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XXXXXXX REAL ESTATE, INC.
300,000 SHARES OF COMMON STOCK
($0.01 PAR VALUE)
UNDERWRITING AGREEMENT
December 4, 1997
X. X. XXXXXXXXX, TOWBIN
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
Xxxxxxx Real Estate, Inc., a Maryland corporation (the "Company"),
confirms its agreement with you as follows:
Capitalized terms used but not otherwise defined herein shall have the
meanings given to those terms in the Prospectus (as herein defined).
1. DESCRIPTION OF OFFERING. As of the date hereof, the Company has
authorized the issuance and sale, under the terms and subject to the conditions
of this Agreement, of 300,000 shares of its Common Stock, $0.01 par value (the
"Common Stock"). Subject to the terms and conditions of this Agreement, you have
agreed to purchase such shares (referred to herein as the "Shares") as
underwriter for resale by you to investors.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to you as follows:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-28167) for the registration of shares of Common Stock, including the
Shares, and other equity securities of the Company, under the Securities
Act of 1933, as amended (the "1933 Act"), and the offering thereof from
time to time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Rules and Regulations").
Such registration statement has been declared effective by the Commission.
Such registration statement and the prospectus constituting a part thereof,
as from time to time amended or supplemented by the filing of documents
pursuant to the Securities Exchange Act of 1934, as amended (the "1934
Act"), or the 1933 Act or otherwise, is referred to herein as the
"Registration Statement." A prospectus supplement (the "Prospectus
Supplement") setting forth the terms of the offer and sale
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of the Shares contemplated by this Agreement, and additional information
concerning the Company and its business has been or will be prepared and
will be filed by the Company pursuant to Rule 424(b) of the 1933 Act Rules
and Regulations, on or before the second business day after it is first
used in connection with the offer and sale of Shares under this Agreement
(or such earlier time as may be required by the 1933 Act Rules and
Regulations). The final form of prospectus included in the Registration
Statement, as supplemented by the Prospectus Supplement, is referred to
herein as the "Prospectus," except that if any revised prospectus, whether
or not such revised prospectus is required to be filed by the Company
pursuant to Rule 424(b) of the 1933 Act Rules and Regulations, shall be
provided to you by the Company for use in connection with the offer and
sale of any of the Shares under this Agreement, the term "Prospectus" shall
refer to such revised prospectus from and after the time such documents are
first provided to you for such use.
(b) Each part of the Registration Statement, when such part
became or becomes effective, and the Prospectus and any amendment or
supplement to such Registration Statement or such Prospectus, on the date
of filing thereof with the Commission and at the Closing Date (as
hereinafter defined) conformed or will conform in all material respects
with the requirements of the 1933 Act and the 1933 Act Rules and
Regulations; each part of the Registration Statement, when such part became
or becomes effective did not or will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; the
Prospectus and any amendment or supplement thereto, on the date of filing
thereof with the Commission and at the Closing Date did not or will not
include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that the
foregoing shall not apply to statements in, or omissions from, any such
document in reliance upon, and in conformity with, information concerning
you that was furnished to the Company by you specifically for use in the
preparation thereof.
(c) The documents incorporated by reference in the Registration
Statement, the Prospectus and any amendment or supplement to such
Registration Statement or such Prospectus, when they became or become
effective under the 1933 Act or were or are filed with the Commission under
the 1934 Act, as the case may be, conformed or will conform in all material
respects with the requirements of the 1933 Act, the 1933 Act Rules and
Regulations, the 1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Rules and Regulations"), as applicable.
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(d) The financial statements of the Company set forth or
incorporated by reference in the Registration Statement and Prospectus
fairly present the financial condition of the Company as of the dates
indicated and the results of operations and changes in financial position
for the periods therein specified in conformity with generally accepted
accounting principles consistently applied through the periods involved
(except as otherwise stated therein). The summary financial, pro forma
financial and statistical data included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the information
shown therein and, to the extent based upon or derived from the financial
statements, have been compiled on a basis consistent with the financial
statements presented therein. No other financial statements are required to
be set forth in the Registration Statement or the Prospectus under the 1933
Act or the 1933 Act Rules and Regulations.
(e) The only subsidiaries (as defined in the 1933 Act Rules and
Regulations) of the Company are the subsidiaries listed on SCHEDULE A
hereto (the "Subsidiaries") which includes Xxxxxxx Operating Limited
Partnership, a Delaware limited partnership (the "Partnership"). The
Company and each of its Subsidiaries has been duly incorporated or formed,
as the case may be, and is an existing corporation or general or limited
partnership, as the case may be, in good standing under the laws of its
jurisdiction of incorporation or formation, as the case may be. The Company
and each of its Subsidiaries has full power and authority (corporate and
other) to conduct its business as described in the Registration Statement
and Prospectus, and is duly qualified to do business in each jurisdiction
in which it owns or leases real property or in which the conduct of its
business requires such qualification, except where the failure to be so
qualified, considering all such cases in the aggregate, does not involve a
material risk to the business, properties, financial position or results of
operations of the Company; and, other than the Subsidiaries, the Company
owns no material amounts of stock or beneficial interest in any
corporation, partnership, joint venture or other business entity and do not
own 10% or more of the outstanding voting stock of any entity separately
taxable as a corporation under the Internal Revenue Code of 1986, as
amended (the "Code").
(f) The Shares have been duly authorized and are, or when
issued as contemplated hereby will be, validly issued, fully paid and
non-assessable by the Company and conform, or when so issued will conform,
to the description thereof in the Prospectus. All of the partnership
interests of the Partnership have been duly and validly authorized and
issued and are fully paid and approximately 95% of such partnership
interests are owned of record and beneficially by the Company free and
clear of all liens, encumbrances, equities or claims.
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(g) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, the Company and its Subsidiaries have not
incurred any liabilities or obligations, direct or contingent, or entered
into any transactions, not in the ordinary course of business, that are
material to the Company and its Subsidiaries on a consolidated basis, and
there has not been any material change in the capital stock, short-term
debt or long-term debt of the Company and its Subsidiaries, or any material
adverse change, or any development involving a prospective material adverse
change, in the condition (financial or other), business, prospects, net
worth or results of operations of the Company on a consolidated basis.
(h) Except as set forth in the Prospectus, there is not pending
or, to the knowledge of the Company, threatened any action, suit or
proceeding to which the Company or any of its Subsidiaries is a party,
before or by any court or governmental agency or body, that might result in
any material adverse change in the condition (financial or other),
business, prospects, net worth or results of operations of the Company and
its Subsidiaries, or might materially and adversely affect the properties
or assets thereof.
(i) There are no contracts or documents of the Company that are
required to be filed as exhibits to the Registration Statement or to any of
the documents incorporated by reference therein by the 1933 Act or the 1934
Act or by the 1933 Act or the 1934 Act Rules and Regulations that have not
been so filed.
(j) This Underwriting Agreement has been duly executed,
delivered and will be performed by the Company. The execution of this
Underwriting Agreement and the consummation of the transactions herein
contemplated will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any statute, any
agreement or instrument to which the Company is a party or by which it is
bound or to which any of the property of the Company is subject, the
charter, or by-laws or partnership agreement, as the case may be, of the
Company, or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
properties; no consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the
consummation of the transactions contemplated by this Underwriting
Agreement in connection with the issuance or sale of the Shares by the
Company, except such as may be required under the 1933 Act or state
securities laws; and the Company has full power and authority to authorize,
issue and sell the Shares as contemplated by this Underwriting Agreement,
free of any preemptive or similar rights.
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(k) The Company has complied in all respects with all laws,
regulations and orders applicable to it and its business; the Company is
not in default under any indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, bond debenture, note agreement or evidence of
indebtedness, lease, contract or other agreement or instrument to which the
Company is a party or by which the Company or any of its properties is
bound, violation of which would individually or in the aggregate have a
material adverse effect on the Company, and no other party under any such
agreement or instrument to which the Company is a party, to the knowledge
of the Company, in default in any material respect thereunder; and the
Company is not in violation of its charter or by-laws.
(l) Except as described in the Prospectus, and except for
defects or exceptions that are not material in relation to the business of
the Company, its Subsidiaries and Related Entities (as defined below),
taken as a whole: (i) in accordance with general warranty deeds issued by
the Company (the "Transfer Deeds") with regard to the Properties that had
previously been owned by the Company (the "Transferred Properties"),
substantially all of the Properties (as defined in the Prospectus) have
been transferred from the Company to the Partnership as of the date hereof;
(ii) the Company or one of its Subsidiaries and any partnership or joint
venture in which such party is a participant, as applicable, (a "Related
Entity") have good and marketable title to all such Properties, subject to
the exceptions noted in the Transfer Deeds; (iii) if there are any liens,
charges, encumbrances, claims or restrictions affecting the Properties and
the assets of the Company, they are disclosed in the Prospectus or noted in
the Transfer Deeds; (iv) the Company, its Subsidiaries and Related Entities
have valid, subsisting and enforceable (subject to limitations on
enforceability of the type set forth in the following Section 2(x) below)
leases for the properties described in the Prospectus as leased by them;
(v) no tenant under any of the leases pursuant to which the Company, its
Subsidiaries and Related Entities lease their Properties has an option or
right of first refusal to purchase the premises demised under such lease;
(vi) to the knowledge of the Company, the use and occupancy of each of the
Properties of the Company, its Subsidiaries and Related Entities complies
in all material respects with all applicable codes and zoning laws and
regulations; (vii) the Company, its Subsidiaries and Related Entities have
no knowledge of any pending or threatened condemnation or zoning change
that will in any material respect affect the size of, use of, improvement
of, construction on, or access to any of the Properties of the Company, its
Subsidiaries or Related Entities; and (viii) the Company, its Subsidiaries
and Related Entities have no knowledge of any pending or threatened
proceeding or action that will in any manner materially affect the size of,
use of, improvements on, construction
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on, or access to any of the Properties of the Company, its
Subsidiaries or Related Entities.
(m) Title insurance in favor of the mortgagee, the Company, its
Subsidiaries and Related Entities is maintained with respect to each of the
Properties owned by the Company, its Subsidiaries and Related Entities, as
shown in the Prospectus, in an amount at least equal to the greater of (i)
the cost of acquisition of such property and (ii) the cost of construction
by the Company, its Subsidiaries or Related Entities of the improvements
located on such property (measured at the time of such construction),
except, in each case, where the failure to maintain such title insurance
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company, its Subsidiaries and Related Entities taken as a whole.
(n) The mortgages and deeds of trust encumbering the Properties
and assets described in the Prospectus are not convertible, nor do the
Company or its Subsidiaries hold a participating interest therein.
(o) Except as set forth in the Prospectus, the Company has no
knowledge of (i) the unlawful presence of any hazardous substances,
hazardous materials, toxic substances or waste materials (collectively,
"Hazardous Materials") on any of the properties owned by each of them, or
(ii) any unlawful spills, releases, discharges or disposal of Hazardous
Materials that have occurred or are presently occurring off such properties
as a result of any construction on or operation and use of such properties,
which presence or occurrence would have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company. In connection with the construction on
or operation and use of the properties owned by the Company, the Company
represents that, as of the date of this Underwriting Agreement, it has no
knowledge of any failure to comply with all applicable local, state and
federal environmental laws, regulations, ordinances and administrative and
judicial orders relating to the generation, recycling, sale, storage,
handling, transport and disposal of any Hazardous Materials, which failure
would have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company.
(p) Property and casualty insurance in favor of the Company and
each of its Subsidiaries is maintained with respect to each of the
properties owned by each of them in an amount and on such items as is
reasonable and customary for businesses of this type.
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(q) No holder of outstanding shares of capital stock of the
Company has any rights to the registration of shares of capital stock of
the Company which would or could require such securities to be included in
the Registration Statement.
(r) The Company has filed all federal, state and foreign income
tax returns which have been required to be filed and has paid all taxes
indicated by said returns and all assessments received by it to the extent
that such taxes have become due.
(s) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery
by the Company of this Agreement and the consummation of the transactions
herein contemplated (except such additional steps as may be required by the
National Association of Securities Dealers, Inc. (the "NASD") or by the New
York Stock Exchange (the "NYSE"), or as may be necessary under state
securities laws) has been obtained or made and is in full force and effect.
(t) The Company holds all material licenses, certificates and
permits from governmental authorities which are necessary to the conduct of
its business; and the Company has not infringed any patents, patent rights,
trade names, trademarks or copyrights, which infringement is material to
the business of the Company as a whole.
(u) For all applicable tax years as to which the Company's tax
returns are subject to audit and the Company is subject to assessment for
taxes reportable therein, the Company has continuously been organized and
operating in conformity with the requirements for qualification as a real
estate investment trust under the Code. The Company's method of operation
will permit it to continue to meet the requirements for taxation as a real
estate investment trust under the Code. The Company has no intention of
changing its operations or engaging in activities which would adversely
affect its ability to qualify, or make economically undesirable its
continued qualification as, a real estate investment trust.
(v) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
(w) The Shares have been approved for listing upon official
notice of issuance on the NYSE.
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(x) Each of the partnership and joint venture agreements to
which the Company is a party, and which relates to real property described
in the Prospectus, has been duly authorized, executed and delivered by such
applicable party and constitutes the valid agreement thereof, enforceable
in accordance with its terms, except to the extent that enforcement thereof
may be limited by (1) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (2) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity) and the
executing, delivery and performance of any of such agreements did not and
will not, at the time of execution and delivery, and does not and will not
constitute a breach of, or a default under, the charter, partnership
agreement or by-laws of the Company or any of its Subsidiaries or any
material contract, lease or other instrument to which the Company or any of
its Subsidiaries is a party or to which any of their property may be bound
or any law, administrative regulation or administrative or court decree.
3. PURCHASE, SALE AND DELIVERY OF SHARES. On the basis of the
representations, warranties and agreements contained herein, but subject to the
terms and conditions set forth herein, the Company agrees to issue and sell the
Shares to you, and you agree to purchase the Shares from the Company at the
purchase price set forth as "Proceeds to the Company" on the cover page of the
Prospectus Supplement.
The Company understands that you intend (i) to make a public offering
of the Shares and (ii) initially to offer the Shares upon the terms set forth in
the Prospectus. All purchases by you under this Agreement shall be deemed to
have been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. In connection with the Shares purchased by you hereunder, you may engage
the services of any other broker or dealer in connection with the resale of the
Shares and may allow or reallow any portion of the discount received in
connection with such purchases from the Company to such brokers and dealers.
Payment for the Shares shall be made to the Company or to its order in
immediately available funds in the amount, on the Closing Date (as defined
below) (or at such other time and place on the same or such other date, not
later than the third Business Day thereafter, as you and the Company may agree
in writing). Such payment will be made upon delivery to you of the Shares
registered in such names as you shall request not less than two full Business
Days prior to the date of delivery, with transfer taxes, if any, payable in
connection with transfer to you duly paid by the Company. As used herein, the
term "Business Day" means any day other than a day on which banks are permitted
or required to be closed in New York City. The time and date of such payment and
delivery with respect to the
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Shares are referred to herein as the "Closing Date." The Shares will be
delivered through the book entry facilities of The Depository Trust Company
("DTC") and will be made available for inspection by you by 1:00 P.M. New York
City time on the Business Day prior to the Closing Date at such place in New
York City as you, DTC and the Company shall agree.
4. COVENANTS. The Company covenants and agrees to:
(a) Cause the Prospectus Supplement to be filed pursuant to
Rule 424(b) of the 1933 Act Rules and Regulations on or before the second
business day after the date hereof (or such earlier time as may be required
by the 1933 Act Rules and Regulations) (but only if you or your counsel
have not reasonably objected thereto by notice to the Company after having
been furnished a copy a reasonable time prior to filing) and will notify
you promptly of such filing. During the period in which a prospectus
relating to the Shares is required to be delivered under the 1933 Act, the
Company will (i) notify you promptly of the time when any subsequent
amendment to the Registration Statement has become effective or any
supplement to the Prospectus has been filed and of any request by the
Commission for any amendment or supplement to the Registration Statement or
Prospectus or for additional information, (ii) prepare and file with the
Commission, promptly upon your request, any amendments or supplements to
the Registration Statement or Prospectus that, in your opinion, may be
necessary or advisable in connection with your distribution of the Shares,
and (iii) file no amendment or supplement to the Registration Statement or
Prospectus (other than any document required to be filed under the 1934 Act
that upon filing is deemed to be incorporated by reference therein) to
which you or your counsel shall reasonably object by notice to the Company
after having been furnished a copy a reasonable time prior to the filing.
(b) Advise you, promptly after either one of them shall receive
notice or obtain knowledge thereof, of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement,
of the suspension of the qualification or registration of the Shares for
offering or sale in any jurisdiction, or of the initiation or threatening
of any proceeding for any such purpose; and it will promptly use its best
efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such a stop order should be issued.
(c) Comply with all requirements imposed upon them by the 1933
Act, the 1933 Act Rules and Regulations, the 1934 Act, and the 1934 Act
Rules and Regulations as from time to time in force, so far as necessary to
permit the continuance of sales of, or dealings in, the Shares as
contemplated by the provisions hereof and the Prospectus. If during such
period any event occurs as a result of which, in the opinion of your
counsel, the Registration Statement
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contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the
light of the circumstances then existing, not misleading, or if during such
period it is necessary to amend or supplement the Registration Statement or
Prospectus to comply with the 1933 Act, the Company will promptly notify
you and will amend or supplement the Registration Statement or Prospectus
(at the expense of the Company) so as to correct such statement or omission
or effect such compliance.
(d) Furnish to you copies of the Registration Statement, the
Prospectus (including all documents incorporated by reference therein) and
all amendments and supplements to the Registration Statement and Prospectus
that are filed with the Commission during the period in which a prospectus
relating to the Shares is required to be delivered under the 1933 Act
(including all documents filed with the Commission during such period that
are deemed to be incorporated by reference therein), in each case as soon
as available and in such quantities as you may from time to time reasonably
request.
(e) Furnish you with copies of filings of the Company under the
1933 Act and 1934 Act and with all other financial statements and reports
it distributes generally to the holders of any class of its capital stock
during the period of five years commencing on the date upon which the
Prospectus Supplement is filed pursuant to Rule 424(b) of the 1933 Act
Rules and Regulations.
(f) Make generally available to its security holders as soon as
practicable and in the manner contemplated by Rule 158 of the 1933 Act
Rules and Regulations, but in any event not later than 15 months after the
end of the Company's current fiscal quarter, an earning statement (which
need not be audited) covering a 12-month period beginning after the date
upon which the Prospectus is filed pursuant to Rule 424(b) of the 1933 Act
Rules and Regulations that shall satisfy the provisions of Section 11(a) of
the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations and will
advise you in writing when such statement has been made available.
(g) Pay, or reimburse if paid by you, whether or not the
transactions contemplated by this Underwriting Agreement are consummated or
this Underwriting Agreement is terminated, all costs and expenses incident
to the performance of the obligations of the Company under this
Underwriting Agreement, including but not limited to costs and expenses of
or relating to (i) the preparation, printing
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and filing of the Registration Statement and exhibits thereto, the
Prospectus and any amendment or supplement to the Registration Statement or
the Prospectus, (ii) the costs incurred by the Company in furnishing
(including costs of shipping, mailing and courier) such copies of the
Registration Statement, the Prospectus and all amendments and supplements
thereto, as may be requested for use in connection with the offering and
sale of the Shares by you or by dealers to whom Shares may be sold, (iii)
any registration or qualification of the Shares for offer and sale under
the securities or blue sky laws of such jurisdictions designated by you,
including the reasonable fees, disbursements and other charges of your
counsel in connection therewith, and the preparation of a blue sky
memoranda, (iv) counsel to the Company, (v) the transfer agent for the
Shares (including the cost, if any, of preparing stock certificates for the
Shares) and (vi) KPMG Peat Marwick LLP ("KPMG") or any other accountants
engaged by the Company in connection with the offering of the Shares.
(h) In connection with the offering contemplated by this
Underwriting Agreement, the Company will, and will cause all affiliated
purchasers within the meaning of Rule 100 of Regulation M under the 1934
Act to, comply with Regulation M under the 1934 Act.
(i) Not take, at any time, directly or indirectly, other than
in connection with this Underwriting Agreement, any action designed to
stabilize, or which might reasonably be expected to cause or result in, or
which has constituted or which might reasonably be expected to constitute
the stabilization of, the price of the Shares.
(j) Apply the net proceeds to the Company from the sale of the
Shares by the Company as set forth under the caption "Use of Proceeds" in
the Prospectus.
(k) The Company will use its best efforts to meet the
requirements to qualify as a "real estate investment trust" under the Code
for the taxable year in which sales of the Shares are to occur, unless
otherwise specified in the Prospectus.
5. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS AT THE CLOSING. Your
obligation to purchase and pay for the Shares at the Closing as provided herein
shall be subject to the accuracy of the representations and warranties of the
Company herein and to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) You shall have received the opinion of Xxxxxxx, Procter &
Xxxx LLP, counsel for the Company, dated the Closing Date, to the effect
that:
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(i) The Company and each of its Subsidiaries has been duly
incorporated or formed, as the case may be, and is validly existing as
a corporation or general or limited partnership, as the case may be,
and in good standing under the laws of its jurisdiction of
incorporation or formation, as the case may be, has full power and
authority to conduct its business as described in the Registration
Statement and Prospectus, and is duly qualified to do business in each
jurisdiction in which it owns or leases real property or in which the
conduct of its business requires such qualification, except where the
failure to be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the business,
properties, financial position or results of operations of the Company
and its Subsidiaries taken as a whole;
(ii) The outstanding shares of capital stock of the Company
and the Securities have been duly authorized and are, or when issued as
contemplated hereby will be, fully paid and nonassessable by the
Company and conform, or when so issued will conform, to the description
thereof in the Prospectus, and the stockholders of the Company have no
preemptive rights with respect to the Securities; and all of the
partnership interests of the Partnership owned by the Company are owned
by the Company free and clear of all liens, charges and encumbrances;
(iii) The Registration Statement has become effective under
the 1933 Act, the Prospectus will be filed as required by Section 2(a)
hereof and, to the best knowledge of such counsel, after due inquiry,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or threatened by the Commission;
(iv) Each part of the Registration Statement, when such
part became effective, and the Prospectus and any amendment or
supplement thereto, on the date of filing thereof with the Commission
and at the Closing Date, complied as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act Rules and
Regulations; and the documents incorporated by reference in the
Registration Statement or Prospectus or any amendment or supplement
thereto, when they became effective under the 1933 Act or were filed
with the Commission under the 1934 Act, as the case may be, complied as
to form in all material respects with the requirements of the 1933 Act
or the 1934 Act, as applicable, and the 1933 Act or 1934 Act Rules and
Regulations, as applicable; it being understood that such counsel need
express no opinion as to the financial
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statements or other financial data included in any other documents
mentioned in this clause;
(v) The descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings, contracts
and other documents are accurate and fairly present the information
required to be shown; and such counsel does not know of any statutes or
legal or governmental proceedings required to be described in the
Prospectus that are not described as required, or of any contracts or
documents of a character required to be described in the Registration
Statement or Prospectus (or required to be filed under the 1934 Act if
upon such filing they would be incorporated by reference therein) or to
be filed as exhibits to the Registration Statement that are not
described and filed as required;
(vi) This Underwriting Agreement has been duly authorized,
executed and delivered by the Company; the execution, delivery and
performance of this Underwriting Agreement and the consummation of the
transactions contemplated herein will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, the charter or by-laws of the Company, or any statute
known to such counsel applicable to the Company; and, to the knowledge
of such counsel, no consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required for
the consummation of the transactions contemplated by this Underwriting
Agreement in connection with the issuance or sale of the Shares by the
Company, except such as have been obtained under the 1933 Act and such
as may be required under state securities laws in connection with the
purchase and distribution of the Shares by you;
(vii) For all applicable tax years as to which the
Company's tax returns are subject to audit and the Company is subject
to assessment for taxes reportable therein, the Company has
continuously been organized and operated in conformity with the
requirements for qualification as a "real estate investment trust"
under the Code;
(viii) None of the Company or its subsidiaries is an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended;
(ix) The Company satisfies all conditions and requirements
for the use of a Registration Statement on Form S-3 under the 1933 Act
and the 1933 Act Rules and Regulations.
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Such counsel shall also include a statement in such opinion to the effect that:
(i) Such counsel has reviewed the Registration Statement
and the Prospectus and participated in conferences with officers and
other representatives of the Company at which contents of the
Registration Statement and related matters were discussed and based on
such review and participation, such counsel has no reason to believe
that either any part of the Registration Statement, when such part
became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus and any amendment or supplement thereto, on the date of
filing thereof with the Commission and at the Closing Date, included an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
(ii) To the best of such counsel's knowledge and without
such counsel having made any investigation of any governmental records
or court dockets or taken any other similar action, there is no
litigation or governmental or other proceeding or investigation, before
any court or before or by any public body or board pending or, or to
such counsel's knowledge, threatened against, or involving the assets,
properties or businesses of, the Company or any of its Subsidiaries,
involving the Company's or any of its Subsidiaries' officers or
directors or to which any of the Company's or any of its Subsidiaries'
properties or other assets is subject which would have a material
adverse effect upon the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the
Company or its Subsidiaries taken as a whole.
(b) You shall have received from Xxxxxx & Xxxxx, your
counsel, such opinion or opinions, dated the Closing Date, with respect to
the organization of the Company, the validity of the Shares, the
Registration Statement, the Prospectus and other related matters as you
reasonably may request, and such counsel shall have received such papers
and information as they request to enable them to pass upon such matters.
(c) At the time of execution of this Underwriting Agreement and
at the Closing Date, you shall have received a letter from KPMG, dated at
the date of delivery thereof, to the effect set forth in EXHIBIT I hereto.
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(d) You shall have received from the Company a certificate,
signed by the president or a vice president and by the principal financial
or accounting officer of the Company, dated the Closing Date, to the effect
that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Company in
this Underwriting Agreement are true and correct, as if made at and as
of the Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that
purpose has been instituted or is threatened, by the Commission; and
(iii) Since the effective date of the Registration
Statement, there has occurred no event required to be set forth in an
amendment or supplement to the Registration Statement or Prospectus
that has not been so set forth, and there has been no document required
to be filed under the 1934 Act and the 1934 Act Rules and Regulations
that upon such filing would be deemed to be incorporated by reference
in the Prospectus that has not been so filed.
(e) The Shares shall have been duly authorized for listing
by the NYSE upon official notice of issuance.
(f) (i) None of the Company or its Subsidiaries or any
Property shall have sustained since the date of the latest financial
statements included in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus or (ii) since such date there shall not have been any change in
the capital stock or long-term debt of the Company or any change, or any
development involving a prospective change, in or affecting any Property or
the general affairs, management, financial position, stockholders' or
partners' equity, as applicable, or results of operations of the Company,
otherwise than as set forth or contemplated in the Prospectus, the effect
of which, in any such case described in clause (i) or (ii), is, in your
reasonable judgment, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
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Shares being delivered on the Closing Date on the terms and in the manner
contemplated in the Prospectus.
(g) To the extent required by its rules, the NASD shall have
approved the underwriting terms and arrangements and such approval shall
not have been withdrawn or limited.
(h) All such opinions, certificates, letters and other
documents will be in compliance with the provisions hereof only if they are
satisfactory in form and substance to you and your counsel. The Company
will furnish you with such conformed copies of such opinions, certificates,
letters and other documents as you shall reasonably request and the Company
shall furnish to you such further certificates and documents as you shall
have reasonably requested.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company will indemnify and hold harmless you and your
directors, officers, employees and agents and each person, if any, who
controls you within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act from and against any and all losses, claims, liabilities,
expenses and damages (including, but not limited to, any and all
investigative, legal and other expenses reasonably incurred in connection
with, and any and all amounts paid in settlement of, any action, suit or
proceeding between any of the indemnified parties and any indemnifying
parties or between any indemnified party and any third party, or otherwise,
or any claim asserted), as and when incurred, to which you, or any such
person, may become subject under the 1933 Act, the 1934 Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, liabilities, expenses or damages arise out
of or are based on (i) any untrue statement or alleged untrue statement of
a material fact contained in any preliminary prospectus, the Registration
Statement or the Prospectus or any amendment or supplement to the
Registration Statement or the Prospectus or in any documents filed under
the 1934 Act and deemed to be incorporated by reference into the
Prospectus, or in any application or other document executed by or on
behalf of the Company or based on written information furnished by or on
behalf of the Company filed in any jurisdiction in order to qualify the
Shares under the securities laws thereof or filed with the Commission, (ii)
the omission or alleged omission to state in such document a material fact
required to be stated in it or necessary to make the statements in it not
misleading or (iii) any act or failure to act by you in connection with, or
relating in any manner to, the Shares or the offering contemplated hereby,
and which is included as part of or referred to in any loss, claim,
liability, expense or damage arising out of or based upon matters covered
by clause (i) or (ii) above (provided that the Company
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shall not be liable under this clause (iii) to the extent it is finally
judicially determined by a court of competent jurisdiction that such loss,
claim, liability, expense or damage resulted directly from any such acts or
failures to act undertaken or omitted to be taken by you through gross
negligence or willful misconduct); provided that the Company will not be
liable to the extent that such loss, claim, liability, expense or damage
arises from the sale of the Shares to any person by you and is based on an
untrue statement or omission or alleged untrue statement or omission made
in reliance on and in conformity with information relating to you furnished
in writing to the Company by you expressly for inclusion in the
Registration Statement, any preliminary prospectus or the Prospectus.
(b) You will indemnify and hold harmless the Company and each
person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, and each officer or director
of the Company who signs the Registration Statement to the same extent as
the foregoing indemnity from the Company to you, but only insofar as
losses, claims, liabilities, expenses or damages arise out of or are based
on any untrue statement or omission or alleged untrue statement or omission
made in reliance on and in conformity with information relating to you
furnished in writing to the Company by you expressly for use in the
Registration Statement or the Prospectus. This indemnity will be in
addition to any liability that you might otherwise have; PROVIDED, HOWEVER,
that in no case shall you be liable or responsible for any amount in excess
of the underwriting discounts and commissions received by you.
(c) Any party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim
is to be made against an indemnifying party or parties under this Section
6, notify each such indemnifying party of the commencement of such action,
enclosing a copy of all papers served, but the omission so to notify such
indemnifying party will not relieve it from any liability that it may have
to any indemnified party under the foregoing provisions of this Section 6
unless, and only to the extent that, such omission results in the
forfeiture of substantive rights or defenses by the indemnifying party. If
any such action is brought against any indemnified party and it notifies
the indemnifying party of its commencement, the indemnifying party will be
entitled to participate in and, to the extent that it elects by delivering
written notice to the indemnified party promptly after receiving notice of
the commencement of the action from the indemnified party, jointly with any
other indemnifying party similarly notified, to assume the defense of the
action, with counsel satisfactory to the indemnified party, and after
notice from the indemnifying party to the indemnified party of
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its election to assume the defense, the indemnifying party will not be
liable to the indemnified party for any legal or other expenses except as
provided below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the
defense. The indemnified party will have the right to employ its own
counsel in any such action, but the fees, expenses and other charges of
such counsel will be at the expense of such indemnified party unless (i)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (ii) the indemnified party has
reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (iii) a
conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party
(in which case the indemnifying party will not have the right to direct the
defense of such action on behalf of the indemnified party) or (iv) the
indemnifying party has not in fact employed counsel to assume the defense
of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party
or parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any time for all such indemnified party or
parties. All such fees, disbursements and other charges will be reimbursed
by the indemnifying party promptly as they are incurred. An indemnifying
party will not be liable for any settlement of any action or claim effected
without its written consent (which consent will not be unreasonably
withheld). No indemnifying party shall, without the prior written consent
of each indemnified party, settle or compromise or consent to the entry of
any judgment in any pending or threatened claim, action or proceeding
relating to the matters contemplated by this Section 6 (whether or not any
indemnified party is a party thereto), unless such settlement, compromise
or consent includes a unconditional release of each indemnified party from
all liability arising or that may arise out of such claim, action or
proceeding. Notwithstanding any other provision of this Section 6(c), if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement
effected without its written consent if (i) such settlement is entered into
more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the
terms of such settlement at least 30 days prior to such settlement being
entered
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into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but
for any reason is held to be unavailable from the Company or you, the
Company and you will contribute to the total losses, claims, liabilities,
expenses and damages (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company from persons other than
you, such as persons who control the Company within the meaning of the 1933
Act and officers of the Company who signed the Registration Statement, who
also may be liable for contribution) to which the Company and you may be
subject in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and you on the other. The
relative benefits received by the Company on the one hand and you on the
other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received
by you, in each case as set forth in the table on the cover page of the
Prospectus Supplement. If, but only if, the allocation provided by the
foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect
not only the relative benefits referred to in the foregoing sentence but
also the relative fault of the Company, on the one hand, and you, on the
other, with respect to the statements or omissions which resulted in such
loss, claim, liability, expense or damage, or action in respect thereof, as
well as any other relevant equitable considerations with respect to such
offering. Such relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied
by the Company or you, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by an indemnified party
as a result of the loss, claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 6(d) shall be deemed to
include, for purpose of this Section 6(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), you shall not be required to contribute
any amount in excess of the underwriting discounts, commissions and other
compensation received by you and no person found
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guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the 0000 Xxx) will be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this
Section 6(d), any person who controls a party to this Underwriting
Agreement within the meaning of the 1933 Act will have the same rights to
contribution as that party, and each officer of the Company who signed the
Registration Statement will have the same rights to contribution as the
Company, subject in each case to the provisions hereof. Any party entitled
to contribution, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim for contribution may
be made under this Section 6(d), will notify any such party or parties from
whom contribution may be sought but the omission so to notify will not
relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have under this Section 6(d). Except for a
settlement entered into pursuant to the last sentence of Section 6(c)
hereof, no party will be liable for contribution with respect to any action
or claim settled without its written consent (which consent will not be
unreasonably withheld).
(e) The indemnity and contribution agreements contained in this
Section 6 and the representations and warranties of the Company contained
in this Underwriting Agreement shall remain operative and in full force and
effect regardless of (i) any investigation made by you or on your behalf,
(ii) acceptance of the Shares and payment therefore or (iii) any
termination of this Underwriting Agreement.
7. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements of the Company contained herein or in
certificates delivered pursuant hereto, and your agreements contained in Section
6 hereof, shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of you or any controlling persons, or the
Company or any of its officers or any controlling persons, and shall survive
delivery of and payment for the Shares hereunder.
8. TERMINATION. You shall have the right by giving notice as
hereinafter specified at any time at or prior to the Closing Date, to terminate
this Underwriting Agreement if (i) the Company shall have failed, refused or
been unable, at or prior to the Closing Date, to perform any agreement on its
part to be performed hereunder, (ii) any other condition of your obligations
hereunder is not fulfilled when due, (iii) trading on the NYSE shall have been
wholly suspended, (iv) a banking moratorium shall have been declared by federal
or New York authorities, or (v) an outbreak of major hostilities in which the
United States is involved, a declaration of war by Congress, any other
substantial national or international calamity or any other event or occurrence
of a similar character shall have occurred since the execution of this
Underwriting Agreement that, in your
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judgment, makes it impractical or inadvisable to proceed with the completion of
the sale of and payment for the Shares. Any such termination shall be without
liability of any party to any other party with respect to Shares not purchased
by reason of such termination except that the provisions of Sections 4(g), 6 and
9 hereof shall at all times be effective. If you elect to terminate this
Underwriting Agreement as provided in this Section 8, the Company shall be
notified promptly by you by telephone, telex or telecopy, confirmed by letter.
9. REIMBURSEMENT OF UNDERWRITER'S EXPENSES. If the Company shall fail
to tender the Shares for delivery to you by reason of any failure, refusal or
inability on the part of the Company to perform any agreement on its part to be
performed, or because any other condition of your obligations hereunder required
to be fulfilled by the Company is not fulfilled, the Company will reimburse you
for all reasonable out-of-pocket expenses (including fees and disbursements of
counsel) incurred by you in connection with this Underwriting Agreement and the
proposed purchase of the Shares, and upon demand the Company shall pay the full
amount thereof to you.
10. NOTICES. All notices or communications hereunder shall be in
writing and if sent to you shall be mailed, delivered, telexed or telecopied and
confirmed to you at 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention: Xxxxx Zaumayer, phone 000-000-0000; fax 000-000-0000, (with a copy to
Xxx X. Xxxxxxxxx, Esq., c/o Rogers & Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, phone 000-000-0000; fax 000- 000-0000), or if sent to the Company, shall
be mailed, delivered, telexed or telecopied and confirmed to Xxxxxx X. D'Arcy,
CEO, or Xxxxxx X. Xxxxx, Xx., CFO, Xxxxxxx Real Estate, Inc., 00 Xxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 (phone 000-000-0000; fax
000-000-0000) (with copy to Xxxxxxx X. Xxxx, P.C., x/x Xxxxxxx, Xxxxxxx & Xxxx
XXX, Xxxxxxxx Xxxxx, Xxxxxx, XX 00000; phone 000-000-0000; fax 000-000-0000).
Any party to this Underwriting Agreement may change such address for notices by
sending to the other party to this Underwriting Agreement written notice of a
new address for such purpose.
11. PARTIES. This Underwriting Agreement shall inure to the
benefit of, and be binding upon, the Company and you and our respective
successors and the controlling persons and officers referred to in Section
6(a) hereof, and no other person will have any right or obligation
hereunder.
12. APPLICABLE LAW. This Underwriting Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
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Very truly yours,
XXXXXXX REAL ESTATE, INC.
By:_______________________
Name:
Title:
ACCEPTED as of the date first above
written
X. X. XXXXXXXXX, TOWBIN
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
By:______________________________
Name:
Title:
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EXHIBIT I
FORM OF KPMG COMFORT LETTER
I-1
24
SCHEDULE A
LIST OF SUBSIDIARIES OF THE COMPANY
Xxxxxxx Financing Corp.
Xxxxxxx Financing Partnership
Xxxxxxx Management Corp.
Xxxxxxx Management Limited Partnership
Xxxxxxxxxx Square Associates Limited Partnership
Xxxxxxx Midwest Management, Inc.
Xxxxxxx Real Estate Management, Inc.
Xxxxxxx Operating Limited Partnership
A-1
