RECKSON ASSOCIATES REALTY CORP.
UNDERWRITING AGREEMENT
TABLE OF CONTENTS
Page
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UNDERWRITING AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.Representations and Warranties . . . . . . . . . . . . . . 4
(a) Representations and Warranties by the Company and
the Operating Partnership. . . . . . . . . . . . . . . 4
(1) Compliance with Registration Requirements . . . . . . 4
(2) Incorporated Documents . . . . . . . . . . . . . . . 5
(3) Independent Accountants . . . . . . . . . . . . . . . 5
(4) Financial Statements . . . . . . . . . . . . . . . . 5
(5) No Material Adverse Change in Business . . . . . . . 6
(6) Good Standing of the Company . . . . . . . . . . . . 6
(7) Good Standing of the Operating Partnership . . . . . 6
(8) Good Standing of the Subsidiaries . . . . . . . . . . 7
(9) Capitalization . . . . . . . . . . . . . . . . . . . 7
(10) Authorization of Units . . . . . . . . . . . . . . . 8
(11) Authorization of Common Stock . . . . . . . . . . . . 8
(12) Authorization of Preferred Stock . . . . . . . . . . 8
(13) Authorization of Warrants . . . . . . . . . . . . . . 9
(14) Authorization of Warrant Agreement . . . . . . . . . 9
(15) Authorization of Underlying Securities . . . . . . . 9
(16) Descriptions of the Underwritten Securities,
Underlying Securities and Warrant Agreement . . . . . 9
(17) Authorization of this Underwriting Agreement and
Terms Agreement . . . . . . . . . . . . . . . . . . . 10
(18) Absence of Defaults and Conflicts . . . . . . . . . . 10
(19) Absence of Labor Dispute . . . . . . . . . . . . . . 11
(20) Absence of Proceedings . . . . . . . . . . . . . . . 11
(21) Accuracy of Exhibits . . . . . . . . . . . . . . . . 11
(22) REIT Qualification . . . . . . . . . . . . . . . . . 11
(23) Investment Company Act . . . . . . . . . . . . . . . 12
(24) Intellectual Property . . . . . . . . . . . . . . . . 12
(25) Absence of Further Requirements . . . . . . . . . . . 12
(26) Possession of Licenses and Permits . . . . . . . . . 12
(27) Registration Rights . . . . . . . . . . . . . . . . . 13
(28) Title to Property . . . . . . . . . . . . . . . . . . 13
(29) Environmental Laws . . . . . . . . . . . . . . . . . 14
(30) Tax Returns . . . . . . . . . . . . . . . . . . . . . 14
(31) Environmental Consultants . . . . . . . . . . . . . . 15
(32) Compliance with Cuba Act . . . . . . . . . . . . . . 15
(33) Title Insurance . . . . . . . . . . . . . . . . . . . 15
(34) Absence of Rule 10b-6 Violation . . . . . . . . . . . 15
(b) Officers' Certificates . . . . . . . . . . . . . . . . . . 15
SECTION 2. Sale and Delivery to Underwriters; Closing . . . . . . . 15
(a) Underwritten Securities . . . . . . . . . . . . . . . . . 15
(b) Option Underwritten Securities . . . . . . . . . . . . . . 16
(c) Payment . . . . . . . . . . . . . . . . . . . . . . . . . 16
(d) Denominations; Registration . . . . . . . . . . . . . . . 17
SECTION 3. Covenants of the Company and the Operating
Partnership . . . . . . . . . . . . . . . . . . . . . 17
(a) Compliance with Securities Regulations and Commission
Requests . . . . . . . . . . . . . . . . . . . . . . .. . 17
(b) Filing of Amendments . . . . . . . . . . . . . . . . . . . 17
(c) Delivery of Registration Statements . . . . . . . . . . . 18
(d) Delivery of Prospectuses . . . . . . . . . . . . . . . . . 18
(e) Continued Compliance with Securities Laws . . . . . . . . 18
(f) Blue Sky Qualifications . . . . . . . . . . . . . . . . . 19
(g) Earnings Statement . . . . . . . . . . . . . . . . . . . . 19
(h) Reporting Requirements . . . . . . . . . . . . . . . . . . 19
(i) Listing . . . . . . . . . . . . . . . . . . . . . . . . . 19
(j) Restriction on Sale of Securities . . . . . . . . . . . . 19
(k) REIT Qualification . . . . . . . . . . . . . . . . . . . . 19
(l) Reservation of Securities . . . . . . . . . . . . . . . . 19
(m) Use of Proceeds . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4. Payment of Expenses . . . . . . . . . . . . . . . . . 20
(a) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 20
(b) Termination of Agreement . . . . . . . . . . . . . . . . . 21
SECTION 5. Conditions of Underwriters' Obligations . . . . . . . 21
(a) Effectiveness of Registration Statement . . . . . . . . . 21
(b) Opinion of Counsel for Company . . . . . . . . . . . . . . 21
(c) Opinion of Counsel for Underwriters . . . . . . . . . . . 22
(d) Officers' Certificate . . . . . . . . . . . . . . . . . . 22
(e) Accountant's Comfort Letter . . . . . . . . . . . . . . . 22
(f) Bring-down Comfort Letter . . . . . . . . . . . . . . . . 23
(g) Ratings . . . . . . . . . . . . . . . . . . . . . . . . . 23
(h) Approval of Listing . . . . . . . . . . . . . . . . . . . 23
(i) Lock-up Agreements . . . . . . . . . . . . . . . . . . . . 23
(j) Over-Allotment Option . . . . . . . . . . . . . . . . . . 23
(k) Additional Documents . . . . . . . . . . . . . . . . . . . 24
(l) Termination of Terms Agreement . . . . . . . . . . . . . . 24
SECTION 6. Indemnification . . . . . . . . . . . . . . . . . . . 24
(a) Indemnification of Underwriters . . . . . . . . . . . . . 24
(b) Indemnification of Company, Directors and Officers . . . . 25
(c) Actions against Parties; Notification; . . . . . . . . . . 25
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 7. Contribution . . . . . . . . . . . . . . . . . . . . 26
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery . . . . . . . . . . . . . . . . . . 26
SECTION 9. Termination . . . . . . . . . . . . . . . . . . . . . 27
(a) Underwriting Agreement . . . . . . . . . . . . . . . . . . 27
(b) Terms Agreement . . . . . . . . . . . . . . . . . . . . . 27
(c) Liabilities . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 10. Default by One or More of the Underwriters . . . . . 27
SECTION 11. Notices . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 12. Parties . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 13. GOVERNING LAW AND TIME . . . . . . . . . . . . . . . 29
SECTION 14. Effect of Headings . . . . . . . . . . . . . . . . . 29
RECKSON ASSOCIATES REALTY CORP.
(a Maryland corporation)
Common Stock, Warrants to Purchase Common Stock,
Preferred Stock and Warrants to Purchase Preferred Stock
UNDERWRITING AGREEMENT
October 16, 1996
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Reckson Associates Realty Corp., a Maryland corporation (the "Company")
proposes to issue and sell up to $250,000,000 aggregate initial public
offering price of its (i) shares of common stock, par value $0.01 per share
(the "Common Stock"), (ii) warrants to purchase shares of Common Stock (the
"Common Stock Warrants"), (iii) shares of preferred stock, par value $0.01
per share (the "Preferred Stock"), or (iv) warrants to purchase shares of
Preferred Stock (the "Preferred Stock Warrants"), or any combination thereof,
from time to time, in or pursuant to one or more offerings on terms to be
determined at the time of sale.
The Preferred Stock will be issued in one or more series and each series
of Preferred Stock may vary, as applicable, as to the title, specific number
of shares, rank, stated value, liquidation preference, dividend rate or rates
(or method of calculation), dividend payment dates, redemption provisions,
sinking fund requirements, conversion provisions (and terms of the related
Underlying Securities (as defined below)) and any other variable terms as set
forth in the applicable articles supplementary (each, the "Articles
Supplementary") relating to such series of Preferred Stock.
Each issue of Common Stock Warrants and Preferred Stock Warrants
(collectively, the "Warrants") will be issued pursuant to a separate warrant
agreement (each, a "Warrant Agreement") between the Company and the warrant
agent identified therein (each, a "Warrant Agent"). The Warrants may vary,
as applicable, as to, among other terms, title, type, specific number,
exercise dates or periods, exercise price(s), expiration date(s) and terms
of the related Underlying Securities.
As used herein, "Securities" shall mean the Common Stock, Common Stock
Warrants, Preferred Stock, Preferred Stock Warrants, or any combination
thereof, initially issuable by the Company and "Underlying Securities" shall
mean the Common Stock, or Preferred Stock, issuable upon exercise of the
Warrants, as applicable, or upon conversion of the Preferred Stock.
Whenever the Company determines to make an offering of Securities
through Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx"), or through an underwriting syndicate managed
by Xxxxxxx Xxxxx, Xxxxxxx Xxxxx and the Company will enter into an agreement
(each, a "Terms Agreement") providing for the sale of such Securities to, and
the purchase and offering thereof by, Xxxxxxx Xxxxx and such other
underwriters, if any, selected by Xxxxxxx Xxxxx (the "Underwriters", which
term shall include Xxxxxxx Xxxxx, whether acting as sole Underwriter or as
a member of an underwriting syndicate, as well as any Underwriter substituted
pursuant to Section 10 hereof); provided, that, the Company is not obligated,
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and shall have complete and absolute discretion to determine if and when, to
make any offering, to make any offering through Xxxxxxx Xxxxx or any other
person, or to enter into any Terms Agreement. The Terms Agreement relating
to the offering of Securities shall specify the number of Securities to be
initially issued (the "Initial Underwritten Securities"), the name of each
Underwriter participating in such offering (subject to substitution as
provided in Section 10 hereof), the name of any Underwriter other xxxx
Xxxxxxx Xxxxx acting as co-manager in connection with such offering, the
number of Initial Underwritten Securities which each such Underwriter
severally agrees to purchase, whether such offering is on a fixed or variable
price basis and, if on a fixed price basis, the initial offering price, the
price at which the Initial Underwritten Securities are to be purchased by the
Underwriters, the form, time, date and place of delivery and payment of the
Initial Underwritten Securities and any other material variable terms of the
Initial Underwritten Securities, as well as the material variable terms of
any related Underlying Securities. In addition, if applicable, such Terms
Agreement shall specify whether the Company has agreed to grant to the
Underwriters an option to purchase additional Securities to cover over-
allotments, if any, and the number of Securities subject to such option (the
"Option Underwritten Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and all or any
portion of any Option Underwritten Securities. The Terms Agreement, which
shall be substantially in the form of Exhibit A hereto, may take the form of
an exchange of any standard form of written telecommunication between the
Company and Xxxxxxx Xxxxx, acting for itself and, if applicable, as
representative of any other Underwriters. Each offering of Underwritten
Securities through Xxxxxxx Xxxxx as sole Underwriter or through an
underwriting syndicate managed by Xxxxxxx Xxxxx will be governed by this
Underwriting Agreement, as supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-13213), and pre-
effective amendments nos. 1 and 2 thereto, for the registration of the
Securities and the Underlying Securities under the Securities Act of 1933,
as amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"), and the Company has filed such
post-effective amendments thereto as may be required prior to the execution
of the applicable Terms Agreement. Such registration statement (as so
amended, if applicable) has been declared effective by the Commission. Such
registration statement (as so amended, if applicable), including the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of
the 1933 Act Regulations (the "Rule 430A Information") or Rule 434(d) of the
1933 Act Regulations (the "Rule 434 Information"), is referred to herein as
the "Registration Statement"; and the final prospectus constituting a part
thereof and the applicable prospectus supplement relating to the offering of
the Underwritten Securities, in the form first furnished to the Underwriters
by the Company for use in connection with the offering of the Underwritten
Securities, are collectively referred to herein as the "Prospectus";
provided, however, that all references to the "Registration Statement" and
the "Prospectus" shall be deemed to include all documents incorporated
therein by reference pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), prior to the execution of the applicable Terms
Agreement; provided, further, that if the Company files a registration
statement with the Commission pursuant to Section 462(b) of the 1933 Act
Regulations (the "Rule 462 Registration Statement"), then, after such filing,
all references to "Registration Statement" shall be deemed to include the
Rule 462 Registration Statement; provided, however, a prospectus supplement
shall be deemed to have supplemented the Prospectus only with respect to the
offering of the Underwritten Securities to which it relates, and provided,
further, that if the Company elects to rely upon Rule 434 of the 1933 Act
Regulations, then all references to "Prospectus" shall be deemed to include
the final or preliminary prospectus and the applicable term sheet or
abbreviated term sheet (the "Term Sheet"), as the case may be, in the form
first furnished to the Underwriters by the Company in reliance upon Rule 434
of the 1933 Act Regulations, and all references in this Underwriting
Agreement to the date of the Prospectus shall mean the date of the Term
Sheet. A "preliminary prospectus" shall be deemed to refer to any prospectus
used before the registration statement became effective and any prospectus
that omitted, as applicable, the Rule 430A Information, the Rule 434
Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, that was used after such effectiveness and prior to the
execution and delivery of the applicable Terms Agreement. For purposes of
this Underwriting Agreement, all references to the Registration Statement,
Prospectus, Term Sheet or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX"). Capitalized terms used but not otherwise defined
herein shall have the meanings given to those terms in the Prospectus.
All references in this Underwriting Agreement to financial statements
and schedules and other information which is "contained," "included" or
"stated" (or other references of like import) in the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to mean and include all
such financial statements and schedules and other information which is or
deemed to be incorporated by reference in the Registration Statement,
Prospectus or preliminary prospectus, as the case may be; and all references
in this Underwriting Agreement to amendments or supplements to the
Registration Statement, Prospectus or preliminary prospectus shall be deemed
to mean and include the filing of any document under the 1934 Act which is
or is deemed to be incorporated by reference in the Registration Statement,
Prospectus or preliminary prospectus, as the case may be.
The term "Subsidiary" means a corporation or a partnership a majority
of the outstanding voting stock, partnership or membership interests, as the
case may be, of which is owned or controlled, directly or indirectly, by the
Company or Reckson Operating Partnership L.P. (the
"Operating Partnership"), a Delaware limited partnership, or by one or more
other Subsidiaries of the Company or the Operating Partnership.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company and the Operating
Partnership. Each of the Company and the Operating Partnership represents
and warrants, jointly and severally, to Xxxxxxx Xxxxx, as of the date hereof,
and to each Underwriter named in the applicable Terms Agreement, as of the
date thereof, as of the Closing Time (as defined below) and, if applicable,
as of each Date of Delivery (as defined below) (in each case, a
"Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company meets
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the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or,
to the knowledge of the Company, are contemplated by the Commission or
the state securities authority of any jurisdiction, and any request on
the part of the Commission for additional information has been complied
with. No order preventing or suspending the use of the Prospectus has
been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company, threatened by the C
ommission or the state securities authority of any jurisdiction.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
(including the filing of the Company's most recent Annual Report on
Form 10-K with the Commission (the "Annual Report on Form 10-K")) became
effective and at each Representation Date, the Registration Statement,
any Rule 462(b) Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and did not and
will not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading. At the date of the Prospectus and
at each Representation Date, the Prospectus and any amendments and
supplements thereto did not and will not include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. If the Company elects to rely
upon Rule 434 of the 1933 Act Regulations, the Company will comply with
the requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through Xxxxxxx
Xxxxx expressly for use in the Registration Statement or the Prospectus.
Each preliminary prospectus and Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act and the
1933 Act Regulations and, if applicable, each preliminary prospectus and
the Prospectus delivered to the Underwriters for use in connection with
the offering of Underwritten Securities will, at the time of such
delivery, be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
If a Rule 462(b) Registration Statement is required in
connection with the offering and sale of the Securities, the Company has
complied or will comply with the requirements of Rule 111 under the
1933 Act Regulations relating to the payment of filing fees therefor.
(2) Incorporated Documents. The documents incorporated or deemed
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to be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the date of
the Prospectus and at each Representation Date, or during the period
specified in Section 3(e), did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(3) Independent Accountants. The accountants who certified the
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financial statements and supporting schedules included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements included, or
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incorporated by reference, in the Registration Statement and the
Prospectus, together with the related schedules and notes, as well as
those financial statements, schedules and notes of any other entity
included therein, present fairly the financial position of the respective
entity or entities or group presented therein at the respective dates
indicated and the statement of operations, stockholders' equity and cash
flows of such entity, as the case may be, for the periods specified.
Except as otherwise stated in the Registration Statement, such
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included or incorporated by reference in the Registration Statement
and the Prospectus present fairly, in accordance with GAAP, the
information required to be stated therein. In addition, any pro forma
financial information and the related notes thereto included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma information and have been properly compiled on the
bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate
to give effect to the transactions and circumstances referred to therein.
All historical financial statements and information and all pro forma
financial statements and information required by the 1933 Act, the 1933
Act Regulations, the 1934 Act and the 1934 Act Regulations are included,
or incorporated by reference, in the Registration Statement and
the Prospectus.
(5) No Material Adverse Change in Business. Since the respective
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dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, assets, business affairs or business prospects of the
Company, the Operating Partnership and the Subsidiaries considered as
one enterprise whether or not arising in the ordinary course of business,
which would be material to the Company and the Operating Partnership,
taken as a whole (anything which would be material to the Company and
the Operating Partnership taken as a whole, being hereinafter referred
to as "Material;" and such a material adverse change, a "Material Adverse
Effect"), (B) no casualty loss or condemnation or other adverse event
with respect to any of the interests held directly or indirectly in any
of the real properties or real property interests, including without
limitation, any interest or participation, direct or indirect, in any
mortgage obligation owned, directly or indirectly, by the Company, the
Operating Partnership or any Subsidiary (the "Properties") has occurred
which would be Material, (C) there have been no transactions or
acquisitions entered into by the Company, the Operating Partnership
or any Subsidiary, other than those in the ordinary course of business,
which would be Material, (D) except for regular quarterly distributions
on Common Stock in amounts per share that are consistent with past
practice and regular quarterly distributions on units of the Operating
Partnership (the "Units"), there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its
capital stock or any distribution by the Operating Partnership with
respect to its Units, and (E) there has been no change in the capital
stock of the Company, the Operating Partnership or any Subsidiary.
(6) Good Standing of the Company. The Company has been duly
----------------------------
organized and is validly existing as a corporation in good standing
under the laws of the State of Maryland and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under, or as contemplated under this Underwriting Agreement
and the applicable Terms Agreement. The Company is duly qualified as
a foreign corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing
would not result in a Material Adverse Effect.
(7) Good Standing of the Operating Partnership. The Operating
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Partnership is duly organized and validly existing as a limited
partnership in good standing under the laws of the State of Delaware,
with partnership power and authority to own, lease and operate its
properties, to conduct the business in which it is engaged and proposes
to engage as described in the Prospectus and to enter into and perform
its obligations under this Agreement and the applicable Terms Agreement.
The Operating Partnership is duly qualified or registered as a foreign
partnership and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where
the failure to so qualify or register would not have a Material Adverse
Effect. The Company is the sole general partner of the Operating
Partnership. The Amended and Restated Agreement of Limited Partnership
of the Operating Partnership, dated June 2, 1995, as amended through
December 6, 1995 (the "Operating Partnership Agreement"), is in full
force and effect.
(8) Good Standing of the Subsidiaries. Each Subsidiary that is
---------------------------------
a "significant subsidiary" as such term is defined in Section 1-02 of
Regulation S-X (each a "Significant Subsidiary," and collectively, the
"Significant Subsidiaries") is listed on Exhibit B hereto and has been
duly organized and is validly existing as a corporation, limited
partnership, limited liability company or other entity, as the case may
be, in good standing under the laws of the state of its jurisdiction of
incorporation or organization, as the case may be, with the requisite
power and authority to own, lease and operate its properties, and to
conduct the business in which it is engaged or proposes to engage as
described in the Prospectus. Each such entity is duly qualified or
registered as a foreign corporation, limited partnership or limited
liability company or other entity, as the case may be, to transact
business and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where
the failure to so qualify or register would not have a Material Adverse
Effect. Except as otherwise stated in the Registration Statement and
the Prospectus, all of the issued and outstanding capital stock or other
equity interests of each such entity has been duly authorized and validly
issued and is fully paid and non-assessable, has been offered and sold
in compliance with all applicable laws (including, without limitation,
federal or state securities laws) and are owned by the Company or the
Operating Partnership, in each case free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity
(collectively, "Liens"). No shares of capital stock or other equity
interests of such entities are reserved for any purpose, and there are
no outstanding securities convertible into or exchangeable for any capital
stock or other equity interests of such entities and no outstanding
options, rights (preemptive or otherwise) or warrants to purchase or
to subscribe for shares of such capital stock or other equity interests
or any other securities of such entities, except as disclosed in the
Prospectus.
(9) Capitalization. As of the date of this Agreement, the
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authorized capital stock of the Company consists of 100,000,000 shares
of Common Stock, 25,000,000 shares of excess stock, par value $.01 per
share, and 75,000,000 shares of preferred stock, par value $.01 per
share, of which 10,445,982 shares of such common stock and no shares
of such excess or preferred stock are issued and outstanding on
the date hereof. All issued and outstanding shares of capital stock
have been duly authorized and validly issued by the Company and are fully
paid and non-assessable and have been offered and sold or exchanged in
compliance with all applicable laws (including, without limitation,
federal and state securities laws), and none of such shares of capital
stock were issued in violation of preemptive or other similar rights
arising by operation of law, under the charter and by-laws of the
Company or under any agreement to which the Company, the Operating
Partnership or any Subsidiary is a party or otherwise.
Except for shares of Common Stock issuable upon exchange of Units or
upon the exercise of options under the stock option plans and/or
distribution reinvestment plans of the Company, there are no
shares of capital stock of the Company reserved for any purpose and
there are no outstanding securities convertible into or exchangeable for
any shares of capital stock of the Company and except as granted in this
Underwriting Agreement, any Terms Agreement and any Warrant Agreement,
there are no outstanding options, rights (preemptive or otherwise) or
warrants to purchase or to subscribe for shares of such stock or any
other securities of the Company.
(10) Authorization of Units. All the issued and outstanding Units
----------------------
have been duly authorized and are validly issued, fully paid and non-
assessable and have been offered and sold or exchanged in compliance with
all applicable laws (including, without limitation, federal and state
securities laws). There are no outstanding securities convertible into
or exchangeable for any Units and no outstanding options, rights
(preemptive or otherwise) or warrants to purchase or to subscribe for
Units, except for rights granted to the partners in Omni Partners, L.P.
(the "Omni Partnership").
(11) Authorization of Common Stock. If the Underwritten Securities
-----------------------------
being sold pursuant to the applicable Terms Agreement include Common
Stock, such Underwritten Securities have been, or as of the date of
such Terms Agreement will have been, duly authorized by the Company for
issuance and sale pursuant to this Underwriting Agreement and such Terms
Agreement. Such Underwritten Securities, when issued and delivered by
the Company pursuant to this Underwriting Agreement and such Terms
Agreement against payment of the consideration therefor specified in
such Terms Agreement, will be validly issued, fully paid and non-
assessable and will not be subject to preemptive or other similar rights
arising by operation of law, under the charter and by-laws of the Company
or under any agreement to which the Company, the Operating Partnership
or any Subsidiary is a party, or otherwise. No holder of such
Underwritten Securities will be subject to personal liability by
reason of being such a holder.
(12) Authorization of Preferred Stock. If the Underwritten
--------------------------------
Securities being sold pursuant to the applicable Terms Agreement include
Preferred Stock, such Underwritten Securities have been, or as of the date
of such Terms Agreement will have been, duly authorized by the Company for
issuance and sale pursuant to this Underwriting Agreement and such Terms
Agreement. The applicable Preferred Stock, when issued and delivered by
the Company pursuant to this Underwriting Agreement and such Terms
Agreement against payment of the consideration therefor, specified in
such Terms Agreement, will be validly issued, fully paid and non-
assessable and will not be subject to preemptive or other similar rights
arising by operation of law, under the charter and by-laws of the Company
or under any agreement to which the Company, the Operating Partnership or
any Subsidiary is a party, or otherwise. No holder of Preferred Stock
will be subject to personal liability by reason of being such a holder.
The applicable Articles Supplementary will be in full force and effect
prior to the Closing Time and will comply with all applicable legal
requirements.
(13) Authorization of Warrants. If the Underwritten Securities
-------------------------
being sold pursuant to the applicable Terms Agreement include Warrants,
such Underwritten Securities have been, or as of the date of such
Terms Agreement will have been, duly authorized by the Company for
issuance and sale pursuant to this Underwriting Agreement and such Terms
Agreement. Such Underwritten Securities, when issued and authenticated
in the manner provided for the applicable Warrant Agreement and delivered
against payment of the consideration therefor specified in such Terms
Agreement, will constitute valid and legally binding obligations of the
Company, entitled to the benefits provided by such Warrant Agreement and
enforceable against the Company in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles.
(14) Authorization of Warrant Agreement. If the Underwritten
----------------------------------
Securities being sold pursuant to the applicable Terms Agreement include
Warrants, each applicable Warrant Agreement has been, or prior to the
issuance of such Underwritten Securities will have been, duly authorized,
executed and delivered by the Company and, upon such authorization,
execution and delivery, will constitute a valid and legally binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar law
relating to or affecting creditors' rights generally or by general
equitable principles.
(15) Authorization of Underlying Securities. If the Underlying
--------------------------------------
Securities related to the Underwritten Securities being sold pursuant
to the applicable Terms Agreement include Common Stock or Preferred
Stock, such Underlying Securities have been, or as of the date of such
Terms Agreement will have been, duly authorized and reserved for issuance
by the Company upon exercise of the Common Stock Warrants or Preferred
Stock Warrants, as applicable, or upon conversion of the related
Preferred Stock or Depositary Shares, as applicable. If the Underlying
Securities include Common Stock or Preferred Stock, such Underlying
Securities, when issued upon such exercise or conversion, as applicable,
will be validly issued, fully paid and non-assessable and will not be
subject to preemptive or other similar rights arising by operation of
law, under the charter and by-laws of the Company or under any agreement
to which the Company, the Operating Partnership or any Subsidiary is a
party, or otherwise. No holder of such Common Stock or Preferred Stock
will be subject to personal liability by reason of being such a holder.
(16) Descriptions of the Underwritten Securities, Underlying
----------------------------------------------------
Securities and Warrant Agreement. The Underwritten Securities being sold
--------------------------------
pursuant to the applicable Terms Agreement and each applicable Warrant
Agreement,as of the date of the Prospectus, and any Underlying Securities,
when issued and delivered in accordance with the terms of the related
Underwritten Securities, will conform in all material respects to
the statements relating thereto contained in the Prospectus and will be
in substantially the form filed or incorporated by reference, as the case
may be, as an exhibit to the Registration Statement. The form of stock
certificate or warrant to be used to evidence the Underwritten Securities
or any Underlying Securities will be in due and proper form and will
comply with all applicable legal requirements.
(17) Authorization of this Underwriting Agreement and Terms
----------------------------------------------------
Agreement. This Underwriting Agreement has been, and the applicable Terms
---------
Agreement as of the date thereof will have been, duly authorized, executed
and delivered by the Company and the Operating Partnership, to the extent
each is a party thereto and assuming due authorization, execution and
delivery by Xxxxxxx Xxxxx, is enforceable against the Company and the
Operating Partnership, to the extent each is a party thereto,in accordance
with its terms except as such enforcement may be limited by bankruptcy,
insolvency, reorganization of other similar laws affecting creditors'
rights generally and by general equitable principles.
(18) Absence of Defaults and Conflicts. None of the Company, the
---------------------------------
Operating Partnership or any Subsidiary is in violation of its charter,
by-laws, certificate of limited partnership or partnership agreement or
other organizational document, as the case may be, or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which each entity is a party or by which or any of them may be bound, or
to which any of its property or assets may be bound or subject
(collectively, "Agreements and Instruments"), except for such violations
or defaults that would not result in a Material Adverse Effect. The
execution, delivery and performance of this Underwriting Agreement, the
applicable Terms Agreement and each applicable Warrant Agreement and
Deposit Agreement and any other agreement or instrument entered into or
issued or to be entered into or issued by the Company or the Operating
Partnership in connection with the transactions contemplated hereby or
thereby or in the Registration Statement and the Prospectus and the
consummation of the transactions contemplated herein and in the
Registration Statement and the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from
the sale of the Underwritten Securities as described under the caption
"Use of Proceeds") and compliance by the Company and the Operating
Partnership with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate or partnership action, as the case
may be, and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
assets, properties or operations of the Company, the Operating Partnership
or any Subsidiary pursuant to, any Agreements and Instruments, except for
such conflicts, breaches, defaults, Repayment Events or liens, charges or
encumbrances that would not result in a Material Adverse Effect, nor will
such action result in any violation of the provisions of the charter,
by-laws of the Company or the organizational documents of the Operating
Partnership or any Subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company, the Operating Partnership or any Subsidiary or any of their
assets, properties or operations, except for such violations that would
not have a Material Adverse Effect. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a material portion of such indebtedness by the
Company, the Operating Partnership or any Subsidiary.
(19) Absence of Labor Dispute. No labor dispute with the employees
------------------------
of the Company, the Operating Partnership or any Subsidiary exists or, to
the knowledge of the Company and the Operating Partnership, is imminent,
and the Company and the Operating Partnership are not aware of any
existing or imminent labor disturbance by the employees of any of its or
any Subsidiary's principal suppliers, manufacturers, customers or
contractors, which dispute or disturbance, in either case, may reasonably
be expected to result in a Material Adverse Effect.
(20) Absence of Proceedings. There is no action, suit, proceeding,
----------------------
inquiry or investigation before or by any court or governmental agency or
body, domestic or foreign, now pending, or to the knowledge of the Company
and the Operating Partnership threatened against or affecting the Company,
the Operating Partnership or any Subsidiary or any officer or director of
the Company which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect the
consummation of this Underwriting Agreement, the applicable Terms
Agreement or any applicable Warrant Agreement or Deposit Agreement or the
transactions contemplated herein or therein. The aggregate of all
pending legal or governmental proceedings to which the Company, the
Operating Partnership or any Subsidiary is a party or of which any of
their respective assets, properties or operations is the subject which
are not described in the Registration Statement and the Prospectus,
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
(21) Accuracy of Exhibits. There are no contracts or documents
--------------------
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and/or filed
as required and the descriptions thereof or references thereto are
correct in all Material respects.
(22) REIT Qualification. At all times since January 1, 1995 the
------------------
Company has been, and upon the sale of the applicable Underwritten
Securities, the Company will continue to be, organized and operated in
conformity with the requirements for qualification as a real estate
investment trust under the Internal Revenue Code of 1986, as amended (the
"Code"), and its proposed method of operation will enable it to continue
to meet the requirements for taxation as a real estate investment trust
under the Code, and no actions have been taken (or not taken which are
required to be taken) which would cause such qualification to be lost.
(23) Investment Company Act. Each of the Company, the Operating
----------------------
Partnership and any Subsidiary is not, and upon the issuance and sale of
the Underwritten Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will not be,
an "investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "1940 Act").
(24) Intellectual Property. To the knowledge of the Company and
---------------------
the Operating Partnership, none of the Company, the Operating Partnership
or any Subsidiary is required to own, possess or obtain the consent of any
holder of any trademarks, service marks, trade names or copyrights not now
lawfully owned, possessed or licensed in order to conduct the business now
operated by such entity, and none of the Company,the Operating Partnership
or any Subsidiary has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any such proprietary rights, and which infringement or conflict (if the
subject of any unfavorable decisions, ruling or finding) singly or in the
aggregate would result in any Material Adverse Effect.
(25) Absence of Further Requirements. No filing with, or
-------------------------------
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
or any other entity or person is necessary or required for the performance
by the Company and the Operating Partnership of its obligations under
this Underwriting Agreement or the applicable Terms Agreement or in
connection with the transactions contemplated under this Underwriting
Agreement, such Terms Agreement or any applicable Warrant Agreement or
Deposit Agreement, except such as have been already obtained or as may be
required under state securities laws or under the by-laws and rules of
the National Association of Securities Dealers, Inc. (the "NASD").
(26) Possession of Licenses and Permits. Each of the Company, the
----------------------------------
Operating Partnership and the Subsidiaries possesses such permits,
licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local
or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them except for such Governmental Licenses, the
failure to obtain would not, singly or in the aggregate, result in a
Material Adverse Effect. The Company, the Operating Partnership and the
Subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, result in a Material Adverse Effect. All of
the Governmental Licenses are valid and in full force and effect, except
where the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not result in
a Material Adverse Effect. Neither the Company, the Operating Partnership
nor any Subsidiary has received any notice of proceedings relating to
the revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(27) Registration Rights. Except as disclosed in the Prospectus
-------------------
and for registration rights of holders of Units, rights of purchasers of
Common Stock in the offering made concurrently with the initial public
offering of Common Stock by the Company, and for partners in the Omni
Partnership, there are no persons with registration or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act.
(28) Title to Property. The Company, Operating Partnership, the
-----------------
Subsidiaries or any joint venture partnership in which the Company owns an
interest, as the case may be, have good and marketable fee simple title or
leasehold title, as the case may be, to all real property owned or leased,
or represented to be owned or leased, as applicable, by the Company, the
Operating Partnership, the Subsidiaries, respectively, and good title to
all other properties owned by them, and any improvements thereon and all
other assets that are required for the effective operation of such
properties in the manner in which they currently are operated, free and
clear of all liens, encumbrances, claims, security interests and defects,
except such as are Permitted Encumbrances (as defined below); (B) all
liens, charges, encumbrances, claims or restrictions on or affecting any
of the Properties and the assets of any of the Company, the Operating
Partnership, the Subsidiaries or any joint venture partnership in which
the Company owns an interest that are required to be disclosed in the
Prospectus are disclosed therein; (C) each of the Properties comply with
all applicable codes, laws and regulations and (including, without
limitation, building and zoning codes, laws and regulations and laws
relating to access to the Properties), except if and to the extent
disclosed in the Prospectus and except for such failures to comply that
would not in the aggregate have a Material Adverse Effect; (D) there
are in effect for the assets of each of the Company, the Operating
Partnership, the Subsidiaries or any joint venture partnership in
which the Company owns an interest, insurance policies covering the
risks and in amounts that are commercially reasonable for the types
of assets owned by them and that are consistent with the types and
amounts of insurance typically maintained by prudent owners of properties
similar to such assets in the markets in which such assets are located,
and none of the Company, the Operating Partnership, the Subsidiaries or
any joint venture partnership in which the Company owns an interest has
received from any insurance company notice of any material defects or
deficiencies affecting the insurability of any such assets or any
notices of cancellation or intent to cancel any such policies; and
(E) neither the Company nor the Operating Partnership 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
that would not have a Material Adverse Effect. All of the leases and
subleases material to the business of the Company, the Operating
Partnership and the Subsidiaries considered as one enterprise, and under
which the Company, the Operating Partnership or any Subsidiary holds
Properties described in the Prospectus, are in full force and effect,
and neither the Company, the Operating Partnership nor any
Subsidiary has received any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company, the
Operating Partnership nor any Subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of
such Company, Operating Partnership or any Subsidiary of the continued
possession of the leased or subleased premises under any such lease or
---------------------
sublease. "Permitted Encumbrance" shall mean (a) liens on certain
Properties securing any of the Company, the Operating Partnership, and
any Subsidiary or joint venture partnership obligations, (b) liens on
certain properties securing the obligations of the Reckson FS Limited
Partnership, a Delaware limited partnership, or the Operating Partnership
under the Company's $150,000,000 Credit Facility, (c) other liens which
are expressly described in the Prospectus and (d) customary easements
and encumbrances and other exceptions to title which do not impair
the operation, development or use of the Properties for the purposes
intended therefor as contemplated in the Prospectus.
(29) Environmental Laws. Except as otherwise stated in the
------------------
Registration Statement and the Prospectus and except such violations as
would not, singly or in the aggregate, result in a Material Adverse
Effect, to the knowledge of the Company, the Operating Partnership and
any Subsidiary, as the case may be, after due inquiry, (A) neither the
Company, the Operating Partnership nor any Subsidiary is in violation of
any federal, state, local or foreign statute, law, rule, regulation,
ordinance or code, including any judicial or administrative order,
consent, decree of judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata)
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company, the Operating Partnership and any Subsidiaries
have all permits, authorizations and approvals required under any
applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company, the Operating
Partnership or any Subsidiaries, and (D) there are no events or
circumstances that might reasonably be expected to form the basis of
an order for clean-up or remediation, or an action, suit or proceeding
by any private party or governmental body or agency, against or affecting
the Company, the Operating Partnership or any Subsidiary relating to any
Hazardous Materials or the violation of any Environmental Laws.
(30) Tax Returns. Each of the Company, the Operating Partnership
-----------
and any Subsidiary has filed all federal, state, local and foreign income
tax returns which have been required to be filed (except in any case in
which an extension has been granted or the failure to so file would not
have a Material Adverse Effect) and has paid all taxes required to be
paid and any other assessment, fine or penalty levied against it, to the
extent that any of the foregoing is due and payable, except, in all
cases, for any such tax, assessment, fine or penalty that is being
contested in good faith.
(31) Environmental Consultants. None of the environmental
-------------------------
consultants which prepared environmental and asbestos inspection reports
with respect to certain of the Properties was employed for such purpose
on a contingent basis or has any substantial interest in the Company, the
Operating Partnership or any Subsidiary and none of them nor any of their
directors, officers or employees is connected with the Company, the
Operating Partnership or any Subsidiary as a promoter, selling agent,
voting trustee, director, officer or employee.
(32) Compliance with Cuba Act. The Company has complied with, and
------------------------
is and will be in compliance with, the provisions of that certain
Florida act relating to disclosure of doing business with Cuba, codified
as Section 517.075 of the Florida statutes, and the rules and regulations
thereunder or is exempt therefrom.
(33) Title Insurance. The Company, the Operating Partnership and
---------------
any Subsidiary, as the case may be, have obtained, title insurance on the
fee interests and leasehold interests in each of the Properties in an
amount at least equal to the greater of (A) the mortgage indebtedness on
each such Property or (B) the purchase price paid for each such Property
(in the case of any Property having been acquired by the Operating
Partnership via an exchange of Units for partnership interests in the
entity holding such property, the "purchase price" of such Property
being deemed to be the sum of (i) the per-share price of the Common
Stock of the Company on the date such Property was exchanged for Units
multiplied by the number of Units exchanged for such Property or interests
in the entity holding such Property and (ii) the amount of any assumed
indebtedness secured by such Property), except that Omni Partnership has
obtained title insurance insuring Omni Partnership's interest in its
real property assets in an amount not less than $48 million.
(34) Absence of Rule 10b-6 Violation. None of the Company, the
-------------------------------
Operating Partnership, the Subsidiaries, nor any of their respective
directors, officers, members or controlling persons, has taken or will
take, directly or indirectly, any action resulting in a violation of
Rule 10b-6 under the 1934 Act, or designed to cause or result in, or
that has constituted or that reasonably might 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.
(b) Officers' Certificates. Any certificate signed by any officer of
the Company or any authorized representative of the Operating Partnership and
delivered to any Underwriter or to counsel for the Underwriters in connection
with the offering of the Underwritten Securities shall be deemed a
representation and warranty by such entity or person, as the case may be, to
each Underwriter as to the matters covered thereby on the date of such
certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Underwritten Securities. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to have been made on the basis of
the representations and warranties herein contained and shall be subject to
the terms and conditions herein set forth.
(b) Option Underwritten Securities. In addition, subject to the terms
and conditions set forth therein, the Company may grant, if so provided in
the applicable Terms Agreement, an option to the Underwriters, severally and
not jointly, to purchase up to the number of the Option Underwritten
Securities set forth therein at a price per Option Underwritten Security
equal to the price per Initial Underwritten Security, less an amount equal
to any dividends or distributions declared by the Company and paid or payable
on the Initial Underwritten Securities but not payable on the Option
Underwritten Securities. Such option, if granted, will expire 30 days after
the date of such Terms Agreement, and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may
be made in connection with the offering and distribution of the Initial
Underwritten Securities upon notice by Xxxxxxx Xxxxx to the Company setting
forth the number of Option Underwritten Securities as to which the several
Underwriters are then exercising the option and the time, date and place of
payment and delivery for such Option Underwritten Securities. Any such time
and date of payment and delivery (each, a "Date of Delivery") shall be
determined by Xxxxxxx Xxxxx, but shall not be later than seven full business
days after the exercise of said option, nor in any event prior to the Closing
Time, unless otherwise agreed upon by Xxxxxxx Xxxxx and the Company. If the
option is exercised as to all or any portion of the Option Underwritten
Securities, each of the Underwriters, severally and not jointly, will
purchase that proportion of the total number of Option Underwritten
Securities then being purchased which the number of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase as set
forth in such Terms Agreement bears to the total number of Initial
Underwritten Securities, subject to such adjustments as Xxxxxxx Xxxxx in its
discretion shall make to eliminate any sales or purchases of a fractional
number of Option Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the office of Xxxxx & Wood
LLP, or at such other place as shall be agreed upon by Xxxxxxx Xxxxx and the
Company, at 10:00 a.m. (Eastern time) on the third (fourth, if the pricing
occurs after 4:30 p.m. (Eastern time) on any given day) business day after
the date of the applicable Terms Agreement (unless postponed in accordance
with the provisions of Section 10 hereof), or such other time not later than
ten business days after such date as shall be agreed upon by Xxxxxxx Xxxxx
and the Company (such time and date of payment and delivery being herein
called "Closing Time"). In addition, in the event that the Underwriters have
exercised their option, if any, to purchase any or all of the Option
Underwritten Securities, payment of the purchase price for, and delivery of
such Option Underwritten Securities, shall be made at the above-mentioned
offices of Xxxxx & Wood LLP, or at such other place as shall be agreed upon
by Xxxxxxx Xxxxx and the Company, on the relevant Date of Delivery as
specified in the notice from Xxxxxxx Xxxxx to the Company.
Payment shall be made to the Company by wire transfer of Federal
funds or similar same day funds payable to the order of the Company, against
delivery to Xxxxxxx Xxxxx for the respective accounts of the Underwriters of
the Underwritten Securities to be purchased by them. It is understood that
each Underwriter has authorized Xxxxxxx Xxxxx, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for,
the Underwritten Securities which it has severally agreed to purchase.
Xxxxxxx Xxxxx, individually and not as representative of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price for the
Underwritten Securities to be purchased by any Underwriter whose check has
not been received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such Underwriter from
its obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities,
certificates for the Underwritten Securities of Depositary Receipts
evidencing the Depositary Shares, as applicable, shall be in such
denominations and registered in such names as Xxxxxxx Xxxxx may request in
writing at least one full business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be. The Underwritten Securities,
certificates for the Underwritten Securities or Depositary Receipts
evidencing the Depositary Shares, as applicable, will be made available for
examination and packaging by Xxxxxxx Xxxxx in The City of New York not later
than 10:00 a.m. (Eastern time) on the business day prior to the Closing Time
or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company and the Operating Partnership.
------------------------------------------------------
Each of the Company and the Operating Partnership covenants with Xxxxxxx
Xxxxx and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements of
the 1933 Act Regulations, including Rule 430A and Rule 434, and will notify
the Representative(s) immediately, and confirm the notice in writing, of (i)
the effectiveness of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to the Prospectus,
(ii) the receipt of any comments from the Commission, (iii) any request by
the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any
of such purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424 and will take such steps as it deems necessary to
ascertain promptly whether the Prospectus transmitted for filing under Rule
424 was received for filing by the Commission and, in the event that it was
not, it will promptly file the Prospectus. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. At any time when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act in connection with sales
of the Underwritten Securities, the Company will give Xxxxxxx Xxxxx notice
of their intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b) of the 1933 Act
Regulations), any Term Sheet or any amendment, supplement or revision to
either the prospectus included in the Registration Statement at the time it
became effective or to the Prospectus, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will xxxxxxx Xxxxxxx Xxxxx with
copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any such
document to which Xxxxxxx Xxxxx or counsel for the Underwriters shall
reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to Xxxxxxx Xxxxx and counsel for the Underwriters, without
charge, a signed copy of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated or deemed to be incorporated
by reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to Xxxxxxx Xxxxx and counsel for the
Underwriters, without charge, conformed copies of the Registration Statement
as originally filed and of each amendment thereto for each of the
Underwriters. If applicable, the copies of the Registration Statement and
each amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter may reasonably request, and the Company hereby consents
to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period
when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, such number of copies of the Prospectus as such Underwriter may
reasonably request. If applicable, the Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934
Act Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and
the applicable Terms Agreement and in the Registration Statement and the
Prospectus. If at any time when the Prospectus is required by the 1933 Act
or the 1934 Act to be delivered in connection with sales of the Securities,
any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriter or for the Company,
to amend the Registration Statement in order that the Registration Statement
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or to amend or supplement the Prospectus
in order that the Prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in
the opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters and
counsel for the Underwriters, without charge, such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts,
in cooperation with the Underwriters, to qualify the Underwritten Securities
and any related Underlying Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions (domestic
or foreign) as Xxxxxxx Xxxxx may designate and to maintain such
qualifications in effect for a period of not less than one year from the date
of the applicable Terms Agreement; provided, however, that the Company shall
not be obligated to file any general consent to service of process or to
qualify or register as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or registered, or to subject
itself to taxation in respect of doing business in any jurisdiction in which
it is not otherwise so subject. In each jurisdiction in which the
Underwritten Securities or any related Underlying Securities have been so
qualified or registered, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the date
of such Terms Agreement.
(g) Earnings Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its security holders as soon as practicable an earnings
statement (in form complying with Rule 158 of the 1933 Act Regulations) for
the purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to
the 1934 Act within the time periods required by the 1934 Act and the 1934
Act Regulations.
(i) Listing. The Company will use its best efforts to effect and
maintain the listing of the Underwritten Securities and any related
Underlying Securities, prior to the Closing Time, on any national securities
exchange or quotation system if and as specified in the applicable Terms
Agreement.
(j) Restriction on Sale of Securities. Between the date of the
applicable Terms Agreement and the Closing Time and/or such other date
specified in such Terms Agreement, the Company, the Operating Partnership and
any other entity or person named in the applicable Terms Agreement will not,
without the prior written consent of Xxxxxxx Xxxxx, directly or indirectly,
issue, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of, the securities specified in such Terms Agreement subject to any
conditions listed therein.
(k) REIT Qualification. The Company will use its best efforts to
continue to meet the requirement to qualify as a "real estate investment
trust" under the Code for each of its taxable years.
(l) Reservation of Securities. If the applicable Terms Agreement
specifies that any related Underlying Securities include Common Stock,
Preferred Stock and/or Depositary Shares, the Company will reserve and keep
available at all times, free of preemptive or other similar rights, a
sufficient number of shares of Common Stock and/or Preferred Stock, as
applicable, for the purpose of enabling the Company to satisfy any
obligations to issue such Underlying Securities upon exercise of the related
Warrants, as applicable, or upon conversion of the Preferred Stock or
Depositary Shares, as applicable.
(m) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Underwritten Securities in the manner specified
in the Prospectus under "Use of Proceeds."
(n) Exchange Act Filings. During the period from each Closing Time
until April 2, 2001, the Company will deliver to Xxxxxxx Xxxxx, (i) promptly
upon their becoming available, copies of all current, regular and periodic
reports of the Company mailed to its stockholders or filed with any
securities exchange or with the Commission or any governmental authority
succeeding to any of the Commission's functions, and (ii) such other
information concerning the Company as Xxxxxxx Xxxxx may reasonably request.
(o) No Manipulation of Market for Securities. Except for the
authorization of actions permitted to be taken by the Underwriters as
contemplated herein or in the Prospectus, neither the Company nor the
Operating Partnership will (a) take, directly or indirectly, any action
designed to cause or to result in, or that 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, and (b)
during the time any Preliminary Prospectus Supplement is being distributed
pursuant to the terms of this Agreement until the Closing Date, or the Date
of Delivery, if any, with respect to such Preliminary Prospectus Supplement
(i) sell, bid for or purchase the Securities or pay any person any
compensation for soliciting purchases of the Securities or (ii) pay or agree
to pay to any person any compensation for soliciting another to purchase any
other securities of the Company.
SECTION 4. Payment of Expenses.
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(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement and each
applicable Terms Agreement, including (i) the printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the printing and
delivery to the Underwriters of this Underwriting Agreement, any Terms
Agreement, any Agreement among Underwriters, any Warrant Agreement and such
other documents as may be required in connection with the offering, purchase,
sale and delivery of the Underwritten Securities or any related Underlying
Securities, (iii) the preparation, issuance and delivery of the Underwritten
Securities and any related Underlying Securities, any certificates for the
Underwritten Securities or such Underlying Securities or Depositary Receipts
evidencing the Depositary Shares, as applicable, to the Underwriters, (iv)
the fees and disbursements of the Company's counsel, accountants and other
advisors or agents (including transfer agents and registrars), as well as the
fees and disbursements of any Warrant Agent, and their respective counsel,
(v) the qualification of the Underwritten Securities and any related
Underlying Securities under state securities and real estate syndication laws
in accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation,
printing and delivery of the Blue Sky Survey, (vi) the printing and delivery
to the Underwriters of copies of each preliminary prospectus, any Term Sheet,
the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto and the Prospectus and any
amendments or supplements thereto, (vii) the fees charged by nationally
recognized statistical rating organizations for the rating of the
Underwritten Securities and any related Underlying Securities, if applicable,
(viii) the fees and expenses incurred with respect to the listing of the
Underwritten Securities and any related Underlying Securities, if applicable,
(ix) the filing fees of the NASD, (x) the fees and expenses of any
Underwriter acting in the capacity of a "qualified independent underwriter"
(as defined in Section 2(l) of Schedule E of the bylaws of the NASD), if
applicable, and (xi) any transfer taxes imposed on the sale of the
Underwritten Securities to the several Underwriters.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by Xxxxxxx Xxxxx in accordance with the provisions of Section 5
or Section 9(b)(i) hereof, the Company shall reimburse the Underwriters for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations.
---------------------------------------
The obligations of the Underwriters to purchase and pay for the
Underwritten Securities pursuant to the applicable Terms Agreement are
subject to the accuracy of the representations and warranties of the Company
and the Operating Partnership contained in Section 1 hereof or in
certificates of any officer or authorized representative of the Company or
the Operating Partnership delivered pursuant to the provisions hereof, to the
performance by the Company and the Operating Partnership of its covenants and
other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission or the state
securities authority of any jurisdiction, and any request on the part of the
Commission or the state securities authority of any jurisdiction for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing
information relating to the description of the Underwritten Securities and
any related Underlying Securities, the specific method of distribution and
similar matters shall have been filed with the Commission in accordance with
Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any required post-
effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A), or, if
the Company has elected to rely upon Rule 434 of the 1933 Act Regulations,
a Term Sheet including the Rule 434 Information shall have been filed with
the Commission in accordance with Rule 424(b)(7).
(b) Opinion of Counsel for Company. At Closing Time, Xxxxxxx Xxxxx
shall have received the favorable opinion, dated as of Closing Time, of Xxxxx
& Wood LLP, counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters, such
opinion shall address such of the items set forth in Exhibit C hereto as may
---------
be relevant to the particular offering contemplated or to such further effect
as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, Xxxxxxx
Xxxxx shall have received the favorable opinion, dated as of Closing Time,
of Xxxxxx & Xxxxx, counsel for the Underwriters, or such other counsel as may
be designated by Xxxxxxx Xxxxx together with signed or reproduced copies of
such letter for each of the other Underwriters, with respect to the matters
set forth in (1) (with respect to the first clause of the first sentence
only), (5), (6), (7) (with respect to the first three sentences only), and
(18) (with respect to the first and third sentences only) of Exhibit C hereto
and the last two paragraphs of Exhibit C hereto. In giving such opinion,
such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal law
of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to Xxxxxxx Xxxxx, which
for this purpose shall include Xxxxxxx Xxxxx Xxxxxxx & Ingersoll. Such
counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates
of officers or authorized representatives of the Company and the Operating
Partnership and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company, the Operating
Partnership or any Subsidiary considered as one enterprise, whether or not
arising in the ordinary course of business, and Xxxxxxx Xxxxx shall have
received a certificate of the President or a Vice President of the Company
for itself and as general partner of the Operating Partnership and of the
chief financial officer or chief accounting officer of the Company for itself
and as general partner of the Operating Partnership, dated as of Closing
Time, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1 are true and correct,
in all material respect, with the same force and effect as though expressly
made at and as of the Closing Time, (iii) each of the Company and the
Operating Partnership has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing Time and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the Commission or by the state
securities authority of any jurisdiction.
(e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, Xxxxxxx Xxxxx shall have received from Ernst &
Young LLP a letter, dated such date, in form and substance satisfactory to
Xxxxxxx Xxxxx and counsel to the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" as set forth in the AICPA's Statement on
Auditing Standards 72 to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, Xxxxxxx Xxxxx shall
have received from Ernst & Young LLP a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section 5, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Time.
(g) Ratings. At Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical organization," as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified
in the applicable Terms Agreement, and the Company shall have delivered to
Xxxxxxx Xxxxx a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to Xxxxxxx Xxxxx, confirming
that the Underwritten Securities have such ratings. Since the time of
execution of such Terms Agreement, there shall not have occurred a
downgrading in the rating assigned to the Underwritten Securities or any of
the Company's other securities by any such rating organization, and no such
rating organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
the Underwritten Securities or any of the Company's other securities.
(h) Approval of Listing. At Closing Time, the Underwritten Securities
shall be listed or shall have been approved for listing, subject only to
official notice of issuance, if and as specified in the applicable Terms
Agreement.
(i) Lock-up Agreements. On the date of the applicable Terms Agreement,
Xxxxxxx Xxxxx shall have received, in form and substance satisfactory to it,
each lock-up agreement, if any, specified in such Terms Agreement as being
required to be delivered by the persons or entities listed therein.
(j) Over-Allotment Option. In the event that the Underwriters are
granted an over-allotment option by the Company and the Operating Partnership
in the applicable Terms Agreement and the Underwriters exercise their option
to purchase all or any portion of the Option Underwritten Securities, the
representations and warranties of the Company and the Operating Partnership
contained herein and the statements in any certificates furnished by the
Company or the Operating Partnership hereunder shall be true and correct as
of each Date of Delivery, and, at the relevant Date of Delivery, Xxxxxxx
Xxxxx shall have received:
(1) A certificate dated such Date of Delivery, of the President
or a Vice President of the Company for itself and as general partner of
the Operating Partnership and the chief financial officer or chief
accounting officer of the Company for itself and as general partner
of the Operating Partnership confirming that the certificate delivered at
the Closing Time pursuant to Section 5(d) hereof remains true and correct
as of such Date of Delivery.
(2) The favorable opinion of Xxxxx & Wood LLP, counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(b) hereof.
(3) The favorable opinion of Xxxxxx & Xxxxx, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(4) A letter from Ernst & Young LLP, in form and substance
satisfactory to Xxxxxxx Xxxxx and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to
Xxxxxxx Xxxxx pursuant to Section 5(f) hereof, except that the "specified
date" on the letter furnished pursuant to this paragraph shall be a date
not more than three business days prior to such Date of Delivery.
(k) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents
and opinions as they may require for the purpose of enabling them to pass
upon the issuance and sale of the Underwritten Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained.
(l) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the purchase of Option
Underwritten Securities on a Date of Delivery after the Closing Time, the
obligations of the Underwriters to purchase the Option Underwritten
Securities on such Date of Delivery) may be terminated by Xxxxxxx Xxxxx by
notice to the Company at any time at or prior to the Closing Time (or such
Date of Delivery, as applicable), and such termination shall be without
liability of any party to any other party except as provided in Section 4,
and except that Sections 1, 6 and 7 shall survive any such termination and
remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. Each of the Company and the
Operating Partnership agrees, jointly and severally, to indemnify and hold
harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act, and any
director, officer, employee or affiliate thereof, as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement or a material fact contained in the Registration
Statement (or any amendment thereto), including the information deemed to be
part of the Registration Statement pursuant to Rule 430A(b) of the 1933 Act
Regulations, if applicable, or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that neither the Company
nor the Operating -------- -------
Partnership shall be required under this subsection (1) to indemnify any
Underwriter with respect to any preliminary prospectus to the extent that any
loss, claim, damage or expense of such Underwriter results solely from an
untrue statement of a material fact contained in, or the omission of a
material fact from, such preliminary prospectus which untrue statement or
omission was corrected in the Prospectus.
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation or of any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever for which indemnification is provided under subsection (1) above,
if such settlement is effected with the written consent of the indemnifying
party; and
(3) against any and all expense whatsoever (including without
limitation, the fees and disbursements of counsel chosen by the
Representatives) reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceedings by any
governmental agency or body, commenced or threatened, or any claim whatsoever
for which indemnification is provided under subsection (1) above, to the
extent that any such expense is not paid under subsection (1) or (2) above;
provided, however, that the indemnity agreement provided for in this Section
-------- -------
6(a). shall not apply to any loss, liability, claim, damage or expense to the
extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Xxxxxxx Xxxxx
expressly for use in the Registration Statement (or any amendment thereto)
or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally and not jointly agrees to indemnify and hold harmless
the Company and the Operating Partnership, and each person, if any, who
controls either of the Company or the Operating Partnership within the
meaning of Section 15 of the 1933 Act, and any director, officer, employee
or affiliate thereof, against any and all loss, liability, claim, damage, and
expense described in the indemnity contained in subsection (a) of this
Section 6, as incurred, but only with respect to untrue statements or
---------
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification; Settlement without Consent
if Failure to Reimburse. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder,
but failure so to notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate
at its own expense in the defense of such action. If it so elects within a
reasonable time after receipt of such notice, an indemnifying party, jointly
with any other indemnifying parties receiving such notice, may assume the
defense of such action with counsel chosen by it and reasonably approved by
the other indemnifying parties defendant in such action, unless such other
indemnifying parties reasonably object to such assumption on the ground that
the named parties to any such action (including any impleaded parties)
include both such indemnified parties and an indemnifying party, and such
indemnified parties reasonably believe that there may be legal defenses
available to them which are different from or in addition to those available
to such indemnifying party. If an indemnifying party assumes the defense of
such action, the indemnifying parties shall not be liable for any fees and
expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 7. Contribution.
------------
In order to provide for just and equitable contribution in circumstances
in which the indemnity agreement provided for in Section 6 hereof is for any
---------
reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and the Operating
Partnership, on the one hand, and the Underwriters, on the other, shall
contribute to the aggregate losses, liabilities claims, damages and expenses
of the nature contemplated by said indemnity agreement incurred by the
Company and the Operating Partnership and the Underwriters, as incurred, in
such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus bears to the initial public offering price
appearing thereon and the Company and the Operating Partnership are
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each
person, if any, who controls an Underwriter within the meaning of Section 15
of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each trustee or director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls either the Company or the Operating Partnership within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as
the Company and the Operating Partnership.
The Underwriters' obligations to contribute pursuant to this
Section 7 are several in proportion to their respective underwriting
---------
commitments and not joint. For purposes of this Section 7, the Company and
---------
the Operating Partnership shall be deemed one party and jointly and severally
liable for any obligations hereunder.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery.
--------
All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in certificates
of officers of the Company or authorized representatives of the Operating
Partnership submitted pursuant hereto or thereto shall remain operative and
in full force and effect, regardless or any investigation made by or on
behalf of any Underwriter or controlling person, or by or on behalf of the
Company or the Operating Partnership, and shall survive delivery of and
payment for the Underwritten Securities.
SECTION 9. Termination.
-----------
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by
the Company or by Xxxxxxx Xxxxx upon the giving of 30 days' prior written
notice of such termination to the other party hereto.
(b) Terms Agreement. Xxxxxxx Xxxxx may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the Closing
Time or any relevant Date of Delivery, if (i) there has been, since the time
of execution of such Terms Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company, the Operating Partnership and any
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or internationally or
any outbreak of hostilities or escalation thereof or other calamity or
crisis, or any change or development involving a prospective change in
national or international political, financial, or economic conditions, in
each case the effect of which is such as to make it, in the judgment of
Xxxxxxx Xxxxx, impracticable to market the Underwritten Securities or to
enforce contracts for the sale of the Underwritten Securities, or (iii)
trading in any securities of the Company has been suspended or limited by the
Commission or the New York Stock Exchange, or if trading generally on the New
York Stock Exchange or the American Stock Exchange or in the over-the-counter
market has been suspended or limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by
either of said exchanges or by such system or by order of the Commission, the
NASD or any other governmental authority, (iv) a banking moratorium has been
declared by either Federal or New York authorities or (v) if Preferred Stock
is offered and the rating assigned by any nationally recognized statistical
rating organization to any preferred shares of the Company as of the date of
the applicable Terms Agreement shall have been downgraded since such date or
if any such rating organization shall have publicly announced that it has
placed any series of Preferred Stock of the Company under surveillance or
review, with possible negative implications, as to the rating of such
Preferred Stock or any of the Company's other securities.
(c) Liabilities. If this Underwriting Agreement or the applicable
Terms Agreement is terminated pursuant to this Section 9, such termination
shall be without liability of any party to any other party except as provided
in Section 4 hereof, and provided further that Sections 1, 6, 7, 8 and 13
hereof shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters.
------------------------------------------
If one or more of the Underwriters shall fail at the Closing Time or the
relevant Date of Delivery, as the case may be, to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable
Terms Agreement (the "Defaulted Securities"), then Xxxxxxx Xxxxx shall have
the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as
may be agreed upon and upon the terms herein set forth; if, however, Xxxxxxx
Xxxxx shall not have completed such arrangements within such 24-hour period,
then:
(a) if the number or aggregate principal amount, as the case may
be, of Defaulted Securities does not exceed 10% of the number of
Underwritten Securities to be purchased on such date pursuant to
such Terms Agreement, the non-defaulting Underwriters named in such
Terms Agreement shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations under such Terms Agreement bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Underwritten Securities to be purchased pursuant to such Terms
Agreement, such Terms Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the purchase of
Option Underwritten Securities on a Date of Delivery after the Closing
Time, the obligations of the Underwriters to purchase, and the Company
to sell, such Option Underwritten Securities on such Date of Delivery)
shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date
of Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either Xxxxxxx Xxxxx or the Company shall
have the right to postpone the Closing Time or the relevant Date of Delivery,
as the case may be, for a period not exceeding seven days in order to effect
any required changes in the Registration Statement or the Prospectus or in
any other documents or arrangements.
SECTION 11. Notices.
-------
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be directed to
Xxxxxxx Xxxxx at World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, attention of Xxxx X. Xxxxx; and notices to either the Company or
the Operating Partnership shall be directed to them at 000 Xxxxxxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000, attention of Xxxxx X. Xxxxxxx, Chief Operating
Officer.
SECTION 12. Parties.
-------
This Underwriting Agreement and the applicable Terms Agreement shall
each inure to the benefit of and be binding upon the parties hereto and, upon
execution of such Terms Agreement, any other Underwriters and their
respective successors. Nothing expressed or mentioned in this Underwriting
Agreement or such Terms Agreement is intended or shall be construed to give
any person, firm or corporation, other than the Underwriters and the Company
and the Operating Partnership and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and
7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Underwriting Agreement or such
Terms Agreement or any provision herein or therein contained. This
Underwriting Agreement and such Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto and thereto and their respective successors,
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Underwritten Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME.
----------------------
THIS UNDERWRITING AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings.
------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this Underwriting Agreement, along with all counterparts, will
become a binding agreement between Xxxxxxx Xxxxx, the Company and the
Operating Partnership in accordance with its terms.
Very truly yours,
RECKSON ASSOCIATES REALTY CORP.
By:
-------------------------------
Name:
Title:
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.
its General Partner
By:
-----------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: ________________________________________
Name:
Title: Authorized Signatory
Exhibit A
RECKSON ASSOCIATES REALTY CORP.
(a Maryland corporation)
Common Stock, Warrants to Purchase Common Stock,
Preferred Stock, Warrants to Purchase Preferred Stock and
Depositary Shares
TERMS AGREEMENT
__________ __, 1996
To: Reckson Associates Realty Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We understand that Reckson Associates Realty Corp., a Maryland
corporation (the "Company"), proposes to issue and sell ( shares of its
common stock, par value $0.01 per share (the "Common Stock")) ( shares
of its preferred stock, par value $0.01 per share (the "Preferred Stock"))
( warrants (the "Common Stock Warrants") to purchase common stock, par
value $0.01 per share) ( warrants (the "Preferred Stock Warrants") to
purchase preferred stock, par value $0.01 per share) ((securities also being
hereinafter referred to as) the "Initial Underwritten Securities"). Subject
to the terms and conditions set forth or incorporated by reference herein,
the underwriters named below (the "Underwriters") offer to purchase,
severally and not jointly, the respective number of Initial Underwritten
Securities set forth below opposite their names at the purchase price set
forth below, and a proportionate share of Option Underwritten Securities (as
defined in the Underwriting Agreement referred to below) set forth below, to
the extent any are purchased.
(Number) of (Initial
Underwriter Underwritten Securities)
----------- -----------------------
Total ($)
The Underwritten Securities shall have the following terms:
(Common Stock)
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
(Preferred Stock)
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Voting Provisions:
Listing requirements:
Black-out provisions:
Initial public offering price per share: $ plus accumulated dividends, if
any, from
Purchase price per share: $
Other terms and conditions:
Closing date and location:
(Common Stock) (Preferred Stock) (Warrants)
Title:
Type:
Number:
Warrant Agent:
Issuable jointly with (Common Stock) (Preferred Stock): (Yes) (No)
Number of (Common Stock) (Preferred Stock) Warrants issued with each (share
of Common Stock) (share of Preferred Stock):
Date(s) from which or period(s) during which (Common Stock) (Preferred Stock)
(Warrants) are exercisable:
Date(s) on which (Common Stock) (Preferred Stock) (Warrants) expire:
Exercise price(s): $
Initial public offering price: $
Purchase price: $
Title of Underlying Securities:
(Number of shares) purchasable upon exercise of one (Common Stock) (Preferred
Stock) (Warrant):
Terms of Underlying Securities:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I
hereto entitled "RECKSON ASSOCIATES REALTY CORP.--Common Stock, Warrants to
Purchase Common Stock, Preferred Stock, Warrants to Purchase Preferred Stock
and Depositary Shares--Underwriting Agreement" are hereby incorporated by
reference in their entirety herein and shall be deemed to be a part of this
Terms Agreement to the same extent as if such provisions had been set forth
in full herein. Terms defined in such document are used herein as therein
defined.
Please accept this offer no later than o'clock p.m. (New York City
time) on by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: ________________________________
Name:
Title: Authorized Signatory
Acting on behalf of itself and the other named
Underwriters.
Accepted:
RECKSON ASSOCIATES REALTY CORP.
By: ___________________________
Name:
Title:
Exhibit B
SIGNIFICANT SUBSIDIARIES
(1) Reckson FS Limited Partnership, a Delaware limited partnership
Exhibit C
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing
as a corporation and is in good standing with the State Department of
Assessment and Taxation of Maryland. The Company has the corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under, or as contemplated under, the Underwriting Agreement and
the applicable Terms Agreement and is duly qualified or registered as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification or registration is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or register or be in good standing
would not result in a Material Adverse Effect.
(2) The issued and outstanding shares of capital stock of the
Company are duly authorized; all issued and outstanding shares of capital
stock of the Company are validly issued, fully paid and nonassessable and
conform in all material respects to the description thereof contained in the
Prospectus; to our knowledge, no shares of capital stock of the Company are
reserved for any purpose except in connection with (i) the Reckson Associates
Realty Corp. 1995 Stock Option Plan (the "Reckson Stock Option Plan") and
(ii) the possible issuance of shares of Common Stock upon the exchange of
Units; except for the Units and the options issued under the Reckson Stock
Option Plan, there are no outstanding securities convertible into or
exchangeable for any capital stock of the Company, and except for options
under the Reckson Stock Option Plan, there are no outstanding options, rights
(preemptive or otherwise) or warrants to purchase or to subscribe for shares
of such stock or any other securities of the Company arising by operation of
law or under the organizational documents of the Company or any contracts to
which the Company is a party of which we are aware.
(3) All the outstanding Units have been duly authorized for
issuance by the Operating Partnership to the holders of Units and, assuming
that the holders of Units, as limited partners of the Operating Partnership
do not participate in the control of the business of the Operating
Partnership, the Units will represent valid and, subject to the
qualifications set forth herein, fully paid and non-assessable limited
partner interests in the Operating Partnership, as to which the holders of
Units, in their capacity as limited partners of the Operating Partnership,
will have no liability in excess of their obligations to make contributions
to the Operating Partnership, their obligations to make other payments
provided for in the Operating Partnership Agreement and their share of the
Operating Partnership's assets and undistributed profits (subject to the
obligation of a limited partner of the Operating Partnership to repay any
funds wrongfully distributed to it). Except for the "put rights" accorded
to Odyssey Partners, L.P., under Section 12.4 of the Second Amended and
Restated Agreement of Limited Partnership of the Omni Partnership and as
otherwise described in the Registration Statement, to our knowledge, there
are no outstanding securities convertible into or exchangeable for any Units
and no outstanding options, rights (preemptive or otherwise) or warrants to
purchase or subscribe for Units.
(4) Each Significant Subsidiary has been duly incorporated or
organized and is validly existing as a corporation, limited partnership or
other legal entity, as the case may be, in good standing under the laws of
the jurisdiction of its incorporation or organization, as the case may be,
and has the requisite power and authority to own, lease and operate its
properties and to conduct the business in which it is engaged or proposes to
engage as described in the Prospectus and is duly qualified or registered as
a foreign corporation, limited partnership or other legal entity, as the case
may be, to transact business and is in good standing in each jurisdiction in
which such qualification or registration is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where
the failure to so qualify or register or to be in good standing would not
result in a Material Adverse Effect. Except as otherwise stated in the
Registration Statement and the Prospectus, all of the issued and outstanding
capital stock or other equity interests, as the case may be, of each
Significant Subsidiary has been duly authorized and is validly issued, fully
paid and non-assessable and has been offered and sold in compliance with all
applicable laws of the United States and the organizational laws of the
jurisdictions of organization of such entity, and to the best of our
knowledge and information, is owned by the Company, or the Operating
Partnership, in each case, free and clear of any material Liens, except for
such liens that would not have a Material Adverse Effect.
(5) The Underwriting Agreement and the applicable Terms Agreement
have been duly authorized, executed and delivered by the Company.
(6) The Underwriting Agreement has been duly authorized, executed
and delivered by the Operating Partnership.
(7) (Include if the Underwritten Securities being sold pursuant
to the applicable Terms Agreement include Common Stock or Preferred Stock)
The Underwritten Securities have been duly authorized by the Company for
issuance and sale pursuant to the Underwriting Agreement and the applicable
Terms Agreement. The Underwritten Securities, when issued and delivered by
the Company pursuant to the Underwriting Agreement and such Terms Agreement
against payment of the consideration therefor specified in such Terms
Agreement, will be validly issued, fully paid and non-assessable. The
Underwritten Securities will not be subject to preemptive or other similar
rights. The form of certificate used to evidence the Underwritten Securities
is in due and proper form and complies with the applicable statutory
requirements, and with any applicable requirements of the charter or by-laws
of the Company. (If applicable, the applicable Articles Supplementary is in
full force and effect.)
(8) (Include if the Underwritten Securities being sold pursuant
to the applicable Terms Agreement include Warrants --) The Underwritten
Securities have been duly authorized by the company for issuance and sale
pursuant to the Underwriting Agreement and the applicable Terms Agreements.
The Underwritten Securities, when issued and authenticated in the manner
provided for in the applicable Warrant Agreement and delivered against
payment of the consideration therefor specified in such Terms Agreement, will
constitute valid and legally binding obligations of the Company, entitled to
the benefits provided by such Warrant Agreement and enforceable against the
Company in accordance with their terms, except as enforcement therefor may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by
general equitable principles.
(9) (Include if the Underwritten Securities being sold pursuant
to the applicable Terms Agreement include Warrants --) The (Each) applicable
Warrant Agreement has been duly authorized, executed and delivered by the
Company and (assuming due authorization, execution and delivery thereof by
the applicable Warrant Agent) constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance with
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles.
(10) (Include if the Underlying Securities related to the
Underwritten Securities being sold pursuant to the applicable Terms Agreement
include Common stock or Preferred Stock) The Underlying Securities have been
duly authorized and reserved for issuance by the Company (upon exercise of
the (Common Stock) (Preferred Stock) Warrants) (upon conversion of the
related (Preferred Stock)). The Underlying Securities, when issued upon such
exercise, will be validly issued, fully paid and non-assessable and will not
be subject to preemptive or other similar rights.
(11) The Underwritten Securities being sold pursuant to the
applicable Terms Agreement and the each applicable Warrant Agreement conform,
and any Underlying Securities, when issued and delivered in accordance with
the terms of the related Underwritten Securities, will conform, in all
material respects to the statements relating thereto contained in the
Prospectus and are in substantially the form filed or incorporated by
reference, as the case may be, as an exhibit to the Registration Statement.
(12) The information in the Prospectus under "Description of Common
Stock," "Description of Preferred Stock" and "Description of Warrants," as
applicable, if any, or any caption purporting to describe any such
Securities, and "Federal Income Tax Considerations" and such other
information in the Prospectus Supplement or in any Annual Report on Form 10K
of the Company as may be agreed upon from time to time by the Company and
Xxxxxxx Xxxxx, to the extent that it constitutes matters of law, descriptions
of statutes, rules or regulations, summaries of legal matters, the Company's
charter and bylaws, documents or legal proceedings, or legal conclusions, has
been reviewed by us and is correct in all material respects and fairly
summarizes the information required to be disclosed therein and our opinion
set forth in Exhibit 8.1 of the Prospectus as to tax matters is confirmed.
(13) To the best of our knowledge and information, neither the
Company, the Operating Partnership nor any of the Significant Subsidiaries
is in violation of its charter, by-laws, partnership agreement, or other
organizational document, as the case may be, and no default by the Company,
the Operating Partnership or any Significant Subsidiary exists in the due
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument that is described or referred
to in the Registration Statement or the Prospectus or filed or incorporated
by reference as an exhibit to the Registration Statement.
(14) The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement (and each applicable Warrant
Agreement) and consummation of the transactions contemplated in the
Underwriting Agreement and such Terms Agreement and in the Registration
Statement and the Prospectus (including the issuance and sale of the
Underwritten Securities) and compliance by the Company, the Operating
Partnership or any Significant Subsidiary with its obligations thereunder do
not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or
Repayment Event under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company, the
Operating Partnership or any Significant Subsidiary pursuant to, any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument, known to us, to which the
Company, the Operating Partnership or any Significant Subsidiary is a party
or by which it or any of them may be bound, or to which any of the assets,
properties or operations of the Company, the Operating Partnership or any
Significant Subsidiary is subject, except for such conflicts, breaches,
defaults, events or liens, charges or encumbrances that would not result in
a Material Adverse Effect, nor will such action result in any violation of
the provisions of the charter, by-laws, or agreement of limited partnership,
as applicable, of the Company, the Operating Partnership or any Significant
Subsidiary or any applicable laws, statute, rule, regulations, judgment,
order, writ or decree, known to us, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company, the Operating Partnership or any Significant Subsidiary or any of
their assets, properties or operations.
(15) To our knowledge, except as disclosed in the Prospectus, there
are no pending or threatened actions, suits or proceedings against or
affecting any of the Company, the Operating Partnership, or any Subsidiary
or any of their respective properties or other assets that, if determined
adversely to any such entity would individually or in the aggregate have a
Material Adverse Effect or would materially adversely affect the ability of
the Company and the Operating Partnership to perform their obligations under
the Underwriting Agreement and if applicable, the applicable Terms Agreement.
(16) At all times since January 1, 1995, the Company has been
organized and conducts its business in a manner that will enable it to
qualify as (and has timely taken all necessary steps to maintain
qualification) as a real estate investment trust under the Internal Revenue
Code of 1986, as amended (the "Code"). The proposed method of operation, as
described in the Prospectus, of the Company will enable the Company to
continue to meet the requirements for taxation as a real estate investment
trust under the Code and to the best of our knowledge, no actions have been
taken (or not been taken which are required to be taken) which could cause
such qualification to be lost for any of its subsequent taxable years.
(17) All descriptions in the Prospectus of (agreements to be
specified in each transaction) are accurate in all material respects. To the
best of our knowledge and information, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or to
be filed as exhibits thereto other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in all material
respects.
(18) The Registration Statement was declared effective under the
1933 Act as of 5:00 p.m. on October 11, 1996. Any required filing of the
Prospectus pursuant to Rule 424(b) has been made in the manner and within the
time period required by Rule 424(b). To the best of our knowledge and
information, no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(19) The Registration Statement, the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement
to the Registration Statement and Prospectus, excluding the documents
incorporated by reference therein, as of their respective effective or issue
dates (other than the financial statements and supporting schedules and other
financial data included therein, as to which no opinion need be rendered)
complied as to form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations.
(20) The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules and other
financial data therein, as to which no opinion need be rendered), when they
were filed with the Commission// complied (or upon filing of an Amendment
thereto will comply) as to form in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
thereunder.
(21) No filing with, or authorization, approval, consent, license,
order registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the
Company and the Operating Partnership of its obligations under the
Underwriting Agreement or the applicable Terms Agreement or in connection
with the transactions contemplated under the Underwriting Agreement or such
Terms Agreement other than under the 1933 Act or the 1933 Act Regulations,
which have been obtained, or as may be required under the by-laws and rules
of the NASD, state securities or blue sky laws.
(22) Neither the Company nor the Operating Partnership is an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
Nothing has come to our attention that would lead us to believe
that the Registration Statement (except for financial statements and
schedules and other financial data included or incorporated by reference
therein, as to which we make no statement), at the time the Registration
Statement or any post-effective amendment thereto (including the filing of
the Company's Annual Report on Form 10-K with the Commission) became
effective or at the date of the applicable Terms Agreement, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus or any amendment or supplement thereto
(except for financial statements and schedules and other financial data
included or incorporated by reference therein, as to which we make to
statement), at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of Maryland, upon the opinions of
Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, (which opinion shall be dated and
furnished to Xxxxxxx Xxxxx at the Closing Time, shall be satisfactory in form
and substance to counsel for the Underwriters and shall expressly state that
the counsel for the Underwriters may rely on such opinion as if it were
addressed to them), and (B), as to matters of fact (but not as to legal
conclusions), to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. Such opinion shall not state
that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal
opinions, including, without limitation, the Legal Opinion Accord of the ABA
Section of Business Law (1991).
Annex I
-------
--------------------
/F1/ Include the appropriate dates of the 10-Q Financials.
--------------------
/F2/ Include if non-10-Q interim financial statements are included in
the Registration Statement and the Prospectus.
--------------------
/F3/ Include if the most recent unaudited financial statements are not
included in the Registration Statement and the Prospectus.
--------------------
/F4/ Note that a review in accordance with Statements on Auditing
Standards ("SAS") No. 71 is required for an accountant to give negative
assurance on interim financial information. A review in accordance with SAS
No. 71 will only be performed at the request of the Company and the
accountant's report, if any, related to that review will be addressed only
to the Company. Many companies have a SAS No. 71 review performed in
connection with the preparation of their 10-Q financial statements. See
Codification of Statements
--------------------------
on Auditing Standards, AU Section 722 for a description of the procedures
---------------------
that constitute such a review. The comfort letter itself should recite that
the review was performed and a copy of the report, if any, should be attached
to the comfort letter. Any report issued pursuant to SAS No. 71 that is
mentioned in the Registration Statement should also be included in the
Registration Statement as an exhibit. If a review in accordance with SAS No.
71 has not and will not be performed by the accountants, they should be
prepared to perform certain agreed-upon procedures on the interim financial
information and to report their findings thereon in the comfort letter. See
Codification of Statements on Auditing Standards, AU Section 622 for a
------------------------------------------------
discussion of reports related to the accountant's performance of agreed-upon
procedures. Any question as to whether a review in accordance with SAS
No. 71 will be performed by the accountants should be resolved early.
--------------------
/F5/ The relevant periods include all interim unaudited condensed
consolidation financial statements included or incorporated by reference in
the Registration Statement and the Prospectus.
--------------------
/F6/ Include if the 10-Q Financials are incorporated by reference in the
Registration Statement and the Prospectus.
--------------------
/F7/ Include if unaudited financial statements, not just selected
unaudited data, are included in the Registration Statement and the
Prospectus.
--------------------
/F8/ Include, and insert the date of most recent balance sheet of the
Company, if those statements are more recent than the unaudited financial
statements included in the Registration Statement and the Prospectus.
--------------------
/F9/ According to Example A of SAS No. 72, the specified date should be
five calendar days prior to the date of the applicable Terms Agreement.
However, in unusual circumstances, five business days may be used.
--------------------
/F10/ The blanks should be filled in with significant balance sheet
items, selected by the banker and tailored to the issuer's industry in
general and operations in particular. While the ultimate decision of which
items should be included rests with the banker, comfort is routinely
requested for certain balance sheet items, including long-term debt,
stockholders' equity, capital stock and net current assets.
--------------------
/F11/ Include, and insert dates to describe the period from the date
of the most recent financial statements in the Registration Statement and the
Prospectus to the date of the most recent unaudited financial statements of
the Company, if those dates are different. Regardless of whether this
language is inserted or not, the period including five days prior to the date
of the applicable Terms Agreement should run from the date of the last
financial statement included in the Registration Statement and the
Prospectus, not from the later one that is not included in the Registration
Statement and the Prospectus.
--------------------
/F12/ The blanks should be filled in with significant income
statements items, selected by the banker and tailored to the issuer's
industry in general and operations in particular. While the ultimate
decision of which items should be included rests with the banker, comfort is
routinely requested for certain income statement items, including net sales,
total and per share amounts of income before extraordinary items and of net
income.
--------------------
/F13/ Include only if there are selected financial data that have
been derived from financial statements not included in the Registration
Statement and the Prospectus.
--------------------
/F14/ In unusual circumstances, the accountants may report on
"Selected Financial Data" as described in SAS No. 42, Reporting on Condensed
Financial Statements and Selected Financial Data, and include in their report
in the Registration Statement and the Prospectus the paragraph contemplated
by SAS No. 42.9. This situation may arise only if the Selected Financial
Data do not include interim period data and the five-year selected data are
derived entirely from financial statements audited by the auditors whose
report is included in the Registration Statement and the Prospectus. If the
guidelines set forth in SAS No. 42 are followed and the accountant's report
as included in the Registration Statement and the Prospectus includes the
additional language prescribed by SAS No. 42.9, the bracketed language may
be eliminated.
--------------------
/F15/ This language should be included when the Registration
Statement and the Prospectus include earnings or other data for a period
after the date of the latest financial statements in the Registration
Statement and the Prospectus, but the unaudited interim financial statements
from which the earnings or other data is derived is not included in the
Registration Statement and the Prospectus. The blank should be filled in
with a description of the financial statement item(s) included.
--------------------
/F16/ If an audit or a review in accordance with SAS No. 71 has not
been performed by the accountants with respect to the underlying historical
financial statements, or if negative assurance on the Company's pro forma
financial statements is not otherwise available, the accountants should be
requested to perform certain other procedures with respect to such pro forma
financial statements. See Example O of SAS No. 72.
--------------------
/F17/ This language is intended to encompass all other
financial/numerical information appearing in the Registration Statement and
the Prospectus for which comfort may be given, including (but not limited to)
amounts appearing in the Registration Statement and the Prospectus narrative
and other summary financial data appearing in tabular form (e.g., the
capitalization table).
--------------------
/F18/ Accountants' services with respect to a financial forecast may
be in one of three forms: an examination of the forecast, a compilation of
the forecast or the application of agreed-upon procedures to the forecast.
If the accountant is to perform an examination of the forecast included in
the Registration Statement and the Prospectus, delivery of the related report
should be treated separately in Section 5(f) as follows (remember to change
subsequent letters accordingly):
(FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e))
We are independent public accountants with respect to the Company within the
meaning of the 1933 Act and the applicable published 1933 Act Regulations.
(i) in our opinion, the audited financial statements and the
related financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting requirements
of the 1933 Act and the published rules and regulations thereunder;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the unaudited interim (consolidated) financial statements of
the Company for the (three month periods ended __________, 19__, and
__________, 19__, the three and six month periods ended __________,
19__, and __________, 19__, and the three and nine month periods ended
__________, 19__, and __________, 19__, included or incorporated by
reference in the Registration Statement and the Prospectus (collectively,
the "10-Q Financials"))/F1/ (,a reading of the unaudited interim
(consolidated) financial statements of the Company for the _____-month
periods ended __________, 19__, and __________, 19__, included in the
Registration Statement and the Prospectus (the "_____-month
financials"))/F2/ (, a reading of the latest available unaudited
interim (consolidated) financial statements of the Company),/F3/ a reading
of the minutes of all meetings of the stockholders and directors of the
Company (and its subsidiaries) and the Committees of the Company's Board
of Directors (and any subsidiary committees) since (day after end of last
audited period), inquiries of certain officials of the Company (and its
subsidiaries) responsible for financial and accounting matters, a review
of interim financial information in accordance with standards established
by the American Institute of Certified Public Accountants in Statement
on Auditing Standards No. 71, Interim Financial Information
("SAS 71"),/F4/ with respect to the (description of relevant periods)
/F5/ and such other inquiries and procedures as may be specified in such
letter, nothing came to our attention that caused us to believe that:
((A) the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the 1934 Act and the 1934 Act Regulations applicable to unaudited
financial statements included in Form 10-Q or any material
modifications should be made to the 10-Q Financials incorporated by
reference in the Registration Statement and the Prospectus for them
to be in conformity with generally accepted accounting principles;)
/F6/
(( ) the _____-month financials included in the Registration
Statement and the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations applicable to unaudited interim
financial statements included in registration statements or any
material modifications should be made to the _____-month financials
included in the Registration Statement and the Prospectus for them
to be in conformity with generally accepted accounting
principles;)/F7/
( ) at (____________, 19__ and at)/F8/ a specified date not
more than five days/F9/ prior to the date of the applicable Terms
Agreement, there was any change in the __________ of the Company
(and its subsidiaries) or any decrease in the _________ of the
Company (and its subsidiaries) or any increase in the ___________ of
the Company (and its subsidiaries,)/F10/ in each case as compared
with amounts shown in the latest balance sheet included in the
Registration Statement and the Prospectus, except in each case for
changes, decreases or increases that the Registration Statement and
the Prospectus disclose have occurred or may occur; or
( ) (for the period from ___________, 19__ to ___________,
19__ and)/F11/ for the period from _________, 19__ to a specified
date not more than five days prior to the date of the applicable
Terms Agreement, there was any decrease in __________, ___________
or ___________,/F12/ in each case as compared with the comparable
period in the preceding year, except in each case for any decreases
that the Registration Statement and the Prospectus discloses have
occurred or may occur;
(iii) based upon the procedures set forth in clause (ii) above
and a reading of the (Selected Financial Data)included in the Registration
Statement and the Prospectus (and a reading of the financial statements
from which such data were derived,)/F13/ nothing came to our attention
that caused us to believe that the (Selected Financial Data) included
in the Registration Statement and the Prospectus do not comply as to form
in all material respects with the disclosure requirements of Item 301 of
Regulation S-K of the 1933 Act (, that the amounts included in the
(Selected Financial Data) are not in agreement with the corresponding
amounts in the audited (consolidated) financial statements for the
respective periods or that the financial statements not included in the
Registration Statement and the Prospectus from which certain of such data
were derived are not in conformity with generally accepted accounting
principles);/F14/
(iv) we have compared the information in the Registration
Statement and the Prospectus under selected captions with the disclosure
requirements of Regulation S-K of the 1933 Act and on the basis of limited
procedures specified herein. Nothing came to our attention that caused us
to believe that this information does not comply as to form in all
material respects with the disclosure requirements of Items 302, 402
and 503(d), respectively, of Regulation S-K;
((v) based upon the procedures set forth in clause (ii) above,
a reading of the unaudited financial statements of the Company for
(the most recent period) that have not been included in the Registration
Statement and the Prospectus and a review of such financial statements in
accordance with SAS 71, nothing came to our attention that caused us to
believe that the unaudited amounts for __________________ for the (most
recent period) do not agree with the amounts set forth in the unaudited
consolidated financial statements for those periods or that such unaudited
amounts were not determined on a basis substantially consistent with that
of the corresponding amounts in the audited (consolidated) financial
statements;)/F15/
((vi)) we are unable to and do not express any opinion on the
(Pro Forma Combining Statement of Operations) (the "Pro Forma Statement")
included in the Registration Statement and the Prospectus or on the pro
forma adjustments applied to the historical amounts included in the Pro
Forma Statement; however, for purposes of this letter we have:
(A) read the Pro Forma Statement;
(B) performed (an audit) (a review in accordance with
SAS 71) of the financial statements to which the pro forma
adjustments were applied;
(C) made inquiries of certain officials of the Company
who have responsibility for financial and accounting matters
about the basis for their determination of the pro forma adjustments
and whether the Pro Forma Statement complies as to form in all
material respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X; and
(D) proved the arithmetic accuracy of the application of
the pro forma adjustments to the historical amounts in the Pro Forma
Statement; and
on the basis of such procedures and such other inquiries and
procedures as specified herein, nothing came to our attention that caused
us to believe that the Pro Forma Statement included in the Registration
Statement does not comply as to form in all material respects with the
applicable 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 those statements;/F16/ and
((vii)) in addition to the procedures referred to in clause (ii)
above, we have performed other procedures, not constituting an audit, with
respect to certain amounts, percentages, numerical data and financial
information appearing in the Registration Statement and the Prospectus,
which are specified herein, and have compared certain of such items with,
and have found such items to be in agreement with, the accounting and
financial records of the Company;/F17/ and
((viii) in addition, we (comfort on a financial forecast that is
included in the Registration Statement and the Prospectus./F18/)
(f) At the time that the applicable Terms Agreement is
executed by the Company, you shall have received from
_________________ a report, dated such date, in form and substance
satisfactory to you, together with signed or reproduced copies of
such report for each of the other Underwriters, stating that, in
their opinion, the forecasted financial statements for the
(relevant period or periods) included in the Registration
Statement and the Prospectus are presented in conformity with
guidelines for presentation of a forecast established by the AICPA,
and that the underlying assumptions provide a reasonable basis for
management's forecast.
If the accountant is to perform a compilation of the forecasted
financial statements included in the Registration Statement and the
Prospectus, delivery of the related report should be treated separately in
Section 5(e) as follows:
(f) At the time that the applicable Terms Agreement is
executed by the Company, you shall have received from
_________________ a report, dated such date, in form and substance
satisfactory to you, together with signed or reproduced copies of
such report of each of the other Underwriters, stating that they
have compiled the forecasted financial statements for the (relevant
period or periods) included in the Registration Statement and the
Prospectus in accordance with the guidelines established by the
AICPA.
Finally, if the accountant is to perform agreed-upon procedures on a
forecast included in the Registration Statement and the Prospectus,
SAS No. 72 requires that the accountant first prepare a compilation
report with respect to the forecast and attach that report to the comfort
letter. The accountant may then report on specific procedures performed
and findings obtained.
