Exhibit 1
---------
1,198,157
Xxxxxxxx Properties Trust
Common Shares of Beneficial Interest
Underwriting Agreement
February 18, 1998
X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Dear Sirs:
Xxxxxxxx Properties Trust, a Maryland real estate investment trust (the
"Company"), Xxxxxxxx Properties Acquisition Partners, L.P., a Delaware limited
partnership (the "Operating Partnership") and Xxxxxxxx Properties I, Inc., a
Delaware corporation (the "General Partner," and together with the Company and
the Operating Partnership, the "Transaction Entities") each wish to confirm as
follows its agreement with X.X. Xxxxxxx & Sons, Inc. (the "Underwriter"), with
respect to the sale by the Company and the purchase by the Underwriter of an
aggregate of 1,198,157 shares (the "Shares") of the Company's common shares of
beneficial interest, par value $.0l per share (the "Common Shares"). The
Underwriter intends to sell the Shares to Nike Securities L.P. which intends to
deposit the Shares with the trustee of a registered unit investment trust under
the Investment Company Act of 1940, as amended, (the "Trust") in exchange for
units in the Trust.
Capitalized terms used but not otherwise defined herein shall have the
meanings given to those terms in the Prospectus (as herein defined).
1. Representations, Warranties and Agreements of the Transaction
Entities. Each of the Transaction Entities, jointly and severally, represents,
warrants and agrees that, as of the date hereof:
(a) A registration statement on Form S-3 (No. 333-38079), and any
amendments thereto, with respect to the Shares has (i) been prepared by the
Company in conformity with the requirements of the United States Securities
Act of 1933, as amended (the "Securities Act") and the rules and
regulations (the "Rules and Regulations") of the United States Securities
and Exchange Commission (the "Commission") thereunder, (ii) been filed with
the Commission under the Securities Act and (iii) become effective under
the Securities Act. Copies of such registration statement and any
amendments thereto have been delivered by the Company to the Underwriter.
As used in this Agreement, "Effective Time" means the date and the time as
of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission;
"Effective Date" means the date of the Effective Time; "Preliminary
Prospectus" means each prospectus included in such registration statement,
or amendments thereto, before it became effective under the Securities Act
and any prospectus filed with the Commission by the Company with the
consent of the Underwriter pursuant to Rule 424(a) of the Rules and
Regulations; "Registration Statement" means such registration statement, as
amended at the Effective Time, including all information contained in the
final prospectus filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations and deemed to be a part of the registration statement
as of the Effective Time pursuant to paragraph (b) of Rule 430A of the
Rules and Regulations; and "Prospectus" means such final prospectus, as
first filed with the Commission pursuant to paragraph (1) or (4) of Rule
424(b) of the Rules and Regulations. Any registration statement (including
any amendment or supplement thereto or information which is deemed to be a
part thereof) filed by the Company to register additional Common Shares
under Rule 462(b) of the Rules and Regulations (a "Rule 462(b) Registration
Statement") shall be deemed a part of the Registration Statement. Any
prospectus (including any amendment or supplement thereto or information
which is deemed to be a part thereof) included in a Rule 462(b)
Registration Statement shall be deemed to be part of the Prospectus. Any
reference herein to the Registration Statement, the Prospectus or a
Preliminary Prospectus shall be deemed to include the documents
incorporated or deemed to be incorporated by reference therein which were
filed under the Securities and Exchange Act of 1934, as amended (the
"Exchange Act"). For purposes of this Agreement, all references to the
Registration Statement, any Preliminary Prospectus or the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include
the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX").
(b) Each Preliminary Prospectus included as part of the Registration
Statement as originally filed or as part of any amendment or supplement
thereto, or filed pursuant to Rule 424 under the Rules and Regulations,
complied when so filed in all material respects with the provisions of the
Securities Act, and each Preliminary Prospectus delivered to the
Underwriter for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(c) The Registration Statement conforms in all material respects,
and the Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will, when they become effective
or are filed with the Commission, as the case may be, conform in all
material respects to the requirements of the Securities Act and the Rules
and Regulations, and do not and will not, as of the applicable Effective
Date (as to the Registration Statement and any amendment thereto) and as of
the applicable filing date and at the First Delivery Date (as defined
below) (as to the Prospectus and any amendment or supplement thereto)
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 (with respect to the Prospectus, in light of the
circumstances under which they were made); provided that no representation
or warranty is made as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in conformity
with written information furnished to the Company by or on behalf of the
Underwriter specifically for inclusion therein. The Prospectus delivered
to the Underwriter for use in connection with this offering was identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement as of the applicable Effective
Date, the Prospectus as of its date or any Preliminary Prospectus as of its
date, complied in all material respects with the Exchange Act and the rules
and regulations thereunder, and none of such documents, at such dates,
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, in the light of the circumstances under which they were
made, not misleading.
(e) No stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of any of the Transaction
Entities, threatened by the Commission or by the state securities authority
of any jurisdiction. No order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus has been issued and no proceeding
for that purpose has been instituted or, to the knowledge of any of the
Transaction Entities, after due inquiry of the Commission, threatened by
the Commission or by the state securities authority of any jurisdiction.
(f) The Company has been duly formed and is validly existing as a
real estate investment trust in good standing under the laws of the State
of Maryland, is duly qualified to do business and is in good standing in
each jurisdiction in which its ownership or lease of property or the
conduct of its business requires such qualification,
and has all power and authority necessary to own or hold its properties, to
conduct the business in which it is engaged and to enter into and perform
its obligations under this Agreement. None of the subsidiaries of the
Company (other than the Operating Partnership, the General Partner, and
Xxxxxxxx Properties Real Estate Fund I, L.P., a Delaware limited
partnership ("PPREF") (collectively, the "Significant Subsidiaries")) is a
"significant subsidiary," as such term is defined in Rule 405 of the Rules
and Regulations. Except as described in the Prospectus and other than the
Transaction Entities (other than the Company), the Company owns no direct
or indirect equity interest in any entity, except for such interests as, in
the aggregate, are not material to the condition, financial or otherwise,
or the earnings, assets or business affairs of the Company and its
subsidiaries considered as a single enterprise.
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of beneficial interest of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and conform to the description thereof contained in the
Prospectus. Except as disclosed in the Prospectus, no shares of beneficial
interest of the Company are reserved for any purpose and except as
disclosed in the Prospectus and except for the equity interests in the
Operating Partnership ("Units"), there are no outstanding securities
convertible into or exchangeable for any shares of beneficial interest of
the Company, and no outstanding options, rights (preemptive or otherwise)
or warrants to purchase or subscribe for shares of beneficial interest or
any other securities of the Company.
(h) The Operating Partnership has been duly formed and is validly
existing as a limited partnership under the laws of the State of Delaware,
is duly qualified to do business as a foreign limited partnership in each
jurisdiction in which its ownership or lease of property or the conduct of
its business requires such qualification (except where the failure to be so
qualified would not have a material adverse effect on the earnings, assets
or business affairs of the Company and its subsidiaries considered as a
single enterprise), and has all partnership power and authority necessary
to own or hold its properties, to conduct the business in which it is
engaged and to enter into and perform its obligations under this Agreement.
The General Partner is the sole general partner of the Operating
Partnership. The Agreement of Limited Partnership of the Operating
Partnership (the "Operating Partnership Agreement") is in full force and
effect, and the aggregate percentage interests of the Company, the General
Partner and the limited partners in the Operating Partnership are as set
forth in the Prospectus.
(i) The General Partner has been duly formed and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
is duly qualified to do business and is in good standing in each
jurisdiction in which its ownership or lease of property or the conduct of
its business requires such qualification (except where the
failure to be so qualified would not have a material adverse effect on the
earnings, assets or business affairs of the Company and its subsidiaries
considered as a single enterprise), and has all corporate power and
authority necessary to own or hold its properties, to conduct the business
in which it is engaged and to enter into and perform its obligations under
this Agreement. All of the issued and outstanding capital stock of the
General Partner has been duly authorized and validly issued and is fully
paid and non-assessable, is owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim, restriction
or equities and has been offered and sold in compliance with all applicable
laws (including, without limitation, federal or state securities laws). No
shares of capital stock of the General Partner are reserved for any
purpose, and there are no outstanding securities convertible into or
exchangeable for any capital stock of the General Partner, and no
outstanding options, rights (preemptive or otherwise) or warrants to
purchase or to subscribe for shares of such capital stock or any other
securities of the General Partner.
(j) PPREF has been duly organized and is validly existing as a
limited partnership under the laws of the State of Delaware, is duly
qualified to do business as a foreign limited partnership in each
jurisdiction in which its ownership or lease of property or the conduct of
its business requires such qualification (except where the failure to be so
qualified would not have a material adverse effect on the earnings, assets
or business affairs of the Company and its subsidiaries considered as a
single enterprise), and has all partnership power and authority necessary
to own or hold its properties and to conduct the business in which it is
engaged. Except as set forth in the Prospectus, all of the partnership
interests of PPREF are owned directly or indirectly by the Company and the
Operating Partnership, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim, restriction or equities.
(k) The Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be
duly and validly issued, fully paid and non-assessable. Upon payment of
the purchase price and delivery of the Shares in accordance herewith, the
Underwriter will receive good, valid and marketable title to the Shares,
free and clear of all security interests, mortgages, pledges, liens,
encumbrances, claims, restrictions and equities. The terms of the Shares
conform in substance to all statements and descriptions related thereto
contained in the Prospectus. The form of the certificates to be used to
evidence the Shares will at the First Delivery Date be in due and proper
form and will comply with all applicable legal requirements. The issuance
of the Shares is not subject to any preemptive or other similar rights.
(1) (A) This Agreement has been duly and validly authorized,
executed and delivered by each of the Transaction Entities; and (B) the
Operating Partnership Agreement and the partnership agreement of each
Significant Subsidiary (where
applicable), has been duly and validly authorized, executed and delivered
by the parties thereto and is a valid and binding agreement of the parties
thereto, enforceable against such parties in accordance with its terms.
(m) The execution, delivery and performance of this Agreement by
each of the Transaction Entities and the consummation of the transactions
contemplated hereby will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which any of the Transaction Entities is a party
or by which any of the Transaction Entities is bound or to which any of the
Properties or other assets of any of the Transaction Entities is subject,
nor will such actions result in any violation of the provisions of the
charter, by-laws, certificate of limited partnership or agreement of
limited partnership of any of the Transaction Entities, or any statute or
any order, Rule or regulation of any court or governmental agency or body
having jurisdiction over any of the Transaction Entities or any of their
properties or assets; and except for the registration of the Shares under
the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act
and applicable state securities laws in connection with the purchase and
distribution of the Shares by the Underwriter, no consent, approval,
authorization or order of, or filing or registration with, any such court
or governmental agency or body is required for the execution, delivery and
performance of this Agreement by the Transaction Entities and the
consummation of the transactions contemplated hereby.
(n) Other than as described in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Securities Act.
(o) Except as described in the Prospectus and except for the
issuance of securities under employee benefit plans, the issuance of Units
in connection with the acquisition of any properties and the issuance of
Common Shares upon the exchange of Units pursuant to the Operating
Partnership Agreement, no Transaction Entity has sold or issued any
securities during the six-month period preceding the date of the
Prospectus, including any sales pursuant to Rule 144A under, or Regulations
D or S of, the Securities Act.
(p) None of the Transaction Entities nor any of the Properties has
sustained, since the date of the latest audited financial statements
included in the Prospectus, any
material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, other than as set
forth or contemplated in the Prospectus; and, since such date, there has
not been any change in the capital stock or long-term debt of any of the
Transaction Entities or any material adverse change in or affecting any of
the Properties or the general affairs, management, financial position,
shareholders' equity or results of operations of any of the Transaction
Entities, other than as set forth or contemplated in the Prospectus.
(q) The financial statements (including the related notes and
supporting schedules) filed as part of, or incorporated by reference in,
the Registration Statement and the Prospectus present fairly the financial
condition and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved. The Company's ratio of
earnings to fixed charges (actual and, if any, pro forma) included in the
Prospectus under the captions "Ratio of Earnings to Fixed Charges" and in
Exhibit 12.1 to the Registration Statement have been calculated in
compliance with Item 503(d) of Regulation S-K of the Commission. Pro forma
financial information included in or incorporated by reference in the
Registration Statement and the Prospectus has been prepared in accordance
with the applicable requirements of the Securities Act, the Rules and
Regulations and AICPA guidelines with respect to pro forma financial
information and includes all adjustments necessary to present fairly the
pro forma financial position of the Company at the respective dates
indicated and the results of operations for the respective periods
specified.
(r) Coopers & Xxxxxxx L.L.P., who have certified certain financial
statements of the Company, whose reports appear in the Prospectus and who
have delivered the initial letter referred to in Section 7(f) hereof, are
independent public accountants as required by the Securities Act and the
Rules and Regulations.
(s) (A) The Operating Partnership, directly or indirectly, has good
and marketable title to each of the Properties and the other assets not
located in Texas, and has good and indefeasible title to each of the
Properties and the other assets located in Texas, in each case free and
clear of all liens, encumbrances, claims, security interests and defects,
other than those referred to in the Prospectus or those which are not
material in amount or those which would not have a material adverse effect
on the business, operations, use or value of any of the Properties; (B) all
liens, charges, encumbrances, claims or restrictions on or affecting any of
the Properties and the assets of any Transaction Entity which are required
to be disclosed in the Prospectus are disclosed therein; (C) except as
otherwise described in the Prospectus, neither any Significant
Subsidiary nor any 10% or greater (in terms of square footage or base rent)
tenant of any of the Properties is in default under (i) any space leases
(as lessor or lessee, as the case may be) relating to the Properties, or
(ii) any of the mortgages or other security documents or other agreements
encumbering or otherwise recorded against the Properties, in each case
which default would have a material adverse effect on the earnings, assets
or business affairs of the Company and its subsidiaries considered as a
single enterprise, and no Transaction Entity knows of any event which, but
for the passage of time or the giving of notice, or both, would constitute
a default under any of such documents or agreements; (D) no tenant under
any of the leases at the Properties has a right of first refusal to
purchase the premises demised under such lease except those rights which if
exercised would not have a material adverse effect on the earnings, assets
or business affairs of the Company and its subsidiaries considered as a
single enterprise; (E) each of the Properties complies with all applicable
codes, laws and regulations (including, without limitation, building and
zoning codes, laws and regulations and laws relating to access to the
Properties), except for such failures to comply that would not have a
material adverse effect on the earnings, assets or business affairs of the
Company and its subsidiaries considered as a single enterprise; and (F) no
Transaction Entity has knowledge of any pending or threatened condemnation
proceedings, zoning change or other proceeding or action that will have a
material adverse effect on the earnings, assets or business affairs of the
Company and its subsidiaries, considered as a single enterprise, if such
proceeding, change or action were not resolved in favor of the Company.
(t) The mortgages and deeds of trust which encumber the Properties
are not convertible into equity securities of the entity owning such
Property and said mortgages and deeds of trust are not cross-defaulted or
cross-collateralized with any property other than other Properties.
(u) The Operating Partnership, directly or indirectly, has obtained
title insurance on the fee or leasehold interests in each of the
Properties, in an amount at least equal to the greater of (A) the mortgage
indebtedness of each such Property or (B) the purchase price of each such
Property.
(v) Except as disclosed in the Prospectus: (A) to the knowledge of
the Transaction Entities, the operations of the Company, the Operating
Partnership, the General Partner, each Manager, and the Properties are
materially in compliance with all Environmental Laws (as defined below) and
all requirements of applicable permits, licenses, approvals and other
authorizations issued pursuant to Environmental Laws; (B) to the knowledge
of the Transaction Entities, none of the Transaction Entities or any
Property has caused or suffered to occur any Release (as defined below) of
any Hazardous Substance (as defined below) into the Environment (as defined
below) on, in, under or from any Property, and no condition exists on, in,
under or adjacent to any Property that
could result in the incurrence of liabilities under, or any violations of,
any Environmental Law or give rise to the imposition of any Lien (as
defined below), under any Environmental Law, except such as in each case
would not have a material adverse effect on any Property or Transaction
Entity; (C) none of the Transaction Entities has received any written
notice of a claim under or pursuant to any Environmental Law or under
common law pertaining to Hazardous Substances on, in, under or originating
from any Property; (D) none of the Transaction Entities has actual
knowledge of, or received any written notice from any Governmental
Authority (as defined below) claiming, any violation of any Environmental
Law or a determination to undertake and/or request the investigation,
remediation, clean-up or removal of any Hazardous Substance released into
the Environment on, in, under or from any Property; and (E) no Property is
included or, to the knowledge of the Transaction Entities, after due
inquiry, proposed for inclusion on the National Priorities List issued
pursuant to CERCLA (as defined below) by the United States Environmental
Protection Agency (the "EPA") or on the Comprehensive Environmental
Response, Compensation, and Liability Information System database
maintained by the EPA, and none of the Transaction Entities has actual
knowledge that any Property has otherwise been identified in a published
writing by the EPA as a potential CERCLA removal, remedial or response site
or, to the knowledge of the Transaction Entities, is included on any
similar list of potentially contaminated sites pursuant to any other
Environmental Law.
As used herein, "Hazardous Substance" shall include any hazardous
substance, hazardous waste, toxic substance, pollutant or hazardous material,
including, without limitation, oil, petroleum or any petroleum-derived substance
or waste, asbestos or asbestos-containing materials, PCBs, pesticides,
explosives, radioactive materials, dioxins, urea formaldehyde insulation or any
constituent of any such substance, pollutant or waste which is subject to
regulation under any Environmental Law (including, without limitation, materials
listed in the United States Department of Transportation Optional Hazardous
Material Table, 49 C.F.R. (S) 172.101, or in the EPA's List of Hazardous
Substances and Reportable Quantities, 40 C.F.R. Part 302); "Environment" shall
mean any surface water, drinking water, ground water, land surface, subsurface
strata, river sediment, buildings, structures, and ambient, workplace and indoor
and outdoor air; "Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. (S) 9601
et seq.) ("CERCLA"), the Resource Conservation and Recovery Act of 1976, as
amended (42 U.S.C. (S) 6901, et seq.), the Clean Air Act, as amended (42 U.S.C.
(S) 7401, et seq.), the Clean Water Act, as amended (33 U.S.C. (S) 1251, et
seq.), the Toxic Substances Control Act, as amended (15 U.S.C. (S) 2601, et
seq.), the Occupational Safety and Health Act of 1970, as amended (29 U.S.C. (S)
651, et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C.
(S) 1801, et seq.), and all other federal, state and local laws, ordinances,
regulations, rules and orders relating to the protection of the Environment or
of human health from environmental effects; "Governmental Authority" shall mean
any federal, state or local governmental office, agency or authority having the
duty or
authority to promulgate, implement or enforce any Environmental Law;
"Lien" shall mean, with respect to any Property, any mortgage, deed of trust,
pledge, security interest, lien, encumbrance, penalty, fine, charge, assessment,
judgment or other liability in, on or affecting such Property; and "Release"
shall mean any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, emanating or disposing of
any Hazardous Substance into the Environment, including, without limitation, the
abandonment or discard of barrels, containers, tanks (including, without
limitation, underground storage tanks) or other receptacles containing or
previously containing any Hazardous Substance.
(w) Each Transaction Entity and their subsidiaries, and each
Property carries, or is covered by, insurance in such amounts and covering
such risks as is adequate for the conduct of its business and the value of
such Property and as is customary for companies engaged in similar
businesses in similar industries.
(x) Each Transaction Entity owns or possesses adequate rights to use
all material patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service xxxx registrations, copyrights and
licenses necessary for the conduct of its business and has no reason to
believe that the conduct of its business will conflict with, and has not
received any notice of any claim of conflict with, any such rights of
others.
(y) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which any Transaction Entity is a party
or of which any property or assets of any Transaction Entity is the subject
which, if determined adversely to such Transaction Entity, could reasonably
be expected to have a material adverse effect on the consolidated financial
position, shareholders' equity, results of operations or business of the
Company; and to the best knowledge of the Transaction Entities, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(z) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by
the Rules and Regulations.
(aa) No relationship, direct or indirect, exists between or among
any of the Transaction Entities on the one hand, and the directors,
trustees, officers, shareholders, customers or suppliers of the Transaction
Entities on the other hand, which is required to be described in the
Prospectus which is not so described.
(ab) No labor disturbance by the employees of any Transaction Entity
exists or, to the knowledge of the Transaction Entities, is imminent which
might be expected to have a material adverse effect on the consolidated
financial position, shareholders' equity, results of operations or business
of the Company and its subsidiaries considered as a single enterprise.
(ac) Each Transaction Entity is in compliance in all material
respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which any Transaction Entity would
have any liability; no Transaction Entity has incurred or expects to incur
liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended (the "Code"); and each "pension
plan" for which any Transaction Entity would have any liability that is
intended to be qualified under Section 401(a) of the Code is so qualified
in all material respects and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification.
(ad) Each Transaction Entity has filed all federal, state and local
income and franchise tax returns required to be filed through the date
hereof and has paid all taxes due thereon, and no tax deficiency has been
determined adversely to any Transaction Entity which has had (nor does any
Transaction Entity have any knowledge of any tax deficiency which, if
determined adversely to it might have) a material adverse effect on the
financial position, shareholders' equity, results of operations or business
of such Transaction Entity.
(ae) At all times since October 22, 1996, the Company, the Operating
Partnership, the General Partner, and the Managers have been and upon the
sale of the Shares will continue to be, organized and operated in
conformity with the requirements for qualification of the Company as a real
estate investment trust under the Code and the proposed method of operation
of the Company, the Operating Partnership, the General Partner and the
Managers will enable the Company to continue to meet the requirements for
qualification and taxation as a real estate investment trust under the
Code.
(af) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, no Transaction Entity has (i) issued or
granted any securities, except for the issuance of securities under
employee benefit plans and the issuance of Common Shares upon the exchange
of Units pursuant to the Operating Partnership Agreement, (ii) incurred any
liability or obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of business, (iii)
entered into any transaction not in
the ordinary course of business or (iv) declared or paid any dividend on
its capital stock (other than regular quarterly dividends).
(ag) Each Transaction Entity and their subsidiaries (i) makes and
keeps accurate books and records and (ii) maintains internal accounting
controls which provide reasonable assurance that (A) transactions are
executed in accordance with management's authorization, (B) transactions
are recorded as necessary to permit preparation of its financial statements
and to maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with management's authorization and (D) the
reported accountability for its assets is compared with existing assets at
reasonable intervals.
(ah) Neither the Company nor any Significant Subsidiary (i) is in
violation of its charter, by-laws, certificate of limited partnership,
agreement of limited partnership or other similar organizational document,
(ii) is in default in any material respect, and no event has occurred
which, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of the Properties or any of its other
properties or assets is subject or (iii) is in violation in any material
respect of any law, ordinance, governmental rule, regulation or court
decree to which it or the Properties or any of its other properties or
assets may be subject or has failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or permit
necessary to the ownership of the Properties or any of its other properties
or assets or to the conduct of its business.
(ai) No Transaction Entity, nor any director, trustee, officer,
agent, employee or other person associated with or acting on behalf of any
Transaction Entity, has used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(aj) No Transaction Entity is an "investment company" within the
meaning of such term under the Investment Company Act of 1940 and the rules
and regulations of the Commission thereunder.
(ak) The Shares have been approved for listing upon official notice
of issuance on the New York Stock Exchange.
(al) Other than this Agreement and as set forth in the Prospectus
under the
heading "Underwriting," there are no contracts, agreements or
understandings between any Transaction Entity and any person that would
give rise to a valid claim against any Transaction Entity or the
Underwriter for a brokerage commission, finder's fee or other like payment
with respect to the consummation of the transactions contemplated by this
Agreement.
(am) Each Transaction Entity has complied with all provisions of
Florida Statutes (S) 517.075, relating to issuers doing business with Cuba.
2. Purchase of the Shares by the Underwriter. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell the 1,198,157 Shares
to the Underwriter and the Underwriter agrees to purchase 1,198,157 Shares at a
purchase price of $25.770 per share.
The Company shall not be obligated to deliver any of the Shares to be
delivered on the Delivery Date (as hereinafter defined), as the case may be,
except upon payment for all the Shares to be purchased on the Delivery Date as
provided herein.
3. Offering of Shares by the Underwriter. The Company is advised by you
that the Underwriter intends to sell the Shares to Nike Securities L.P., which
intends to deposit such shares, together with shares of common stock of other
entities also acquired from the Underwriter, into the Trust, newly-formed unit
investment trust (the "Offering") as soon after the execution and delivery
hereof as in your judgment is advisable (and, if necessary, any post-effective
amendment to the Registration Statement).
4. Delivery of and Payment for the Shares. Delivery to the Underwriter
of and payment for the Shares shall be made subject to Section 7, at the office
of Xxxxxxx and Xxxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, at 10:00
A.M., Chicago time, on the third full business day following the date of this
Agreement or on the fourth full business day if this Agreement is executed after
the daily closing time of the New York Stock Exchange, or at such other date or
place as shall be determined by agreement between the Underwriter and the
Company. This date and time are sometimes referred to as the "Delivery Date."
On the Delivery Date, the Company shall deliver or cause to be delivered
certificates representing the Shares to the Underwriter for the account of the
Underwriter against payment to or upon the order of the Company of the purchase
price by wire transfer or, at the Company's election, by certified or official
bank check or checks payable in same day funds. Time shall be of the essence,
and delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of the Underwriter hereunder. Upon
delivery, the Shares shall be registered in such names and in such denominations
as the Underwriter shall request in writing not less than two full business days
prior to the Delivery Date. For the purpose of expediting the checking and
packaging of the certificates for the Shares, the Company shall make the
certificates representing the Shares available for inspection by the Underwriter
in New York, New York, not later than 2:00 P.M., New York City time, on the
business day prior to the Delivery Date.
5. Further Agreements of the Transaction Entities. Each of the
Transaction Entities jointly and severally agrees:
(a) To prepare the Prospectus in a form approved by the Underwriter
and to file such Prospectus pursuant to Rule 424(b) under the Securities
Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under
the Securities Act; to make no further amendment or any supplement to the
Registration Statement or to the Prospectus except as permitted herein; to
advise the Underwriter, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Underwriter with copies
thereof; to advise the Underwriter, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to the Underwriter and to counsel for the
Underwriter such number of conformed copies as the Underwriter shall
reasonably request of the Registration Statement as originally filed with
the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith or incorporated by
reference therein and all documents incorporated by reference therein; such
copies will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T;
(c) To deliver promptly to the Underwriter such number of the
following documents as the Underwriter shall reasonably request: each
Preliminary Prospectus, the Prospectus and any amended or supplemented
Prospectus; and, if the delivery of a prospectus is required at any time
after the Effective Time in connection with the offering or sale of the
Shares or any other securities relating thereto and if at such time any
events shall have occurred as a result of which the Prospectus as then
amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply with the
Securities Act or the Exchange Act, to notify the Underwriter and, upon its
request, to file such document and to prepare and furnish without charge to
the Underwriter and to any dealer in securities as many copies as the
Underwriter may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission or
effect such compliance. The aforementioned documents furnished to the
Underwriter will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Underwriter, be
required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy
thereof to the Underwriter and counsel for the Underwriter and obtain the
consent of the Underwriter to the filing;
(f) The Company will make generally available to its security
holders and will deliver to the Underwriter as soon as practicable (it
being understood that the Company shall have until at least 45 days after
the end of the Company's current fiscal quarter) an earnings statement (in
form complying with the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Rules and Regulations), which need not be certified by
independent certified public accountants unless required by the Securities
Act or the Rules and Regulations, covering a twelve-month period commencing
after the "effective date" (as defined in said Rule 158) of the
Registration Statement;
(g) For a period of five years following the Effective Date, to
furnish to the Underwriter copies of all materials furnished by the Company
to its shareholders and all public reports and all reports and financial
statements furnished by the Company to the principal national securities
exchange upon which the Common Shares may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder;
(h) Promptly from time to time to take such action as the
Underwriter may reasonably request to qualify the Shares for offering and
sale under the securities, real
estate syndication or Blue Sky laws of such jurisdictions as the
Underwriter may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of the Shares;
(i) To maintain the listing of the Common Shares on the New York
Stock Exchange, Inc.;
(j) To apply the net proceeds from the sale of the Shares being sold
by the Company in accordance with the description set forth in the
Prospectus under the caption "Use of Proceeds";
(k) To take such steps as shall be necessary to ensure that none of
the Transaction Entities shall become an "investment company" within the
meaning of such term under the Investment Company Act of 1940 and the rules
and regulations of the Commission thereunder;
(1) Except as stated in this Agreement and in the Preliminary
Prospectus and Prospectus, no Transaction Entity has taken, nor will take,
directly or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price
of the Common Shares to facilitate the sale or resale of the Shares;
(m) The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the Code;
and
(n) If this Agreement shall be terminated by the Underwriter because
of any failure or refusal on the part of the Transaction Entities to comply
with the terms or fulfill any of the conditions of this Agreement, the
Transaction Entities jointly and severally agree to reimburse the
Underwriter for all reasonable out-of-pocket expenses (including fees and
expenses of counsel for the Underwriter) incurred by the Underwriter in
connection herewith.
6. Expenses. The Transaction Entities jointly and severally agree to
pay (a) the costs incident to the authorization, issuance, sale and delivery of
the Shares and any taxes payable in that connection; (b) the costs incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), any Preliminary Prospectus, the Prospectus and any amendment or
supplement to the Prospectus, all as provided in this Agreement; (d) the costs
of producing and distributing this Agreement and any other
related documents in connection with the offering, purchase, sale and delivery
of the Shares; (e) the filing fees incident to securing any required review by
the National Association of Securities Dealers, Inc. of the terms of sale of the
Shares; (f) any applicable listing or other fees; (g) the fee and expenses of
qualifying the Shares under the securities laws of the several jurisdictions as
provided in Section 5(h) and of preparing, printing and distributing a Blue Sky
Memorandum (including related reasonable fees and expenses of counsel to the
Underwriter); and (h) all other costs and expenses incident to the performance
of the obligations of the Transaction Entities under this Agreement; provided
that, except as provided in this Section 6 and in Section 12 the Underwriter
shall pay its own costs and expenses, including the costs and expenses of its
counsel, any transfer taxes on the Shares which they may sell and the expenses
of advertising any offering of the Shares made by the Underwriter.
7. Conditions of Underwriter's Obligations. The obligations of the
Underwriter hereunder are subject to the accuracy, when made and on the Delivery
Date, of the representations and warranties of the Transaction Entities
contained herein, to the performance by each Transaction Entity of its
obligations hereunder, and to each of the following additional terms and
conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the Registration Statement or such post-effective amendment shall
have become effective not later than 5:30 P.M., New York City time, on the
date hereof, or at such later date and time as shall be consented to in
writing by you, and all filings, if any, required by Rules 424 and 430A
under the Rules and Regulations shall have been timely made; no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose shall have been instituted or, to
the knowledge of the Transaction Entities or the Underwriter, threatened by
the Commission, and any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus
or otherwise) shall have been complied with to the satisfaction of the
Underwriter.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition, financial or otherwise,
business, properties, net worth, or results of operations of any
Transaction Entity, any of their subsidiaries or any Property not
contemplated by the Prospectus, which in the opinion of the Underwriter,
would materially adversely affect the market for the Shares, or (ii) any
event or development relating to or involving any Transaction Entity, or
any partner, officer, director or trustee of any Transaction Entity, which
makes any statement of a material fact made in the Prospectus untrue or
which, in the opinion of the Company and its counsel or the Underwriter and
its counsel, requires the making of any addition to or change in the
Prospectus in order to state a material fact required by the Securities Act
or any other law to be stated therein or necessary in order to make the
statements therein not misleading, if amending or supplementing the
Prospectus to reflect such event or development would, in your opinion,
adversely affect the market for the Shares.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Shares, the
Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall
be reasonably satisfactory in all material respects to counsel for the
Underwriter, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them
to pass upon such matters.
(d) Hunton & Xxxxxxxx, or such other firm or firms satisfactory to
counsel for the Underwriter, shall have furnished to the Underwriter its
written opinion, as counsel to the Company, addressed to the Underwriter
and dated such Delivery Date, in form and substance reasonably satisfactory
to the Underwriter, to the effect that:
(i) The Company has been duly formed and is validly existing
as a real estate investment trust in good standing under and by virtue
of the laws of the State of Maryland, is in good standing with the
State Department of Assessments and Taxation of Maryland and as a
foreign trust or corporation in those jurisdictions listed in such
opinion, and has all trust power and authority necessary to own or
hold its properties and to conduct the business in which it is engaged
as described in the Registration Statement and the Prospectus, and to
enter into and perform its obligations under this Agreement.
(ii) The Company has an authorized capitalization as set
forth in the Prospectus under the caption "Capitalization," and all of
the issued shares of beneficial interest of the Company (other than
the Shares) have been duly and validly authorized and issued, are
fully paid and non-assessable and conform in all material respects to
the description thereof contained in the Prospectus.
(iii) The Operating Partnership has been duly formed and is
validly existing as a limited partnership under the laws of the State
of Delaware, is duly qualified to do business as a foreign limited
partnership in Texas, Maryland, Illinois, Pennsylvania and California,
and has all partnership power and authority necessary to own or hold
its properties, to conduct the business in which it is engaged as
described in the Registration Statement and the Prospectus, and to
enter into and perform its obligations under this Agreement. To such
counsel's knowledge, the General Partner is the sole general partner
of the Operating
Partnership, the Operating Partnership Agreement is in full force and
effect, and the aggregate percentage interests of the Company, the
General Partner and the limited partners in the Operating Partnership
are as set forth in the Prospectus.
(iv) The General Partner has been duly formed and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, is duly qualified to do business and is in good standing
as a foreign corporation in Texas, Maryland, Illinois, Pennsylvania
and California, and has all corporate power and authority necessary to
own or hold its properties, to conduct the business in which it is
engaged as described in the Registration Statement and the Prospectus,
and to enter into and perform its obligations under this Agreement.
All of the issued and outstanding capital stock of the General Partner
has been duly authorized and validly issued and is fully paid and non-
assessable, is owned by the Company free and clear of any perfected
security interest, mortgage, pledge, lien, encumbrance, claim,
restriction or equities or, to such counsel's knowledge, any
unperfected security interest, mortgage, pledge, lien, encumbrance,
claim, restriction or equities.
(v) PPREF has been duly organized and is validly existing as
a partnership under the laws of the State of Delaware, is duly
qualified to do business in California, Illinois, Michigan, Missouri,
Wisconsin, Texas and Virginia, and has all partnership power and
authority necessary to own or hold its properties and to conduct the
business in which it is engaged. Except as set forth in the
Prospectus, all of the issued partnership interests of PPREF are owned
directly or indirectly by the Company and the Operating Partnership,
free and clear of any perfected security interest, mortgage, pledge,
lien, encumbrance, claim, restriction or equities or, to such
counsel's knowledge, any unperfected security interest, mortgage,
pledge, lien, encumbrance, claim, restriction or equities.
(vi) The Shares have been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein,
will be duly and validly issued, fully paid and non-assessable. Upon
payment of the purchase price and delivery of the Shares in accordance
herewith, the Underwriter will receive good, valid and marketable
title to the Shares, free and clear of all security interests,
mortgages, pledges, liens, encumbrances, claims, restrictions and
equities. The terms of the Shares conform in all material respects to
all statements and descriptions related thereto contained in the
Prospectus. The form of the certificates to be used to evidence the
Shares are in due and proper form and comply with all applicable legal
requirements. The issuance of the Shares is not subject to any
preemptive or other similar rights arising under the Declaration of
Trust or by-laws of the Company, Title 8 of the Corporations and
Associations Article of the Annotated Code of Maryland, as amended, or
any agreement or other instrument to which the Company is a party
known to such counsel.
(vii) This Agreement has been duly and validly authorized,
executed and delivered by each of the Transaction Entities.
(viii) The execution, delivery and performance of this
Agreement by each of the Transaction Entities and the consummation of
the transactions contemplated hereby will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which any of the Transaction Entities is a party or by which any of
the Transaction Entities is bound or to which any of the Properties or
other assets of any of the Transaction Entities is subject, nor will
such actions result in any violation of the provisions of the charter,
by-laws, certificate of limited partnership or agreement of limited
partnership of any of the Transaction Entities, or any statute or any
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over any of the
Transaction Entities or any of their properties or assets.
(ix) To such counsel's knowledge, other than as set forth in
the Prospectus and pursuant to the Operating Partnership Agreement as
to the Exchange Shares (as defined therein), there are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Securities Act.
(x) To such counsel's knowledge, there are no legal or
governmental proceedings pending to which any Transaction Entity is a
party or of which any property or assets of any Transaction Entity is
the subject which are not disclosed in the Prospectus and which, if
determined adversely to such Transaction Entity, would have a material
adverse effect on the consolidated financial position, shareholders'
equity, results of operations or business of the Company; and to the
knowledge of such counsel, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(xi) There are no contracts or other documents known to such
counsel which are required to be described in the Prospectus or filed
as exhibits to the Registration Statement by the Securities Act or by
the Rules and Regulations which have not been described in the
Prospectus or filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules and
Regulations.
(xii) To such counsel's knowledge, no relationship, direct or
indirect, exists between or among any of the Transaction Entities on
the one hand, and the directors, trustees, officers, shareholders,
customers or suppliers of the Transaction Entities on the other hand,
which is required to be described in the Prospectus which is not so
described.
(xiii) To such counsel's knowledge, neither the Company nor
any Significant Subsidiary (i) is in violation of its charter, by-
laws, certificate of limited partnership, agreement of limited
partnership or other similar organizational document or (ii) is in
default in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition
contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of the Properties or any of its
other properties or assets is subject and which was filed as an
exhibit to the Registration Statement.
(xiv) No consent, approval, authorization or other order of,
or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency, or official
is required on the part of the Company other than those which have
been obtained under the Securities Act and the Exchange Act (except
such as may be required under state securities, real estate
syndication or Blue Sky laws governing the purchase and distribution
of the Shares, as to which such counsel need express no opinion) for
the valid issuance and sale of the Shares to the Underwriter as
contemplated by this Agreement.
(xv) No Transaction Entity is an "investment company" within
the meaning of such term under the Investment Company Act of 1940 and
the rules and regulations of the Commission thereunder. The Shares
have been approved for listing on the New York Stock Exchange upon
notice of issuance.
(xvi) The documents incorporated or deemed to be incorporated
by reference in the Prospectus pursuant to Item 12 of Form S-3 under
the Securities Act (other than the financial statements and related
schedules and
financial information and data included therein, as to which no
opinion need be rendered), at the time they were filed with the
Commission, complied and will comply as to form in all material
respects with the requirements of the Exchange Act and the rules and
regulations thereunder.
(xvii) The Registration Statement was declared effective
under the Securities Act as of the date and time specified in such
opinion, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) of the Rules and Regulations specified in
such opinion on the date specified therein and, to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge of such
counsel, no proceeding for that purpose is pending or threatened by
the Commission.
(xviii) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company prior to
such Delivery Date (other than the financial statements and related
schedules and other financial data included therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act and the Rules and
Regulations.
(xix) The statements contained in the Prospectus under the
captions "Risk Factors," "Description of Shares of Beneficial
Interest," "Federal Income Tax Considerations," and "Certain Federal
Income Tax Considerations," insofar as those statements are
descriptions of contracts, agreements or other legal documents, or
they describe federal statutes, rules and regulations, and except to
the extent such statements are statistics or calculations, constitute
a fair summary thereof, and the opinion of such counsel filed as
Exhibit 8 to the Registration Statement is confirmed and the
Underwriter may rely upon such opinion as if it were addressed to
them.
In rendering such opinion, such counsel may (i) state that its opinion is
limited to matters governed by the Federal laws of the United States of America
and the corporate law of the State of Delaware and (ii) rely (to the extent such
counsel deems proper and specifies in their opinion), as to matters involving
the application of the laws of the State of Maryland upon the opinion of other
counsel of good standing, provided that such other counsel is satisfactory to
counsel for the Underwriter and furnishes a copy of its opinion to the
Underwriter; provided that such counsel shall state that it believes that both
the Underwriter and it are justified in relying upon such opinions of local
counsel. Such counsel shall also have furnished to the Underwriter a written
statement, addressed to the Underwriter and dated such Delivery Date, in form
and substance satisfactory to the Underwriter, to the effect that (x) such
counsel has acted as counsel to the Company in connection with the preparation
of the Registration Statement and the Prospectus,
and (y) based on the foregoing, no facts have come to the attention of such
counsel which lead it to believe that the Registration Statement, as of the
Effective Date, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Prospectus contains any
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
foregoing opinion and statement may be qualified by a statement to the effect
that such counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus except for the statements made in the Prospectus
under the captions "Description of Shares of Beneficial Interest" and "Federal
Income Tax Considerations" insofar as such statements relate to the Shares and
concern legal matters, and may state that such counsel expresses no belief with
respect to the financial statements and notes thereto and other financial and
statistical data included or incorporated by reference in, or omitted from, the
Registration Statement or the Prospectus.
(e) The Underwriter shall have received from Xxxxxxx and Xxxxxx,
counsel for the Underwriter, such opinion or opinions, dated such Delivery
Date, with respect to the issuance and sale of the Shares, the Registration
Statement, the Prospectus and other related matters as the Underwriter may
reasonably require, and the Company shall have furnished to such counsel
such documents as they reasonably request for the purpose of enabling them
to pass upon such matters.
(f) At the time of execution of this Agreement, the Underwriter
shall have received from Coopers & Xxxxxxx L.L.P. a letter, in form and
substance satisfactory to the Underwriter, addressed to the Underwriter and
dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii)
stating, as of the date hereof (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in, or incorporated by reference in, the
Prospectus, as of a date not more than five days prior to the date hereof),
the conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants' "comfort
letters" to underwriters in connection with registered public offerings.
(g) With respect to the letter of Coopers & Xxxxxxx L.L.P. referred
to in the preceding paragraph and delivered to the Underwriter concurrently
with the execution of this Agreement (the "initial letter"), the Company
shall have furnished to the Underwriter a letter (the "bring-down letter")
of such accountants, addressed to the Underwriter and dated such Delivery
Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, (ii)
stating, as of the date of the bring-down letter (or, with respect to
matters involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date of the bring-down letter),
the conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings set forth
in the initial letter.
(h) Each Transaction Entity shall have furnished to the Underwriter
a certificate, dated such Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating that:
(i) The representations, warranties and agreements of the
Transaction Entities in Section 1 are true and correct as of such
Delivery Date; the Transaction Entities complied with all of their
agreements contained herein; and the conditions set forth in Sections
7(a) and 7(i) have been fulfilled; and
(ii) They have carefully examined the Registration Statement
and the Prospectus and, in their opinion (A) as of the Effective Date,
the Registration Statement and Prospectus did not include any untrue
statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading (with respect to the Prospectus, in light of
the circumstances in which they were made), and (B) since the
Effective Date no event has occurred which should have been set forth
in a supplement or amendment to the Registration Statement or the
Prospectus.
(i) (i) None of the Transaction Entities or any Property shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus or
(ii) since such date there shall not have been any change in the capital
stock or long-term debt of any Transaction Entity or any change, or any
development involving a prospective change, in or affecting any Property or
the general affairs, management, financial position, shareholders' equity
or results of operations of any Transaction Entity, otherwise than as set
forth or contemplated in the Prospectus, the effect of which, in any such
case described in clause (i) or (ii), is, in the judgment of the
Underwriter, so material and adverse as to make it impracticable or
inadvisable to (x) commence or continue the offering of the units of the
Trust to the public, or (y) enforce contracts for the sale of the
units of the Trust.
(j) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the Company
on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment
of the Underwriter, impracticable or inadvisable (x) commence of continue
the offering of the units of the Trust to the public, or (y) enforce
contracts for the sale of the units of the Trust.
(k) The Shares shall be approved for listing on the New York Stock
Exchange, Inc., subject only to official notice of issuance.
(l) The Transaction Entities shall not have failed at or prior to
such Delivery Date to have performed or complied with any of their
agreements herein contained and required to be performed or complied with
by them hereunder at or prior to such Delivery Date.
(m) On the Delivery Date, counsel for the Underwriter shall have
been furnished with such documents and opinions as it may require for the
purpose of enabling it to pass upon the issuance and sale of the Shares 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
Transaction Entities in connection with the issuance and sale of the Shares
as herein contemplated shall be satisfactory in form and substance to the
Underwriter and counsel for the Underwriter.
(n) The Company shall have furnished or caused to be furnished to
the Underwriter such further certificates and documents as the Underwriter
shall have reasonably requested.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if
they are in form and substance reasonably satisfactory to counsel for the
Underwriter.
Any certificate or document signed by any officer of the Transaction
Entities and delivered to the Underwriter, or to counsel for the Underwriter,
shall be deemed a representation and warranty by the Transaction Entities to the
Underwriter as to the statements made therein.
8. Effective Date of Agreement. This Agreement shall become effective:
(i) upon the execution hereof by the parties hereto; or (ii) if, at the time
this Agreement is executed and delivered, it is necessary for the Registration
Statement or a post-effective amendment thereto to be declared effective before
the offering of the Shares may commence, when notification of the effectiveness
of the Registration Statement or such post-effective amendment has been released
by the Commission.
9. [Intentionally Left Blank].
10. Indemnification and Contribution.
(a) The Transaction Entities, jointly and severally, shall indemnify and
hold harmless the Underwriter, its officers and employees and each person, if
any, who controls the Underwriter within the meaning of the Securities Act, from
and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Shares), to which
that Underwriter, officer, employee or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (B) in any blue sky application or other document prepared
or executed by the Company (or based upon any written information furnished by
the Company) specifically for the purpose of qualifying any or all of the Shares
under the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a "Blue Sky
Application"), (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading
(with respect to the Prospectus, in light of the circumstances under which they
were made), or (iii) any act or failure to act or any alleged act or failure to
act by the Underwriter in connection with, or relating in any manner to, the
Shares or the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered by clause (i)
or (ii) above (provided that the Transaction Entities shall not be liable under
this clause (iii) to the extent that it is determined in a final judgment by a
court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such Underwriter through its gross negligence or willful
misconduct), and shall reimburse the Underwriter and each such officer, employee
or controlling person promptly upon demand for any legal or other expenses
reasonably incurred by that Underwriter, officer, employee or controlling person
in connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Transaction Entities shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any such amendment or
supplement, or in any Blue Sky Application, in reliance upon and in conformity
with written information concerning the Underwriter furnished to the Company by
or on behalf of the Underwriter specifically for inclusion therein. The
foregoing indemnity agreement is in addition to any liability which the
Transaction Entities may otherwise have to the Underwriter or to any officer,
employee or controlling person of that Underwriter.
(b) The Underwriter shall indemnify and hold harmless each Transaction
Entity, its officers and employees, each of its directors or trustees, and each
person, if any, who controls each Transaction Entity within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which each Transaction Entity or
any such director, trustee, officer or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto, or (B) in any Blue Sky Application or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement thereto, or in
any Blue Sky Application any material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information concerning the Underwriter furnished to the Company by or on behalf
of that Underwriter specifically for inclusion therein, and shall reimburse each
Transaction Entity and any such director, trustee, officer or controlling person
for any legal or other expenses reasonably incurred by each Transaction Entity
or any such director, trustee, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which the Underwriter may
otherwise have to each Transaction Entity or any such director, trustee,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 10
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 10, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 10 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 10. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 10 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Underwriter shall have the right to employ counsel to represent jointly the
Underwriter and their respective officers, employees and controlling persons who
may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriter against the Transaction Entities
under this Section 10 if, in the reasonable judgment of the Underwriter, it is
advisable for the Underwriter, officers, employees and controlling persons to be
jointly represented by separate counsel, and in that event the fees and expenses
of such separate counsel shall be paid by the indemnifying party. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 10 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 10(a) or 10(c) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim,
damage or liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the
Transaction Entities on the one hand and the Underwriter on the other from the
offering of the Shares or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Transaction Entities on the one hand and the Underwriter
on the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Transaction Entities on the one hand and the Underwriter on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Shares purchased under this
Agreement (before deducting expenses) received by the Transaction Entities, on
the one hand, and the total underwriting discounts and commissions received by
the Underwriter with respect to the Shares purchased under this Agreement, on
the other hand, bear to the total gross proceeds from the offering of the Shares
under this Agreement, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Transaction Entities or the Underwriter, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Transaction Entities and the Underwriter agree
that it would not be just and equitable if contributions pursuant to this
Section were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section shall be deemed to include, for purposes of
this Section 10(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 10(d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the public
was offered to the public exceeds the amount of any damages which the
Underwriter has otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The Underwriter confirms and each Transaction Entity acknowledges
that (i) the statements with respect to the offering of the Shares by the
Underwriter set forth on the cover page of, (ii) the legend concerning over-
allotments on the inside front cover page of, and (iii) pursuant to Item 508 of
Regulation S-K of the Securities Act, the information contained in the second,
fourth, fifth, sixth and eighth paragraphs, and the seventh paragraph as to the
Underwriter, in the section captioned "Underwriting" in, the Prospectus are
correct and
constitute the only information concerning the Underwriter furnished in writing
to the Company by or on behalf of the Underwriter specifically for inclusion in
the Registration Statement and the Prospectus.
11. Termination. The obligations of the Underwriter hereunder may be
terminated by the Underwriter by notice given to and received by the Company
prior to delivery of and payment for the Shares if, prior to that time, any of
the events described in Sections 7(i), 7(j) or 7(l) shall have occurred or if
the Underwriter shall decline to purchase the Shares for any reason permitted
under this Agreement.
12. Reimbursement of Underwriter's Expenses. If the Company shall fail
to tender the Shares for delivery to the Underwriter by reason of any failure,
refusal or inability on the part of the Transaction Entities to perform any
agreement on their part to be performed, or because any other condition of the
Underwriter's obligations hereunder required to be fulfilled by the Transaction
Entities is not fulfilled (other than the condition set forth in Section 7(j)
herein), the Transaction Entities will reimburse the Underwriter for all
reasonable out-of-pocket expenses (including fees and disbursements of counsel)
incurred by the Underwriter in connection with this Agreement and the proposed
purchase of the Shares, and upon demand the Transaction Entities shall pay the
full amount thereof to the Underwriter.
13. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriter, shall be delivered or sent by mail, telex
or facsimile transmission to X.X. Xxxxxxx & Sons, Inc., Xxx Xxxxx Xxxxxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Syndicate (Fax: (314) 289-
7387); with a copy to Xxxx X. Xxxxx, Esq., Xxxxxxx and Xxxxxx, 000 Xxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000 (Fax: 000-000-0000);
(b) if to the Transaction Entities shall be delivered or sent by
mail, telex or facsimile transmission to the Company, 0000 X. Xxxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxx
(Fax: 000-000-0000); with a copy to Xxxxxxx X. Xxxxx, Esq., Hunton &
Xxxxxxxx, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 (Fax: 804-788-
8218).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
14. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriter, the Transaction
Entities and their respective personal representatives and successors. This
Agreement and the terms and provisions hereof are
for the sole benefit of only those persons, except that (A) the representations,
warranties, indemnities and agreements of the Transaction Entities contained in
this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control the Underwriter within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Underwriter contained
in Section 10(b) of this Agreement shall be deemed to be for the benefit of
directors and trustees of the Transaction Entities, officers of the Company who
have signed the Registration Statement and any person controlling the
Transaction Entities within the meaning of Section 15 of the Securities Act.
Nothing in this Agreement is intended or shall be construed to give any person,
other than the persons referred to in this Section 14, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
15. Survival. The respective indemnities, representations, warranties
and agreements of the Transaction Entities and the Underwriter contained in this
Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Shares and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
16. Definition of the Terms "Business Day" and "Subsidiary." For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York.
18. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
19. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the Company and
the Underwriter, please indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
Xxxxxxxx Properties Trust
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
Xxxxxxxx Properties Acquisition
Partners, L.P.
By: Xxxxxxxx Properties I, Inc., its
general partner
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and
Treasurer
Xxxxxxxx Properties I, Inc.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
Accepted:
X.X. Xxxxxxx & Sons, Inc.
By /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------
Authorized Representative
Xxxxxxx X. Xxxxxxxxxx
Managing Director
