EXHIBIT 1b
Draft 3/11/97
WASHINGTON REAL ESTATE INVESTMENT TRUST
(a Maryland real estate investment trust)
Common Shares, Warrants to Purchase Common Shares and Preferred Shares
UNDERWRITING AGREEMENT
____________, 1997
[Name(s) of Representative(s)]
Ladies and Gentlemen:
Washington Real Estate Investment Trust, a real estate investment trust
organized under the laws of the State of Maryland (the "Company"), proposes
to issue and sell (i) its common shares of beneficial interest, par value
$.01 per share (the "Common Shares"), (ii) warrants to purchase Common Shares
(the "Common Share Warrants") or (iii) its preferred shares of beneficial
interest, par value $.01 per share (the "Preferred Shares"), from time to
time, in one or more offerings on terms to be determined at the time of sale.
The Preferred Shares will be issued in one or more series and each series
of Preferred Shares may vary, as applicable, as to the specific number of
shares, title, rank, stated value, liquidation preference, dividend rate (or
method of calculation), dividend payments dates, redemption provisions,
sinking fund requirements, conversion provisions (and terms of the related
Underlying Securities (as defined below) and any other variable terms as set
forth in the applicable amendment to the Company's Declaration of Trust (each
a "Designating Amendment") relating to such series of Preferred Shares.
Each issue of Common Share Warrants will be issued pursuant to a separate
warrant agreement (each, a "Warrant Agreement") between the Company and the
warrant agent identified
therein (each, a "Warrant Agent"). The Common Share Warrants may vary, as
applicable, as to, among other terms, title, specific number, exercise dates
or periods, exercise price(s) and expiration date(s).
As used herein, "Securities" shall mean the Common Shares, Common Share
Warrants and Preferred Shares, or any combination thereof, initially issuable
by the Company and "Underlying Securities" shall mean the Common Shares
issuable upon exercise of the Common Share Warrants or upon conversion of the
Preferred Shares, as applicable. As used herein, "you" and "your", unless the
context otherwise requires, shall mean the parties to whom this Agreement is
addressed together with the other parties, if any, identified in the
applicable Terms Agreement (as hereinafter defined) as additional co-managers
with respect to the Underwritten Securities (as hereinafter defined)
purchased pursuant thereto.
Whenever the Company determines to make an offering of Securities through
you or through an underwriting syndicate managed by you, the Company will
enter into an agreement (each, a "Terms Agreement") providing for the sale of
such Securities (the "Underwritten Securities") to, and the purchase and
offering thereof by, you and such other underwriters, if any, selected by you
(the "Underwriters", which term shall include you, whether acting alone or as
members of an underwriting syndicate, as well as any Underwriter substituted
pursuant to Section 10 hereof). The Terms Agreement relating to the offering
of Underwritten Securities shall specify the number of Underwritten
Securities to be initially issued (the "Initial Underwritten Securities"),
the name of each Underwriter participating in such offering (subject to
substitution as provided in Section 10 hereof) and the name of each
additional co-manager, if any, participating in such offering, the number of
Initial Underwritten Securities which each such Underwriter severally agrees
to purchase, the price at which the Initial Underwritten Securities are to be
purchased by the Underwriters and the initial public offering price
applicable thereto, the form, time, date and place of delivery and payment of
the Initial Underwritten Securities and any other material variable terms of
the Initial Underwritten Securities. In addition, such Terms Agreement shall
specify whether the Company has agreed to grant to the Underwriters an option
to purchase additional Securities to cover over-allotments, if any, and the
number of Securities subject to such option (the "Option Underwritten
Securities"). As used herein, the term "Underwritten Securities" shall
include the Initial Underwritten Securities and all or any portion of any
Option Underwritten Securities. The Terms Agreement, which shall be
substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication between the
Company and you. Each offering of Underwritten Securities through you or
through an underwriting syndicate managed by you will be governed by this
Underwriting Agreement, as supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-_____)
[and pre-effective amendment no. 1 thereto] for the registration of the
Securities and the Underlying Securities and certain of the Company's debt
securities under the Securities Act of 1933, as amended (the "1933 Act"), and
the offering thereof from time to time in accordance with Rule 415 of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), and the Company has filed such post-effective
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amendments thereto as may be required prior to the execution of the
applicable Terms Agreement. Such registration statement (as so amended, if
applicable) has been declared effective by the Commission. Such registration
statement (as so amended, if applicable), including the information, if any,
deemed to be a part thereof pursuant to Rule 434(d) of the 1933 Act
Regulations (the "Rule 434 Information"), is referred to herein as the
"Registration Statement"; and the final prospectus and the final prospectus
supplement relating to the offering of the Underwritten Securities, in the
form first furnished to the Underwriters by the Company for use in connection
with the offering of the Underwritten Securities, are collectively referred
to herein as the "Prospectus"; provided, however, that all references to the
"Registration Statement" and the "Prospectus" shall also be deemed to include
all documents incorporated therein by reference pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), prior to the execution of
the applicable Terms Agreement; provided, further, that if the Company files
a registration statement with the Commission pursuant to Rule 462(b) of the
1933 Act Regulations (the "Rule 462 Registration Statement"), then, after
such filing, all references to "Registration Statement" shall also be deemed
to include the Rule 462 Registration Statement; and provided, further, that
if the Company elects to rely upon Rule 434 of the 1933 Act Regulations, then
all references to "Prospectus" shall also be deemed to include the final or
preliminary prospectus, as the case may be, and the applicable term sheet or
abbreviated term sheet (the "Term Sheet"), as the case may be, in the form
first furnished to the Underwriters by the Company in reliance upon Rule 434
of the 1933 Act Regulations, and all references in this Underwriting
Agreement to the date of the Prospectus shall mean the date of the Term
Sheet. For purposes of this Underwriting Agreement, all references to the
Registration Statement, Prospectus, Term Sheet or preliminary prospectus or
to any amendment or supplement to any of the foregoing shall be deemed to
include any copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated"
(or other references of like import) in the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be; and all references in this
Underwriting Agreement to amendments or supplements to the Registration
Statement, Prospectus or preliminary prospectus shall be deemed to mean and
include the filing of any document under the 1934 Act which is incorporated
by reference in the Registration Statement, Prospectus or preliminary
prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to you, as of the date hereof,
and to each Underwriter named in the applicable Terms Agreement, as of the
date thereof, as of the Closing Time (as defined below) and, if applicable,
as of each Date of Delivery (as defined below) (in each case, a
"Representation Date"), as follows:
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(1) The Company meets the requirements for use of Form S-3 under the
1933 Act. Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement or
any Rule 462(b) Registration Statement has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the Commission,
and any request on the part of the Commission for additional information
has been complied with. In addition, each Indenture has been duly
qualified under the 1939 Act.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto
(including the filing of the Company's most recent Annual Report on Form
10-K with the Commission (the "Annual Report on Form 10-K")) became
effective and at each Representation Date, the Registration Statement,
any Rule 462(b) Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and did not and
will not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading. At the date of the Prospectus, at the
Closing Time and at each Date of Delivery, if any, the Prospectus and any
amendments and supplements thereto did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If the Company
elects to rely upon Rule 434 of the 1933 Act Regulations, the Company
will comply with the requirements of Rule 434. Notwithstanding the
foregoing, the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement
or the Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter
through you expressly for use in the Registration Statement or the
Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when
so filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters
for use in connection with the offering of Underwritten Securities will,
at the time of such delivery, be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(2) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time
they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the date of the Prospectus, at the Closing Time and at
each Date of Delivery, if any, did not
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and will not include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(3) The accountants who certified the financial statements and any
supporting schedules thereto included in the Registration Statement and
the Prospectus are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(4) The financial statements of the Company included in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the Company
and its consolidated subsidiaries, at the dates indicated and the
statement of operations, shareholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement and the Prospectus present fairly
in accordance with GAAP the information required to be stated therein.
The selected financial data and the summary financial information
included in the Prospectus present fairly the information shown therein
and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement and the
Prospectus. Any historical summaries of revenue and certain operating
expenses included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the revenue and those
operating expenses included in such summaries of the properties related
thereto for the periods specified in conformity with GAAP. In addition,
any pro forma financial statements of the Company and its subsidiaries
and the related notes thereto included in the Registration Statement and
the Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly compiled
on the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred
to therein.
(5) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business (a
"Material Adverse Effect"), (B) there have been no transactions entered
into by the Company or any of its subsidiaries, other than those arising
in the ordinary course of business, which are material with respect to
the Company and its subsidiaries considered as one enterprise and (C)
except for regular dividends on the Company's shares of beneficial
interest, in amounts per share that are consistent with past practice,
there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
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(6) The Company has been duly organized and is validly existing as a
real estate investment trust of unlimited duration with transferable
shares of beneficial interest in good standing under the laws of the
State of Maryland, with full power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, this Underwriting Agreement and the applicable Terms
Agreement. The Company is duly qualified to transact business in each
other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not result in a
Material Adverse Effect.
(7) Each "significant subsidiary" of the Company (as such term is
defined in Rule 1-02 of Regulation S-X promulgated under the 1933 Act)
(each, a "Subsidiary" and, collectively, the "Subsidiaries") (which term
includes corporations, limited and general partnerships, joint ventures
and other entities, and includes direct and indirect subsidiaries), if
any, has been duly organized and is validly existing as a corporation or
partnership, as the case may be, in good standing under the laws of the
jurisdiction of its organization, has power and authority to own, lease
and operate its properties and to conduct its business as described in
the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect. Except as
otherwise stated in the Registration Statement and the Prospectus, all of
the issued and outstanding capital stock or other ownership interests of
each Subsidiary have been duly authorized and validly issued, are fully
paid and non-assessable and are owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
(8) The authorized, issued and outstanding shares of beneficial
interest of the Company are as set forth in the Prospectus under the
caption "Capitalization" (except for subsequent issuances thereof, if
any, contemplated under this Underwriting Agreement, pursuant to dividend
reinvestment plans, reservations, agreements or employee benefit plans
referred to in the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus). Such shares of
beneficial interest have been duly authorized and validly issued by the
Company and are fully paid and non-assessable, and none of such shares of
beneficial interest was issued in violation of preemptive or other
similar rights of any security holder of the Company.
(9) This Underwriting Agreement has been, and the applicable Terms
Agreement as of the date thereof will have been, duly authorized,
executed and delivered by the Company.
(10) If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Common Shares, such Underwritten
Securities have been, or as of the date of such Terms Agreement will have
been, duly authorized by the Company for issuance and sale
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pursuant to this Agreement and such Terms Agreement; and such
Underwritten Securities, when issued and delivered by the Company
pursuant to this Agreement and such Terms Agreement against payment of
the consideration therefor specified in such Terms Agreement will be
validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights arising by operation of law or
otherwise.
(11) If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Preferred Shares, such Underwritten
Securities have been, or as of the date of such Terms Agreement will have
been, duly authorized by the Company for issuance and sale pursuant to
this Agreement and such Terms Agreement; the Preferred Shares, when
issued and delivered by the Company pursuant to this Agreement and such
Terms Agreement against payment of the consideration therefor specified
in such Terms Agreement, will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or other similar
rights arising by operation of law or otherwise; and the Designating
Amendment establishing the preferences, limitations and relative rights
of any Preferred Shares will be in full force and effect prior to the
Closing Time.
(12) If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Common Share Warrants, such
Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance and
sale pursuant to this Underwriting Agreement and such Terms Agreement.
Such Underwritten Securities, when issued and authenticated in the manner
provided for the applicable Warrant Agreement and delivered against
payment of the consideration therefor specified in such Terms Agreement,
will constitute valid and legally binding obligations of the Company,
entitled to the benefits provided by such Warrant Agreement and
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
(13) If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Common Share Warrants, the applicable
Warrant Agreement has been, or prior to the issuance of such Underwritten
Securities will have been, duly authorized, executed and delivered by the
Company and, upon such authorization, execution and delivery, will
constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
(14) If applicable, the Underlying Securities have been, or as of the
date of the applicable Terms Agreement will have been, duly authorized
and reserved for issuance by the Company upon exercise of the Common
Share Warrants or upon conversion of the related Preferred
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Shares, as applicable. The Underlying Securities, when issued upon such
exercise or conversion, as applicable, will be validly issued, fully paid
and non-assessable and will not be subject to preemptive or other similar
rights of any securityholder of the Company.
(15) The Underwritten Securities being sold pursuant to the
applicable Terms Agreement and the applicable Warrant Agreement as of the
date of the Prospectus, and any Underlying Securities, when issued and
delivered in accordance with the terms of the related Underwritten
Securities, will conform in all material respects to the statements
relating thereto contained in the Prospectus and will be in substantially
the form filed or incorporated by reference, as the case may be, as an
exhibit to the Registration Statement.
(16) Neither the Company nor any of its subsidiaries is in violation
of its declaration of trust, partnership agreement, charter, by-laws or
other organizational document or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject, except for such defaults
that would not result in a Material Adverse Effect. The execution,
delivery and performance of this Underwriting Agreement, the applicable
Terms Agreement, each applicable Warrant Agreement and any other
agreement or instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions contemplated
hereby or thereby or in the Registration Statement and the Prospectus and
the consummation of the transactions contemplated herein and in the
Registration Statement and the Prospectus and compliance by the Company
with its obligations hereunder and thereunder have been duly authorized
by all necessary action on the part of the Company and do not and will
not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any assets, properties or operations of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
which it or any of them may be bound or to which any property or assets
of the Company or any of its subsidiaries is subject (except for such
conflicts, breaches, defaults, events or liens, charges or encumbrances
that would not result in a Material Adverse Effect) nor will such action
result in any violation of the provisions of the declaration of trust,
partnership agreement, charter, by-laws, or other organizational
documents of the Company or any of its subsidiaries or any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any if its subsidiaries or any of
their assets, properties or operations.
(17) There is not pending or threatened any action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or
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foreign, now pending, or to the knowledge of the Company threatened,
against or affecting the Company or any of its subsidiaries which is
required to be disclosed in the Registration Statement and the Prospectus
(other than as stated therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the assets, properties or
operations thereof, the consummation of the transactions contemplated
under this Underwriting Agreement or the applicable Terms Agreement or
any applicable Warrant Agreement or the performance by the Company of its
obligations hereunder and thereunder. The aggregate of all pending legal
or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their respective assets,
properties or operations is the subject which are not described in the
Registration Statement and the Prospectus, including ordinary routine
litigation incidental to the business, could not reasonably be expected
to result in a Material Adverse Effect.
(18) There are no contracts or documents which are required to be
described in the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto
which have not been so described and filed as required.
(19) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery
by the Company of this Underwriting Agreement, the applicable Terms
Agreement and any applicable Warrant Agreement and the consummation of
the transactions herein and therein contemplated (except such additional
steps as may be necessary to qualify the Underwritten Securities for
public offering by the Underwriters under state securities or Blue Sky
laws) has been obtained or made and is in full force and effect.
(20) The Company and its subsidiaries hold all licenses, certificates
and permits from governmental authorities which are necessary to the
conduct of their business the absence of which would result in a Material
Adverse Effect; and neither the Company nor any subsidiary has infringed
any patents, patent rights, trade names, trademarks or copyrights, which
infringement would result in a Material Adverse Effect.
(21) With respect to all tax periods regarding which the Internal
Revenue Service is or will be entitled to assert any claim, the Company
has met the requirements for qualification as a real estate investment
trust under Sections 856 through 860 of the Internal Revenue Code, as
amended, and the Company's present and contemplated operations, assets
and income continue to meet such requirements.
(22) The Company and its subsidiaries have good and marketable title
to, or valid and enforceable leasehold estates in, all items of real and
personal property referred to in the Prospectus as owned or leased by
them, in each case free and clear of all liens, encumbrances, claims,
security interests and defects, other than those referred to in the
Prospectus or which are not material in amount. The Company has no
reason to believe that
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the lessee under any lease (excluding leases for which rent payments due
for the remainder of such lease are less than $500,000) calling for
annual lease payments in excess of $500,000 is not financially capable of
performing its obligations thereunder.
(23) The Company has filed all Federal, State and foreign income tax
returns which have been required to be filed and has paid all taxes
indicated by said returns and all assessments received by it to the
extent that such taxes have become due.
(24) The Company is not, and upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus will not be, an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
(25) The Company has no knowledge of (a) the unlawful presence of
any hazardous substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") on any of the properties
owned by it or any of its subsidiaries, or of (b) any unlawful spills,
releases, discharges or disposal of Hazardous Materials that have
occurred or are presently occurring off such properties as a result of
any construction on or operation and use of such properties which
presence or occurrence, singly or in the aggregate, would result in a
Material Adverse Effect. In connection with the construction on or
peration and the use of the properties owned by the Company and its
subsidiaries, the Company represents that, as of the date of this
Underwriting Agreement and will represent that, as of the date of the
applicable Terms Agreement, it has no knowledge of any failure to comply
with all applicable local, state and federal environmental laws,
regulations, ordinances and administrative and judicial orders relating
to the generation, recycling, reuse, sale, storage, handling, transport
and disposal of any Hazardous Materials which failure would result in a
Material Adverse Effect.
(26) The Company has complied with, and is and will be in compliance
with, the provisions of that certain Florida act relating to disclosure
of doing business with Cuba, codified as Section 517.075 of the Florida
statutes, and the rules and regulations thereunder or is exempt therefrom.
(b) Any certificate signed by any officer of the Company or any of its
subsidiaries and delivered to any Underwriter or to counsel for the
Underwriters in connection with the offering of the Underwritten Securities
shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby on the date of such certificate
and, unless subsequently amended or supplemented, at each Representation Date
subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the
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representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth.
(b) In addition, subject to the terms and conditions herein set forth,
the Company may grant, if so provided in the applicable Terms Agreement, an
option to the Underwriters, severally and not jointly, to purchase up to the
number of Option Underwritten Securities set forth therein at a price per
Option Underwritten Security equal to the price per Initial Underwritten
Security, less an amount equal to any dividends or distributions declared by
the Company and paid or payable on the Initial Underwritten Securities but
not payable on the Option Underwritten Securities. Such option, if granted,
will expire 30 days after the date of such Terms Agreement, and may be
exercised in whole or in part from time to time only for the purpose of
covering over-allotments which may be made in connection with the offering
and distribution of the Initial Underwritten Securities upon notice by you to
the Company setting forth the number of Option Underwritten Securities as to
which the several Underwriters are then exercising the option and the time,
date and place of payment and delivery for such Option Underwritten
Securities. Any such time and date of payment and delivery (each, a "Date of
Delivery") shall be determined by you, but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to
the Closing Time, unless otherwise agreed upon by you and the Company. If
the option is exercised as to all or any portion of the Option Underwritten
Securities, each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total number of Option Underwritten
Securities then being purchased which the number of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase as set
forth in such Terms Agreement bears to the total number of Initial
Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the Initial
Underwritten Securities shall be made at the offices of Xxxxxxx & Xxxxx
L.L.P., 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or at such
other place as shall be agreed upon by you and the Company, at 10:00 A.M.
(Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date of the
applicable Terms Agreement (unless postponed in accordance with the
provisions of Section 10 hereof), or such other time not later than ten
business days after such date as shall be agreed upon by you and the Company
(such time and date of payment and delivery being herein called "Closing
Time"). In addition, in the event that the Underwriters have exercised their
option, if any, to purchase any or all of the Option Underwritten Securities,
payment of the purchase price for, and delivery of such Option Underwritten
Securities, shall be made at the above-mentioned offices of Xxxxxxx & Xxxxx
L.L.P., or at such other place as shall be agreed upon by you and the
Company, on the relevant Date of Delivery as specified in the notice from you
to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery
to you for the respective accounts of the Underwriters of the Underwritten
Securities to be purchased by them. It is understood that each Underwriter
has authorized you, for its account, to accept delivery of, receipt for, and
make payment of the purchase price for, the Underwritten Securities which it
has severally agreed to purchase.
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You, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the
Underwritten Securities to be purchased by any Underwriter whose funds have
not been received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) The Underwritten Securities shall be in such denominations and
registered in such names as you may request in writing at least one full
business day prior to the Closing Time or the relevant Date of Delivery, as
the case may be. The Underwritten Securities will be made available for
examination and packaging by you in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with you and
with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) The Company will comply with the requirements of Rule 434 of the
1933 Act Regulations, if and as applicable, and will notify the
Representative(s) immediately, and confirm the notice in writing, of (i)
the effectiveness of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to the Prospectus,
(ii) the receipt of any comments from the Commission, (iii) any request
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information,
and (iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of
the qualification of the Underwritten Securities for offering or sale in
any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Company will promptly effect the filings
necessary pursuant to Rule 424 and will take such steps as it deems
necessary to ascertain promptly whether the Prospectus transmitted for
filing under Rule 424 was received for filing by the Commission and, in
the event that it was not, it will promptly file the Prospectus. The
Company will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(b) The Company will give you notice of its intention to file or
prepare any amendment to the Registration Statement (including any filing
under Rule 462(b) of the 1933 Act Regulations), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise,
will furnish you with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will
not file or use any such document to which you or counsel for the
Underwriters shall object.
-12-
(c) The Company has furnished or will deliver to you and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein)
and signed copies of all consents and certificates of experts, and will
also deliver to you, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without
exhibits) for each of the Underwriters. Copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will
be identical to any electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(d) The Company will deliver to each Underwriter, without charge, as
many copies of each preliminary prospectus as such Underwriter may
reasonably request, and the Company hereby consents to the use of such
copies for purposes permitted by the 1933 Act. The Company will furnish
to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934
Act, such number of copies of the Prospectus as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit
the completion of the distribution of the Underwritten Securities as
contemplated in this Underwriting Agreement and the applicable Terms
Agreement and in the Registration Statement and the Prospectus. If at
any time when the Prospectus is required by the 1933 Act or the 1934 Act
to be delivered in connection with sales of the Underwritten Securities,
any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement in order that the
Registration Statement will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or to amend or
supplement the Prospectus in order that the Prospectus will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel,
at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, the Company will promptly prepare
and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or
to make the Registration Statement or the Prospectus comply with such
requirements, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
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(f) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Underwritten Securities and any related
Underlying Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or
foreign) as you may designate and to maintain such qualifications in
effect for a period of not less than one year from the date of the
applicable Terms Agreement; provided, however, that the Company shall not
be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject. In each jurisdiction in which the Underwritten
Securities or any related Underlying Securities have been so qualified,
the Company will file such statements and reports as may be required by
the laws of such jurisdiction to continue such qualification in effect
for a period of not less than one year from the date of such Terms
Agreement.
(g) The Company will timely file such reports pursuant to the 1934
Act as are necessary in order to make generally available to its security
holders as soon as practicable an earnings statement for the purposes of,
and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) If applicable, the Company will reserve and keep available at all
times, free of preemptive or other similar rights, a sufficient number of
Common Shares for the purpose of enabling the Company to satisfy any
obligations to issue such Underlying Securities upon exercise of the
related Common Share Warrants, as applicable, or upon conversion of the
Preferred Shares, as applicable.
(i) The Company will use the net proceeds received by it from the
sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(j) The Company will use its best efforts to effect the listing of
the Underwritten Securities and any related Underlying Securities, prior
to the Closing Time, on any national securities exchange or quotation
system if and as specified in the applicable Terms Agreement.
(k) Between the date of the applicable Terms Agreement and the
Closing Time or such other date specified in such Terms Agreement, the
Company will not, without your prior written consent, directly or
indirectly, issue, sell, offer to sell, grant any option for the sale of,
or otherwise dispose of, the securities specified in such Terms Agreement.
(l) If the applicable Terms Agreement relates to Common Shares, the
Company will cause each of its officers and trustees to enter into a
written agreement, in form and substance satisfactory to you, to the
effect that, during a period of 90 days from the date of the applicable
Terms Agreement, they will not directly or indirectly sell, offer or
contract to sell, grant any option for the sale of, or otherwise dispose
of or transfer, any Common Shares (including, without limitation, any
options or warrants to acquire Common Shares), whether
-14-
then owned or thereafter acquired by them or with respect to which they
have or thereafter acquire the power of disposition, without your prior
written consent.
(m) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to the 1934 Act within
the time periods required by the 1934 Act and the 1934 Act Regulations.
(n) The Company will elect to qualify as a "real estate investment
trust" under the Internal Revenue Code of 1986, as amended, and will use
its best efforts to continue to meet the requirements to qualify as a
"real estate investment trust".
SECTION 4. Payment of Expenses. (a) The Company will pay all expenses
incident to the performance of its obligations under this Underwriting
Agreement and the applicable Terms Agreement, including (i) the preparation,
printing and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment thereto,
(ii) the preparation, printing and delivery to the Underwriters of this
Underwriting Agreement, any Terms Agreement, any Agreement among Underwriters,
any Warrant Agreement and such other documents as may be
required in connection with the offering, purchase, sale, issuance or
delivery of the Underwritten Securities or any related Underlying Securities,
(iii) the preparation, issuance and delivery of the Underwritten Securities
and any related Underlying Securities and any certificates for the
Underwritten Securities or such Underlying Securities to the Underwriters,
including any transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Underwritten Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), as well as the fees and disbursements of any Warrant Agent and
its counsel, (v) the qualification of the Underwritten Securities and any
related Underlying Securities under state securities laws in accordance with
the provisions of Section 3(f) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation, printing and
delivery of the Blue Sky Survey, and any amendment thereto, (vi) the printing
and delivery to the Underwriters of copies of each preliminary prospectus,
any Term Sheet, and the Prospectus and any amendments or supplements thereto,
(vii) any fees charged by nationally recognized statistical rating
organizations for the rating of the Underwritten Securities, and if
applicable, (viii) the fees and expenses incurred with respect to the listing
of the Underwritten Securities and any related Underlying Securities.
(b) If the applicable Terms Agreement is terminated by you in accordance
with the provisions of Section 5 or Section 9(b)(i) hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Underwritten Securities pursuant
to the applicable Terms Agreement are
-15-
subject to the accuracy of the representations and warranties of the Company
contained in Section 1 hereof or in certificates of any officer of the
Company or any of its subsidiaries delivered pursuant to the provisions
hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been initiated or be pending or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction
of counsel to the Underwriters. A prospectus containing information
relating to the description of the Underwritten Securities, the specific
method of distribution and similar matters shall have been filed with the
Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable, or, if the Company has elected to rely upon Rule 434 of the
1933 Act Regulations, a Term Sheet including the Rule 434 Information
shall have been filed with the Commission in accordance with Rule
424(b)(7).
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time, of Arent
Fox Xxxxxxx Xxxxxxx & Xxxx, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) The Company has been duly organized and is validly
existing as a real estate investment trust in good standing
under the laws of the State of Maryland, with trust power and
authority to own, lease and operate its properties and conduct
its business as described in the Prospectus and to enter into
and perform its obligations under the Underwriting Agreement
and the applicable Terms Agreement; and the conditions for use
of a registration statement on Form S-3 have been satisfied.
(ii) The Company is duly qualified to transact business in
each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or
the conduct of business except where the failure to so qualify
would not result in a Material Adverse Effect.
(iii) Each Subsidiary has been duly organized and is
validly existing as a corporation or partnership, as the case
may be, in good standing under the laws of the jurisdiction of
its organization and has power and authority to own, lease and
operate its properties and to conduct its business as
described in the Prospectus. Except as otherwise stated in
the Registration Statement and the Prospectus, all of the
issued and outstanding capital stock or other ownership
interests of each Subsidiary have been duly authorized and are
validly
-16-
issued, are fully paid and non-assessable and, to the best of
the knowledge of such counsel, are owned by the Company,
directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim
or equity.
(iv) Each Subsidiary of the Company is duly qualified as a
foreign corporation to transact business and is in good
standing in each jurisdiction which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure
to so qualify or be in good standing would not result in a
Material Adverse Effect.
(v) The authorized, issued and outstanding shares of
beneficial interest of the Company are as set forth in the
Prospectus under the caption "Capitalization" (except for
subsequent issuances thereof, if any, contemplated under the
Underwriting Agreement, pursuant to dividend reinvestment
plans, reservations, agreements or employee benefit plans
referred to in the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the
Prospectus). Such shares of beneficial interest have been
duly authorized and validly issued by the Company and are
fully paid and non-assessable, and none of such shares of
beneficial interest was issued in violation of preemptive or
other similar rights arising by operation of law or, to the
best of their knowledge and information, otherwise.
(vi) The Underwriting Agreement and the applicable Terms
Agreement have been duly authorized, executed and delivered by
the Company.
(vii) If the Underwritten Securities being sold pursuant to
the applicable Terms Agreement include Common Shares, such
Underwritten Securities have been duly authorized by the
Company for issuance and sale pursuant to this Agreement and
such Terms Agreement; and such Underwritten Securities, when
issued and delivered by the Company pursuant to this Agreement
and such Terms Agreement against payment of the consideration
therefor specified in such Terms Agreement, will be validly
issued, fully paid and non-assessable and will not be subject
to preemptive or other similar rights arising by operation of
law or, to the best of their knowledge and information,
otherwise.
(viii) If the Underwritten Securities being sold pursuant to
the applicable Terms Agreement include Preferred Shares, such
Underwritten Securities have been duly authorized by the
Company for issuance and sale pursuant to this Agreement and
such Terms Agreement; the Underwritten Securities, when issued
and delivered by the Company pursuant to this Agreement and
-17-
such Terms Agreement against payment of the consideration
therefor specified in such Terms Agreement, will be validly
issued, fully paid and non-assessable and will not be subject
to preemptive or other similar rights arising by operation of
law or, to the best of their knowledge and information,
otherwise; and the Designating Amendment establishing the
preferences, limitations and relative rights of any Preferred
Shares is in full force and effect.
(ix) If the Underwritten Securities being sold pursuant to
the applicable Terms Agreement include Common Share Warrants,
such Underwritten Securities have been duly authorized by the
Company for issuance and sale pursuant to the Underwriting
Agreement and the applicable Terms Agreement. The
Underwritten Securities, when issued and authenticated in the
manner provided for in the applicable Warrant Agreement and
delivered against payment of the consideration therefor
specified in such Terms Agreement, will constitute valid and
legally binding obligations of the Company, entitled to the
benefits provided by such Warrant Agreement and enforceable
against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
or affecting creditors' rights generally or by general
equitable principles.
(x) If the Underwritten Securities being sold pursuant to
the applicable Terms Agreement include Common Share Warrants,
the applicable Warrant Agreement has been duly authorized,
executed and delivered by the Company and (assuming due
authorization, execution and delivery thereof by the Warrant
Agent) constitutes a valid and legally binding agreement of
the Company, enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights
generally or by general equitable principles.
(xi) If applicable, the Underlying Securities have been
duly authorized and reserved for issuance by the Company upon
exercise of the Common Share Warrants or upon conversion of
the related Preferred Shares, as applicable. The Underlying
Securities, when issued upon such exercise or upon such
conversion, as applicable, will be validly issued, fully paid
and non-assessable and will not be subject to preemptive or
other similar rights arising by operation of law or, to the
best of their knowledge and information, otherwise.
-18-
(xii) The form of certificate used to evidence the
Underwritten Securities and any related Underlying Securities
is in due and proper form and complies with all applicable
statutory requirements.
(xiii) The Underwritten Securities being sold pursuant to
the applicable Terms Agreement and the applicable Warrant
Agreement conform, and any Underlying Securities, when issued
and delivered in accordance with the terms of the related
Underwritten Securities, will conform, in all material
respects to the statements relating thereto contained in the
Prospectus and are in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit
to the Registration Statement.
(xiv) The statements in the Prospectus under "Description
of Shares", "Description of Common Shares", if any,
"Description of Preferred Shares", if any, "Description of
Common Share Warrants", "Description of Underlying
Securities", if any, and "Certain Federal Income Tax
Considerations", if any, and in the Registration Statement
under Item 15, insofar as such statements constitute a summary
of documents referred to therein or matters of law, are
accurate summaries and fairly and correctly present the
information called for with respect to such documents and
matters in all material respects.
(xv) Such counsel does not know of any contracts or
documents required to be filed as exhibits to or incorporated
by reference in the Registration Statement or described in the
Registration Statement or the Prospectus which are not so
filed, incorporated by reference or described as required, and
such contracts and documents as are summarized in the
Registration Statement or the Prospectus are fairly summarized
in all material respects (except that such counsel need
express no opinion as to the financial statements, schedules
and other financial information included or incorporated by
reference therein).
(xvi) The execution, delivery and performance of the
Underwriting Agreement, the applicable Terms Agreement and the
applicable Warrant Agreement and the consummation of the
transactions contemplated therein and compliance by the
Company with its obligations thereunder do not constitute a
breach of any of the terms or provisions of, or constitute a
default under, (a) the declaration of trust, partnership
agreement, charter, by-laws, or other organizational document
of the Company or any of its subsidiaries, (b) certain
specified agreements which are set forth on a schedule to such
opinion to which the Company is a party, (c) any order known
to such counsel of any court or government agency or body
having jurisdiction over the Company or any of its
subsidiaries or any of their properties.
-19-
(xvii) To the best of such counsel's knowledge, neither the
Company nor any of its subsidiaries is in violation of its
declaration of trust, partnership agreement, charter, by-laws
or other organizational document.
(xviii) Such counsel knows of no material legal proceedings
pending or threatened against the Company.
(xix) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body is necessary in
connection with the execution and delivery of the Underwriting
Agreement, the applicable Terms Agreement or any applicable
Warrant Agreement and the consummation of the transactions
therein contemplated by the Company (other than as may be
required by the NASD or State securities or Blue Sky laws, as
to which such counsel need express no opinion) except such as
have been obtained or made, specifying the same.
(xx) The investments of the Company described in the
Prospectus are permitted investments under its declaration of
trust.
(xxi) The Company has qualified to be taxed as a real
estate investment trust pursuant to Sections 856-860 of the
Internal Revenue Code, as amended, for the fiscal years ended
December 31, 1992 through December 31, 1996, and the Company's
present method of operation and its assets and contemplated
income are such that the Company is in a position under
present law to so qualify for the fiscal year ending December
31, 1997, and under the present law the federal income tax
treatment of the Company and its shareholders will be as set
forth in the Prospectus under the heading "Description of
Shares".
(xxii) The Registration Statement has been declared
effective under the 1933 Act. Any required filing of the
Prospectus pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b). To the
best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have
been initiated or are pending or threatened by the Commission.
(xxiii) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein, and
each amendment or supplement to the Registration Statement and
Prospectus, excluding the documents incorporated by reference
therein, as of their respective effective or issue dates
(other than the financial statements and supporting schedules
included therein or omitted therefrom, as to which such
counsel need express
-20-
no opinion) complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations.
(xxiv) The documents incorporated by reference in the
Prospectus (other than the financial statements and supporting
schedules therein or omitted therefrom, as to which such
counsel need express no opinion), when they were filed with
the Commission, complied as to form in all material respects
with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder.
(xxv) The Company is not an "investment company" within
the meaning of the 1940 Act.
In rendering such opinion, Arent Fox Xxxxxxx Xxxxxxx & Xxxx may
rely as to matters governed by the laws of jurisdictions other than
Maryland and Delaware or Federal laws on local counsel in such
jurisdictions, provided that in each case Arent Fox Xxxxxxx Xxxxxxx
& Xxxx shall state that they believe that they and the Underwriters
are justified in relying on such other counsel. In addition to the
matters set forth above, such opinion shall also include a
statement to the effect that nothing has come to the attention of
such counsel which leads them to believe that the Registration
Statement, as of the time it became effective under the 1933 Act or
at the date of the applicable Terms Agreement, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the date of the
applicable Terms Agreement or at Closing Time, contained or
contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading (except that such counsel need express no view
as to financial statements, schedules and other financial
information included or incorporated by reference therein). With
respect to such statement, Arent Fox Xxxxxxx Xxxxxxx & Xxxx may
state that their belief is based upon the procedures set forth
therein, but is without independent check and verification.
(2) The favorable opinion, dated as of Closing Time, of
Xxxxxxx & Xxxxx L.L.P., counsel for the Underwriters, with respect
to the matters set forth in (vi), (vii), (viii), (ix), (xi), (xii)
(only with respect to the statements set forth under "Description
of Shares", "Description of Common Shares", "Description of
Preferred Shares", "Description of Common Share Warrants" and
"Description of Underlying Securities", if any), (xxii) and (xxiii)
of subsection (b)(l) of this Section. In addition to the matters
set forth above, such opinion shall also include a statement to the
effect that nothing has come to the attention of such counsel which
leads them to believe that the Registration Statement, as of the
time it
-21-
became effective under the 1933 Act or at the date of the applicable
Terms Agreement, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that
the Prospectus, at the date of the applicable Terms Agreement or at
Closing Time, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading
(except that such counsel need express no view as to financial
statements, schedules and other financial information included or
incorporated by reference therein). With respect to such statement,
Xxxxxxx & Xxxxx L.L.P. may state that their belief is based upon
the procedures set forth therein, but is without independent check
and verification.
(c) At Closing Time, there shall not have been, since the date of
the applicable Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and
you shall have received a certificate of the President or a Vice President of
the Company and of the chief financial officer or chief accounting officer of
the Company, dated as of Closing Time, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties in
Section 1 are true and correct with the same force and effect as though
expressly made at and as of the Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be performed
or satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been initiated or threatened by the
Commission.
(d) At the time of the execution of the applicable Terms Agreement,
you shall have received from Xxxxxx Xxxxxxxx LLP a letter dated such date, in
form and substance satisfactory to you, to the effect that (i) they are
independent public accountants with respect to the Company and its
subsidiaries as required by the 1933 Act and the 1934 Act and the applicable
published rules and regulations thereunder; (ii) it is their opinion that the
consolidated financial statements and supporting schedules of the Company and
its subsidiaries included or incorporated by reference in the Registration
Statement and covered by their opinions therein comply as to form in all
material respects with the applicable accounting requirements of the 1933 Act
and the 1934 Act and the related published rules and regulations thereunder;
(iii) based upon limited procedures set forth in detail in such letter (which
shall include, without limitation, the procedures specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial Information, with
respect to the unaudited condensed consolidated financial statements of the
Company and its
-22-
subsidiaries included or incorporated by reference in the Registration
Statement), nothing has come to their attention which causes them to believe
that:
(1) any material modifications should be made to the unaudited
condensed consolidated financial statements included or incorporated by
reference in the Registration Statement for them to be in conformity with
generally accepted accounting principles;
(2) the unaudited condensed consolidated financial statements
included or incorporated by reference in the Registration Statement do
not comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1934 Act as it applies to
Form 10-Q and the related published rules and regulations;
(3) at a specified date not more than three days prior to the
date of such letter, there was any change in the capitalization of the
Company and its subsidiaries, any decrease in total assets, any change in
long-term debt or any change in short-term borrowings of the Company and
its subsidiaries, as compared with the amounts shown in the most recent
consolidated balance sheet incorporated by reference in the Registration
Statement; or
(4) during the period from the date of the most recent
consolidated balance sheet incorporated by reference in the Registration
Statement to a specified date not more than three days prior to the date
of such letter, there were any decreases, as compared with the
corresponding period in the preceding year, in real estate rental
revenue, net income or net income per share of the Company and its
subsidiaries;
except in all cases for changes, increases or decreases which the
Registration Statement discloses have occurred or may occur; (iv) in addition
to the limited procedures referred to in clause (iii) above, they have
carried out certain specified procedures, not constituting an audit, with
respect to certain amounts, percentages and financial information which are
derived from the general accounting records of the Company and its
subsidiaries, which are included or incorporated by reference in the
Registration Statement and which are specified by you, and have compared such
amounts, percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in agreement; and
(v) they have compared the information in the Prospectus under the caption
"Selected Financial Data" with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing came
to their attention as a result of the foregoing procedures that caused them
to believe that this information does not conform in all material respects
with the disclosure requirements of Item 301 of Regulation S-K.
-23-
(e) At Closing Time, you shall have received from Xxxxxx
Xxxxxxxx LLP a letter, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to
subsection (d) of this Section 5, except that the specified date referred
to shall be a date not more than three business days prior to the Closing
Time.
(f) At the time of the execution of the applicable Terms
Agreement, you shall have received from Price Waterhouse L.L.P. a letter
dated such date, in form and substance satisfactory to you, to the
effect that (i) they are independent public accountants with respect to
the Company and its subsidiaries as required by the 1933 Act and the
1934 Act and the applicable published rules and regulations thereunder;
and (ii) it is their opinion that the consolidated financial statements
and supporting schedules of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and covered by
their opinions therein comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the 1934 Act
and the related published rules and regulations thereunder.
(g) If applicable, at the time of the execution of the
applicable Terms Agreement, you shall have received a letter dated such
date from such independent accountants that have prepared any historical
financial statements included in or incorporated by referenced into the
Registration Statement and Prospectus which financial statements relate
to properties or assets acquired or to be acquired by the Company, or any
of its subsidiaries, in form and substance satisfactory to the
Underwriters, to the effect that (i) they are independent accountants
with respect to the Company and such properties or assets acquired by the
Company within the meaning of the 1933 Act and the 1933 Act Regulations;
and (ii) it is their opinion that the historical financial statements for
such properties or assets that have been audited by them and covered by
their opinions included or incorporated by reference into the
Registration Statement and the Prospectus comply in form in all material
respects with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations.
(h) At Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any
"nationally recognized statistical rating organization", as defined by
the Commission for purposes of Rule 436(g)(2) of the 1933 Act
Regulations, if and as specified in the applicable Terms Agreement, and
the Company shall have delivered to you a letter, dated as of such date,
from each such rating organization, or other evidence satisfactory to
you, confirming that the Underwritten Securities have such ratings.
Since the time of execution of such Terms Agreement, there shall not have
occurred a downgrading in the rating assigned to the Underwritten
Securities or any of the Company's other securities by any such rating
organization, and no such rating organization shall have publicly
announced that it has under surveillance or review its rating of the
Underwritten Securities or any of the Company's other securities.
-24-
(i) At Closing Time, the Underwritten Securities shall have been
approved for listing, subject only to official notice of issuance, if and
as specified in the applicable Terms Agreement.
(j) On the date of the applicable Terms Agreement, you shall have
received, in form and substance satisfactory to you, each lock-up
agreement, if any, specified in such Terms Agreement as being required to
be delivered by the persons listed therein.
(k) In the event that the Underwriters are granted an over-allotment
option by the Company in the applicable Terms Agreement and the
Underwriters exercise their option to purchase all or any portion of the
Option Underwritten Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished
by the Company or any of its subsidiaries hereunder shall be true and
correct as of each Date of Delivery, and, at the relevant Date of
Delivery, you shall have received:
(1) A certificate, dated such Date of Delivery, of the
President or a Vice President of the Company and the chief
financial officer or chief accounting officer of the Company,
confirming that the certificate delivered at the Closing Time
pursuant to Section 5(c) hereof remains true and correct as of such
Date of Delivery.
(2) The favorable opinion of Arent Fox Xxxxxxx Xxxxxxx & Xxxx,
counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery, relating
to the Option Underwritten Securities and otherwise to the same
effect as the opinion required by Section 5(b)(1) hereof.
(3) The favorable opinion of Xxxxxxx & Xxxxx L.L.P., counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Underwritten Securities and otherwise to the same effect as
the opinion required by Section 5(b)(2) hereof.
(4) A letter from Xxxxxx Xxxxxxxx LLP, in form and substance
satisfactory to you and dated such Date of Delivery, substantially
in the same form and substance as the letter furnished to you
pursuant to Section 5(e) hereof, except that the "specified date"
on the letter furnished pursuant to this paragraph shall be a date
not more than three business days prior to such Date of Delivery.
(l) At Closing Time and at each Date of Delivery, counsel for the
Underwriters shall have been furnished with such documents and opinions
as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Underwritten Securities as herein contemplated,
or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Underwritten Securities
-25-
as herein contemplated shall be satisfactory in form and substance to you
and counsel for the Underwriters.
(m) If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms
Agreement (or, with respect to the Underwriters' exercise of any
applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations
of the Underwriters to purchase the Option Underwritten Securities on
such Date of Delivery) may be terminated by you by notice to the Company
at any time at or prior to the Closing Time (or such Date of Delivery, as
applicable), and such termination shall be without liability of any party
to any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in
full force and effect.
SECTION 6. Indemnification.
(a) The Company hereby agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 434 Information
deemed to be a part thereof, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that any such settlement
is effected with the written consent of the Company; and
(3) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel
chosen by you), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
-26-
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 434 Information
deemed to be a part thereof, if applicable, or any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its trustees, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through you
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a result
thereof and in any event shall not relieve it from any liability which it may
have otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by you, and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their
own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or
Section 7 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
-27-
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received
by the Company, on the one hand, and the Underwriters, on the other hand,
from the offering of the Underwritten Securities pursuant to the applicable
Terms Agreement or (ii) if the allocation provided by clause (i) 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 of the Underwriters, on
the other hand, in connection with the statements or omissions which resulted
in such losses, liabilities, claims, damages or expenses, as well as any
other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds
from the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or,
if Rule 434 is used, the corresponding location on the Term Sheet, bear to
the aggregate initial public offering price of such Underwritten Securities
as set forth on such cover.
The relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed
to the public were offered to the public exceeds the
-28-
amount of any damages which such Underwriter has otherwise been required to
pay by reason of any 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 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each trustee of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial Underwritten Securities
set forth opposite their respective names in the applicable Terms Agreement,
and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in certificates
of officers of the Company submitted pursuant hereto or thereto shall remain
operative and in full force and effect, regardless of any investigation made
by or on behalf of any Underwriter or controlling person, or by or on behalf
of the Company, and shall survive delivery of and payment for the
Underwritten Securities.
SECTION 9. Termination.
(a) This Underwriting Agreement (excluding the applicable Terms
Agreement) may be terminated for any reason at any time by the Company or by
you upon the giving of 30 days' prior written notice of such termination to
the other party hereto.
(b) You may terminate the applicable Terms Agreement, by notice to the
Company, at any time at or prior to the Closing Time or any relevant Date of
Delivery, if (i) there has been, since the time of execution of such Terms
Agreement or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or any
outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in your judgment, impracticable to
market the Underwritten Securities or to enforce contracts for the sale of
the Underwritten Securities, or (iii) trading in any securities of the
Company has been suspended or limited by the Commission or the American Stock
Exchange, or if trading generally on the New York Stock Exchange or the
American Stock Exchange or in the Nasdaq National Market has been suspended
or limited, or minimum or
-29-
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by either of said exchanges or by such system or by order of
the Commission, the NASD or any other governmental authority, or (iv) a
banking moratorium has been declared by either Federal or New York
authorities.
(c) If this Underwriting Agreement or the applicable Terms Agreement is
terminated pursuant to this Section 9, such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which
it or they are obligated to purchase under the applicable Terms Agreement
(the "Defaulted Securities"), then you shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, you shall not have completed
such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the number of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, the non-defaulting Underwriters shall
be obligated, severally and not jointly, to purchase the full number
thereof in the proportions that their respective underwriting obligations
under such Terms Agreement bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of Underwritten Securities to be purchased on such date pursuant to such
Terms Agreement, such Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the
purchase of Option Underwritten Securities on a Date of Delivery after
the Closing Time, the obligations of the Underwriters to purchase, and
the Company to sell, such Option Underwritten Securities on such Date of
Delivery) shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date
of Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either you or the Company shall have the
right to postpone the Closing Time or the relevant Date of Delivery, as the
case may be, for a period not exceeding seven days
-30-
in order to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed c/o [name and address of Representative]; and
notices to the Company shall be directed to it at 00000 Xxxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, attention of Xxxxx X. Xxxxxx, Senior Vice
President and Chief Financial Officer.
SECTION 12. Parties. This Underwriting Agreement and the applicable
Terms Agreement shall each inure to the benefit of and be binding upon you
and the Company, and, upon execution of such Terms Agreement, any other
Underwriters and their respective successors. Nothing expressed or mentioned
in this Underwriting Agreement or such Terms Agreement is intended or shall
be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and
7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Underwriting Agreement or such
Terms Agreement or any provision herein or therein contained. This
Underwriting Agreement and such Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto and thereto and their respective successors,
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Underwritten Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS OTHERWISE SET FORTH
HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
-31-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
Underwriting Agreement, along with all counterparts, will become a binding
agreement between you and the Company in accordance with its terms.
Very truly yours,
WASHINGTON REAL ESTATE
INVESTMENT TRUST
By:
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
[Name(s) of Representative(s)]
By:
Authorized Signatory
Exhibit A
WASHINGTON REAL ESTATE INVESTMENT TRUST
(a Maryland real estate investment trust)
[Title of Securities]
TERMS AGREEMENT
___________, 1997
To: Washington Real Estate Investment Trust
00000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx
Senior Vice President and Chief Financial Officer
Ladies and Gentlemen:
We (the "Representatives") understand that Washington Real Estate
Investment Trust (the "Company"), proposes to issue and sell its [common
shares of beneficial interest, par value $.01 per share (the "Common Shares")]
[_____ warrants (the "Common Share Warrants") to purchase Common Shares]
[preferred shares of beneficial interest, par value $.01 per share (the
"Preferred Shares")] ([such securities also being hereinafter referred to as]
the ["Initial] Underwritten Securities"). Subject to the terms and conditions
set forth or incorporated by reference herein, we [the underwriters named
below (the "Underwriters")] offer to purchase [, severally and not jointly,]
the respective number of [Initial] Underwritten Securities [opposite their
names set forth below] [, and a proportionate share of Option Underwritten
Securities set forth below, to the extent any are purchased] at the purchase
price set forth below .
A-1
Number of
Underwriter [Initial] Underwritten Securities
----------- ---------------------------------
________________
Total
________________
________________
The Underwritten Securities shall have the following terms:
[Common Shares]
---------------
Title:
Number of shares:
Number of Option Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Shares]
------------------
Title:
Rank:
Ratings:
Number of shares:
Number of Option Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Initial public offering price per share: $___ plus accumulated
dividends, if any, from _____
A-2
Purchase price per share: $___ plus accumulated dividends, if any,
from _____
Other terms and conditions:
Closing date and location:
Common Share Warrants
---------------------
Title:
Number:
Warrant Agent:
Issuable jointly with Common Shares: [Yes] [No]
Number of Common Share Warrants Issued with each Common Share:
Date(s) from which or period(s) during which Common Share Warrants are
exercisable:
Date(s) on which Common Share Warrants expire:
Exercise price(s):
Initial public offering price: $
Purchase price: $
Number of shares purchasable upon exercise of one Common Share Warrant:
Terms of Underlying Securities:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Xxxxx X
hereto entitled "Washington Real Estate Investment Trust--Common Shares,
Common Share Warrants and Preferred Shares--Underwriting Agreement" are
hereby incorporated by reference in their entirety herein and shall be deemed
to be a part of this Terms Agreement to the same extent as if such provisions
had been set forth in full herein. Terms defined in such document are used
herein as therein defined.
A-3
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ______________ by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
[Name(s) of Representative(s)]
By:
By: _________________________
Authorized Signatory
[Acting on behalf of themselves and the other named
Underwriters.]
Accepted:
WASHINGTON REAL ESTATE INVESTMENT TRUST
By: _________________________
Name:
Title:
A-4
