EXHIBIT 1.1
1,052,650 SHARES
THE MACERICH COMPANY
COMMON STOCK
UNDERWRITING AGREEMENT
February 12, 1998
XXXXXXX XXXXX XXXXXX
XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The Macerich Company (the "Company"), proposes to issue and sell an aggregate of
1,052,650 shares (the "Shares") of its common stock, par value $.01 per share
(the "Common Stock"), to Xxxxx Xxxxxx Inc. (the "Underwriter").
As used herein, the term "Properties" refers to the properties listed on
Schedule I hereto which represent, as of the date hereof, all the real property
in which the Company, either directly or through its Subsidiaries (as defined
herein) or through ownership of interests in any Joint Venture (as defined
herein), owns an interest.
The Company wishes to confirm as follows its agreement with the Underwriter in
connection with the purchase of the Shares by the Underwriter.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared and filed
with the Securities and Exchange Commission (the "Commission") in conformity in
all material respects with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations (the "Rules and Regulations") of the
Commission thereunder (collectively, the "Act"), a registration statement on
Form S-3 (Registration No. 333-21157) under the Act (the "registration
statement"), including a prospectus relating to the Shares; and an amendment
thereto has been filed with the Commission, and such amendment has been
similarly prepared. Such registration statement and such amendment have become
effective under the Act. The Company also has filed, or proposes to file, with
the Commission pursuant to Rule 424(b) under the Act, a prospectus supplement
relating to the offering of the Shares pursuant to Rule 415 of the Act.
The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits), as
amended at the time it became effective, as
supplemented or amended prior to the execution of this Agreement. The term
"Prospectus" as used in this Agreement means the prospectus in the form first
used to confirm sales of Shares (the "Base Prospectus") together with the
prospectus supplement relating to the offering of the Shares under Rule 415 of
the Act dated the date hereof in the form first filed with the Commission on or
after the date hereof (the "Prospectus Supplement"). The term "Prepricing
Prospectus Supplement" as used in this Agreement means the Base Prospectus
together with any prospectus supplement subject to completion included in the
registration statement as filed with the Commission pursuant to Rule 424(b)
under the Act; and as such prospectus shall have been amended from time to time
prior to the date of the Prospectus. Any reference in this Agreement to the
registration statement, the Registration Statement, the Base Prospectus, any
Prepricing Prospectus Supplement or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Act, as of the date of the registration statement, the
Registration Statement, such Prepricing Prospectus Supplement or the Prospectus,
as the case may be, and any reference to any amendment or supplement to the
registration statement, the Registration Statement, any Prepricing Prospectus
Supplement or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") which, upon filing, are incorporated by reference
therein, as required by paragraph (b) of Item 12 of Form S-3. As used herein,
the term "Incorporated Documents" means the documents which at the time are
incorporated by reference in the registration statement, the Registration
Statement, any Prepricing Prospectus Supplement, the Prospectus, or any
amendment or supplement thereto.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees, subject to all
the terms and conditions set forth herein, to issue and sell to the Underwriter
and, upon the basis of the representations, warranties and agreements of the
Company herein contained and subject to all the terms and conditions set forth
herein, the Underwriter agrees to purchase from the Company, at a purchase price
of $26.71875 per Share (the "purchase price per share"), the Shares. The
Company shall not be obligated to deliver any of the Shares except upon payment
for all the Shares to be purchased on the Closing Date as provided herein.
3. TERMS OF PUBLIC OFFERING.
The Company understands that the Underwriter intends to deposit the Shares with
the trustee of the Equity Focus Trusts - REIT Portfolio Service 1998-A (the
"Trust"), a registered unit investment trust under the Investment Company Act of
1940, as amended, in exchange for units in the Trust. The Underwriter is acting
as sponsor and depositor of the Trust and is therefore considered an affiliate
of the Trust.
4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery to the Underwriter
of and payment for the Shares shall be made at the office of Xxxxx Xxxxxx Inc.,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M., New York City time, on
February 18, 1998
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(the "Closing Date"). The place of closing for the Shares and the Closing Date
may be varied by agreement between you and the Company.
The parties acknowledge and agree that the Shares shall be maintained in
book-entry-only form. The Shares to be purchased hereunder shall be registered
in such names and in such denominations as you shall request prior to 1:00 P.M.,
New York City time, on the second business day preceding the Closing Date. The
Shares to be purchased hereunder shall be delivered to you on the Closing Date
against payment of the purchase price therefor in immediately available funds.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the Underwriter as
follows:
(a) The Company will (i) prepare a Prospectus Supplement setting forth the
number of Shares covered thereby and their terms not otherwise specified in the
Prospectus pursuant to which the Shares are being issued, the name of the
Underwriter and the number of Shares which the Underwriter has agreed to
purchase, the price at which the Shares are to be purchased by the Underwriter
from the Company and such other information as the Underwriter and the Company
deem appropriate in connection with the offering of the Shares and file the
Prospectus in a form approved by you pursuant to Rule 424(b) under the Act no
later than the Commission's close of business on the second business day
following the date of the determination of the offering price of the Shares;
(ii) prior to the Closing Date, not file any amendment to the Registration
Statement or supplement to the Prospectus of which you shall not have been
previously advised and furnished with a copy or to which you shall have
reasonably objected in writing or which is not in compliance with the Rules and
Regulations; and (iii) prior to the Closing Date, promptly notify you after it
shall have received notice thereof of the time when any amendment to the
Registration Statement becomes effective or when any supplement to Prospectus
has been filed.
(b) The Company will advise you promptly and, if requested by you, will confirm
such advice in writing: (i) of any request by the Commission for amendment of or
a supplement to the Registration Statement, any Prepricing Prospectus Supplement
or the Prospectus or for additional information; (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of the suspension of qualification of the Shares for offering or
sale in any jurisdiction or the initiation of any proceeding for such purpose;
and (iii) within the period of time referred to in the first sentence of
paragraph (f) below, of any change in the Company's condition (financial or
other), business, prospects, properties, net worth or results of operations, or
of the happening of any event, which makes any statement of a material fact made
in the Registration Statement or the Prospectus (as then amended or
supplemented) untrue or which requires the making of any additions to or changes
in the Registration Statement or the Prospectus (as then amended or
supplemented) in order to state a material fact required by the Act to be stated
therein or necessary in order to make the statements therein not misleading, or
of the necessity to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Act or any other law.
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If at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible time.
(c) The Company will furnish to you upon your request, without charge (i) two
signed copies of the registration statement as originally filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits to the registration statement, (ii) such number of conformed copies of
the registration statement as originally filed and of each amendment thereto,
but without exhibits, as you may reasonably request, (iii) such number of copies
of the Incorporated Documents, without exhibits, as you may reasonably request,
and (iv) two copies of the exhibits to the Incorporated Documents.
(d) Prior to the Closing Date, the Company will not file any amendment to the
Registration Statement or make any amendment or supplement to the Prospectus of
which you shall not previously have been advised or to which, after you shall
have received a copy of the document proposed to be filed, you shall reasonably
object.
(e) The Company will use its best efforts to meet the requirements to qualify
as a real estate investment trust (a "REIT") under the Internal Revenue Code of
1986, as amended (the "Code") unless the Company's Board of Directors determines
by resolution that it is in the best interests of the Company's stockholders not
to so qualify.
(f) As soon after the execution and delivery of this Agreement as possible and
thereafter from time to time for such period as in the opinion of counsel for
the Underwriter a prospectus is required by the Act to be delivered in
connection with sales by the Underwriter or any dealer, the Company will
expeditiously deliver to the Underwriter and each dealer, without charge, as
many copies of the Prospectus (and of any amendment or supplement thereto) as
you may reasonably request. The Company consents to the use of the Prospectus
(and of any amendment or supplement thereto) in accordance with the provisions
of the Act and with the securities or Blue Sky laws of the jurisdictions in the
United States in which the Shares are offered by the Underwriter and by all
dealers to whom Shares may be sold, both in connection with the offering and
sale of the Shares and for such period of time thereafter as the Prospectus is
required by the Act to be delivered in connection with sales by any Underwriter
or dealer. If during such period of time any event shall occur that in the
judgment of the Company or in the reasonable opinion of counsel for the
Underwriter is required to be set forth in the Prospectus (as then amended or
supplemented) or should be set forth therein in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary to supplement or amend the Prospectus (or to
file under the Exchange Act any document which, upon filing, becomes an
Incorporated Document) in order to comply with the Act or any other law, the
Company will forthwith prepare and, subject to the provisions of paragraph (d)
above, file with the Commission an appropriate supplement or amendment thereto
(or to such document), and will expeditiously furnish to the Underwriter and any
dealers a reasonable number of copies
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thereof. In the event that the Company and you agree that the Prospectus should
be amended or supplemented, the Company, if requested by you, will promptly
issue a press release announcing or disclosing the matters to be covered by the
proposed amendment or supplement.
(g) The Company will cooperate with you and your counsel in connection with the
registration or qualification of the Shares for offering and sale by the
Underwriter and by any dealers under the securities or Blue Sky laws of such
jurisdictions in the United States as you may designate and will file such
consents to service of process or other documents necessary or appropriate in
order to effect such registration or qualification; provided that in no event
shall the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would subject it to
service of process in suits, other than those arising out of the offering or
sale of the Shares, in any jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security holders a
consolidated earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(i) During the period of three years hereafter, the Company will furnish to you
as soon as available, a copy of each report of the Company mailed to
stockholders or filed with the Commission.
(j) If this Agreement shall terminate or shall be terminated after execution
pursuant to any provisions hereof (otherwise than by notice given by you
terminating this Agreement pursuant to Section 10 or Section 11 hereof, or by
reason of your default) or if this Agreement shall be terminated by the
Underwriter because of any failure or refusal on the part of the Company to
comply with the terms or fulfill any of the conditions of this Agreement, the
Company agrees to reimburse you for all out-of-pocket expenses (including fees
and expenses of your counsel) incurred by you in connection herewith, but the
Company shall not in any event be liable to the Underwriter for damages on
account of loss of anticipated profits from the sale by it of the Shares.
(k) The Company will apply the net proceeds from the sale of the Shares
substantially in accordance with the description set forth in the Prospectus
Supplement.
(l) Except as stated in this Agreement and in the Prospectus, the Company has
not taken, nor will it take, directly or indirectly, any action designed to or
that might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the sale or resale
of the Shares.
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(m) The Company will use its best efforts to have the shares of Common Stock
which it agrees to sell under this Agreement listed, subject to notice of
issuance, on the New York Stock Exchange on or before the Closing Date.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to the Underwriter that:
(a) The Company and the transactions contemplated by this Agreement meet the
requirements for using Form S-3 under the Act. The registration statement in
the form in which it became or becomes effective and also in such form as it may
be when any post-effective amendment thereto shall become effective and the
Prospectus and any supplement or amendment thereto when filed with the
Commission under Rule 424(b) under the Act, complied or will comply in all
material respects with the provisions of the Act and will not at any such times
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except that this representation and warranty does not apply to
statements in or omissions from the registration statement or the prospectus
made in reliance upon and in conformity with information relating to the
Underwriter furnished to the Company in writing by or on behalf of the
Underwriter through you expressly for use therein.
(b) The Incorporated Documents heretofore filed, when they were filed (or, if
any amendment with respect to any such document was filed, when such amendment
was filed), conformed in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder, any further Incorporated
Documents so filed will, when they are filed, conform in all material respects
with the requirements of the Exchange Act and the rules and regulations
thereunder; no such document when it was filed (or, if an amendment with respect
to any such document was filed, when such amendment was filed), contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading; and no
such further document, when it is filed, will contain an untrue statement of a
material fact or will omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(c) All the outstanding shares of Common Stock of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and are free of
any preemptive or similar rights; the Shares have been duly authorized and, when
issued and delivered to the Underwriter against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid and nonassessable and
free of any preemptive or similar rights; and the capital stock of the Company
conforms to the description thereof in the Registration Statement and the
Prospectus.
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(d) The Company is a corporation duly organized and validly existing in good
standing under the laws of the State of Maryland with corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement and the Prospectus, and is duly
registered and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the failure
so to register or qualify does not have a material adverse effect on the
condition (financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries (as hereinafter defined) taken as
a whole.
(e) All the Company's subsidiaries (collectively, the "Subsidiaries") are
listed on Schedule II hereto. Each Subsidiary is a corporation, general
partnership, limited partnership, or limited liability company, as the case may
be, duly organized, validly existing and in good standing in the jurisdiction of
its incorporation or organization, with full corporate, partnership or limited
liability company power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement and the
Prospectus, and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify does not, in
the aggregate, have a material adverse effect on the condition (financial or
other), business, properties, net worth or results of operations of the Company
and the Subsidiaries, taken as a whole; except as set forth on Schedule II, all
the outstanding shares of capital stock of each of the Subsidiaries have been
duly authorized and validly issued, are fully paid and nonassessable. All of
the interests owned or held by the Company, directly or indirectly, in each of
the Subsidiaries are free and clear of any lien, adverse claim, security
interest, equity or other encumbrance, except for such as would not have a
material adverse effect on the condition (financial or other), business
properties, net worth or results of operations of the Company and the
Subsidiaries, taken as a whole.
(f) All of the joint ventures in which the Company or any Subsidiary owns any
interest (the "Joint Ventures") are listed on Schedule II hereto. The Company's
(or Subsidiary's, as the case may be) ownership interest in such Joint Venture
is as set forth on Schedule II. To the knowledge of the Company, each of the
Joint Ventures possesses such certificates, authorizations or permits issued by
the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the business now being conducted by it, as described or
incorporated by reference in the Prospectus, and none of the Joint Ventures has
received notice of any proceedings relating to the revocation or modification of
any such certificate, authority or permit which singly or in the aggregate, if
the subject of unfavorable ruling or decision, would have a material adverse
effect on the condition, financial or otherwise, or on the earnings, assets,
business affairs or business prospects of the Company and the Subsidiaries,
taken as a whole; and, to the knowledge of the Company, each of the Joint
Ventures has good and marketable fee simple title to all of its real property
and marketable title to any improvements thereon and all other assets that are
used in the operation of the
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Joint Venture's business, except where the failure to have such title would not
have a material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and the
Subsidiaries, taken as a whole.
(g) There are no legal or governmental proceedings pending or, to the knowledge
of the Company, threatened, against the Company or any of the Subsidiaries, or
to which the Company or any of the Subsidiaries, or to which any of their
respective properties is subject, that are required to be described in the
Registration Statement or the Prospectus but are not described as required, and
there are no agreements, contracts, indentures, leases or other instruments that
are required to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement or any Incorporated
Document that are not described or filed as required by the Act or the Exchange
Act.
(h) Neither the Company nor any of the Subsidiaries is in violation of its
certificate or articles of incorporation or by-laws, or other organizational
documents, or, of any law, ordinance, administrative or governmental rule or
regulation applicable to the Company or any of the Subsidiaries or of any decree
of any court or governmental agency or body having jurisdiction over the Company
or any of the Subsidiaries, or in default in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any material agreement, indenture, lease or other
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound, except
where such violation or default does not have a material adverse effect on the
condition (financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries, taken as a whole.
(i) Neither the issuance and sale of the Shares, the execution, delivery or
performance of this Agreement by the Company nor the consummation by the Company
of the transactions contemplated hereby (i) requires any consent, approval,
authorization or other order of or registration or filing with, any court,
regulatory body, administrative agency or other governmental body, agency or
official (except such as may be required for the registration of the Shares
under the Act and the Exchange Act and compliance with the securities or Blue
Sky laws of various jurisdictions, all of which have been or will be effected in
accordance with this Agreement) or conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the certificate
or articles of incorporation or bylaws, or other organizational documents, of
the Company or any of the Subsidiaries or (ii) conflicts or will conflict with
or constitutes or will constitute a breach of, or a default under, any
agreement, indenture, lease or other instrument to which the Company or any of
the Subsidiaries is a party or by which any of them or any of their respective
properties may be bound, or violates or will violate any statute, law,
regulation or filing or judgment, injunction, order or decree applicable to the
Company or any of the Subsidiaries or any of their respective properties, or
will result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of the Subsidiaries pursuant
to the terms
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of any agreement or instrument to which any of them is a party or by which any
of them may be bound or to which any of the property or assets of any of them is
subject.
(j) Coopers & Xxxxxxx L.L.P., KPMG Marwick LLP and Ernst & Young LLP, the
accounting firms which have certified or shall certify the financial statements
included or incorporated by reference in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) are independent public
accounting firms within the meaning of the Act and the Rules and Regulations.
(k) The financial statements, together with related schedules and notes,
included or incorporated by reference in the Registration Statement and the
Prospectus (and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in financial
position of the Company and the Subsidiaries on the basis stated in the
Registration Statement at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data included
or incorporated by reference in the Registration Statement and the Prospectus
(and any amendment or supplement thereto) are fairly presented and prepared on a
basis consistent with such financial statements and the books and records of the
Company and the Subsidiaries.
(l) The execution and delivery of, and the performance by the Company of its
obligations under, this Agreement have been duly and validly authorized by the
Company, and this Agreement has been duly executed and delivered by the Company
and constitutes the valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnity and contribution hereunder may be limited by federal or state
securities laws.
(m) Except as disclosed in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), subsequent to the respective dates as of
which such information is given in the Registration Statement and the Prospectus
(or any amendment or supplement thereto), neither the Company nor any of the
Subsidiaries has incurred any liability or obligation, direct or contingent, or
entered into any transaction, not in the ordinary course of business, that is
material to the Company and the Subsidiaries taken as a whole, and there has not
been any change in the capital stock, or material increase in the short-term
debt or long-term debt, of the Company or any of the Subsidiaries other than as
a result of borrowings made by the Company under its credit facility in the
ordinary course of business, or any material adverse change, or any development
involving or which may reasonably be expected to involve, a prospective material
adverse change, in the condition (financial or other), business, net worth or
results of operations of the Company and the Subsidiaries taken as a whole.
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(n) (i) The Company has good and marketable title to all of the properties
(including the Properties listed as wholly owned by the Company or its
affiliates on Schedule I hereto) and assets reflected in the financial
statements (or as described in or incorporated by reference into the
Registration Statement or Prospectus) hereinabove described, subject to no lien,
mortgage, pledge, charge or encumbrance of any kind except those reflected in
such financial statements (or as described in or incorporated by reference into
the Registration Statement or Prospectus) or which are not material in amount;
(ii) the Company occupies its leased properties under valid and binding leases
conforming, to the extent such leases are described therein, to the description
thereof set forth in or incorporated by reference into the Registration
Statement or Prospectus; (iii) no tenant of any of the Properties is in default
under any of the leases pursuant to which any property is leased (and the
Company does not know of any event which, but for the passage of time or the
giving of notice, or both, would constitute a default under any of such leases)
other than such defaults that would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, assets, business affairs
or business prospects of the Company and the Subsidiaries taken as a whole; (iv)
no person has an option to purchase all or part of any Property or any interest
therein other than (x) rights with respect to certain Properties owned by the
Joint Ventures in favor of the partners to such Joint Ventures pursuant to the
agreements governing the Joint Ventures or (y) options which, if exercised,
would not have a material adverse effect on the Company and the Subsidiaries,
taken as a whole; (v) each of the Properties complies with all applicable codes,
laws and regulations (including, without limitation, building and zoning codes,
laws and regulations and laws relating to access to the properties) and with all
agreements between the Company and third parties relating to the ownership or
use of any Property by the Company, except if and to the extent disclosed in the
Registration Statement or the Prospectus and except for such failures to comply
that would not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, assets, business affairs or business prospects of
the Company and the Subsidiaries taken as a whole; (vi) there is in effect for
the assets of the Company and the Properties insurance coverages that are
commercially reasonable and that are consistent with the types and amounts of
insurance typically maintained by prudent owners of similar assets, and the
Company has not received from any insurance company notice of any material
defects or deficiencies affecting the insurability of any such assets; and (vii)
the Company does not have any knowledge of any pending or threatened
condemnation proceedings, zoning change, or other similar proceeding or action
that will in any material respect affect the size of, use of, improvements on,
construction on or access to the Properties, except for such proceedings or
actions that would not have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of operations
of the Company and the Subsidiaries, taken as a whole.
(o) The Company has title policies in effect or binding commitments from title
insurance companies for the issuance of title insurance on each of the
Properties, except where the failure to have such title insurance would not have
a material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and the
Subsidiaries, as a whole.
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(p) The Company has not distributed and, prior to the later to occur of (i) the
Closing Date and (ii) completion of the distribution of the Shares, will not
distribute any offering material in connection with the offering and sale of the
Shares other than the Registration Statement, the Prepricing Prospectus, the
Prospectus or other materials, if any, permitted by the Act.
(q) The Company and each of the Subsidiaries has such permits, licenses,
franchises and authorizations of governmental or regulatory authorities
("permits") and agreements with third parties relating to ownership or use of
any Property by the Company as are necessary to own its respective properties
and to conduct its business in the manner described in the Prospectus, subject
to such qualifications as may be set forth in the Prospectus and except where
the omission to have such permits and agreements would not have a material
adverse effect on the condition (financial or other), business, properties, net
worth or results of operations of the Company and the Subsidiaries, taken as a
whole; the Company and each of the Subsidiaries has fulfilled and performed all
its material obligations with respect to such permits and agreements and no
event has occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material impairment of
the rights of the holder of any such permit or agreement, subject in each case
to such qualification as may be set forth in the Prospectus; and, except as
described in the Prospectus, none of such permits or agreements contains any
restriction that would have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of operations
of the Company and the Subsidiaries, taken as a whole.
(r) The Company maintains a system of internal accounting controls sufficient
to provide reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (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 existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(s) To the Company's knowledge, neither the Company nor any of its Subsidiaries
nor any employee or agent of the Company or any Subsidiary has made any payment
of funds of the Company or any Subsidiary or received or retained any funds in
violation of any law, rule or regulation, which payment, receipt or retention of
funds is of a character required to be disclosed in the Prospectus.
(t) The Company and each of the Subsidiaries have filed all federal, state and
foreign tax returns required to be filed, which returns are complete and
correct, and neither the Company nor any Subsidiary is in default in the payment
of any taxes which were payable pursuant to said returns or any assessments with
respect thereto, except where such failure to file or default in payment would
not have a material adverse effect on the condition (financial
11
or other), business, properties, net worth or results of operations of the
Company and the Subsidiaries, taken as a whole.
(u) No holder of any security of the Company has any right to require
registration of shares of Common Stock or any other security of the Company
because of the filing of the registration statement or consummation of the
transactions contemplated by this Agreement.
(v) The Company and the Subsidiaries own or possess in the United States all
patents, trademarks, trademark registrations, service marks, service xxxx
registrations, trade names, copyrights, licenses, inventions, trade secrets and
rights described in the Prospectus as being owned by them or any of them or
necessary for the conduct of their respective businesses and the Company is not
aware of any claim to the contrary or any challenge by any other person in the
United States or in any foreign jurisdiction to the rights of the Company and
the Subsidiaries with respect to the foregoing which claim or challenge, if
determined adversely to the Company, would have a material adverse effect on the
condition (financial or otherwise), business, properties, net worth or results
of operations of the Company and the Subsidiaries, taken as a whole.
(w) Except as otherwise disclosed in the Prospectus, the Company has not
authorized or conducted and does not have knowledge of the generation,
transportation, storage, presence, use, treatment, disposal, release, or other
handling of any hazardous substance, hazardous waste, hazardous material,
hazardous constituent, toxic substance, pollutant, contaminant, asbestos, radon,
polychlorinated biphenyls ("PCBs"), petroleum product or waste (including crude
oil or any fraction thereof), natural gas, liquefied gas, synthetic gas or other
material defined, regulated, controlled or potentially subject to any
remediation requirement under any environmental law (collectively, "Hazardous
Materials"), on, in, under or affecting any real property currently leased or
owned or by any means controlled by the Company, including the Properties (the
"Real Property"), except where such non-compliance would not have a material
adverse effect on the condition (financial or other), business, properties, net
worth or results of operations of the Company and the Subsidiaries, taken as a
whole; to the knowledge of the Company, the Real Property and the Company's
operations with respect to the Real Property are in compliance with all federal,
state and local laws, ordinances, rules, regulations and other governmental
requirements relating to pollution, control of chemicals, management of waste,
discharges of materials into the environment, health, safety, natural resources,
and the environment (collectively, "Environmental Laws"), except where such
non-compliance would not have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of operations
of the Company and the Subsidiaries, taken as a whole, and the Company has, and
is in compliance with, all licenses, permits, registrations and government
authorizations necessary to operate under all applicable Environmental Laws,
except where the failure to have or comply with such license, permit,
registration or authorization would not have a material adverse effect on the
condition (financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries, taken as a whole. Except as
otherwise disclosed in the Prospectus, the
12
Company has not received any written notice from any governmental entity and to
the knowledge of the Company there is no pending or threatened claim, litigation
or any administrative agency proceeding that: alleges a violation of any
Environmental Laws by the Company; alleges that the Company is a liable party or
a potentially responsible party under the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601, ET SEQ., or any state
superfund law; has resulted in or could result in the attachment of an
environmental lien on any of the Real Property; or alleges that the Company is
liable for any contamination of the environment, contamination of the Real
Property, damage to natural resources, property damage, or personal injury based
on their activities or the activities of their predecessors or third parties
(whether at the Real Property or elsewhere) involving Hazardous Materials, and
arising under the Environmental Laws or common law principles, except for such
claims, litigation or proceedings as would not be expected to have a material
adverse effect on the condition (financial or other), business, properties net
worth or results of the Company and the Subsidiaries, taken as a whole.
(x) The Company is organized in conformity with the requirements for
qualification as a real estate investment trust under the Code, and the
Company's method of operation enables it to meet the requirements for taxation
as a real estate investment trust under the Code.
(y) None of the Company nor any Subsidiary is or will become as a result of the
transactions contemplated hereby, "an investment company," or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
(z) The statements set forth in the Prospectus under the caption "Certain
Federal Income Tax Considerations" and "Certain Federal Income Tax
Considerations to Holders of Common Stock", insofar as they purport to describe
the provisions of the laws and documents referred to therein, are accurate and
complete.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each of you 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 from and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prepricing Prospectus or in
the Registration Statement or the Prospectus or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity with the
information relating to the Underwriter furnished in writing to the
13
Company by or on behalf of the Underwriter through you expressly for use in
connection therewith; provided, however, that the indemnification contained in
this paragraph (a) with respect to any Prepricing Prospectus shall not inure to
the benefit of the Underwriter (or to the benefit of any person controlling the
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Shares by the Underwriter to any person if a copy
of the Prospectus shall not have been delivered or sent to such person within
the time required by the Act and the regulations thereunder, and the untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in such Prepricing Prospectus was corrected in the
Prospectus, provided that the Company has delivered the Prospectus to the
Underwriter in requisite quantity on a timely basis to permit such delivery or
sending. The foregoing indemnity agreement shall be in addition to any
liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against the Underwriter
or any person controlling the Underwriter in respect of which indemnity may be
sought against the Company, the Underwriter or such controlling person shall
promptly notify the Company and the Company shall assume the defense thereof,
including the employment of counsel and payment of all fees and expenses. The
Underwriter or any such controlling person shall have the right to employ
separate counsel in any such action, suit or proceeding and to participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of the Underwriter or such controlling person unless (i) the Company has
agreed in writing to pay such fees and expenses, (ii) the Company has failed to
assume the defense and employ counsel, or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties) include both the
Underwriter or such controlling person and the Company and the Underwriter or
such controlling person shall have been advised by its counsel that
representation of such indemnified party and the Company by the same counsel
would be inappropriate under applicable standards of professional conduct
(whether or not such representation by the same counsel has been proposed) due
to actual or potential differing interests between them (in which case the
Company shall not have the right to assume the defense of such action, suit or
proceeding on behalf of the Underwriter or such controlling person). It is
understood, however, that the Company shall, in connection with any one such
action, suit or proceeding or separate but substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for the Underwriter and controlling persons not having
actual or potential differing interests with you or among themselves, which firm
shall be designated in writing by Xxxxx Xxxxxx Inc., and that all such fees and
expenses shall be reimbursed as they are incurred. The Company shall not be
liable for any settlement of any such action, suit or proceeding effected
without its written consent, but if settled with such written consent, or if
there be a final judgment for the plaintiff in any such action, suit or
proceeding, the Company agrees to indemnify and hold harmless the Underwriter,
to the extent provided in the preceding paragraph, and any such controlling
14
person from and against any loss, claim, damage, liability or expense by reason
of such settlement or judgment.
(c) The Underwriter agrees to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement, and any person who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, to the same extent as the foregoing indemnity from the
Company to the Underwriter, but only with respect to information relating to the
Underwriter furnished in writing by or on behalf of the Underwriter through you
expressly for use in the Registration Statement, the Prospectus or any
Prepricing Prospectus Supplement, or any amendment or supplement thereto. If
any action, suit or proceeding shall be brought against the Company, any of its
directors, any such officer, or any such controlling person based on the
Registration Statement, the Prospectus or any Prepricing Prospectus Supplement,
or any amendment or supplement thereto, and in respect of which indemnity may be
sought against the Underwriter pursuant to this paragraph (c), the Underwriter
shall have the rights and duties given to the Company by paragraph (b) above
(except that if the Company shall have assumed the defense thereof the
Underwriter shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the Underwriter's expense), and the Company, its
directors, any such officer, and any such controlling person shall have the
rights and duties given to the Underwriter by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability which the
Underwriter may otherwise have.
(d) If the indemnification provided for in this Section 7 is unavailable to an
indemnified party under paragraphs (a) or (c) hereof in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriter on the other hand from the offering of the
Shares, or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriter on the other in connection with
the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriter on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriter, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand and the
Underwriter on the other hand 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 on the one
15
hand or by the Underwriter on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by a pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating any claim or defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 7, the Underwriter shall not be
required to contribute any amount in excess of the amount by which the total
price of the Shares underwritten by it and distributed exceeds the amount of any
damages which the Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(f) No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action,
suit or proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of the Underwriter or any person controlling
the Underwriter, the Company, its directors or officers, or any person
controlling the Company, (ii) acceptance of any Shares and payment therefor
hereunder, and (iii) any termination of this Agreement; provided that, if the
Underwriter with actual knowledge of (x) a default in any of the covenants,
agreements or obligations to be performed by the Company under this Agreement or
under any closing document, and/or (y) any breach of any representation or
warranty of the Company made in this Agreement or any closing document,
nontheless elects to proceed to closing, then upon the consummation of the
closing, the Underwriter shall be deemed to have waived any such default and
breach and shall have no claim against the Company with respect thereto, or any
termination right hereunder by reason thereof. A successor to the Underwriter
or any person controlling the Underwriter, or to the Company, its directors or
officers, or any person
16
controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 7.
8. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter to purchase the Shares hereunder are subject to the following
conditions:
(a) All filings required by Rules 424 and 430A under the Act shall have been
timely made; no stop order suspending the effectiveness of the registration
statement shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Company or the Underwriter,
threatened by the Commission, and any request of the Commission for additional
information (to be included in the registration statement or the prospectus or
otherwise) shall have been complied with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not have
occurred (i) any change, or any development involving a prospective change, in
or affecting the condition (financial or other), business, properties, net
worth, or results of operations of the Company or the Subsidiaries not
contemplated by the Prospectus, which in your opinion would materially,
adversely affect the market for the Shares, or (ii) any event or development
relating to or involving the Company or any officer or director of the Company
which makes any statement made in the Prospectus untrue in any material respect
or which, in the opinion of the Company and its counsel or the Underwriter and
its counsel, requires the making of any addition to or change in the Prospectus
in order to state a material fact required by the Act or any other law to be
stated therein or necessary in order to make the statements therein not
misleading, if amending or supplementing the Prospectus to reflect such event or
development would, in your opinion, have a material adverse effect on the market
for the Shares.
(c) You shall have received on the Closing Date, an opinion of O'Melveny &
Xxxxx LLP, special counsel for the Company, dated the Closing Date and addressed
to you substantially in the form of Annex A hereto. In rendering their opinion
as aforesaid, counsel may rely upon an opinion or opinions, each dated the
Closing Date, of other counsel retained by them or the Company as to laws of any
jurisdiction, provided that (1) each such local counsel is acceptable to you,
and (2) such reliance is expressly authorized by each opinion so relied upon and
a copy of each such opinion is delivered to you and is, in form and substance
satisfactory to them and their counsel.
(d) You shall have received on the Closing Date an opinion of Xxxxx, Xxxxx &
Xxxxx, special counsel for the Underwriter, dated the Closing Date and addressed
to you with respect to the matters referred to in clauses (vi) (as to due
authorization and valid issuance), (xii), (xv) and the paragraph immediately
following clause (xix) of Annex A hereto and such other related matters as you
may request. In rendering their opinion as aforesaid, counsel may rely upon an
opinion or opinions, each dated the Closing Date, of other counsel retained by
them or the Company as to laws of any jurisdiction, provided that (1) each such
local
17
counsel is acceptable to you, and (2) such reliance is expressly authorized by
each opinion so relied upon and a copy of each such opinion is delivered to you
and is, in form and substance satisfactory to them and their counsel.
(e) You shall have received letters addressed to you and dated the date hereof
and the Closing Date from Coopers & Xxxxxxx L.L.P., independent certified public
accountants, substantially in the forms heretofore approved by you.
(f) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been taken or, to the knowledge of the Company, shall be contemplated by the
Commission at or prior to the Closing Date; (ii) there shall not have been any
change in the capital stock of the Company nor any material increase in the
short-term or long-term debt of the Company (other than in the ordinary course
of business) from that set forth or contemplated in the Registration Statement
or the Prospectus (or any amendment or Supplement thereto); (iii) there shall
not have been, since the respective dates as of which information is given in
the Registration Statement and the Prospectus (or any amendment or supplement
thereto), except as may otherwise be stated in the Registration Statement and
Prospectus (or any amendment or supplement thereto), any material adverse change
in the condition (financial or other), business, prospects, properties, net
worth or results of operations of the Company and the Subsidiaries taken as a
whole; (iv) the Company and the Subsidiaries shall not have any liabilities or
obligations, direct or contingent (whether or not in the ordinary course of
business), that are material to the Company and the Subsidiaries, taken as a
whole, other than those reflected in the Registration Statement or the
Prospectus (or any amendment or supplement thereto); and (v) all the
representations and warranties of the Company contained in this Agreement shall
be true and correct on and as of the date hereof and on and as of the Closing
Date as if made on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed on behalf of the Company by the
chief executive officer and the chief financial officer of the Company (or such
other officers as are acceptable to you), to the effect set forth in this
Section 8(f) and in Section 8(g) hereof.
(g) The Company shall not have failed at or prior to the Closing Date to have
performed or complied with any of its agreements herein contained and required
to be performed or complied with by it hereunder at or prior to the Closing
Date.
(h) Prior to the Closing Date the Shares shall have been listed, subject to
notice of issuance, on the New York Stock Exchange.
(i) The Company shall have furnished or caused to be furnished to you such
further certificates and documents as you shall have requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and your counsel.
18
Any certificate or document signed by any officer of the Company and delivered
to you or to your counsel at the Closing shall be deemed a representation and
warranty by the Company to the Underwriter as to the statements made therein.
9. EXPENSES. The Company agrees to pay the following costs and expenses and
all other costs and expenses incident to the performance by it of its
obligations hereunder: (i) the preparation, printing or reproduction, and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), the Prospectus, the Prospectus Supplement and
each amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting
and packaging) of such copies of the Registration Statement, the Prospectus, the
Incorporated Documents, and all amendments or supplements to any of them, as may
be reasonably requested for use in connection with the offering and sale of the
Shares; (iii) the preparation, printing, authentication, issuance and delivery
of certificates for the Shares, including any stamp taxes in connection with the
original issuance and sale of the Shares; (iv) the printing (or reproduction)
and delivery of this Agreement, the Blue Sky Memorandum and all other agreements
or documents printed (or reproduced) and delivered in connection with the
offering of the Shares; (v) the listing of the Shares on the New York Stock
Exchange; (vi) the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriter relating to the preparation, printing or
reproduction, and delivery of the Blue Sky Memorandum and such registration and
qualification); (vii) the filing fees in connection with any filings required to
be made with the National Association of Securities Dealers, Inc.; (viii) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers of
the Shares; and (ix) the fees and expenses of the Company's accountants and the
fees and expenses of counsel (including local and special counsel) for the
Company; provided that, except as provided in this Section 9 and Section 5, you
shall pay your own costs and expenses, including the costs and expenses of your
counsel, any transfer taxes on the Shares which you may sell and the expenses of
advertising any offering of the Shares made by you.
10. TERMINATION OF AGREEMENT. This Agreement shall be subject to termination
in your absolute discretion, without liability on the part of the Underwriter to
the Company by notice to the Company, if prior to the Closing Date (i) trading
in securities generally on the New York Stock Exchange shall have been suspended
or materially limited, (ii) a general moratorium on commercial banking
activities in the State of New York or shall have been declared by either
federal or state authorities, or (iii) with the exception of the outbreak or
escalation of hostilities between the United States and Iraq (or their
respective allies), there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions, the effect of which on the
financial markets of the United States is such as to make it, in your judgment,
impracticable or inadvisable (x) to commence or continue the offering of the
units of the
19
Trust to the public or (y) to enforce contracts for the sale of units in the
Trust. Notice of such termination may be given to the Company by telegram,
telecopy or telephone and shall be subsequently confirmed by letter.
11. INFORMATION FURNISHED BY THE UNDERWRITER. The statements set forth in the
last two paragraphs on the cover page and the statements under the caption
"Underwriting" in the Prospectus Supplement, constitute the only information
furnished by or on behalf of the Underwriter through you as such information is
referred to in Sections 6(a) and 7 hereof.
12. MISCELLANEOUS. Except as otherwise provided in Sections 5 and 10 hereof,
notice given pursuant to any provision of this Agreement shall be in writing and
shall be delivered (i) if to the Company, at the office of the Company at 000
Xxxxxxxx Xxxxxxxxx, Xx. 000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000, Attention: General
Counsel; or (ii) if to you at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the Underwriter,
the Company, its directors and officers, and the other controlling persons
referred to in Section 7 hereof and their respective successors and assigns, to
the extent provided herein, and no other person shall acquire or have any right
under or by virtue of this Agreement. Neither the term "successor" nor the term
"successors and assigns" as used in this Agreement shall include a purchaser
from the Underwriter of any of the Shares in his status as such purchaser.
13. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together constitute
one and the same instrument. If signed in counterparts, this Agreement shall
not become effective unless at least one counterpart hereof shall have been
executed and delivered on behalf of each party hereto.
20
Please confirm that the foregoing correctly sets forth the agreement between the
Company and the Underwriter.
Very truly yours,
THE MACERICH COMPANY
By: /s/ XXXXXXX X. XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Title: General Counsel & Secretary
Confirmed as of the date first
above mentioned.
XXXXX XXXXXX INC.
By: /s/ XXXX X. XXXXXXXXX
---------------------
Name: Xxxx X. Xxxxxxxxx
Title: Managing Director
21
