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EXHIBIT 1
OASIS RESIDENTIAL, INC.
6 3/4% NOTES DUE 2001
7% NOTES DUE 2003
7 1/4% NOTES DUE 2006
UNDERWRITING AGREEMENT
November 20, 1996
X.X. XXXXXX SECURITIES INC.
XXXXXXX, XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX
& XXXXX INCORPORATED
PAINEWEBBER INCORPORATED
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Oasis Residential, Inc., a Nevada corporation (the "Company"), proposes to
issue and sell to you (the "Underwriters"), the principal amount of its debt
securities identified in Schedule I hereto (the "Securities"), to be issued
under the indenture specified in Schedule I hereto (the "Indenture") between the
Company and the Trustee identified in such Schedule (the "Trustee").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of Securities
Act of 1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Securities Act"), a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-3, relating to
certain securities (the "Shelf Securities") to be issued from time to time by
the Company. The Company also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Securities Act ("Rule 424") a
prospectus supplement specifically relating to the Securities. The registration
statement as amended to the date of this Agreement and including any
registration statement filed pursuant to Rule 462(b) under the Securities Act is
hereinafter referred to as the "Registration Statement" and the related
prospectus covering the Shelf Securities in the form first used to confirm sales
of the Securities is hereinafter referred to as the "Basic Prospectus." The
Basic Prospectus as supplemented by the prospectus supplement specifically
relating to the Securities in the form first used to confirm sales of the
Securities is
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hereinafter referred to as the "Prospectus." Any reference in this Agreement to
the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus (a "preliminary prospectus") previously filed with the Commission
pursuant to Rule 424 or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act which were filed under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Registration Statement, the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to "amend,"
"amendment" or "supplement" with respect the Registration Statement, the Basic
Prospectus, any preliminary prospectus or the Prospectus shall be deemed to
refer to and include any documents filed under the Exchange Act after the date
of this Agreement, or the date of the Registration Statement, the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase price set forth in
Schedule I hereto plus accrued interest, if any, from the date specified in
Schedule I hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend (i) to
make a public offering of their respective portions of the Securities and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made to the Company or to its order
in immediately available funds on the date and at the time and place set forth
in Schedule I hereto (or at such other time and place on the same or such other
date, not later than the third Business Day thereafter, as you and the Company
may agree in writing). Such payment will be made upon delivery to, or to you for
the respective accounts of, the Underwriters of the Securities registered in
such names and in such denominations as you shall request not less than two full
Business Days prior to the date of delivery, with any transfer taxes payable in
connection with transfer to the Underwriters duly paid by the Company. As used
herein, the term "Business Day" means any day other than a day on which banks
are permitted or required to be closed in New York City. The time and date of
such payment and delivery with respect to the Securities are referred to herein
as the "Closing Date." The Securities will be delivered through the book entry
facilities of The Depository Trust Company ("DTC") and will be made available
for inspection by you by 1:00 P.M. on the Business Day prior to the Closing Date
at such place in New York City as you, DTC and the Company shall agree.
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4. The Company represents and warrants to each Underwriter that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary 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 Securities Act,
complied when so filed in all material respects with the Securities Act, and did
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,
in the case of the Prospectus in the light of the circumstances under which they
were made, not misleading; provided that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein;
(b) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company, threatened by the
Commission; and the Registration Statement and Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) complied at the applicable effective date of the Registration Statement
and any amendment thereto and at the date of the Prospectus and any amendment or
supplement thereto, in all material respects with the Securities Act and the
Trust Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Trust Indenture Act"), and do not, as
of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the date of the Prospectus and any amendment or
supplement thereto, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and the Prospectus, as amended or supplemented at the
Closing Date, if applicable, will not contain any 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;
except that the foregoing representations and warranties shall not apply to (i)
that part of the Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the
Trustee, and (ii) statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
you expressly for use therein;
(c) the documents incorporated by reference in the Prospectus, when they
were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act, and when read together with the other
information in the Prospectus, at the time the Registration Statement became
effective and as of the date hereof, did not, and at the Closing Date will not,
contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; and any further documents so filed and
incorporated by reference in the
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Prospectus, when such documents are filed with the Commission will conform in
all material respects to the requirements of the Exchange Act, as applicable,
and, when such documents are filed with the Commission and at the Closing Date,
such documents, when read together with the other information in the Prospectus,
will not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(d) the historical financial statements and the related notes thereto,
included or incorporated by reference in the Registration Statement and the
Prospectus, comply in all material respects with the requirements of the
Securities Act and the Exchange Act, as applicable, and present fairly the
consolidated financial position of the Company and its consolidated subsidiaries
as of the dates indicated and the results of their operations and the changes in
their cash flows for the periods specified; the financial statements with
respect to the properties acquired or to be acquired by the Company, together
with related notes and schedules as set forth or incorporated by reference in
the Registration Statement or the Prospectus, present fairly the financial
position and the results of operations of such properties at the indicated dates
and for the indicated periods; the foregoing financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis, and the supporting schedules included or incorporated by
reference in the Registration Statement or the Prospectus present fairly the
information required to be stated therein; the summary financial and statistical
data included or incorporated by reference in the Registration Statement or the
Prospectus present fairly the information shown therein and have been compiled
on a basis consistent with the financial statements presented therein; the pro
forma financial information, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the Prospectus has
been prepared in accordance with the applicable requirements of the Securities
Act and the Exchange Act, as applicable; the assumptions used in preparing such
pro forma information are reasonable and the adjustments used therein are
appropriate to give effect to the transactions referred to therein; and the
other financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) are accurately presented in all material respects and prepared on a
basis consistent with the books and records of the Company and its consolidated
subsidiaries; the Company's ratio of earnings to fixed charges included in the
Prospectus and in Exhibit 12 to the Registration Statement have been calculated
in compliance with Item 503(d) of Regulation S-K of the Commission. No other
financial statements (or schedules) of the Company or any predecessor of the
Company are required by the Act to be included in the Registration Statement or
the Prospectus.
(e) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
change in the capital stock or long-term debt of the Company or any of the
Company's subsidiaries (within the meaning of Regulation S-X under the
Securities Act) as identified on Schedule III hereto (the "Subsidiaries") on a
consolidated basis, except as described or contemplated in the Prospectus, or
any material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, prospects,
management, properties, financial
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position, stockholders' equity or results of operations of the Company and the
Subsidiaries taken as a whole, otherwise than as set forth or contemplated in
the Prospectus; and except as set forth or contemplated in the Prospectus
neither the Company nor any of the Subsidiaries has entered into any transaction
or agreement (whether or not in the ordinary course of business) material to the
Company and the Subsidiaries, taken as a whole;
(f) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of Nevada, with
corporate power and authority to own or lease its properties and conduct its
business as described in the Prospectus, and is duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not (1) have a material
adverse effect on the condition, financial or otherwise, the earnings, business
affairs, prospects, properties, shareholders' equity or results of operations of
the Company and the Subsidiaries, taken as a whole, (2) adversely affect the
issuance, validity, or enforceability of the Securities or the enforceability of
the Indenture or (3) adversely affect the consummation of any of the
transactions contemplated by this Agreement (each of (1), (2) and (3) above, a
"Material Adverse Effect"); except for investments in the Subsidiaries, in
short-term investment securities or in securities as described in the
Registration Statement or Prospectus, the Company has no equity or other
interest in, or rights to acquire, an equity or other interest in any
corporation, partnership, trust or other entity; each of the Subsidiaries and
has been duly organized and is validly existing as a corporation, in good
standing under the laws of its jurisdiction of organization with corporate power
and authority to own its properties and conduct its business as presently
conducted and as described in the Prospectus, and is duly qualified as a foreign
corporation, for the transaction of business and in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, other than where the failure
to be so qualified or in good standing would not have a Material Adverse Effect;
all the outstanding shares of capital stock of each Subsidiary have been duly
authorized and validly issued, are fully-paid and non-assessable, and are owned
by the Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims; and except for investments in
securities as described in the Registration Statement or Prospectus, the
Subsidiaries have no equity or other interest in, or rights to acquire, an
equity or other interest in any corporation, partnership, trust or other entity;
(g) this Agreement has been duly authorized, executed and delivered by the
Company;
(h) the Securities have been duly authorized, and, when authenticated and
delivered by the Trustee in accordance with the terms of the Indenture, and paid
for by the Underwriters pursuant to this Agreement, such Securities will be
valid and binding obligations of the Company entitled to the benefit of the
Indenture and enforceable against the Company in accordance with their
respective terms, subject to (i) the effect of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws now or
hereafter in effect relating
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to or affecting the rights and remedies of creditors and (ii) the effect of
general principles of equity, whether enforcement is considered in a proceeding
in equity or at law, and the discretion of the court before which any proceeding
therefor may be brought; the Indenture has been duly qualified under the Trust
Indenture Act and when duly executed and delivered by the Company, assuming due
authorization, execution and delivery thereof by the Trustee, will constitute a
valid and legally binding obligation of the Company, enforceable in accordance
with its terms subject to (i) the effect of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights and remedies of creditors and (ii)
the effect of general principles of equity, whether enforcement is considered in
a proceeding in equity or at law, and the discretion of the court before which
any proceeding therefor may be brought; and the Securities and the Indenture
conform to the statements relating thereto contained in the Prospectus;
(i) neither the Company nor any of its Subsidiaries is, nor with the
giving of notice or lapse of time or both would be, in violation of or in
default under (1) its Articles of Incorporation or Certificate of Incorporation,
as the case may be (in each case as amended to the date of this Agreement), (2)
By-Laws (as amended to the date of this Agreement), or (3) any indenture,
mortgage, deed of trust, loan agreement, partnership agreement or other
agreement or other instrument or obligation to which the Company or Subsidiary
is a party or by which they or any of their properties are bound, except, with
respect to clauses (2) and (3) for violations and defaults which individually or
in the aggregate would not have a Material Adverse Effect; the issue and sale of
the Securities and the performance by the Company of all of its obligations
under the Securities, the Indenture and this Agreement and the consummation of
the transactions herein and therein contemplated will not result in creation or
imposition of any lien, charge or encumbrance upon the properties or other
assets of the Company or any of its Subsidiaries pursuant to the terms or
provisions of, or conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement, partnership agreement or other material agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Subsidiaries is subject, except
for such conflicts, breaches, defaults or violations which individually or in
the aggregate would not have a Material Adverse Effect, nor will any such action
result in any violation of the provisions of the Articles of Incorporation or
the By-Laws of the Company, except for any violation that would not have a
Material Adverse Effect, or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company, the Subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the transactions
contemplated by this Agreement or the Indenture, except such consents,
approvals, authorizations, orders, registrations or qualifications as have been
obtained under the Securities Act, the Trust Indenture Act, as may be required
under state securities or Blue Sky Laws or the Bylaws or Corporate Financing
Rule of the National Association of Securities Dealers, Inc. (the "NASD") in
connection with the purchase and distribution of the Securities by the
Underwriters, the failure of which to obtain would not
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have a Material Adverse Effect and except for the filing of this Agreement and
the Indenture with the Commission as exhibits to a Form 8-K which the Company
agrees to make in a timely manner;
(j) other than as set forth or contemplated in the Prospectus, there are
no legal or governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of the Subsidiaries or any of
their respective directors or officers in their capacity as such is or may be a
party or to which any property of the Company or any of the Subsidiaries is or
may be the subject which, if determined adversely to the Company, could
individually or in the aggregate reasonably be expected to have a Material
Adverse Effect;
(k) there are no contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or required to be described
in the Registration Statement or the Prospectus which are not filed or described
as required, except for the filing of this Agreement and the Indenture with the
Commission as exhibits to a Form 8-K, which the Company agrees to make in a
timely manner; and the descriptions of the terms of all such contracts and
documents contained or incorporated by reference in the Registration Statement
or Prospectus are complete and correct in all material respects; all such
contracts to which the Company or any subsidiary of the Company is a party have
been duly authorized, executed and delivered by the Company or such subsidiary,
constitute valid and binding agreements of the Company or such subsidiary and
are enforceable against the Company or such subsidiary in accordance with the
terms thereof, subject to (i) the effect of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights and remedies of creditors and (ii)
the effect of general principles of equity, whether enforcement is considered in
a proceeding in equity or at law, and the discretion of the court before which
any proceeding therefor may be brought, except where the failure to be so
authorized, executed and delivered and enforceable would not have a Material
Adverse Effect;
(l) the Company's authorized, issued and outstanding capital stock as of
September 30, 1996 is as set forth in the Prospectus; and all of the issued
shares of capital stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable;
(m) the Company and the Subsidiaries have good and marketable title in fee
simple to all real property described in the Prospectus, in each case free of
any lien, mortgage, pledge, charge or encumbrance of any kind except those
reflected in such financial statements or as described in the Prospectus or
which do not materially affect or detract from the value of such property or
materially interfere with the use made and proposed to be made of such property
by the Company and the Subsidiaries;
(n) title insurance in favor of the mortgagees and the Company or its
subsidiaries is in force with respect to each of the properties described in the
Prospectus as being owned by the Company or its Subsidiaries, in each case in an
amount at least equal to the acquisition
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price for each such property paid by the Company, except in each case, where the
failure to maintain such title insurance would not have a Material Adverse
Effect;
(o) the mortgages and deeds of trust encumbering the properties described
in the Prospectus are not (i) cross-defaulted to any indebtedness other than
indebtedness of the Company or any of the Subsidiaries or (ii)
cross-collateralized to any property not owned by the Company or any of the
Subsidiaries;
(p) the Company and the Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are customary in the business in which they are engaged and is adequate for the
value of their properties; all policies of insurance insuring the Company or the
Subsidiaries or their respective business, assets, employees, officers, trustees
or directors, as the case may be, are in full force and effect; the Company and
the Subsidiaries are in compliance with the terms of such policies and
instruments in all material respects and there are no claims by the Company or
by the Subsidiaries under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation of
rights clause, other than claims which individually or in the aggregate would
not have a Material Adverse Effect;
(q) 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 and are not being contested in good faith;
(r) each of the Company and the Subsidiaries owns, possesses or has
obtained all material licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all material declarations
and filings with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals, necessary
to own or lease, as the case may be, and to operate its properties and to carry
on its business as conducted as of the date hereof, except in each case where
the failure to obtain licenses, permits, certificates, consents, orders,
approvals and other authorizations, or to make all declarations and filings,
would not have a Material Adverse Effect, and none of the Company or any of the
Subsidiaries has received any notice of any proceeding relating to revocation or
modification of any such license, permit, certificate, consent, order, approval
or other authorization, except as described in the Registration Statement or the
Prospectus and except, in each case, where such revocation or modification would
not have a Material Adverse Effect; and the Company and each of the Subsidiaries
are in compliance with all laws, rules and regulations relating to the conduct
of their respective businesses as conducted as of the date hereof, except where
noncompliance with such laws, rules or regulations would not have a Material
Adverse Effect;
(s) to the Company's knowledge, Xxxxxxx & Xxxxxxx L.L.P., who have
certified certain of the financial statements filed with the Commission as part
of, or incorporated by
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reference in, the Registration Statement, are independent public accountants as
required by the Securities Act;
(t) no relationship, direct or indirect, exists between or among the
Company or the Subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or the Subsidiaries on the
other hand, which is required by the Securities Act to be described in the
Registration Statement and the Prospectus which is not so described;
(u) the Company is not now, and immediately after giving effect to the
offering and sale of the Securities under this Agreement will not be, an
"investment company" or entity "controlled" by an "investment company", within
the meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(v) with respect to all tax periods regarding which the Internal Revenue
Service is or will be entitled to assert any claim against the Company, the
Company has met the requirements for qualification as a real estate investment
trust ("REIT") under Sections 856 through 860 of the Internal Revenue Code of
1986, as amended (the "Code"), and the Company's present and contemplated
operations, assets and income continue to meet such requirements;
(w) the conditions for the use by the Company of a registration statement
on Form S-3 set forth in the General Instructions on Form S-3 have been
satisfied and the Company is entitled to use such form for the transactions
contemplated herein;
(x) (i) Except as disclosed in the "Phase I" reports with respect to any
of the properties, neither the Company nor any of its Subsidiaries, and to the
knowledge of the Company, any other party has at any time handled, buried,
stored, retained, refined, transported, processed, manufactured, generated,
produced, spilled, allowed to seep, leak, escape or xxxxx, or be pumped, poured,
emitted, emptied, discharged, injected, dumped, transferred or otherwise
disposed of or dealt with, Hazardous Materials on, to or from the properties,
other than any such action taken in compliance with all applicable Environmental
Laws or by tenants in connection with the ordinary use of residential properties
owned by the Company, except as would not have a Material Adverse Effect. The
Company does not intend to use the Properties or any subsequently acquired
properties described in the Prospectus for the purpose of handling, burying,
storing, retaining, refining, transporting, processing, manufacturing,
generating, producing, spilling, seeping, leaking, escaping, leaching, pumping,
pouring, emitting, emptying, discharging, injecting, dumping, transferring or
otherwise disposing of or dealing with Hazardous Materials, other than any such
action, taken in compliance with all applicable Environmental Laws or by tenants
in connection with the ordinary use of residential properties owned by the
Company, except as would not have a Material Adverse Effect;
(ii) Neither the Company nor any of its Subsidiaries has received
notice of, or has knowledge of any occurrence or circumstance which, with notice
or passage of time or both, would give rise to, any claim under or pursuant to
any Environmental Law pertaining to hazardous or toxic waste or substances on or
originating from the Properties or arising out of
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the conduct of any such party, including, without limitation, pursuant to any
Environmental Law, which would have a Material Adverse Effect;
As used herein, "Hazardous Materials" shall include, without
limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances, or related
materials, asbestos or any material as defined by any Federal, state or local
environmental law, ordinance, rule or regulation including, without limitation,
Environmental Laws, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.) ("CERCLA"),
the Hazardous Materials Transportation Act, as amended (49 U.S.C. Section 1801,
et seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C.
Section 9601, et seq.), and in the regulations adopted and publications
promulgated pursuant to each of the foregoing or by any Federal, state or local
governmental authority having or claiming jurisdiction over the Properties as
described in the Prospectus.
(y) subsequent to the respective dates as of which information is given in
the Prospectus, the Company has not purchased any of its outstanding shares of
capital stock, or declared, paid or otherwise made any dividend or distribution
of any kind on its shares of Capital Stock other than regular periodic dividends
on such shares;
(z) the Company has not taken and will not take, directly or indirectly,
any action designed to, or that might be reasonably expected to, cause or result
in stabilization or manipulation of the price of the Securities, and the Company
has not distributed and has agreed not to distribute any prospectus or other
offering material in connection with the offering and sale of the Securities
other than the Prospectus, any preliminary prospectus filed with the Commission
or other material permitted by the Securities Act; and
(aa) the Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets, financial and
corporate books and records is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
5. The Company covenants and agrees with the several Underwriters as
follows:
(a) to file the Prospectus in a form approved by you pursuant to Rule 424
under the Securities Act not later than the Commission's close of business on
the second Business Day following the date of determination of the offering
price of the Securities; and to furnish copies of the Prospectus to the
Underwriters in New York City prior to 10:00 a.m., New York City time, as soon
as practicable after the date of this Agreement in such quantities as you may
reasonably request;
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(b) to deliver to each Representative and counsel for the Underwriters, at
the expense of the Company, a conformed copy of the Registration Statement (as
originally filed) and each amendment thereto, in each case as may be requested
by such party, including exhibits and documents incorporated by reference
therein and, during the period mentioned in paragraph (e) below, to each of the
Underwriters as many copies of the Prospectus (including all amendments and
supplements thereto) and documents incorporated by reference therein as you may
reasonably request, as soon as practicable after the same has been filed with
the Commission.
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, to furnish to you a copy of any proposed amendment
or supplement to the Registration Statement or the Prospectus, for your review,
and not to file any such proposed amendment or supplement to which you
reasonably object;
(d) to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Securities, and during such same period, to advise the Representatives and
counsel for the Underwriters promptly, and to confirm such advice in writing,
(i) when any amendment to the Registration Statement shall have become
effective, (ii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
any additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose, (iv) of the
occurrence of any event, within the period referenced in paragraph (e) below, as
a result of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
and (v) of the receipt by the Company of any notification with respect to any
suspension of the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and to use its best efforts to prevent the issuance of any such stop
order or notification and, if issued, to obtain as soon as possible the
withdrawal thereof;
(e) if, during such period after the first date of the public offering of
the Securities as in the opinion of counsel for the Underwriters a prospectus
relating to the Securities is required by law to be delivered in connection with
sales by an Underwriter or dealer, any event shall occur as a result of which it
is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and furnish,
at the expense of the Company, to the Underwriters and to the dealers (whose
names and addresses you will furnish to the Company) to which Securities may
have been sold by you on behalf of the Underwriters and to any other dealers
upon request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or supplemented
will not, in the light of
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the circumstances when the Prospectus is delivered to a purchaser, be misleading
or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to continue such qualification in effect so long as reasonably
required for distribution of the Securities, provided that the Company shall not
be required to file a general consent to service of process in any jurisdiction;
(g) to make generally available to its security holders and to you as soon
as practicable but not later than 130 days after the close of the period covered
thereby an earnings statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Company occurring after the
effective date of the Registration Statement, which shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder;
(h) so long as the Securities are outstanding, to furnish to you copies of
all reports or other communications (financial or other) furnished to holders of
Securities, and copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange;
(i) during the period beginning on the date hereof and continuing to and
including the Business Day following the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of or guaranteed by
the Company which are substantially similar to the Securities without your prior
written consent;
(j) to use the net proceeds of the offering of the Securities in the
manner specified in the Prospectus under "Use of Proceeds;"
(k) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay all costs and expenses
incident to the performance of its obligations hereunder, including without
limiting the generality of the foregoing, all costs and expenses (i) incident to
the preparation, issuance, execution, authentication and delivery of the
Securities, including any expenses of the Trustee, (ii) incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement, the Prospectus and any preliminary prospectus (including in each case
all exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Securities under the laws of such jurisdictions as the
Underwriters may designate (including fees and disbursements of counsel for the
Underwriter), (iv) in connection with the listing of the Securities on any stock
exchange, (v) related to any filing with National Association of Securities
Dealers, Inc., (vi) in connection with the printing (including word processing
and duplication costs) and delivery of this Agreement, the Indenture, the Blue
Sky Memoranda and the furnishing to Underwriters and dealers of copies of the
Registration Statement and the Prospectus, including mailing and shipping, as
herein provided, (vii) payable
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to rating agencies in connection with the rating of the Securities, (viii) any
expenses incurred by the Company in connection with a "road show" presentation
to potential investors and (ix) the cost and charges of any transfer agent; and
6. The several obligations of the Underwriters hereunder shall be subject
to the performance by the Company of its obligations hereunder and to the
following conditions:
(a) the Prospectus shall have been filed with the Commission pursuant to
Rule 424 within the applicable time period prescribed for such filing by such
Rule; no stop order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to your satisfaction;
(b) the representations and warranties of the Company contained herein are
true and correct on and as of the Closing Date as if made on and as of the
Closing Date and the Company shall have complied with all agreements and all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date;
(c) subsequent to the execution and delivery of this Agreement and prior
to the Closing Date, there shall not have occurred any downgrading, nor shall
any notice have been given of (i) any intended or potential downgrading or (ii)
any review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the
Registration Statement and the Prospectus there shall not have been any material
change in the capital stock or long-term debt of the Company or any of its
Subsidiaries on a consolidated basis, except as described or contemplated in the
Prospectus, or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
business, prospects, management, properties, financial position, stockholders'
equity or results of operations of the Company and its Subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus, the effect
of which in your judgment makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities on the terms and in the
manner contemplated in the Prospectus;
(e) you shall have received on and as of the Closing Date a certificate of
the Chairman of the Board of Directors or President or Chief Executive Officer
of the Company and the Chief Financial or Accounting Officer of the Company
satisfactory to you to the effect set forth in subsections (a) through (c) of
this Section and to the further effect that there has not occurred any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, business, prospects, management,
properties, financial
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position, stockholders' equity or results of operations of the Company and the
Subsidiaries taken as a whole from that set forth or contemplated in the
Registration Statement.
(f) Xxxxxx & Xxxxxxx, counsel for the Company, shall have furnished to you
its written opinion, dated the Closing Date, in form and substance satisfactory
to you, as to the matters set forth below in clauses (v), (viii) (except with
respect to matters to be opined to by Xxxxxxx Xxxx), (ix) (except with respect
to matters to be opined to by Xxxxxxx Xxxx), (x), (xii) (with respect to (i) and
(iii) (with respect to U.S. federal laws normally applicable to the execution,
delivery and performance of an indenture such as the Indenture and the issuance
and sale of notes such as the Notes, provided that no opinion need be expressed
as to any misstatements or omissions in the Registration Statement or the
Prospectus), (xiv) (other than with respect to Nevada law), (xv) (with respect
to (ii)), (xvi), (xvii), (xviii) and (xix) only; Xxxxxxx Xxxx, counsel for the
Company, shall have furnished to you its written opinion, dated the Closing
Date, in form and substance satisfactory to you, as to the matters set forth
below in clauses (i), (ii), (iii), (iv), (vii), (viii) (with respect to due
authorization only), (ix) (with respect to due authorization, execution and
delivery only), (xii) (with respect to (ii) and (iii) (as to Nevada law only)),
(xiii), (xiv) (with respect to Nevada law only and excluding Nevada Blue Sky
laws) and (xv) (with respect to (i)) only; and Xxxx Xxxxxxx, Esq., general
counsel of the Company, shall have furnished to you his written opinion, dated
the Closing Date, in form and substance satisfactory to you, as to matters set
forth below in clauses (vi) and (xi):
(i) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of Nevada, with corporate
power and corporate authority to own its properties and conduct its
business as described in the Prospectus;
(ii) the Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a Material
Adverse Effect;
(iii) each of the Subsidiaries has been duly organized and is
validly existing as a corporation, in good standing under the laws of
their jurisdictions of organization, with corporate power and corporate
authority to own its properties and conduct its business as described in
the Prospectus;
(iv) each of the Subsidiaries has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not have a
Material Adverse Effect;
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15
(v) such counsel has not been retained by the Company to represent
it in connection with any pending litigation; and such counsel does not
know of any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus or required to be described
in the Registration Statement or the Prospectus which are not filed or
incorporated by reference or described as required;
(vi) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or, to the best of
such counsel's knowledge, threatened to which the Company or the
Subsidiaries is or may be a party or to which any property of the Company
or the Subsidiaries is or may be the subject which, if determined
adversely to the Company or the Subsidiaries, could individually or in the
aggregate reasonably be expected to have a Material Adverse Effect; to the
best of such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vii) the Company has full corporate power and corporate authority
to enter into this Agreement; this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) the issuance of the Securities has been duly authorized and
when executed and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of this Agreement, will constitute valid and legally
binding obligations of the Company entitled to the benefits provided for
in the Indenture, enforceable against the Company in accordance with their
terms;
(ix) the Indenture has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding agreement of
the Company enforceable against the Company in accordance with its terms;
and the Indenture has been duly qualified under the Trust Indenture Act;
(x) the Indenture and the Securities conform in all material
respects to the descriptions thereof in the Registration Statement and the
Prospectus under the captions "Description of Notes" and "Description of
Debt Securities";
(xi) neither the Company nor any of the Subsidiaries is, nor with
the giving of notice or lapse of time or both would be, in violation of or
in default under, (1) its Articles of Incorporation or Certificate of
Incorporation, as the case may be (in each case as amended to the Closing
Date), (2) By-Laws (as amended to the Closing Date), or (3) any indenture,
mortgage, deed of trust, loan agreement, partnership agreement, other
governing instruments, or any other agreement or instrument to which the
Company or any Subsidiary is a party or by which they or any of their
respective properties are bound and which have been identified in a
writing delivered to such counsel by the
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Company as being material to the Company and its Subsidiaries taken as a
whole, except with respect to this clause (2) for violations and defaults
which individually or in the aggregate would not have a Material Adverse
Effect;
(xii) the issue and sale of the Securities and the performance by
the Company of its obligations under the Securities, the Indenture and
this Agreement and the consummation of the transactions herein and therein
contemplated will not (i) conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument filed by the Company under the Securities Act or the Exchange
Act (which indentures, mortgages, deeds of trust, loan agreements or other
agreements or instruments have been identified to such counsel as being
operative and in full force and effect) known to such counsel to which the
Company or any Subsidiary is a party or by which the Company or any
Subsidiary is bound or to which any of the property or assets of the
Company or any Subsidiary is subject, (ii) result in any violation of the
provisions of the Articles of Incorporation or the By-Laws of the Company
or (iii) except where it would not involve a Material Adverse Effect,
result in the violation of any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company, its Subsidiaries or any of their respective
properties;
(xiii) the Company's authorized, issued and outstanding shares of
capital stock is as set forth under the caption "Capitalization" in the
Prospectus;
(xiv) no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the issue and sale of the Securities by the Company or the
consummation by the Company of the other transactions contemplated by this
Agreement or the Indenture, except such consents, approvals,
authorizations, orders, registrations or qualifications as have been
obtained under the Securities Act and the Trust Indenture Act and as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(xv) the statements in the Prospectus under the captions (i)
"Restrictions on Transfer of Capital Stock" and (ii) "Federal Income Tax
Considerations," insofar as such statements constitute a summary of the
legal matters or documents referred to therein, fairly present the
information called for with respect to such legal matters or documents;
(xvi) to the best of such counsel's knowledge based solely upon
representations of the Company, the Company (i) has qualified to be taxed
as a real estate investment trust pursuant to Sections 856 through 860 of
the Internal Revenue Code, for the taxable years ended December 31, 1993
through December 31, 1995, (ii) presently has organi-
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zation, ownership, operations, assets and income such that the Company
will be in a position under present law to so qualify for the fiscal year
ending December 31, 1996;
(xvii) the Registration Statement has been declared effective under
the Securities Act and the Indenture has been qualified under the Trust
Indenture Act, the Prospectus was filed with the Commission pursuant to
Rule 424 within the applicable time period prescribed by Rule 424 and, to
the knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that
purpose is pending or threatened by the Commission;
(xviii) the Registration Statement and the Prospectus and any
amendments and supplements thereto (except for the financial statements,
schedules, pro forma or other financial or statistical data included or
incorporated by reference therein or the Form T-1 as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act; and
(xix) the Company is not (after giving effect to the sale of the
Securities) an "investment company" or entity "controlled" by an
"investment company" within the meaning of the Investment Company Act.
In rendering such opinions, such counsel may rely as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible officers
of the Company and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the corporate existence or
good standing of the Company. Such opinion may state that the opinions given
pursuant to subparagraphs (viii) and (ix) are subject to the following
exceptions, limitations and qualifications: (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights and remedies of creditors; (ii) the
effect of general principles of equity, whether enforcement is considered in a
proceeding in equity or law, and the discretion of the court before which any
proceeding therefor may be brought; (iii) the unenforceability under certain
circumstances under law or court decisions of provisions providing for the
indemnification of or contribution to a party with respect to a liability where
such indemnification or contribution is contrary to public policy; (iv) such
counsel expresses no opinion concerning the enforceability of the waiver of
rights or defenses in the Indenture; and (v) the manner by which the
acceleration of the Securities may affect the collectibility of that portion of
the stated principal amount thereof which might be determined to constitute
unearned interest thereon.
Xxxxxx & Xxxxxxx also shall state that it has participated in conferences
with officers and other representatives of the Company, representatives of the
independent public accountants for the Company, and representatives of the
Underwriters, at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although such counsel is not
passing upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus and has not made any independent check or
verification thereof, during the course of that
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18
participation (relying as to materially to a large extent upon the statements of
officers and other representatives of the Company), no facts came to such
counsel's attention that caused such counsel to believe that the Registration
Statement, including the documents incorporated therein by reference, at the
date of filing of the Company's Current Report on Form 8-K filed on November 18,
1996, 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, including the documents
incorporated therein by reference, on the date of filing thereof with the
Commission or at the Closing Date, included an untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; it being understood that such counsel need express no opinion as to
the financial statements, schedules, pro forma or other financial or statistical
data included in the Registration Statement or the Prospectus or the Form T-1.
(g) on the date of this Agreement and on the Closing Date, Xxxxxxx &
Xxxxxxx L.L.P. shall have furnished to you letters, dated such date, in form and
substance satisfactory to you, containing statements and information of the type
customarily included in accountants "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus, including, without limitation,
a statement that they have made a review of the unaudited financial statements
for the nine months ended September 30, 1996 included or incorporated by
reference in the Registration Statement in accordance with the standards
established by the American Institute of Certified Public Accountants;
(h) you shall have received on and as of the Closing Date an opinion of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Underwriters, with
respect to the validity of the Indenture and the Securities, the Registration
Statement, the Prospectus and other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(i) on or prior to the Closing Date, the Company shall have furnished to
you such further certificates and documents confirming the representations and
warranties contained herein and related matters as you shall reasonably request;
and
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects satisfactory to you and to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
counsel for the Underwriters.
7. The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including without
limitation the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue
18
19
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein; provided, that the
foregoing indemnity with respect to any preliminary prospectus or preliminary
prospectus supplement shall not inure to the benefit of any Underwriter (or to
the benefit of the person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased Securities
if such untrue statement or omission or alleged untrue statement or omission
made in such preliminary prospectus or preliminary prospectus supplement is
eliminated or remedied in the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) and, if
required by law, a copy of the Prospectus (as so amended or supplemented) shall
not have been furnished to such person at or prior to the written confirmation
of the sale of such Securities to such person, provided further that the Company
shall have complied with its obligations under Section 5(b) hereof with respect
to the Prospectus (as so amended or supplemented).
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus. For purposes of this Section 7 and Sections 4(a) and
4(b), the only written information furnished by the Underwriters to the Company
expressly for use in the Registration Statement and the Prospectus is (a) the
information in the last paragraph on the cover page of the Prospectus
specifically relating to the Securities, (b) the information regarding
stabilization in the first paragraph on the inside front cover page of the
Prospectus specifically relating to the Securities and (c) the information in
the third and sixth paragraphs, under the caption "Underwriting" in the
Prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
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and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by X.X.
Xxxxxx Securities Inc. and any such separate firm for the Company, its
directors, its officers who sign the Registration Statement and such control
persons of the Company or authorized representatives shall be designated in
writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by the third sentence of this paragraph,
the Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. If it is ultimately determined that an Indemnified Person was not
entitled to indemnification hereunder, such Indemnified Person shall be
responsible for repaying or reimbursing the Indemnifying Person for any amounts
so paid or incurred by such Indemnifying Person pursuant to this paragraph. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (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 Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the
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relative fault of the Company on the one hand and the Underwriters on the other
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, 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 shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Securities (before
deducting expenses) received by the Company and the total underwriting discounts
and the commissions received by the Underwriters bear to the aggregate public
offering price of the Securities. The relative fault of the Company on the one
hand and the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or by the Underwriters on
the other 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 that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amounts of Securities set forth opposite their names in
Schedule II hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7 and
the representations, warranties and covenants of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
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8. Notwithstanding anything herein contained, this Agreement may be
terminated in your absolute discretion by notice given to the Company, if after
the execution and delivery of this Agreement and prior to the Closing Date (i)
the Company shall have failed, refused or been unable, at or prior to the
Closing Date, to perform any agreements on its part to be performed hereunder,
(ii) any other conditions to the Underwriters' obligations hereunder is not
fulfilled, (iii) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities Dealers, Inc.,
the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (iv) trading of any securities of or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter
market, (v) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities; or
(vi) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your judgment is
material and adverse and which, in your judgment, makes it impracticable to
market the Securities on the terms and in the manner contemplated in the
Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase Securities which it or they have agreed to purchase under
this Agreement, and the aggregate principal amount of Securities, which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Securities,
the other Underwriter or Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule II hereto bears to the aggregate principal amount
of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the non-defaulting Underwriters
may specify, to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Securities that any Underwriter
has agreed to purchase pursuant to Section 1 be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such principal amount of
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Securities to be purchased, and arrangements satisfactory to the
Underwriters and the Company for the purchase of such Securities are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either you or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be
22
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unable to perform its obligations under this Agreement or any condition of the
Underwriters' obligations cannot be fulfilled, the Company agrees to reimburse
the Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and expenses of their counsel) reasonably incurred by the Underwriters in
connection with this Agreement or the offering of Securities contemplated
hereunder and the Company shall then be under no further liability to any
Underwriters pursuant to this Agreement except as provided in Sections 5(k) and
7 of this Agreement.
11. This Agreement shall inure to the benefit of and be legally binding
upon the Company, the Underwriters, any controlling persons referred to herein
and their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person, firm
or corporation any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. Any action by the Underwriters hereunder may be taken by you jointly
or by X.X. Xxxxxx Securities Inc. alone on behalf of the Underwriters, and any
such action taken by you jointly or by X.X. Xxxxxx Securities Inc. alone shall
be binding upon the Underwriters. 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 given to the Underwriters, c/o X.X. Xxxxxx Securities
Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Department,with a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxx, Esq. Notices to
the Company shall be given to it at Oasis Residential, Inc., 0000 Xxxx Xxxxxx
Xxxx, Xxxxxxxxx, XX 00000, Attention: Xxxx Xxxxxxx, Esq., with a copy to Xxxxxx
& Xxxxxxx, 000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxxxx Xxxx, XX 00000, Attention:
Xxxxxxx X. Xxxx, Esq.
13. This Agreement may be signed in counterparts, each of which shall be
an original and all of which together shall constitute one and the same
instrument.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
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Very truly yours,
OASIS RESIDENTIAL, INC.
By: /s/ XXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
Accepted: November 20, 1996
X.X. XXXXXX SECURITIES INC.
XXXXXXX, XXXXX & CO.
XXXXX XXXXXX INCORPORATED
XXXXXXX LYNCH, XXXXXX, XXXXXX
& XXXXX INCORPORATED
By: X.X. XXXXXX SECURITIES INC., on
behalf of itself and the several Underwriters
listed in Schedule II hereto
By: /s/ XXXXXX XXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
24
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SCHEDULE I
Representatives: X.X. Xxxxxx Securities Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated
Xxxxx Xxxxxx Incorporated
Underwriting Agreement dated: November 20, 1996
Registration Statement No.: 33-90488
Title of Securities: 6 3/4% Notes Due 2001 (the "2001 Notes")
7% Notes Due 2003 (the "2003 Notes")
7 1/4% Notes Due 2006 (the "2006 Notes")
Aggregate principal amount: $150,000,000
Price to Public: The price to public for the 2001 Notes is
99.953% of the principal amount of the Secu-
rities, plus accrued interest, if any, from
November 25, 1996; the price to public of
the2003 Notes is 99.829% of the principal
amount of the Securities, plus accrued
interest, if any, from November 25, 1996;
and the price to public for the 2006 Notes
is 99.786% of the principal amount of the
Securities, plus accrued interest, if any,
from November 25, 1996.
Underwriting Discount: The underwriting discount for the 2001 Notes
is .625%; the underwriting discount for the
2003 Notes is .650%; and the underwriting
discount for the 2006 Notes is .700%.
Indenture: Indenture to be dated as of November 25,
1996 and the Supplemental Indenture to be
dated as of November 25, 1996 both between
Oasis Residential, Inc. and State Street
Bank and Trust Company of California, N.A.
26
Maturity: The 2001 Notes mature on November 15, 2001,
the 2003 Notes mature on November 15, 2003,
and the 2006 Notes mature on November 15,
2006
Interest Rate: The interest rate for the 2001 Notes is 6
3/4%; the interest rate for the 2003 Notes
is 7%; and the interest rate for the 2006
Notes is 7 1/4%.
Interest Payment Dates: Interest on the 2001 Notes,
the 2003 Notes and the 2006 Notes is payable
semi-annually on May 15 and November 15 of
each year, commencing May 15, 1997.
Optional Redemption Provisions: The Notes are redeemable at any time at the
option of the Company, in whole or in part,
at a redemption price equal to the sum of
(i) the principal amount of the Notes
being redeemed plus accrued interest thereon
to the redemption date and (ii) the
Make-Whole Amount (as defined in the
Supplemental Indenture).
Sinking Fund Provisions: None
Defeasance Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: November 25, 1996, 10:00 a.m.
Closing Location: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
1
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SCHEDULE II
Principal Amount
Underwriter To Be Purchased
----------- ----------------
X.X. Xxxxxx Securities Inc. $ 90,000,000
Xxxxxxx, Xxxxx & Co. 20,000,000
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx 20,000,000
Incorporated
Xxxxx Xxxxxx Incorporated 20,000,000
------------
Total......................... $150,000,000
============
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SCHEDULE III
Subsidiaries
------------
Ori Colorado, Inc.
Ori Park, Inc.
Ori Wexford, Inc.
3
