Regency Realty Corporation
2,415,000 Shares 1
Common Stock
UNDERWRITING AGREEMENT
July 10, 1997
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXX, XXXXX & CO.
XXXXX XXXXXX INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
THE XXXXXXXX-XXXXXXXX COMPANY, INC.
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Regency Realty Corporation, a Florida corporation (the "Company"),
hereby confirms its agreement with the several underwriters named in Schedule 1
hereto (the "Underwriters"), for whom you have been duly authorized to act as
representatives (in such capacities, the "Representatives") as set forth below.
If you are the only Underwriters, all references herein to the Representatives
shall be deemed to be to the Underwriters.
1. Securities. Subject to the terms and conditions herein contained,
the Company proposes to issue and sell to the several Underwriters an aggregate
of 2,415,000 shares (the "Firm Securities") of the Company's Common Stock, par
value $.01 per share (the "Common Stock"). The Company also proposes to issue
and sell to the several Underwriters not more than 362,250 additional shares of
Common Stock if requested by the Representatives as provided in Section 3 of
this Agreement. Any and all shares of Common Stock to be purchased by the
Underwriters pursuant to such option are referred to herein as the "Option
Securities", and the Firm Securities and any Option Securities are collectively
referred to herein as the "Securities."
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with each of the several Underwriters
that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"). A registration
statement on such Form (File No. 333-2546) with respect to the Securities,
including a basic prospectus, has been filed by the Company with the Securities
and Exchange Commission (the "Commission") under the Act, and one or more
amendments to such registration statement may have been so filed. Such
registration statement, as so amended, has been declared by the Commission to be
effective under the Act. Such registration statement, as amended at the date of
this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the
Act and complies in all other material respects with said Rule. The Company will
next file with the Commission either (A) if the Company relies on Rule 434 under
the Act, a Term Sheet (as hereinafter defined) relating to the Securities that
shall identify the Preliminary Prospectus (as hereinafter defined) that it
supplements and, if required to be filed pursuant to Rules 434(c)(2) and 424(b),
an Integrated Prospectus (as hereinafter defined), in either case, containing
such information as is required or permitted by Rule 434, 430A and 424(b) under
the Act or (B) if the Company does not rely on Rule 434 under the Act, pursuant
to Rule 424(b) under the Act a final prospectus supplement to the basic
prospectus included in such registration statement, as so amended, describing
the Securities and the offering thereof, in such form as has been provided to,
or discussed with, and approved by the Underwriter as provided in section 5(a)
of this Agreement. As used in this Agreement, the term "Registration Statement"
means such registration statement, as amended at the time when it was declared
effective, including (i) all financial schedules and exhibits thereto, (ii) all
documents incorporated by reference or deemed to be incorporated by reference
therein and (iii) any information omitted therefrom pursuant to Rule 430A under
the Act and included in the Prospectus (as hereinafter defined) or, if required
to be filed pursuant to Rule 434(c)(2) and 424(b) under the Act, in the
Integrated Prospectus; the term "Basic Prospectus" means the prospectus included
in the Registration Statement as amended by any form of prospectus filed
thereafter pursuant to Rule 424; the term "Preliminary Prospectus" means any
preliminary form of the Prospectus (as hereinafter defined) specifically
relating to the Securities, in the form first filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 under the Act; the term
"Prospectus Supplement" means any prospectus supplement specifically relating to
the Securities, in the form first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act; the term "Prospectus"
means (A) if the Company relies on Rule 434 under the Act, the Term Sheet
relating to the Securities that is first filed pursuant to Rule 424(b)(7) under
the Act, together with the Preliminary Prospectus identified therein that such
Term Sheet supplements; (B) if the Company does not rely on Rule 434 under the
Act, the Preliminary Prospectus; or (C) if the Company does not rely on Rule 434
under the Act and if no Preliminary Prospectus is required to be filed, the
Basic Prospectus, including, in each case, the Prospectus Supplement; "Basic
Prospectus," "Prospectus," "Preliminary Prospectus" and "Prospectus Supplement"
shall include in each case the documents, if any, filed by the Company with the
Commission pursuant to the United States Securities Exchange of 1934, as amended
(the "Exchange Act"), and incorporated by reference therein; the term
"Integrated Prospectus" means a prospectus first filed with the Commission
pursuant to Rules 434(c)(2) and 424(b) under the Act; and the term "Term Sheet"
means any abbreviated term sheet that satisfies the requirements of Rule 434
under the Act. Any reference in this Agreement to an "amendment" or "supplement"
to any Preliminary Prospectus, the Prospectus, or any Integrated Prospectus or
an "amendment" to any registration statement (including the Registration
Statement) shall be deemed to include any document incorporated by reference
therein that is filed with the Commission under the Exchange Act after the date
of such Preliminary Prospectus, Prospectus, Integrated Prospectus or
registration statement, as the case may be. For purposes of the preceding
sentence, any reference to the "effective date" of an amendment to a
registration statement shall, if such amendment is effected by means of the
filing with the Commission under the Exchange Act of a document incorporated by
reference in such registration statement, be deemed to refer to the date on
which such document was so filed with the Commission; any reference herein to
the "date" of a Prospectus that includes a Term Sheet shall mean the date of
such Term Sheet.
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. When any Preliminary
Prospectus and any amendment or supplement thereto was filed with the
Commission, it (i) contained all statements required to be stated therein in
accordance with, and complied in all material respects with the requirements of
the Act, the Exchange Act and the respective rules and regulations of the
Commission thereunder, and (ii) did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. When the Registration Statement or any amendment thereto
was declared effective, it (i) contained all statements required to be stated
therein in accordance with, and complied in all material respects with the
requirements of the Act, the Exchange Act and the respective rules and
regulations of the Commission thereunder and (ii) did not include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein not misleading. When the Prospectus or any Term
Sheet that is a part thereof or any Integrated Prospectus or any amendment or
supplement to the Prospectus is filed with the Commission pursuant to Rule
424(b) (or, if the Prospectus or part thereof or such amendment or supplement is
not required to be so filed, when the Registration Statement or the amendment
thereto containing such amendment or supplement to the Prospectus was or is
declared effective), on the date when the Prospectus is otherwise amended or
supplemented and on the Firm Closing Date and any Option Closing Date (both as
hereinafter defined), each of the Prospectus, and, if required to be filed
pursuant to Rules 434(c)(2) and 424(b) under the Act, the Integrated Prospectus
as amended or supplemented at any such time, (i) contained or will contain all
statements required to be stated therein in accordance with, and complied or
will comply in all material respects with the requirements of the Act, the
Exchange Act and the respective rules and regulations of the Commission
thereunder and (ii) did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The foregoing provisions of this paragraph (b) do not
apply to statements or omissions made in any Preliminary Prospectus or any
amendment or supplement thereto, the Registration Statement or any amendment
thereto, the Prospectus or, if required to be filed pursuant to Rules 434(c)(2)
and 424(b) under the Act, the Integrated Prospectus or any amendment or
supplement thereto, in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein.
(c) If the Company has elected to rely on Rule 462(b), (i) the
Company has filed a Rule 462(b) Registration Statement in compliance with and
that is effective upon filing pursuant to Rule 462(b) and has received
confirmation of its receipt and (ii) the Company has given irrevocable
instructions for transmission of the applicable filing fee in connection with
the filing of the Rule 462(b) Registration Statement, in compliance with Rule
111 promulgated under the Act or the Commission has received payment of such
filing fee.
(d) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Florida. Each of the Subsidiaries of the Company (the "Subsidiaries") has been
duly formed and is validly existing and in good standing under the laws of its
jurisdiction of formation. The Company and the Subsidiaries are duly qualified
to transact business as foreign entities, and are in good standing under the
laws of all other jurisdictions where the ownership or leasing of their
respective properties or the conduct of their respective businesses requires
such qualification, except where the failure to be so qualified does not amount
to a material liability or disability to the Company and the Subsidiaries, taken
as a whole.
(e) None of the Subsidiaries is currently prohibited, directly
or indirectly, from paying any dividends to the Company, from making any other
distribution on such Subsidiary's equity interests, from repaying to the Company
any loans or advances to such Subsidiary from the Company or from transferring
any of such Subsidiary's property or assets to the Company or any other
Subsidiary of the Company, except as described in the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus) or
except for such restrictions which do not materially limit the Company's ability
to make distributions to its shareholders.
(f) The Company and each of the Subsidiaries have full power
(corporate and/or other) to own or lease their respective properties and conduct
their respective businesses as described in the Registration Statement and each
of the Prospectus and any Integrated Prospectus or, if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus; and the Company has full power (corporate and other) to enter into
this Agreement and to carry out all the terms and provisions hereof to be
carried out by it.
(g) The outstanding equity interests of each Subsidiary have
been duly authorized and validly issued, are fully paid and non-assessable and
to the extent shown in Exhibit A hereto are owned by the Company free and clear
of all liens, encumbrances, equities and claims; and no options, warrants or
other rights to purchase, agreements or other obligations to issue or other
rights to convert any obligations into ownership interests in each Subsidiary
are outstanding, except for rights of first refusal and/or buy-sell provisions
in certain partnership or joint venture agreements with third parties through
which the Company owns certain of its properties.
(h) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus and any Integrated Prospectus or,
if the Prospectus and any required Integrated Prospectus are not in existence,
the most recent Preliminary Prospectus. All of the issued shares of capital
stock of the Company have been duly authorized and validly issued and are fully
paid and nonassessable. The Firm Securities and the Option Securities have been
duly authorized and at the Firm Closing Date or the related Option Closing Date
(as the case may be), after payment therefor in accordance herewith, will be
validly issued, fully paid and nonassessable. No holders of outstanding shares
of capital stock of the Company are entitled as such to any preemptive or other
rights to subscribe for any of the Securities, other than Security Capital
Holdings S.A. and Security Capital U.S. Realty pursuant to its Stockholders
Agreement with the Company dated as of July 10, 1997, as amended (the
"Stockholders Agreement"), and no holder of securities of the Company has any
right which has not been fully exercised or waived to require the Company to
register the offer or sale of any securities owned by such holder under the Act
in the public offering contemplated by this Agreement.
(i) The capital stock of the Company conforms to the
description thereof contained in the Registration Statement and each of the
Prospectus and any Integrated Prospectus or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus.
(j) Except as disclosed in the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus), there are not outstanding
(i) securities, partnership interests or obligations of the Company or any
Subsidiary convertible into or exchangeable for any capital stock of the Company
or ownership interest in the Subsidiaries, (ii) warrants, rights or options to
subscribe for or purchase from the Company or any Subsidiary any such capital
stock or ownership interest or any such convertible or exchangeable securities,
partnership interests or obligations, or (iii) obligations of the Company or any
Subsidiary to issue any shares of capital stock or ownership interest, any such
convertible or exchangeable securities, partnership interests or obligations, or
any such warrants, rights or options.
(k) The consolidated financial statements and schedules of the
Company and the Subsidiaries included in the Registration Statement, Prospectus
and any Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus) fairly
present the financial position of the Company and the Subsidiaries and the
results of operations and changes in financial condition as of the dates and
periods therein specified. Such financial statements and schedules have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved (except as otherwise noted
therein). The selected financial data set forth under the caption "Selected
Financial Information" in the Registration Statement and each of the Prospectus
and any Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus) fairly
present, on the basis stated in the Registration Statement and each of the
Prospectus and any Integrated Prospectus (or such Preliminary Prospectus), the
information included therein. The pro forma financial statements and other pro
forma financial information included in the Registration Statement, Prospectus
and any Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus) comply
in all material respects with the applicable requirements of Rule 11-02 of
Regulation S-X of the Commission and the pro forma adjustments have been
properly applied to the historical amounts in the compilation of such statements
and the assumptions used in the preparation thereof are, in the opinion of the
Company, reasonable.
(l) KPMG Peat Marwick LLP, who have certified certain
financial statements of the Company and the Subsidiaries and delivered their
report with respect to the audited consolidated financial statements and
schedules included in the Registration Statement and each of the Prospectus and
any Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus), are
independent public accountants as required by the Act, the Exchange Act and the
related published rules and regulations thereunder.
(m) The execution and delivery of this Agreement have been
duly authorized by the Company and this Agreement has been duly executed and
delivered by the Company and is the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject to the
effect of bankruptcy, insolvency, moratorium, fraudulent conveyance,
reorganization and similar laws relating to creditors' rights generally and to
the application of equitable principles in any proceeding, whether at law or in
equity and except as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws or principles of public policy.
(n) No legal or governmental proceedings are pending to which
the Company or any of the Subsidiaries is a party or to which the property of
the Company or of any of the Subsidiaries is subject that are required to be
described in the Registration Statement or each of the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus), and
are not described therein, and no such proceedings which may be material with
respect to the Company and the Subsidiaries taken as a whole have been
threatened against the Company or any of the Subsidiaries or with respect to any
of their respective properties; and no contract or other document is required to
be described in the Registration Statement or the Prospectus or any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus) or to be filed as an
exhibit to the Registration Statement that is not described therein or filed as
required.
(o) The issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by the
Company with the other provisions of this Agreement and the consummation of the
other transactions herein contemplated do not (i) require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, except such as have been obtained, such as may be required under
state securities or blue sky laws and, such as may be required (and shall be
obtained as provided in this Agreement) under the Act, or (ii) conflict with or
result in a breach or violation of any of the terms and provisions of or
constitute a default under, any indenture, mortgage, deed of trust, lease or
other agreement or instrument to which the Company or any of the Subsidiaries is
a party or by which the Company or any of the Subsidiaries or any of their
respective properties are bound, or the charter documents (or other formation
documents) or by-laws of the Company or any of the Subsidiaries, or any statute
or any judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator applicable to the Company or any of the
Subsidiaries.
(p) Subsequent to the respective dates as of which information
is given in the Registration Statement and each of the Prospectus or any
Integrated Prospectus or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus, neither
the Company nor any of the Subsidiaries has sustained any material loss or
interference with their respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding and there has not
been any material adverse change, or any development involving a prospective
material adverse change, in the condition (financial or otherwise), management,
business prospects, net worth, or results of operations of the Company and the
Subsidiaries considered as a whole, except in each case as described in or
contemplated by the Registration Statement and each of the Prospectus and any
Integrated Prospectus or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus.
(q) The Company has not, directly or indirectly, (i) taken any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) since the filing of the Registration Statement (A) sold, bid
for, purchased, or paid any one any compensation for soliciting purchases of the
Securities or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(r) The Company has not distributed and, prior to the later of
(i) the Firm Closing Date and (ii) the completion of the distribution of the
Securities, will not distribute any offering material in connection with the
offering and sale of the Securities other than the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or other materials, if any permitted by the Act.
(s) Subsequent to the respective dates as of which information
is given in the Registration Statement and each of the Prospectus or any
Integrated Prospectus (or, if the Prospectus or any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus), (i)
none of the Company or any of the Subsidiaries have incurred any material
liability or obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (ii) the Company has not
purchased any of its outstanding capital stock, nor declared, paid or otherwise
made any dividend or distribution of any kind on its capital stock; and (iii)
there has not been any material change in the capital stock, ownership interest,
short-term debt or long-term debt of the Company and the Subsidiaries, except in
each case as described in or contemplated by the Prospectus or any Integrated
Prospectus (or if the Prospectus or any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus).
(t) The Company and each Subsidiary have good and marketable
title in fee simple to all items of real property and marketable title to all
personal property owned by each of them, in each case free and clear of any
security interests, liens, encumbrances, equities, claims and other defects,
except such as do not materially and adversely affect the value of such property
and do not interfere with the use made or proposed to be made of such property
by the Company and each Subsidiary, and any real property and buildings held
under lease by the Company or by any Subsidiary are held under valid, subsisting
and enforceable leases, with such exceptions as are not material and do not
interfere with the use made or proposed to be made of such property and
buildings by the Company or by any Subsidiary, in each case except as described
in or contemplated by the Prospectus or any Integrated Prospectus (or, if the
Prospectus or any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus).
(u) The Company and each Subsidiary are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; and none of the Company or any of the Subsidiaries have any reason to
believe that they will not be able to renew their existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue their business at a cost that would not
materially and adversely affect the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
Subsidiaries taken as a whole, except as described in or contemplated by the
Prospectus or any Integrated Prospectus (or, if the Prospectus or any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus).
(v) The Company and each Subsidiary possess all material
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their respective
businesses, and none of the Company or any of the Subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
material adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and the
Subsidiaries taken as a whole, except as described in or contemplated by the
Prospectus or any Integrated Prospectus (or, if the Prospectus or any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus).
(w) The Company will conduct its operations in a manner that
will not subject it to registration as an investment company under the
Investment Company Act of 1940, as amended, (the "1940 Act") and this
transaction will not cause the Company to become an investment company subject
to registration under such act.
(x) The Company and each Subsidiary have filed all foreign,
federal, state and local tax returns that are required to be filed or have
requested extensions thereof (except in any case in which the failure so to file
would not have a material adverse effect on the Company and the Subsidiaries
taken as a whole) and have paid all taxes required to be paid by them and any
other assessment, fine or penalty levied against them, to the extent that any of
the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as described in or
contemplated by the Registration Statement and each of the Prospectus or any
Integrated Prospectus (or, if the Prospectus or any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus). Such
tax returns are true, correct, and complete in all material respects.
(y) The Company and each Subsidiary maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences; and (v) the Company is complying with the REIT
requirements of the Internal Revenue Code of 1986, as amended.
(z) Except as would not have a material adverse effect or
otherwise require disclosure in the Prospectus or any Integrated Prospectus (or,
if the Prospectus or any required Integrated Prospectus are not in existence,
the most recent Preliminary Prospectus), (i) the Company and the Subsidiaries
are not in violation of any federal, state or local laws and regulations
relating to pollution or protection of human health or the environment or the
use, treatment, storage, disposal, transport or handling, emission, discharge,
release or threatened release of toxic or hazardous substances, materials or
wastes, or petroleum and petroleum products ("Materials of Environmental
Concern") (collectively, "Environmental Laws"), including, without limitation,
noncompliance with or lack of any permits or other environmental authorizations,
and (ii) (A) the Company and the Subsidiaries have not received any
communication from any person or entity alleging any violation of or
noncompliance with any Environmental Laws, and there are no past, present or
reasonably foreseeable circumstances that could reasonably be expected to lead
to any such violation in the future, (B) there is no pending or, to the
Company's knowledge, threatened claim, action, investigation or notice by any
person or entity against the Company or any Subsidiary or against any person or
entity for whose acts or omissions the Company or any Subsidiary are or may
reasonably be expected to be liable, either contractually or by operation of
law, alleging liability for investigatory, cleanup, or governmental response
costs, or natural resources or property damages, or personal injuries,
attorney's fees or penalties relating to any Materials of Environmental Concern
or any violation or potential violation, of any Environmental Law (collectively,
"Environmental Claims"), and (C) there are no actions, activities,
circumstances, conditions, events or incidents that could reasonably be expected
to form the basis of any such Environmental Claim. In the ordinary course of
business, each of the Company and the Subsidiaries (i) conducts a periodic
review of the effect of Environmental Laws on its business, operations and
properties, and the Company and the Subsidiaries have identified and evaluated
associated costs and liabilities, and any capital or operating expenditures,
required for cleanup, closure of properties or compliance with Environmental
Laws or any permit, license or approval, any related constraints on operating
activities, and any potential liabilities to third parties, and (ii) consistent
with industry standards have conducted environmental investigations of and
reviewed information regarding, its business, properties and operations; on the
basis of such reviews, investigations and inquiries, the Company and each
Subsidiary have reasonably concluded that, except as disclosed in the Prospectus
or any Integrated Prospectus, any costs and liabilities associated with such
matters would not have a material adverse effect on the Company or any
Subsidiary or otherwise require disclosure in the Prospectus or any Integrated
Prospectus.
(aa) The Company and each Subsidiary are in compliance in all
material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder ("ERISA"); no "reportable event" (as
defined in ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company or any Subsidiary would have any liability; the
Company has not incurred and does not expect to incur liability under (i) Title
IV of ERISA with respect to termination of, or withdrawal from, any "pension
plan" or (ii) Sections 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the "Code");
and each "pension plan" in which employees or former employees of the Company or
any Subsidiary participate that is intended to be qualified under Section 401(a)
of the Code is so qualified in all material respects and nothing has occurred,
whether through any action or by failure to act, which would cause the loss of
such qualification.
(ab) The Company has been and is organized and operated in
conformity with the requirements for qualification as a real estate investment
trust (a "REIT") under Sections 856 through 860 of the Code and the rules and
regulations thereunder and the Company's proposed method of operation will
enable it to continue to meet the requirements for taxation as a real estate
investment trust under the Code.
(ac) No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which the Company or any of
the Subsidiaries or any of their respective properties is bound or may be
affected in any material adverse respect with regard to property, business or
operations of the Company and the Subsidiaries.
3. Purchase, Sale and Delivery of the Securities.
(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company, at a purchase price of $25.82 per share, the number
of Firm Securities set forth opposite the name of such Underwriter in Schedule 1
hereto. One or more certificates in definitive form for the Firm Securities that
the several Underwriters have agreed to purchase hereunder, and in such
denomination or denominations and registered in such name or names as the
Representatives request upon notice to the Company at least 48 hours prior to
the Firm Closing Date, shall be delivered by or on behalf of the Company to the
Representatives for the respective accounts of the Underwriters, against payment
by or on behalf of the Underwriters of the purchase price therefor by wire
transfer in same-day funds (the "Wired Funds") to the account of the Company.
Such delivery of and payment for the Firm Securities shall be made at the
offices of Pryor, Cashman, Xxxxxxx & Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, at 9:30 A.M., New York time, on July 16, 1997, or at such other place,
time or date as the Representatives and the Company may agree upon or as the
Representatives may determine pursuant to Section 9 hereof, such time and date
of delivery against payment being herein referred to as the "Firm Closing Date".
The Company will make such certificate or certificates for the Firm Securities
available for checking and packaging by the Representatives at the offices of
the Company's transfer agent or registrar or of Prudential Securities
Incorporated at least 24 hours prior to the Firm Closing Date.
(b) For the purpose of covering any over-allotments in
connection with the distribution and sale of the Firm Securities as contemplated
by the Prospectus, the Company hereby grants to the several Underwriters an
option to purchase, severally and not jointly, the Option Securities. The
purchase price to be paid for any Option Securities shall be the same price per
share as the price per share for the Firm Securities set forth above in
paragraph (a) of this Section 3, plus if the purchase and sale of any Option
Securities takes place after the Firm Closing Date and after the Firm Securities
are trading "ex-dividend", an amount equal to the dividend payable on such
Option Securities. The option granted hereby may be exercised as to all or any
part of the Option Securities from time to time within thirty days after the
date of the Prospectus (or, if such 30th day shall be a Saturday or Sunday or a
holiday, on the next business day thereafter when the New York Stock Exchange is
open for trading). The Underwriters shall not be under any obligation to
purchase any of the Option Securities prior to the exercise of such option. The
Representatives may from time to time exercise the option granted hereby by
giving notice in writing or by telephone (confirmed in writing) to the Company
setting forth the aggregate number of Option Securities as to which the several
Underwriters are then exercising the option and the date and time for delivery
of and payment for such Option Securities. Any such date of delivery shall be
determined by the Representatives but shall not be earlier than two business
days or later than five business days after such exercise of the option and, in
any event, shall not be earlier than the Firm Closing Date. The time and date
set forth in such notice, or such other time on such other date as the
Representatives and Company may agree upon, or as the representatives may
determine pursuant to Section 9 hereof, is herein called the "Option Closing
Date" with respect to such Option Securities. Upon exercise of the option as
provided herein, the Company shall become obligated to sell to each of the
several Underwriters, and, subject to the terms and conditions herein set forth,
each of the Underwriters (severally and not jointly) shall become obligated to
purchase from the Company, the same percentage of the total number of the Option
Securities as to which the several Underwriters are then exercising the option
as such Underwriter is obligated to purchase of the aggregate number of Firm
Securities, as adjusted by the Representatives in such manner as they deem
advisable to avoid fractional shares. If the option is exercised as to all or
any portion of the Option Securities, one or more certificates in definitive
form for such Option Securities, and payment therefor, shall be delivered on the
related Option Closing Date in the manner, and upon the terms and conditions,
set forth in paragraph (a) of this Section 3, except that reference therein to
the Firm Securities and the Firm Closing Date shall be deemed, for purposes of
this paragraph (b), to refer to such Option Securities and Option Closing Date,
respectively.
(c) The Company hereby acknowledges that the wire transfer by
or on behalf of the Underwriters of the purchase price for any Securities does
not constitute closing of a purchase and sale of the Securities. Only execution
and delivery of a receipt for Securities by the Underwriters indicates
completion of the closing of a purchase of the Securities from the Company.
Furthermore, in the event that the Underwriters wire funds to the Company prior
to the completion of the closing of a purchase of Securities, the Company hereby
acknowledges that until the Underwriters execute and deliver a receipt for the
Securities, by facsimile or otherwise, the Company will not be entitled to the
wired funds and shall return the wired funds to the Underwriters as soon as
practicable (by wire transfer of same-day funds) upon demand. In the event that
the closing of a purchase of Securities is not completed and the wire funds are
not returned by the Company to the Underwriters on the same day the wired funds
were received by the Company, the Company agrees to pay to the Underwriters in
respect of each day the wire funds are not returned by it, in same-day funds,
interest on the amount of such wire funds in an amount representing the
Underwriters' cost of financing as reasonably determined by Prudential
Securities Incorporated.
(d) It is understood that any of you, individually and not as
one of the Representatives, may (but shall not be obligated to) make payment on
behalf of any Underwriter or Underwriters for any of the Securities to be
purchased by such Underwriter or Underwriters. No such payment shall relieve
such Underwriter or Underwriters from any of its or their obligations hereunder.
4. Offering by the Underwriters. Upon your authorization of the
release of the Firm Securities, the several Underwriters propose to offer the
Firm Securities for sale to the public upon the terms set forth in the
Prospectus.
5. Covenants of the Company. The Company covenants and agrees
with each of the Underwriters that:
(a) The Company will file the Prospectus or any Term Sheet
that constitutes a part thereof, any Integrated Prospectus, Prospectus
Supplement, as the case may be, and any amendment or supplement thereto with the
Commission in the manner and within the time period required by Rules 434 and
424(b) under the Act. During any time when a prospectus relating to the
Securities is required to be delivered under the Act, the Company (i) will
comply with all requirements imposed upon it by the Act and the Exchange Act and
the respective rules and regulations of the Commission thereunder to the extent
necessary to permit the continuance of sales of or dealings in the Securities in
accordance with the provisions hereof and of the Prospectus and any Integrated
Prospectus, as then amended or supplemented, and (ii) will not file with the
Commission the Prospectus, Term Sheet, any Integrated Prospectus or any
amendment or supplement thereto or any amendment to the Registration Statement
or any Rule 462(b) Registration Statement of which the Representatives
previously have been advised and furnished with a copy for a reasonable period
of time prior to the proposed filing and as to which filing the Representatives
shall not have given their consent. The Company will prepare and file with the
Commission, in accordance with the rules and regulations of the Commission,
promptly upon request by the Representatives or counsel for the Underwriters,
any amendments to the Registration Statement or amendments or supplements to the
Prospectus and any Integrated Prospectus that may be necessary or advisable in
connection with the distribution of the Securities by the several Underwriters,
and will use its best efforts to cause any such amendment to the Registration
Statement to be declared effective by the Commission as promptly as possible.
The Company will advise the Representatives, promptly after receiving notice
thereof, of the time when any amendment to the Registration Statement has been
filed or declared effective or the Prospectus, any Integrated Prospectus or any
amendment or supplement thereto has been filed and will provide evidence
satisfactory to the Representatives of each such filing or effectiveness.
(b) The Company will advise the Representatives, promptly
after receiving notice or obtaining knowledge thereof, of (i) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement or any
post-effective amendment thereto or any order directed at any document
incorporated by reference in the Registration Statement, the Prospectus or any
Integrated Prospectus or any order preventing or suspending the use of any
Preliminary Prospectus, the Prospectus and any Integrated Prospectus or any
amendment or supplement thereto, (ii) the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, (iii) the institution,
threatening or contemplation of any proceeding for any such purpose or (iv) any
request made by the Commission for amending the Registration Statement or any
Rule 462(b) Registration Statement, for amending or supplementing any
Preliminary Prospectus or the Prospectus and any Integrated Prospectus or for
additional information. The Company will use its best efforts to prevent the
issuance of any such stop order and, if any such stop order is issued, to obtain
the withdrawal thereof as promptly as possible.
(c) The Company will arrange for the qualification of the
Securities for offering and sale under the securities or blue sky laws of such
jurisdictions as the Representatives may designate and will continue such
qualifications in effect for as long as may be necessary to complete the
distribution of the Securities, provided, however, that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction.
(d) If, at any time prior to the later of (i) the final date
when a prospectus relating to the Securities is required to be delivered under
the Act or (ii) the Option Closing Date, any event occurs as a result of which
the Prospectus or any Integrated Prospectus, as then amended or supplemented,
would include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if for any
other reason it is necessary at any time to amend or supplement the Prospectus
or any Integrated Prospectus to comply with the Act, the Exchange Act or the
respective rules or regulations of the Commission thereunder, the Company will
promptly notify the Representatives thereof and, subject to Section 5(a) hereof,
will prepare and file with the Commission, at the Company's expense, an
amendment to the Registration Statement or an amendment or supplement to the
Prospectus or any Integrated Prospectus that corrects such statement or omission
or effects such compliance.
(e) The Company will, without charge, provide (i) to the
Representatives and to counsel for the Underwriters a signed copy (or if not
available, a photocopy of a signed copy) of the registration statement
originally filed with respect to the Securities or any Rule 462(b) Registration
Statement and each amendment thereto (in each case including exhibits thereto),
(ii) to each other Underwriter, a conformed copy of such registration statement
or any Rule 462(b) Registration Statement and each amendment thereto (in each
case without exhibits thereto) and (iii) so long as a prospectus relating to the
Securities is required to be delivered under the Act, as many copies of each
Preliminary Prospectus, the Prospectus or any Integrated Prospectus or any
amendment or supplement thereto as the Representatives may reasonably request;
without limiting the application of clause (iii) of this sentence, the Company,
not later than (A) 6:00 PM, New York City time, on the date of determination of
the public offering price, if such determination occurred at or prior to 10:00
AM, New York City time on such date or (B) 2:00 PM, New York City time, on the
business day following the date of determination of the public offering price,
if such determination occurred after 10:00 AM, New York City time, on such date,
will deliver to the Underwriters, without charge, as many copies of the
Prospectus and any amendment or supplement thereto as the Representatives may
reasonably request for purposes of confirming orders that are expected to settle
on the Firm Closing Date.
(f) The Company, as soon as practicable, will make generally
available to its security holders and to the Representatives a consolidated
earnings statement of the Company and its subsidiaries that satisfies the
provisions of Section 11(a) of the Act and Rule 158 thereunder.
(g) The Company will apply the net proceeds from the sale of
the Securities as set forth under "Use of Proceeds" in the Prospectus or any
Integrated Prospectus.
(h) The Company will not, directly or indirectly, without the
prior written consent of Prudential Securities Incorporated, on behalf of the
Underwriters, offer, sell, offer to sell, contract to sell, pledge, grant any
option to purchase or otherwise sell or dispose (or announce any offer, sale,
offer of sale, contract of sale, pledge, grant of any option to purchase or
other sale or disposition) of any shares of Common Stock or any securities
convertible into, or exchangeable or exercisable for, shares of Common Stock for
a period of 90 days after the date hereof, except pursuant to this Agreement and
except for issuances pursuant to the Stockholders Agreement and issuances
pursuant to the Company's Dividend Reinvestment and Stock Purchase Plan, the
Company's 401(k) and Profit Sharing Plan, the Company's 1993 Long Term Omnibus
Plan, agreements in existence on the date of this Agreement, and property
acquisitions for Common Stock or any securities convertible into, or
exchangeable or exercisable for, Common Stock, provided that such acquisitions
shall be subject to the same restrictions as set forth in this paragraph (h).
(i) The Company will not, directly or indirectly, (i) take any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) (A) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Securities or (B) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company.
(j) The Company will use reasonable best efforts to obtain the
agreements described in Section 7(f) hereof prior to the Firm Closing Date.
(k) If at any time during the 25-day period after the
Registration Statement becomes effective or the period prior to the Option
Closing Date, any rumor, publication or event relating to or affecting the
Company shall occur as a result of which in your opinion the market price of the
Common Stock has been or is likely to be materially affected (regardless of
whether such rumor, publication or event necessitates a supplement to or
amendment of the Prospectus and any Integrated Prospectus), the Company will,
after notice from you advising the Company to the effect set forth above,
forthwith prepare, consult with you concerning the substance of, and disseminate
a press release or other public statement, reasonably satisfactory to you,
responding to or commenting on such rumor, publication or event.
(l) If the Company elects to rely on Rule 462(b), the Company
shall both file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and provide for payment of the applicable fees in
accordance with Rule 111 promulgated under the Act by the earlier of 10:00PM
Eastern time on the date of this Agreement and (ii) the time confirmations are
sent or given, as specified by Rule 462(b)(2).
(m) The Company will use its best efforts to cause the
Securities to be duly authorized for listing by the New York Stock Exchange
prior to the Firm Closing Date.
6. Expenses. The Company will pay all costs and expenses incident to
the performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is
terminated pursuant to Section 11 hereof, including all costs and expenses
incident to (i) the printing or other production of documents with respect to
the transactions, including any costs of printing the registration statement
originally filed with respect to the Securities and any amendment thereto, any
Rule 462(b) Registration Statement, any Preliminary Prospectus, the Prospectus
and any Integrated Prospectus and any amendment or supplement thereto, this
Agreement and any blue sky memoranda, (ii) all arrangements relating to the
delivery to the Underwriters of copies of the foregoing documents, (iii) the
fees and disbursements of the counsel, accountants and any other experts or
advisors retained by the Company, (iv) preparation, issuance and delivery to
the Underwriters of any certificates evidencing the Securities, including
transfer agent's and registrar's fees, (v) the qualification of the Securities
under state securities and blue sky laws, including filing fees and reasonable
fees and disbursements of counsel for the Underwriters relating thereto, (vi)
the filing fees of the Commission and the National Association of Securities
Dealers, Inc. relating to the Securities, (vii) the listing of the Securities
on the New York Stock Exchange, (viii) meetings with prospective investors in
the Securities (other than shall have been specifically approved in writing by
the Representatives to be paid for by the Underwriters) and (ix) advertising
relating to the offering of the Securities (other than shall have been
specifically approved in writing by the Representatives to be paid for by the
Underwriters). If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 7 hereof is not satisfied, because this Agreement is
terminated pursuant to Sections 11(a)(i) or (a)(ii) hereof or because of any
failure, refusal or inability on the part of the Company to perform all
obligations and satisfy all conditions on its part to be performed or satisfied
hereunder other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities. The Company shall not in any event be liable to any of the
Underwriters for the loss of anticipated profits from the transactions covered
by this Agreement.
7. Conditions of the Underwriters' Obligations. The obligations of
the several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company contained herein as of the date
hereof and as of the Firm Closing Date, as if made on and as of the Firm Closing
Date, to the accuracy of the statements of the Company's officers made pursuant
to the provisions hereof, to the performance by the Company of its covenants and
agreements hereunder and to the following additional conditions:
(a) The Prospectus, any Term Sheet that constitutes a part
thereof, any Integrated Prospectus or the Prospectus Supplement, as the case may
be, and any amendment or supplement thereto shall have been filed with the
Commission in the manner and within the time period required by Rules 434 and
424(b) under the Act; no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto and no order
directed at any document incorporated by reference in the Registration
Statement, the Prospectus or any Integrated Prospectus or any amendment or
supplement thereto shall have been issued and no proceedings for that purpose
shall have been instituted or threatened or, to the knowledge of the Company or
the Representatives, shall be contemplated by the Commission; and the Company
shall have complied with any request of the Commission for additional
information (to be included in the Registration Statement, the Prospectus or any
Integrated Prospectus or otherwise).
(b) The Representatives shall have received an opinion, dated
the Firm Closing Date, of Xxxxx & Xxxxxxx, counsel for the Company, 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 Florida; each of the Subsidiaries has been duly formed and is validly
existing in good standing under the laws of the jurisdiction of its
organization; the Company and each of the Subsidiaries are duly qualified to
transact business as a foreign entity, respectively, and are in good standing
under the laws of all other jurisdictions where the ownership or leasing of
their respective properties or the conduct of their respective businesses
requires such qualification, except where failure to be so qualified does not
amount to a material liability or disability to the Company and the
Subsidiaries, taken as a whole;
(ii) the Company and each of the Subsidiaries have
the power (corporate and/or other) to own or lease their respective properties
and conduct their respective businesses as described in the Registration
Statement and the Prospectus or any Integrated Prospectus, and the Company has
corporate power to enter into this Agreement and to carry out all the terms and
provisions hereof and thereof to be carried out by it;
(iii) the Company has authorized, issued and
outstanding capitalization as set forth in each of the Prospectus or any
Integrated Prospectus; all of the issued shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable, were not issued in violation of or subject to any preemptive
rights or other rights to subscribe for or purchase securities, except as set
forth in the Stockholders Agreement; the Firm Securities have been duly
authorized by all necessary corporate action of the Company, and when issued and
delivered to and paid for by the Underwriters pursuant to this Agreement, will
be validly issued, fully paid and nonassessable;
(iv) the outstanding equity interests of each
Subsidiary have been duly authorized and validly issued, are fully paid and
nonassessable except as set forth in Exhibit A and, except as otherwise set
forth in the Prospectus and any Integrated Prospectus, are owned beneficially to
the extent shown in Exhibit A hereto by the Company free and clear of any
security interests perfected by possession or, to the best knowledge of such
counsel, any other security interests, liens, encumbrances, equities or claims,
except as otherwise disclosed in the Prospectus Supplement and except for rights
of first refusal and/or buy-sell provisions in certain partnership or joint
venture agreements with third parties through which the Company owns certain of
its properties;
(v) the statements set forth under the heading
"Capital Stock" in each of the Prospectus and any Integrated Prospectus, (a)
insofar as such statements purport to summarize certain provisions of the
capital stock of the Company, provide a fair summary of such provisions; and (b)
insofar as such statements constitute a summary of the legal matters, documents
or proceedings referred to therein, provide a fair summary of such legal
matters, documents and proceedings;
(vi) the execution and delivery of this Agreement
have been duly authorized by all necessary corporate action of the Company;
(vii) no holders of outstanding shares of capital
stock of the Company are entitled as such to any preemptive or other rights to
subscribe for any of the Securities; and no holders of securities of the Company
are entitled to have such securities registered under the Registration
Statement;
(viii) the issuance, offering and sale of the
Securities to the Underwriters by the Company pursuant to this Agreement, the
compliance by the Company with the other provisions of this Agreement and the
consummation of the other transactions herein contemplated do not conflict with
or result in a breach or violation of any of the terms and provisions of, or
constitute a default under the charter documents or bylaws of the Company;
(ix) the issuance, offering and sale of the
Securities to the Underwriters by the Company pursuant to this Agreement, the
compliance by the Company with the other provisions of this Agreement and the
consummation of the other transactions herein contemplated do not (A) require
the consent, approval, authorization, registration or qualification of or with
any governmental authority, except such as have been obtained and such as may be
required under state securities or blue sky laws, or (B) conflict with or result
in a breach or violation of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, lease or other agreement
or instrument, known to such counsel, to which the Company or any Subsidiary is
a party or by which the Company or any Subsidiary or any of their respective
properties are bound, charter or bylaws of any of the Subsidiaries, or any
statute or any judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator known to such counsel and applicable to
the Company or any of the Subsidiaries;
(x) to the best knowledge of such counsel, no legal
or governmental proceedings are pending to which the Company or any of the
Subsidiaries are a party or to which the property of the Company or any of the
Subsidiaries is subject that are required to be described in the Registration
Statement, the Prospectus and any Integrated Prospectus and are not described
therein, and, to the best knowledge of such counsel, no such proceedings have
been threatened against the Company or any of the Subsidiaries or with respect
to any of their respective properties;
(xi) the Registration Statement is effective under
the Act; any required filing of the Prospectus, or any Term Sheet that
constitutes a part thereof, and any Integrated Prospectus pursuant to Rules 434
and 424(b) has been made in the manner and within the time period required by
Rules 434 and 424(b); and to the best knowledge of such counsel no stop order
suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto and no order directed at any document incorporated by
reference in the Registration Statement, the Prospectus and any Integrated
Prospectus or any amendment or supplement thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or, are
contemplated by the Commission;
(xii) the Registration Statement originally filed
with respect to the Securities and each amendment thereto and any Rule 462(b)
Registration Statement, the Prospectus and any Integrated Prospectus (in each
case, including the documents incorporated by reference therein but not
including the financial statements, notes thereto and other financial
information and schedules contained therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the
applicable requirements of the Act, the Exchange Act and the respective rules
and regulations of the Commission thereunder;
(xiii) if the Company elects to rely on Rule
434, the Prospectus is not "materially different", as such term is used in Rule
434, from the prospectus included in the Registration Statement at the time of
its effectiveness or any effective post-effective amendment thereto (including
such information that is permitted to be omitted pursuant to Rule 430A);
(xiv) except as described in or contemplated by the
Registration Statement, the Prospectus and any Integrated Prospectus, to the
best knowledge of such counsel, there are no outstanding securities of the
Company convertible or exchangeable into or evidencing the right to purchase or
subscribe for any shares of capital stock of the Company and there are no
outstanding or authorized options, warrants or rights of any character
obligating the Company to issue any shares of its capital stock or any
securities convertible or exchangeable into or evidencing the right to purchase
or subscribe for any shares of such stock; and except as described in the
Registration Statement, the Prospectus and any Integrated Prospectus, to the
best of knowledge of such counsel, no holder of any securities of the Company or
any other person has the right, contractual or otherwise, which has not been
satisfied or effectively waived, to cause the Company to sell or otherwise issue
to them, or to permit them to underwrite the sale of, any of the Securities or
the right to have any Common Stock or other securities of the Company included
in the Registration Statement or the right, as a result of the filing of the
Registration Statement, to require registration under the Act of any shares of
Common Stock or other securities of the Company;
(xv) to such counsel's best knowledge there are no
contracts or documents required to be filed as exhibits to or incorporated by
reference in the Registration Statement or described in the Registration
Statement, the Prospectus and any Integrated Prospectus which are not so filed,
incorporated by reference or described as required, and such contracts and
documents as are summarized in the Registration Statement or the Prospectus and
any Integrated Prospectus are fairly summarized in all material respects;
(xvi) the Company was organized in conformity with
the requirements for qualification as a REIT for federal income tax purposes,
and, based on the facts and assumptions set forth in the Basic Prospectus, the
Preliminary Prospectus and the Prospectus Supplement and certain representations
by the Company, including but not limited to, those set forth in the Officer's
Certificate regarding certain federal income tax matters, its method of
operation has enabled it, and its proposed method of operation will enable it,
to meet the requirements under the Code for qualification and taxation as a
REIT; and
(xvii) the Company is not, and will not become, as a
result of the consummation of the transactions contemplated by this Agreement,
and application of the net proceeds therefrom as described in the Prospectus and
any Integrated Prospectus, required to register as an investment company under
the 1940 Act.
In rendering any such opinion, such counsel may rely, (1) as to matters of
fact, to the extent such counsel deems proper, on certificates of public
officials, responsible officers of the Company and independent accountants, and
on the representations and warranties of the Company made herein and (2) as to
matters involving the laws of any jurisdiction other than Florida, on the
opinion of local counsel reasonably satisfactory to you. Any matters expressed
"to the knowledge" of such counsel shall be based on the actual knowledge of
those attorneys who have devoted substantive attention to matters involving the
Company and not a poll of all attorneys in the firm.
Such counsel shall also state that they have no reason to believe that the
Registration Statement, as of its effective date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus and any Integrated Prospectus, as of its date or the date of such
opinion, included or includes any untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
References to the Registration Statement and the Prospectus and any
Integrated Prospectus in this paragraph (b) shall include any amendment or
supplement thereto at the date of such opinion.
(c) The Representatives shall have received an opinion, dated
the Firm Closing Date, of Pryor, Cashman, Xxxxxxx & Xxxxx, counsel for the
Underwriters, with respect to the Registration Statement, the Prospectus or any
Integrated Prospectus, and such other related matters as the Underwriters may
reasonably require, and the Company shall have furnished to such counsel such
documents as they may reasonably request for the purpose of enabling them to
pass upon such matters.
(d) The Representatives shall have received from KPMG Peat
Marwick LLP, a letter or letters dated, respectively, the date hereof and the
Firm Closing Date, in form and substance satisfactory to the Representatives, to
the effect that:
(i) they are independent accountants with respect
to the Company and the Subsidiaries within the meaning of the Act, the
Exchange Act and the applicable rules and regulations thereunder;
(ii) in their opinion, the audited consolidated
financial statements and schedules examined by them and included in the
Registration Statement, the Prospectus and any Integrated Prospectus comply in
form in all material respects with the applicable accounting requirements of the
Act, the Exchange Act and the related published rules and regulations
thereunder;
(iii) on the basis of a reading of the latest
available interim unaudited consolidated condensed financial statements of the
Company and the Subsidiaries, carrying out certain specified procedures (which
do not constitute an examination made in accordance with generally accepted
auditing standards) that would not necessarily reveal matters of significance
with respect to the comments set forth in this paragraph (iii), a reading of the
minute books of the shareholders, the board of directors and any committees
thereof of the Company and each of the Subsidiaries, and inquiries of certain
officials of the Company and the Subsidiaries who have responsibility for
financial and accounting matters, nothing came to their attention that caused
them to believe that:
(A) the unaudited consolidated financial
statements of the Company and the Subsidiaries included in the Registration
Statement, the Prospectus and any Integrated Prospectus do not comply as to form
in all material respects with the applicable accounting requirements of the Act,
the Exchange Act and the related published rules and regulations thereunder, or
are not in conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited consolidated financial
statements included in the Registration Statement, the Prospectus and any
Integrated Prospectus;
(B) at a specific date not more than five
business days prior to the date of such letter there were any changes in the
capital stock or long-term debt of the Company and the Subsidiaries or any
decreases in total assets or shareholders' equity of the Company and the
Subsidiaries, in each case compared with amounts shown on the March 31, 1997
unaudited consolidated balance sheet included in the Registration Statement, the
Prospectus and any Integrated Prospectus, or for the period from April 1, 1997
to such specified date there were any decreases, as compared with the
corresponding period in the preceding year, in sales, net revenues, net income
or total or per share amounts of net income of the Company and the Subsidiaries,
except in all instances for changes, decreases or increases set forth in the
Registration Statement, related Prospectus Supplement or in such letter; and
(iv) they have carried out certain specified
procedures, not constituting an audit, with respect to certain amounts,
percentages and financial information that are derived from the general
accounting records of the Company and the Subsidiaries and are included in the
Registration Statement, the Prospectus and any Integrated Prospectus and in
Exhibit 12 to the Registration Statement, including the information included or
incorporated in the Company's most recent Annual Report on Form 10-K under the
captions "Business" (Item 1), "Selected Consolidated Financial Data" (Item 6)
and "Management's Discussion and Analysis of Financial Condition and Results of
Operations" (Item 7) and the information included or incorporated in the
Company's Quarterly Reports on Form l0-Q under the caption "Management's
Discussion and Analysis of Financial Condition and Results of Operations",
Current Report on Form 8-K dated March 7, 1997 (as amended by Form 8-K/A, Form
8-K/A-2 and Form 8-K/A-3) and Current Report on Form 8-K dated June 6, 1997.
With respect to the items identified in the beginning of this paragraph having
proved the mathematical accuracy, they make no representations regarding the
sufficiency of the aforementioned procedures for your purposes and have compared
such amounts, percentages and financial information with such records and with
information derived from such records and have found them to be in agreement,
excluding any questions of legal interpretations; and
(v) on the basis of a reading of the unaudited pro
forma consolidated condensed financial statements included in the Registration
Statement, the Prospectus and any Integrated Prospectus, inquiries of certain
officials of the Company and the Subsidiaries who have responsibility for
financial and accounting matters and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical amounts in the
unaudited pro forma consolidated condensed financial statements, nothing came to
their attention that caused them to believe that the unaudited pro forma
consolidated condensed financial statements do not comply in form in all
material respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been properly applied
to the historical amounts in the compilation of such statements.
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (A) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended as of the
date hereof.
References to the Registration Statement and the Prospectus and any
Integrated Prospectus in this paragraph (d) with respect to either letter
referred to above shall include any amendment or supplement thereto at the date
of such letter.
(e) The Representatives shall have received a certificate,
dated the Firm Closing Date, of the Chief Executive Officer and the Chief
Financial Officer of the Company to the effect that:
(i) the representations and warranties of the Company
in this Agreement are true and correct as if made on and as of the Firm Closing
Date; the Registration Statement, as amended as of the Firm Closing Date, does
not include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading, the
Prospectus and any Integrated Prospectus, as amended or supplemented as of the
Firm Closing Date, does not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and the Company has performed all covenants and agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the Firm Closing Date;
(ii) the Registration Statement has become effective
under the Act and no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto and no order directed at any
document incorporated by reference in the Registration Statement or the
Prospectus or any amendment or supplement thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or, to the best
of the Company's knowledge, are contemplated by the Commission;
(iii) subsequent to the respective dates as of
which information is given in the Registration Statement, the Prospectus and any
Integrated Prospectus, none of the Company or any of the Subsidiaries has
sustained any material loss or interference with their respective businesses or
properties from fire, flood, hurricane, accident or other calamity, whether or
not covered by insurance, or from any labor dispute or any legal or governmental
proceeding, and there has not been any material adverse change, or any
development involving a prospective material adverse change, in the condition
(financial or otherwise), management, business prospects, net worth or results
of operations of the Company or any of the Subsidiaries, except in each case as
described in or contemplated by the Prospectus and any Integrated Prospectus;
and
(iv) all filings required to have been made pursuant
to Rules 424 or 430A under the Act have been made.
(f) The Representatives shall have received from each person
who is a director or executive officer of the Company an agreement to the effect
that such person will not, directly or indirectly, without the prior written
consent of Prudential Securities Incorporated, on behalf of the Underwriters,
offer, sell, offer to sell, contract to sell, pledge, grant any option to
purchase or otherwise sell or dispose (or announce any offer, sale, offer of
sale, contract of sale, pledge, grant of an option to purchase or other sale or
disposition) of any shares of Common Stock or any securities convertible into,
or exchangeable or exercisable for, shares of Common Stock for a period of 90
days after the date of this Agreement.
(g) On or before the Firm Closing Date, the Representatives
and counsel for the Underwriters shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Company.
(h) Prior to the commencement of the offering of the
Securities, the Securities shall have been approved for listing on the New York
Stock Exchange, subject to official notice of issuance.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and pay
for any Option Securities shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Securities, except that all references
to the Firm Securities and the Firm Closing Date shall be deemed to refer to
such Option Securities and the related Option Closing Date, respectively.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement
made by the Company in Section 2 of this Agreement,
(ii) any untrue statement or alleged untrue statement
of any material fact contained in (A) the Registration Statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus and any Integrated
Prospectus or any amendment or supplement thereto or (B) any application or
other document, or any amendment or supplement thereto, executed by the Company
or any Subsidiary or based upon written information furnished by or on behalf of
the Company filed in any jurisdiction in order to qualify the Securities under
the securities or blue sky laws thereof or filed with the Commission or any
securities association or securities exchange (each an "Application"),
(iii) the omission or alleged omission to state in
the Registration Statement or any amendment thereto, any Preliminary Prospectus,
the Prospectus and any Integrated Prospectus or any amendment or supplement
thereto, or any Application a material fact required to be stated therein or
necessary to make the statements therein not misleading, or
(iv) any untrue statement or alleged untrue statement
of any material fact contained in any audio or visual materials used in
connection with the marketing of the Securities, including without limitation,
slides, videos, film, tape recordings, but only to the extent that such
statement was prepared or provided by the Company to the Underwriters, and will
reimburse, as incurred, each Underwriter and each such controlling person for
any legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating, defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement or
any amendment thereto, any Preliminary Prospectus, the Prospectus and any
Integrated Prospectus or any amendment or supplement thereto, or any Application
in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use
therein. This indemnity agreement will be in addition to any liability which the
Company may otherwise have. The Company will not, without the prior written
consent of the Underwriter or Underwriters purchasing, in the aggregate, more
than fifty percent (50%) of the Securities, settle or compromise or consent to
the entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not any such Underwriter or any person who controls any such Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act is
a party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of all of the
Underwriters and such controlling persons from all liability arising out of such
claim, action, suit or proceeding.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act against any losses, claims, damages or liabilities, to which
the Company or any such director, officer or controlling person may become
subject under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment thereto,
any Preliminary Prospectus, the Prospectus or any Integrated Prospectus or any
amendment or supplement thereto, or any Application or (ii) the omission or the
alleged omission to state therein a material fact required to be stated in the
Registration Statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or any Application or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein; and, subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses reasonably incurred by the Company or any
such director, officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or any action in respect
thereof. This indemnity agreement will be in addition to any liability which
such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party of the commencement thereof,
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which on the advice of counsel for the
indemnified party may conflict with those available to the indemnifying party,
the indemnifying party shall not have the right to direct the defense of such
action on behalf of such indemnified party or parties and such indemnified party
or parties shall have the right to select separate counsel to defend such action
on behalf of such indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by such indemnified party of counsel appointed to
defend such action, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the Representatives in the case of paragraph (a) of this Section
8, representing the indemnified parties under such paragraph (a) who are parties
to such action or actions) or (ii) the indemnifying party does not promptly
retain counsel satisfactory to the indemnified party or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. After such notice from the indemnifying party
to such indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 8 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party on the other from the offering of the Securities or
(ii) if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters, the parties'
relative intents, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances. The Company and the Underwriters agree that it
would not be equitable if the amount of such contribution were determined by pro
rata or per capita allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
into account the equitable considerations referred to above in this paragraph
(d). Notwithstanding any other provision of this paragraph (d), no Underwriter
shall be obligated to make contributions hereunder that in the aggregate exceed
the total public offering price of the Securities purchased by such Underwriter
under this Agreement, less the aggregate amount of any damages that such
Underwriter has otherwise been required to pay in respect of the same or any
substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the Prudential Securities Incorporated Master Agreement Among Underwriters.
For purposes of this paragraph (d), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall
have the same rights to contribution as the Company.
9. Default of Underwriters. If one or more Underwriters default in
their obligations to purchase Firm Securities or Option Securities hereunder and
the aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or Option
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If one or more Underwriters so default with respect to an aggregate
number of Securities that is more than ten percent of the aggregate number of
Firm Securities or Option Securities, as the case may be, to be purchased by all
of the Underwriters at such time hereunder, and if arrangements satisfactory to
the Representatives are not made within 36 hours after such default for the
purchase by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives) of the Securities with respect to
which such default occurs, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company other than as provided
in Section 10 hereof. In the event of any default by one or more Underwriters as
described in this Section 9, the Representatives shall have the right to
postpone the Firm Closing Date or the Option Closing Date, as the case may be,
established as provided in Section 3 hereof for not more than seven business
days in order that any necessary changes may be made in the arrangements or
documents for the purchase and delivery of the Firm Securities or Option
Securities, as the case may be. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 9. Nothing herein shall relieve any defaulting Underwriter from
liability for its default.
10. Survival. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, its
officers and the several Underwriters set forth in this Agreement or made by or
on behalf of them, respectively, pursuant to this Agreement shall remain in full
force and effect, regardless of (i) any investigation made by or on behalf of
the Company or any Subsidiary, any of its officers or directors, any Underwriter
or any controlling person referred to in Section 8 hereof and (ii) delivery of
and payment for the Securities. The respective agreements, covenants,
indemnities and other statements set forth in Sections 6 and 8 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
11. Termination. (a) This Agreement may be terminated with respect
to the Firm Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company given prior to the Firm Closing Date or
the related Option Closing Date, respectively, in the event that the Company
shall have failed, refused or been unable to perform all obligations and satisfy
all conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Firm Closing Date or such Option Closing Date,
respectively,
(i) the Company and the Subsidiaries as a whole
shall have, in the sole judgment of the Representatives, sustained any material
loss or interference with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental proceeding or
there shall have been any material adverse change, or any development involving
a prospective material adverse change (including without limitation a change in
management or control of the Company), in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Company and its subsidiaries, except in each case as described in or
contemplated by the Prospectus (exclusive of any amendment or supplement
thereto);
(ii) trading in the Common Stock shall have been
suspended by the Commission or the New York Stock Exchange;
(iii) trading in securities generally on the New York
Stock Exchange shall have been suspended or minimum or maximum prices shall have
been established on such exchange;
(iv) a banking moratorium shall have been declared by
Florida, New York or United States authorities; or
(v) there shall have been (A) an outbreak or
escalation of hostilities between the United States and any foreign power, (B)
an outbreak or escalation of any other insurrection or armed conflict involving
the United States or (C) any other calamity or crisis or material adverse change
in general economic, political or financial conditions having an effect on the
U. S. financial markets that, in the sole judgment of the Representatives, makes
it impractical or inadvisable to proceed with the public offering or the
delivery of the Securities as contemplated by the Registration Statement, as
amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 11
shall be without liability of any party to any other party except as provided in
Section 10 hereof.
12. Information Supplied by Underwriters. The statements set forth
in the last paragraph on the front cover page and under the heading
"Underwriting" in any Preliminary Prospectus, the Prospectus or any Integrated
Prospectus (to the extent such statements relate to the Underwriters) constitute
the only information furnished by any Underwriter to the Company for the
purposes of Sections 2(b) and 8 hereof. The Underwriters confirm that such
statements (to such extent) are correct.
13. Notices. All communications hereunder shall be in writing and,
if sent to any of the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to Prudential Securities
Incorporated, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity
Transactions Group; and if sent to the Company, shall be delivered or sent by
mail, telex or facsimile transmission and confirmed in writing to the Company at
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention:
Xxxxxx X. Xxxxx, Xx..
14. Successors. This Agreement shall inure to the benefit of and
shall be binding upon the several Underwriters, the Company and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company contained in Section 8 of this Agreement shall
also be for the benefit of any person or persons who control any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Underwriters contained in Section 8 of this
Agreement shall also be for the benefit of the directors of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act. No purchaser of Securities from any
Underwriter shall be deemed a successor because of such purchase.
15. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, EXCLUDING
(TO THE GREATEST EXTENT PERMISSIBLE BY LAW) ANY RULE OF LAW THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
THE COMPANY, ON BEHALF OF ITSELF AND THE SUBSIDIARIES, HEREBY IRREVOCABLY
SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING RELATED TO THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY
IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN ANY SUCH COURT. THE COMPANY, ON BEHALF OF ITSELF AND THE
SUBSIDIARIES, IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter shall constitute an agreement binding the Company and each of the
several Underwriters.
Very truly yours,
REGENCY REALTY CORPORATION
By: /s/ Xxxxxx X. Xxxxx, Xx.
Xxxxxx X. Xxxxx, Xx.
President Chief and Executive Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXX, SACHS & CO.
XXXXX XXXXXX INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
THE XXXXXXXX-XXXXXXXX COMPANY, INC.
By PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxxx-Xxxxxx Canfin
Xxxx-Xxxxxx Canfin
Managing Director
Schedule A
Equity Ownership of
Subsidiaries of Regency Realty Corporation
July 10, 1997
NATURE OF % OF
ENTITY JURISDICTION OWNER(S) INTEREST OWNERSHIP
-----------------------------------------------------------------------------------------------------------------------------------
Regency Realty Group II, Inc. Florida The Regency Group, Inc. Common Stock 95%
(f/k/a Regency Realty Group SC, Inc.) Regency Realty Corporation Common Stock 5%
Regency Realty Corporation Preferred Stock 100%
Regency Realty Group, Inc. Florida Regency Realty Group II, Inc. Common Stock 95%
Regency Realty Corporation Common Stock 5%
Regency Realty Corporation Preferred Stock 100%
RRC Lender, Inc. Florida Regency Realty Group, Inc. Common Stock 100%
Village Commons Shopping Center Florida Regency Realty Group, Inc. General Partnership** 10%
RRC FL SPC, Inc. Florida Regency Realty Corporation Common Stock 100%
RRC GA SPC, Inc. Georgia Regency Realty Corporation Common Stock 100%
RRC AL SPC, Inc. Alabama Regency Realty Corporation Common Stock 100%
RRC MS SPC, Inc. Mississippi Regency Realty Corporation Common Stock 100%
RRC General SPC, Inc. Florida Regency Realty Corporation Common Stock 100%
RRC Limited SPC, Inc. Florida Regency Realty Corporation Common Stock 100%
RRC FL One, Inc. Florida Regency Centers, Inc. Common Stock 100%
RRC FL Two, Inc. Florida Regency Centers, Inc. Common Stock 100%
Regency Centers, Inc. Florida Regency Realty Corporation Common Stock 100%
RRC FL Five, Inc. Florida Regency Realty Corporation Common Stock 100%
RRC FL Seven, Inc. Florida Regency Realty Corporation Common Stock 100%
** General Partner has liability for debts of the Partnership
NATURE OF % OF
ENTITY JURISDICTION OWNER(S) INTEREST OWNERSHIP
-----------------------------------------------------------------------------------------------------------------------------------
RRC JV One, Inc. Florida Regency Realty Corporation Common Stock 100%
RRC Acquisitions, Inc. Florida Regency Realty Corporation Common Stock 100%
Regency Atlanta, Inc. Georgia Regency Realty Corporation Common Stock 100%
Regency Office Partnership, L.P. Delaware RRC FL One, Inc. General Partnership** 50%
RRC FL Two, Inc. Limited Partnership 50%
Regency Retail Partnership L.P. Delaware Regency Atlanta, Inc. General Partnership** 24.25%
Regency Atlanta, Inc. Limited Partnership 64.26%
Outside Investors Limited Partnership 1 11.49%
Equiport Associates, L.P. Georgia Regency Retail Partnership L.P. General Partnership** 55%
Branch/HOP Associates, L.P. Georgia Regency Retail Partnership L.P. General Partnership** 50.01%
Old Fort Associates, L.P. Georgia Regency Retail Partnership L.P. General Partnership** 66.70%
Fieldstone Associates, L.P. Georgia Regency Retail Partnership L.P. General Partnership** 70%
Roswell Village Xxxxxxx Xxxxxx/Hop Associates, L.P. General Partnership** 60%
Regency Retail Partners L.P. Limited Partnership 40%
Treasure Coast Investors, Ltd. Florida RRC General SPC, Inc. General Partnership** 99%
RRC Limited SPC, Inc. Limited Partnership 1%
Regency Rosewood Temple Terrace, Ltd. Florida RRC General SPC, Inc. General Partnership** 99%
RRC Limited SPC, Inc. Limited Partnership 1%
Landcom Regency Mandarin, Ltd. Florida RRC General SPC, Inc. General Partnership** 99%
RRC Limited SPC, Inc. Limited Partnership 1%
RSP IV Criterion, Ltd. Florida RRC General SPC, Inc. General Partnership** 99%
RRC Limited SPC, Inc. Limited Partnership 1%
--------
1 Redeemable for shares of Regency Realty Corporation Common Stock
** General Partner has liability for debts of the Partnership
NATURE OF % OF
ENTITY JURISDICTION OWNER(S) INTEREST OWNERSHIP
-----------------------------------------------------------------------------------------------------------------------------------
RRC Operating Partnership of Georgia L.P. Georgia Regency Centers, Inc. General Partnership** 16%
Regency Ocean East Partnership Limited Florida RRC JV One, Inc. General Partnership** 25%
Regency Retail Centers of Ohio, Inc. Ohio Regency Realty Corporation Common Stock 100%
Hyde Park Partners, L.P. Ohio Regency Retail Centers of Ohio, General Partnership** 98.95%
Inc.
Midland Hyde Park Partners, General Partnership** 1.00%
L.P.
Midland Hyde Park Partners, Limited Partnership .05%
L.P.
** General Partner has liability for debts of the Partnership
SCHEDULE 1
UNDERWRITERS
Underwriter Number of Firm Securities to be Purchased
Prudential Securities Incorporated 483,000
Xxxxxxx, Xxxxx & Co. 483,000
Xxxxx Xxxxxx Inc. 483,000
Xxxxxxx Xxxxx & Associates, Inc. 483,000
The Xxxxxxxx-Xxxxxxxx Company, Inc. 483,000
Total: 2,415,000
--------
1 Plus an option to purchase from Regency Realty Corporation up to 362,250
additional shares to cover over-allotments.
