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EXHIBIT 1.01
EXCEL REALTY TRUST, INC.
(a Maryland corporation)
Common Stock, Preferred Stock, Depositary Shares and Warrants
UNDERWRITING AGREEMENT
----------------------
January 30, 1997
XXXXXX XXXX LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Excel Realty Trust, Inc., a Maryland corporation (the "Company"),
proposes to issue and sell shares of Common Stock, $.01 par value (the "Common
Stock"), or warrants to purchase a number of shares of Common Stock (the
"Common Stock Warrants"), or both, or shares of Preferred Stock, $.01 par value
(the "Preferred Shares"), or warrants to purchase a number of Preferred Shares
(the "Preferred Share Warrants"), or both, or interests in Preferred Shares in
the form of depositary shares (the "Depositary Shares") represented by
depositary receipts (the "Depositary Receipts"), or warrants to purchase a
number of Depositary Shares (the "Depositary Share Warrants"), or both, from
time to time, in one or more offerings on terms to be determined at the time of
sale. The Common Stock Warrants, Preferred Share Warrants and Depositary Share
Warrants (collectively, the "Warrants") will be issued pursuant to one or more
Warrant Agreements (each, a "Warrant Agreement") between the Company and a
warrant agent specified therein (the "Warrant Agent"). Each series of
Preferred Shares may vary as to the specific number of shares, title, stated
value, liquidation preference, issuance price, ranking, dividend rate or rates
(or method of calculation), dividend payment dates, redemption provisions,
sinking fund requirements, conversion or exchange provisions and any other
variable terms as set forth in the applicable articles supplementary (each, the
"Articles Supplementary") relating to such Preferred Shares. As used herein,
"Securities" shall mean the Common Stock, the Common Stock Warrants, the
Preferred Shares, the Preferred Share Warrants, the Depositary Shares, the
Depositary Share Warrants and the Depositary Receipts; and "Warrant Securities"
shall mean the Common Stock, Preferred Shares and Depositary Shares issuable
upon exercise of the Warrants. As used herein, "you" and "your",
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unless the context otherwise requires, shall mean the parties to whom this
Agreement is addressed together with the other parties, if any, identified in
the applicable Terms Agreement (as defined herein) as additional co-managers
with respect to Underwritten Securities (as hereinafter defined) purchased
pursuant thereto.
Whenever the Company determines to make an offering of Securities
through you or through an underwriting syndicate managed by you, the Company
will enter into an agreement (the "Terms Agreement") providing for the sale of
such Securities (the "Underwritten Securities") to, and the purchase and
offering thereof by, you and such other underwriters, if any, selected by you
as have authorized you to enter into such Terms Agreement on their behalf (the
"Underwriters", which term shall include you whether acting alone in the sale
of the Underwritten Securities or as a member of an underwriting syndicate and
any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of Underwritten Securities shall specify the
number of Underwritten Securities of each class or series to be initially
issued (the "Initial Underwritten Securities"), including the number of
Warrants, if any, whether the Initial Underwritten Securities shall be in the
form of Depositary Shares and the fractional amount of Preferred Shares
represented by each Depositary Share, the names of the Underwriters
participating in such offering (subject to substitution as provided in Section
10 hereof), the number of Initial Underwritten Securities which each such
Underwriter severally agrees to purchase, the names of such of you or such
other Underwriters acting as co-managers, if any, in connection with such
offering, the price at which the Initial Underwritten Securities are to be
purchased by the Underwriters from the Company, the initial public offering
price, if any, the time, date and place of delivery and payment, any delayed
delivery arrangements and any other variable terms of the Initial Underwritten
Securities (including, but not limited to, current ratings (in the case of
Preferred Shares and Depositary Shares only), designations, liquidation
preferences, conversion or exchange provisions, redemption provisions and
sinking fund requirements and the terms of the Warrant Securities and the
terms, prices and dates upon which such Warrant Securities may be purchased).
In addition, each Terms Agreement shall specify whether the Company has agreed
to grant to the Underwriters an option to purchase additional Underwritten
Securities to cover over-allotments, if any, and the number of Underwritten
Securities subject to such option (the "Option Securities"). As used herein,
the term "Underwritten Securities" shall include the Initial Underwritten
Securities and all or any portion of the Option Securities agreed to be
purchased by the Underwriters as provided herein, if any. The Terms Agreement,
which shall be substantially in the form of Exhibit A hereto, may take the form
of an exchange of any standard form of written telecommunication
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between you and the Company. Each offering of Underwritten Securities through
you or through an underwriting syndicate managed by you will be governed by
this Agreement, as supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-59195) for the
registration of the Securities and Warrant Securities and certain of the
Company's 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 under the 1933 Act (the
"1933 Act Regulations"), and the Company has filed such amendments thereto as
may have been required prior to the execution of the applicable Terms
Agreement. Such registration statement (as amended, if applicable) has been
declared effective by the Commission. Such registration statement and the
prospectus constituting a part thereof, in each case as supplemented by a
prospectus supplement relating to the offering of Underwritten Securities (the
"Prospectus Supplement"), including in each case all documents incorporated
therein by reference and the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) or Rule 434 of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"), as from time to
time amended or supplemented pursuant to the 1933 Act, the Securities Exchange
Act of 1934, as amended (the "1934 Act"), or otherwise, are collectively
referred to herein as the "Registration Statement" and the "Prospectus",
respectively; provided, however, that a Prospectus Supplement shall be deemed
to have supplemented the Prospectus only with respect to the offering of
Underwritten Securities to which it relates. All references in this Agreement
to financial statements and schedules and other information which is
"contained," "included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include the filing of any document under
the 1934 Act which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be. If the Company
elects to rely on Rule 434 under the 1933 Act Regulations, all references to
the Prospectus shall be deemed to include, without limitation, the form of
prospectus and the abbreviated term sheet, taken together, provided to the
Underwriters by the Company in reliance on Rule 434 under the 1933 Act (the
"Rule 434 Prospectus"). If the Company files a registration statement to
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register a portion of the Securities and relies on Rule 462(b) for such
registration statement to become effective upon filing with the Commission (the
"Rule 462 Registration Statement"), then any reference to "Registration
Statement" herein shall be deemed to be to both the registration statement
referred to above (No. 33-59195) and the Rule 462 Registration Statement, as
each such registration statement may be amended pursuant to the 1933 Act.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to you, as of the date
hereof, and to you and each other Underwriter named in the applicable Terms
Agreement, as of the date thereof (in each case, a "Representation Date"), as
follows:
(i) The Registration Statement and the Prospectus, at
the time the Registration Statement became effective, complied, and as
of each Representation Date will comply, in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations; the
Registration Statement, at the time the Registration Statement became
effective, did not, and as of each Representation Date, 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, as of the date
hereof, does not, and as of each Representation Date will not, include
an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through you expressly for use in the Registration
Statement or Prospectus.
(ii) The accountants who certified the financial
statements and supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus are
independent public accountants as required by the 1933 Act and the
1933 Act Regulations; and there have been no disagreements with any
accountants or "reportable events" (as defined in Item 304 of
Regulation S-K promulgated by the Commission) required to be disclosed
in the Prospectus or elsewhere pursuant to such Item 304.
(iii) The historical financial statements of the Company
included or incorporated by reference in the
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Registration Statement and the Prospectus present fairly the financial
position of the Company and its consolidated subsidiaries, as at the
dates indicated and the results of operations for the periods
specified; except as otherwise stated in the Registration Statement
and the Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis and comply with the applicable accounting
requirements of the 1933 Act (including, without limitation, Rule 3-14
of Regulation S-X promulgated by the Commission), and all adjustments
necessary for a fair presentation of the results for such periods have
been made; the supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the information required to be stated therein; and the selected
financial data (both historical and pro forma) included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with the related financial statements
presented therein.
(iv) The historical summaries of revenue and certain
operating expenses included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the revenue
and those operating expenses included in such summaries of the
properties related thereto for the periods specified in conformity
with generally accepted accounting principles; the pro forma
consolidated financial statements included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the pro forma financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of
operations for the periods specified; and such pro forma financial
statements have been prepared in accordance with generally accepted
accounting principles applied on a basis consistent with the audited
financial statements of the Company included or incorporated by
reference in the Registration Statement and the Prospectus, the
assumptions on which such pro forma financial statements have been
prepared are reasonable and are set forth in the notes thereto, and
such pro forma financial statements have been prepared, and the pro
forma adjustments set forth therein have been applied, in accordance
with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations (including, without limitation, Regulation S-X
promulgated by the Commission), and such pro forma adjustments have
been properly applied to the historical amounts in the compilation of
such statements.
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(v) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its subsidiaries other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise, and (C) except for regular monthly or quarterly dividends
on the Company's Common Stock or dividends declared, paid or made in
accordance with the terms of any series of the Company's preferred
stock, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(vi) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Maryland, with corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under this Agreement and the Terms Agreement; the Company
is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or to
be in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company and its subsidiaries considered
as one enterprise; and the Articles Supplementary relating to the
Preferred Shares or Depositary Shares, if applicable, will be in full
force and effect as of each Closing Time.
(vii) Each subsidiary (which term, as used in this
Agreement, includes corporations, limited and general partnerships,
joint ventures and other entities) of the Company has been duly
organized and is validly existing and in good standing under the laws
of the jurisdiction of its organization, has power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so
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qualify or to be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; except as otherwise stated
in the Prospectus, all of the issued and outstanding capital stock of
or other ownership interests in each such subsidiary have been duly
authorized and validly issued, are fully paid and non-assessable and
are owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity, except for security interests granted in respect of
indebtedness of the Company or any of its subsidiaries and described
in the Prospectus and except that all of the partnership interests in
EH Properties, L.P. owned by the Company have been pledged as security
for borrowings under the Secured Revolving Credit Facility from The
First National Bank of Boston described in the Prospectus.
(viii) Each of the partnership and joint venture agreements
to which the Company or any of its subsidiaries 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 as limited by (a) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights or remedies of
creditors or (b) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be
brought; and the execution, delivery and performance of any of such
agreements by the Company or its subsidiaries, as applicable, did not,
at the time of execution and delivery, and does not constitute a
breach of, or default under, the charter or by-laws (or other
organizational documents) of such party or any material contract,
lease or other instrument to which such party is a party or by which
its properties may be bound or any law, administrative regulation or
administrative or court decree.
(ix) The authorized, issued and outstanding capital
stock of the Company is in all material respects as set forth in the
Prospectus under "Capitalization" (except for subsequent issuances, if
any, pursuant to reservations, agreements, employee benefit plans,
dividend reinvestment plans, employee and director stock option plans,
or upon the exercise of options, warrants or convertible debt
securities referred to in the Prospectus); and such shares of capital
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stock have been duly authorized and validly issued and are fully paid
and non-assessable and are not subject to preemptive or other similar
rights.
(x) The Underwritten Securities being sold pursuant to
this Agreement and the applicable Terms Agreement and, if applicable,
the deposit of the Preferred Shares in accordance with the provisions
of a Deposit Agreement (each, a "Deposit Agreement"), among the
Company, the financial institution specified therein (the
"Depositary") and the holders of the Depositary Receipts issued
thereunder, have, as of each Representation Date, been duly authorized
by the Company and such Underwritten Securities have been duly
authorized for issuance and sale pursuant to this Agreement and such
Terms Agreement and such Underwritten Securities, when issued and
delivered by the Company pursuant to this Agreement against payment of
the consideration set forth in such Terms Agreement or any Delayed
Delivery Contract (as hereinafter defined), will be validly issued,
fully paid and non-assessable, and the issuance of such Underwritten
Securities will not be subject to preemptive or other similar rights;
the Preferred Shares, if applicable, conform to the provisions of the
Articles Supplementary; and the Underwritten Securities being sold
pursuant to the applicable Terms Agreement conform in all material
respects to all statements relating thereto contained in the
Prospectus.
(xi) If applicable, the Warrants have been duly
authorized and, when issued and delivered pursuant to this Agreement
and the applicable Terms Agreement and countersigned by the Warrant
Agent as provided in the Warrant Agreement, will have been duly
executed, countersigned, issued and delivered and will constitute
valid and legally binding obligations of the Company entitled to the
benefits provided by the Warrant Agreement under which they are to be
issued; and the issuance of the Warrant Securities upon exercise of
the Warrants will not be subject to preemptive or other similar
rights; and the Warrants conform in all material respects to all
statements relating thereto contained in the Prospectus.
(xii) If applicable, the shares of Common Stock issuable
upon conversion of any of the Preferred Shares or the Depositary
Shares, or the exercise of the Warrant Securities, will have been duly
and validly authorized and reserved for issuance upon such conversion
or exercise of the Warrants, as the case may be, by all necessary
corporate action and such shares, when issued upon such conversion or
exercise, will be duly authorized and validly issued and
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will be fully paid and non-assessable, and the issuance of such shares
upon such conversion or exercise will not be subject to preemptive or
other similar rights; the shares of Common Stock issuable upon
conversion of any of the Preferred Shares or the Depositary Shares, or
the exercise of the Warrant Securities, conform in all material
respects to all statements relating thereto contained in the
Prospectus.
(xiii) The applicable Warrant Agreement, if any, and the
applicable Deposit Agreement, if any, will have been duly authorized,
executed and delivered by the Company prior to the issuance of the
related Underwritten Securities, and each constitutes a valid and
legally binding agreement of the Company enforceable in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws relating to or affecting
creditors' rights generally and by general equity principles
(regardless of whether enforcement is considered in a proceeding in
equity or at law); and the Warrant Agreement, if any, and the Deposit
Agreement, if any, each conforms in all material respects to all
statements relating thereto contained in the Prospectus.
(xiv) If applicable, upon execution and delivery of the
Depositary Receipts pursuant to the terms of the Deposit Agreement,
the persons in whose names such Depositary Receipts are registered
will be entitled to the rights specified therein and in the Deposit
Agreement, except as enforcement of such rights may be limited by
bankruptcy, insolvency or other similar laws relating to or affecting
creditors' rights generally and by general equity principles
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(xv) Neither the Company nor any of its subsidiaries is
in violation of its charter or by-laws (or, in the case of
subsidiaries which are not corporations, other organizational
documents) or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, except for any such violation or default that would not have
a material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise; and the
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execution, delivery and performance of this Agreement, the applicable
Terms Agreement, the applicable Warrant Agreement, if any, or the
applicable Deposit Agreement, if any, and the consummation of the
transactions contemplated herein and therein and compliance by the
Company with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action, and will not conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant
to, any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the charter
or by-laws of the Company or any applicable law, administrative
regulation or administrative or court decree.
(xvi) The Company has operated and intends to continue
to operate in such a manner as to qualify to be taxed as a "real
estate investment trust" under the Internal Revenue Code of 1986, as
amended (the "Code"), for the taxable year in which sales of the
Underwritten Securities are to occur.
(xvii) Neither the Company nor any of its subsidiaries is
an "investment company" within the meaning of the Investment Company
Act of 1940, as amended (the "1940 Act").
(xviii) There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries which is required to
be disclosed in the Prospectus (other than as disclosed therein), or
which might result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise, or which might materially and adversely affect the
properties or assets thereof or which might materially and adversely
affect the consummation of this Agreement, the applicable Terms
Agreement, the applicable Warrant Agreement, if any, or the applicable
Deposit Agreement, if any, or the transactions contemplated herein or
therein; all pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is subject which
are not described in the Prospectus, including ordinary routine
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litigation incidental to the business, are, considered in the
aggregate, not material; and there are no contracts or documents of
the Company or any of its subsidiaries which are required to be filed
as exhibits to the Registration Statement by the 1933 Act or by the
1933 Act Regulations which have not been so filed.
(xix) The Company and its subsidiaries own or possess
any trademarks, service marks, trade names or copyrights required in
order to conduct their respective businesses as described in the
Prospectus, other than those the failure to possess or own would not
have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise.
(xx) No authorization, approval, permit or consent of
any court or governmental authority or agency is necessary in
connection with the consummation by the Company of the transactions
contemplated by this Agreement, the applicable Terms Agreement, any
Warrant Agreement or any Deposit Agreement, except such as may be
required under the 1933 Act or the 1933 Act Regulations or state
securities or real estate syndication laws.
(xxi) The Company and its subsidiaries possess such
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
their respective businesses as described in the Prospectus, other than
those the failure to possess or own would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, and neither the Company nor
any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would materially and
adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(xxii) The Company has full corporate power and authority
to enter into this Agreement, the applicable Terms Agreement and the
Delayed Delivery Contracts, if any, and this Agreement has been, and
as of each Representation Date, the applicable Terms Agreement and the
Delayed Delivery
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Contracts, if any, will have been, duly authorized, executed and
delivered by the Company.
(xxiii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act (the "1934
Act Regulations"), and, when read together with the other information
in the Prospectus, at the time the Registration Statement became
effective and as of the applicable Representation Date or Closing Time
(as defined herein) or during the period specified in Section 3(f),
did not and will not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(xxiv) There are no persons with registration or other
similar rights to have any securities registered pursuant to the
Registration Statement.
(xxv) Neither the Company nor any of its officers or
directors has taken nor will any of them take, directly or indirectly,
any action resulting in a violation of Rule 10b-6 under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), or designed to
cause or result in, or which has constituted or which reasonably might
be expected to constitute, the stabilization or manipulation of the
price of the Underwritten Securities, the Warrant Securities or shares
of Common Stock issuable upon conversion of any of the Preferred
Shares or the Depositary Shares or facilitation of the sale or resale
of the Underwritten Securities.
(xxvi) Except as otherwise disclosed in the Prospectus
and except as would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company and its subsidiaries considered
as one enterprise: (a) the Company and its subsidiaries have good and
marketable title in fee simple to all real property and improvements
described in the Prospectus and, at the Closing Time, the Company and
its subsidiaries will have good and marketable title in fee simple to
all real property and improvements as described in the Prospectus; (b)
all liens, charges, encumbrances, claims or restrictions on or
affecting the real property and improvements owned by the Company or
any
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of its subsidiaries which are required to be disclosed in the
Prospectus are disclosed therein; (c) neither the Company nor any of
its subsidiaries nor, to the knowledge of the Company, any lessee of
any portion of the real property or improvements owned by the Company
or any of its subsidiaries is in default under any of the leases
pursuant to which the Company or any of its subsidiaries leases such
real property or improvements, and the Company knows of no event
which, but for the passage of time or the giving of notice, or both,
would constitute a default under any of such leases, except such
defaults that would not, individually or in the aggregate, have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise; (d) no tenant under
any of the leases pursuant to which the Company or any of its
subsidiaries leases any of its real property or improvements has an
option or right of first refusal to purchase the premises demised
under such lease, except that a tenant of the Galleria in Scottsdale,
Arizona holds a right of first refusal to purchase such property; (e)
all the real property and improvements owned by the Company and its
subsidiaries comply with all applicable codes and zoning laws and
regulations, except for such failures to comply that would not,
individually or in the aggregate, have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; and (f) the Company has no knowledge of
any pending or threatened condemnation, zoning change or other
proceeding or action that would in any manner affect the size of, use
of, improvements on, construction on, or access to any of the real
property or improvements owned by the Company or any of its
subsidiaries, except such proceedings or actions that would not,
individually or in the aggregate, have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(xxvii) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurances that
(a) transactions are executed in accordance with management's general
or specific authorizations; (b) transactions are recorded as necessary
to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (c) access to assets is permitted only in
accordance with management's general or specific authorization; and
(d) the recorded accountability for
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assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Neither
the Company nor any of its employees or agents has made any payment of
funds of the Company or received or retained any funds in violation of
any law, rule or regulation which payment, receipt or retention of
funds is of a character required to be disclosed in the Prospectus.
(xxviii) The Company and its subsidiaries have title
insurance on each of their respective properties, in each case in an
amount at least equal to (a) the cost of acquisition of such property
or (b) the cost of construction 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 and its subsidiaries considered as one enterprise.
(xxix) Except as otherwise disclosed in the Prospectus,
the Company has no knowledge of: (a) the unlawful presence of any
hazardous substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") on any of the
properties owned by the Company or any of its subsidiaries, or (b) any
unlawful spills, releases, discharges or disposal of Hazardous
Materials that have occurred or are presently occurring on or from any
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
and its subsidiaries considered as one enterprise; and in connection
with the construction on or operation and use of the properties owned
by the Company or its subsidiaries, the Company has no knowledge of
any material failure to comply with all applicable local, state and
federal environmental laws, regulations, ordinances and administrative
and judicial orders relating to the generation, recycling, reuse,
sale, storage, handling, transport and disposal of any Hazardous
Materials that could have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(b) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters in connection with the
offering of the Underwritten Securities shall
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be deemed a representation and warranty by the Company to each Underwriter
participating in such offering as to the matters covered thereby on the date of
such certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
Section 2. Purchase and Sale.
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the applicable Terms Agreement relating to
the Initial Underwritten Securities, an option to the Underwriters named in
such Terms Agreement, severally and not jointly, to purchase up to the number
of Option Securities set forth therein at the same price per Option Security as
is applicable to the Initial Underwritten Securities. Such option, if granted,
will expire 30 days or such lesser number of days as may be specified in the
applicable Terms Agreement after the Representation Date relating to the
Initial Underwritten Securities, and may be exercised in whole or in part from
time to time only for the purpose of covering over-allotments which may be made
in connection with the offering and distribution of the Initial Underwritten
Securities upon notice by you to the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time, date and place of payment and delivery for such Option
Securities. Any such time and date of delivery (a "Date of Delivery") shall be
determined by you, but shall not be later than seven full business days and not
be earlier than two full business days after the exercise of said option,
unless otherwise agreed upon by you and the Company. If the option is
exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase that proportion
of the total number of Option Securities then being purchased which the number
of Initial Underwritten Securities each such Underwriter has severally agreed
to purchase as set forth in the applicable Terms Agreement bears to the total
number of Initial Underwritten Securities (except as otherwise provided in the
applicable Terms Agreement), subject to such adjustments as you in your
discretion shall make to eliminate any sales or purchases of fractional Initial
Underwritten Securities.
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(c) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall be made at
the office of Xxxxx & Xxxx LLP, 58th Floor, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000, or at such other place as shall be agreed upon by you and
the Company, at 10:00 A.M., New York City time, on the third business day
(unless postponed in accordance with the provisions of Section 10) following
the date of the applicable Terms Agreement or, if pricing takes place after
4:30 p.m., New York City time on the date of the applicable Terms Agreement, on
the fourth business day (unless postponed in accordance with the provisions of
Section 10) following the date of the applicable Terms Agreement or at such
other time as shall be agreed upon by you and the Company (each such time and
date being referred to as a "Closing Time"). In addition, in the event that
any or all of the Option Securities are purchased by the Underwriters, payment
of the purchase price for, and delivery of certificates representing, such
Option Securities, shall be made at the above-mentioned offices of Xxxxx & Wood
LLP, or at such other place as shall be agreed upon by you and the Company on
each Date of Delivery as specified in the notice from you to the Company.
Unless otherwise specified in the applicable Terms Agreement, payment shall be
made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company, against delivery to you for the respective
accounts of the Underwriters for the Underwritten Securities to be purchased by
them. The Underwritten Securities or, if applicable, Depositary Receipts
evidencing the Depositary Shares, shall be in such authorized denominations and
registered in such names as you may request in writing at least one business
day prior to the applicable Closing Time or Date of Delivery, as the case may
be. The Underwritten Securities, which may be in temporary form, will be made
available for examination and packaging by you on or before the first business
day prior to the Closing Time or Date of Delivery, as the case may be.
If authorized by the applicable Terms Agreement, the Underwriters
named therein may solicit offers to purchase Underwritten Securities from the
Company pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to you at Closing Time, for the respective accounts of the
Underwriters, a fee specified in the applicable Terms Agreement for each of the
Underwritten Securities for which Delayed Delivery Contracts are made at the
Closing Time as is specified in the applicable Terms Agreement. Any Delayed
Delivery Contracts are to be with institutional investors of the types
described in the Prospectus. At the Closing Time, the Company will enter into
Delayed Delivery
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Contracts (for not less than the minimum number of Underwritten Securities per
Delayed Delivery Contract specified in the applicable Terms Agreement) with all
purchasers proposed by the Underwriters and previously approved by the Company
as provided below, but not for an aggregate number of Underwritten Securities
in excess of that specified in the applicable Terms Agreement. The
Underwriters will not have any responsibility for the validity or performance
of Delayed Delivery Contracts.
You shall submit to the Company, at least three business days prior to
the Closing Time, the names of any institutional investors with which it is
proposed that the Company will enter into Delayed Delivery Contracts and the
number of Underwritten Securities to be purchased by each of them, and the
Company will advise you, at least two business days prior to the Closing Time,
of the names of the institutions with which the making of Delayed Delivery
Contracts is approved by the Company and the number of Underwritten Securities
to be covered by each such Delayed Delivery Contract.
The number of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the number of Underwritten Securities covered by Delayed Delivery
Contracts, as to each Underwriter as set forth in a written notice delivered by
you to the Company; provided, however, that the total number of Underwritten
Securities to be purchased by all Underwriters shall be the total number of
Underwritten Securities covered by the applicable Terms Agreement, less the
number of Underwritten Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Company. The Company covenants with you,
and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) Immediately following the execution of the applicable Terms
Agreement, the Company will prepare a Prospectus Supplement setting forth the
number of Underwritten Securities covered thereby and their terms not otherwise
specified in the Prospectus pursuant to which the Underwritten Securities are
being issued, the names of the Underwriters participating in the offering and
the number of Underwritten Securities which each severally has agreed to
purchase, the names of the Underwriters acting as co-managers in connection
with the offering, the price at which the Underwritten Securities are to be
purchased by the Underwriters from the Company, the initial public offering
price, if any, the selling concession and reallowance, if any, any delayed
delivery arrangements, and such other information as you and the Company deem
appropriate in connection with the offering of the Underwritten Securities; and
the Company will, by the close of
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business in New York on the business day immediately succeeding the date of the
applicable Terms Agreement, transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and
will furnish to the Underwriters named therein as many copies of the Prospectus
(including such Prospectus Supplement) as you shall reasonably request. If the
Company elects to rely on Rule 434 under the 1933 Act Regulations, the Company
will prepare an abbreviated term sheet that complies with the requirements of
Rule 434 under the 1933 Act Regulations and will provide the Underwriters with
copies of the form of Rule 434 Prospectus, in such number as the Underwriters
may reasonably request, and file or transmit for filing with the Commission the
form of Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in
accordance with Rule 424(b) of the 1933 Act Regulations by the close of
business in New York on the business day immediately succeeding the date of the
applicable Terms Agreement.
(b) The Company will notify you immediately, and confirm such notice
in writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any Prospectus
Supplement or other supplement or amendment to the Prospectus or any document
to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from
the Commission, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any such stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(c) At any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Company will give you notice of its intention to file or
prepare any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or
otherwise, (including any revised Prospectus which the Company proposes for use
by the Underwriters in connection with an offering of Underwritten Securities
which differs from the Prospectus on file at the Commission at the time the
Registration Statement first becomes effective, whether or not such revised
Prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of
the 1933 Act Regulations) and will furnish you with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or
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preparation, as the case may be, and will not file or prepare any such
amendment or supplement or other documents in a form to which you or counsel
for the Underwriters shall reasonably object.
(d) The Company will deliver to each Underwriter as many signed and
conformed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) as such Underwriter reasonably requests.
(e) The Company will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the purposes
contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the
1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or counsel for the
Company, to amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of either such counsel,
at any such time to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, then the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing documents pursuant
to the 1933 Act, the 1934 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements, and the Company will furnish to the
Underwriters a reasonable number of copies of such amendment or supplement.
(g) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Underwritten Securities, the Warrant Securities, if any, and the
shares of Common Stock issuable upon conversion of the Preferred Shares or the
Depositary Shares, if any, for offering and sale under the applicable
securities laws and real estate syndication laws of such states and other
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jurisdictions of the United States as you may designate. In each jurisdiction
in which the Underwritten Securities, the Warrant Securities, if any, and the
shares of Common Stock issuable upon conversion of the Preferred Shares or the
Depositary Shares, if any, have been so qualified, the Company will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for so long as may be required for the
distribution of the Underwritten Securities and the Warrant Securities, if any;
provided, however, that the Company shall not be obligated to qualify as a
foreign corporation in any jurisdiction where it is not so qualified.
(h) With respect to each sale of Underwritten Securities, the Company
will make generally available to its security holders as soon as practicable,
but not later than 90 days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of Rule 158 of the
1933 Act Regulations) covering a twelve month period beginning not later than
the first day of the Company's fiscal quarter next following the "effective
date" (as defined in such Rule 158) of the Registration Statement.
(i) 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 Underwritten Securities are to occur.
(j) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, will file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time
periods prescribed by the 1934 Act and the 1934 Act Regulations.
(k) The Company will not, during a period of 45 days from the date of
the applicable Terms Agreement, with respect to the Underwritten Securities
covered thereby, without your prior written consent, offer or sell, grant any
option for the sale of, or enter into any agreement to sell, any Securities of
the same class or series or ranking on a parity with such Underwritten
Securities (other than the Underwritten Securities which are to be sold
pursuant to such Terms Agreement) or, if such Terms Agreement relates to
Underwritten Securities that are convertible into Common Stock, any Common
Stock or any security convertible into Common Stock (except for Common Stock
issued pursuant to reservations, agreements, employee benefit plans, dividend
reinvestment plans, employee and director stock option plans or as partial or
full payment for properties acquired or to be acquired by the Company), except
for issuances pursuant to the exercise of stock options granted pursuant to the
Company's
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employee and director stock option plans, or issuances pursuant to the
Company's dividend reinvestment plan or pursuant to the Company's employee
benefit plans, or issuances pursuant to the exchange of limited partnership
units in Excel Realty Partners, L.P. and except as may be otherwise provided in
the applicable Terms Agreement.
(l) If the Preferred Shares or Depositary Shares are convertible into
shares of Common Stock or if Warrants are issued, the Company will reserve and
keep available at all times, free of preemptive or other similar rights, a
sufficient number of shares of Common Stock or Preferred Shares, as the case
may be, for the purpose of enabling the Company to satisfy any obligations to
issue such shares upon conversion of the Preferred Shares or the Depositary
Shares, as the case may be, or upon exercise of the Warrants.
(m) If the Preferred Shares or Depository Shares are convertible into
shares of Common Stock, the Company will use its best efforts to list the
shares of Common Stock issuable upon conversion of the Preferred Shares or
Depositary Shares on the New York Stock Exchange or such other national
exchange on which the Company's shares of Common Stock are then listed.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement or the
applicable Terms Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the printing and filing of this Agreement and the applicable Terms Agreement,
(iii) the preparation, issuance and delivery of the Underwritten Securities to
the Underwriters and the Warrant Securities, if any, (iv) the fees and
disbursements of the Company's counsel and accountants, (v) the qualification
of the Underwritten Securities, the Warrant Securities, if any, and the shares
of Common Stock issuable upon conversion of the Preferred Shares or the
Depositary Shares, if any, under securities laws and real estate syndication
laws in accordance with the provisions of Section 3(g), including filing fees
and the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey, (vi)
the printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, and of the
Prospectus and any amendments or supplements thereto, (vii) the printing and
delivery to the Underwriters of copies of the applicable Deposit Agreement, if
any, and the applicable Warrant Agreement, if any, (viii) any fees charged by
nationally recognized statistical rating organizations for the rating of the
Securities, (ix) the fees and expenses, if any, incurred with respect to the
listing of the
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Underwritten Securities, the Warrant Securities, if any, or the shares of
Common Stock issuable upon conversion of the Preferred Shares or the Depositary
Shares, if any, on any national securities exchange, and (x) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc.
If the applicable Terms Agreement is terminated by you in accordance
with the provisions of Section 5 or Section 9(b)(i), the Company shall
reimburse the Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company herein contained, to the accuracy
of the statements of the Company's officers made in any certificate pursuant to
the provisions hereof, to the performance by the Company of all of its
covenants and other obligations hereunder, and to the following further
conditions:
(a) At Closing Time, (i) no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, (ii) if
Preferred Shares or Depositary Shares are being offered, the rating assigned by
any nationally recognized statistical rating organization to any preferred
stock of the Company as of the date of the applicable Terms Agreement shall not
have been lowered since such date nor shall any such rating organization have
publicly announced that it has placed any preferred stock of the Company on
what is commonly termed a "watch list" for possible downgrading, and (iii)
there shall not have come to your attention any facts that would cause you to
believe that the Prospectus, together with the applicable Prospectus
Supplement, at the time it was required to be delivered to purchasers of the
Underwritten Securities, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at such time, not misleading.
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time, of
Xxxxxx & Xxxxxxx, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
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(i) The applicable Warrant Agreement, if any, and
the applicable Deposit Agreement, if any, have been duly
executed and delivered by the Company, and (assuming due
authorization, execution and delivery by the Warrant Agent in
the case of the Warrant Agreement, and the Depositary, in the
case of the Deposit Agreement) each constitutes a valid and
legally binding agreement of the Company enforceable in
accordance with its terms; and the Warrant Agreement, if any,
and the Deposit Agreement, if any, each conforms in all
material respects to all statements relating thereto contained
in the Prospectus.
(ii) If applicable, upon execution and delivery of
the Depositary Receipts pursuant to the terms of the Deposit
Agreement, the persons in whose names such Depositary Receipts
are registered will be entitled to the rights specified
therein and in the Deposit Agreement, to the extent such
rights are governed by the laws of the State of New York.
(iii) Each of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, has been
duly executed and delivered by the Company.
(iv) The Registration Statement is effective under
the 1933 Act and, to the best of their knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the
Commission.
(v) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein, as
of their respective effective or issue dates, comply as to
form in all material respects with the requirements for
registration statements on Form S-3 under the 1933 Act and the
1933 Act Regulations; if applicable, the Rule 434 Prospectus
conforms to the requirements of Rule 434 under the 1933 Act
Regulations; it being understood, however, that no opinion
need be rendered with respect to the financial statements,
schedules and other financial and statistical data included or
incorporated by reference in the Registration Statement or the
Prospectus; and it being understood, further, that in passing
upon the compliance as to form of the Registration Statement,
the Prospectus and the Rule 434 Prospectus, if
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applicable, such counsel may assume that the statements made
therein are correct and complete.
(vi) Each document filed pursuant to the 1934 Act
(other than the financial statements, schedules and other
financial and statistical data included therein, as to which
no opinion need be rendered) and incorporated or deemed to be
incorporated by reference in the Prospectus complied when so
filed as to form in all material respects with the 1934 Act
and the 1934 Act Regulations. In passing upon compliance as
to form of such documents, such counsel may assume that the
statements made therein are correct and complete.
(vii) No authorization, approval, permit or consent
of any court or governmental authority or agency is required
that has not been obtained in connection with the consummation
by the Company of the transactions contemplated by this
Agreement, the applicable Terms Agreement, the applicable
Deposit Agreement, if any, or the applicable Warrant
Agreement, if any, except such as may be required under the
1933 Act and state securities laws or real estate syndication
laws.
(viii) Neither the Company nor any of its
subsidiaries is required to be registered under the 1940 Act.
(ix) Each of the partnership agreements to which the
Company or any of its subsidiaries is a party, and which
relates to real property described in the Prospectus, has been
duly executed and delivered by such applicable party and
constitutes the valid agreement thereof, enforceable against
such party in accordance with its terms.
(x) Each subsidiary (which term, as used in such
opinion, shall be defined to include corporations, material
limited and general partnerships relating to real property
described in the Prospectus and other entities) of the Company
has been duly organized and is validly existing and in good
standing under the laws of the jurisdiction of its
organization, has power and authority to own, lease and
operate its properties and to conduct its business as
described in the Prospectus; except as otherwise stated in the
Prospectus, all of the issued and outstanding capital stock of
or limited partnership interests in each such subsidiary which
is a corporation or a limited partnership have been duly
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authorized and validly issued and are fully paid and
non-assessable.
(xi) Commencing with the Company's taxable year
beginning January 1, 1993, the Company has been organized in
conformity with the requirements for qualification as a "real
estate investment trust", and its method of operation will
enable it to meet the requirements for qualification and
taxation as a "real estate investment trust" under the Code,
provided that such counsel's opinion as to this matter may be
conditioned upon certain representations as to factual matters
made by the Company to such counsel as described therein.
(xii) The statements set forth (a) in the Prospectus
under the caption "Certain Federal Income Tax Considerations
to the Company of its REIT Election" and (b) in the Prospectus
Supplement under the caption "Certain Federal Income Tax
Considerations to Holders of Common Stock", to the extent such
statements constitute matters of law, summaries of legal
matters, or legal conclusions, have been reviewed by them and
are correct in all material respects.
(2) The favorable opinion, dated as of Closing Time, of
Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, special Maryland counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Maryland.
(ii) The Company has corporate power to own, lease
and operate its current properties, to conduct its current
business substantially as described in the Prospectus and to
enter into and perform its obligations under this Agreement
and the applicable Terms Agreement.
(iii) The authorized, issued and outstanding
capital stock of the Company is in all material respects as
set forth in the Prospectus (as of the date set forth therein)
under "Capitalization" (except for subsequent issuances, if
any, pursuant to reservations, agreements, employee benefit
plans, dividend reinvestment plans, employee and director
stock option plans, or upon the exercise of options, warrants
or convertible debt securities referred to in the
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Prospectus) and such shares of stock have been duly authorized
and validly issued and are fully paid and non-assessable.
(iv) The Underwritten Securities being sold
pursuant to this Agreement and the applicable Terms Agreement
and, if applicable, the deposit of the Preferred Shares in
accordance with the provisions of a Deposit Agreement, have
been duly and validly authorized by all necessary corporate
action on the part of the Company and such Underwritten
Securities have been duly authorized for issuance and sale
pursuant to this Agreement and such Terms Agreement; and such
Underwritten Securities, when issued and delivered by the
Company pursuant to this Agreement against payment of the
consideration set forth in such Terms Agreement or any Delayed
Delivery Contract, will be validly issued, fully paid and
non-assessable, and the issuance of such Underwritten
Securities will not be subject to preemptive or other similar
rights arising under the Charter or Bylaws of the Company, or
under the Maryland General Corporation Law ("MGCL"); and the
Preferred Shares, if applicable, conform to the provisions of
the Articles Supplementary.
(v) If applicable, the Warrants have been duly
authorized and, when issued and delivered pursuant to this
Agreement and the applicable Terms Agreement and countersigned
by the Warrant Agent as provided in the Warrant Agreement,
will have been duly executed, issued and delivered and will
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Warrant
Agreement under which they are to be issued, insofar as the
Warrants are governed by the MGCL and assuming the validity
and enforceability of such Warrant Agreement.
(vi) If applicable, the shares of Common Stock
issuable upon conversion of any of the Preferred Shares or
Depositary Shares, or the exercise of Warrant Securities, have
been duly and validly authorized and reserved for issuance
upon such conversion or exercise by all necessary corporate
action on the part of the Company and such shares, when issued
upon such conversion or exercise in accordance with the
charter of the Company, the Deposit Agreement, the Terms
Agreement, the Delayed Delivery Contract or the Warrant
Agreement, as the case may be, will be duly authorized and
validly issued and will be fully paid and non-assessable, and
the issuance of such shares upon such
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conversion or exercise will not be subject to preemptive or
other similar rights arising under the Charter or Bylaws of
the Company, or under the MGCL;
(vii) The applicable Warrant Agreement, if any, and
the applicable Deposit Agreement, if any, have been duly
authorized by the Company, and the person(s) executing such
agreements on behalf of the Company have been duly authorized
to do so.
(viii) If applicable, upon execution and delivery of
the Depositary Receipts pursuant to the terms of the Deposit
Agreement, the persons in whose names such Depositary Receipts
are registered will be entitled to the rights specified
therein and in the Deposit Agreement, to the extent such
rights are governed by the laws of the State of Maryland and
assuming the validity and enforceability of the Deposit
Agreement.
(ix) The execution and delivery on behalf of the
Company of each of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, has been
duly authorized by the Company, and the person(s) executing
each such agreement on behalf of the Company have been duly
authorized to do so.
(x) If applicable, the relative rights, preferences,
interests and powers of the Preferred Shares or Depositary
Shares, as the case may be, are as set forth in the Articles
Supplementary relating thereto, and all such provisions are
valid under the MGCL; and, as applicable, the form of
certificate used to evidence the Preferred Shares being
represented by the Depositary Shares and the form of
certificate used to evidence the related Depositary Receipts
are in due and proper form under the MGCL and comply with all
applicable statutory requirements under the MGCL.
(xi) The Underwritten Securities, the Warrant
Securities, and the shares of Common Stock issuable upon
conversion of the Preferred Shares or Depositary Shares, as
applicable, conform in all material respects to the
descriptions thereof contained in the Prospectus, insofar as
such descriptions relate to the Charter or Bylaws of the
Company or issues arising under the MGCL, and the form of
certificate used to evidence the Underwritten Securities, if
applicable, is in due and proper form and complies in all
material respects with all applicable statutory requirements
under the MGCL.
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(xii) The execution and delivery by the Company of
each of the partnership agreements entered into by the
Maryland corporation subsequent to the organization of the
Company in the State of Maryland in May 1993 to which the
Company or any of its subsidiaries organized under the laws of
the State of Maryland is a party, and which relates to real
property described in the Prospectus, has been duly authorized
by such applicable party, and the person(s) executing each
such agreement on behalf of such applicable party have been
authorized to do so.
(3) The favorable opinion, dated as of Closing Time, of S.
Xxxx Xxxxxxx, Esq., counsel for the Company, in form and substance
satisfactory for the Underwriters, to the effect that:
(i) To the best of his knowledge and information,
the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction
in which the Company owns or leases real property, except
where the failure to so qualify or to be in good standing
would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise.
(ii) To the best of his knowledge and information,
there are no legal or governmental proceedings pending or
threatened against the Company or any of its subsidiaries
which are required to be disclosed in the Prospectus, other
than those disclosed therein, and all pending legal or
governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of the property or
assets of the Company or its subsidiaries is the subject which
are not described in the Prospectus, including ordinary
routine litigation incidental to the business, are, considered
in the aggregate, not material.
(iii) To the best of his knowledge and information,
there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits thereto other than those
described or referred to therein or filed as exhibits thereto,
the descriptions thereof or references thereto are correct in
all material respects, and, to the best of his
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knowledge and information, no default exists in the due
performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument so described, referred to or filed which would have
a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise.
(iv) To the best of his knowledge and information,
there are no persons with registration or other similar rights
to have any securities registered pursuant to the Registration
Statement.
(v) To the best of his knowledge and information,
the execution and delivery of this Agreement, the applicable
Terms Agreement, the applicable Deposit Agreement, if any, or
the applicable Warrant Agreement, if any, and the consummation
of the transactions contemplated herein and therein and
compliance by the Company with its obligations hereunder and
thereunder will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be
bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will such action
result in violation of the provisions of the charter or
by-laws of the Company or any applicable law, administrative
regulation or administrative or court order or decree.
(vi) To the best of his knowledge and information,
except as otherwise stated in the Prospectus and except as
would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise: (a) all of the issued and
outstanding capital stock of each corporate subsidiary of the
Company are owned by the Company, directly or through
subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity and (b)
all of the Company's ownership interests in each partnership
subsidiary of the Company are owned by the Company, directly
or through subsidiaries, free
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and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, except that all of the
partnership interests in EH Properties, L.P. owned by the
Company have been pledged as security for borrowings under the
Secured Revolving Credit Facility from The First National Bank
of Boston described in the Prospectus.
(vii) The execution, delivery and performance of any
of the partnership agreements to which the Company or any of
its subsidiaries is a party, and which relates to real
property described in the Prospectus, did not, at the time of
execution and delivery, and does not constitute a breach of,
or default under, the charter or by-laws of the Company or any
of its subsidiaries, as applicable, or any material contract,
lease or other instrument to which such party is a party or by
which its properties may be bound or any law, administrative
regulation or administrative or court decree.
(viii) The Company and/or its respective
subsidiaries hold title to the properties and assets described
in the Prospectus, subject only to the liens and encumbrances
securing indebtedness reflected in the Prospectus and such
other liens, encumbrances and matters of record which do not
materially and adversely affect the value of such properties
and assets considered in the aggregate.
(ix) To the best of his knowledge and information,
each subsidiary (which term, as used in such opinion, shall be
defined to include corporations, material limited and general
partnerships and other entities) is duly qualified to transact
business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a
material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise.
(4) The favorable opinion, dated as of Closing Time, of Xxxxx
& Wood LLP, counsel for the Underwriters, with respect to the matters
requested by the Underwriters.
(5) In giving their opinions required by subsections (b)(1),
(b)(3) and (b)(4), respectively, of this Section,
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Xxxxxx & Xxxxxxx, S. Xxxx Xxxxxxx, Esq. and Xxxxx & WoodLLP shall each
additionally state that nothing has come to their attention that would
lead them to believe that the Registration Statement or any amendment
thereto, at the time it became effective or at the time an Annual
Report on Form 10-K was filed by the Company with the Commission
(whichever is later), or at the Representation Date, 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 or any amendment or
supplement thereto, at the Representation Date or at Closing Time,
included or includes an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. In giving their opinions required by
subsections (b)(1), (b)(2), (b)(3) and (b)(4), respectively, of this
Section, Xxxxxx & Xxxxxxx, Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, S. Xxxx
Xxxxxxx, Esq. and Xxxxx & WoodLLP may rely, (1) as to all matters of
fact, upon certificates and written statements of officers and
employees of and accountants for the Company and (2) with respect to
certain other matters, upon certificates of appropriate government
officials in such jurisdiction, and Xxxxx & Xxxx LLP may additionally
rely, as to matters involving the laws of the State of Maryland, upon
the opinion of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll (or other counsel
reasonably satisfactory to counsel for the Underwriters) in form and
substance satisfactory to counsel for the Underwriters.
(c) At Closing Time, there shall not have been, since the date of the
applicable Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business; and you
shall have received a certificate of the Chief Executive Officer or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of such Closing Time, to the effect that (i) there has
been no such material adverse change and (ii) the representations and
warranties in Section 1 are true and correct with the same force and effect as
though such Closing Time were a Representation Date. As used in this Section
5(c), the term "Prospectus" means the Prospectus in the form first used to
confirm sales of the Underwritten Securities.
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(d) At the time of execution of the applicable Terms Agreement, you
shall have received a letter dated such date from Coopers & Xxxxxxx LLP, in
form and substance satisfactory to you, to the effect that (i) they are
independent public accountants with respect to the Company and its subsidiaries
within the meaning of the 1933 Act and the 1933 Act Regulations thereunder;
(ii) it is their opinion that the consolidated financial statements and
financial statement schedules of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and the Prospectus and
audited by them and covered by their opinions therein comply as to form in all
material respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations; (iii) they have performed limited procedures, not
constituting an audit, including a reading of the latest available unaudited
interim consolidated financial statements of the Company, a reading of the
minute books of the Company, inquiries of certain officials of the Company who
have responsibility for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, and on the basis
of such limited review and procedures, nothing has come to their attention
which causes them to believe (A) that any material modifications should be made
to the unaudited condensed financial statements of the Company and its
subsidiaries included in the Registration Statement for them to be in
conformity with generally accepted accounting principles or that such unaudited
financial statements do not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the 1934 Act
Regulations, (B) the unaudited financial data of the Company in the
Registration Statement and the Prospectus under the caption "Selected Financial
Data" was not determined on a basis substantially consistent with that used in
determining the corresponding amounts in the audited financial statements
included or incorporated by reference in the Registration Statement and the
Prospectus, or (C) at a specified date not more than three days prior to the
date of the applicable Terms Agreement, there has been any change in the
capital stock of the Company or in the consolidated mortgages payable or notes
payable of the Company and its subsidiaries or any decrease in consolidated net
current assets or net assets of the Company, as compared with the amounts shown
in the most recent consolidated balance sheet included or incorporated by
reference in the Registration Statement and the Prospectus or, during the
period from the date of the most recent consolidated statement of operations
included or incorporated by reference in the Registration Statement and the
Prospectus to a specified date not more than three days prior to the date of
the applicable Terms Agreement, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated revenues, operating
income, funds from operations, net income or
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33
net income per share of the Company and its subsidiaries, except in all
instances for changes, increases or decreases which the Registration Statement
and the Prospectus disclose have occurred or may occur; and (iv) in addition to
the examination referred to in their opinion and the limited procedures
referred to in clause (iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain amounts,
percentages and financial information which are included or incorporated by
reference in the Registration Statement and Prospectus and which are specified
by you, and have found such amounts, percentages and financial information to
be in agreement with the relevant accounting, financial and other records of
the Company and its subsidiaries identified in such letter.
(e) At Closing Time, you shall have received a letter, dated as of
Closing Time, from Coopers & Xxxxxxx LLP, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (d) of this
Section, except that the "specified date" referred to shall be a date not more
than three days prior to such Closing Time.
(f) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the Underwritten
Securities and the Warrant Securities, if any, as herein contemplated and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Underwritten Securities and the Warrant
Securities, if any, as herein contemplated shall be satisfactory in form and
substance to you and counsel for the Underwriters.
(g) In the event that the Underwriters exercise their option provided
in a Terms Agreement as set forth in Section 2(b) hereof to purchase all or any
portion of the Option Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished by
the Company hereunder shall be true and correct as of each Date of Delivery
and, at the relevant Date of Delivery, you shall have received:
(1) A certificate, dated such Date of Delivery, of the Chief
Executive Officer or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company confirming that
the certificate delivered at the Closing Time pursuant to Section 5(c)
hereof remains true and correct as of such Date of Delivery.
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(2) The favorable opinion of Xxxxxx & Xxxxxxx, counsel for
the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Sections 5(b)(1) and
5(b)(5) hereof.
(3) The favorable opinion of Xxxxxxx Xxxxx Xxxxxxx &
Ingersoll, special Maryland counsel for the Company, dated such Date
of Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(b)(2) hereof.
(4) The favorable opinion of S. Xxxx Xxxxxxx, Esq., counsel
for the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Sections 5(b)(3) and
5(b)(5) hereof.
(5) The favorable opinion of Xxxxx & Wood LLP, counsel for
the Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Sections 5(b)(4) and
5(b)(5) hereof.
(6) A letter from Coopers & Xxxxxxx LLP, in form and
substance satisfactory to you and dated such Date of Delivery,
substantially the same in form and substance as the letter furnished
to you pursuant to Section 5(d) hereof, except that the "specified
date" in the letter furnished pursuant to this Section 5(h)(6) shall
be a date not more than three days prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by you by notice to the Company at any time at or prior to
the Closing Time, and such termination shall be without liability of any party
to any other party except as provided in Section 4 hereof.
Section 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material
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fact contained in the Registration Statement (or any amendment
thereto), including the information deemed to be part of the
Registration Statement pursuant to Rule 430A(b) or Rule 434 of the
1933 Act Regulations, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto)
or the omission, or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(3) against any and all expense whatsoever (including, the
fees and disbursements of counsel chosen by you) reasonably incurred
in investigating, preparing or defending against any litigation, or
any investigation or proceedings by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (1) or
(2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto) and the Prospectus (or any amendment or supplement thereto);
provided further, that with respect to any preliminary prospectus, such
indemnity shall not inure to the benefit of any Underwriter (or the benefit of
any person controlling such Underwriter) if the person asserting any such
losses, liabilities, claims, damages or expense purchased the Underwritten
Securities which are the subject thereof from such Underwriter and if such
person was not sent or given a copy of the Prospectus at or prior to
confirmation of the sale of such Underwritten Securities to such person in any
case where such
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sending or giving is required by the 1933 Act and the untrue statement or
omission of a material fact contained in such preliminary prospectus was
corrected in the Prospectus and the Prospectus was delivered to such
Underwriter a reasonable amount of time prior to the date of delivery of such
confirmation.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of such action. If it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action, unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to
them which are different from or in addition to those available to such
indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
(d) For purposes of this Section 6, all references to the
Registration Statement, any preliminary prospectus or the Prospectus, or any
amendment or supplement to any of the
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foregoing, shall be deemed to include, without limitation, any electronically
transmitted copies thereof, including, without limitation, any copies filed
with the Commission pursuant to XXXXX.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters with respect to the offering of the Underwritten Securities shall
contribute to the aggregate losses, liabilities, claims, damages and expenses
of the nature contemplated by said indemnity agreement incurred by the Company
and one or more of the Underwriters in respect of such offering, as incurred,
in such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus in respect of such offering bears to the initial
public offering price appearing thereon and the Company is responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Notwithstanding the provisions of this Section
7, no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Underwritten Securities purchased
by it pursuant to the applicable Terms Agreement and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. For purposes of this Section, each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
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Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement, or contained in certificates of
officers of the Company submitted pursuant hereto, shall remain operative and
in full force and effect, regardless of any termination of this Agreement or
the applicable Terms Agreement, or investigation made by or on behalf of any
Underwriter or any controlling person, or by or on behalf of the Company, and
shall survive delivery of and payment for the Underwritten Securities.
Section 9. Termination of Agreement. (a) This Agreement (excluding
the applicable Terms Agreement) may be terminated for any reason at any time by
the Company or by you upon the giving of 30 days' written notice of such
termination to the other party hereto.
(b) You may also terminate the applicable Terms Agreement, by notice
to the Company, at any time at or prior to the Closing Time (i) if there has
been, since the date of such Terms Agreement or since the respective dates as
of which information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or elsewhere or any outbreak of hostilities or escalation
thereof or other calamity or crisis the effect of which is such as to make it,
in your judgment, impracticable to market the Underwritten Securities or
enforce contracts for the sale of the Underwritten Securities, or (iii) if
trading in any of the securities of the Company has been suspended or limited
by the Commission or the New York Stock Exchange, or if trading generally on
either the New York Stock Exchange or the American Stock Exchange has been
suspended or limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices for securities have been required, by either of
said Exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either Federal, New
York or California authorities, or (iv) if Preferred Shares or Depositary
Shares are being offered and the rating assigned by any nationally recognized
statistical rating organization to any preferred stock of the Company as of the
date of the applicable Terms Agreement shall have been lowered since such date
or if any such rating organization shall have publicly announced that it has
placed any preferred stock of the Company on what is commonly termed a "watch
list" for possible downgrading. As used in this Section 9(b), the term
"Prospectus"
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means the Prospectus in the form first used to confirm sales of the
Underwritten Securities.
(c) In the event of any such termination, (x) the covenants set forth
in Section 3 with respect to any offering of Underwritten Securities shall
remain in effect so long as any Underwriter owns any such Underwritten
Securities purchased from the Company pursuant to the applicable Terms
Agreement and (y) the covenant set forth in Section 3(h) hereof, the provisions
of Section 4 hereof, the indemnity and contribution agreements set forth in
Sections 6 and 7 hereof, and the provisions of Sections 8 and 13 hereof shall
remain in effect.
Section 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at the Closing Time to purchase the
Underwritten Securities which it or they are obligated to purchase under the
applicable Terms Agreement (the "Defaulted Securities"), then you shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, you shall not
have completed such arrangements within such 24-hour period, then:
(a) if the total number of Defaulted Securities does not exceed 10%
of the total number of Underwritten Securities to be purchased pursuant to such
Terms Agreement, the non-defaulting Underwriters named in such Terms Agreement
shall be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the total number of Defaulted Securities exceeds 10% of the
total number of Underwritten Securities to be purchased pursuant to such Terms
Agreement, the applicable Terms Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, either you or the Company shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements.
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Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed c/o Xxxxxx Xxxx LLC, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention of Xxxxx X. Xxxxxxxx, Managing Director; and notices
to the Company shall be directed to it at 00000 Xxx Xxx Xxxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxxxxxx 00000, attention of Xxxx Xxxxx, President.
Section 12. Parties. This Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon you and the
Company and any Underwriter who becomes a party to such Terms Agreement, and
their respective successors. Nothing expressed or mentioned in this Agreement
or the applicable Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than those referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or such Terms Agreement or any
provision herein or therein contained. This Agreement and the applicable Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
Section 13. Governing Law and Time. This Agreement and the
applicable Terms Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made and to be
performed in said State. Specified times of day refer to New York City time.
Section 14. Counterparts. This Agreement and the applicable Terms
Agreement may be executed in one or more counterparts, and if executed in more
than one counterpart the executed counterparts shall constitute a single
instrument.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts will become binding
agreement between you and the Company in accordance with its terms.
Very truly yours,
EXCEL REALTY TRUST, INC.
By:
-------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
XXXXXX XXXX LLC
By:
--------------------------
Name:
Title:
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Exhibit A
EXCEL REALTY TRUST, INC.
(a Maryland Corporation)
[Title of Securities]
TERMS AGREEMENT
Dated: , 199_
To: Excel Realty Trust, Inc.
16955 Xxx Xxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chairman of the Board of Directors
Dear Sirs:
We (the "Representative") understand that Excel Realty Trust, Inc., a
Maryland corporation (the "Company"), proposes to issue and sell the number of
shares of its [Common Stock, $.01 par value (the "Common Stock")] [____________
Warrants (the "Common Stock Warrants") to purchase _________ shares of Common
Stock] [Preferred Stock, $.01 par value (the "Preferred Shares")]
[______________ Warrants (the "Preferred Share Warrants") to purchase
______________ Preferred Shares] [interests in Preferred Shares in the form of
depositary shares (the "Depositary Shares") represented by depositary receipts
(the "Depositary Receipts")] [______________ Warrants (the "Depositary Share
Warrants") to purchase _____________ Depositary Shares] (such [Common Stock]
[Common Stock Warrants] [Preferred Shares] [Preferred Share Warrants]
[Depositary Shares and Depositary Receipts] [Depositary Share Warrants] being
[collectively hereinafter] [also] referred to as the "Underwritten
Securities"). Subject to the terms and conditions set forth or incorporated by
reference herein, the underwriters named below (the "Underwriters") offer to
purchase, severally and not jointly, the respective numbers of [Initial
Underwritten Securities (as defined in the Underwriting Agreement referenced to
below)] [and] [Warrants] set forth below opposite their respective names, and a
proportionate share of Option Securities (as defined in the Underwriting
Agreement referred to below) to the extent any are purchased) at the purchase
price set forth below.
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43
Number of Shares
of Initial Number of
Underwriter Underwritten Securities Warrants
----------- ----------------------- -----------
Total $ $
=========== ===========
The Underwritten Securities shall have the following terms:
[COMMON STOCK] [PREFERRED SHARES] [DEPOSITARY SHARES]
Title of Securities:
Number of Shares:
[If applicable, fractional amount of Preferred Shares represented by each
Depositary Share:]
[Current Ratings:]
[Dividend Rate: [$ ] [ %], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public offering price per share: $ [, plus accumulated dividends, if
any, from , 19 .]
Purchase price per share: $ [, plus accumulated dividends, if any,
from , 19 .]
[Conversion provisions:]
[Redemption provisions:]
[Sinking fund requirements:]
Number of Option Securities, if any, that may be purchased by the Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum Contract:
Maximum number of Shares:
Fee: ]
Additional co-managers, if any:
Other terms:
Closing date and location:
WARRANTS
Title of Warrants:
Number of Warrants to be issued:
Warrant Agent:
Issuable jointly with [other security]: [Yes] [No]
[Number of Warrants issued
with each share of
[other security:]
Date from which Warrants are exercisable:
Date on which Warrants expire:
Exercise price(s) of Warrants:
Initial public offering price: $
Purchase price: $
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44
Title of Warrant Securities:
Principal amount purchasable upon exercise of one Warrant:
Terms:
[Delayed Delivery Contracts: [authorized] [not authorized]
[Date of delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: %]
Other terms:
[Closing date and location:]]
All the provisions contained in the document attached as Annex A
hereto entitled "Excel Realty Trust, Inc. - Common Stock, Preferred Stock,
Depositary Shares and Warrants - Underwriting Agreement" are hereby
incorporated by reference in their entirety herein and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are used herein as
therein defined.
Please accept this offer no later than o'clock P.M. (New York City
time) on by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
XXXXXX XXXX LLC
By _________________________
Name:
Title:
Acting on behalf of itself and
the other named Underwriters.
Accepted:
EXCEL REALTY TRUST, INC.
By _________________________
Name:
Title:
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45
Exhibit B
EXCEL REALTY TRUST, INC.
(a Maryland corporation)
[Title of Securities]
DELAYED DELIVERY CONTRACT
-------------------------
, 199_
Excel Realty Trust, Inc.
16955 Xxx Xxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chairman of the Board of Directors
Dear Sirs:
The undersigned hereby agrees to purchase from Excel Realty Trust,
Inc. (the "Company"), and the Company agrees to sell to the undersigned on
__________, 19__ (the "Delivery Date"),
of the Company's [insert title of security] (the "Securities"), offered by the
Company's Prospectus dated __________, 19__, as supplemented by its Prospectus
Supplement dated ___________, 19__, receipt of which is hereby acknowledged at
a purchase price of [$__________] [and, $__________ per Warrant, respectively]
to the Delivery Date, and on the further terms and conditions set forth in this
contract.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House funds at the office
of
, on the Delivery Date, upon delivery to the
undersigned of the Securities to be purchased by the undersigned in definitive
form and in such denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed to the Company
not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions
that (1) the purchase of Securities to be
B-1
46
made by the undersigned shall not on the Delivery Date be prohibited under the
laws of the jurisdiction to which the undersigned is subject and (2) the
Company, on or before __________, 19__, shall have sold to the Underwriters of
the Securities (the "Underwriters") such principal amount of the Securities as
is to be sold to them pursuant to the Terms Agreement dated __________, 19__
between the Company and the Underwriters. The obligation of the undersigned to
take delivery of and make payment for Securities shall not be affected by the
failure of any purchaser to take delivery of and make payments for Securities
pursuant to other contracts similar to this contract. The undersigned
represents and warrants to you that its investment in the Securities is not, as
of the date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which govern such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice
to such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to
the Company that all necessary corporate action for the due execution and
delivery of this contract and the payment for and purchase of the Securities
has been taken by it and no further authorization or approval of any
governmental or other regulatory authority is required for such execution,
delivery, payment or purchase, and that, upon acceptance hereof by the Company
and mailing or delivery of a copy as provided below, this contract will
constitute a valid and binding agreement of the undersigned in accordance with
its terms.
This contract will inure to the benefit of and binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for a number of Securities in excess of ________ and that the
acceptance of any Delayed Delivery Contract is in the Company's sole discretion
and, without limiting the foregoing, need not be on a first-come, first-served
basis. If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance on a copy hereof and mail or deliver a
signed copy hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company and the undersigned when
such copy is so mailed or delivered.
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47
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
_____________________________
(Name of Purchaser)
By___________________________
(Title)
_____________________________
_____________________________
(Address)
Accepted as of the date first above written.
EXCEL REALTY TRUST, INC.
By___________________________
(Title)
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows: (Please print.)
Telephone No.
(including
Name Area Code)
---- -------------
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