1
Exhibit 1
CCA PRISON REALTY TRUST
17,000,000 COMMON SHARES
UNDERWRITING AGREEMENT
June __, 1997
X.X. XXXXXXXX & CO., L.L.C.
A.G. XXXXXXX & SONS, INC.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
XXXXXX BROTHERS INC.
PAINEWEBBER INCORPORATED
XXXXXXXX INC.
As Representatives of the Several Underwriters
c/o X.X. Xxxxxxxx & Co.
X.X. Xxxxxxxx Financial Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
CCA Prison Realty Trust, a Maryland real estate investment trust (the
"Company"), proposes to issue and sell to the underwriters named in Schedule I
hereto (the "Underwriters") for whom you are acting as the representatives (the
"Representatives") 17,000,000 shares (collectively, the "Firm Shares"), of the
Common Shares, $.01 par value per share (the "Common Shares"), of the Company.
Such Common Shares are to be sold to the Underwriters, acting severally and not
jointly, in such amounts as are set forth in Schedule I hereto opposite the name
of such Underwriter. The Company proposes to grant to the Underwriters an option
to purchase up to 2,550,000 additional Common Shares as provided for in Section
2 of this Agreement for the purpose of covering over-allotments (the "Option
Shares"). The Firm Shares and the Option Shares purchased pursuant to this
Agreement are herein called the "Shares."
1. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), a registration statement on Form S-11 (Registration No.
333-25727), including the related
2
preliminary prospectus relating to the Shares. Copies of such registration
statement and any amendments, including any post-effective amendments, and
all forms of the related prospectuses contained therein and any supplements
thereto, have been delivered to you. Such registration statement, including
the prospectus, Part II, all financial schedules and exhibits thereto, all
information deemed to be a part of such registration statement pursuant to
Rule 430A under the Securities Act and any related registration statement
filed pursuant to Rule 462(b) under the Securities Act, at the time when
they shall become effective are herein referred to as the "Registration
Statement," and the prospectus included as part of the Registration
Statement on file with the Commission that discloses all the information
that was omitted from the prospectus on the effective date pursuant to Rule
430A of the Rules and Regulations (as defined below) and in the form filed
pursuant to Rule 424(b) under the Securities Act is herein referred to as
the "Final Prospectus." The prospectus included as part of the Registration
Statement on the date when the Registration Statement became effective is
referred to herein as the "Effective Prospectus." Any prospectus included
in the Registration Statement and in any amendment thereto prior to the
effective date of the Registration Statement is referred to herein as a
"Preliminary Prospectus." For purposes of this Agreement, "Rules and
Regulations" mean the rules and regulations promulgated by the Commission
under either the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as applicable.
(b) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus, and each Preliminary Prospectus, at
the time of filing thereof, complied with the requirements of the
Securities Act and the Rules and Regulations, and did not include any
untrue statement of a material fact or omit to state any 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; except that the foregoing does not apply to statements or
omissions made in reliance upon and in conformity with written information
relating to any Underwriter furnished to the Company by any Underwriter
specifically for use therein. When the Registration Statement becomes
effective and at all times subsequent thereto up to and including the First
Closing Date (as hereinafter defined), (i) the Registration Statement, the
Effective Prospectus and Final Prospectus and any amendments or supplements
thereto will contain all statements which are required to be stated therein
in accordance with the Securities Act and the Rules and Regulations and
will comply with the requirements of the Securities Act and the Rules and
Regulations, and (ii) neither the Registration Statement, the Effective
Prospectus nor the Final Prospectus nor any amendment or supplement thereto
will include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they are made,
not misleading; except that the foregoing does not apply to statements or
omissions made in reliance upon and in conformity with written information
relating to any Underwriter furnished to the Company by any Underwriter
specifically for use therein.
2
3
(c) The Company is duly formed and validly existing and in good
standing under the laws of the State of Maryland with full power and
authority to own its properties and conduct its business as now conducted
and is duly qualified or authorized to do business and is in good standing
in all jurisdictions where the failure to so qualify could have a material
adverse effect upon the conduct of business or the ownership or leasing of
property by the Company in such jurisdiction. The Company holds all
material licenses, consents and approvals, and has satisfied all material
eligibility and other similar requirements imposed by federal and state
regulatory bodies, administrative agencies or other governmental bodies,
agencies or officials, in each case as required for the conduct of the
business in which it is engaged and is contemplated to be engaged in the
Effective Prospectus and the Final Prospectus. The Company does not have a
direct or indirect ownership interest in any corporation, joint venture,
partnership or other entity.
(d) The capitalization of the Company is as set forth under the
caption "Capitalization" in the Effective Prospectus and the Final
Prospectus, and the Company's capital shares conform to the description
thereof contained under the caption "Description of Capital Shares" in the
Effective Prospectus and the Final Prospectus. All the issued capital
shares of the Company have been duly authorized and validly issued, are
fully paid and nonassessable. None of the issued capital of the Company
have been issued in violation of, or are subject to, any preemptive or
similar rights. The Shares to be sold by the Company hereunder have been
duly and validly authorized and, upon issuance and delivery and payment
therefor in the manner herein described, will be validly issued, fully paid
and nonassessable and will not be subject to preemptive rights or other
rights to subscribe for or to purchase. Except as set forth in the
Effective Prospectus and the Final Prospectus, (i) the Company does not
have outstanding any options to purchase, or any rights or warrants to
subscribe for, or any securities or obligations convertible into, or any
contracts or commitments to issue or sell, any Common Shares and (ii) there
are no preemptive rights or other rights to subscribe for or to purchase,
or any restriction upon the transfer of, any Common Shares pursuant to the
Company's declaration of trust, bylaws or any agreement or other instrument
to which the Company is a party or by which it may be bound. Neither the
filing of the Registration Statement nor the offer or sale of the Shares as
contemplated by this Agreement gives rise to any rights, other than those
which have been waived or satisfied, for or relating to the registration of
any Common Shares or any other securities of the Company. The Underwriters
will receive good and marketable title to the Shares to be issued and
delivered hereunder, free and clear of all liens, encumbrances, claims,
security interests, restrictions, shareholders' agreements and voting
trusts whatsoever.
(e) The form of share certificate to be used to evidence the Common
Shares will be in due and proper form and will comply with all applicable
legal requirements.
(f) All offers and sales by the Company of the Company's securities
prior to the date hereof were at all relevant times duly registered or the
subject of an available
3
4
exemption from the registration requirements of the Securities Act, and
were duly registered or the subject of an available exemption from the
registration requirements of the applicable state securities or Blue Sky
laws.
(g) The Company has full legal right, power and authority to enter
into this Agreement and to sell and deliver the Shares to be sold by it to
the several Underwriters as provided herein, and this Agreement has been
duly authorized, executed and delivered by the Company and constitutes a
valid and binding agreement of the Company enforceable against the Company
in accordance with its terms. No consent, approval, authorization or order
of any court or governmental agency or body or third party is required for
the performance of this Agreement by the Company or the consummation by the
Company of the transactions contemplated hereby, except such as have been
obtained and such as may be required by the National Association of
Securities Dealers, Inc. ("NASD") or under the Securities Act or state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the several Underwriters. The issue and sale
of the Shares by the Company, the Company's performance of this Agreement
and the consummation of the transactions contemplated hereby will not
result in a breach or violation of, or conflict with, any of the terms and
provisions of, or constitute a default by the Company under, any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which the Company is a party or to which the Company or any
of its properties is subject, the declaration of trust, bylaws or other
governing instruments of the Company or any statute or any judgment,
decree, order, rule or regulation of any court or governmental agency or
body applicable to the Company or any of its properties, except for such
breach, violation or conflict which could, singly or in the aggregate, have
a material adverse effect on the Company or could, singly or in the
aggregate, materially impair the performance by the Company of its
obligations under this Agreement. The Company is not in violation of its
declaration of trust, bylaws or other governing instruments or any law,
administrative rule or regulation or arbitrators' or administrative court
decree, judgment or order or in violation or default (there being no
existing state of facts which with notice or lapse of time or both would
constitute a default) in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, deed of trust, mortgage, loan agreement, note, lease, agreement
or other instrument or permit to which it is a party or by which it or any
of its properties is or may be bound, except for such violation or conflict
which could, singly or in the aggregate, have a material adverse effect on
the Company or could singly or in the aggregate, materially impair the
performance by the Company of its obligations under this Agreement.
(h) At the Closing Date, each of the Purchase Agreement, the Option
Agreements, the Right to Purchase Agreement, the Trade Name Use Agreement,
the Leases, the Master Lease, (each as defined in the Effective
Prospectus), and the employment agreements with each of J. Xxxxxxx
Xxxxxxx, D. Xxxxxx Xxxxxx III and Xxxxxxx X. Xxxxxx (collectively, the
"Employment Agreements") will have
4
5
been duly and validly authorized, executed and delivered by the Company and
will be valid and binding agreements of the Company enforceable in
accordance with their respective terms. At the Closing Date, the agreements
pursuant to which certain persons have agreed not to sell their Common
Shares for a specified period of time (the "Lockup Agreements") will have
been duly and validly authorized, executed and delivered by the parties
thereto and will be valid and binding agreements, enforceable in accordance
with their terms. The Purchase Agreement, the Option Agreements, the Right
to Purchase Agreement, the Trade Name Use Agreement, the Leases, the Master
Lease, the Employment Agreements and the Lockup Agreements are
sometimes hereinafter called the "Operative Documents." The execution,
delivery and performance of the Operative Documents and the consummation
of the transactions contemplated therein and compliance by the Company
with its obligations thereunder have been duly authorized by all necessary
action and will not contravene any provision of applicable law or the
declaration of trust or by-laws of the Company or any agreement or other
instrument binding upon the Company, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company, and no consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Company of its obligations under the Operative
Documents, except (i) such as may be required by the federal securities
laws or the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares and (ii) to the extent
that the failure to obtain such would not, singly or in the aggregate,
have a material adverse effect on the Company.
(i) The historical and pro forma financial statements, together with
the related schedules and notes, of the Company, included in the
Registration Statement, the Effective Prospectus and the Final Prospectus,
conform to the requirements of the Securities Act and the Rules and
Regulations. Such historical financial statements fairly present the
financial position of the Company at the respective dates indicated in
accordance with generally accepted accounting principles applied on a
consistent basis for the periods indicated. Such pro forma financial
statements have been prepared on a basis consistent with such historical
statements, except for the pro forma adjustments specified therein, and
give effect to assumptions made on a reasonable basis and present fairly
the transactions reflected thereby as indicated in the Prospectus. The
financial and statistical data set forth in the Effective Prospectus and
the Final Prospectus fairly presents the information set forth therein on
the basis stated in the Effective Prospectus and the Final Prospectus.
Xxxxxx Xxxxxxxx LLP, whose report is included in the Effective Prospectus
and the Final Prospectus, are independent accountants as required by the
Securities Act and the Rules and Regulations.
(j) Subsequent to April 23, 1997, the Company has not sustained any
material loss or interference with its business or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, which is not disclosed in the Effective Prospectus
5
6
and the Final Prospectus; and subsequent to the respective dates as of
which information is given in the Registration Statement, the Effective
Prospectus and the Final Prospectus, (i) the Company has not incurred any
material liabilities or obligations, direct or contingent, or entered into
any transactions not in the ordinary course of business, and (ii) there has
not been any issuance of options, warrants or rights to purchase interests
in, or the capital shares of, the Company, or any adverse change, or any
development involving a prospective adverse change, in the general affairs,
management, business, prospects, financial position, net worth or results
of operations of the Company, except in each case as described in the
Effective Prospectus and the Final Prospectus.
(k) Except as described in the Effective Prospectus and the Final
Prospectus, there is not pending, or to the knowledge of the Company
threatened, any legal or governmental action, suit, proceeding, inquiry or
investigation, to which the Company or any of its officers or trustees is a
party, or to which the property of the Company is subject, before or
brought by any court or governmental agency or body, wherein an unfavorable
decision, ruling or finding could prevent or materially hinder the
consummation of this Agreement or the Operative Documents or result in a
material adverse change in the business condition (financial or other),
prospects, financial position, net worth or results of operations of the
Company.
(l) (i) Except as has been disclosed in writing to the Representatives
or their counsel prior to the date hereof, to the knowledge of the Company,
the Initial Facilities (as defined in the Effective Prospectus) are
presently operated in compliance in all material respects with all
Environmental Laws (as defined below).
(ii) Except as has been disclosed in the Effective Prospectus and
the Final Prospectus, there are no Environmental Laws requiring any
material remediation, clean up, repairs, constructions or capital
expenditures (other than normal maintenance) with respect to the Initial
Facilities.
(iii) Except as has been disclosed in writing to the
Representatives or their counsel prior to the date hereof, (A) no notices
of any violation or alleged violation of any Environmental Laws relating to
the Initial Facilities or their uses have been received by the Company, or,
to the best knowledge of the Company, by Corrections Corporation of America
("CCA") or any prior owner, operator or occupant of the Initial Facilities,
and (B) there are no writs, injunctions, decrees, orders or judgments
outstanding, or any actions, suits, claims, proceedings or investigations
pending, or to the knowledge of the Company threatened, relating to the
ownership, use, maintenance or operation of the Initial Facilities.
(iv) Except as has been disclosed in writing to the Representatives
or their counsel prior to the date hereof, all material permits and
licenses required under any Environmental Laws in respect of the operations
of the Initial Facilities have been
6
7
obtained, and the Initial Facilities and CCA are in compliance, in all
material respects, with the terms and conditions of such permits and
licenses.
(v) All reports of environmental surveys, audits, investigations
and assessments in the possession or control of the Company or CCA relating
to the Initial Facilities have been disclosed to the Representatives or
their counsel.
(vi) "Environmental Law" means all applicable statutes,
regulations, rules, ordinances, codes, licenses, permits, orders, demands,
approvals, authorizations and similar items of all governmental agencies,
departments, commissions, boards, bureaus or instrumentalities of the
United States, states and political subdivisions thereof and all applicable
judicial, administrative and regulatory decrees, judgments and orders
relating to the protection of human health or the environment as in effect
as of the date hereof, including but not limited to those pertaining to
reporting, licensing, permitting, investigation and remediation of
emissions, discharges, releases or threatened releases of "Hazardous
Materials," substances, pollutants, contaminants or hazardous or toxic
substances, materials or wastes whether solid, liquid or gaseous in nature,
into the air, surface water, ground water or land, or relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of substances, pollutants, contaminants or hazardous
or toxic substances, materials or wastes, whether solid, liquid or gaseous
in nature, including by way of illustration and not by way of limitation,
(x) the Comprehensive Environmental Response, Compensation and Liability
Act (42 U.S.C. xx.xx. 960111 et seq.), the Resource Conservation and
Recovery Act (42 U.S.C. ss.ss.69011 et seq.), the Clean Air Act (42 U.S.C.
xx.xx. 7401 et seq.), the Federal Water Pollution Control Act (33 U.S.C.
xx.xx. 1251), the Safe Drinking Water Act (42 U.S.C. xx.xx. 300f et seq.),
the Toxic Substances Control Act (15 U.S.C. xx.xx. 2601 et seq.), the
Endangered Species Act (16 U.S.C. xx.xx. 1531 et seq.), the Emergency
Planning and Community Right-to-Know Act of 1986 (42 U.S.C. xx.xx. 11001 et
seq.) and (y) analogous state and local provisions.
(vii) "Hazardous Material" means any chemical substance:
(A) the presence of which requires investigation or
remediation under any federal, state or local statute,
regulation, ordinance, order, action or policy, administrative
request or civil complaint under any of the foregoing or under
common law; or
(B) which is defined as a "hazardous waste" or "hazardous
substance" under any federal, state or local statute, regulation
or ordinance or amendments thereto as in effect as of the date
hereof, or as hereafter amended, including, without limitation,
the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. Section 9601 et seq.)
7
8
and or the Resource Conservation and Recovery Act (42 U.S.C.
Section 6901 et seq.); or
(C) which is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise
hazardous and is regulated by any governmental authority, agency,
department, commission, board, agency or instrumentality of the
United States, or any state or any political subdivision thereof
having or asserting jurisdiction over any of the Initial
Facilities; or
(D) the presence of which on any of the Initial Facilities
causes a nuisance upon such facilities or to adjacent properties
or poses a hazard to the health or safety of persons on or about
any of the Initial Facilities; or
(E) the presence of which on adjacent properties constitutes
a trespass by any owner or operator of the Initial Facilities; or
(F) which contains gasoline, diesel fuel or other petroleum
hydrocarbons, polychlorinated biphenyls (PCBs) or asbestos or
asbestos-containing materials or urea formaldehyde foam
insulation; or
(G) radon gas.
(m) Except as disclosed in the Operative Documents, (i) on the Closing
Date, the Company will have good and marketable title to the Initial
Facilities and good and marketable title to all personal property owned or
proposed to be owned by it which is material to the business of the
Company, in each case free and clear of all liens, encumbrances and defects
except such as are described in the Effective Prospectus and Final
Prospectus or in the title policies delivered to the Company on such date
or such as do not materially affect the value of such property and do not
interfere materially with the use made and proposed to be made of such
property by the Company; (ii) all permits which are necessary for the
operation of the Initial Facilities at the Closing Date (A) shall remain in
full force and effect and (B) permit the Initial Facilities to be operated
in compliance with all laws, rules, codes and regulations; (iii) the
operation of the buildings, fixtures and other improvements located on the
Initial Facilities as presently conducted is not in violation of any
applicable building code, zoning ordinance or other law or regulation; (iv)
neither the Company nor CCA has received notice of any proposed special
assessment or any proposed material change in any property tax, zoning or
land use laws; (v) there do not exist any material violations of any
declaration of covenants, conditions and restrictions with respect to any
of the Initial Facilities, nor, to the best of the Company's knowledge, is
there any existing state of facts or circumstances or condition or event
which could, with the giving of notice or passage of time, or both,
constitute such a violation; and (vi) the
8
9
improvements comprising any portion of the Initial Facilities (the
"Improvements") are free of undue infestation and are free of any and all
material physical, mechanical, structural, design and construction defects;
the Improvements (including, without limitation, all water, electric,
sewer, plumbing, heating, ventilating, gas and air conditioning servicing
the Improvements) are in good condition and proper working order and are
free of material defects, except as disclosed in the Operative Documents or
except as is not material in the aggregate.
(n) At the Closing Date, the Company will be organized in conformity
with the requirements for qualification as a real estate investment trust
under Sections 856 through 860 of the Internal Revenue Code of 1986, as
amended (the "Code"), and its proposed method of operation as described in
the Registration Statement will enable it to meet the requirements for
taxation as a real estate investment trust under the Code for the taxable
period commencing with the year ending December 31, 1997.
(o) __________ Common Shares, including the Shares, have been approved
for listing on the New York Stock Exchange (the "NYSE"), subject to
official notice of issuance.
(p) The Company has obtained title insurance on all of the Initial
Facilities and such title insurance is in full force and effect.
(q) Neither the Company, nor any of its trustees, officers or
controlling persons, has taken or will take, directly or indirectly, any
action resulting in a violation of Regulation M under the Exchange Act, or
designed to cause or result under the Exchange Act or otherwise in, or
which has constituted or which reasonably might be expected to constitute,
the stabilization or manipulation of the price of any securities of the
Company or facilitation of the sale or resale of the Shares.
(r) None of the entities that prepared environmental inspection
reports with respect to the Initial Facilities was employed for such
purpose on a contingent basis or has any substantial interest in the
Company or, to the knowledge of the Company, CCA, and none of them nor any
of their directors, officers or employees is connected with the Company or,
to the knowledge of the Company, CCA as a promoter, selling agent, voting
trustee, trustee, officer or employee.
(s) There are no contracts or other documents required by the
Securities Act or by the Rules and Regulations to be described in the
Registration Statement, the Effective Prospectus or the Final Prospectus or
to be filed as exhibits to the Registration Statement which have not been
described or filed as required. All such contracts to which the Company is
a party have been duly authorized, executed and delivered by the Company,
constitute valid and binding agreements of the Company and are enforceable
against the Company in accordance with the terms thereof. The Company has
performed all material
9
10
obligations required to be performed by it, and is neither in default in
any material respect nor has it received notice of any default or dispute
under, any such contract or other material instrument to which it is a
party or by which its property is bound or affected. To the best knowledge
of the Company, no other party under any such contract or other material
instrument to which it is a party is in default in any material respect
thereunder.
(t) The Company's system of internal accounting controls is sufficient
to meet the broad objectives of internal accounting controls insofar as
those objectives pertain to the prevention or detection of errors or
irregularities in amounts that would be material in relation to the
Company's financial statements.
(u) The Company has filed all foreign, federal, state and local income
and franchise tax returns required to be filed through the date hereof and
has paid all taxes shown as due therefrom to the extent such taxes have
become due and are not being contested in good faith; and there is no tax
deficiency that has been, nor does the Company have knowledge of any tax
deficiency which is likely to be, asserted against the Company, which if
determined adversely could materially and adversely affect the earnings,
assets, affairs, business prospects or condition (financial or other) of
the Company.
(v) The Company operates its business in conformity in all material
respects with all applicable statutes, common laws, ordinances, decrees,
orders, rules and regulations of governmental bodies. The Company has all
licenses, approvals or consents to operate its businesses in all locations
in which such businesses are currently being operated, and the Company is
not aware of any existing or imminent matter which may materially adversely
impact its operations or business prospects other than as specifically
disclosed in the Effective Prospectus and the Final Prospectus.
(w) The Company has not failed to file with the applicable regulatory
authorities any material statements, reports, information or forms required
by all applicable laws, regulations or orders; all such filings or
submissions were in material compliance with applicable laws when filed,
and no material deficiencies have been asserted by any regulatory
commission, agency or authority with respect to such filings or
submissions. The Company has not failed to maintain in full force and
effect any material licenses, registrations or permits necessary or proper
for the conduct of its business, or received any notification that any
revocation or limitation thereof is threatened or pending, and there is not
to the knowledge of the Company pending any change under any law,
regulation, license or permit which would materially adversely affect the
business, operations, property or business prospects of the Company. The
Company has not received any notice of violation of or been threatened with
a charge of violating and is not under investigation with respect to a
possible violation of any provision of any law, regulation or order.
(x) No labor dispute exists or is imminent with any of the employees
of the Company or otherwise which could materially adversely affect the
Company. The
10
11
Company is not aware of any existing or imminent labor disturbance by
employees of the Company or CCA which could be expected to materially
adversely affect the condition (financial or otherwise), results of
operations, properties, affairs, management, business affairs or business
prospects of the Company. The Company is in compliance with all federal,
state and local employment and labor laws, including, but not limited to,
laws relating to non-discrimination in hiring, promotion and pay of
employees.
(y) The Company owns or is in the process of obtaining or can obtain
on reasonable terms all material licenses, copyrights, trademarks, service
marks and trade names presently employed by it in connection with the
businesses proposed to be operated by it, and the Company has not received
any notice of infringement of or conflict with asserted rights of others
with respect to any of the foregoing which, alone or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, could result in
any material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company.
(z) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which it is engaged and in which
it proposes to engage; and the Company has no reason to believe that it
will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business.
(aa) Neither the Company nor, to the knowledge of the Company, any
trustee, officer, agent, employee or other person acting on behalf of the
Company has (i) used, or authorized the use of, any corporate or other
funds for unlawful payments, contributions, gifts or entertainment, (ii)
made unlawful expenditures relating to political activity to government
officials or others, or (iii) established or maintained any unlawful or
unrecorded funds in violation of any federal, state, local or foreign law
or regulation, including Section 30A of the Exchange Act. Neither the
Company nor, to the knowledge of the Company, any trustee, officer, agent,
employee or other person acting on behalf of the Company has accepted or
received any unlawful contributions, payments, gifts or expenditures.
(bb) The Company is not, will not become as a result of the
transactions contemplated hereby, and does not intend to conduct its
business in a manner that would cause it to become, an "investment company"
or a company "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein
set forth, the Company
11
12
agrees to sell to the several Underwriters the Firm Shares, and each of the
Underwriters, severally and not jointly, agrees to purchase at a purchase
price of $______ per share, the number of Firm Shares set forth opposite
such Underwriter's name in Schedule I hereto. The Underwriters agree to
offer the Firm Shares to the public on the terms set forth in the Final
Prospectus under the caption "Underwriting."
(b) The Company hereby grants to the Underwriters an option to
purchase, solely for the purpose of covering over-allotments in the sale of
Firm Shares, all or any portion of the Option Shares at the purchase price
per share set forth above. The option granted hereby may be exercised as to
all or any part of the Option Shares at any time (but only once) within 30
days after the date of the Final Prospectus. The Underwriters shall not be
under any obligation to purchase any Option Shares prior to the exercise of
such option. The option granted hereby may be exercised by the Underwriters
by X.X. Xxxxxxxx & Co. ("Bradford") giving written notice to the Company
setting forth the number of Option Shares to be purchased and the date and
time for delivery of and payment for such Option Shares and stating that
the Option Shares referred to therein are to be used for the purpose of
covering over-allotments in connection with the distribution and sale of
the Firm Shares. If such notice is given prior to the First Closing Date
(as defined herein), the date set forth therein for such delivery and
payment shall not be earlier than two full business days thereafter or the
First Closing Date, whichever occurs later. If such notice is given on or
after the First Closing Date, the date set forth therein for such delivery
and payment shall not be earlier than three full business days thereafter.
In either event, the date so set forth shall not be more than four full
business days after the date of such notice. The date and time set forth in
such notice is herein called the "Option Closing Date." Upon exercise of
the option, the Company shall become obligated to sell to the Underwriters,
and, subject to the terms and conditions herein set forth, the Underwriters
shall become obligated to purchase, for the account of each Underwriter,
from the Company, severally and not jointly, the number of Option Shares
specified in such notice. Option Shares shall be purchased for the accounts
of the Underwriters in proportion to the number of Firm Shares set forth
opposite such Underwriter's name in Schedule I hereto, except that the
respective purchase obligations of each Underwriter shall be adjusted so
that no Underwriter shall be obligated to purchase fractional Option
Shares.
(c) The Company shall not be obligated to deliver any of the Shares to
be delivered on the First Closing Date or on the Option Closing Date, as
the case may be, except upon payment for all the Shares to be purchased on
such Closing Date, as provided herein.
(d) Certificates in definitive form for the Firm Shares which each
Underwriter has agreed to purchase hereunder shall be delivered by or on
behalf of the Company to the Representatives for the account of each
Underwriter against payment by each such Underwriter or on its behalf of
the purchase price therefor by wire transfer of federal or other
immediately available funds to the order of the Company at an account
previously
12
13
designated by the Company, at the offices of Bradford, 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000, or at such other place as may be agreed upon by
Bradford and the Company, at 10:00 A.M., Nashville time, on the third full
business day after this Agreement becomes effective, or, at the election of
the Representatives, on the fourth full business day after this Agreement
becomes effective, if it becomes effective after 4:30 P.M. Eastern time, or
at such other time not later than the seventh full business day thereafter
as the Representatives and the Company may determine, such time of delivery
against payment being herein referred to as the "First Closing Date." The
First Closing Date and the Option Closing Date are herein individually
referred to as the "Closing Date" and collectively referred to as the
"Closing Dates." Certificates in definitive form for the Option Shares
which each Underwriter shall have agreed to purchase hereunder shall be
similarly delivered by or on behalf of the Company on the Option Closing
Date. The certificates in definitive form for the Shares to be delivered
will be in good delivery form and in such denominations and registered in
such names as Xxxxxxxx xxx request not less than 48 hours prior to the
First Closing Date or the Option Closing Date, as the case may be. Such
certificates will be made available for checking and packaging at a
location in New York, New York as may be designated by Bradford, on a
business day at least 24 hours prior to the First Closing Date or the
Option Closing Date, as the case may be. It is understood that Xxxxxxxx xxx
(but shall not be obligated to) make payment on behalf of any Underwriter
or Underwriters for the Shares to be purchased by such Underwriter or
Underwriters. No such payment shall relieve such Underwriter or
Underwriters from any of its or their obligations hereunder.
3. Offering by the Underwriters. After the Registration Statement becomes
effective, the several Underwriters propose to offer for sale to the public the
Firm Shares and any Option Shares which may be sold at the price and upon the
terms set forth in the Final Prospectus.
4. Covenants of the Company. The Company covenants and agrees with each of
the Underwriters that:
(a) The Company shall comply with the provisions of and make all
requisite filings with the Commission pursuant to Rules 424 and 430A of the
Rules and Regulations and shall notify the Representatives promptly (in
writing, if requested) of all such filings. The Company shall notify the
Representatives promptly of any request by the Commission for any amendment
of or supplement to the Registration Statement, the Effective Prospectus or
the Final Prospectus or for additional information; the Company shall
prepare and file with the Commission, promptly upon the Representatives'
request, any amendments of or supplements to the Registration Statement,
the Effective Prospectus or the Final Prospectus which, in the
Representatives' opinion, may be necessary or advisable in connection with
the distribution of the Shares; and the Company shall not file any
amendment of or supplement to the Registration Statement, the Effective
Prospectus or the Final Prospectus which is not approved by the
Representatives after reasonable notice thereof. The Company shall advise
the Representatives promptly of the issuance by the
13
14
Commission or any jurisdiction or other regulatory body of any stop order
or other order suspending the effectiveness of the Registration Statement,
suspending or preventing the use of any Preliminary Prospectus, the
Effective Prospectus or the Final Prospectus or suspending the
qualification of the Shares for offering or sale in any jurisdiction, or of
the institution of any proceedings for any such purpose; and the Company
shall use its best efforts to prevent the issuance of any stop order or
other such order and, should a stop order or other such order be issued, to
obtain as soon as possible the lifting thereof.
(b) The Company will take or cause to be taken all necessary action
and furnish to whomever the Representatives direct such information as may
be reasonably required in qualifying the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Underwriters
may designate and will continue such qualifications in effect for as long
as may be reasonably necessary to complete the distribution of the Shares.
(c) Within the time during which a Final Prospectus relating to the
Shares is required to be delivered under the Securities Act, the Company
shall comply with all requirements imposed upon it by the Securities Act,
as now and hereafter amended, and by the Rules and Regulations, as from
time to time in force, so far as is necessary to permit the continuance of
sales of or dealings in the Shares as contemplated by the provisions hereof
and the Final Prospectus. If during such period any event occurs as a
result of which the Final Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances then existing, not misleading, or if during such period it is
necessary to amend the Registration Statement or supplement the Final
Prospectus to comply with the Securities Act, the Company shall promptly
notify the Representatives and shall amend the Registration Statement or
supplement the Final Prospectus (at the expense of the Company) so as to
correct such statement or omission or effect such compliance.
(d) The Company will furnish without charge to the Representatives and
make available to the Underwriters copies of the Registration Statement
(four of which shall be signed and shall be accompanied by all exhibits,
each Preliminary Prospectus, the Effective Prospectus and the Final
Prospectus, and all amendments and supplements thereto, including any
prospectus or supplement prepared after the effective date of the
Registration Statement, in each case as soon as available and in such
quantities as the Underwriters may reasonably request.
(e) The Company will (A) deliver to the Representatives at such office
or offices as the Representatives may designate as many copies of the
Preliminary Prospectus and Final Prospectus as the Representatives may
reasonably request, (B) for a period of not more than nine months after the
Registration Statement becomes effective, send to the Underwriters as many
additional copies of the Final Prospectus and any supplement thereto
14
15
as the Representatives may reasonably request, and (C) following nine
months after the Registration Statement becomes effective, send to the
Underwriters at their expense as many additional copies of the Final
Prospectus and any supplement thereto as the Representatives may reasonably
request.
(f) The Company shall make generally available to its security
holders, in the manner contemplated by Rule 158(b) under the Securities Act
as promptly as practicable and in any event no later than 45 days after the
end of its fiscal quarter in which the first anniversary of the effective
date of the Registration Statement occurs, an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act covering a period of
at least 12 consecutive months beginning after the effective date of the
Registration Statement.
(g) The Company will apply the net proceeds from the sale of the
Shares to be sold by it as set forth under the caption "Use of Proceeds" in
the Final Prospectus and will timely file reports on Form SR with the
Commission in accordance with Rule 463 of the Securities Act or any
successor provision.
(h) During a period of five years from the effective date of the
Registration Statement or such longer period as the Representatives may
reasonably request, the Company will furnish to the Representatives copies
of all reports and other communications (financial or other) furnished by
the Company to its shareholders and, as soon as available, copies of any
reports or financial statements furnished or filed by the Company to or
with the Commission or any national securities exchange on which any class
of securities of the Company may be listed.
(i) The Company will, from time to time, after the effective date of
the Registration Statement file with the Commission such reports as are
required by the Securities Act, the Exchange Act and the Rules and
Regulations, and shall also file with foreign, state and other governmental
securities commissions in jurisdictions where the Shares have been sold by
the Underwriters (as the Representatives shall have advised the Company in
writing) such reports as are required to be filed by the securities acts
and the regulations of those states.
(j) Except pursuant to this Agreement or with the Representatives'
written consent, for a period of 180 days from the effective date of the
Registration Statement, the Company will not, and the Company has provided
agreements executed by each of its officers and trustees providing that for
a period of 24 months from the effective date of the Registration
Statement, such person will not, offer for sale, sell (other than the
issuance by the Company of Common Shares pursuant to the exercise of
options granted pursuant to existing employee benefit plans and
agreements), grant any options (other than pursuant to existing employee
benefit plans and agreements), rights or warrants with respect to any
Common Shares, securities convertible into Common Shares or any other
capital shares
15
16
of the Company, or otherwise dispose of, directly or indirectly, any Common
Shares or such other securities or capital shares.
(k) Neither the Company nor any of its officers, trustees or
affiliates will take, directly or indirectly, any action resulting in a
violation of Regulation M under the Exchange Act, or designed to cause or
result in, or which might constitute or be expected to constitute,
stabilization or manipulation of the price of the Common Shares.
(l) The Company will either conduct its business and operations as
described in the Final Prospectus or, if the Company makes any material
change to its business or operations as so conducted, promptly disclose
such change generally to the Company's security holders.
(m) If at any time during the 25 day period after the Registration
Statement is declared effective, any rumor, publication or event relating
to or affecting the Company shall occur as a result of which, in the
Representatives' opinion, the market price for the Shares has been or is
likely to be materially affected (regardless of whether such rumor,
publication or event necessitates a supplement to or amendment of the Final
Prospectus), the Company will, after written notice from the
Representatives advising it as to the effect set forth above, prepare,
consult with the Representatives concerning the substance of and, subject
to the Rules and Regulations, disseminate a press release or other public
statement, reasonably satisfactory to the Representatives, responding to or
commenting on such rumor, publication or event.
(n) The Company will use its best efforts to effect the listing of the
Common Shares, subject to notice of issuance, on the NYSE on or before the
effective date of the Registration Statement.
(o) The Company will use its best efforts to meet the requirements to
qualify, effective for the taxable period commencing with the year ending
December 31, 1997 and in each year thereafter, as a real estate investment
trust under the Code.
(p) Subject to the terms thereof, the Company will do and perform its
obligations under each of the Operative Documents to which it is a party to
the extent required to consummate the transactions set forth therein and
all things required to be done or performed prior to the Closing Date
pursuant to this Agreement.
5. Expenses. The Company agrees with the Underwriters that (a) whether or
not the transactions contemplated by this Agreement are consummated or this
Agreement becomes effective or is terminated, the Company will pay all fees and
expenses incident to the performance of the obligations of the Company
hereunder, including, but not limited to, (i) the Commission's registration fee,
(ii) the expenses of printing (or reproduction) and distributing the
Registration Statement (including the financial statements therein and all
amendments and exhibits thereto),
16
17
each Preliminary Prospectus, the Effective Prospectus, the Final Prospectus, any
amendments or supplements thereto, any Marketing Materials (as defined herein)
and this Agreement and other underwriting documents, including Underwriter's
Questionnaires, Underwriter's Powers of Attorney, Blue Sky Memoranda, Agreements
Among Underwriters and Selected Dealer Agreements, (iii) fees and expenses of
accountants and counsel for the Company, (iv) expenses of registration or
qualification of the Shares under state Blue Sky and securities laws, including
the fees and disbursements of counsel to the Underwriters in connection
therewith, (v) filing fees paid or incurred by the Underwriters in connection
with filings with the NASD, (vi) expenses of listing the outstanding Common
Shares on the NYSE, (vii) all travel, lodging and reasonable living expenses
incurred by the Company in connection with marketing, dealer and other meetings
attended by the Company and the Underwriters in marketing the Shares, (viii) the
costs and charges of the Company's transfer agent and registrar and the cost of
preparing the certificates for the Shares, and (ix) all other costs and expenses
incident to the performance of its obligations hereunder not otherwise provided
for in this Section; and (b) all out-of-pocket expenses, including counsel fees,
disbursements and expenses, incurred by the Underwriters in connection with
investigating, preparing to market and marketing the Shares and proposing to
purchase and purchasing the Shares under this Agreement, will be borne and paid
by the Company if the sale of the Shares provided for herein is not consummated
(i) by reason of the termination of this Agreement by the Company pursuant to
Section 12(a)(i) or (ii) by reason of the termination of this Agreement by the
Representatives pursuant to Section 12(b)(ii), (iii), (iv) or (v) of this
Agreement.
6. Conditions of the Underwriters' Obligations. The respective obligations
of the Underwriters to purchase and pay for the Firm Shares shall be subject to
the accuracy of the representations and warranties of the Company herein as of
the date hereof and as of the Closing Date as if made on and as of the Closing
Date, to the accuracy of the statements of the Company's officers made pursuant
to the provisions hereof, to the performance by the Company of all of its
covenants and agreements hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective not later than 5:30 P.M., Washington,
D.C. time, on the day following the date of this Agreement, or such later
time and date as shall have been consented to by the Representatives and
all filings required by Rule 424 and Rule 430A of the Rules and Regulations
shall have been made; no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened or, to the knowledge of
the Company or the Underwriters, shall be contemplated by the Commission;
any request of the Commission for additional information (to be included in
the Registration Statement or the Final Prospectus or otherwise) shall have
been complied with to the Representatives' satisfaction; and the NASD, upon
review of the terms of the public offering of the Shares, shall not have
objected to such offering, such terms or the Underwriters' participation in
the same.
17
18
(b) No Representative shall have advised the Company that the
Registration Statement, Preliminary Prospectus, the Effective Prospectus or
Final Prospectus, or any amendment or any supplement thereto, contains an
untrue statement of fact which, in the Representatives' reasonable
judgment, is material, or omits to state a fact which, in the
Representatives' reasonable judgment, is material and is required to be
stated therein or necessary to make the statements therein not misleading.
(c) The Representatives shall have received opinions, dated the
Closing Date, from Xxxxxx & Xxxxxxxxxxx, P.A., and Xxxxxxxx & Xxx, PLC,
counsel for the Company, to the effect that:
(i) The Company has been duly formed and is validly existing as a
real estate investment trust under the laws of the State of Maryland,
with corporate power and authority to own its properties and conduct
its business as now conducted, and, based solely on certificates from
public officials, the Company is duly qualified to transact business
as a foreign corporation and is in good standing under the laws of the
States of Arizona, Kansas and Texas. The Company holds all licenses,
certificates, permits, franchises and authorizations from governmental
authorities necessary for the conduct of its business.
(ii) The Company does not have any interest, directly or
indirectly, in any corporation, joint venture, partnership or other
entity.
(iii) As of the dates specified therein, the Company had
authorized and issued capital stock as set forth under the caption
"Capitalization" in the Final Prospectus. All of the outstanding
Common Shares have been duly authorized and are validly issued, fully
paid and nonassessable, and the Shares to be sold by the Company have
been duly authorized, and upon issuance thereof and payment therefor
as provided herein, will be validly issued, fully paid and
nonassessable; none of the issued shares have been issued in violation
of or subject to any preemptive rights provided for by law, agreement
or the Company's declaration of trust or bylaws. To the knowledge of
such counsel, the Company does not have outstanding any options to
purchase, or any rights or warrants to subscribe for, or any
securities or obligations convertible into, or any contracts or
commitments to issue or sell any capital shares, and there are no
preemptive rights or other rights to subscribe for or purchase any
capital shares of the Company, or any restriction upon the transfer
of, the Shares pursuant to the Company's declaration of trust or
bylaws or any agreement or other instrument to which the Company is a
party or by which it may be bound, except as described in the
Effective Prospectus and Final Prospectus. Neither the filing of the
Registration Statement nor the offer or sale of the Shares as
contemplated by this Agreement gives rise to any rights, other than
those which have been waived or satisfied, for or relating to the
registration of any Common Shares or any other securities of the
Company. The Underwriters
18
19
will receive valid title to the Shares to be issued and delivered by
the Company pursuant to this Agreement, free and clear of all liens,
encumbrances, claims, security interests, restrictions, shareholders
agreements and voting trusts whatsoever. The capital shares of the
Company and the Shares conform in all material respects to the
description thereof contained in the Final Prospectus. All offers and
sales of the Company's interests and securities prior to the date
hereof were at all relevant times duly registered or exempt from the
registration requirements of the Securities Act and were duly
registered or the subject of an exemption from the registration
requirements of applicable state securities or Blue Sky laws.
(iv) The form of shares certificate to be used to evidence the
Common Shares will be in due and proper form and will comply with all
applicable legal requirements under the Maryland General Corporation
Law.
(v) No consent, approval, authorization or order of any court or
federal, Arizona, Kansas, Maryland, Tennessee or Texas governmental
agency or body or third party is required for the performance of this
Agreement by the Company or the consummation by the Company of the
transactions contemplated hereby, except such as have been obtained
under the Securities Act and such as may be required by the NASD and
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the several Underwriters,
as to which such counsel need not express an opinion. The performance
of this Agreement by the Company and the consummation by the Company
of the transactions contemplated hereby will not conflict with or
result in a breach or violation by the Company of any of the terms or
provisions of, or constitute a default by the Company under, any
material indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument known to such counsel to which the
Company is a party or to which the Company or its properties is
subject, the declaration of trust or bylaws of the Company, any
statute, or any judgment, decree, order, rule or regulation of any
court or governmental agency or body known to such counsel to be
applicable to the Company or its properties.
(vi) The Company has full legal right, power and authority to
enter into this Agreement and to issue, sell and deliver the Shares to
be sold by it to the Underwriters as provided herein, and this
Agreement has been duly authorized, executed and delivered by the
Company and constitutes the valid and legally binding obligation of
the Company enforceable against the Company in accordance with its
terms, subject to the effect of bankruptcy, insolvency,
reorganization, arrangement, moratorium, fraudulent conveyance,
fraudulent transfer and other similar laws relating to or affecting
the rights of creditors.
19
20
(vii) No consent, approval, authorization or order of any court
or governmental agency or body or third party is required for the
performance of the Operative Documents by the Company or the
consummation by the Company of the transactions contemplated thereby,
except such as have been obtained under the Securities Act and such as
may be required and under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
several Underwriters. The performance of the Operative Documents by
the Company and the consummation by the Company of the transactions
contemplated thereby will not conflict with or result in a breach or
violation by the Company of any of the terms or provisions of, or
constitute a default by the Company under, any material indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument known to such counsel to which the Company is a party or to
which the Company or its properties is subject, the declaration of
trust or bylaws of the Company, any statute, or any judgment, decree,
order, rule or regulation of any court or governmental agency or body
known to such counsel to be applicable to the Company or its
properties.
(viii) The Company has full legal right, power and authority to
enter into each of the Operative Documents to which it is a party, and
each of the Operative Documents to which it is a party has been duly
authorized, executed and delivered by the Company and constitutes the
valid and legally binding obligation of the Company enforceable
against the Company in accordance with its terms, subject to the
effect of bankruptcy, insolvency, reorganization, arrangement,
moratorium, fraudulent conveyance, fraudulent transfer and other
similar laws relating to or affecting the rights of creditors.
(ix) Except as described in the Final Prospectus, there is not
pending or, to the knowledge of such counsel, threatened any action,
suit, proceeding, inquiry or investigation, to which the Company is a
party, or to which the property of the Company is subject, before or
brought by any court or governmental agency or body, which, if
determined adversely to the Company, could result in any material
adverse change in the business, financial position, net worth or
results of operations, or could materially adversely affect the
properties or assets, of the Company.
(x) To the knowledge of such counsel, no default exists, and no
event has occurred which with notice or after the lapse of time to
cure or both, would constitute a default, in the due performance and
observance of any term, covenant or condition of any material
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument known to such counsel to which the Company is
a party or to which its properties are subject, or of the declaration
of trust or bylaws of the Company.
20
21
(xi) To the knowledge of such counsel, the Company is not in
violation of any law, ordinance, administrative or governmental rule
or regulation applicable to the Company or any decree of any court or
governmental agency or body having jurisdiction over the Company which
would have a material adverse effect on the Company.
(xii) To the knowledge of such counsel, there are no contracts or
documents of the Company which are required to be filed as exhibits to
the Registration Statement by the Securities Act or by the Rules and
Regulations which have not been so filed.
(xiii) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
(xiv) The Registration Statement and all post-effective
amendments thereto have become effective under the Securities Act,
and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the knowledge
of such counsel, are threatened, pending or contemplated by the
Commission. All filings required by Rule 424 and Rule 430A of the
Rules and Regulations have been made; the Registration Statement, the
Effective Prospectus and Final Prospectus, and any amendments or
supplements thereto, as of their respective effective or issue dates,
complied as to form in all material respects with the applicable
requirements of the Securities Act and the Rules and Regulations; the
descriptions in the Registration Statement, the Effective Prospectus
and the Final Prospectus of statutes, regulations, legal and
governmental proceedings, and contracts and other documents are
accurate in all material respects and present fairly in all material
respects the information required to be stated; and such counsel does
not know of any pending or threatened legal or governmental
proceedings, statutes or regulations required to be described in the
Final Prospectus which are not described as required nor of any
contracts or documents of a character required to be described in the
Registration Statement or the Final Prospectus or to be filed as
exhibits to the Registration Statement which are not described and
filed as required.
In addition to the matters set forth above, such opinion shall also include
a statement to the effect that nothing has come to the attention of such counsel
which leads them to believe that the Registration Statement, the Effective
Prospectus and the Final Prospectus or any amendment or supplement thereto
contains an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances under which they were made (except
that such counsel need express no view as to financial statements, schedules and
other financial or statistical information included therein).
21
22
(d) The Representatives shall have received an opinion, dated the
Closing Date, of Xxxxxx & Xxxxxxxxxxx, P.A., tax counsel to the Company,
reasonably acceptable to the Representatives that, upon completion of the
Formation Transactions, the Company will be in compliance with the
requirements for qualification as a real estate investment trust under the
Code, and the proposed method of operation of the Company as described in
the Registration Statement and the Final Prospectus and a certificate of a
responsible officer of the Company will enable the Company to meet the
requirements for taxation as a real estate investment trust under the Code
beginning with the year ended December 31, 1997.
(e) The Representatives shall be entitled to rely on the opinions
rendered by Xxxxxxxx & Xxx, PLC, counsel to the Company, pursuant to the
Operative Documents.
The opinions to be rendered pursuant to paragraphs (c), (d) and (e) may be
limited to federal law, and as to foreign and state law matters, to the laws of
the states or jurisdictions in which such counsel is admitted to practice. As to
matters of Maryland law, such counsel may rely upon the opinion of Miles &
Stockbridge, a Professional Corporation, and as to matters of fact, on
certificates of officers of the Company and public officials.
(f) The Underwriters shall have received an opinion or opinions, dated
the Closing Date, of Bass, Xxxxx & Xxxx PLC, counsel for the Underwriters,
with respect to the Registration Statement and the Final Prospectus, and
such other related matters as the Underwriters may require, and the Company
shall have furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
(g) The Representatives shall have received from Xxxxxx Xxxxxxxx LLP,
a letter dated the date hereof and, at the Closing Date, a second letter
dated the Closing Date, in form and substance satisfactory to the
Representatives, stating that they are independent public accountants with
respect to the Company within the meaning of the Securities Act and the
applicable Rules and Regulations, and containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information of the Company contained in the Registration Statement and the
Prospectus.
(h) The Representatives shall have received from Xxxxxx Xxxxxxxx LLP,
a letter dated the date hereof and, at the Closing Date, a second letter
dated the Closing Date, in form and substance satisfactory to the
Representatives, stating that they are independent public accountants with
respect to CCA within the meaning of the Securities Act and the applicable
Rules and Regulations, and to the effect that:
(i) In their opinion, the consolidated financial statements and
schedules of CCA examined by them and included in the Registration
Statement comply as to form in all material respects with the
applicable accounting
22
23
requirements of the Securities Act and the published Rules and
Regulations and are presented in accordance with generally accepted
accounting principles; and they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the interim consolidated financial statements, selected
financial data and/or condensed financial statements derived from
audited financial statements of CCA;
(ii) The unaudited selected consolidated financial information of
CCA included in the Preliminary Prospectus and the Final Prospectus
under the caption "CORRECTIONS CORPORATION OF AMERICA -- CERTAIN
SELECTED FINANCIAL INFORMATION" for the five years ended December 31,
1996, agrees with the corresponding amounts in the audited
consolidated financial statements included in the Final Prospectus or
previously reported on by them;
(iii) On the basis of a reading of the latest available interim
financial statements (unaudited) of CCA and its subsidiaries, a
reading of the minute books of CCA and its subsidiaries, inquiries of
officials of CCA and its subsidiaries responsible for financial and
accounting matters and other specified procedures, all of which have
been agreed to by the Representatives, nothing came to their attention
that caused them to believe that:
(A) The amounts included in the Preliminary Prospectus and
the Final Prospectus under the caption "CORRECTIONS CORPORATION
OF AMERICA -- CERTAIN SELECTED FINANCIAL INFORMATION" for the
five years ended December 31, 1996 do not agree with the
corresponding amounts in the audited consolidated financial
statements included in the Final Prospectus or previously
reported on by them;
(B) The unaudited pro forma financial information included
in the Registration Statement does not comply as to form in all
material respects with the applicable accounting requirements of
the Securities Act and the Rules and Regulations or that the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of the pro forma
information.
(C) The unaudited consolidated financial statements of CCA
included in the Registration Statement, including the amounts
included under the caption "CORRECTIONS CORPORATION OF AMERICA --
CERTAIN SELECTED FINANCIAL INFORMATION" do not comply as to form
in all material respects with the accounting requirements of the
federal securities laws and the related published rules and
regulations thereunder or are not in conformity with generally
accepted accounting
23
24
principles applied on a basis substantially consistent with the
basis for the audited financial statements contained in the
Registration Statement;
(D) Any other unaudited consolidated financial statement
data included in the Final Prospectus do not agree with the
corresponding items in the audited consolidated financial
statements from which data was derived and any such unaudited
data were not determined on a basis substantially consistent with
the basis for the corresponding amounts in the audited financial
statements contained in the Final Prospectus;
(E) at a specified date not more than five days prior to the
date of delivery of such respective letter, there was any change
in the capital stock, decline in total assets or stockholders'
equity or increase in long-term debt of CCA and its subsidiaries,
in each case as compared with amounts shown in the latest balance
sheets included in the Final Prospectus, except in each case for
changes, decreases or increases which are described in such
letters; and
(F) for the period from the closing date of the latest
statements of earnings included in the Effective Prospectus and
the Final Prospectus to a specified date not more than five days
prior to the date of delivery of such respective letter, there
were any decreases in revenues, net income and net income per
share of CCA, in each case as compared with the corresponding
period of the preceding year, except in each case for decreases
which are described in such letter.
(iv) They have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages
and financial information specified by you which are derived from the
general accounting records of CCA and its subsidiaries, which appear
in the Effective Prospectus and the Final Prospectus and have compared
and agreed such amounts, percentages and financial information with
the accounting records of CCA and its subsidiaries or to analyses and
schedules prepared by CCA and its subsidiaries from its detailed
accounting records.
In the event that the letters to be delivered referred to above set forth
any such changes, decreases or increases, it shall be a further condition
to the obligations of the Underwriters that the Underwriters shall have
determined, after discussions with officers of CCA responsible for
financial and accounting matters and with Xxxxxx Xxxxxxxx LLP, that such
changes, decreases or increases as are set forth in such letters do not
reflect a material adverse change in the total assets, stockholders' equity
or long-term debt of CCA as compared with the amounts shown in the latest
balance sheets of CCA included in the Final
24
25
Prospectus, or a material adverse change in revenues or net income of CCA,
in each case as compared with the corresponding period of the prior year.
(i) There shall have been furnished to the Representatives a
certificate, dated the Closing Date and addressed to you, signed by the
Chief Executive Officer and Chief Financial Officer of the Company, to the
effect that:
(i) the representations and warranties of the Company in Section
1 of this Agreement are true and correct, as if made at and as of the
Closing Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that
purpose have been initiated or are pending, or to their knowledge,
threatened under the Securities Act;
(iii) all filings required by Rule 424 and Rule 430A of the Rules
and Regulations have been made;
(iv) they have carefully examined the Registration Statement, the
Effective Prospectus and the Final Prospectus, and any amendments or
supplements thereto, and such documents do not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they
were made; and
(v) since the effective date of the Registration Statement, there
has occurred no event required to be set forth in an amendment or
supplement to the Registration Statement, the Effective Prospectus or
the Final Prospectus which has not been so set forth.
(j) The Formation Transactions shall have been effected in accordance
with all the terms and conditions set forth in the Operative Documents,
subject only to the transfer of funds related thereto, or shall occur
simultaneously with the purchase and sale of the Firm Shares hereunder.
(k) CCA and the Company shall have entered into an agreement with the
Underwriters in form and substance satisfactory to the Representatives and
the representations and warranties of CCA set forth therein shall be true
and correct, as if made at and as of the Closing Date, and CCA shall have
complied with all the agreements on its part to be performed pursuant to
such agreement at or prior to the Closing Date.
25
26
(l) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, and except as
stated therein, the Company has not sustained any material loss or
interference with its business or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by insurance, or from
any labor dispute or any court or governmental action, order or decree, or
become a party to or the subject of any litigation which is material to the
Company, nor shall there have been any material adverse change, or any
development involving a prospective material adverse change, in the
business, properties, key personnel, capitalization, prospects, net worth,
results of operations or condition (financial or other) of the Company,
which loss, interference, litigation or change, in the Representatives'
reasonable judgment shall render it unadvisable to commence or continue the
offering of the Shares at the offering price to the public set forth on the
cover page of the Prospectus or to proceed with the delivery of the Shares.
(m) The Shares shall be approved for listing on the NYSE, subject only
to official notice of issuance and evidence of satisfactory distribution.
(n) The Representatives shall have received the Lockup Agreements.
All such opinions, certificates, letters and documents delivered pursuant
to this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory to the Representatives and their counsel. The Company
shall furnish to the Representatives such conformed copies of such opinions,
certificates, letters and documents in such quantities as the Representatives
shall reasonably request.
The respective obligations of the Underwriters to purchase and pay for the
Option Shares shall be subject, in their discretion, to the conditions of this
Section 6, except that all references to the "Closing Date" shall be deemed to
refer to the Option Closing Date, if it shall be a date other than the Closing
Date.
7. Condition of the Company's Obligations. The obligations hereunder of the
Company are subject to the condition set forth in Section 6(a) hereof.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, and each person, if any, who controls any Underwriter within
the meaning of the Securities Act, against any losses, claims, damages or
liabilities to which such Underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based in whole or in part upon: (i) any inaccuracy in the
representations and warranties of the Company contained herein; (ii) any
failure of the Company to perform its obligations hereunder or under law;
(iii) any untrue statement or alleged untrue statement
26
27
of any material fact contained in (A) the Registration Statement, any
Preliminary Prospectus, the Effective Prospectus or Final Prospectus, or
any amendment or supplement thereto, (B) any audio or visual materials
supplied by the Company expressly for use in connection with the marketing
of the Shares, including without limitation, slides, videos, films and tape
recordings (the "Marketing Materials") or (C) in any Blue Sky application
or other written information prepared or executed by the Company filed in
any state or other jurisdiction in order to qualify any or all of the
Shares under the securities laws thereof (a "Blue Sky Application"); or
(iv) the omission or alleged omission to state in the Registration
Statement, any Preliminary Prospectus, the Effective Prospectus or Final
Prospectus or any amendment or supplement thereto, any Marketing Materials
or Blue Sky Application a material fact required to be stated therein or
necessary to make the statements therein not misleading; and will reimburse
each Underwriter and each such controlling person for any legal or other
expenses reasonably incurred by such Underwriter or such controlling person
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage, or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made
in the Registration Statement, the Preliminary Prospectus, the Effective
Prospectus or Final Prospectus, or any amendment or supplement thereto, or
any Marketing Materials or Blue Sky Application in reliance upon and in
conformity with written information relating to any Underwriter furnished
to the Company by any Underwriter specifically for use therein; and,
provided, further, that the foregoing indemnity with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such loss, claim, damage or liability
purchased Shares if a copy of the Final Prospectus (or any Preliminary
Prospectus as supplemented) was not sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the
sale of such Shares to such person in any case where such delivery is
required by the Securities Act and the Final Prospectus would have cured
the defect giving rise to such loss, claim, damage or liability.
(b) Each Underwriter will indemnify and hold harmless the Company,
each of its trustees, each of the Company's officers who signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of the Securities Act against any losses, claims,
damages or liabilities to which the Company or any such trustee, officer or
controlling person may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Effective
Prospectus or Final Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or the alleged omission to
state in the Registration Statement, any Preliminary Prospectus, the
Effective Prospectus or Final Prospectus, or any amendment or supplement
thereto, a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but
27
28
only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity
with written information relating to any Underwriter furnished to the
Company by any Underwriter specifically for use therein; and will reimburse
any legal or other expenses reasonably incurred by the Company and each
such controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, including governmental
proceedings, such indemnified party will, if a claim in respect thereof is
to be made against the indemnifying party under this Section 8 notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party hereunder except to the extent the
indemnifying party hereunder has been materially prejudiced thereby and in
any event shall not relieve it from liability otherwise than under this
Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein, and to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party; and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation except that
the indemnified party shall have the right to employ separate counsel if,
in the indemnified party's reasonable judgment, it is advisable for the
indemnified party to be represented by separate counsel, and in that event
the fees and expenses of separate counsel shall be paid by the indemnifying
party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in the
preceding part of this Section 8 is for any reason held to be unavailable
to the Underwriters or the Company or is insufficient to hold harmless an
indemnified party, then the Company shall contribute to the damages paid by
the Underwriters, and the Underwriters shall contribute to the damages paid
by the Company; provided, however, that 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. The amount of such contribution shall
(i) be in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on
the other from the offering of the Shares and the consummation of the
Formation Transactions or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, be 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 Company on the one hand and
the Underwriters on the other with respect to the statements or omissions
which resulted in
28
29
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 Company on the one hand and the Underwriters 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 Company, in the
case of the Company, and the total underwriting discounts and commissions
received by the Underwriters with respect to the Shares purchased under
this Agreement, in the case of the Underwriters, bear to the total gross
proceeds from the offering of the Shares under this Agreement, in each case
as set forth in 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 Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if
the Underwriters were treated as one entity for such purpose).
Notwithstanding the foregoing, no Underwriter or person controlling such
Underwriter shall be obligated to make contribution hereunder which in the
aggregate exceeds the underwriting discount applicable to the Shares
purchased by such Underwriter under this Agreement, less the aggregate
amount of any damages which such Underwriter and its controlling persons
have otherwise been required to pay in respect of the same or any similar
claim. The Underwriters' obligations to contribute hereunder are several in
proportion to their respective obligations and not joint. For purposes of
this Section, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Securities Act shall have the same rights to
contribution as such Underwriter, and each trustee of the Company, each
officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15
of the Securities Act, shall have the same rights to contribution as the
Company.
(e) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is a
party or is (or would be, if a claim were to be made against such
indemnified party) entitled to indemnity hereunder, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action, suit or
proceeding.
9. Default of Underwriters. If any Underwriter defaults in its obligation
to purchase Shares hereunder and if the total number of Shares which such
defaulting Underwriter agreed but failed to purchase is ten percent or less of
the total number of Shares to be sold hereunder, the non-defaulting Underwriters
shall be obligated severally to purchase (in the respective proportions which
the number of Shares set forth opposite the name of each non-defaulting
Underwriter in Schedule I hereto bears to the total number of Shares set forth
opposite the names of all the non-defaulting Underwriters), all the Shares which
such defaulting Underwriter or Underwriters agreed
29
30
but failed to purchase. If any Underwriter so defaults and the total number of
Shares with respect to which such default or defaults occur is more than ten
percent of the total number of Shares to be sold hereunder, and arrangements
satisfactory to the other Underwriters and the Company for the purchase of such
Shares by other persons (who may include the non-defaulting Underwriters) are
not made within 36 hours after such default, this Agreement, insofar as it
relates to the sale of the Shares, will terminate without liability on the part
of the non-defaulting Underwriters or the Company except for (i) the provisions
of Section 8 hereof, and (ii) the expenses to be paid or reimbursed by the
Company pursuant to Section 5. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 9. Nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, its
officers and the Underwriters set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement shall remain in full
force and effect, regardless of (a) any investigation made by or on behalf of
the Company, any of its officers, directors or trustees, any Underwriter or any
controlling person, (b) any termination of this Agreement and (c) delivery of
and payment for the Shares.
11. Effective Date. This Agreement shall become effective at whichever of
the following times shall first occur: (i) at 11:30 A.M., Washington, D.C. time,
on the next full business day following the date on which the Registration
Statement becomes effective or (ii) at such time after the Registration
Statement has become effective as the Representatives shall release the Firm
Shares for sale to the public; provided, however, that the provisions of
Sections 5, 8, 10 and 11 hereof shall at all times be effective. For purposes of
this Section 11, the Firm Shares shall be deemed to have been so released upon
the release by the Representatives for publication, at any time after the
Registration Statement has become effective, of any newspaper advertisement
relating to the Firm Shares or upon the release by the Representatives of
telegrams offering the Firm Shares for sale to securities dealers, whichever may
occur first.
12. Termination.
(a) The Company's obligations under this Agreement may be terminated
by the Company by notice to the Representatives (i) at any time before it
becomes effective in accordance with Section 11 hereof, or (ii) in the
event that the condition set forth in Section 7 shall not have been
satisfied at or prior to the First Closing Date.
(b) This Agreement may be terminated by the Representatives by notice
to the Company (i) at any time before it becomes effective in accordance
with Section 11 hereof; (ii) in the event that at or prior to the First
Closing Date the Company shall have failed, refused or been unable to
perform any agreement on the part of the Company to be performed hereunder
or any other condition to the obligations of the Underwriters hereunder is
not fulfilled; (iii) if at or prior to the Closing Date trading in
securities on the NYSE, the American Stock Exchange or the over-the-counter
market shall have been
30
31
suspended or materially limited or minimum or maximum prices shall have
been established on either of such exchanges or such market, or a banking
moratorium shall have been declared by Federal or state authorities; (iv)
if at or prior to the Closing Date trading in securities of the Company
shall have been suspended; or (v) if there shall have been such a material
adverse change in general economic, political or financial conditions or if
the effect of international conditions on the financial markets in the
United States shall be such as, in your reasonable judgment, makes it
inadvisable to commence or continue the offering of the Shares at the
offering price to the public set forth on the cover page of the Prospectus
or to proceed with the delivery of the Shares.
(c) Termination of this Agreement pursuant to this Section 12 shall be
without liability of any party to any other party other than as provided in
Sections 5 and 8 hereof.
13. Notices. All communications hereunder shall be in writing and, if sent
to any of the Underwriters, shall be mailed or delivered or telegraphed and
confirmed in writing to the Representatives in care of X. X. Xxxxxxxx & Co., X.
X. Xxxxxxxx Financial Center, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000,
Attention: Xxxxxxxxx Xxxxxxx-Xxxxx, or if sent to the Company shall be mailed,
delivered or telegraphed and confirmed in writing to the Company at 0000 Xxxxxx
Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: J. Xxxxxxx
Xxxxxxx.
14. Miscellaneous. This Agreement shall inure to the benefit of and be
binding upon the several Underwriters, the Company and their respective
successors and legal representatives. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Company and the several Underwriters and for
the benefit of no other person except that (a) the representations and
warranties and indemnities of the Company contained in this Agreement shall also
be for the benefit of any person or persons who control any Underwriter within
the meaning of Section 15 of the Securities Act, and (b) the indemnities by the
Underwriters shall also be for the benefit of the trustees of the Company,
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Securities Act. No purchaser of Shares from any Underwriter will be deemed a
successor because of such purchase. The validity and interpretation of this
Agreement shall be governed by the laws of the State of Tennessee. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. Bradford hereby represents and warrants to the Company that it has
authority to act hereunder on behalf of the several Representatives and
Underwriters, and any action hereunder taken by the Representatives will be
binding upon all the Underwriters.
If the foregoing is in accordance with your understanding of our agreement,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this
31
32
letter shall constitute a binding agreement among the Company and each of the
several Underwriters.
Very truly yours,
CCA PRISON REALTY TRUST
By:_______________________________________
Title:____________________________________
Confirmed and accepted as of the
date first above written.
X.X. XXXXXXXX & CO., L.L.C.
A.G. XXXXXXX & SONS, INC.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
XXXXXX BROTHERS INC.
PAINEWEBBER INCORPORATED
XXXXXXXX INC.
For themselves and as
Representatives of the Several
Underwriters
By:________________________________
Partner
32
33
SCHEDULE I
UNDERWRITERS
Number of
Firm Shares to
Underwriter be Purchased
----------- ------------
X.X. Xxxxxxxx & Co.................................
X.X. Xxxxxxx & Sons, Inc...........................
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated...............
Xxxxxx Brothers Inc................................
PaineWebber Incorporated...........................
Xxxxxxxx Inc.......................................
----------
Total.............................................. 17,000,000
==========