EXHIBIT 1.1
XXXXXX REALTY CORPORATION
724,888 Shares
Common Stock
UNDERWRITING AGREEMENT
----------------------
February 12, 1998
PRUDENTIAL SECURITIES INCORPORATED
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Realty Corporation, a Maryland corporation (the "Company"), and
Xxxxxx Realty, L.P., a Delaware limited partnership (the "Operating
Partnership"), each hereby confirms its agreement (this "Agreement") with
Prudential Securities Incorporated (the "Underwriter"), as set forth below.
1. Securities. Subject to the terms and conditions herein contained, the
----------
Company proposes to issue and sell to the Underwriter an aggregate of 724,888
shares (the "Securities") of the Company's common stock, par value $.01 per
share (the "Common Stock"). The Underwriter intends to deposit the Securities
with the trustee of the National Equity Trust Equity Portfolio Series 2 (REIT
Portfolio), a registered unit investment trust under the Investment Company Act
of 1940, as amended (the "Trust"), to which Prudential Securities Incorporated
acts as sponsor and depositor in exchange for units in the Trust.
2. Representations and Warranties of the Company and the Operating
---------------------------------------------------------------
Partnership. The Company and the Operating Partnership, jointly and severally,
-----------
represent and warrant to, and agree with, the Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"). A registration statement
on such Form S-3 (File No. 333-45097) with respect to the Securities,
including a basic prospectus, has been filed by the Company with the
Securities and Exchange Commission (the "Commission") under the Act, and
one or more amendments to such registration statement may have been so
filed. Such registration statement, as so amended, has been declared by
the Commission to be effective under the Act. Such registration statement,
as amended at the date of this Agreement, meets the requirements set forth
in Rule 415(a)(1)(x) under the Act and complies in all other material
respects with said Rule. The Company will next file with the Commission
either (A) if the Company relies on Rule 434 under the Act, a Term Sheet
(as hereinafter defined) relating to the Securities that shall identify the
Preliminary Prospectus (as hereinafter defined) that it supplements and, if
required to be filed pursuant to Rules 434(c)(2) and 424(b), an Integrated
Prospectus (as hereinafter defined), in either case, containing such
information as is required or permitted by Rules 434, 430A and 424(b) under
the Act or (B) if the Company does not rely on Rule 434 under the Act,
pursuant to Rule 424(b) under the Act a final prospectus supplement to the
basic prospectus included in such registration statement, as so amended,
describing the Securities and the offering thereof, in such form as has
been provided to, or discussed with, and approved by the Underwriter as
provided in Section 5(a) of this Agreement. The Company may also file a
related registration statement with the Commission pursuant to Rule 462(b)
under the Act for the purpose of registering certain additional Securities,
which registration, assuming compliance with
the requirements of Rule 462(b), shall be effective upon filing with the
Commission. As used in this Agreement, the term "Registration Statement"
means the registration statement initially filed relating to the
Securities, as amended at the time when it was declared effective,
including (i) all financial schedules and exhibits thereto, (ii) all
documents incorporated by reference or deemed to be incorporated by
reference therein, (iii) any information omitted therefrom pursuant to Rule
430A under the Act and included in the Prospectus (as hereinafter defined)
or, if required to be filed pursuant to Rule 434(c)(2) and 424(b) under the
Act, in the Integrated Prospectus, (iv) and any Rule 462(b) Registration
Statement (as hereinafter defined); the term "Rule 462(b) Registration
Statement" means any registration statement filed with the Commission
pursuant to Rule 462(b) under the Act; the term "Basic Prospectus" means
the prospectus included in the Registration Statement as amended by any
form of prospectus filed thereafter pursuant to Rule 424; the term
"Preliminary Prospectus" means any preliminary form of the Prospectus (as
hereinafter defined), if any, specifically relating to the Securities, in
the form first filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 under the Act; the term "Prospectus Supplement" means
any prospectus supplement specifically relating to the Securities, in the
form first filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 under the Act; the term "Prospectus" means (A) if the
Company relies on Rule 434 under the Act, the Term Sheet relating to the
Securities that is first filed pursuant to Rule 424(b)(7) under the Act,
together with the Preliminary Prospectus identified therein that such Term
Sheet supplements; (B) if the Company does not rely on Rule 434 under the
Act, the Preliminary Prospectus; or (C) if the Company does not rely on
Rule 434 under the Act and if no Preliminary Prospectus is required to be
filed, the Basic Prospectus, including, in each case, the Prospectus
Supplement; "Basic Prospectus," "Prospectus," "Preliminary Prospectus" and
"Prospectus Supplement" shall include in each case the documents, if any,
filed by the Company with the Commission pursuant to Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and incorporated by reference
therein; the term "Integrated Prospectus" means a prospectus first filed
with the Commission pursuant to Rules 434(c)(2) and 424(b) under the Act;
and the term "Term Sheet" means any abbreviated term sheet that satisfies
the requirements of Rule 434 under the Act. Any reference in this Agreement
to an "amendment" or "supplement" to any Preliminary Prospectus, the
Prospectus, or any Integrated Prospectus or an "amendment" to any
registration statement (including the Registration Statement) shall be
deemed to include any document incorporated by reference therein that is
filed with the Commission under the Exchange Act after the date of such
Preliminary Prospectus, Prospectus, Integrated Prospectus or registration
statement, as the case may be. For purposes of the preceding sentence, any
reference to the "effective date" of an amendment to a registration
statement shall, if such amendment is effected by means of the filing with
the Commission under the Exchange Act of a document incorporated by
reference in such registration statement, be deemed to refer to the date on
which such document was so filed with the Commission; any reference herein
to the "date" of a Prospectus that includes a Term Sheet shall mean the
date of such Term Sheet.
(b) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus. When any Preliminary Prospectus and
any amendment or supplement thereto was filed with the Commission, it (i)
contained all statements required to be stated therein in accordance with,
and complied in all material respects with the requirements of, the Act,
the Exchange Act and the respective rules and regulations of the Commission
thereunder, and (ii) did not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. When the Registration Statement or any amendment
thereto was declared effective, it (i) contained all statements required to
be stated therein in accordance with, and complied in all material respects
with the requirements of, the Act, the Exchange Act and the respective
rules and regulations of the Commission thereunder and (ii) did not include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading. When the
Registration Statement or any amendment thereto was or is declared
effective, it (i) contained or will contain all statements required to be
stated therein in accordance with, and complied or will comply in all
2
material respects with the requirements of, the Act, the Exchange Act and
the respective rules and regulations of the Commission thereunder and (ii)
did not or will not include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading. When the Prospectus or any Term Sheet that is a part thereof
or any Integrated Prospectus or any amendment or supplement to the
Prospectus is filed with the Commission pursuant to Rule 424(b) (or, if the
Prospectus or part thereof or such amendment or supplement is not required
to be so filed, when the Registration Statement or the amendment thereto
containing such amendment or supplement to the Prospectus was or is
declared effective), on the date when the Prospectus is otherwise amended
or supplemented and on the Closing Date (as hereinafter defined), each of
the Prospectus, and, if required to be filed pursuant to Rules 434(c)(2)
and 424(b) under the Act, the Integrated Prospectus as amended or
supplemented at any such time, (i) contained or will contain all statements
required to be stated therein in accordance with, and complied or will
comply in all material respects with the requirements of, the Act, the
Exchange Act and the respective rules and regulations of the Commission
thereunder and (ii) did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. The foregoing provisions of this paragraph (b)
do not apply to statements or omissions made in any Preliminary Prospectus
or any amendment or supplement thereto, the Registration Statement or any
amendment thereto, the Prospectus or, if required to be filed pursuant to
Rules 434(c)(2) and 424(b) under the Act, the Integrated Prospectus or any
amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by the Underwriter as set
forth in Section 11 hereof.
(c) If the Company has elected to rely on Rule 462(b) and the Rule
462(b) Registration Statement has not been declared effective, (i) the
Company has filed a Rule 462(b) Registration Statement in compliance with
and that, assuming compliance with Rule 462(b), is effective upon filing
with the Commission and has received confirmation of its receipt and (ii)
the Company has given irrevocable instructions for transmission of the
applicable filing fee in connection with the filing of the Rule 462(b)
Registration Statement, in compliance with Rule 111 promulgated under the
Act or the Commission has received payment of such filing fee.
(d) The Company and each of its subsidiaries that are corporations
have been duly organized and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of incorporation
and are duly qualified to transact business as foreign corporations and are
in good standing under the laws of all other jurisdictions where the
ownership or leasing of their respective properties or the conduct of their
respective businesses requires such qualification, except where the failure
to be so qualified does not amount to a material liability or disability to
the Company and its subsidiaries, taken as a whole. Each of the Company's
subsidiaries that are partnerships have been duly organized and are validly
existing as partnerships in good standing under the laws of their
respective jurisdictions of organization and, as applicable, are duly
qualified to transact business as foreign partnerships and are in good
standing under the laws of all other jurisdictions where the ownership or
leasing of their respective properties or the conduct of their respective
businesses requires such qualification, except where the failure to be so
qualified does not amount to a material liability or disability to the
Company and its subsidiaries, taken as a whole.
(e) The Company and each of its subsidiaries have full power
(corporate or other) to own or lease their respective properties and
conduct their respective businesses as described in the Registration
Statement and each of the Prospectus and any Integrated Prospectus or, if
the Prospectus or any required Integrated Prospectus is not in existence,
the most recent Preliminary Prospectus; and each of the Company and the
Operating Partnership has full power (corporate or other) to enter into
this Agreement and to carry out all the terms and provisions hereof to be
carried out by it.
3
(f) The Company has no subsidiaries, except for the Operating
Partnership, Xxxxxx Services, Inc., Xxxxxx Realty Finance, Inc. and Xxxxxx
Realty Finance Partnership, L.P.
(g) The issued shares of capital stock of each of the Company's
subsidiaries that are corporations have been duly authorized and validly
issued, are fully paid and nonassessable and, except as otherwise set forth
in the Prospectus and any Integrated Prospectus or, if the Prospectus or
any required Integrated Prospectus is not in existence, the most recent
Preliminary Prospectus, are owned beneficially by the Company free and
clear of any security interests, liens, encumbrances, equities or claims.
The partnership agreements of the Company's subsidiaries that are
partnerships have been duly authorized, executed and delivered by the
general partners thereof and constitute the valid and binding obligation of
the general partners thereof. Such partnership agreements reflect the
Company and/or one or more of the Company's subsidiaries as the sole
beneficial owners of the partnership interests in such partnerships, except
with respect to the Operating Partnership and Xxxxxx Realty Finance
Partnership, L.P. as described in the Prospectus and any Integrated
Prospectus (or, if the Prospectus or any required Integrated Prospectus is
not in existence, the most recent Preliminary Prospectus).
(h) The Operating Partnership has been duly organized and is validly
existing as a limited partnership in good standing under the laws of its
jurisdiction of organization and is duly qualified to transact business as
a foreign limited partnership and is in good standing under the laws of all
other jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified does not amount to a material liability or
disability to the Company and its subsidiaries, taken as a whole. All of
the partnership interests in the Operating Partnership (the "Units") to be
issued in connection with the offering of securities contemplated hereby
have been duly authorized for issuance by the Operating Partnership to the
Company, and, at the Closing Date, against the payment of consideration
therefor in accordance with the Second Amended and Restated Agreement of
Limited Partnership of the Operating Partnership, will be validly issued,
fully paid and owned by the Company, free and clear of any security
interests, liens, encumbrances, equities or claims. All of the outstanding
Units have been duly authorized and validly issued and are owned as set
forth in the Prospectus and, in the case of Units issued to the Company,
are owned free and clear of any security interests, liens, encumbrances,
equities or claims. Immediately after the Closing Date, 3,406,212 Units of
common limited partnership interest, 1,200,000 Units of preferred limited
partnership interest and 25,153,255 Units of general partnership interest
will be issued and outstanding. The Units conform in all material respects
to the description thereof contained in the Prospectus and any Integrated
Prospectus, or, if the Prospectus or any required Integrated Prospectus is
not in existence, the most recent Preliminary Prospectus. The Company is,
and immediately after the Closing Date will be, the sole general partner of
the Operating Partnership.
(i) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus and any Integrated Prospectus
or, if the Prospectus or any required Integrated Prospectus is not in
existence, the most recent Preliminary Prospectus. All of the issued
shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable. The Securities have
been duly authorized and at the Closing Date, after payment therefor in
accordance herewith, will be validly issued, fully paid and nonassessable.
No holders of outstanding shares of capital stock of the Company are
entitled as such to any preemptive or other rights to subscribe for any of
the Securities, and no holder of securities of the Company has any right
that has not been fully exercised or waived to require the Company to
register the offer or sale of any securities owned by such holder under the
Act in the public offering contemplated by this Agreement.
(j) The capital stock of the Company conforms to the description
thereof contained in the Registration Statement and each of the Prospectus
and any Integrated Prospectus or, if the
4
Prospectus or any required Integrated Prospectus is not in existence, the
most recent Preliminary Prospectus.
(k) All of the issued and outstanding shares of capital stock of the
Company have been offered and sold in compliance with all applicable laws
(including, without limitation, federal and state securities laws). Except
as described in the Prospectus and any Integrated Prospectus (or, if the
Prospectus or any required Integrated Prospectus is not in existence, the
most recent Preliminary Prospectus), the Company has not issued or sold any
shares of its capital stock during the six-month period preceding the
initial filing date of the Registration Statement including any sales
pursuant to Rule 144A under, or Regulation D or S of, the Act.
(l) Except as disclosed in the Prospectus and any Integrated
Prospectus (or, if the Prospectus or any required Integrated Prospectus is
not in existence, the most recent Preliminary Prospectus), there are no
outstanding (i) securities, equity interests or obligations of the Company
or any of its subsidiaries convertible into or exchangeable for any capital
stock or equity interests (as the case may be) of the Company or any such
subsidiary, (ii) warrants, rights or options to subscribe for or purchase
from the Company or any such subsidiary any such capital stock or equity
interests or any such convertible or exchangeable securities, equity
interests or obligations, or (iii) obligations of the Company or any such
subsidiary to issue any shares of capital stock, equity interests, any such
convertible or exchangeable securities, equity interests or obligations, or
any such warrants, rights or options.
(m) The balance sheet of the Company (including the notes thereto)
included in the Registration Statement, the Prospectus and any Integrated
Prospectus (or, if the Prospectus or any required Integrated Prospectus is
not in existence, the most recent Preliminary Prospectus) fairly presents
the financial position of the Company at the date therein specified. The
combined financial statements (including the notes thereto) of the Kilroy
Group (as defined in the notes thereto) and schedule of the Kilroy Group
included in the Registration Statement, the Prospectus and any Integrated
Prospectus (or, if the Prospectus or any required Integrated Prospectus is
not in existence, the most recent Preliminary Prospectus) fairly present
the financial position, the results of operations and cash flows and
changes in financial condition of the Kilroy Group, at the date and for the
periods therein specified. The combined historical summaries of certain
revenues and certain expenses (including the notes thereto) of the
Acquisition Properties, the Post IPO Acquisitions through June 30, 1997,
the Acquired Properties and the Pending Acquisitions for the year ended
December 31, 1996 (each as defined in the notes thereto) included or
incorporated by reference in the Registration Statement, the Prospectus and
any Integrated Prospectus (or, if the Prospectus or any required Integrated
Prospectus is not in existence, the most recent Preliminary Prospectus)
fairly present the combined certain revenues and certain expenses of the
Acquisition Properties, the Post IPO Acquisitions through June 30, 1997,
the Acquired Properties and the Pending Acquisitions for the year ended
December 31, 1996, respectively, for the periods therein specified. All of
the foregoing financial statements (including the notes thereto) and
schedules have been prepared in accordance with generally accepted
accounting principles consistently applied for each of the periods
presented. The financial data and the statistical information and data set
forth or incorporated by reference in the Prospectus and any Integrated
Prospectus (or, if the Prospectus or any required Integrated Prospectus is
not in existence, the most recent Preliminary Prospectus) fairly present,
as of the date of such data or information, on the basis stated in the
Registration Statement, the Prospectus and any Integrated Prospectus (or
such Preliminary Prospectus), the information included therein.
(n) The pro forma consolidated financial statements (including the
notes thereto) and other pro forma financial information of the Company
included or incorporated by reference in the Registration Statement, the
Prospectus and any Integrated Prospectus (or, if the Prospectus or any
required Integrated Prospectus is not in existence, the most recent
Preliminary Prospectus) comply in all material respects with the applicable
requirements of Rule 11-02 of Regulation S-X of the
5
Commission and the pro forma adjustments have been properly applied to the
historical amounts in the compilation of such information and the
assumptions used in the preparation thereof are, in the opinion of the
Company, reasonable. Other than the historical and pro forma financial
statements (and schedules) included therein, no other historical or pro
forma financial statements (or schedules) are required to be included in
the Registration Statement or Prospectus or any Integrated Prospectus.
(o) Deloitte & Touche LLP, who have certified certain financial
statements and schedules of the Company, and delivered their reports with
respect to the audited financial statements and schedules, included in the
Registration Statement, the Prospectus and any Integrated Prospectus (or,
if the Prospectus or any required Integrated Prospectus is not in
existence, the most recent Preliminary Prospectus), are independent public
accountants as required by the Act, the Exchange Act and the applicable
rules and regulations thereunder.
(p) The execution and delivery of this Agreement have been duly
authorized by the Company and the Operating Partnership and this Agreement
has been duly executed and delivered by the Company and the Operating
Partnership, and is the valid and binding agreement of each of the Company
and the Operating Partnership, enforceable against the Company and the
Operating Partnership in accordance with its terms, subject to the effect
of bankruptcy, insolvency, moratorium, fraudulent conveyance,
reorganization and similar laws relating to creditors' rights generally and
to the application of equitable principles in any proceeding, whether at
law or in equity.
(q) No legal or governmental proceedings are pending to which the
Company or any of its subsidiaries is a party or to which the property of
the Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus or any Integrated
Prospectus (or, if the Prospectus or any required Integrated Prospectus is
not in existence, the most recent Preliminary Prospectus) and are not
described therein, and, to the knowledge of the Company or any of its
subsidiaries, no such proceedings have been threatened against the Company
or any of its subsidiaries or with respect to any of their respective
properties; and no contract or other document is required to be described
in the Registration Statement or the Prospectus or any Integrated
Prospectus or to be filed as an exhibit to the Registration Statement that
is not described therein (or, if the Prospectus or any required Integrated
Prospectus is not in existence, the most recent Preliminary Prospectus) or
filed as required.
(r) The issuance, offering and sale of the Securities to the
Underwriter by the Company pursuant to this Agreement, the compliance by
the Company and the Operating Partnership with the other provisions of this
Agreement and the consummation of the other transactions herein
contemplated do not (i) require the consent, approval, authorization,
registration or qualification of or with any governmental authority, except
such as have been obtained, such as may be required under state securities
or blue sky laws and, if the registration statement filed with respect to
the Securities (as amended) is not effective under the Act as of the time
of execution hereof, such as may be required (and shall be obtained as
provided in this Agreement) under the Act, or (ii) conflict with or result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, any material indenture, mortgage, deed of
trust, lease or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries or any of their respective properties are bound, or the
charter documents or by-laws or certificate of limited partnership or
partnership agreement (as the case may be) of the Company or any of its
subsidiaries, or any statute or any judgment decree, order, rule or
regulation of any court or other governmental authority or any arbitrator
applicable to the Company or any of its subsidiaries.
(s) Subsequent to the respective dates as of which information is
given in the Registration Statement, the Prospectus and any Integrated
Prospectus (or, if the Prospectus or any required Integrated Prospectus is
not in existence, the most recent Preliminary Prospectus), neither the
Company nor any of its subsidiaries has sustained any material loss or
interference with their
6
respective businesses or properties from fire, flood, hurricane, accident
or other calamity, regardless of whether covered by insurance, or from any
labor dispute or any legal or governmental proceeding and there has not
been any material adverse change, or any development involving a
prospective material adverse change, in the condition (financial or
otherwise), management, business prospects, net worth, or results of
operations of the Company and its subsidiaries, taken as a whole, except in
each case as described in or contemplated by the Registration Statement,
the Prospectus and any Integrated Prospectus (or, if the Prospectus or any
required Integrated Prospectus is not in existence, the most recent
Preliminary Prospectus).
(t) The Company has not, directly or indirectly, (i) taken any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Securities or (ii) since the filing of the Registration Statement
(A) sold, bid for, purchased, or paid anyone any compensation for
soliciting purchases of, the Securities or (B) paid or agreed to pay to any
person any compensation for soliciting another to purchase any other
securities of the Company.
(u) The Company has not distributed and, prior to the later of (i)
the Closing Date and (ii) the completion of the distribution of the
Securities, will not distribute any offering material in connection with
the offering and sale of the Securities other than the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or other materials, if
any, permitted by the Act.
(v) Subsequent to the respective dates as of which information is
given in the Registration Statement, the Prospectus and any Integrated
Prospectus (or, if the Prospectus or any required Integrated Prospectus is
not in existence, the most recent Preliminary Prospectus), (i) the Company
and its subsidiaries have not incurred any material liability or
obligation, direct or contingent, nor entered into any material transaction
not in the ordinary course of business; (ii) the Company has not purchased
any of its outstanding capital stock (other than as contemplated by Section
2(k) hereof); and (iii) there has not been any material change in the
capital stock or partnership interests (as the case may be), short-term
debt or long-term debt of the Company and its consolidated subsidiaries,
except in each case as described in or contemplated by the Prospectus and
any Integrated Prospectus (or, if the Prospectus or any required Integrated
Prospectus is not in existence, the most recent Preliminary Prospectus).
(w) The Company or its subsidiaries will have good and marketable
title in fee simple to all items of real property comprising part of the
Properties (as defined in the Registration Statement, the Prospectus and
any Integrated Prospectus, or, if the Prospectus or any required Integrated
Prospectus is not in existence, the most recent Preliminary Prospectus)
(except with respect to land held pursuant to a ground lease or subject to
an air space lease) and marketable title to all personal property
comprising part of the Properties, in each case free and clear of any
security interests, liens, encumbrances, equities, claims and other
defects, except such as do not materially and adversely affect the value of
such property and do not interfere with the use made or proposed to be made
of such property by the Company or such subsidiary, and any real property
and buildings comprising part of the Properties held pursuant to or subject
to a ground lease, air space lease or other lease will be held by the
Company or any such subsidiary under or subject to valid, subsisting and
enforceable ground leases, air space leases or other leases, with such
exceptions as are not material and do not interfere with the use made or
proposed to be made of such property and buildings by the Company or such
subsidiary, in each case except as described in or contemplated by the
Prospectus and any Integrated Prospectus (or, if the Prospectus or any
required Integrated Prospectus is not in existence, the most recent
Preliminary Prospectus).
(x) No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company or any of its
subsidiaries, is threatened that could result in a
7
material adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole, except as described in or contemplated by
the Prospectus and any Integrated Prospectus (or, if the Prospectus or any
required Integrated Prospectus is not in existence, the most recent
Preliminary Prospectus).
(y) The Company and each of its subsidiaries own or possess all
contract rights that are material to the businesses now operated or
proposed to be operated by them taken as a whole as described in the
Prospectus and any Integrated Prospectus (or, if the Prospectus or any
required Integrated Prospectus is not in existence, the most recent
Preliminary Prospectus), including all such contract rights referred to in
the Prospectus. All such contracts are in full force and effect, and
neither the Company nor any such subsidiary is aware of any material breach
by any party under any of such contracts.
(z) The Company and each of its subsidiaries are 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 they
are engaged as described in the Prospectus and any Integrated Prospectus
(or, if the Prospectus or any required Integrated Prospectus is not in
existence, the most recent Preliminary Prospectus); and neither the Company
nor any such subsidiary has any reason to believe that it will not be able
to renew such insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not materially and adversely
affect the condition (financial or otherwise), business prospects, net
worth or results of operations of the Company and its subsidiaries, taken
as a whole, except as described in or contemplated by the Prospectus and
any Integrated Prospectus (or, if the Prospectus or any required Integrated
Prospectus is not in existence, the most recent Preliminary Prospectus).
(aa) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock or partnership interests,
from repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary's property or
assets to the Company or any other subsidiary of the Company, except as
described in or contemplated by the Prospectus and any Integrated
Prospectus (or, if the Prospectus or any required Integrated Prospectus is
not in existence, the most recent Preliminary Prospectus) and except
pursuant to (i) the mortgage loans and credit facility, descriptions of
which are set forth or incorporated by reference in the Registration
Statement, the Prospectus and any Integrated Prospectus, or, if the
Prospectus or any required Integrated Prospectus is not in existence, the
most recent Preliminary Prospectus), (ii) the terms and conditions of the
Operating Partnership's 8.075% Series A Cumulative Redeemable Units, (iii)
applicable law and (iv) with respect to prohibitions only against
transferring any of such subsidiary's property or assets to the Company or
any other subsidiary of the Company, (A) customary non-assignment
provisions contained in leases to which the Company or any of its
subsidiaries is a party and (B) security interests, including purchase
money obligations, applicable to any property of the Company or any of its
subsidiaries as of the date hereof.
(bb) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective
businesses, and neither the Company nor any such subsidiary has received
any notice of proceedings relating to the revocation or modification of any
such certificate, authorization or permit which, singly or in the
aggregate, if the subject of any unfavorable decision, ruling or finding,
would result in a material adverse change in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Company and its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus and any Integrated Prospectus (or, if the
Prospectus or any required Integrated Prospectus is not in existence, the
most recent Preliminary Prospectus).
8
(cc) The Company is not, and as of the Closing Date will not be,
subject to registration as an investment company under the Investment
Company Act of 1940, as amended.
(dd) Each of the Company and its subsidiaries has filed all foreign,
federal, state and local tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the failure so to
file would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole) and has paid all taxes required to be paid
by it and any other assessment, fine or penalty levied against it, to the
extent that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good faith
and for which a reserve has been established or as described in or
contemplated by the Prospectus and any Integrated Prospectus (or, if the
Prospectus or any required Integrated Prospectus is not in existence, the
most recent Preliminary Prospectus). All of such returns are true, correct
and complete. No audit, inquiry, investigation or similar proceeding is
currently pending or, to the knowledge of the Company, threatened against
the Company or any of its assets with respect to which it may be liable for
the payment of taxes, an adverse outcome of which would reasonably be
expected to result in a material adverse effect.
(ee) Neither the Company nor any of its subsidiaries is in violation
of any applicable federal or state law or regulation relating to
occupational safety and health, the storage, handling or transportation of
hazardous or toxic materials, pollution or otherwise relating to protection
of the environment, and the Company and its subsidiaries have received all
permits, licenses or other approvals required of them under applicable
federal and state occupational safety and health and environmental laws and
regulations to conduct their respective businesses or the businesses
proposed to be conducted by them as described in the Prospectus and any
Integrated Prospectus (or, if the Prospectus or any required Integrated
Prospectus is not in existence, the most recent Preliminary Prospectus),
and the Company and each such subsidiary is in compliance with all terms
and conditions of any such permit, license or approval, except any such
violation of law or regulation, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals which would not, singly
or in the aggregate, result in a material adverse change in the condition
(financial or otherwise), business prospects, net worth or results of
operations of the Company and its subsidiaries, taken as a whole, except as
described in or contemplated by the Prospectus and any Integrated
Prospectus (or, if the Prospectus or any required Integrated Prospectus is
not in existence, the most recent Preliminary Prospectus).
(ff) Each certificate signed by any officer of the Company and
delivered to the Underwriter or counsel for the Underwriter on the Closing
Date shall be deemed to be a representation and warranty by the Company to
the Underwriter as to the matters covered thereby.
(gg) Except as described in or contemplated by the Prospectus and any
Integrated Prospectus (or, if the Prospectus or any required Integrated
Prospectus is not in existence, the most recent Preliminary Prospectus),
neither the Company nor any such subsidiary owns any shares of stock or any
other equity securities of any corporation or has any equity interest in
any firm, partnership, association or other entity.
(hh) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
9
(ii) No default exists, and no event has occurred which, with notice
or lapse of time or both, would constitute a default in the due performance
and observance of any term, covenant or condition of any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or any of their respective properties is bound
or may be affected in any material adverse respect with regard to property,
business or operations of the Company and its subsidiaries taken as a
whole.
(jj) Except as otherwise disclosed in the Prospectus and any
Integrated Prospectus (or, if the Prospectus or any required Integrated
Prospectus is not in existence, the most recent Preliminary Prospectus),
since January 1, 1990 no foreclosures have been instituted and none are
currently threatened with respect to any property or assets directly or
indirectly owned (whether now or in the past) by the Xxxxxx Group or the
Company or any of its subsidiaries.
(kk) (i) To the knowledge of the Company or any of its subsidiaries,
no proceeding or filing of a petition seeking relief under Title 11 of the
United States Code or any other federal, state or foreign bankruptcy,
insolvency, liquidation or similar law has been commenced or instituted
(whether voluntary or involuntary) by or with respect to any member of the
Xxxxxx Group, (ii) no member of the Xxxxxx Group has applied for or
consented to the appointment of a receiver, trustee, custodian,
sequestrator or similar official for any such persons or for a substantial
part of any such persons' property or assets and (iii) no member of the
Xxxxxx Group has made a general assignment for the benefit of its
creditors.
(ll) No relationship, direct or indirect, exists between or among the
Company or the Operating Partnership on the one hand, and the directors,
officers, stockholders (in the case of the Company), limited partners (in
the case of the Operating Partnership), tenants, customers or suppliers of
the Company or the Operating Partnership on the other hand, which is
required to be described in the Prospectus and any Integrated Prospectus
(or, if the Prospectus or any required Integrated Prospectus is not in
existence, the most recent Preliminary Prospectus) which is not so
described.
(mm) The Company has been and is organized and operated in conformity
with the requirements for qualification as a real estate investment trust
(a "REIT") under the Internal Revenue Code of 1986, as amended (the
"Code"), and will have no earnings and profits accumulated in a non-REIT
year within the meaning of Section 857(a)(3)(B) of the Code, and the actual
method of operation of the Company and its subsidiaries has enabled, and
its proposed method of operation will enable, the Company to meet the
requirements for taxation as a REIT under the Code beginning with its
taxable year ending December 31, 1997 and for its subsequent taxable years.
The Company will elect to be taxed as a REIT under the Code beginning with
its taxable year ending December 31, 1997. All statements in the
Prospectus and any Integrated Prospectus (or, if the Prospectus or any
required Integrated Prospectus is not in existence, the most recent
Preliminary Prospectus) regarding the Company's qualification as a REIT are
true, complete and correct in all material respects.
(nn) (i) Each of the Properties (including, for purposes of this
paragraph, each of the properties that the Company or any of its
subsidiaries has the option to purchase) complies with all applicable
codes, laws, ordinances and regulations (including, without limitation,
building and zoning codes and laws and regulations relating to access to
the Properties) and deed restrictions or other covenants, except for such
failures to comply that would not materially impair the value of any of the
Properties and would not result in a forfeiture or reversion of title; (ii)
neither the Company nor any of its subsidiaries has knowledge of any
pending or threatened litigation, moratorium, condemnation proceedings,
zoning change, or other similar proceeding or action that could in any
manner affect the size of, use of, improvements on, construction on, access
to or availability of utilities or other necessary services to, the
Properties, except such proceedings or actions which are not reasonably
expected to, singly or in the aggregate, result in a material adverse
change in the condition (financial or otherwise), business prospects, net
worth or results of operations of the Company and its
10
subsidiaries, taken as a whole; (iii) all liens, charges, encumbrances,
claims, or restrictions on or affecting the properties and assets
(including the Properties) of the Company or any of its subsidiaries that
(A) would result in a material adverse change in the condition (financial
or otherwise), business prospects, net worth or results of operations of
the Company and its subsidiaries, taken as a whole, except as described in
or contemplated by the Prospectus and any Integrated Prospectus (or, if the
Prospectus or any required Integrated Prospectus is not in existence, the
most recent Preliminary Prospectus) or (B) are required to be disclosed in
the Prospectus and any Integrated Prospectus (or, if the Prospectus or any
required Integrated Prospectus is not in existence, the most recent
Preliminary Prospectus) are disclosed therein; (iv) neither the Company,
any of its subsidiaries nor any tenant of any portion of any of the
Properties is in default under any of the ground leases or air space leases
(as lessee), space leases (as lessor or lessee, as the case may be) or
other occupancy or license agreement relating to, or under any of the
mortgages or other security documents or other agreements encumbering or
otherwise recorded against, the Properties and there is no event which, but
for the passage of time or the giving of notice or both, would constitute a
default under any of such documents or agreements, except such defaults
that would not, singly or in the aggregate, result in a material adverse
change in the condition (financial or otherwise), business prospects, net
worth or results of operations of the Company and its subsidiaries, taken
as a whole, except as described in or contemplated by the Prospectus and
any Integrated Prospectus (or, if the Prospectus or any required Integrated
Prospectus is not in existence, the most recent Preliminary Prospectus);
and (v) except as described in the Prospectus and any Integrated Prospectus
(or, if the Prospectus or any required Integrated Prospectus is not in
existence, the most recent Preliminary Prospectus) and except as otherwise
provided by law, no tenant under any lease pursuant to which the Company or
any of its subsidiaries will lease the Properties will have an option or
right of first refusal to purchase the premises leased thereunder or the
building of which such premises are a part.
(oo) Each of the Properties (including, for purposes of this
paragraph, each of the properties that the Company or any of its
subsidiaries has the option to purchase) is in substantial compliance with
all presently applicable provisions of the Americans with Disabilities Act
and no failure of the Company or any of its subsidiaries to comply with all
presently applicable provisions of the Americans with Disabilities Act
would result in a material adverse change in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Company and its subsidiaries, taken as a whole.
(pp) Except as otherwise disclosed in the Prospectus and any
Integrated Prospectus (or, if the Prospectus or any required Integrated
Prospectus is not in existence, the most recent Preliminary Prospectus),
(i) neither the Company, any of its subsidiaries nor, to the best knowledge
of the Company, any other owners of the Properties (including, for purposes
of this paragraph, each of the properties that the Company or any of its
subsidiaries has the option to purchase) at any time or any other party has
at any time, handled, stored, treated, transported, manufactured, spilled,
leaked, or discharged, dumped, transferred or otherwise disposed of or
dealt with, Hazardous Materials (as hereinafter defined) on, to or from the
Properties, other than by any such action taken in compliance with all
applicable Environmental Statutes, except for such actions that are not
expected to result in a material adverse change in the condition (financial
or otherwise), business prospects, net worth or results of operations of
the Company and its subsidiaries, taken as a whole, except as described in
or contemplated by the Prospectus and any Integrated Prospectus (or, if the
Prospectus or any required Integrated Prospectus is not in existence, the
most recent Preliminary Prospectus); (ii) neither the Company nor any of
its subsidiaries intends to use the Properties or any subsequently acquired
properties for the purpose of handling, storing, treating, transporting,
manufacturing, spilling, leaking, discharging, dumping, transferring or
otherwise disposing of or dealing with Hazardous Materials; (iii) neither
the Company nor any of its subsidiaries knows of any seepage, leak,
discharge, release, emission, spill, or dumping of Hazardous Materials into
waters on or adjacent to the Properties or any other real property owned or
occupied by any such party, or onto lands from which Hazardous Materials
might seep, flow or drain into such waters, other than any events that are
not expected to
11
result in a material adverse change in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Company and its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus and any Integrated Prospectus (or, if the
Prospectus or any required Integrated Prospectus is not in existence, the
most recent Preliminary Prospectus); (iv) neither the Company nor any of
its subsidiaries has received any notice of, or has any knowledge of any
occurrence or circumstance which, with notice or passage of time or both,
would give rise to a claim under or pursuant to any federal, state or local
environmental statute or regulation or under common law, pertaining to
pollution, protection of the environment or Hazardous Materials on or
originating from any of the Properties or any assets described in the
Prospectus and any Integrated Prospectus (or, if the Prospectus or any
required Integrated Prospectus is not in existence, the most recent
Preliminary Prospectus) or any other real property owned or occupied by any
such party or arising out of the conduct of any such party, including,
without limitation, a claim under or pursuant to any Environmental Statute
(hereinafter defined), other than any events that are not expected to
result in a material adverse change in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Company and its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus and any Integrated Prospectus (or, if the
Prospectus or any required Integrated Prospectus is not in existence, the
most recent Preliminary Prospectus); (v) neither the Properties nor any
other real properties owned by members of the Xxxxxx Group is included or,
to the best of the Company's knowledge, proposed for inclusion on the
National Priorities List issued pursuant to CERCLA (as hereinafter defined)
by the United States Environmental Protection Agency (the "EPA") or, to the
best of the Company's knowledge, proposed for inclusion on any similar list
or inventory issued pursuant to any other Environmental Statute or issued
by any other Governmental Authority (as hereinafter defined).
As used herein, "Hazardous Material" shall include, without
limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, toxic substances, or related materials,
asbestos, petroleum or petroleum products, or any hazardous materials as
defined by any federal, state or local environmental law, ordinance, rule
or regulation including, without limitation, the Comprehensive
Environmental Response, Compensation, and Usability Act of 1980, as
amended, 42 U.S.C. (S)(S) 9601-9675 ("CERCLA"), the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. (S)(S)1801-1819, the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. (S)(S) 6901-6992K, the
Emergency Planning and Community Right-To-Know Act of 1986, 42 U.S.C.
(S)(S)11001-11050, the Toxic Substances Control Act, 15 U.S.C. (S)(S) 2601-
2671, the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C.
(S)(S) 136-136y, the Clean Air Act, 42 U.S.C. (S)(S) 7401-7642, the Clean
Water Act (Federal Water Pollution Control Act), 33 U.S.C. (S)(S) 1251-
1387, the Safe Drinking Water Act, 42 U.S.C. (S)(S) 300f-300j-26, and the
Occupational Safety and Health Act, 29 U.S.C. (S)(S) 651-678, as any of the
above statutes may be amended from time-to-time, and in the regulations
promulgated pursuant to each of the foregoing (individually, an
"Environmental Statute") or by any federal, state or local governmental
authority having or claiming jurisdiction over the properties and assets
described in the Prospectus (a "Governmental Authority").
(qq) None of the environmental consultants which prepared
environmental and asbestos inspection reports with respect to any of the
Properties (including, for purposes of this paragraph, each of the
properties that the Company or any of its subsidiaries has the option to
purchase) or the engineering consultants which prepared engineering
inspection reports with respect to any of the Properties, were employed for
such purpose on a contingent basis or have any substantial interest in the
Company or any of its subsidiaries and none of them or any of their
directors, officers or employees are connected with the Company or any of
its subsidiaries as a promoter, selling agent, voting trustee, director,
officer or employee.
(rr) Except as disclosed in the Prospectus and any Integrated
Prospectus (or if the Prospectus or any required Integrated Prospectus is
not in existence, the most recent Preliminary Prospectus), neither the
Company nor the Operating Partnership is aware of any engineering condition
12
at any of the Properties (including, for purposes of this paragraph, each
of the properties that the Company or any of its subsidiaries has the
option to purchase) that would result in a material adverse change in the
condition (financial or otherwise) or business prospects, net worth or
results of operations of the Company and its subsidiaries, taken as a
whole.
(ss) None of Xxxx Xxxxxxx, Xxxxx Xxxxxxxx, Xxx Xxxxxxxx and Xxxxxxxx
Xxxx have a right to exchange any of their respective Units to Common Stock
prior to January 31, 1999.
Each reference in this Section 2 to "the condition (financial or
otherwise), management, business prospects, net worth, or results of operations
of the Company and its subsidiaries, taken as a whole" means the condition
(financial or otherwise), management, business prospects, net worth, or results
of operations of the Company and its subsidiaries, taken as a whole.
3. Purchase Sale and Delivery of the Securities.
--------------------------------------------
(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 agrees to issue and sell to the Underwriter, and the
Underwriter agrees, to purchase from the Company, at a purchase price of
$26.13 per share, the Securities. One or more certificates in definitive
form for the Securities that the Underwriter has agreed to purchase
hereunder, and in such denomination or denominations and registered in such
name or names as the Underwriter requests upon notice to the Company at
least 48 hours prior to the Closing Date, shall be delivered by or on
behalf of the Company to the Underwriter, against payment by or on behalf
of the Underwriter of the purchase price therefor by wire transfer in same-
day funds (the "Wired Funds") to the account of the Company. Such delivery
of and payment for the Securities shall be made at the offices of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000 at 6:30 A.M., local time, on February 18, 1998,
or at such other place, time or date as the Underwriter and the Company may
agree upon, such time and date of delivery against payment being herein
referred to as the "Closing Date." The Company will make such certificate
or certificates for the Securities available for checking and packaging by
the Underwriter at the offices in New York, New York of the Company's
transfer agent or registrar or of the Underwriter at least 24 hours prior
to the Closing Date.
(b) The Company hereby acknowledges that the wire transfer by or on
behalf of the Underwriter of the purchase price for any Securities does not
constitute closing of a purchase and sale of the Securities. Only
execution and delivery of a receipt for Securities by the Underwriter
indicates completion of the closing of a purchase of the Securities from
the Company. Furthermore, in the event that the Underwriter wires funds to
the Company prior to the completion of the closing of a purchase of
Securities, the Company hereby acknowledges that until the Underwriter
executes and delivers a receipt for the Securities, by facsimile or
otherwise, the Company will not be entitled to the Wired Funds and shall
return the Wired Funds to the Underwriter as soon as practicable (by wire
transfer of same-day funds) upon demand. In the event that the closing of
a purchase of Securities is not completed and the Wired Funds are not
returned by the Company to the Underwriter on the same day the Wired Funds
were received by the Company, the Company agrees to pay to the Underwriter,
in respect of each day the Wired Funds are not returned by it, in same-day
funds, interest on the amount of such Wired Funds in an amount representing
the Underwriter's cost of financing as reasonably determined by the
Underwriter.
4. Offering by the Underwriter. Upon the Underwriter's authorization of
---------------------------
the release of the Securities, the Underwriter proposes to deposit the
Securities with the trustee of the Trust, for which Prudential Securities
Incorporated acts as a sponsor and depositor, in exchange for units in the
Trust, in accordance with the terms of the Prospectus.
13
5. Covenants of the Company. Each of the Company and the Operating
------------------------
Partnership covenants and agrees with the Underwriter that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this Agreement, and
any amendments thereto to become effective as promptly as possible. If
required, the Company will file the Prospectus or any Term Sheet that
constitutes a part thereof, any Integrated Prospectus, Prospectus
Supplement, as the case may be, and any amendment or supplement thereto
with the Commission in the manner and within the time period required by
Rules 434 and 424(b) under the Act. During any time when a prospectus
relating to the Securities is required to be delivered under the Act, the
Company (i) will comply with all requirements imposed upon it by the Act
and the Exchange Act and the respective rules and regulations of the
Commission thereunder to the extent necessary to permit the continuance of
sales of or dealings in the Securities in accordance with the provisions
hereof and of the Prospectus and any Integrated Prospectus, as then amended
or supplemented, and (ii) will not file with the Commission the Prospectus,
Term Sheet any Integrated Prospectus or any amendment or supplement thereto
or any amendment to the Registration Statement or any Rule 462(b)
Registration Statement of which the Underwriter shall not previously have
been advised and furnished with a copy for a reasonable period of time
prior to the proposed filing and as to which filing the Underwriter shall
not have given its consent. The Company will prepare and file with the
Commission, in accordance with the rules and regulations of the Commission,
promptly upon request by the Underwriter or counsel for the Underwriter,
any amendments to the Registration Statement or amendments or supplements
to the Prospectus and any Integrated Prospectus that may be necessary or
advisable in connection with the distribution of the Securities by the
Underwriter, and will use its best efforts to cause any such amendment to
the Registration Statement to be declared effective by the Commission as
promptly as possible. The Company will advise the Underwriter, promptly
after receiving notice thereof, of the time when the Registration Statement
or any amendment thereto has been filed or declared effective or the
Prospectus, any Integrated Prospectus or any amendment or supplement
thereto has been filed and will provide evidence satisfactory to the
Underwriter of each such filing or effectiveness.
(b) The Company will advise the Underwriter, promptly after receiving
notice or obtaining knowledge thereof, of (i) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement or any
post-effective amendment thereto or any order directed at any document
incorporated by reference in the Registration Statement, the Prospectus or
any Integrated Prospectus or any order preventing or suspending the use of
any Preliminary Prospectus, the Prospectus and any Integrated Prospectus or
any amendment or supplement thereto, (ii) the suspension of the
qualification of the Securities for offering or sale in any jurisdiction,
(iii) the institution, threatening or contemplation of any proceeding for
any such purpose or (iv) any request made by the Commission for amending
the Registration Statement or any Rule 462(b) Registration Statement, for
amending or supplementing any Preliminary Prospectus or the Prospectus and
any Integrated Prospectus or for additional information. The Company will
use its best efforts to prevent the issuance of any such stop order and, if
any such stop order is issued, to obtain the withdrawal thereof as promptly
as possible.
(c) The Company will arrange for the qualification of the Securities
for offering and sale under the securities or blue sky laws of such
jurisdictions as the Underwriter may designate and will continue such
qualifications in effect for as long as may be necessary to complete the
distribution of the Securities; provided, however, that in connection
therewith, the Company shall not be required to qualify as a foreign
corporation or to execute a general consent to service of process in any
jurisdiction.
(d) If, at any time prior to the later of (i) the final date when a
prospectus relating to the Securities is required to be delivered under the
Act or (ii) the Closing Date, any event occurs as a result of which the
Prospectus or any Integrated Prospectus, as then amended or supplemented,
would
14
include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if for any
other reason it is necessary at any time to amend or supplement the
Prospectus or any Integrated Prospectus to comply with the Act, the
Exchange Act or the respective rules or regulations of the Commission
thereunder, the Company will promptly notify the Underwriter thereof and,
subject to Section 5(a) hereof, will prepare and file with the Commission,
at the Company's expense, an amendment to the Registration Statement or an
amendment or supplement to the Prospectus or any Integrated Prospectus that
corrects such statement or omission or effects such compliance.
(e) The Company will, without charge, provide (i) to the Underwriter
and to counsel for the Underwriter a conformed copy of the registration
statement originally filed with respect to the Securities and each
amendment thereto (in each case including exhibits thereto) or any Rule
462(b) Registration Statement, certified by the Secretary or an Assistant
Secretary of the Company to be true and complete copies thereof as filed
with the Commission by electronic transmission, (iii) so long as a
prospectus relating to the Securities is required to be delivered under the
Act, as many copies of each Preliminary Prospectus, the Prospectus or any
Integrated Prospectus or any amendment or supplement thereto as the
Underwriter may reasonably request. Without limiting the application of
clause (ii) of the preceding sentence, the Company, not later than (A) 6:00
p.m., New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 10:00 a.m.,
New York City time, on such date or (B) 2:00 p.m., New York City time, on
the business day following the date of determination of the public offering
price, if such determination occurred after 10:00 a.m., New York City time,
on such date, will deliver to the Underwriter, without charge, as many
copies of the Prospectus or any Integrated Prospectus and any amendment or
supplement thereto as the Underwriter may reasonably request for purposes
of confirming orders that are expected to settle on the Closing Date.
(f) The Company, as soon as practicable, will make generally available
to its securityholders and to the Underwriter a consolidated earnings
statement of the Company and its subsidiaries that satisfies the provisions
of Section 11(a) of the Act and Rule 158 thereunder.
(g) The Company will apply the net proceeds from the sale of the
Securities as set forth under "Use of Proceeds" in the Prospectus or any
Integrated Prospectus.
(h) The Company will not, directly or indirectly, (i) take any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Securities or (ii) (A) sell, bid for, purchase, or pay anyone any
compensation for soliciting purchases of, the Securities or (B) pay or
agree to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(i) If the Company elects to rely on Rule 462(b), the Company shall
both file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with
Rule 111 promulgated under the Act by the earlier of (i) 10:00 P.M. Eastern
time on the date of this Agreement and (ii) the time confirmations are sent
or given, as specified by Rule 462(b)(2).
(j) The Company will cause the Securities to be duly authorized for
listing by the New York Stock Exchange prior to the Closing Date, subject
to official notice of issuance.
(k) The Company will use its best efforts to continue to meet the
requirements to qualify as a REIT under the Code.
15
(l) The Company will cause the Operating Partnership to operate as a
limited partnership in accordance with the requirements of Delaware law.
6. Expenses. The Company will pay all costs and expenses incident to the
--------
performance of its and the Operating Partnership's obligations under this
Agreement, regardless of whether the transactions contemplated herein are
consummated or this Agreement is terminated pursuant to Section 10 hereof,
including all costs and expenses incident to (i) the printing or other
production of documents with respect to the transactions, including any costs of
printing the registration statement originally filed with respect to the
Securities and any amendment thereto, any Rule 462(b) Registration Statement,
any Preliminary Prospectus, the Prospectus and any Integrated Prospectus and any
amendment or supplement thereto, this Agreement and any blue sky memoranda, (ii)
all arrangements relating to the delivery to the Underwriter of copies of the
foregoing documents, (iii) the fees and disbursements of the counsel, the
accountants and any other experts or advisors retained by the Company, (iv)
preparation, issuance and delivery to the Underwriter of any certificates
evidencing the Securities, including transfer agent's and registrar's fees, (v)
the qualification of the Securities under state securities and blue sky laws,
including filing fees and fees and disbursements of counsel for the Underwriter
relating thereto, (vi) the filing fees of the Commission and the National
Association of Securities Dealers, Inc. relating to the Securities, (vii) any
listing of the Securities on the New York Stock Exchange, (viii) any meetings
with prospective investors in the Securities (other than as shall have been
specifically approved by the Underwriter to be paid for by the Underwriter) and
(ix) advertising relating to the offering of the Securities (other than as shall
have been specifically approved by the Underwriter to be paid for by the
Underwriter). If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriter set
forth in Section 7 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 10 hereof or because of any failure, refusal or inability on
the part of the Company or the Operating Partnership to perform all obligations
and satisfy all conditions on its part to be performed or satisfied hereunder
other than by reason of a default by the Underwriter, the Company will reimburse
the Underwriter upon demand for all out-of-pocket expenses (including reasonable
counsel fees and disbursements) that shall have been incurred by the Underwriter
in connection with the proposed purchase and sale of the Securities. The
Company shall not in any event be liable to the Underwriter for the loss of
anticipated profits from the transactions covered by this Agreement.
7. Conditions of the Underwriter's Obligations. The obligations of the
-------------------------------------------
Underwriter to purchase and pay for the Securities shall be subject, in the
Underwriter's sole discretion, to the accuracy of the representations and
warranties of the Company and the Operating Partnership contained 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 and the Operating
Partnership of their respective covenants and agreements hereunder and to the
following additional conditions:
(a) The Prospectus, any Term Sheet that constitutes a part thereof,
any Integrated Prospectus or the Prospectus Supplement, as the case may be,
and any amendment or supplement thereto shall have been filed with the
Commission in the manner and within the time period required by Rules 434
and 424(b) under the Act; no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto and no order
directed at any document incorporated by reference in the Registration
Statement, the Prospectus or any Integrated Prospectus or any amendment or
supplement thereto 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 Underwriter, shall be contemplated by the Commission;
and the Company shall have complied with any request of the Commission for
additional information (to be included in the Registration Statement, the
Prospectus or any Integrated Prospectus or otherwise).
(b) The Underwriter shall have received an opinion, dated the Closing
Date, of Xxxxxx & Xxxxxxx, counsel for the Company and its subsidiaries, to
the following effect:
16
(i) 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, California, Delaware and Washington. Xxxxxx
Services, Inc., a Maryland corporation (the "Services Company"), is
duly qualified to transact business as a foreign corporation and is in
good standing under the laws of the States of Arizona, California and
Washington. The Operating Partnership has been duly organized and is
validly existing as a limited partnership in good standing under the
laws of the State of Delaware and is duly qualified to transact
business as a foreign limited partnership and is in good standing
under the laws of the States of Arizona, California and Washington.
Xxxxxx Realty Finance, Inc., a Delaware corporation (the "Finance
Company"), has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware
and is duly qualified to transact business as a foreign corporation
and is in good standing under the laws of the States of Arizona,
California and Washington. Xxxxxx Realty Finance Partnership, L.P., a
Delaware limited partnership (the "Finance Partnership" and together
with the Services Company, the Operating Partnership and the Finance
Company, the "Subsidiaries"), has been duly organized and is validly
existing as a limited partnership in good standing under the laws of
the State of Delaware and is duly qualified to transact business as a
foreign limited partnership and is in good standing under the laws of
the States of Arizona, California and Washington.
(ii) Each of the Operating Partnership, the Finance Company and
the Finance Partnership have corporate or partnership power (as the
case may be) to own or lease their respective properties and conduct
their respective businesses as described in the Registration
Statement, the Prospectus or any Integrated Prospectus, and the
Operating Partnership has partnership power to enter into this
Agreement and to carry out all the terms and provisions thereof to be
carried out by it.
(iii) The issued shares of capital stock of the Finance Company
have been duly authorized and validly issued, are fully paid and
nonassessable and are owned of record and, to the knowledge of such
counsel, beneficially by the Company free and clear of any perfected
security interests or any other security interests, liens,
encumbrances, equities or claims. The partnership agreement of the
Finance Partnership has been duly authorized, executed and delivered
by the Finance Company, as its general partner, and constitutes the
valid and binding obligation of the Finance Company, as its general
partner. Such partnership agreement reflects the Finance Company as
the sole general partner of the Finance Partnership and the Operating
Partnership as the sole limited partner of the Finance Partnership.
(iv) All outstanding shares of Common Stock (including the
Securities, when issued and paid for by the Underwriter in accordance
with the terms of this Agreement) have been issued in compliance with
the registration requirements of federal securities laws (or pursuant
to an exemption therefrom), were not, to the knowledge of such
counsel, issued in violation of or subject to any agreement to which
the Company is a party and which is known to such counsel based on a
certificate of the Company's Chairman of the Board of Directors and
its President and Chief Executive Officer, or any preemptive rights or
other rights to subscribe for or purchase any securities; no holders
of outstanding shares of capital stock of the Company are entitled
under any agreement to which the Company is a party and which is known
to such counsel based on a certificate of the Company's Chairman of
the Board of Directors and its President and Chief Executive Officer,
as such, to any preemptive or other rights to subscribe for any of the
Securities; and to the knowledge of such counsel no holders of
securities of the Company are entitled to have such securities
registered under the Registration Statement.
17
(v) The outstanding Units, including, without limitation, the
Units issued to the Company, have been duly authorized and validly
issued. The Units to be issued to the Company in exchange for the
contribution to the Operating Partnership of the net proceeds of the
offering of the Securities have been duly authorized and, upon
contribution of the net offering proceeds to the Operating
Partnership, will be validly issued. The terms of the Units conform
in all material respects to the description thereof and all statements
related thereto contained in the Registration Statement, the
Prospectus and any Integrated Prospectus.
(vi) Except as disclosed in the Registration Statement, the
Prospectus and any Integrated Prospectus, to the knowledge of such
counsel there are no outstanding (A) securities, equity interests or
obligations of the Company or any of its Subsidiaries convertible into
or exchangeable for any capital stock or equity interests (as the case
may be) of the Company or any such Subsidiary, (B) warrants, rights or
options to subscribe for or purchase from the Company or any such
Subsidiary any such capital stock or equity interests or any such
convertible or exchangeable securities, equity interests or
obligations, or (C) obligations of the Company or any such Subsidiary
to issue any shares of capital stock, equity interests, any such
convertible or exchangeable securities, equity interests or
obligations, or any such warrants, rights or options.
(vii) The statements set forth under the headings "Partnership
Agreement of the Operating Partnership," "Certain U.S. Federal Income
Tax Consequences to Holders of Common Stock," "Federal Income Tax
Consequences" and "Other Tax Consequences" in the Prospectus and any
Integrated Prospectus, insofar as such statements describe statutes,
rules or regulations, legal conclusions with respect to their
application or provisions of the organizational documents of the
Company, the Operating Partnership or the Services Company, as
applicable, have been reviewed by such counsel, are correct in all
material respects and present fairly the information required to be
disclosed therein.
(viii) The execution and delivery of this Agreement have been
duly authorized by all necessary partnership action of the Operating
Partnership, and this Agreement has been duly executed and delivered
by the Operating Partnership, and is the valid and binding agreement
of the Operating Partnership, enforceable against the Operating
Partnership in accordance with its terms, subject to the effect of
bankruptcy, insolvency, moratorium, fraudulent conveyance,
reorganization and similar laws relating to creditors' rights
generally, to the application of equitable principles in any
proceeding, whether at law or in equity, as limited by the
unenforceability under certain circumstances under law or court
decisions of provisions providing for the indemnification of or
contribution to a party with respect to a liability where such
indemnification or contribution is contrary to public policy and to
the extent that enforceability of such provisions may be limited due
to the existence of an untrue statement of a material fact in the
Registration Statement, the Prospectus and any Integrated Prospectus
or omission to state a material fact therein necessary to make the
statements in the Registration Statement, the Prospectus and any
Integrated Prospectus, respectively, not misleading, it being
understood that such counsel need not express any view with respect
thereto other than as set forth in the paragraph immediately following
clause (xv) below.
(ix) To the knowledge of such counsel based on the
representations of the Company contained herein, review of the letters
of attorneys delivered to the Company's auditors with respect to the
existence of contingent liabilities of the Company and a certificate
of the General Counsel of the Company, (A) no legal or governmental
proceedings are pending to which the Company or any of the
Subsidiaries is a party or to which the property of the Company or any
of the Subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not described
therein, and no such proceedings have been threatened against the
Company or any of the Subsidiaries or with
18
respect to any of their respective properties and (B) no contract or
other document is required to be disclosed in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that is not disclosed therein or filed as
required.
(x) The issuance, offering and sale of the Securities to the
Underwriter by the Company pursuant to this Agreement, the compliance
by the Company and the Operating Partnership with the other provisions
of this Agreement and the consummation of the other transactions
herein contemplated do not (A) require the consent, approval,
authorization, registration or qualification of or with any federal,
or California or New York governmental authority, except such as have
been obtained under the Act and such as may be required under state
securities or blue sky laws, or (B) conflict with or result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
lease or other agreement or instrument to which the Company or any of
the Subsidiaries is a party or by which the Company or any of the
Subsidiaries or any of their respective properties are bound
identified by an officer of the Company as material to the Company or
any of the Subsidiaries (the "Material Agreements"), or the charter
documents or by-laws or certificate of limited partnership or
partnership agreement (as the case may be) of the Operating
Partnership, the Finance Company or the Finance Partnership, or any
provision of any California or New York statute, rule or regulation
(other than federal or state securities laws, which are addressed
elsewhere herein), or court orders specifically directed to the
Company and identified by an officer of the Company as material to the
Company or any of the Subsidiaries (the "Court Orders").
(xi) The Company is not, and after giving effect to the
transactions contemplated by this Agreement will not be, subject to
registration as an investment company under the Investment Company Act
of 1940, as amended.
(xii) The Registration Statement is effective under the Act; any
required filing of the Prospectus, or any Term Sheet that constitutes
a part thereof, and any Integrated Prospectus pursuant to Rules 424(b)
and 434 has been made in the manner and within the time period
required thereby; and based upon such counsel's due inquiry made to
the Office of the Secretary of the Commission, no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto and no order directed at any document
incorporated by reference in the Registration Statement, the
Prospectus and any Integrated Prospectus or any amendment or
supplement thereto has been issued, and no proceedings for that
purpose have been instituted or threatened or, to the knowledge of
such counsel, are contemplated by the Commission.
(xiii) The Registration Statement originally filed with respect
to the Securities and each amendment thereto and any Rule 462(b)
Registration Statement, the Prospectus and any Integrated Prospectus
(in each case, including the documents incorporated by reference
therein but not including the financial statements, schedules and
other financial and statistical data contained therein, as to which
such counsel need express no opinion) comply as to form (at the time
filed) in all material respects with the applicable requirements of
the Act, the Exchange Act and the respective rules and regulations of
the Commission thereunder. The Company meets the requirements for the
use of Form S-3 under the Act.
(xiv) If the Company elects to rely on Rule 434, the Prospectus
is not "materially different," as such term is used in Rule 434, from
the prospectus included in the Registration Statement at the time of
its effectiveness or any post-effective amendment thereto (including
such information that is permitted to be omitted pursuant to Rule
430A).
19
(xv) The Company has been and is organized in conformity with
the requirements for qualification as a "real estate investment trust"
under the Code, and its method of operation, as described in the
Registration Statement, the Prospectus and any Integrated Prospectus
and the Officer's Certificate, has enabled, and its proposed method of
operation, also as so described, will enable, the Company to meet the
requirements for qualification and taxation as a "real estate
investment trust" under the Code beginning with the Company's taxable
year ended December 31, 1997.
Such counsel shall also state that they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company, and
representatives of the Underwriter, at which the contents of the
Registration Statement and the Prospectus and any Integrated Prospectus and
related matters were discussed and, although such counsel is not passing
upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus and any Integrated Prospectus and has not made
any independent check or verification thereof, during the course of such
participation no facts came to the attention of such counsel that caused
such counsel to believe that the Registration Statement, at the time it
became effective, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that
the Prospectus or any Integrated Prospectus, as of its date or as of the
Closing Date, contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; it being
understood that such counsel need express no belief with respect to the
financial statements, schedules and other financial data included or
incorporated by reference in the Registration Statement or the Prospectus
or any Integrated Prospectus.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials and, as to matters
involving the application of laws of any jurisdiction other than the State
of California, the State of New York, the Delaware General Corporation Law
and the Delaware Revised Limited Partnership Act or the United States of
America on opinions of local, to the extent satisfactory in form and scope
to counsel for the Underwriter.
References to the Registration Statement and the Prospectus and any
Integrated Prospectus in this Section 7(b) shall include any amendment or
supplement thereto at the date of such opinion.
(c) The Underwriter shall have received an opinion, dated the Closing
Date, of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, special Maryland counsel for
the Company and its subsidiaries, to the following effect:
(i) Each of the Company and the Services Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Maryland.
(ii) The Company has the requisite corporate power and corporate
authority to own or lease its properties and to conduct its business
as described in the Registration Statement and the Prospectus or any
Integrated Prospectus, to enter into this Agreement and to carry out
all terms and provisions thereof to be carried out by it.
(iii) The Services Company has the requisite corporate power and
corporate authority to own or lease its properties and conduct its
business as described in the Registration Statement and the Prospectus
or any Integrated Prospectus.
20
(iv) The authorized, issued and outstanding capital stock of
the Company is as set forth or incorporated by reference in the
Registration Statement and the Prospectus or any Integrated
Prospectus; all necessary and proper corporate action required under
the articles of incorporation and bylaws of the Company and the
Maryland General Corporation Law (the "MGCL") was taken in order to
duly authorize all outstanding shares of Common Stock (including the
Securities); all outstanding shares of Common Stock (including the
Securities, when issued and paid for by the Underwriter in accordance
with the terms of this Agreement) have been (or in the case of the
Securities will be) duly and validly issued and fully paid and non-
assessable, were not, to the best knowledge of such counsel, issued in
violation of or subject to, under the articles of incorporation or the
MGCL, any pre-emptive rights or other rights to subscribe for or
purchase any securities of the Company, and conform, in all material
respects, to the description thereof contained in the Registration
Statement and the Prospectus or any Integrated Prospectus; and to the
best knowledge of such counsel, no holders of outstanding shares of
capital stock of the Company are entitled, under the articles of
incorporation or bylaws of the Company or the MGCL, to any pre-emptive
or other rights to subscribe for any of the Securities.
(v) The issued shares of capital stock of the Services Company
have been duly authorized and validly issued, are fully paid and non-
assessable and are owned of record and, to the best knowledge of such
counsel, beneficially, as follows: (i) Xxxx X. Xxxxxx, Xx. is the
owner of 25 shares of the common stock of the Services Company, par
value one cent ($.0l) per share ("Services Company Common Stock");
(ii) Xxxx X. Xxxxxx, Xx. is the owner of 25 shares of Services Company
Common Stock; and (iii) the Operating Partnership is the owner of 950
shares of the preferred stock of the Services Company, par value one
cent ($.01) per share ("Services Company Preferred Stock") . The
shares of Services Company Preferred Stock owned by the Operating
Partnership are, to the best knowledge of such counsel, free and clear
of any perfected security interests or other liens, encumbrances and
equitable or other claims.
(vi) The execution and delivery by the Company of this
Agreement in its individual capacity and in its capacity as general
partner of the Operating Partnership has been duly authorized by all
necessary corporate action required under the articles of
incorporation and bylaws of the Company and the MGCL. This Agreement
has been duly executed and delivered by the Company in its individual
capacity and in its capacity as general partner of the Operating
Partnership.
(vii) The statements set forth in the Registration Statement and
the Prospectus or any Integrated Prospectus under the headings
"Description of Capital Stock" and "Certain Provisions of Maryland Law
and of the Articles of Incorporation and Bylaws," insofar as such
statements constitute matters of Maryland corporate law, summaries of
Maryland corporate legal matters, documents, proceedings or legal
conclusions under Maryland corporate law, have been reviewed by us and
are correct in all material respects and present fairly the
information contained therein.
(viii) The issuance, offering and sale of the Securities to the
Underwriter by the Company pursuant to this Agreement, the compliance
by the Company with the other provisions of this Agreement and the
consummation of the other transactions contemplated herein do not: (a)
require the consent, approval, authorization, registration or
qualification of or with any Maryland governmental authority; or (b)
conflict with, or result in a breach or violation of, any of the terms
and provisions of the articles of incorporation or the bylaws of the
Company or the Services Company or any provisions of Maryland law.
21
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials and, as to matters
involving the application of laws of any jurisdiction other than the State
of Maryland on opinions of local, to the extent satisfactory in form and
scope to counsel for the Underwriter.
References to the Registration Statement and the Prospectus and any
Integrated Prospectus in this Section 7(c) shall include any amendment or
supplement thereto at the date of such opinion.
(d) The Underwriter shall have received an opinion, dated the Closing
Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Underwriter, with respect to the issuance and sale of the Securities, the
Registration Statement and the Prospectus and any Integrated Prospectus,
and such other related matters as the Underwriter may reasonably 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
mailers.
(e) The Underwriter shall have received from Deloitte & Touche LLP a
letter or letters dated, respectively, the date hereof and the Closing
Date, in form and substance satisfactory to the Underwriter, to the
following effect:
(i) They are independent accountants with respect to the
Company and its consolidated subsidiaries and the Xxxxxx Group, the
Acquisition Properties, the Post IPO Acquisitions through June 30,
1997, the Acquired Properties and the Pending Acquisitions for the
year ended December 31, 1996 within the meaning of the Act, the
Exchange Act and the applicable rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements and
schedules and pro forma financial statements examined by them and
included in the Registration Statement, the Prospectus and any
Integrated Prospectus comply in form in all material respects with the
applicable accounting requirements of the Act, the Exchange Act and
the related published rules and regulations;
(iii) On the basis of a reading of the latest available interim
unaudited consolidated condensed financial statements of the Company,
the Acquisition Properties, the Post IPO Acquisitions through June 30,
1997, the Acquired Properties and the Pending Acquisitions for the
year ended December 31, 1996, carrying out certain specified
procedures (which do not constitute an examination made in accordance
with generally accepted auditing standards) that would not necessarily
reveal matters of significance with respect to the comments set forth
in this paragraph (iii), a reading of the minute books of the
stockholders, the board of directors and any committees thereof of the
Company and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters, nothing came to
their attention that caused them to believe that:
(A) at a specific date (not more than five business days
prior to the date of such letter), there were any increases in
debt or decreases in stockholders' equity of the Company or any
decreases in total assets of the Company, in each case as
compared with amounts shown in the September 30, 1997 combined
balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus, or for the period from
October 1, 1997 to December 31, 1997, there were any decreases,
as compared with the corresponding period of the previous year,
in rental income, total revenues or net income (as applicable) on
an equivalent property basis, except in all instances for
changes, increases or decreases which the Registration Statement
and the Prospectus disclose have occurred or may occur; and
22
(B) At a specific date (not more than five business days
prior to the date of such letter), with respect to the Company,
there were any increases in borrowings as compared with amounts
shown in the September 30, 1997 balance sheet included or
incorporated by reference in the Registration Statement, the
Prospectus and any Integrated Prospectus, except in all instances
for changes or increases which the Registration Statement and the
Prospectus disclose have occurred or may occur.
(iv) They have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages
and financial information identified by the Underwriter that are
derived from the general accounting records of the Company and its
consolidated subsidiaries and/or their respective predecessors and are
included in the Registration Statement, the Prospectus and any
Integrated Prospectus and have compared such amounts, percentages and
financial information with such records of the Company and its
consolidated subsidiaries and/or their respective predecessors and
with information derived from such records and have found them to be
in agreement, excluding any questions of legal interpretation; and
(v) On the basis of a reading of the unaudited pro forma
condensed consolidated financial statements included in the
Registration Statement, the Prospectus and any Integrated Prospectus,
carrying out certain specified procedures that would not necessarily
reveal matters of significance with respect to the comments set forth
in this paragraph (v), inquiries of certain officials of the Company
and its consolidated subsidiaries who have responsibility for
financial and accounting matters and proving the arithmetic accuracy
of the application of the pro forma adjustments to the historical
amounts in the unaudited pro forma condensed consolidated financial
statements, nothing came to their attention that caused them to
believe that the unaudited pro forma condensed consolidated financial
statements do not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X or
that the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriter that (A) such letters shall be accompanied
by a written explanation of the Company as to the significance thereof,
unless the Underwriter deems such explanation unnecessary, and (B) such
changes, decreases or increases do not, in the sole judgment of the
Underwriter, make it impractical or inadvisable to proceed with the
purchase and delivery of the Securities as contemplated by the Registration
Statement, as amended as of the date hereof.
References to the Registration Statement and the Prospectus and any
Integrated Prospectus in this Section 7(e) with respect to either letter
referred to above shall include any amendment or supplement thereto at the
date of such letter.
(f) the Underwriter shall have received a certificate, dated the
Closing Date, of the chief executive officer and the principal financial or
accounting officer of the Company to the effect that:
(i) the representations and warranties of the Company and the
Operating Partnership in this Agreement are true and correct as if
made on and as of the Closing Date; the Registration Statement, as
amended as of the Closing Date, does not include any untrue statement
of a material fact or omit to state any material fact necessary to
make the statements therein not misleading, and the Prospectus and any
Integrated Prospectus, as amended or supplemented as of the Closing
Date, does not include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and each of the Company
23
and the Operating Partnership has performed all covenants and
agreements and satisfied all 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 or any post-effective amendment thereto and no
order directed at any document incorporated by reference in the
Registration Statement or the Prospectus or any amendment or
supplement thereto has been issued, and no proceedings for that
purpose have been instituted or threatened or, to the best of the
Company's or the Operating Partnership's knowledge, are contemplated
by the Commission;
(iii) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus and the
Integrated Prospectus, neither the Company nor any of its subsidiaries
has sustained any material loss or interference with their respective
businesses or properties from fire, flood, hurricane, accident or
other calamity, regardless of whether covered by insurance, or from
any labor dispute or any legal or governmental proceeding, and there
has not been any material adverse change, or any development involving
a prospective material adverse change, in the condition (financial or
otherwise), management, business prospects, net worth or results of
operations of the Company and its subsidiaries, taken as a whole,
except in each case as described in or contemplated by the
Registration Statement and the Prospectus and any Integrated
Prospectus (exclusive of any amendment or supplement thereto); and
(iv) all filings required to have been made pursuant to Rule 424
or Rule 430A under the Act have been made.
(g) On or before the Closing Date, the Underwriter and counsel for the
Underwriter shall have received such further certificates, documents or
other information as they may have reasonably requested from the Company.
(h) Prior to the commencement of the offering of the Securities, the
Securities shall have been approved for listing on the New York Stock
Exchange, subject to official notice of issuance.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Underwriter and counsel
for the Underwriter. The Company shall furnish to the Underwriter such
conformed copies of such opinions, certificates, letters and documents in such
quantities as the Underwriter and counsel for the Underwriter shall reasonably
request.
8. Indemnification and Contribution.
--------------------------------
(a) Each of the Company and the Operating Partnership, jointly and
severally, agrees to indemnify and hold harmless the Underwriter and each
person, if any, who controls the Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which the Underwriter
or such controlling person may become subject under the Act, the Exchange
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement made by the Company or the
Operating Partnership in Section 2 of this Agreement, (ii) any untrue
statement or alleged untrue statement of any material fact contained in (A)
the Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus and any Integrated Prospectus or any amendment
or supplement thereto or (B) any application or other document, or any
amendment or supplement thereto, executed by the Company or based upon
written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Securities under the securities or
blue sky laws thereof or filed with the
24
Commission or any securities association or securities exchange (each an
"Application") or (iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus and any Integrated Prospectus or any amendment
or supplement thereto, or any Application a material fact required to be
stated therein or necessary to make the statements therein not misleading,.
In addition, each of the Company and the Operating Partnership, jointly and
severally, agrees to reimburse, as incurred, the Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by
the Underwriter or such controlling person in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action;
provided, however, that neither the Company nor the Operating Partnership
will 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 such
registration statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus and any Integrated Prospectus or any amendment
or supplement thereto or any Application in reliance upon and in conformity
with written information furnished to the Company by the Underwriter
specifically for use therein; and provided, further, that neither the
Company nor the Operating Partnership will be liable to the Underwriter or
any person controlling the Underwriter with respect to any such untrue
statement or omission made in any Preliminary Prospectus that is corrected
in the Prospectus (or any amendment or supplement thereto) if the person
asserting any such loss, claim, damage or liability purchased Securities
from the Underwriter but was not sent or given a copy of the Prospectus (as
amended or supplemented) at or prior to the written confirmation of the
sale of such Securities to such person in any case where such delivery of
the Prospectus (as amended or supplemented) is required by the Act, unless
such failure to deliver the Prospectus (as amended or supplemented) was a
result of noncompliance by the Company or the Operating Partnership with
Sections 5(d) and (e) of this Agreement. This indemnity agreement will be
in addition to any liability which the Company or the Operating Partnership
may otherwise have. Neither the Company nor the Operating Partnership will,
without the prior written consent of the Underwriter, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim,
action, suit or proceeding in respect of which indemnification may be
sought hereunder (regardless of whether the Underwriter or any person who
controls the Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of all of the Underwriter and such controlling
persons from all liability arising out of such claim, action, suit or
proceeding.
(b) The Underwriter will indemnify and hold harmless the Company, each
of its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act against
any losses, claims, damages or liabilities to which the Company or any such
director, officer or controlling person may become subject under the Act,
the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any Integrated Prospectus or any
amendment or supplement thereto, or any Application or (ii) the omission or
the alleged omission to state therein a material fact required to be stated
in the Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any Integrated Prospectus or any amendment or
supplement thereto, or any Application or necessary to make the statements
therein not misleading, in each case to the extent, but 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 furnished to the Company by the Underwriter specifically for
use therein; and, subject to the limitation set forth immediately preceding
this clause, will reimburse, as incurred, any legal or other expenses
reasonably incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending any such
loss, claim, damage, liability or any action in respect thereof. This
indemnity agreement will be in addition to any liability which the
25
Underwriter may otherwise have. The Underwriter shall not, without the
prior consent of the Company, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder
(regardless of whether the Company, any of its directors or officers who
signed the Registration Statement or any person who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act is a party to such claim, action, suit or proceeding), unless such
settlement, compromise or consent includes an unconditional release of the
Company, its officers and directors who signed the Registration Statement
and such controlling persons from all liability arising out of such claim,
action, suit or proceeding.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, 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 (i) any liability which it may have to any indemnified
party under this Section 8 except to the extent that the indemnifying party
has been prejudiced as a result thereof or (ii) any liability which it may
have to any indemnified party 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; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be one or
more legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the indemnifying
party, the indemnifying party shall not have the right to direct the
defense of such action on behalf of such indemnified party or parties and
such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified party shall
have employed separate counsel in accordance with the proviso to the next
preceding sentence (it being understood, however, that in connection with
such action the indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to local counsel) in any one
action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the Underwriter in the case of paragraph (a) of this Section
8, representing the indemnified parties under such paragraph (a) who are
parties to such action or actions) or (ii) the indemnifying party does not
promptly retain counsel satisfactory to the indemnified party or (iii) the
indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party. After such
notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the
consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 8 is unavailable or insufficient,
for any reason, to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (i) the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party on
the other from the offering of the Securities or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable law,
not only such relative benefits but also the relative fault of the
26
indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and
the Operating Partnership on the one hand and the Underwriter on the other
shall be deemed to be in the same proportion as the total proceeds from the
offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriter.
The relative fault of the parties shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriter, the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances. The Company and the
Operating Partnership and the Underwriter 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 Underwriter were treated as one entity
for such purpose) or by any other method of allocation that does not take
into account the equitable considerations referred to above in this
paragraph (d). Notwithstanding any other provision of this paragraph (d),
no Underwriter shall be obligated to make contributions hereunder that in
the aggregate exceed the total public offering price of the Securities
purchased by the Underwriter under this Agreement, less the aggregate
amount of any damages that the Underwriter has otherwise been required to
pay in respect of the same or any substantially similar claim, and no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of
this paragraph (d), each person, if any, who controls the Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act shall have the same rights to contribution as the Underwriter, and the
Company and the Operating Partnership shall be deemed one party and jointly
and severally liable for any obligations to contribute hereunder and each
director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, shall have the same rights to contribution as the Company and the
Operating Partnership.
9. Survival. The respective representations, warranties, agreements,
--------
covenants, indemnities and other statements of the Company, its officers, the
Operating Partnership and the Underwriter 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 (i) any investigation made by or on behalf
of the Company, any of its officers or directors, the Operating Partnership, the
Underwriter or any controlling person referred to in Section 8 hereof and (ii)
delivery of and payment for the Securities. The respective agreements,
covenants, indemnities and other statements set forth in Sections 6 and 8 hereof
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement.
10. Termination. This Agreement may be terminated with respect to the
-----------
Securities in the sole discretion of the Underwriter by notice to the Company
given prior to the Closing Date, in the event that the Company or the Operating
Partnership shall have failed, refused or been unable to perform all obligations
and satisfy all conditions on its part to be performed or satisfied hereunder at
or prior thereto or, if at or prior to the Closing Date, respectively,
(a) the Company or any of its subsidiaries shall have, in the sole
judgment of the Underwriter, sustained any material loss or interference
with its businesses or properties from fire, flood, hurricane, accident or
other calamity, regardless of whether covered by insurance, or from any
labor dispute or any legal or governmental proceeding or there shall have
been any material adverse change, or any development involving a
prospective material adverse change (including without limitation a change
in management or control of the Company), in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Company and its subsidiaries,
27
taken as a whole, except in each case as described in or contemplated by
the Registration Statement and the Prospectus (exclusive of any amendment
or supplement thereto);
(i) trading in the Common Stock shall have been suspended by
the Commission or the New York Stock Exchange;
(ii) trading in securities generally on the New York Stock
Exchange shall have been suspended or minimum or maximum prices shall
have been established on any such exchange;
(iii) a banking moratorium shall have been declared by
authorities of New York, California, Maryland, or the United States of
America; or
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States of America and any foreign
power, (B) an outbreak or escalation of any other insurrection or
armed conflict involving the United States of America or (C) any other
calamity or crisis or material adverse change in general economic,
political or financial conditions having an effect on the U.S.
financial markets that, in the judgment of the Underwriter, makes it
impractical or inadvisable to (x) commence or continue the offering of
the units of the Trust to the public, or (y) enforce contracts for the
sale of the units of the Trust.
(b) Termination of this Agreement pursuant to this Section 10 shall be
without liability of any party to any other party except as provided in
Section(s) 6 and 9 hereof.
11. Information Supplied by the Underwriter. The statements set forth in
---------------------------------------
the last two paragraphs on the front cover page, and, under the heading
"Underwriting," the information contained in the third paragraph, in any
Preliminary Prospectus, the Prospectus or any Integrated Prospectus (to the
extent such statements relate to the Underwriter) constitute the only
information furnished by the Underwriter to the Company for the purposes of
Sections 2(b) and 8 hereof. The Underwriter confirms that such statements (to
such extent) are correct.
12. Notices. All communications hereunder shall be in writing and, if
-------
sent to the Underwriter, shall be delivered or sent by mail, telex or facsimile
transmission and confirmed in writing to Prudential Securities Incorporated, Xxx
Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Transactions Group;
and if sent to the Company, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to the Company at 0000 Xxxx
Xxxxxxxx Xxxxxxx, Xx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Chief Executive
Officer.
13. Successors. This Agreement shall inure to the benefit of and shall
----------
be binding upon Underwriter, the Company, the Operating Partnership and their
respective successors and legal representatives, and 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, or any provisions herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company and the Operating Partnership contained in
Section 8 of 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 Act
or Section 20 of the Exchange Act and (ii) the indemnities of the Underwriter
contained in Section 8 of this Agreement shall also be for the benefit of the
directors of the Company, the 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 Act or Section 20 of the Exchange Act. No
purchaser of Securities from any Underwriter shall be deemed a successor because
of such purchase.
28
14. Applicable Law. The validity and interpretation of this Agreement,
--------------
and the terms and conditions set forth herein, shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any provisions relating to conflicts of laws (other than Section 5-
1401 of the New York General Obligations Law).
15. Consent to Jurisdiction and Service of Process. All judicial
----------------------------------------------
proceedings arising out of or relating to this Agreement may be brought in any
state or federal court of competent jurisdiction in the State of New York, and
by execution and delivery of this Agreement, each of the Company and the
Operating Partnership accepts for itself and in connection with its properties,
generally and unconditionally, the nonexclusive jurisdiction of the aforesaid
courts and waives any defense of forum non conveniens and irrevocably agrees to
be bound by any judgment rendered thereby in connection with this Agreement.
Each of the Company and the Operating Partnership designates and appoints
Corporation Service Company, and such other persons as may hereafter be selected
by each of the Company and the Operating Partnership irrevocably agreeing in
writing to so serve, as its agent to receive on its behalf service of all
process in any such proceedings in any such court, such service being hereby
acknowledged by each of the Company and the Operating Partnership to be
effective and binding service in every respect. A copy of any such process so
served shall be mailed by registered mail to each of the Company and the
Operating Partnership at its address provided in Section 12 hereof; provided,
however, that, unless otherwise provided by applicable law, any failure to mail
such copy shall not affect the validity of service of such process. If any
agent appointed by the Company or the Operating Partnership refuses to accept
service, each of the Company and the Operating Partnership hereby agrees that
service of process sufficient for personal jurisdiction in any action against
the Company or the Operating Partnership in the State of New York may be made by
registered or certified mail, return receipt requested, to the Company or the
Operating Partnership at its address provided in Section 12 hereof, and each of
the Company and the Operating Partnership hereby acknowledges that such service
shall be effective and binding in every respect. Nothing herein shall affect
the right to serve process in any other manner permitted by law or shall limit
the right of the Underwriter to bring proceedings against each of the Company
and the Operating Partnership in the courts of any other jurisdiction.
16. Counterparts. 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.
[Signature Page Follows]
29
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter shall constitute an agreement binding the Company, the Operating
Partnership and the Underwriter.
Very truly yours,
XXXXXX REALTY CORPORATION
By: /s/ Xxxxx X. Xxxx
------------------------------
Xxxxx X. Xxxx
Senior Vice President and
Treasurer
XXXXXX REALTY, L.P.
By: XXXXXX REALTY CORPORATION,
its General Partner
By: /s/ Xxxxx X. Xxxx
------------------------------
Xxxxx X. Xxxx
Senior Vice President and
Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxxx-Xxxxxx Canfin
-----------------------------
Xxxx-Xxxxxx Canfin
Managing Director
