the regulations adopted
and publications 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
Premises (a "Governmental Authority").
(xxiv) The issuance, sale and public offering of the Securities to be
issued and sold by the Company have been approved by all of the "Continuing
Directors" and do not constitute a "Business Combination" (as such terms
are defined in Article IX of the Company's charter).
(xxv) Attached hereto as Schedule C is a true and complete list of all
subsidiaries of the Company and all partnerships in which the Company holds
an interest. The Company has no other subsidiaries other than those listed
in Schedule C, and it holds no other interests in any partnerships other
than those listed in Schedule C.
(xxvi) To the extent applicable, the Company has complied and will
comply with the provisions of that certain Florida act relating to
disclosure of doing business with Cuba, codified as Section 517.075 of the
Florida statutes, and the rules and regulations thereunder (collectively,
the "Cuba Act") or is exempt therefrom.
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(xxvii) The Indenture has been duly authorized by the Company and, at
the Closing Date, will have been duly executed and delivered by the Company
and will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditor's rights generally or by general equitable principles.
(xxviii) The Securities have been duly authorized and, at the Closing
Date, will have been duly executed by the Company and, when authenticated
in the manner provided for in the Indenture and delivered against payment
of the purchase price therefor specified in this Agreement, will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally or
by general equitable principles, and will be entitled to the benefits of
the Indenture.
(xxix) The Securities and the Indenture will conform in all material
respects to the respective statements relating thereto contained in the
Prospectus and will be in substantially the respective forms filed or
incorporated by reference, as the case may be, as exhibits to the
Registration Statement.
(xxx) The Securities rank and will rank on a parity with all unsecured
indebtedness of the Company (other than subordinated indebtedness of the
Company) that is outstanding on the date hereof or that may be incurred
hereafter, and senior to all subordinated indebtedness of the Company that
is outstanding on the date hereof or that may be incurred hereafter.
(xxxi) The Company has notified the Lender (as defined in the
Prudential Agreements) of the terms and conditions of the Securities and
the offering made hereby and has certified to the Lender in writing that
the incurrence of the debt to be evidenced by the Securities does not
violate any Restrictions (as defined in the Prudential Agreements), and has
otherwise complied with all conditions and obligations under the Prudential
Agreements with respect to the issuance of the Securities and the
incurrence of the indebtedness evidenced thereby.
(b) Any certificate signed by any officer of the Company and delivered to
the Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
3. PURCHASE BY AND SALE AND DELIVERY TO, THE UNDERWRITERS; CLOSING DATE.
On the basis of the representations, warranties, covenants and agreements herein
contained, and subject to the terms and conditions herein set forth, the Company
hereby agrees to sell to the Underwriters and the Underwriters agree, severally
and not jointly, to purchase from the Company at the price set forth in
Schedule B hereto, the aggregate principal amount of Securities set forth
opposite their respective names in Schedule A, subject to adjustment in
accordance with Section 10 hereof.
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The Company will deliver the Securities to the Representatives, for the
respective accounts of the several Underwriters (in the form of definitive
certificates, issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company given not later
than one full business day prior to the Closing Date or, if no such direction is
received, in the name of Cede & Co.), against payment of the purchase price
therefor by wire transfer of immediately available funds, at the offices of
Xxxxx & Xxxx LLP, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000. The
time and date of delivery and closing shall be at 10:00 A.M., New York time, on
the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any
given day), business day after the date hereof; PROVIDED, however, that such
date and time may be accelerated or extended by agreement between the Company
and the Representatives or postponed pursuant to the provisions of Section 10
hereof. The time and date of such payment and delivery are herein referred to
as the "Closing Date". The Company shall make the certificates for the
Securities available to the Representatives for examination on behalf of the
Underwriters not later than 10:00 A.M., New York time, on the business day
preceding the Closing Date in New York, New York.
It is understood that Xxxxxx Xxxxxxx & Co. Incorporated, BancAmerica
Securities, Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or Salomon
Brothers Inc, individually may (but shall not be obligated to) make payment to
the Company on behalf of any Underwriter or Underwriters for the Securities to
be purchased by such Underwriter or Underwriters. Any such payment by Xxxxxx
Xxxxxxx & Co. Incorporated, BancAmerica Securities, Inc., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated or Salomon Brothers Inc shall not relieve such
Underwriter or Underwriters from any of its or their other obligations
hereunder.
After the Registration Statement becomes effective, the several
Underwriters propose to make an initial public offering of the Securities at the
initial public offering price set forth in Schedule B hereto.
4. COVENANTS AND AGREEMENTS OF THE COMPANY. The Company covenants and
agrees with the several Underwriters that:
(a) The Company will advise the Representatives promptly of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the institution of any proceedings for that
purpose, and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible the lifting thereof, if issued. The
Company will advise the Representatives promptly of any request by the
Commission for any amendment of or supplement to the Registration Statement or
the Prospectus or for additional information, and will not at any time file any
amendment to the Registration Statement or supplement to the Prospectus which
shall not previously have been submitted to the Representatives a reasonable
time prior to the proposed filing or use thereof or to which the Representatives
shall reasonably object in writing or which is not in compliance with the 1933
Act and the Rules and Regulations. The Company will advise the Representatives
promptly when the Prospectus has been filed pursuant to Rule 424(b) of the Rules
and Regulations.
12
(b) The Company will prepare and file with the Commission, promptly upon
the request of the Representatives, any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may be necessary to enable the several Underwriters to continue
the distribution of the Securities and, in the case of any such amendments to
the Registration Statement, will use its best efforts to cause the same to
become effective as promptly as possible. The Company will promptly file all
reports and any definitive proxy or information statements required to be filed
with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act for so
long as the delivery of a prospectus is required in connection with the offering
or sale of the Securities.
(c) If at any time when a prospectus relating to the Securities is
required to be delivered under the 1933 Act any event occurs as a result of
which the Prospectus would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or if it
is necessary at any time to amend the Prospectus to comply with the 1933 Act or
the Rules and Regulations, the Company will promptly notify the Representatives
thereof and will prepare an amended or supplemented Prospectus (in form and
substance reasonably satisfactory to counsel to the Underwriters) or, with the
consent of counsel to the Underwriters, make an appropriate filing pursuant to
Section 13 or 14 of the 1934 Act which will correct such statement or omission;
and, in case any Underwriter is required to deliver a prospectus relating to the
Securities nine months or more after the date of this Agreement, the Company
upon the request of the Representatives and at the expense of such Underwriters
will prepare promptly such prospectus or prospectuses as may be necessary to
permit compliance with the requirements of Section 10(a)(3) of the 1933 Act.
(d) The Company will deliver to the Representatives, at or before the
Closing Date, signed copies of the Registration Statement and all amendments
thereto (including all financial statements and exhibits thereto and all
documents incorporated or deemed to be incorporated by reference therein) and
will deliver to the Representatives such number of copies of the Registration
Statement, including such financial statements and all documents incorporated or
deemed to be incorporated by reference therein but without exhibits, and of all
amendments thereto, as the Representatives may reasonably request. The Company
will deliver or mail to or upon the order of the Representatives on the date of
the initial public offering, and thereafter from time to time during the period
when delivery of a prospectus relating to the Securities is required under the
1933 Act, as many copies of the Prospectus, in final form or as thereafter
amended or supplemented, as the Representatives may reasonably request;
PROVIDED, HOWEVER, that the expense of the preparation and delivery of any
prospectus required for use nine months or more after the date of this
Agreement, shall be borne by the Underwriters required to deliver such
prospectus. The copies of the Registration Statement and each amendment thereto
and the copies of any preliminary prospectus and any preliminary prospectus
supplement and the Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
13
(e) The Company will make generally available to its security holders as
soon as practicable, but in any event not later than 60 days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the 0000 Xxx) which will be in reasonable detail
(but which need not be audited) and which will comply with Section 11(a) of the
1933 Act, covering a period of at least twelve months beginning not later than
the first day of the Company's fiscal quarter next following the "effective
date" (as defined in said Rule 158) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the
Securities to be qualified for sale under the securities laws and real estate
syndication laws of such states and other jurisdictions as the Representatives
may reasonably designate and at the request of the Representatives will make
such applications and furnish such information as may reasonably be required of
it as the issuer of the Securities for that purpose; PROVIDED, HOWEVER, that the
Company shall not be required to qualify to do business or to file a general
consent to service of process in any such jurisdiction. The Company will, from
time to time, prepare and file such statements and reports as are or may be
required of it as the issuer of the Securities to continue such qualifications
in effect for so long a period as the Representatives may reasonably request for
the distribution of the Securities.
(g) The Company will furnish to its shareholders annual reports containing
financial statements certified by independent public accountants and with
quarterly summary financial information, in reasonable detail which may be
unaudited. During the period of five years from the date hereof, the Company
will deliver to the Representatives and, upon request, to each of the other
Underwriters, copies of each annual report of the Company and each other report
furnished by the Company to its shareholders; and will deliver to the
Representatives, as soon as they are available, copies of any other reports
(financial or other) which the Company shall publish or otherwise make available
to any of its security holders as such and, as soon as they are available,
copies of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange.
(h) The Company will use the net proceeds received by it from the sale of
the Securities sold by it in the manner specified in the Prospectus Supplement
under "Use of Proceeds".
(i) Immediately following the execution of this Agreement, the Company
will prepare a prospectus supplement, dated the date hereof (the "Prospectus
Supplement"), containing the public offering price of the Securities, the
underwriting discounts and commissions, the plan of distribution of the
Securities and such other information as may be required by the 1933 Act or the
Rules and Regulations or as the Representatives and the Company deem
appropriate, and will file or transmit for filing with the Commission in
accordance with Rule 424(b) of the Rules and Regulations copies of the
Prospectus (including such Prospectus Supplement).
(j) During the period beginning on the date hereof and continuing through
and including the Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or any of its
subsidiaries which are substantially similar to the
14
Securities (other than the Securities) or any securities convertible into or
exchangeable or exercisable for any debt securities of the Company or any of its
subsidiaries which are substantially similar to the Securities or any rights,
warrants or options to purchase any debt securities of the Company or any of its
subsidiaries which are substantially similar to the Securities, without your
prior written consent.
(k) The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the Code.
(l) In accordance with the provisions of the Cuba Act, if applicable, and
without limitation to the provisions of Section 6 hereof, the Company will
indemnify each Underwriter against any and all losses, claims, damages,
liabilities and expenses (including attorneys' fees) arising out of or based
upon any violation by the Company of the Cuba Act.
5. PAYMENT OF EXPENSES. The Company will pay (directly or by
reimbursement) all expenses incident to the performance of its obligations under
this Agreement, including but not limited to all expenses and taxes incident to
delivery of the Securities to the Representatives, all expenses incident to the
registration of the Securities under the 1933 Act and the printing of copies of
the Registration Statement, any preliminary prospectus, any preliminary
prospectus supplement, the Prospectus, any amendments or supplements thereto,
all expenses incident to the preparation, word processing, printing and delivery
of all "Blue Sky" memoranda, this Agreement, the Securities and the Indenture
and furnishing the same to the Underwriters and dealers except as otherwise
provided in Sections 4(c) and 4(d), the fees and disbursements of the Company's
counsel and accountants, all filing and printing fees and expenses (including
reasonable legal fees and disbursements of counsel for the Underwriters)
incurred in connection with qualification or exemption of the Securities for
sale under securities laws and real estate syndication laws of such
jurisdictions as the Representatives may designate, all fees and expenses paid
or incurred in connection with any filings made with the National Association of
Securities Dealers, Inc., the fees and expenses of the Trustee, including, if
required, the fees and disbursements of counsel for the Trustee in connection
with the Indenture and the Securities, any fees payable in connection with the
rating of the Securities, the fees and expenses of any depositary in connection
with holding the Securities in book-entry form, the costs of preparing
certificates evidencing the Securities, and all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the 1933 Act or Section
20 of the 1934 Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus, any preliminary prospectus supplement or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be
15
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein; PROVIDED, HOWEVER,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities, or any person controlling such Underwriter, if a copy of the
Prospectus (excluding documents incorporated by reference therein) was not sent
or given by or on behalf of such Underwriter to such person, if required by law
so to have been delivered, at or prior to the written confirmation of the sale
of the Securities to such person, and if the Prospectus (excluding documents
incorporated by reference therein) would have cured the defect giving rise to
such losses, claims, damages or liabilities.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, each of the Company's directors, each of the
Company's officers who signed the Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus, any preliminary prospectus
supplement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but only
with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, any preliminary prospectus
supplement, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to paragraph (a) or (b) of this Section 6, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses
16
of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (i) the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
Underwriters and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act and
(ii) the fees and expenses of more than one separate firm (in addition to any
local counsel) for the Company, its directors, its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of either such Section. In the case of any such separate firm for
the Underwriters and such control persons of any Underwriters, such firm shall
be designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated. In the case of
any such separate firm for the Company, and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the Company.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b)
of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Securities shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the
Securities (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by
17
the Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price (as defined in Schedule
B hereto) (excluding accrued interest) of the Securities. The relative fault of
the Company on the one hand and the Underwriters on the other hand 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 by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this Section 6
are several in proportion to the respective aggregate principal amount of
Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by PRO RATA
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) of this Section 6. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The remedies provided for in this Section 6
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
6, and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
the Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Securities.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective obligations
of the several Underwriters hereunder shall be subject to the accuracy, at and
(except as otherwise stated herein) as of the date of this Agreement and the
Closing Date, of the representations and warranties made herein by the Company
and of the statements of the Company's officers or directors in any certificates
furnished pursuant to the provisions hereof, to compliance at and as of the
Closing Date by the Company with the covenants and agreements herein contained
and other provisions hereof to be satisfied at or prior to the Closing Date and
to the following additional conditions:
18
(a) The Registration Statement shall be effective and, at the Closing
Date (i) no stop order suspending the effectiveness thereof shall have been
issued and no proceedings for that purpose shall have been initiated or, to
the knowledge of the Company or the Representatives, threatened by the
Commission, and any request for additional information on the part of the
Commission (to be included in the Registration Statement or the Prospectus
or otherwise) shall have been complied with to the reasonable satisfaction
of the Representatives, and (ii) there shall not have come to the attention
of the Representatives any facts that would cause them to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of
the Securities, contained any untrue statement of a material fact or
omitted 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. If the Company has elected to rely upon Rule 430A of
the Rules and Regulations, the price of the Securities and any price
related information previously omitted from the Registration Statement
pursuant to Rule 430A shall have been transmitted to the Commission for
filing pursuant to Rule 424(b) of the Rules and Regulations within the
prescribed time period, and before the Closing Date the Company shall have
provided evidence satisfactory to the Representatives of such timely
filing, or a post-effective amendment providing such information shall have
been promptly filed and declared effective in accordance with the
requirements of Rule 430A of the Rules and Regulations.
(b) At the date of this Agreement, the Representatives shall have
received from Ernst & Young LLP a letter, dated the date of this Agreement,
in form and substance previously approved by the Representatives, together
with signed or reproduced copies of such letter for each of the
Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in the
Registration Statement and the Prospectus (including, without limitation,
as to any pro forma financial statements and as to all historical financial
statements of the Company, PPA, RHR and FLA).
(c) The Representatives shall have received from Ernst & Young LLP a
letter dated the Closing Date to the effect that they reaffirm the
statements made in the letter furnished pursuant to Section 7(b) above,
except that the specified date referred to therein shall be a date not more
than three business days prior to the Closing Date.
(d) The Representatives shall have received from Xxxxxxx Xxxxx &
Xxxxxx LLP, counsel for the Company, a favorable opinion dated the Closing
Date, in form and substance satisfactory to the Representatives, to the
effect that:
(i) To the best of such counsel's knowledge and information, the
Company and its subsidiaries are operating in compliance with all
material franchises, grants, authorizations, licenses, permits,
easements, consents, certificates and orders required for the conduct
of their respective businesses, all of which are valid and in full
force and effect.
19
(ii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in the State of Arizona, the
State of California, the State of Washington, the State of Oregon and
the State of Nevada; the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, except where the
failure to be so qualified or in good standing would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise.
(iii) Each subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus
and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to be so qualified
or in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company and its subsidiaries considered
as one enterprise; all of the issued and outstanding capital stock of
each subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and, to the best knowledge of such counsel, is
and, at all times since the date on which such subsidiary was
organized, has been owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or claim;
(iv) The authorized, issued and outstanding shares of capital
stock of the Company are as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any, of Common
Stock pursuant to employee benefit, employee and director stock option
and dividend reinvestment plans referred to in the Prospectus);
(v) The execution, delivery and performance of this Agreement,
the Indenture and the Securities, the consummation of the transactions
herein and therein contemplated (including, without limitation, the
incurrence of the indebtedness evidenced by the Securities), and
compliance by the Company with its obligations hereunder and
thereunder, will not result in a breach or violation of any of the
terms or provisions of or constitute a default under (A) any Subject
Agreement, (B) any other material contract, indenture, mortgage, deed
of trust, note, loan agreement or other agreement or instrument known
to such counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or
to which any of their respective properties or assets are subject, (C)
the Company's charter or by-laws, or (D) to the best of such counsel's
knowledge and information, any law, order, rule or regulation of any
court or governmental agency or body having
20
jurisdiction over the Company or any of its subsidiaries or any of
their respective properties (provided that such counsel need express
no opinion as to state securities or real estate syndication laws).
(vi) The Registration Statement is effective under the 1933 Act
and, to the best of such counsel's knowledge and information, no stop
order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(vii) At the time the Registration Statement became effective and
at the date of this Agreement, the Registration Statement (other than
the financial statements and supporting schedules and other financial
and statistical data included or incorporated by reference therein or
omitted therefrom and any trustee's Statement of Eligibility on Form
T-1 (a "Form T-1"), as to which no opinion need be rendered) complied
as to form in all material respects with the requirements of the 1933
Act and the Rules and Regulations; and nothing has come to such
counsel's attention that would lead them to believe that the
Registration Statement, at the time it became effective, contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the date of the
Prospectus Supplement or at the date of such opinion, included or
includes an 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 (except that no statement need be made as to financial
statements or supporting schedules or other financial or statistical
data included or incorporated by reference in or omitted from the
Registration Statement or the Prospectus or any Form T-1).
(viii) The documents incorporated or deemed to be incorporated by
reference in the Prospectus (other than the financial statements and
supporting schedules and other financial and statistical data included
or incorporated by reference therein or omitted therefrom, as to which
no opinion need be rendered), as of the dates they were filed with the
Commission (or, if such incorporated documents were amended, when such
amendment was filed or became effective), complied as to form in all
material respects with the requirements of the 1934 Act and the
published rules and regulations thereunder.
(ix) No filing with, or consent, approval, authorization,
license, registration, qualification, decree or order of, any court or
governmental authority or agency is required in connection with the
execution, delivery or performance of this Agreement, the Indenture or
the Securities by the Company, or in connection with the issuance or
sale of the Securities to be issued and sold by the Company to the
Underwriters, except such as has been obtained under the 1933 Act, the
Rules and Regulations, the 1939 Act or the
21
1939 Act Regulations or such as may be required under state securities
laws or real estate syndication laws (provided that such counsel need
express no opinion as to filings with, or consents, approvals,
authorizations, licenses, registrations, qualifications, decrees or
orders of, any foreign court or governmental authority or agency).
(x) The Company is not required to be registered under the
Investment Company Act of 1940, as amended.
(xi) The Company is eligible to use a Form S-3 registration
statement under the 1933 Act and is also eligible to use a Form S-3
registration statement pursuant to the standards for that Form as in
effect immediately prior to October 21, 1992.
(xii) The Company has all legal right, power and authority
necessary to qualify as a "real estate investment trust" under the
Code; the Company was reorganized in Delaware in 1987; the Company has
elected to be treated as a "real estate investment trust" since its
organization; the Company has qualified as a "real estate investment
trust" for its fiscal years ended July 31, 1994 and July 31, 1995, its
short taxable year ended December 31, 1995 and its taxable year ended
December 31, 1996 (the years, to the best knowledge of counsel, that
are still subject to audit by the Internal Revenue Service); the
Company is organized and operates in a manner that will enable it to
qualify to be taxed as a "real estate investment trust" under the Code
for its taxable year ending December 31, 1997 and thereafter provided
the Company continues to meet (through actual annual operating
results, distribution levels and diversity of stock ownership) the
various qualification tests imposed by the Code necessary for the
Company to qualify as a "real estate investment trust". As used in
this paragraph (xii) and paragraph (xiii) below, the term "Company"
includes BankAmerica Realty Investors, a California business trust and
predecessor to BRE Properties, a Delaware corporation.
(xiii) Each subsidiary of the Company is a "qualified REIT
subsidiary" within the meaning of the Code.
(xiv) The information in the Prospectus under the captions
"Description of Notes", "Description of Debt Securities" and "Federal
Income Tax Considerations" and the information in the Company's 1996
Annual Report on Form 10-K under the caption "Legal Proceedings", to
the extent that it constitutes matters of law or legal conclusions, or
summaries of provisions of the Company's charter or by-laws, the
Indenture, the Securities or of other documents, agreements or
instruments, has been reviewed by such counsel and is correct in all
material respects; and the opinion of such counsel under the caption
"Federal Income Tax Considerations" is confirmed.
22
(xv) There are no legal or governmental proceedings pending or,
to the best of such counsel's knowledge and information, threatened
against the Company or any of its subsidiaries which are required to
be disclosed in the Registration Statement, other than those disclosed
therein, and all pending legal or governmental proceedings to which
the Company or any of its subsidiaries is a party or of which any of
the property of the Company or any of its subsidiaries is the subject
which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material.
(xvi) To the best of such counsel's knowledge and information,
there are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in
the Registration Statement or in the documents incorporated by
reference therein or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by reference
as exhibits thereto, the descriptions thereof or references thereto
are correct in all material respects, and, to the best of such
counsel's knowledge and information, no default exists in the due
performance or observance of any obligation, agreement, covenant or
condition contained in any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument so described, referred
to or filed.
(xvii) The issuance, sale and public offering of the Securities to
be issued and sold by the Company have been approved by all of the
"Continuing Directors" and do not constitute a "Business Combination"
(as such terms are defined in Article VIII of the Company's charter).
(xviii) The Indenture has been qualified under the 1939 Act.
(xix) The Company has notified the Lender of the terms and
conditions of the Securities and the offering made hereby and
certified to the Lender in writing that the incurrence of the debt to
be evidenced by the Securities does not violate any Restrictions, and
has otherwise complied with all conditions and obligations under the
Prudential Agreements with respect to the issuance of the Securities
and the incurrence of the indebtedness evidenced thereby.
Such opinion shall be rendered to the Underwriters at the request of
the Company and shall so state therein. In giving their opinion, Xxxxxxx
Xxxxx & Xxxxxx LLP (A) shall state that insofar as such opinion concerns
the Indenture, the Securities or any other instrument, agreement or other
document which by its terms is not governed by the laws of the State of
California or the General Corporation Law of the State of Delaware, such
counsel has assumed that the Indenture, the Securities and such other
instruments, agreements and other documents are governed by the laws of the
State of California and (B) may rely (i) as to the qualification of the
Company and its subsidiaries to do business in any state or jurisdiction,
upon certificates of appropriate government officials and (ii) as to
matters of fact, upon certificates and
23
written statements of officers of and accountants for the Company and (C)
shall state that such counsel has relied, as to matters arising under the
laws of the State of Maryland and the State of New York, upon the opinion
of Piper & Marbury L.L.P. delivered pursuant to Section 7(e) hereof.
(e) The Representatives have received from Piper & Marbury L.L.P.,
Maryland and New York counsel for the Company, a favorable opinion dated
the Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Maryland.
(ii) The Company has the corporate power and authority to own,
lease and operate its properties and conduct its business as described
in the Registration Statement and the Prospectus.
(iii) The authorized, issued and outstanding shares of capital
stock of the Company are as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any, of Common
Stock pursuant to employee benefit, employee and director stock option
and dividend reinvestment plans referred to in the Prospectus); and
the shares of issued and outstanding Common Stock have been duly
authorized and validly issued, are fully-paid and non-assessable, and
are not subject to any preemptive or other similar rights arising by
operation of law, under the charter or by-laws of the Company, under
any resolution adopted by the board of directors of the Company or any
committee thereof or, to the best of such counsel's knowledge,
otherwise.
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization,
execution and delivery thereof by the Trustee) constitutes a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or
by general equitable principles.
(v) The Securities have been duly authorized and executed by the
Company and, when duly authenticated by the Trustee in the manner
provided in the Indenture (assuming the due authorization, execution
and delivery of the Indenture by the Trustee) and delivered against
payment of the purchase price therefor pursuant to this Agreement,
will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws
24
relating to or affecting creditor's rights generally or by general
equitable principles, and will be entitled to the benefits of the
Indenture.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company; and the execution, delivery and performance
of this Agreement, the Indenture and the Securities, the consummation
of the transactions herein and therein contemplated, and compliance by
the Company with its obligations hereunder and thereunder, will not
result in a breach or violation of any of the terms or provisions of
or constitute a default under the Company's charter or by-laws or, to
the best of such counsel's knowledge, any law, order, rule or
regulation of any Maryland court or Maryland governmental agency or
body having jurisdiction over the Company or any of its subsidiaries
or any of their respective properties (provided that such counsel need
express no opinion as to state securities or real estate syndication
laws).
(vii) No filing with, or consent, approval, authorization or order
of, any Maryland court or Maryland governmental authority or agency is
required in connection with the execution, delivery or performance of
this Agreement, the Indenture or the Securities by the Company, or in
connection with the issuance or sale of the Securities to the
Underwriters, except such as may be required under Maryland securities
laws or real estate syndication laws.
(viii) The information in the Prospectus under the captions
"Description of Notes", "Description of Debt Securities" and "Risk
Factors--Provisions Which Could Limit a Change in Control or Deter a
Takeover", and the information in the Company's 1996 Annual Report on
Form 10-K under the caption "Risk Factors--Provisions Which Could
Limit a Change in Control or Deter a Takeover", to the extent that it
constitutes matters of Maryland or New York law or legal conclusions
under Maryland or New York law, or summaries of provisions of the
Company's charter or by-laws, the Indenture, the Securities or of any
other documents specifically referred to therein (excluding two loan
agreements specifically referred to under the caption "Description of
Notes" in the Prospectus) is correct in all material respects.
(ix) The issuance, sale and public offering of the Securities
have been approved by the "Continuing Directors" and do not constitute
a "Business Combination" (as such terms are defined in Article VIII of
the Company's charter).
Such opinion shall be rendered to the Underwriters at the request of
the Company and shall so state therein. In giving their opinion, Piper &
Marbury L.L.P. (i) may rely as to matters of fact, to the extent not
independently verified by such counsel, upon certificates and written
statements of officers and accountants for the Company, (ii) shall state
that such opinion is limited to matters arising under the laws of the State
of Maryland, the State of New York and the General Corporation Law of the
State of Delaware and that, insofar as such opinion concerns any
instrument,
25
agreement or other document which by its terms is not governed by the laws
of the State of Maryland, the State of New York or the General Corporation
Law of the State of Delaware, such counsel has assumed that such
instruments, agreements and other documents are governed by the laws of the
State of Maryland and (iii) shall expressly state that Xxxxxxx Xxxxx &
Xxxxxx LLP and Xxxxx & Wood LLP, in rendering their opinions pursuant to
Sections 7(d) and 7(f) of this Agreement, may rely on such opinion as to
all matters arising under the laws of the State of Maryland and the State
of New York as if such opinion were addressed to them.
(f) The Representatives shall have received from Xxxxx & Xxxx LLP,
counsel for the Underwriters, their favorable opinion or opinions dated the
Closing Date with respect to the organization of the Company, the validity
of the Securities to be sold by the Company, this Agreement, the Indenture,
the Registration Statement, the Prospectus and such other related matters
as the Representatives may require, and the Company shall have furnished to
such counsel such documents as they may request for the purpose of enabling
them to pass upon such matters.
(g) At the date of this Agreement and at the Closing Date, the
Securities shall be rated at least Baa2 by Moody's Investor's Service Inc.,
BBB by Standard & Poor's Corporation, and the Company shall have delivered
to the Representatives a letter, dated the Closing Date, from each such
rating agency, or other evidence satisfactory to the Representatives,
confirming that the Securities have such ratings.
(h) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date (1) there shall not have occurred any
downgrading, nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded the
Securities on any of the Company's other securities by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the 1933 Act; and (2) there shall not have
occurred any change, or any development involving a prospective change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in your judgment,
is material and adverse and that makes it, in your judgment, impracticable
to market the Securities on the terms and in the manner contemplated in the
Prospectus. At the Closing Date (i) the Registration Statement and the
Prospectus shall contain all statements which are required to be stated
therein in accordance with the 1933 Act and the Rules and Regulations and
in all material respects shall conform to the requirements of the 1933 Act
and the Rules and Regulations, and neither the Registration Statement nor
the Prospectus shall contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and no action, suit or
proceeding at law or in equity shall be pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries which
would be required to be set forth in the Registration Statement or the
Prospectus other than as set forth
26
therein, (ii) no proceeding shall be pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries before
or by any Federal, state or other court, commission, board or
administrative agency wherein an unfavorable decision, ruling or finding
would materially and adversely affect the business, property, financial
condition or income of the Company and its subsidiaries considered as one
enterprise other than as set forth in the Registration Statement and the
Prospectus, (iii) neither the Company nor any of its subsidiaries shall be
in default in the performance or observance of any contract to which it is
a party, except such defaults that would not have a material adverse effect
on the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise or the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, (iv) no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act and no
proceeding therefor shall have been instituted or threatened by the
Commission and (v) the Representatives shall have received, at the Closing
Date, a certificate of the President and the Chief Financial Officer of the
Company, dated as of the Closing Date, evidencing compliance with the
appropriate provisions of this subsection (h).
(i) The Representatives shall have received a certificate, dated
the Closing Date, of the President and the Chief Financial Officer of the
Company to the effect that the representations and warranties of the
Company contained in Section 2(a) are true and correct with the same force
and effect as though expressly made at and as of the Closing Date.
(j) The Company shall have furnished to the Representatives such
additional certificates as the Representatives may have reasonably
requested as to the accuracy, at and as of the Closing Date, of the
representations and warranties made herein by the Company, as to compliance
at and as of the Closing Date by the Company with its covenants and
agreements herein contained and other provisions hereof to be satisfied at
or prior to the Closing Date and as to other conditions to the obligations
of the Underwriters hereunder.
If any of the conditions hereinabove provided for in this Section shall not
have been satisfied when and as required by this Agreement, this Agreement may
be terminated by the Representatives by notifying the Company of such
termination in writing or by telegram or telecopy at or prior to the Closing
Date.
8. TERMINATION. This Agreement may be terminated by the Representatives
by notice to the Company at or prior to the Closing Date if (a) after the
execution and delivery of this Agreement and prior to the Closing Date
(i) trading generally shall have been suspended or materially limited on or by,
as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activates in New York or California shall have
been declared by either Federal, New
27
York State or California State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and (b) in
the case of any of the events specified in clauses (a)(i) through (iv), such
event, singly or together with any other such event, makes it, in your judgment,
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
9. REIMBURSEMENT OF UNDERWRITERS. Notwithstanding any other provisions
hereof, if this Agreement shall be terminated by the Underwriters under Section
7, Section 8 or Section 11, the Company will bear and pay the expenses specified
in Section 5 hereof and, in addition to its obligations pursuant to Section 6
hereof, the Company will reimburse the reasonable out-of-pocket expenses of the
several Underwriters (including reasonable fees and disbursements of counsel for
the Underwriters) incurred in connection with this Agreement and the proposed
purchase and offers of the Securities, and promptly upon demand the Company will
pay such amounts to you, as Representatives of the Underwriters. In addition,
the provisions of Section 6 hereof will survive any termination of this
Agreement.
10. DEFAULT BY UNDERWRITERS. If any Underwriter or Underwriters shall
default in its or their obligations to purchase any of the Securities which it
or they are obligated to purchase under this Agreement on the Closing Date, and
the aggregate principal amount of Securities which such defaulting Underwriter
or Underwriters agreed but failed to purchase does not exceed 10% of the
aggregate principal amount of all of the Securities which the Underwriters are
obligated to purchase at the Closing Date, the other Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the Securities which such defaulting Underwriter or Underwriters agreed
but failed to purchase. If any Underwriter or Underwriters shall so default and
the aggregate principal amount of Securities with respect to which such default
or defaults occur is more than 10% of the aggregate principal amount of all of
the Securities which the Underwriters are obligated to purchase at the Closing
Date and arrangements satisfactory to the Representatives and the Company for
the purchase of such Securities by other persons are not made within 48 hours
after such default, this Agreement shall terminate.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or part of the Securities of a defaulting
Underwriter or Underwriters as provided, in this Section 10, (i) the Company
shall have the right to postpone the Closing Date for a period of not more than
five full business days, in order that the Company may effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus,
or in any other documents or arrangements, and the Company agrees promptly to
file any amendments to the Registration Statement or supplements to the
Prospectus which may thereby be made necessary, and (ii) the respective
principal amounts of Securities to be purchased by the remaining Underwriters or
substituted underwriters shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein contained shall
relieve any defaulting Underwriter of its liability to the Company or the
Underwriters for damages occasioned by its default hereunder. Any termination
of this Agreement pursuant to this Section 10 shall be without liability on the
part of any non-
28
defaulting Underwriter or the Company, except for expenses to be paid or
reimbursed pursuant to Section 5 and except for the provisions of Section 6.
11. DEFAULT BY THE COMPANY. If the Company shall fail at the Closing Date
to sell and deliver the total principal amount of Securities which it is
obligated to sell hereunder, then this Agreement shall terminate without any
liability on the part of any non-defaulting party. No action taken pursuant to
this Section shall relieve the Company from liability in respect of such
default.
12. NOTICES. All communications hereunder shall be in writing and, if
sent to the Underwriters shall be mailed, delivered or telecopied and confirmed
to you, as their Representatives c/o Morgan Xxxxxxx & Co. Incorporated at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, except that notices given to an Underwriter
pursuant to Section 6 hereof shall be sent to such Underwriter at the address
furnished by the Representatives or, if sent to the Company shall be mailed,
delivered or telecopied and confirmed at BRE Properties, Inc., One Xxxxxxxxxx
Street, Telesis Tower, Suite 2500, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, attention:
XxXxx X. Xxxxxxx.
13. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the several Underwriters, the Company and their respective
successors and legal representatives. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person other than the
persons mentioned in the preceding sentence 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 the representations, warranties,
covenants, agreements and indemnities of the Company contained in this Agreement
shall also be for the benefit of the person or persons, if any, who control any
Underwriter or Underwriters within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, and the indemnities of the several Underwriters
shall also be for the benefit of each director of the Company, each of the
Company's officers who has signed the Registration Statement and the person or
persons, if any, who control the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act.
14. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in said state. Unless otherwise expressly stated, specified
times of day refer to New York City time.
29
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding agreement between us.
Very truly yours,
BRE PROPERTIES, INC.
By: /s/ Xxxxx X. XxXxxxxx
------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: President and Chief
Executive Officer
Accepted and delivered, as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
BANCAMERICA SECURITIES, INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
SALOMON BROTHERS INC
Acting on their own behalf and as Representatives of the several
Underwriters referred to in the foregoing Agreement.
BY: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx Xxxxx
------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
30
SCHEDULE A
Aggregate
Principal
Amount of
Securities to be
Purchased
----------------
Xxxxxx Xxxxxxx & Co. Incorporated . . . . . . . . . . . . . 12,500,000
BancAmerica Securities, Inc. . . . . . . . . . . . . . . . 12,500,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated . . . . . . . . . . . . . . . . . . . . . 12,500,000
Salomon Brothers Inc . . . . . . . . . . . . . . . . . . . 12,500,000
-----------
Total . . . . . . . . . . . . . . . . . . . . . . . . $50,000,000
-----------
-----------
Sch. A-1
SCHEDULE B
1. The initial public offering price for the Securities shall be 99.786%
of the principal amount thereof (the "Public Offering Price"), plus accrued
interest from June 15, 1997.
2. The purchase price for the Securities to be purchased by the several
Underwriters shall be 99.086% of the principal amount thereof, plus accrued
interest from June 15, 1997.
Sch. B-1
SCHEDULE C
SUBSIDIARIES OF THE COMPANY:
BRE Camino Seco, Inc., a Delaware corporation
BRE Colonia Del Rio, Inc., a Delaware corporation
BRE Fountain Plaza, Inc., a Delaware corporation
BRE Hacienda Del Rio, Inc., a Delaware corporation
BRE Oracle Village, Inc., a Delaware corporation
BRE Springhill, Inc., a Delaware corporation
PARTNERSHIPS IN WHICH THE COMPANY HOLDS INTERESTS:
Westbar Limited Partnership, an Arizona partnership
Metro Village Limited Partnership, an Arizona partnership
Chateau De Ville Apt. Fund Ltd., a California partnership
Sch. C-1