EXHIBIT 1.1
XXXXXX REALTY CORPORATION
10,000,000 Shares/1/
Common Stock
UNDERWRITING AGREEMENT
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August 14, 1997
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXX XXXXXX INC.
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Realty Corporation, a Maryland corporation (the "Company"), and
Xxxxxx Realty, L.P., a Delaware limited partnership (the "Operating
Partnership"), each hereby confirms its agreement with the several underwriters
named in Schedule 1 hereto (the "Underwriters"), for whom you have been duly
authorized to act as representatives (in such capacities, the
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/1/ Plus an option to purchase from Xxxxxx Realty Corporation up to
1,500,000 additional shares to cover over-allotments.
"Representatives"), as set forth below. If you are the only Underwriters, all
references herein to the Representatives shall be deemed to be to the
Underwriters.
1. Securities. Subject to the terms and conditions herein contained, the
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Company proposes to issue and sell to the several Underwriters an aggregate of
10,000,000 shares (the "Firm Securities") of the Company's common stock, par
value $.01 per share ("Common Stock"). The Company also proposes to issue and
sell to the several Underwriters not more than 1,500,000 additional shares of
Common Stock if requested by the Representatives as provided in Section 3 of
this Agreement. Any and all shares of Common Stock to be purchased by the
Underwriters pursuant to such option are referred to herein as the "Option
Securities," and the Firm Securities and any Option Securities are collectively
referred to herein as the "Securities."
2. Representations and Warranties of the Company and the Operating
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Partnership. The Company and the Operating Partnership, jointly and severally,
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represent and warrant to, and agree with, each of the several Underwriters that:
(a) A registration statement on Form S-11 (File No. 333-32261) with
respect to the Securities, including a prospectus subject to completion, has
been filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), and one
or more amendments to such registration statement may have been so filed. After
the execution of this Agreement, the Company will file with the Commission
either (i) if such registration statement, as it may have been amended, has been
declared by the Commission to be effective under the Act, either (A) if the
Company relies on Rule 434 under the Act, a Term Sheet (as hereinafter defined)
relating to the Securities, that shall identify the Preliminary Prospectus (as
hereinafter defined) that it supplements containing such information as is
required or permitted by Rules 434, 430A and 424(b) under the Act or (B) if the
Company does not rely on Rule 434 under the Act, a prospectus in the form most
recently included in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement), with such
changes or insertions as are required by Rule 430A under the Act or permitted by
Rule 424(b) under the Act, and in the case of either clause (i)(A) or (i)(B) of
this sentence as have been provided to and approved by the Representatives
prior to the execution of this Agreement, or (ii) if such registration
statement, as it may have been amended, has not been declared by the Commission
to be effective under the Act, an amendment to such registration statement,
including a form of prospectus, a copy of which amendment has been furnished to
and approved by the Representatives prior to the execution of this Agreement.
The Company may also file a related registration statement with the Commission
pursuant to Rule 462(b) under the Act for the purpose of registering certain
additional Securities, which registration, assuming compliance with the
requirements of Rule 462(b), shall be effective upon filing with the Commission.
As used in this Agreement, the term "Original Registration Statement" means the
registration statement initially filed relating to the
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Securities, as amended at the time when it was or is declared effective,
including all financial schedules and exhibits thereto and including any
information omitted therefrom pursuant to Rule 430A under the Act and included
in the Prospectus (as hereinafter defined); the term "Rule 462(b) Registration
Statement" means any registration statement filed with the Commission pursuant
to Rule 462(b) under the Act (including the Registration Statement and any
Preliminary Prospectus or Prospectus incorporated therein at the time such
Registration Statement becomes effective); the term "Registration Statement"
includes both the Original Registration Statement and any Rule 462(b)
Registration Statement; the term "Preliminary Prospectus" means each prospectus
subject to completion filed with such registration statement and any amendment
or supplement thereto (including the prospectus subject to completion, if any,
included in the Registration Statement or any amendment thereto at the time it
was or is declared effective); the term "Prospectus" means:
(A) if the Company relies on Rule 434 under the Act, the Term
Sheet relating to the Securities that is first filed pursuant to Rule
424(b)(7) under the Act, together with the Preliminary Prospectus
identified therein that such Term Sheet supplements;
(B) if the Company does not rely on Rule 434 under the Act, the
prospectus first filed with the Commission pursuant to Rule 424(b)
under the Act; or
(C) if the Company does not rely on Rule 434 under the Act and if
no prospectus is required to be filed pursuant to Rule 424(b) under
the Act, the prospectus included in the Registration Statement;
and the term "Term Sheet" means any term sheet that satisfies the requirements
of Rule 434 under the Act. Any reference herein to the "date" of a Prospectus
that includes a Term Sheet shall mean the date of such Term Sheet.
(b) The Commission has not issued any order preventing or suspending
use of any Preliminary Prospectus. Each Preliminary Prospectus provided to
Underwriters for use in connection with the issuance and sale of the Securities
(i) contained all statements required to be stated therein in accordance with,
and complied in all material respects with the requirements of, the Act and the
rules and regulations of the Commission thereunder and (ii) did not include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. When the Registration Statement or any
amendment thereto was or is declared effective, it (i) contained or will contain
all statements required to be stated therein in accordance with, and complied or
will comply in all material respects with the requirements of,
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the Act and the rules and regulations of the Commission thereunder and (ii) did
not or will not include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not misleading. When
the Prospectus or any Term Sheet that is a part thereof or any amendment or
supplement to the Prospectus is filed with the Commission pursuant to Rule
424(b) (or, if the Prospectus or part thereof or such amendment or supplement is
not required to be so filed, when the Registration Statement or the amendment
thereto containing such amendment or supplement to the Prospectus was or is
declared effective) and on the Firm Closing Date and any Option Closing Date
(both as hereinafter defined), the Prospectus, as amended or supplemented at any
such time, (i) contained or will contain all statements required to be stated
therein in accordance with, and complied or will comply in all material respects
with the requirements of, the Act and the rules and regulations of the
Commission thereunder and (ii) did not or will not include any untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. The foregoing provisions of this paragraph (b) do not
apply to statements or omissions made in any Preliminary Prospectus, the
Registration Statement or any amendment thereto or the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein as set forth in Section 12 hereof.
(c) If the Company has elected to rely on Rule 462(b) and the Rule
462(b) Registration Statement has not been declared effective (i) the Company
has filed a Rule 462(b) Registration Statement in compliance with and that,
assuming compliance with Rule 462(b), is effective upon filing with the
Commission and has received confirmation of its receipt and (ii) the Company has
given irrevocable instructions for transmission of the applicable filing fee in
connection with the filing of the Rule 462(b) Registration Statement, in
compliance with Rule 111 promulgated under the Act or the Commission has
received payment of such filing fee.
(d) The Company and each of its subsidiaries (which are corporations)
have been duly organized and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of incorporation and
are duly qualified to transact business as foreign corporations and are in good
standing under the laws of all other jurisdictions where the ownership or
leasing of their respective properties or the conduct of their respective
businesses requires such qualification, except where the failure to be so
qualified does not amount to a material liability or disability to the Company
and its subsidiaries, taken as a whole. Each of the Company's subsidiaries
(which are partnerships) have been duly organized and are validly existing as
partnerships in good standing under the laws of their respective jurisdictions
of organization and, as applicable, are duly qualified to transact business as
foreign partnerships and are in good standing under the laws of all other
jurisdictions where the ownership or leasing of their respective properties or
the conduct of their respective businesses requires such
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qualification, except where the failure to be so qualified does not amount to a
material liability or disability to the Company and its subsidiaries, taken as a
whole.
(e) The Company and each of its subsidiaries have full power
(corporate or other) to own or lease their respective properties and conduct
their respective businesses as described in the Registration Statement and the
Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus; and each of the Company and the Operating Partnership
has full power (corporate or other) to enter into this Agreement and to carry
out all the terms and provisions hereof to be carried out by it.
(f) The Company has no subsidiaries, except for the Operating
Partnership, Xxxxxx Services, Inc., Xxxxxx Realty Finance, Inc. and Xxxxxx
Realty Finance Partnership, L.P.
(g) The issued shares of capital stock of each of the Company's
subsidiaries (which are corporations) have been duly authorized and validly
issued, are fully paid and nonassessable and, except as otherwise set forth in
the Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus, are owned beneficially by the Company free and clear of
any security interests, liens, encumbrances, equities or claims. The partnership
agreements of the Company's subsidiaries (which are partnerships) have been duly
authorized, executed and delivered by the general partners thereof and
constitute the valid and binding obligation of the general partners thereof.
Such partnership agreements reflect the Company and/or one or more of the
Company's subsidiaries as the sole beneficial owners of the partnership
interests in such partnerships, except with respect to the Operating Partnership
as described in the Prospectus (or, if the Prospectus does not exist, the most
recent Preliminary Prospectus).
(h) The Operating Partnership has been duly organized and is validly
existing as a limited partnership in good standing under the laws of its
jurisdiction of organization and is duly qualified to transact business as a
foreign limited partnership and is in good standing under the laws of all other
jurisdictions where the ownership or leasing of its properties or the conduct of
its business requires such qualification, except where the failure to be so
qualified does not amount to a material liability or disability to the Company
and its subsidiaries, taken as a whole. All of the partnership interests in the
Operating Partnership (the "Units") to be issued in connection with the Offering
(as defined in the Registration Statement and the Prospectus, or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) have
been duly authorized for issuance by the Operating Partnership to the Company,
and, at the Firm Closing Date, against the payment of consideration therefor in
accordance with the Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, will be validly issued, fully paid and owned by the
Company, free and clear of any security interests, liens, encumbrances, equities
or claims. All of the outstanding Units have been duly authorized, validly
issued and fully paid and are owned as set forth in the Prospectus and, in the
case of
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Units issued to the Company, are owned free and clear of any security interests,
liens, encumbrances, equities or claims. Immediately after the Firm Closing
Date, 2,817,476 Units of limited partnership interest and 24,475,000 Units of
general partnership interest will be issued and outstanding. The Units conform
in all material respects to the description thereof contained in the Prospectus,
or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus. The Company is, and immediately after the Firm Closing Date will
be, the sole general partner of the Operating Partnership.
(i) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus. All of the issued shares of
capital stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable. The Firm Securities and the Option Securities
have been duly authorized and at the Firm Closing Date or the related Option
Closing Date (as the case may be), after payment therefor in accordance
herewith, will be validly issued, fully paid and nonassessable. No holders of
outstanding shares of capital stock of the Company are entitled as such to any
preemptive or other rights to subscribe for any of the Securities, and no holder
of securities of the Company has any right which has not been fully exercised or
waived to require the Company to register the offer or sale of any securities
owned by such holder under the Act in the public offering contemplated by this
agreement.
(j) The capital stock of the Company conforms to the description
thereof contained in the Prospectus or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus.
(k) All of the issued and outstanding shares of capital stock of the
Company have been offered and sold in compliance with all applicable laws
(including, without limitation, federal and state securities laws). Except as
described in the Prospectus (or, if the Prospectus does not exist, the most
recent Preliminary Prospectus), the Company has not issued or sold any shares of
its capital stock during the six-month period preceding the initial filing date
of the Registration Statement including any sales pursuant to Rule 144A under,
or Regulation D or S of, the Securities Act.
(l) Except as disclosed in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), there are no
outstanding (A) securities, equity interests or obligations of the Company or
any of its subsidiaries convertible into or exchangeable for any capital stock
or equity interests (as the case may be) of the Company or any such subsidiary,
(B) warrants, rights or options to subscribe for or purchase from the Company or
any such subsidiary any such capital stock or equity interests or any such
convertible or exchangeable securities, equity interests or obligations, or (C)
obligations of the Company or any such subsidiary to issue any shares of capital
stock, equity interests, any such
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convertible or exchangeable securities, equity interests or obligations, or any
such warrants, rights or options.
(m) The balance sheet of the Company (including the notes thereto)
included in the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) fairly presents the
financial position of the Company at the date therein specified. The combined
financial statements (including the notes thereto) of the Xxxxxx Group (as
defined in the notes thereto) and schedule of the Xxxxxx Group included in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) fairly present the financial
position, the results of operations and cash flows and changes in financial
condition of the Xxxxxx Group, at the date and for the periods therein
specified. The combined historical summaries of certain revenues and certain
expenses (including the notes thereto) of the Acquisition Properties, the Post
IPO Acquisitions through June 30, 1997, the Acquired Properties and the Pending
Acquisitions (each as defined in the notes thereto) included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) fairly present the combined certain revenues
and certain expenses of the Acquisition Properties, the Post IPO Acquisitions
through June 30, 1997, the Acquired Properties and the Pending Acquisitions,
respectively, for the periods therein specified. All of the foregoing financial
statements (including the notes thereto) and schedules have been prepared in
accordance with generally accepted accounting principles consistently applied
for each of the periods presented. The financial data set forth under the
captions "Summary Financial Data" and "Selected Financial Data" and the
statistical information and data set forth in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) fairly
present, on the basis stated in the Prospectus (or such Preliminary Prospectus),
the information included therein.
(n) The pro forma consolidated financial statements (including the
notes thereto) of the Company included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) comply in all material respects with the applicable
requirements of Rule 11-02 of Regulation S-X of the Commission and the pro forma
adjustments have been properly applied to the historical amounts in the
compilation of such information and the assumptions used in the preparation
thereof are, in the opinion of the Company, reasonable. Other than the
historical and pro forma financial statements (and schedules) included therein,
no other historical or pro forma financial statements (or schedules) are
required to be included in the Registration Statement or Prospectus.
(o) Deloitte & Touche LLP, who have certified certain financial
statements and schedules, and delivered their reports with respect to the
audited financial statements and schedules, included in the Registration
Statement and the Prospectus (or, if the Prospectus is not
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in existence, the most recent Preliminary Prospectus), are independent public
accountants as required by the Act and the applicable rules and regulations
thereunder.
(p) The execution and delivery of this Agreement have been duly
authorized by the Company and the Operating Partnership and this Agreement has
been duly executed and delivered by the Company and the Operating Partnership,
and is the valid and binding agreement of each of the Company and the Operating
Partnership, enforceable against the Company and the Operating Partnership in
accordance with its terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance, reorganization and similar laws relating to
creditors' rights generally and to the application of equitable principles in
any proceeding, whether at law or in equity.
(q) No legal or governmental proceedings are pending to which the
Company or any of its subsidiaries is a party or to which the property of the
Company or any of its subsidiaries is subject that are required to be described
in the Registration Statement or the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and are not described
therein, and, to the knowledge of the Company or any of its subsidiaries, no
such proceedings have been threatened against the Company or any of its
subsidiaries or with respect to any of their respective properties; and no
contract or other document is required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the Registration
Statement that is not described therein (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) or filed as required.
(r) The issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by the
Company and the Operating Partnership with the other provisions of this
Agreement and the consummation of the other transactions herein contemplated do
not (i) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have been
obtained, such as may be required under state securities or blue sky laws and,
if the registration statement filed with respect to the Securities (as amended)
is not effective under the Act as of the time of execution hereof, such as may
be required (and shall be obtained as provided in this Agreement) under the Act,
or (ii) conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any material indenture, mortgage,
deed of trust, lease or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or any of their respective properties are bound, or the charter
documents or by-laws or certificate of limited partnership or partnership
agreement (as the case may be) of the Company or any of its subsidiaries, or any
statute or any judgment decree, order, rule or regulation of any court or other
governmental authority or any arbitrator applicable to the Company or any of its
subsidiaries.
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(s) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), neither the Company
nor any of its subsidiaries has sustained any material loss or interference with
their respective businesses or properties from fire, flood, hurricane, accident
or other calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding and there has not been any
material adverse change, or any development involving a prospective material
adverse change, in the condition (financial or otherwise), management, business
prospects, net worth, or results of operations of the Company and its
subsidiaries, taken as a whole, except in each case as described in or
contemplated by the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
(t) The Company has not, directly or indirectly, (i) taken any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) since the filing of the Registration Statement (A) sold, bid
for, purchased, or paid anyone any compensation for soliciting purchases of, the
Securities or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(u) The Company has not distributed and, prior to the later of (i) the
Closing Date and (ii) the completion of the distribution of the Securities, will
not distribute any offering material in connection with the offering and sale of
the Securities other than the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or other materials, if any, permitted by the Act.
(v) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), (1) the Company and
its subsidiaries have not incurred any material liability or obligation, direct
or contingent, nor entered into any material transaction not in the ordinary
course of business; (2) the Company has not purchased any of its outstanding
capital stock (other than as contemplated by Section 2(k) hereof); and (3) there
has not been any material change in the capital stock or partnership interests
(as the case may be), short-term debt or long-term debt of the Company and its
consolidated subsidiaries, except in each case as described in or contemplated
by the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(w) The Company or its subsidiaries will have good and marketable
title in fee simple to all items of real property comprising part of the
Properties (as defined in the Registration Statement and the Prospectus, or, if
the Prospectus is not in existence, the most
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recent Preliminary Prospectus) (except with respect to land held pursuant to a
ground lease or subject to an air space lease) and marketable title to all
personal property comprising part of the Properties, in each case free and clear
of any security interests, liens, encumbrances, equities, claims and other
defects, except such as do not materially and adversely affect the value of such
property and do not interfere with the use made or proposed to be made of such
property by the Company or such subsidiary, and any real property and buildings
comprising part of the Properties held pursuant to or subject to a ground lease,
air space lease or other lease will be held by the Company or any such
subsidiary under or subject to valid, subsisting and enforceable ground leases,
air space leases or other leases, with such exceptions as are not material and
do not interfere with the use made or proposed to be made of such property and
buildings by the Company or such subsidiary, in each case except as described in
or contemplated by the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus).
(aa) No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company or any of its
subsidiaries, is threatened that could result in a material adverse change in
the condition (financial or otherwise), business prospects, net worth or results
of operations of the Company and its subsidiaries, taken as a whole, except as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(bb) The Company and its subsidiaries own or possess, or will be able
to acquire on reasonable terms, all material patents, patent applications,
trademarks, service marks, trade names, licenses, copyrights and proprietary or
other confidential information currently employed or proposed to be employed by
them in connection with the business now operated or proposed to be operated by
them as described in the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus), and neither the Company nor any such
subsidiary has received any notice of infringement of or conflict with asserted
rights of any third party with respect to any of the foregoing which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a material adverse change in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Company and its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(cc) The Company and each of its subsidiaries own or possess all
contract rights that are material to the businesses now operated or proposed to
be operated by them taken as a whole as described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus),
including all such contract rights referred to in the Prospectus. All such
contracts are in full force and effect, and neither the Company nor any such
subsidiary is aware of any material breach by any party under any of such
contracts.
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(dd) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are engaged
as described in the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus); and neither the Company nor any such
subsidiary has any reason to believe that it will not be able to renew such
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business at a
cost that would not materially and adversely affect the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Company and its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(ee) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock or partnership interests, from
repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary's property or assets to the
Company or any other subsidiary of the Company, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) and except pursuant to (i) the Mortgage
Loans, (ii) the Credit Facility (as defined in the Registration Statement and
the Prospectus, or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), (iii) applicable law and (iv) with respect to
prohibitions only against transferring any of such subsidiary's property or
assets to the Company or any other subsidiary of the Company, (A) customary non-
assignment provisions contained in leases to which the Company or any of its
subsidiaries is a party and (B) security interests, including purchase money
obligations, applicable to any property of the Company or any of its
subsidiaries as of the date hereof.
(ff) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective businesses, and
neither the Company nor any such subsidiary has received any notice of
proceedings relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, would result in a material adverse
change in the condition (financial or otherwise), business prospects, net worth
or results of operations of the Company and its subsidiaries, taken as a whole,
except as described in or contemplated by the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus).
(gg) The Company is not, and as of the Firm Closing Date and the
Option Closing Date will not be, subject to registration as an investment
company under the Investment Company Act of 1940, as amended.
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(hh) Each of the Company and its subsidiaries has filed all foreign,
federal, state and local tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the failure so to file
would not have a material adverse effect on the Company and its subsidiaries,
taken as a whole) and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine or penalty
that is currently being contested in good faith and for which a reserve has been
established or as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus). All of
such returns are true, correct and complete. No audit, inquiry, investigation
or similar proceeding is currently pending or, to the knowledge of the Company,
threatened against the Company or any of its assets with respect to which it may
be liable for the payment of taxes, an adverse outcome of which would reasonably
be expected to result in a material adverse effect.
(ii) Neither the Company nor any of its subsidiaries is in violation
of any applicable federal or state law or regulation relating to occupational
safety and health, the storage, handling or transportation of hazardous or toxic
materials, pollution or otherwise relating to protection of the environment, and
the Company and its subsidiaries have received all permits, licenses or other
approvals required of them under applicable federal and state occupational
safety and health and environmental laws and regulations to conduct their
respective businesses or the businesses proposed to be conducted by them as
described in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), and the Company and each such subsidiary is in
compliance with all terms and conditions of any such permit, license or
approval, except any such violation of law or regulation, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals which would not,
singly or in the aggregate, result in a material adverse change in the condition
(financial or otherwise), business prospects, net worth or results of operations
of the Company and its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(jj) Each certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters on the Firm
Closing Date or on the Option Closing Date shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
(kk) Except as described in or contemplated by the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus),
neither the Company nor any such subsidiary owns any shares of stock or any
other equity securities of any corporation or has any equity interest in any
firm, partnership, association or other entity.
12
(ll) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (1)
transactions are executed in accordance with management's general or specific
authorizations; (2) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (3) access to assets is
permitted only in accordance with management's general or specific
authorization; and (4) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(mm) No default exists, and no event has occurred which, with notice
or lapse of time or both, would constitute a default in the due performance and
observance of any term, covenant or condition of any indenture, mortgage, deed
of trust, lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its subsidiaries
or any of their respective properties is bound or may be affected in any
material adverse respect with regard to property, business or operations of the
Company and its subsidiaries taken as a whole.
(nn) Except as otherwise disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), since
January 1, 1990 no foreclosures have been instituted and none are currently
threatened with respect to any property or assets directly or indirectly owned
(whether now or in the past) by the Xxxxxx Group or the Company or any of its
subsidiaries.
(oo) (i) To the knowledge of the Company or any of its subsidiaries,
no proceeding or filing of a petition seeking relief under Title 11 of the
United States Code or any other federal, state or foreign bankruptcy,
insolvency, liquidation or similar law has been commenced or instituted (whether
voluntary or involuntary) by or with respect to any member of the Xxxxxx Group,
(ii) no member of the Xxxxxx Group has applied for or consented to the
appointment of a receiver, trustee, custodian, sequestrator or similar official
for any such persons or for a substantial part of any such persons' property or
assets and (iii) no member of the Xxxxxx Group has made a general assignment for
the benefit of its creditors.
(pp) No relationship, direct or indirect, exists between or among the
Company or the Operating Partnership on the one hand, and the directors,
officers, stockholders (in the case of the Company), limited partners (in the
case of the Operating Partnership), tenants, customers or suppliers of the
Company or the Operating Partnership on the other hand, which is required to be
described in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) which is not so described.
13
(qq) The Company has been and is organized and operated in conformity
with the requirements for qualification as a real estate investment trust (a
"REIT") under the Internal Revenue Code of 1986, as amended (the "Code"), and
will have no earnings and profits accumulated in a non-REIT year within the
meaning of Section 857(a)(3)(B) of the Code, and the actual method of operation
of the Company and its subsidiaries has enabled, and its proposed method of
operation will enable, the Company to meet the requirements for taxation as a
REIT under the Code beginning with its taxable year ending December 31, 1997 and
for its subsequent taxable years. The Company will elect to be taxed as a REIT
under the Code beginning with its taxable year ending December 31, 1997. All
statements in the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) regarding the Company's qualification as a
REIT are true, complete and correct in all material respects.
(rr) (i) Each of the Properties (including, for purposes of this
paragraph, the Option Properties (as defined in the Registration Statement and
the Prospectus, or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus)) complies with all applicable codes, laws, ordinances
and regulations (including, without limitation, building and zoning codes and
laws and regulations relating to access to the Properties) and deed restrictions
or other covenants, except for such failures to comply that would not materially
impair the value of any of the Properties and would not result in a forfeiture
or reversion of title; (ii) neither the Company nor any of its subsidiaries has
knowledge of any pending or threatened litigation, moratorium, condemnation
proceedings, zoning change, or other similar proceeding or action that could in
any manner affect the size of, use of, improvements on, construction on, access
to or availability of utilities or other necessary services to, the Properties,
except such proceedings or actions which are not reasonably expected to, singly
or in the aggregate, result in a material adverse change in the condition
(financial or otherwise), business prospects, net worth or results of operations
of the Company and its subsidiaries, taken as a whole; (iii) all liens, charges,
encumbrances, claims, or restrictions on or affecting the properties and assets
(including the Properties) of the Company or any of its subsidiaries that (A)
would result in a material adverse change in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Company and its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) or (B) are required to be disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) are disclosed therein; (iv) neither the Company, any of
its subsidiaries nor any tenant of any portion of any of the Properties is in
default under any of the ground leases or air space leases (as lessee), space
leases (as lessor or lessee, as the case may be) or other occupancy or license
agreement relating to, or under any of the mortgages or other security documents
or other agreements encumbering or otherwise recorded against, the Properties
and there is no event which, but for the passage of time or the giving of notice
or both, would constitute a default under any of such documents or agreements,
except such defaults that would not, singly or in the aggregate, result
14
in a material adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus); and (v) except as described in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus) and
except as otherwise provided by law, no tenant under any lease pursuant to which
the Company or any of its subsidiaries will lease the Properties will have an
option or right of first refusal to purchase the premises leased thereunder or
the building of which such premises are a part.
(ss) Each of the Properties (including, for purposes of this
paragraph, the Option Properties) is in substantial compliance with all
presently applicable provisions of the Americans with Disabilities Act and no
failure of the Company or any of the Subsidiaries to comply with all presently
applicable provisions of the Americans with Disabilities Act would result in a
material adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole.
(tt) Except as otherwise disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), (i)
neither the Company, any of its subsidiaries nor, to the best knowledge of the
Company, any other owners of the Properties (including, for purposes of this
paragraph, the Option Properties) at any time or any other party has at any
time, handled, stored, treated, transported, manufactured, spilled, leaked, or
discharged, dumped, transferred or otherwise disposed of or dealt with,
Hazardous Materials (as hereinafter defined) on, to or from the Properties,
other than by any such action taken in compliance with all applicable
Environmental Statutes, except for such actions which are not expected to result
in a material adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus); (ii) neither the Company nor any of its subsidiaries
intends to use the Properties or any subsequently acquired properties for the
purpose of handling, storing, treating, transporting, manufacturing, spilling,
leaking, discharging, dumping, transferring or otherwise disposing of or dealing
with Hazardous Materials; (iii) neither the Company nor any of its subsidiaries
knows of any seepage, leak, discharge, release, emission, spill, or dumping of
Hazardous Materials into waters on or adjacent to the Properties or any other
real property owned or occupied by any such party, or onto lands from which
Hazardous Materials might seep, flow or drain into such waters, other than any
events which are not expected ot result in a material adverse change in the
condition (financial or otherwise), business prospects, net worth or results of
operations of the Company and its subsidiaries, taken as a whole, except as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus); (iv) neither the Company nor
any of its subsidiaries has received any notice of, or has any knowledge of any
occurrence or
15
circumstance which, with notice or passage of time or both, would give rise to a
claim under or pursuant to any federal, state or local environmental statute or
regulation or under common law, pertaining to pollution, protection of the
environment or Hazardous Materials on or originating from any of the Properties
or any assets described in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) or any other real property
owned or occupied by any such party or arising out of the conduct of any such
party, including without limitation a claim under or pursuant to any
Environmental Statute (hereinafter defined), other than any events which are not
expected to result in a material adverse change in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Company and its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus); (v) neither the Properties nor any other
real properties owned by members of the Xxxxxx Group is included or, to the best
of the Company's knowledge, proposed for inclusion on the National Priorities
List issued pursuant to CERCLA (as hereinafter defined) by the United States
Environmental Protection Agency (the "EPA") or, to the best of the Company's
knowledge, proposed for inclusion on any similar list or inventory issued
pursuant to any other Environmental Statute or issued by any other Governmental
Authority (as hereinafter defined).
As used herein, "Hazardous Material" shall include, without
limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, toxic substances, or related materials, asbestos,
petroleum or petroleum products, or any hazardous materials as defined by any
federal, state or local environmental law, ordinance, rule or regulation
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Usability Act of 1980, as amended, 42 U.S.C. (S)(S) 9601-9675
("CERCLA"), the Hazardous Materials Transportation Act, as amended, 49 U.S.C.
(S)(S)1801-1819, the Resource Conservation and Recovery Act, as amended, 42
U.S.C. (S)(S) 6901-6992K, the Emergency Planning and Community Right-To-Know Act
of 1986, 42 U.S.C. (S)(S)11001 -11050, the Toxic Substances Control Act, 15
U.S.C. (S)(S) 2601-2671, the Federal Insecticide, Fungicide and Rodenticide Act,
7 U.S.C. (S)(S) 136-136y, the Clean Air Act, 42 U.S.C. (S)(S) 7401 J642, the
Clean Water Act (Federal Water Pollution Control Act), 33 U.S.C. (S)(S) 1251-
1387, the Safe Drinking Water Act, 42 U.S.C. (S)(S) 300f-300j-26, and the
Occupational Safety and Health Act, 29 U.S.C. (S)(S) 651-678, as any of the
above statutes may be amended from time to time, and in the regulations
promulgated pursuant to each of the foregoing (individually, an "Environmental
Statute") or by any federal, state or local governmental authority having or
claiming jurisdiction over the properties and assets described in the Prospectus
(a "Governmental Authority").
(uu) None of the environmental consultants which prepared
environmental and asbestos inspection reports with respect to any of the
Properties (including, for purposes of this paragraph, the Option Properties),
the engineering consultants which prepared engineering inspection reports with
respect to any of the Properties or Xxxxxx Xxxxxxx Xxxxxx & Co., real
16
estate advisors, which prepared regional economic overviews and market analysis
for Xxxxxx Realty Corporation dated August 8, 1997, were employed for such
purpose on a contingent basis or have any substantial interest in the Company or
any of its subsidiaries and none of them or any of their directors, officers or
employees is connected with the Company or any of its subsidiaries as a
promoter, selling agent, voting trustee, director, officer or employee.
(vv) Except as disclosed in the Prospectus (or if the Prospectus is
not in existence, the most recent Preliminary Prospectus) neither the Company
nor the Operating Partnership is aware of any engineering condition at any of
the Properties (including, for purposes of this paragraph, the Option
Properties) that would result in a material adverse change in the condition
(financial or otherwise) or business prospects, net worth or results of
operations of the Company and its subsidiaries, taken as a whole.
(ww) None of Xxxx Xxxxxxx, Xxxxx Xxxxxxxx, Xxx Xxxxxxxx and Xxxxxxxx
Xxxx have a right to convert any of their respective Units to Common Stock prior
to January 31, 1999.
Each reference in this Section 2 to "the condition (financial or
otherwise), management, business prospects, net worth, or results of operations
of the Company and its subsidiaries, taken as a whole" means the condition
(financial or otherwise), management, business prospects, net worth, or results
of operations of the Company and its subsidiaries, taken as a whole.
3. Purchase Sale and Delivery of the Securities. (a) On the basis of the
--------------------------------------------
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company, at a purchase
price of $____ per share, the number of Firm Securities set forth opposite the
name of such Underwriter in Schedule 1 hereto. One or more certificates in
definitive form for the Firm Securities that the several Underwriters have
agreed to purchase hereunder, and in such denomination or denominations and
registered in such name or names as the Representatives request upon notice to
the Company at least 48 hours prior to the Firm Closing Date, shall be delivered
by or on behalf of the Company to the Representatives for the respective
accounts of the Underwriters, against payment by or on behalf of the
Underwriters of the purchase price therefor by wire transfer in same-day funds
(the "Wired Funds") to the account of the Company. Such delivery of and payment
for the Firm Securities shall be made at the offices of Xxxxxx & Xxxxxxx, 000
Xxxx 0xx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 at 6:30 A.M., local
time, on August __, 1997, or at such other place, time or date as the
Representatives and the Company may agree upon or as the Representatives may
determine pursuant to Section 9 hereof, such time and date of delivery against
payment being herein referred to as the "Firm Closing Date." The Company will
make such certificate or certificates for the Firm Securities available for
checking and packaging by the Representatives at the offices in New York, New
York of the
17
Company's transfer agent or registrar or of Prudential Securities Incorporated
at least 24 hours prior to the Firm Closing Date.
(b) For the purpose of covering any over-allotments in connection with
the distribution and sale of the Firm Securities as contemplated by the
Prospectus, the Company hereby grants to the several Underwriters an option to
purchase, severally and not jointly, the Option Securities. The purchase price
to be paid for any Option Securities shall be the same price per share as the
price per share for the Firm Securities set forth above in paragraph (a) of this
Section 3, plus, if the purchase and sale of any Option Securities takes place
after the Firm Closing Date and after the Firm Securities are trading "ex-
dividend," an amount equal to the dividends payable on such Option Securities.
The option granted hereby may be exercised as to all or any part of the Option
Securities from time-to-time for a period of thirty days after the date of the
Prospectus (or, if such 30th day shall be a Saturday or Sunday or a holiday, on
the next business day thereafter when the New York Stock Exchange is open for
trading). The Underwriters shall not be under any obligation to purchase any of
the Option Securities prior to the exercise of such option. The Representatives
may from time-to-time exercise the option granted hereby by giving notice in
writing or by telephone (confirmed in writing) to the Company setting forth the
aggregate number of Option Securities as to which the several Underwriters are
then exercising the option and the date and time for delivery of and payment for
such Option Securities. Any such date of delivery shall be determined by the
Representatives but shall not be earlier than two business days or later than
five business days after such exercise of the option and, in any event, shall
not be earlier than the Firm Closing Date. The time and date set forth in such
notice, or such other time on such other date as the Representatives and Company
may agree upon or as the Representatives may determine pursuant to Section 9
hereof, is herein called the "Option Closing Date" with respect to such Option
Securities. Upon exercise of the option as provided herein, the Company shall
become obligated to sell to each of the several Underwriters, and, subject to
the terms and conditions herein set forth, each of the Underwriters (severally
and not jointly) shall become obligated to purchase from the Company, the same
percentage of the total number of the Option Securities as to which the several
Underwriters are then exercising the option as such Underwriter is obligated to
purchase of the aggregate number of Firm Securities, as adjusted by the
Representatives in such manner as they deem advisable to avoid fractional
shares. If the option is exercised as to all or any portion of the Option
Securities, one or more certificates in definitive form for such Option
Securities, and payment therefor, shall be delivered on the related Option
Closing Date in the manner, and upon the terms and conditions, set forth in
paragraph (a) of this Section 3, except that reference therein to the Firm
Securities and the Firm Closing Date shall be deemed, for purposes of this
paragraph (b), to refer to such Option Securities and Option Closing Date,
respectively.
18
(c) The Company hereby acknowledges that the wire transfer by or on
behalf of the Underwriters of the purchase price for any Securities does not
constitute closing of a purchase and sale of the Securities. Only execution and
delivery of a receipt for Securities by the Underwriters indicates completion of
the closing of a purchase of the Securities from the Company. Furthermore, in
the event that the Underwriters wire funds to the Company prior to the
completion of the closing of a purchase of Securities, the Company hereby
acknowledges that until the Underwriters execute and deliver a receipt for the
Securities, by facsimile or otherwise, the Company will not be entitled to the
Wired Funds and shall return the Wired Funds to the Underwriters as soon as
practicable (by wire transfer of same-day funds) upon demand. In the event that
the closing of a purchase of Securities is not completed and the Wire Funds are
not returned by the Company to the Underwriters on the same day the Wired Funds
were received by the Company, the Company agrees to pay to the Underwriters in
respect of each day the Wire Funds are not returned by it, in same-day funds,
interest on the amount of such Wire Funds in an amount representing the
Underwriters' cost of financing as reasonably determined by Prudential
Securities Incorporated.
(d) It is understood that any of you, individually and not as one of
the Representatives, may (but shall not be obligated to) make payment on behalf
of any Underwriter or Underwriters for any of the Securities to be purchased by
such Underwriter or Underwriters. No such payment shall relieve such
Underwriter or Underwriters from any of its or their obligations hereunder.
4. Offering by the Underwriters. Upon your authorization of the release
----------------------------
of the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale to the public upon the terms set forth in the Prospectus.
5. Covenants of the Company. Each of the Company and the Operating
------------------------
Partnership covenants and agrees with each of the Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this Agreement, and any
amendments thereto to become effective as promptly as possible. If required,
the Company will file the Prospectus or any Term Sheet that constitutes a part
thereof and any amendment or supplement thereto with the Commission in the
manner and within the time period required by Rules 434 and 424(b) under the
Act. During any time when a prospectus relating to the Securities is required
to be delivered under the Act, the Company (i) will comply with all requirements
imposed upon it by the Act and the rules and regulations of the Commission
thereunder to the extent necessary to permit the continuance of sales of or
dealings in the Securities in accordance with the provisions hereof and of the
Prospectus, as then amended or supplemented, and (ii) will not file with the
Commission the Prospectus, Term Sheet or the amendment referred to in the second
sentence
19
of Section 2(a) hereof, any amendment or supplement to such Prospectus, Term
Sheet or any amendment to the Registration Statement or any Rule 462(b)
Registration Statement of which the Representatives shall not previously have
been advised and furnished with a copy for a reasonable period of time prior to
the proposed filing and as to which filing the Representatives shall not have
given their consent. The Company will prepare and file with the Commission, in
accordance with the rules and regulations of the Commission, promptly upon
request by the Representatives or counsel for the Underwriters, any amendments
to the Registration Statement or amendments or supplements to the Prospectus
that may be necessary or advisable in connection with the distribution of the
Securities by the several Underwriters, and will use its best efforts to cause
any such amendment to the Registration Statement to be declared effective by the
Commission as promptly as possible. The Company will advise the
Representatives, promptly after receiving notice thereof, of the time when the
Registration Statement or any amendment thereto has been filed or declared
effective or the Prospectus or any amendment or supplement thereto has been
filed and will provide evidence satisfactory to the Representatives of each such
filing or effectiveness.
(b) The Company will advise the Representatives, promptly after
receiving notice or obtaining knowledge thereof, of (i) the issuance by the
Commission of any stop order suspending the effectiveness of the Original
Registration Statement or any Rule 462(b) Registration Statement or any
amendment thereto or any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
(ii) the suspension of the qualification of the Securities for offering or sale
in any jurisdiction, (iii) the institution, threatening or contemplation of any
proceeding for any such purpose or (iv) any request made by the Commission for
amending the Original Registration Statement or any Rule 462(b) Registration
Statement, for amending or supplementing the Prospectus or for additional
information. The Company will use its best efforts to prevent the issuance of
any such stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(c) The Company will arrange for the qualification of the Securities
for offering and sale under the securities or blue sky laws of such
jurisdictions as the Representatives may designate and will continue such
qualifications in effect for as long as may be necessary to complete the
distribution of the Securities; provided, however, that in connection therewith,
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the Company shall not be required to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction.
(d) If, at any time prior to the later of (i) the final date when a
prospectus relating to the Securities is required to be delivered under the Act
or (ii) the Option Closing Date, any event occurs as a result of which the
Prospectus, as then amended or supplemented, would include any untrue statement
of a material fact or omit to state a material fact necessary
20
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if for any other reason it is necessary
at any time to amend or supplement the Prospectus to comply with the Act or the
rules or regulations of the Commission thereunder, the Company will promptly
notify the Representatives thereof and, subject to Section 5(a) hereof, will
prepare and file with the Commission, at the Company's expense, an amendment to
the Registration Statement or an amendment or supplement to the Prospectus that
corrects such statement or omission or effects such compliance.
(e) The Company will, without charge, provide (i) to the
Representatives and to counsel for the Underwriters a conformed copy of the
registration statement originally filed with respect to the Securities and each
amendment thereto (in each case including exhibits thereto) or any Rule 462(b)
Registration Statement, certified by the Secretary or an Assistant Secretary of
the Company to be true and complete copies thereof as filed with the Commission
by electronic transmission, (ii) to each other Underwriter, a conformed copy of
such registration statement or any Rule 462(b) Registration Statement and each
amendment thereto (in each case without exhibits thereto) and (iii) so long as a
prospectus relating to the Securities is required to be delivered under the Act,
as many copies of each Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto as the Representatives may reasonably request without
limiting the application of clause (iii) of this sentence, the Company, not
later than (A) 6:00 P.M., New York City time, on the date of determination of
the public offering price, if such determination occurred at or prior to 10:00
A.M., New York City time, on such date or (B) 2:00 P.M., New York City time, on
the business day following the date of determination of the public offering
price, if such determination occurred after 10:00 A.M., New York City time, on
such date, will deliver to the Underwriters, without charge, as many copies of
the Prospectus and any amendment or supplement thereto as the Representatives
may reasonably request for purposes of confirming orders that are expected to
settle on the Firm Closing Date.
(f) The Company, as soon as practicable, will make generally available
to its securityholders and to the Representatives a consolidated earnings
statement of the Company and its subsidiaries that satisfies the provisions of
Section 11(a) of the Act and Rule 158 thereunder.
(g) The Company will apply the net proceeds from the sale of the
Securities as set forth under "Use of Proceeds" in the Prospectus.
(h) The Company will not, directly or indirectly, without the prior
written consent of Prudential Securities Incorporated, on behalf of the
Underwriters, offer, sell, offer to sell, contract to sell, pledge, grant any
option to purchase or otherwise sell or dispose (or announce any offer, sale,
offer of sale, contract of sale, pledge, grant of any option to purchase or
other sale or disposition) of any shares of Common Stock or other capital stock
of the Company or Units or other partnership interests of the Operating
Partnership, or any securities
21
convertible into, or exchangeable or exercisable for, shares of Common Stock or
other capital stock of the Company or Units or other partnership interests of
the Operating Partnership, for a period of 180 days after the date hereof,
except (i) pursuant to this Agreement, (ii) pursuant to a dividend reinvestment
plan of the Company, (iii) pursuant to the Company's 1997 Stock Option and
Incentive Plan, and (iv) in connection with the acquisition by the Company or
the Operating Partnership of real property or interests in entities holding real
property, that the recipient or transferee of such securities or interests
agrees in writing to be subject to the lock-up contained in this Section 5(h)
(without giving effect to clauses (i), (ii), (iii) and (iv)) for a period ending
on the date that is 180 days after the date hereof.
(i) The Company will not, directly or indirectly, (i) take any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) (A) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Securities or (B) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company.
(j) If at any time during the 25-day period after the Registration
Statement becomes effective or the period prior to the Option Closing Date, any
rumor, publication or event relating to or affecting the Company shall occur as
a result of which in your opinion the market price of the Common Stock has been
or is likely to be materially affected (regardless of whether such rumor,
publication or event necessitates a supplement to or amendment of the
Prospectus), subject to the Company's policy on issuing public statements, the
Company will, after notice from you advising the Company to the effect set forth
above, forthwith prepare, consult with you concerning the substance of, and
disseminate a press release or other public statement, reasonably satisfactory
to you, responding to or commenting on such rumor, publication or event.
(k) If the Company elects to rely on Rule 462(b), the Company shall
both file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) and pay the applicable fees in accordance with Rule 111
promulgated under the Act by the earlier of (i) 10:00 P.M. Eastern time on the
date of this Agreement and (ii) the time confirmations are sent or given, as
specified by Rule 462(b)(2).
(l) The Company will cause the Securities to be duly authorized for
listing by the New York Stock Exchange prior to the Firm Closing Date, subject
to official notice of issuance.
(m) The Company will use its best efforts to meet the requirements to
qualify, commencing with the taxable year ending December 31,1997, as a REIT
under the Code.
22
(n) The Company will cause the Operating Partnership to operate as a
limited partnership in accordance with the requirements of Delaware law.
6. Expenses. The Company will pay all costs and expenses incident to the
--------
performance of its and the Operating Partnership's obligations under this
Agreement, whether or not the transactions contemplated herein are consummated
or this Agreement is terminated pursuant to Section 11 hereof, including all
costs and expenses incident to (i) the printing or other production of documents
with respect to the transactions, including any costs of printing the
registration statement originally filed with respect to the Securities and any
amendment thereto, any Rule 462(b) Registration Statement, any Preliminary
Prospectus and the Prospectus and any amendment or supplement thereto, this
Agreement and any blue sky memoranda, (ii) all arrangements relating to the
delivery to the Underwriters of copies of the foregoing documents, (iii) the
fees and disbursements of the counsel, the accountants and any other experts or
advisors retained by the Company, (iv) preparation, issuance and delivery to the
Underwriters of any certificates evidencing the Securities, including transfer
agents and registrar's fees, (v) the qualification of the Securities under state
securities and blue sky laws, including filing fees and fees and disbursements
of counsel for the Underwriters relating thereto, (vi) the filing fees of the
Commission and the National Association of Securities Dealers, Inc. relating to
the Securities, (vii) any listing of the Securities on the New York Stock
Exchange, (viii) any meetings with prospective investors in the Securities
(other than as shall have been specifically approved by the Representatives to
be paid for by the Underwriters) and (ix) advertising relating to the offering
of the Securities (other than as shall have been specifically approved by the
Representatives to be paid for by the Underwriters). If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 hereof is not satisfied,
because this Agreement is terminated pursuant to Section 11 hereof or because of
any failure, refusal or inability on the part of the Company or the Operating
Partnership to perform all obligations and satisfy all conditions on its part to
be performed or satisfied hereunder other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable counsel fees and
disbursements) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities. The Company shall not in any
event be liable to any of the Underwriters for the loss of anticipated profits
from the transactions covered by this Agreement.
7. Conditions of the Underwriters' Obligations. The obligations of the
-------------------------------------------
several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company and the Operating Partnership
contained herein as of the date hereof and as of the Firm Closing Date, as if
made on and as of the Firm Closing Date, to the accuracy of the statements of
the Company's officers made pursuant to the provisions hereof, to the
performance by the Company
23
and the Operating Partnership of their respective covenants and agreements
hereunder and to the following additional conditions:
(a) If the registration statement relating to the Securities has not
been declared effective as of the time of the execution hereof, then such
registration statement shall have been declared effective not later than 11:00
A.M., New York time, on the date on which the amendment to such registration
statement containing information regarding the initial public offering price of
the Securities has been filed with the Commission or such later time and date as
shall have been consented to by the Representatives; if the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective prior to the time confirmations are sent or given as specified
by Rule 462(b); if required, the Prospectus or any Term Sheet that constitutes a
part thereof and any amendment or supplement thereto shall have been filed with
the Commission in the manner and within the time period required by Rules 434
and 424(b) under the Act; no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto shall have been issued, and no
proceedings for that purpose shall have been instituted or threatened or, to the
knowledge of the Company or the Representatives, shall be contemplated by the
Commission; and the Company shall have complied with any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise).
(b) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Xxxxxx & Xxxxxxx, counsel for the Company and its subsidiaries,
to the effect that:
(i) the Company and Xxxxxx Services, Inc. (the "Services
Company") have been duly incorporated and are validly existing as
corporations in good standing under the laws of the State of Maryland
and are duly qualified to transact business as foreign corporations
and are in good standing under the laws of the States of California
and Delaware, and based solely on certificates from public officials,
such counsel confirms that each of the Company and the Services
Company is duly qualified to transact business as foreign corporations
and in good standing under the laws of the States of Arizona,
California and Washington. The Operating Partnership has been duly
organized and is validly existing as a limited partnership in good
standing under the laws of the State of Delaware and is duly qualified
to transact business as a foreign limited partnership and is in good
standing under the laws of the States of Arizona, California and
Washington. Xxxxxx Realty Finance, Inc. (the "Finance Company") has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware and is duly
qualified to transact business as a foreign corporation and is in good
standing under the laws of the States of Arizona, California and
Washington. Xxxxxx Realty Finance Partnership (the
24
"Finance Partnership" and together with the Services Company, the
Operating Partnership and the Finance Company, the "Subsidiaries") has
been duly organized and is validly existing as a limited partnership
in good standing under the laws of the State of Delaware and is duly
qualified to transact business as a foreign limited partnership and is
in good standing under the laws of the States of Arizona, California
and Washington.
(ii) the Company and each of the Subsidiaries have corporate or
partnership power (as the case may be) to own or lease their
respective properties and conduct their respective businesses as
described in the Registration Statement and the Prospectus, and each
of the Company and the Operating Partnership has corporate or
partnership power (as the case may be) to enter into this Agreement
and to carry out all the terms and provisions hereof to be carried out
by it;
(iii) the issued shares of capital stock of the Services Company
have been duly authorized and validly issued, are fully paid and
nonassessable and, except as otherwise set forth in the Prospectus,
are owned of record and, to the knowledge of such counsel,
beneficially by the Company free and clear of any perfected security
interests or any other security interests, liens, encumbrances,
equities or claims. The issued shares of capital stock of the Finance
Company have been duly authorized and validly issued, are fully paid
and nonassessable and are owned of record and, to the knowledge of
such counsel, beneficially by the Company free and clear of any
perfected security interests or any other security interests, liens,
encumbrances, equities or claims. The partnership agreement of the
Finance Partnership has been duly authorized, executed and delivered
by the Finance Company, as its general partner, and constitutes the
valid and binding obligation of the Finance Company, as its general
partner. Such partnership agreement reflects the Finance Company as
the sole general partner of the Finance Partnership and the Operating
Partnership as the sole limited partner of the Finance Partnership;
(iv) the authorized, issued and outstanding capital stock of the
Company is as set forth under the caption "Capitalization" in the
Prospectus; all necessary and proper corporate proceedings have been
taken in order to authorize validly the Common Stock referred to
therein; all outstanding shares of Common Stock (including the Firm
Securities, when issued and paid for by the Underwriters in accordance
with the terms of this Agreement) have been (or, in the case of the
Firm Securities, will be) duly and validly issued, are fully paid and
nonassessable, have been issued in compliance with the registration
requirements of federal securities laws (or pursuant to an exemption
therefrom), were not, to the
25
knowledge of such counsel, issued in violation of or subject to, under
the Company's charter or Maryland law or any agreement to which the
Company is a party and which is known to such counsel based on a
certificate of the Company's Chairman of the Board of Directors and
its President and Chief Executive Officer, any preemptive rights or
other rights to subscribe for or purchase any securities, and conform
to the description thereof contained in the Prospectus; to the
knowledge of such counsel, no holders of outstanding shares of capital
stock of the Company are entitled under the Company's charter or
Maryland law or any agreement to which the Company is a party and
which is known to such counsel based on a certificate of the Company's
Chairman of the Board of Directors and its President and Chief
Executive Officer, as such, to any preemptive or other rights to
subscribe for any of the Firm Securities; and no holders of securities
of the Company are entitled to have such securities registered under
the Registration Statement;
(v) the outstanding Units, including, without limitation, the
Units issued to the Company, have been duly authorized and validly
issued. The Units issued to the Company, upon contribution of the net
proceeds of the Offering, will be validly issued. The terms of the
Units conform in all material respects to the description thereof and
all statements related thereto contained in the Prospectus. The
issuances of securities described in Items 31 and 32 of the
Registration Statement were not at the time of issue, and are not as
of the Firm Closing Date, required to be registered under the Act;
(vi) except as disclosed in the Registration Statement and the
Prospectus, to the knowledge of such counsel there are no outstanding
(A) securities, equity interests or obligations of the Company or any
of its Subsidiaries convertible into or exchangeable for any capital
stock or equity interests (as the case may be) of the Company or any
such Subsidiary, (B) warrants, rights or options to subscribe for or
purchase from the Company or any such Subsidiary any such capital
stock or equity interests or any such convertible or exchangeable
securities, equity interests or obligations, or (C) obligations of the
Company or any such Subsidiary to issue any shares of capital stock,
equity interests, any such convertible or exchangeable securities,
equity interests or obligations, or any such warrants, rights or
options;
(vii) the statements set forth under the headings "Description
of Capital Stock," "Formation and Structure of the Company," "Certain
Relationships and Related Transactions," "Certain Provisions of
Maryland Law and of the Articles of Incorporation and Bylaws,"
"Partnership Agreement of the Operating
26
Partnership," "Shares Eligible for Future Sale," "Description of
Indebtedness," "Federal Income Tax Consequences" and "ERISA
Considerations" in the Prospectus, insofar as such statements
describe statutes, rules or regulations, legal conclusions with
respect to their application or provisions of the organizational
documents of the Company, the Operating Partnership or the Services
Company, have been reviewed by such counsel, are correct in all
material respects and present fairly the information required to be
disclosed therein;
(viii) the execution and delivery of this Agreement have been
duly authorized by all necessary corporate or partnership (as the case
may be) action of the Company and the Operating Partnership, and this
Agreement has been duly executed and delivered by the Company and the
Operating Partnership, and is the valid and binding agreement of each
of the Company and the Operating Partnership, enforceable against the
Company and the Operating Partnership in accordance with its terms,
subject to the effect of bankruptcy, insolvency, moratorium,
fraudulent conveyance, reorganization and similar laws relating to
creditors' rights generally, to the application of equitable
principles in any proceeding, whether at law or in equity, as limited
by the unenforceability under certain circumstances under law or court
decisions of provisions providing for the indemnification of or
contribution to a party with respect to a liability where such
indemnification or contribution is contrary to public policy and to
the extent that enforceability of such provisions may be limited due
to the existence of an untrue statement of a material fact in the
Prospectus or the Registration Statement or omission to state a
material fact therein necessary to make the statements in the
Prospectus or the Registration Statement, respectively, not
misleading, it being understood that such counsel need express any
view with respect thereto other than as set forth in the paragraph
immediately following clause (xv) below;
(ix) to the knowledge of such counsel based on the
representations of the Company contained herein, review of the letters
of attorneys delivered to the Company's auditors with respect to the
existence of contingent liabilities of the Company and a certificate
of the General Counsel of the Company, (A) no legal or governmental
proceedings are pending to which the Company or any of the
Subsidiaries is a party or to which the property of the Company or any
of the Subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not described
therein, and no such proceedings have been threatened against the
Company or any of the Subsidiaries or with respect to any of their
respective properties and (B) no contract or other document is
required to be disclosed in the Registration Statement or the
Prospectus or to
27
be filed as an exhibit to the Registration Statement that is not
disclosed therein or filed as required;
(x) the issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance
by the Company and the Operating Partnership with the other provisions
of this Agreement and the consummation of the other transactions
herein contemplated do not (A) require the consent, approval,
authorization, registration or qualification of or with any federal,
or California, New York or Maryland governmental authority, except
such as have been obtained under the Act and such as may be required
under state securities or blue sky laws, or (B) conflict with or
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
lease or other agreement or instrument to which the Company or any of
the Subsidiaries is a party or by which the Company or any of the
Subsidiaries or any of their respective properties are bound
identified by an officer of the Company as material to the Company or
any of the Subsidiaries (the "Material Agreements"), or the charter
documents or by-laws or certificate of limited partnership or
partnership agreement (as the case may be) of the Company or any of
the Subsidiaries, or any provision of any California, New York or
Maryland statute, rule or regulation (other than federal or state
securities laws, which are addressed elsewhere herein), or court
orders specifically directed to the Company and identified by an
officer of the Company as material to the Company or any of the
Subsidiaries (the "Court Orders");
(xi) the Company is not, and after giving effect to the
transactions contemplated by this Agreement will not be, subject to
registration as an investment company under the Investment Company
Act of 1940, as amended;
(xii) the Registration Statement is effective under the Act; any
required filing of the Prospectus, or any Term Sheet that constitutes
a part thereof, pursuant to Rules 424(b) and 434 has been made in the
manner and within the time period required thereby; and based upon
such counsel's due inquiry made to the Office of the Secretary of the
Commission, no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and
no proceedings for that purpose have been instituted or threatened or,
to the knowledge of such counsel, are contemplated by the Commission;
(xiii) the Registration Statement originally filed with respect
to the Securities and each amendment thereto, any Rule 462(b)
Registration Statement and the Prospectus (in each case, other than
the financial statements, schedules
28
and other financial and statistical data contained therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act and the
rules and regulations of the Commission thereunder;
(xiv) if the Company elects to rely on Rule 434, the Prospectus
is not "materially different," as such term is used in Rule 434, from
the prospectus included in the Registration Statement at the time of
its effectiveness or an effective posteffective amendment thereto
(including such information that is permitted to be omitted pursuant
to Rule 430A); and
(xv) the Company has been and is organized in conformity with the
requirements for qualification as a "real estate investment trust"
under the Code, and its method of operation, as described in the
Registration Statement, the Prospectus, and the Officer's Certificate,
has enabled, and its proposed method of operation, also as so
described, will enable, the Company to meet the requirements for
qualification and taxation as a "real estate investment trust" under
the Code beginning with the Company's taxable year ended December 31,
1997.
Such counsel shall also state that they have participated in conferences
with officers and other representatives of the Company, representatives of the
independent public accountants for the Company, and representatives of the
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 such participation (relying as to
materiality to a large extent upon the statements of officers and other
representatives of the Company) no facts came to the attention of such counsel
that caused such counsel to believe that the Registration Statement, at the time
it became effective, contained 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, as of its date or as
of the Firm Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; it being
understood that such counsel need express no belief with respect to the
financial statements, schedules and other financial and statistical data
included in the Registration Statement or the Prospectus.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and
29
public officials and, as to matters involving the application of laws of any
jurisdiction other than the State of California, the State of New York, the
Delaware General Corporation Law and the Delaware Revised Limited Partnership
Act or the United States, to the extent satisfactory in form and scope to
counsel for the Underwriters, upon the opinion of Xxxxxxx Xxxxx Xxxxxxx &
Xxxxxxxxx, Baltimore, Maryland. The foregoing opinion shall also state that the
Underwriters are justified in relying upon such opinion of Xxxxxxx Xxxxx Xxxxxxx
& Ingersoll, and copies of such opinion shall be delivered to the
Representatives and counsel for the Underwriters.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion.
(c) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Underwriters, with respect to the issuance and sale of the Firm Securities, the
Registration Statement and the Prospectus, and such other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such mailers.
(d) The Representatives shall have received from Deloitte & Touche LLP
a letter or letters dated, respectively, the date hereof and the Firm Closing
Date, in form and substance satisfactory to the Representatives, to the effect
that:
(i) they are independent accountants with respect to the Company
and its consolidated subsidiaries and the Xxxxxx Group, the
Acquisition Properties, the Post IPO Acquisitions through June 30,
1997, the Acquired Properties and the Pending Acquisitions within the
meaning of the Act and the applicable rules and regulations
thereunder;
(ii) in their opinion, the audited consolidated financial
statements and schedules and pro forma financial statements examined
by them and included in the Registration Statement and the Prospectus
comply in form in all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations;
(iii) on the basis of a reading of the latest available interim
unaudited consolidated condensed financial statements of the Company,
the Acquisition Properties, the Post IPO Acquisitions through June 30,
1997, the Acquired Properties and the Pending Acquisitions, carrying
out certain specified procedures (which do not constitute an
examination made in accordance with generally accepted auditing
standards) that would not necessarily reveal matters of
30
significance with respect to the comments set forth in this paragraph
(iii), a reading of the minute books of the stockholders, the board of
directors and any committees thereof of the Company and inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters, nothing came to their attention that caused
them to believe that:
(A) at a specific date (not more than five business days prior to
the date of such letter), there were any increases in debt or
decreases in stockholders' equity of the Company or any decreases in
total assets of the Company, in each case as compared with amounts
shown in the June 30, 1997 combined balance sheet included in the
Registration Statement and the Prospectus, or for the period from July
1, 1997 to August __, 1997, there were any decreases, as compared with
the corresponding period of the previous year, in rental income, total
revenues or net income (as applicable) on an equivalent property
basis, except in all instances for changes, increases or decreases
which the Registration Statement and the Prospectus disclose have
occurred or may occur; and
(B) at a specific date (not more than five business days prior to
the date of such letter), with respect to the Company, there were any
increases in borrowings as compared with amounts shown in the June 30,
1997 balance sheet included in the Registration Statement and the
Prospectus, except in all instances for changes or increases which the
Registration Statement and the Prospectus disclose have occurred or
may occur.
(iv) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages
and financial information identified by the Representatives that are
derived from the general accounting records of the Company and its
consolidated subsidiaries and/or their respective predecessors and are
included in the Registration Statement and the Prospectus and have
compared such amounts, percentages and financial information with such
records of the Company and its consolidated subsidiaries and/or their
respective predecessors and with information derived from such records
and have found them to be in agreement, excluding any questions of
legal interpretation; and
(v) on the basis of a reading of the unaudited pro forma
condensed consolidated financial statements included in the
Registration Statement and the Prospectus, carrying out certain
specified procedures that would not necessarily reveal matters of
significance with respect to the comments set forth in this paragraph
(v), inquiries of certain officials of the Company and its
consolidated
31
subsidiaries who have responsibility for financial and accounting
matters and proving the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the unaudited pro
forma condensed consolidated financial statements, nothing came to
their attention that caused them to believe that the unaudited pro
forma condensed consolidated financial statements do not comply in
form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts
in the compilation of such statements.
In the event that the letters referred to above set forth any such changes,
decreases or increases, it shall be a further condition to the obligations of
the Underwriters that (A) such letters shall be accompanied by a written
explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended as of the
date hereof.
References to the Registration Statement and the Prospectus in this
paragraph (d) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(e) the Representatives shall have received a certificate, dated the
Firm Closing Date, of the chief executive officer and the principal financial or
accounting officer of the Company to the effect that:
(i) the representations and warranties of the Company and the
Operating Partnership in this Agreement are true and correct as if
made on and as of the Firm Closing Date; the Registration Statement,
as amended as of the Firm Closing Date, does not include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading, and the
Prospectus, as amended or supplemented as of the Firm Closing Date,
does not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and each of the Company and the Operating Partnership
has performed all covenants and agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Firm Closing Date;
32
(ii) no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and
no proceedings for that purpose have been instituted or threatened or,
to the best of the Company's or the Operating Partnership's knowledge,
are contemplated by the Commission; and
(iii) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, neither the
Company nor any of its subsidiaries has sustained any material loss or
interference with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or governmental
proceeding, and there has not been any material adverse change, or any
development involving a prospective material adverse change, in the
condition (financial or otherwise), management, business prospects,
net worth or results of operations of the Company and its
subsidiaries, taken as a whole, except in each case as described in or
contemplated by the Registration Statement and the Prospectus
(exclusive of any amendment or supplement thereto).
(f) On or before the Firm Closing Date, the Representatives and
counsel for the Underwriters shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Company.
(g) Prior to the commencement of the offering of the Securities, the
Securities shall have been approved for listing on the New York Stock Exchange,
subject to official notice of issuance.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and pay
for any Option Securities shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Securities, except that all references
to the Firm Securities and the Firm Closing Date shall be deemed to refer to
such Option Securities and the related Option Closing Date, respectively.
8. Indemnification and Contribution. (a) Each of the Company and the
--------------------------------
Operating Partnership, jointly and severally, 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 Act
33
or Section 20 of the Securities Exchange Act of 1934 (the "Exchange Act"),
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter or such controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the
Company or the Operating Partnership in Section 2 of this Agreement,
(ii) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto or (B) any application or other
document, or any amendment or supplement thereto, executed by the
Company or based upon written information furnished by or on behalf of
the Company filed in any jurisdiction in order to qualify the
Securities under the securities or blue sky laws thereof or filed with
the Commission or any securities association or securities exchange
(each an "Application"),
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto,
or any Application a material fact required to be stated therein or
necessary to make the statements therein not misleading, or
(iv) any untrue statement or alleged untrue statement of any
material fact contained in any audio or visual materials used in
connection with the marketing of the Securities, including, without
limitation, slides, videos, films and tape recordings, as more
specifically described on Schedule 2 hereto,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that neither the Company nor the
-------- -------
Operating Partnership will be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto or any
Application in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
specifically for use therein; and provided, further, that neither the Company
-------- -------
nor the Operating
34
Partnership will be liable to any Underwriter or any person controlling such
Underwriter with respect to any such untrue statement or omission made in any
Preliminary Prospectus that is corrected in the Prospectus (or any amendment or
supplement thereto) if the person asserting any such loss, claim, damage or
liability purchased Securities from such Underwriter but was not sent or given a
copy of the Prospectus (as amended or supplemented) at or prior to the written
confirmation of the sale of such Securities to such person in any case where
such delivery of the Prospectus (as amended or supplemented) is required by the
Act, unless such failure to deliver the Prospectus (as amended or supplemented)
was a result of noncompliance by the Company or the Operating Partnership with
Sections 5(d) and (e) of this Agreement. This indemnity agreement will be in
addition to any liability which the Company or the Operating Partnership may
otherwise have. Neither the Company nor the Operating Partnership will, without
the prior written consent of the Underwriter or Underwriters purchasing, in the
aggregate, more than fifty percent (50%) of the Securities, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim,
action, suit or proceeding in respect of which indemnification may be sought
hereunder (whether or not any such Underwriter or any person who controls any
such Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act is a party to such claim, action, suit or proceeding), unless
such settlement, compromise or consent includes an unconditional release of all
of the Underwriters and such controlling persons from all liability arising out
of such claim, action, suit or proceeding.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which the
Company or any such director, officer or controlling person may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or any
Application or (ii) the omission or the alleged omission to state therein a
material fact required to be stated in the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or any Application or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
specifically for use therein; and, subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses reasonably incurred by the Company or any such director, officer
or controlling person in connection with investigating or defending any such
loss, claim, damage, liability or
35
any action in respect thereof. This indemnity agreement will be in addition to
any liability which such Underwriter may otherwise have. No Underwriter will,
without the prior consent of the Company, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not the Company, any of its directors or officers who signed the Registration
Statement or any person who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act is a party to such claim,
action, suit or proceeding), unless such settlement, compromise or consent
includes an unconditional release of the Company, its officers and directors who
signed the Registration Statement and such controlling persons from all
liability arising out of such claim, action, suit or proceeding.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from (i) any
liability which it may have to any indemnified party under this Section 8 except
to the extent that the indemnifying party has been prejudiced as a result
thereof or (ii) any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if the
-------- -------
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such indemnified party
of counsel appointed to defend such action, the indemnifying party will not be
liable to such indemnified party under this Section 8 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the Representatives in the case of paragraph (a) of this Section
8, representing the indemnified parties under such paragraph (a)
36
who are parties to such action or actions) or (ii) the indemnifying party does
not promptly retain counsel satisfactory to the indemnified party or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. After such notice from the
indemnifying party to such indemnified party, the indemnifying party will not be
liable for the costs and expenses of any settlement of such action effected by
such indemnified party without the consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 8 is unavailable or insufficient, for
any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Operating
Partnership on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total proceeds from the Offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault of
the parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Underwriters, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
and any other equitable considerations appropriate in the circumstances. The
Company and the Operating Partnership and the Underwriters agree that it would
not be equitable if the amount of such contribution were determined by pro rata
or per capita allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take into
account the equitable considerations referred to above in this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Underwriter shall
be obligated to make contributions hereunder that in the aggregate exceed the
total public offering price of the Securities purchased by such Underwriter
under this Agreement, less the aggregate amount of any damages that such
Underwriter has otherwise been required to pay in respect of the same or any
substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The
37
Underwriters' obligations to contribute hereunder are several in proportion to
their respective underwriting obligations and not joint, and contributions among
Underwriters shall be governed by the provisions of the Prudential Securities
Incorporated Master Agreement Among Underwriters. For purposes of this
paragraph (d), each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Underwriter, and the Company and the
Operating Partnership shall be deemed one party and jointly and severally liable
for any obligations to contribute hereunder and each director of the Company,
each officer of the Company who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company and the Operating Partnership.
9. Default of Underwriters. If one or more Underwriters default in
-----------------------
their obligations to purchase Firm Securities or Option Securities hereunder and
the aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or Option
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If one or more Underwriters so default with respect to an aggregate
number of Securities that is more than ten percent of the aggregate number of
Firm Securities or Option Securities, as the case may be, to be purchased by all
of the Underwriters at such time hereunder, and if arrangements satisfactory to
the Representatives are not made within 36 hours after such default for the
purchase by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives) of the Securities with respect to
which such default occurs, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company or the Operating
Partnership other than as provided in Section 10 hereof. In the event of any
default by one or more Underwriters as described in this Section 9, the
Representatives shall have the right to postpone the Firm Closing Date or the
Option Closing Date, as the case may be, established as provided in Section 3
hereof for not more than seven business days in order that any necessary changes
may be made in the arrangements or documents for the purchase and delivery of
the Firm Securities or Option Securities, as the case may be. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 9. Nothing herein shall relieve any defaulting
Underwriter from liability for its default.
38
10. Survival. The respective representations, warranties, agreements,
--------
covenants, indemnities and other statements of the Company, its officers, the
Operating Partnership and the several Underwriters set forth in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by or
on behalf of the Company, any of its officers or directors, the Operating
Partnership, any Underwriter or any controlling person referred to in Section 8
hereof and (ii) delivery of and payment for the Securities. The respective
agreements, covenants, indemnities and other statements set forth in Sections 6
and 8 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated with respect to
-----------
the Firm Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company given prior to the Firm Closing Date or
the related Option Closing Date, respectively, in the event that the Company or
the Operating Partnership shall have failed, refused or been unable to perform
all obligations and satisfy all conditions on its part to be performed or
satisfied hereunder at or prior thereto or, if at or prior to the Firm Closing
Date or such Option Closing Date, respectively,
(i) the Company or any of its subsidiaries shall have, in the
sole judgment of the Representatives, sustained any material loss or
interference with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or governmental
proceeding or there shall have been any material adverse change, or
any development involving a prospective material adverse change
(including without limitation a change in management or control of the
Company), in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole, except in each case as described in or
contemplated by the Registration Statement and the Prospectus
(exclusive of any amendment or supplement thereto);
(ii) trading in the Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or
minimum or maximum prices shall have been established on any such
exchange;
(iii) a banking moratorium shall have been declared by New York,
California or United States authorities; or
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation
39
of any other insurrection or armed conflict involving the United
States or (C) any other calamity or crisis or material adverse change
in general economic, political or financial conditions having an
effect on the U.S. financial markets that, in the sole judgment of the
Representatives, makes it impractical or inadvisable to proceed with
the public offering or the delivery of the Securities as contemplated
by the Registration Statement, as amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 11 shall be
without liability of any party to any other party except as provided in
Section(s) 6 and 10 hereof.
12. Information Supplied by Underwriters. The statements set forth in the
------------------------------------
last paragraph on the front cover page, the information regarding
"stabilization" contained on the inside cover page, and, under the heading
"Underwriting," the information contained in the table and the third and eighth
paragraphs, in any Preliminary Prospectus or the Prospectus (to the extent such
statements relate to the Underwriters) constitute the only information furnished
by any Underwriter through the Representatives to the Company for the purposes
of Sections 2(b) and 8 hereof. The Underwriters confirm that such statements
(to such extent) are correct.
13. Notices. All communications hereunder shall be in writing and, if
-------
sent to any of the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to Prudential Securities
Incorporated, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity
Transactions Group; and if sent to the Company, shall be delivered or sent by
mail, telex or facsimile transmission and confirmed in writing to the Company at
0000 Xxxx Xxxxxxxx Xxxxxxx, Xx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Chief
Executive Officer.
14. Successors. This Agreement shall inure to the benefit of and shall
----------
be binding upon the several Underwriters, the Company, the Operating Partnership
and their respective successors and legal representatives, and nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of such persons and for the benefit of no other person except
that (i) the indemnities of the Company and the Operating Partnership contained
in Section 8 of this Agreement shall also be for the benefit of any person or
persons who control any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act and (ii) the indemnities of the Underwriters
contained in Section 8 of this Agreement shall also be for the benefit of the
directors of the Company, the officers of the Company who have signed the
Registration Statement and any person or persons who control the Company within
the meaning
40
of Section 15 of the Act or Section 20 of the Exchange Act. No purchaser of
Securities from any Underwriter shall be deemed a successor because of such
purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT,
--------------
AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
16. Consent to Jurisdiction and Service of Process. All judicial
----------------------------------------------
proceedings arising out of or relating to this Agreement may be brought in any
state or federal court of competent jurisdiction in the State of New York, and
by execution and delivery of this Agreement, each of the Company and the
Operating Partnership accepts for itself and in connection with its properties,
generally and unconditionally, the nonexclusive jurisdiction of the aforesaid
courts and waives any defense of forum non conveniens and irrevocably agrees to
be bound by any judgment rendered thereby in connection with this Agreement.
Each of the Company and the Operating Partnership designates and appoints
Corporation Service Company, and such other persons as may hereafter be selected
by each of the Company and the Operating Partnership irrevocably agreeing in
writing to so serve, as its agent to receive on its behalf service of all
process in any such proceedings in any such court, such service being hereby
acknowledged by each of the Company and the Operating Partnership to be
effective and binding service in every respect. A copy of any such process so
served shall be mailed by registered mail to each of the Company and the
Operating Partnership at its address provided in Section 13 hereof; provided,
--------
however, that, unless otherwise provided by applicable law, any failure to mail
-------
such copy shall not affect the validity of service of such process. If any agent
appointed by the Company or the Operating Partnership refuses to accept service,
each of the Company and the Operating Partnership hereby agrees that service of
process sufficient for personal jurisdiction in any action against the Company
or the Operating Partnership in the State of New York may be made by registered
or certified mail, return receipt requested, to the Company or the Operating
Partnership at its address provided in Section 13 hereof, and each of the
Company and the Operating Partnership hereby acknowledges that such service
shall be effective and binding in every respect. Nothing herein shall affect the
right to serve process in any other manner permitted by law or shall limit the
right of any Underwriter to bring proceedings against each of the Company and
the Operating Partnership in the courts of any other jurisdiction.
17. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
41
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Company, the
Operating Partnership and each of the several Underwriters.
Very truly yours,
XXXXXX REALTY CORPORATION
By:
-----------------------------
Xxxx X. Xxxxxx, Xx.
President and Chief
Executive Officer
XXXXXX REALTY, L.P.
By: Xxxxxx Realty Corporation,
its General Partner
By:
-----------------------------
Xxxx X. Xxxxxx, Xx.
President and Chief
Executive officer
42
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXX XXXXXX INC.
By: PRUDENTIAL SECURITIES INCORPORATED
By:
---------------------------------------
Xxxx-Xxxxxx Canfin, Managing Director
For itself and on behalf of the Representatives.
43
SCHEDULE 1
UNDERWRITERS
------------
Number of Firm Securities
Underwriter to be Purchased
---------------------------
Prudential Securities Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxx Xxxxxx Inc.
Total ==========
44
