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Exhibit 1.1
XXXXXXX REAL ESTATE, INC.
XXXXXXX OPERATING LIMITED PARTNERSHIP
$100,000,000 OF 7.2% NOTES DUE 2008
UNDERWRITING AGREEMENT
January 23, 1998
PAINEWEBBER INCORPORATED
SALOMON BROTHERS INC
BT ALEX. XXXXX INCORPORATED
X.X. XXXXXXX & SONS, INC.
c/o PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
Xxxxxxx Real Estate, Inc., a Maryland corporation (the "Company"), and
Xxxxxxx Operating Limited Partnership, a Delaware limited partnership (the
"Operating Partnership" and together with the Company, the "Transaction
Entities"), confirm their agreement with PaineWebber Incorporated, Salomon
Brothers Inc, BT Alex. Xxxxx Incorporated and X.X. Xxxxxxx & Sons, Inc. (the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 9 of this Underwriting Agreement), with respect
to the sale by the Operating Partnership and the purchase by the Underwriters,
acting severally and not jointly, of $100,000,000 aggregate principal amount of
its 7.20% Notes due 2008 (the "Securities"), as further described on Schedules A
and B hereto.
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 SECURITIES. The Operating Partnership proposes to issue
and sell to the Underwriters the Securities to be issued under an Indenture,
dated November 24, 1997 (the "Senior Indenture"), as supplemented by
Supplemental Indenture No. 2 thereto to be dated January 28, 1998 (the
"Supplemental Indenture" and together with the Senior Indenture, the
"Indenture") between the Operating Partnership and LaSalle National Bank, as
trustee (the "Trustee").
2. REPRESENTATIONS AND WARRANTIES OF THE TRANSACTION ENTITIES. Each of the
Transaction Entities, jointly and severally, represents and warrants to you and
the Underwriters as follows:
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(a) The Operating Partnership has filed with the Securities
and Exchange Commission (the "Commission") a registration statement
on Form S-3 (File No. 333-36577) for the registration of debt
securities 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 thereunder
(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
"Exchange 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 of the Securities 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 Securities 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
Securities 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; the Indenture, on the date of filing thereof
with the Commission and at the Closing Date conformed or will
conform in all material respects with the requirements of the Trust
Indenture Act of 1939, as amended, and the rules and regulations of
the Commission thereunder (the "TIA"); 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
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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
(i) that part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification under the TIA (the "Form
T-1") and (ii) statements in, or omissions from, any such document
in reliance upon, and in conformity with, information concerning the
Underwriters that was furnished to the Transaction Entities by the
Underwriters 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 Exchange 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 Exchange Act and the rules and regulations of the Commission
thereunder (the "Exchange Act Rules and Regulations"), as
applicable.
(d) The financial statements of the Operating Partnership set
forth or incorporated by reference in the Registration Statement and
Prospectus fairly present the financial condition of the Operating
Partnership 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 Transaction Entities are the subsidiaries
listed on Schedule C hereto (the "Subsidiaries"). Each of the
Transaction Entities and each of their 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. Each of the Transaction
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Entities 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 Transaction Entities taken as a whole;
and, other than the Subsidiaries, the Transaction Entities own 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 Securities have been duly authorized and are, or when
issued as contemplated hereby will be, validly issued, fully paid
and non-assessable by the Operating Partnership and conform, or when
so issued will conform, to the description thereof in the
Prospectus. All of the partnership interests of the Operating
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.
(g) The Securities will be as of the Closing Date duly
authorized by the Operating Partnership for issuance and sale
pursuant to this Underwriting Agreement and the Indenture; and when
duly authenticated and delivered by the Trustee in accordance with
the terms of the Indenture (assuming the due authorization,
execution and delivery of the Indenture by the Trustee), and
delivered to, and paid for by, the Underwriters pursuant to this
Underwriting Agreement, the Securities will be valid and legally
binding obligations of the Operating Partnership entitled to the
benefit of the Indenture and will be enforceable against the
Operating Partnership in accordance with their terms, except to the
extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity) (together, the
"Enforceability Limitations") 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, bylaws or partnership
agreement, as the case may be, of either of the Transaction Entities
or any of their Subsidiaries or any material contract, lease or
other instrument to which the
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Transaction Entities or any of their Subsidiaries is a party or to
which any of their property may be bound or any law, administrative
regulation or administrative or court decree, except for such
breaches or defaults which individually or in the aggregate do not
involve a material risk to the business, properties, financial
position or results of operations of the Transaction Entities taken
as a whole; the Indenture has been duly qualified under the TIA and
prior to the issuance of the Securities will be duly authorized,
executed and delivered by the Operating Partnership, and assuming
due authorization, execution and delivery thereof by the Trustee,
will constitute a valid and legally binding obligation of the
Operating Partnership, enforceable against the Operating Partnership
in accordance with its terms, subject to the Enforceability
Limitations; the Securities and the Indenture will conform in all
material respects to the statements relating thereto contained in
the Prospectus; and the Securities are, in all material respects, in
the form contemplated by the Indenture.
(h) 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 Transaction Entities
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 Transaction Entities 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
Transaction Entities, 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 Transaction Entities on a consolidated
basis.
(i) Except as set forth in the Prospectus, there is not
pending or, to the knowledge of the Transaction Entities, threatened
any action, suit or proceeding to which any of the Transaction
Entities 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 Transaction Entities, or might
materially and adversely affect the properties or assets thereof.
(j) There are no contracts or documents of the Transaction
Entities 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 Exchange Act or by the 1933
Act Rules and Regulations or the Exchange Act Rules and Regulations
that have not been so filed.
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(k) This Underwriting Agreement has been duly executed,
delivered and will be performed by each of the Transaction Entities,
and the Indenture has been duly authorized, executed delivered and
performed by the Operating Partnership. The execution of this
Underwriting Agreement and the Indenture and the consummation of the
transactions herein and therein contemplated will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any agreement or instrument
to which either of the Transaction Entities is a party or by which
it is bound or to which any of the property of either of the
Transaction Entities is subject, the charter, or bylaws or
partnership agreement, as the case may be, of either of the
Transaction Entities, or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over either of
the Transaction Entities or any of their 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 and the
Indenture in connection with the issuance or sale of the Securities
by the Operating Partnership, except such as may be required under
the 1933 Act, the TIA or state securities laws; and the Operating
Partnership has full power and authority to authorize, issue and
sell the Securities as contemplated by this Underwriting Agreement
and the Indenture, free of any preemptive or similar rights.
(l) The Transaction Entities have complied in all respects
with all laws, regulations and orders applicable to them or their
respective businesses; the Transaction Entities are 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 either of the Transaction Entities is a party or
by which either of the Transaction Entities or any of their
properties are bound, violation of which would individually or in
the aggregate have a material adverse effect on the Transaction
Entities, and no other party under any such agreement or instrument
to which either of the Transaction Entities is a party, to the
knowledge of the Transaction Entities, in default in any material
respect thereunder; and neither of the Transaction Entities is in
violation of their organizational documents.
(m) Except as described in the Prospectus, and except for
defects or exceptions that are not material in relation to the
business of the Transaction Entities, their 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
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by the Company (the "Transferred Properties"), substantially all of
the Properties (as defined in the Prospectus) have been transferred
from the Company to the Operating Partnership as of the date hereof;
(ii) the Transaction Entities and each of their Subsidiaries and any
partnership or joint venture in which such party is a participant (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
Operating Partnership, they are disclosed in the Prospectus or noted
in the Transfer Deeds; (iv) the Operating Partnership, its
Subsidiaries and Related Entities have valid, subsisting and
enforceable (subject to the Enforceability Limitations) leases for
the properties described in the Prospectus as leased by them; (v) no
tenant under any of the leases pursuant to which the Operating
Partnership, 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
Transaction Entities, the use and occupancy of each of the
Properties of the Operating Partnership, its Subsidiaries and
Related Entities complies in all material respects with all
applicable codes and zoning laws and regulations; (vii) the
Operating Partnership, 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 Operating Partnership, its Subsidiaries or Related Entities;
and (viii) the Operating Partnership, 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 on, or access to any of the
Properties of the Operating Partnership, its Subsidiaries or Related
Entities.
(n) Title insurance in favor of the mortgagee, the Transaction
Entities, their Subsidiaries and Related Entities is maintained with
respect to each of the Properties owned by the Transaction Entities,
their 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 Transaction Entities, their 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 Transaction Entities,
their Subsidiaries and Related Entities taken as a whole.
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(o) The mortgages and deeds of trust encumbering the
Properties and assets described in the Prospectus are not
convertible, nor do the Operating Partnership or its Subsidiaries
hold a participating interest therein.
(p) Except as set forth in the Prospectus, none of the
Transaction Entities has any 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 Transaction Entities taken as
whole. In connection with the construction on or operation and use
of the properties owned by the Transaction Entities, each of the
Transaction Entities 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 Transaction Entities taken as a whole.
(q) Property and casualty insurance in favor of each of the
Transaction Entities and each of their 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.
(r) Each Transaction Entity 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) The Operating Partnership is classified as a partnership
(and is not taxed as a corporation) for federal income tax purposes.
(t) 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
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Transaction Entities of this Underwriting 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., or as may be necessary under state
securities laws) has been obtained or made and is in full force and
effect.
(u) Each Transaction Entity holds all material licenses,
certificates and permits from governmental authorities which are
necessary to the conduct of its business; and neither of the
Transaction Entities have infringed any patents, patent rights,
trade names, trademarks or copyrights, which infringement is
material to the business of the Operating Partnership as a whole.
(v) 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.
(w) Neither Transaction Entity or any of its subsidiaries, is
an "investment company" within the meaning of the Investment
Operating Partnership Act of 1940, as amended.
(x) Each of the partnership and joint venture agreements to
which either of the Transaction Entities 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, subject to the Enforceability Limitations, 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 bylaws of either of the
Transaction Entities or any material contract, lease or other
instrument to which the Transaction Entities or any of their
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 SECURITIES. On the basis of the
representations, warranties and agreements contained
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herein, but subject to the terms and conditions set forth herein, the Operating
Partnership agrees to issue and sell the Securities to the several Underwriters,
and each of the Underwriters, severally and not jointly, agrees to purchase from
the Operating Partnership the respective principal amount of Securities set
forth on Schedule B hereto at the purchase price set forth on Schedule A hereto
plus accrued interest, if any, from the date specified on Schedule A hereto to
the date of payment and delivery.
The Operating Partnership understands that the Underwriters intend (i) to
make a public offering of the Securities and (ii) initially to offer the
Securities upon the terms set forth in the Prospectus.
Payment for the Securities shall be made to the Operating Partnership or
to its order in immediately available funds in the amount, on the date and at
the time and place set forth on Schedule D hereto (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 Operating Partnership may agree in writing). Such
payment will be made upon delivery to you of the Securities registered in such
names and in such denominations 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 the Underwriters duly paid by the
Operating Partnership. 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
Securities are referred to herein as the "Closing Date." The Securities 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 Operating Partnership shall agree.
4. COVENANTS. Each of the Transaction Entities jointly and severally
covenants and agrees to:
(a) Cause the Prospectus 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 Transaction Entities 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 Securities is required to
be delivered under the 1933 Act, the Transaction Entities 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
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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
Securities, and (iii) file no amendment or supplement to the
Registration Statement or Prospectus (other than any document
required to be filed under the Exchange 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
Transaction Entities 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 Securities 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 Exchange
Act, the Exchange Act Rules and Regulations and the TIA as
from time to time in force, so far as necessary to permit the
continuance of sales of, or dealings in, the Securities 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
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 Transaction Entities will promptly notify you
and will amend or supplement the Registration Statement or
Prospectus (at the expense of the Transaction Entities) 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 Securities is required to be
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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
Transaction Entities under the 1933 Act and Exchange 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 Transaction Entity'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 Transaction Entities under this
Underwriting Agreement, including but not limited to costs and
expenses of or relating to (i) the preparation, printing 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 word processing and
reproduction of the Indenture and the Securities, (iii) the
costs incurred by the Transaction Entities 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 Securities
by you or by dealers to whom Securities may be sold, (iv) any
registration or qualification of the Securities 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) the fees charged by Xxxxx'x Investors Service,
Inc. ("Moody's") and Standard & Poor's Rating Services ("S&P"
and, together with Moody's, the "Rating Agencies") for the
rating of the Securities at the request of the Operating
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Partnership, (v) counsel to the Transaction Entities, (vi) the transfer
agent for the Securities, (vii) the costs and expenses of the Trustee
under the Indenture and (viii) KPMG Peat Marwick LLP ("KPMG") or any other
accountants engaged by the Transaction Entities in connection with the
offering of the Securities.
(h) 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 Securities.
(i) Take all reasonable action necessary to enable the Rating
Agencies to provide their respective credit ratings of the Securities.
(j) Execute and deliver the Supplemental Indenture designating the
Securities as the debt securities to be offered, and its terms and
provisions in accordance with the provisions of the Senior Indenture.
(k) Apply the net proceeds to the Operating Partnership from the
sale of the Securities by the Operating Partnership as set forth under the
caption "Use of Proceeds" in the Prospectus.
(l) 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 Securities are to occur, unless
otherwise specified in the Prospectus.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS AT THE CLOSING. The
Underwriters' obligation to purchase and pay for the Securities at the Closing
as provided herein shall be subject to the accuracy of the representations and
warranties of the Transaction Entities herein and to the performance by each
Transaction Entity 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 Operating Partnership, dated the Closing Date,
to the effect that:
(i) Each of the Transaction Entities and each of their
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
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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 Transaction Entities taken as a whole;
(ii) All of the partnership units of the Operating
Partnership (as disclosed in the Prospectus) owned by the
Company are owned by the Company free and clear of all liens,
charges and encumbrances;
(iii) The Operating Partnership has the authorized,
issued and outstanding debt, and partnership units as set
forth under the caption "Capitalization" in the Prospectus and
in its Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997; and all of the outstanding partnership
units of the Operating Partnership are fully paid and
nonassessable and, to the knowledge of such counsel, none of
them was issued in violation of any preemptive or other
similar right. The issuance of the Securities has been duly
authorized by the Operating Partnership and, when duly
authenticated and delivered by the Trustee in accordance with
the terms of the Indenture (assuming the due authorization,
execution and delivery of the Indenture by the Trustee), and
delivered to, and paid for by, the Underwriters pursuant to
this Underwriting Agreement, such Securities will constitute
valid and legally binding obligations of the Operating
Partnership entitled to the benefits provided for in the
Indenture and will be enforceable against the Operating
Partnership in accordance with their terms, subject to the
Enforceability Limitations. To the knowledge of such counsel,
no holder of any security of the Operating Partnership has the
right to have any security owned by such holder included for
registration in the Registration Statement or to demand
registration of any security owned by such holder during the
180 days after the date of this Underwriting Agreement;
(iv) The Registration Statement has become effective
under the 1933 Act, the Indenture has been qualified under the
TIA, the Prospectus has been filed as required by Section 4(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;
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(v) 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 Exchange Act, as the case may be,
complied as to form in all material respects with the
requirements of the 1933 Act or the Exchange Act, as
applicable, and the 1933 Act or Exchange Act Rules and
Regulations, as applicable; it being understood that such
counsel need express no opinion as to the financial statements
or other financial data included in any other documents
mentioned in this clause;
(vi) 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
Exchange Act if upon such filing they would be incorporated by
reference therein) or to be filed as exhibits to the
Registration Statement that are not described and filed as
required;
(vii) This Underwriting Agreement has been duly
authorized, executed and delivered by each of the Company and
the Operating Partnership; 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,
bylaws or partnership agreement, as the case may be, of either
of the Company or the Operating Partnership, or any statute
known to such counsel applicable to the Company or the
Operating Partnership; 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 Securities by the Operating Partnership, except such as
have been obtained under the 1933 Act and such as may be
required under
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state securities laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(viii) The Indenture has been duly and validly
authorized, executed and delivered by the Operating
Partnership and assuming due authorization, execution and
delivery thereof by the Trustee, will constitute a valid and
legally binding agreement of the Operating Partnership,
enforceable against the Operating Partnership in accordance
with its terms, subject to the Enforceability Limitations; the
execution, delivery and performance of the Indenture and the
consummation of the transactions contemplated therein will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, the partnership
agreement of the Operating Partnership or any statute
applicable to the Operating Partnership and known to such
counsel; and the Indenture has been duly qualified under the
TIA;
(ix) The Indenture and the Securities conform in all
material respects to the descriptions thereof in the
Registration Statement and the Prospectus under the captions
"Description of Debt Securities" and "Description of Notes;"
(x) 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;
(xi) None of the Transaction Entities or their
subsidiaries is an "investment company" within the meaning of
the Investment Company Act of 1940, as amended;
(xii) The Operating Partnership is classified as a
partnership (and is not taxed as a corporation) for federal
income tax purposes; and
(xiii) The Operating Partnership 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.
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
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participated in conferences with officers and other
representatives of the Transaction Entities 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, either or the Transaction Entities or any of
their Subsidiaries, involving the Transaction Entities' or any
of their Subsidiaries' officers or directors or to which any
of the Transaction Entities' or any of their 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 Transaction Entities and their
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 each of the Transaction Entities, the validity of the
Securities, 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.
(d) You shall have received from the Transaction Entities a
certificate, signed by the president or a vice president and by the
principal financial or accounting officer
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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
Transaction Entities in this Underwriting Agreement are true and
correct, as if made at and as of the Closing Date, and the
Transaction Entities have 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 Exchange Act and the
Exchange Act Rules and Regulations that upon such filing would be
deemed to be incorporated by reference in the Prospectus that has
not been so filed.
(e) (i) None of the Transaction Entities or their
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 either Transaction Entity 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 either Transaction Entity, 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 the
reasonable judgment of the Underwriters, so material and adverse as
to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities being delivered on the
Closing Date on the terms and in the manner contemplated in the
Prospectus.
(f) 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 Operating Partnership
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will furnish you with such conformed copies of such opinions,
certificates, letters and other documents as you shall reasonably
request and the Operating Partnership shall furnish to you such
further certificates and documents as you shall have reasonably
requested.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Transaction Entities jointly and severally will
indemnify and hold harmless each Underwriter and its directors,
officers, employees and agents and each person, if any, who controls
each Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the Exchange 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 an Underwriter, or any
such person, may become subject under the 1933 Act, the Exchange 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 Exchange Act and
deemed to be incorporated by reference into the Prospectus, or in
any application or other document executed by or on behalf of either
Transaction Entity or based on written information furnished by or
on behalf of either Transaction Entity filed in any jurisdiction in
order to qualify the Securities 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 or any alleged act or failure to act by an
Underwriter in connection with, or relating in any manner to, the
Securities 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 Transaction Entities
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 an Underwriter through gross negligence or willful
misconduct); provided that the Transaction Entities will not be
liable to the extent that such loss, claim,
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liability, expense or damage arises from the sale of the Securities
to any person by an Underwriter 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 an Underwriter
furnished in writing to the Transaction Entities by an Underwriter
expressly for inclusion in the Registration Statement, any
preliminary prospectus or the Prospectus.
(b) The Underwriters will indemnify and hold harmless
each Transaction Entity and each person, if any, who controls each
Transaction Entity within the meaning of Section 15 of the 1933 Act
or Section 20 of the Exchange Act, each partner of the Transaction
Entities and each officer or director of the Transaction Entities
who signs the Registration Statement to the same extent as the
foregoing indemnity from the Transaction Entities to the
Underwriters, 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 an
Underwriter furnished in writing to the Transaction Entities by such
Underwriter expressly for use in the Registration Statement or the
Prospectus. This indemnity will be in addition to any liability that
the Underwriters might otherwise have; provided, however, that in no
case shall the Underwriters be liable or responsible for any amount
in excess of the underwriting discounts and commissions received by
the Underwriters.
(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 its election to assume the defense, the
indemnifying party
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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
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being entered 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 Transaction Entities or the Underwriters, the
Transaction Entities and the Underwriters 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 Transaction Entities from persons other
than the Underwriters, such as persons who control the Transaction
Entities within the meaning of the 1933 Act and officers of the
Transaction Entities who signed the Registration Statement, who also
may be liable for contribution) to which the Transaction Entities
and the Underwriters may be subject in such proportion as shall be
appropriate to reflect the relative benefits received by the
Transaction Entities on the one hand and the Underwriters on the
other. The relative benefits received by the Transaction Entities on
the one hand and the Underwriters 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 Transaction Entities
bear to the total underwriting discounts and commissions received by
the Underwriters, 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 Transaction Entities, on the one hand, and the
Underwriters, 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 Transaction Entities or the Underwriters, 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
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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), the
Underwriters shall not be required to contribute any amount in
excess of the underwriting discounts, commissions and other
compensation received by the Underwriters and no person found 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 Transaction Entities who signed the Registration Statement
will have the same rights to contribution as the Transaction
Entities, 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
Transaction Entities contained in this Underwriting Agreement shall
remain operative and in full force and effect regardless of (i) any
investigation made by the Underwriters or on their behalf, (ii)
acceptance of the Securities 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 Transaction Entities contained
herein or in certificates delivered pursuant hereto, and the Underwriters'
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 the
Underwriters or any controlling persons, or the Transaction Entities or any of
its officers or any controlling persons, and shall survive delivery of and
payment for the Securities hereunder.
8. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If, on the Closing
Date, any Underwriter defaults in the performance of its obligations under this
Underwriting Agreement, the remaining non-defaulting Underwriters shall be
obligated to purchase the
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Securities that the defaulting Underwriter agreed but failed to purchase on the
Closing Date in the respective proportions which the principal amount of
Securities set forth opposite the name of each remaining non-defaulting
Underwriter in Schedule A hereto bears to the total aggregate principal amount
of Securities set forth opposite the names of all the remaining non-defaulting
Underwriters in Schedule A hereto; provided, however, that the remaining
non-defaulting Underwriters shall not be obligated to purchase any of the
Securities on the Closing Date if the total aggregate principal amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such date exceeds 9.09% of the total aggregate principal amount of
Securities to be purchased on the Closing Date, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than 110% of the aggregate
principal amount of Securities which it agreed to purchase on the Closing Date
pursuant to the terms of Section 3 without the written consent of such
Underwriter. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the
Underwriters who so agree, shall have the right, but shall not be obligated, to
purchase, in such proportion as may be agreed upon among them, all the
Securities to be purchased on the Closing Date. If the remaining Underwriters or
other underwriters satisfactory to the Underwriters do not elect to purchase the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase on the Closing Date, this Underwriting Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Transaction Entities, except that the Transaction Entities will continue to be
liable for the payment of expenses to the extent set forth in Sections 4 and 6.
As used in this Underwriting Agreement, the term "Underwriter" includes, for all
purposes of this Underwriting Agreement unless the context requires otherwise,
any party not listed in Schedule A hereto who, pursuant to this Section 9,
purchases Securities which a defaulting Underwriter agreed but failed to
purchase.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Transaction Entities for damages caused by its
default. If other underwriters are obligated or agree to purchase the Securities
of a defaulting or withdrawing Underwriter, either the Underwriters or the
Company may postpone the Delivery Date for up to seven full business days in
order to effect any changes that in the opinion of counsel for the Operating
Partnership or counsel for the Underwriters may be necessary in the Registration
Statement, the Prospectus or in any other document or arrangement.
9. 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) either of the Transaction Entities 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
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condition of your obligations hereunder is not fulfilled when due, (iii) the
rating assigned by any nationally recognized statistical rating organization
("Rating Organization") to the Company, the Operating Partnership or the
Securities of either of them as of or subsequent to the date of this Agreement
shall have been lowered since that date or if such Rating Organization shall
have publicly announced that it has under surveillance or review for the purpose
of considering lowering such rating, its rating of the Company, the Operating
Partnership or the Securities, (iv) trading on the New York Stock Exchange shall
have been wholly suspended, (v) a banking moratorium shall have been declared by
federal or New York authorities, or (vi) 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 judgment, makes it impractical or
inadvisable to proceed with the completion of the sale of and payment for the
Securities. Any such termination shall be without liability of any party to any
other party with respect to Securities not purchased by reason of such
termination except that the provisions of Sections 4(g), 6 and 10 hereof shall
at all times be effective. If you elect to terminate this Underwriting Agreement
as provided in this Section 9, each of the Transaction Entities shall be
notified promptly by you by telephone, telex or telecopy, confirmed by letter.
10. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Operating
Partnership shall fail to tender the Securities for delivery to the Underwriters
by reason of any failure, refusal or inability on the part of the Transaction
Entities to perform any agreement on their part to be performed, or because any
other condition of the Underwriters' obligations hereunder required to be
fulfilled by the Transaction Entities is not fulfilled, the Transaction Entities
will reimburse the Underwriters for all reasonable out-of-pocket expenses
(including fees and disbursements of counsel) incurred by the Underwriters in
connection with this Underwriting Agreement and the proposed purchase of the
Securities, and upon demand the Transaction Entities shall pay the full amount
thereof to the Underwriters. If this Underwriting Agreement is terminated
pursuant to Section 9 by reason of the default of one or more Underwriters, the
Transaction Entities shall not be obligated to reimburse any defaulting
Underwriter on account of those expenses.
11. 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 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, c/o
Real Estate Investment Banking, attention: Xxxxx X. Xxxxxx (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 Operating Partnership, shall be mailed,
delivered, telexed or telecopied and confirmed to
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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.
12. PARTIES. This Underwriting Agreement shall inure to the benefit
of, and be binding upon, the Transaction Entities and the Underwriters 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.
13. APPLICABLE LAW. This Underwriting Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York.
26
27
Very truly yours,
XXXXXXX REAL ESTATE, INC.
By:/s/ Xxxxxx X. D'Arcy
------------------
Name: Xxxxxx X. D'Arcy
Title: Chief Executive Officer
XXXXXXX OPERATING LIMITED PARTNERSHIP
By: XXXXXXX REAL ESTATE, INC.,
its general partner
By:/s/ Xxxxxx X. D'Arcy
------------------
Name: Xxxxxx X. D'Arcy
Title: Chief Executive Officer
ACCEPTED as of the date first above
written
PAINEWEBBER INCORPORATED
SALOMON BROTHERS INC
BT ALEX. XXXXX INCORPORATED
X.X. XXXXXXX & SONS, INC.
c/o PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: PAINEWEBBER INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
27
28
EXHIBIT I
FORM OF KPMG COMFORT LETTER
I-1
29
SCHEDULE A
Principal Amount
Underwriters of 2008 Notes
------------ ----------------
PaineWebber Incorporated $32,500,000
Salomon Brothers Inc 32,500,000
BT Alex. Xxxxx Incorporated 17,500,000
X.X. Xxxxxxx & Sons, Inc. 17,500,000
------------
Total $100,000,000
============
X-0
00
XXXXXXXX X
Notes Due 2008
--------------
Principal Amount $100,000,000.00
Coupon: 7.20%
Settlement Date: January 28, 1998
Price to Public: 99.701% of par
Price to Public: $ 99,701,000.00
Underwriting Discount: 0.650% of par
Underwriting Discount: $ 650,000.00
Price to Underwriter: 99.051%
Proceeds to the
Operating Partnership $ 99,051,000.00
Maturity Date: January 15, 2008
B-1
31
SCHEDULE C
LIST OF SUBSIDIARIES OF THE
TRANSACTION ENTITIES
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 Spring Mall, Inc.
Xxxxxxx Spring Mall Limited Partnership
C-1
32
SCHEDULE D
AMOUNT, DATE, TIME AND PLACE
OF PAYMENT FOR THE SECURITIES
TO THE OPERATING PARTNERSHIP
C-2
