EXHIBIT 1.1
1,500,000 Shares
Common Stock
UNDERWRITING AGREEMENT
May ___, 1997
Xxxxxxx Xxxxx & Associates, Inc.
XxXxxxxx & Company Securities, Inc.
Sutro & Co. Incorporated
As Representatives of the Several Underwriters
c/o Raymond Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Agree Realty Corporation, a Maryland corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and
sell an aggregate of 1,500,000 shares (the "Firm Shares") of common stock,
$.0001 par value per share (the "Common Stock"), of the Company, to the
several Underwriters named in Schedule I hereto (the "Underwriters"). In
addition, the Company has agreed to sell to the Underwriters, upon the terms
and conditions set forth herein, up to an additional 225,000 shares (the
"Additional Shares") of the Common Stock to cover over-allotments by the
Underwriters, if any. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "Shares."
The Company wishes to confirm its agreement with you and the other
several Underwriters, on whose behalf you are acting, in connection with the
purchases of the Shares from the Company.
1. Registration Statement and Prospectus. The Company has prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-11 (File No. 333-25313),
including a prospectus subject to completion, relating to the Shares. Such
registration statement (including all financial schedules and exhibits,
schedules and reports included therein), as amended at the time when it
becomes effective and as thereafter amended by post-effective amendment, is
referred to in this Agreement as the "Registration Statement." The prospectus
in the form included in the Registration Statement, or, if the prospectus
included in the Registration Statement omits information in reliance upon
Rule 430A under the Act and
such information is included in a prospectus filed with the Commission
pursuant to Rule 424(b) under the Act or as part of a post-effective
amendment to the Registration Statement after the Registration Statement
becomes effective, the prospectus as so filed is referred to in this
Agreement as the "Prospectus." The prospectus subject to completion in the
form included in the Registration Statement at the time of the initial filing
of such Registration Statement with the Commission and as such prospectus is
amended from time to time until the date of the Prospectus are collectively
referred to in this Agreement as the "Prepricing Prospectus."
2. Agreements to Sell and Purchase. The Company hereby agrees to sell
the Firm Shares to the Underwriters and, upon the basis of the
representations, warranties and agreements of the Company herein contained
and subject to all the terms and conditions set forth herein, each
Underwriter agrees, severally and not jointly, to purchase from the Company
at a purchase price of $________ per Share (the "purchase price per Share"),
the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto (or such number of Firm Shares as adjusted pursuant to
Section 10 hereof).
The Company also agrees to sell to the Underwriters, and upon the
basis of the representations, warranties and agreements of the Company herein
contained and subject to all the terms and conditions set forth herein, the
Underwriters shall have the right for 30 days from the date of the Prospectus
to purchase from the Company up to 225,000 Additional Shares at the purchase
price per Share for the Firm Shares. The Additional Shares may be purchased
solely for the purpose of covering over-allotments, if any, made in
connection with the offering of the Firm Shares. If any Additional Shares are
to be purchased, each Underwriter, severally and not jointly, agrees to
purchase the number of Additional Shares (subject to such adjustments as you
may determine to avoid fractional shares) which bears the same proportion to
the total number of Additional Shares to be purchased by the Underwriters as
the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto (or such number of Firm Shares as adjusted pursuant to
Section 10 hereof) bears to the total number of Firm Shares.
3. Terms of Public Offering. The Company has been advised by you that
the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and
initially to offer the Shares upon the terms set forth in the Prospectus.
4. Delivery of the Shares and Payment Therefor. Certificates in
definitive form for the Shares to be purchased by each Underwriter hereunder,
and in such denominations and registered in such names as Xxxxxxx Xxxxx &
Associates, Inc. may request upon at least 48 hours prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Underwriters for the account of such Underwriter, against payment by such
Underwriter on its behalf as provided herein. Payment shall be made with
respect to the purchase price for the Firm Shares and any Additional Shares,
if any Additional Shares are purchased hereunder, to the Company by wire
transfer in immediately available funds against delivery of the certificates
for the Firm Shares or Additional Shares, as the case may be. The closing of
the sale and purchase of the Shares shall be held at the offices of Kramer,
Levin, Naftalis & Xxxxxxx, 000 Xxxxx
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Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m. New York, New York time, on
such date (the "Closing Date") as shall be specified in a written notice from
you on behalf of the Underwriters to the Company, except that physical
delivery of certificates for the Shares shall be made at the direction of the
Underwriters either at the Representative's Office or shall be made to The
Depository Trust Company ("DTC"), 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
for the account of the Underwriters or for such other accounts as the
Underwriters shall specify to DTC. Each time at which such physical delivery
is made hereunder (whether with respect to Firm Shares or to Additional
Shares) is referred to herein as a "Time of Delivery." The place of closing
for the Firm Shares and the Closing Date may be varied by agreement among you
and the Company.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at the offices of Kramer,
Levin, Naftalis & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at
10:00 a.m., New York, New York time, or at such other location as the
Representative shall designate, on such date or dates (the "Additional
Closing Date") (which may be the same as the Closing Date but shall in no
event be earlier than the Closing Date nor earlier than three nor later than
ten business days after the giving of the notice hereinafter referred to) as
shall be specified in a written notice from you on behalf of the Underwriters
to the Company of the Underwriters' determination to purchase a number,
specified in such notice, of Additional Shares. Such notice may be given to
the Company by you at any time within 30 days after the date of the
Prospectus. The place of closing for the Additional Shares and the Additional
Closing Date may be varied by agreement among you and the Company.
5. Covenants and Agreements of the Company. The Company covenants and
agrees with the several Underwriters as follows:
(a) The Company will use its best efforts to cause the
Registration Statement and any amendments thereto to become
effective, if it has not already become effective, and will advise
you promptly and, if requested by you, will confirm such advice in
writing (i) when the Registration Statement has become effective and
when any post-effective amendment thereto becomes effective, (ii) if
Rule 430A under the Act is employed, when the Prospectus has been
timely filed pursuant to Rule 424(b) under the Act, (iii) of any
request by the Commission for amendments or supplements to the
Registration Statement, any Prepricing Prospectus or the Prospectus
or for additional information, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or the initiation of any
proceeding for such purposes and (v) within the period of time
referred to in Section 5(e) below, of any change in the Company's
condition (financial or other), business, net worth or results of
operations, or of any event that comes to the attention of the
Company that makes any statement made in the Registration Statement
or the Prospectus (as then amended or supplemented) untrue in any
material respect or that requires the making of any additions thereto
or changes therein in order to make the statements therein not
misleading in any
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material respect, or of the necessity to amend or supplement
the Prospectus (as then amended or supplemented) to comply with the
Act or any other law. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration
Statement, the Company will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible time.
(b) The Company will furnish to you, without charge, two
signed duplicate originals of the Registration Statement as
originally filed with the Commission and of each amendment thereto,
including financial statements and all exhibits thereto, and also
will furnish to you, without charge, such number of conformed copies
of the Registration Statement as originally filed and of each
amendment thereto as you may reasonably request.
(c) The Company will not file any amendment to the
Registration Statement or make any amendment or supplement to the
Prospectus unless (i) you shall previously have been advised thereof
and given a reasonable opportunity to review such filing, amendment
or supplement, and (ii) you have not reasonably objected to such
filing, amendment or supplement after being so advised.
(d) Prior to the execution and delivery of this Agreement, the
Company has delivered or will deliver to you, without charge, in such
quantities as you have requested or may hereafter reasonably request,
copies of each form of the Prepricing Prospectus. The Company
consents to the use, in accordance with the provisions of the Act and
with the securities or Blue Sky laws of the jurisdictions in which
the Shares are offered by the several Underwriters and by dealers,
prior to the date of the Prospectus, of each Prepricing Prospectus so
furnished by the Company.
(e) As soon after the execution and delivery of this Agreement
as is practicable and thereafter from time to time for such period as
in the reasonable opinion of counsel for the Underwriters a
prospectus is required by the Act to be delivered in connection with
sales by any Underwriter or a dealer, and for so long a period as you
may request for the distribution of the Shares, the Company will
deliver to each Underwriter and each dealer, without charge, as many
copies of the Prospectus (and of any amendment or supplement thereto)
as they may reasonably request. The Company consents to the use of
the Prospectus (and of any amendment or supplement thereto) in
accordance with the provisions of the Act and with the securities or
Blue Sky laws of the jurisdictions in which the Shares are offered by
the several Underwriters and by all dealers to whom Shares may be
sold, both in connection with the offering and sale of the Shares and
for such period of time thereafter as the Prospectus is required by
the Act to be delivered in connection with sales by any Underwriter
or dealer. If at any time prior to the later of (i) the completion of
the distribution of the Shares pursuant to the offering contemplated
by the Registration Statement or (ii) the expiration of prospectus
delivery requirements with respect to the Shares under Section 4(3)
of the Act and Rule 174 thereunder, any event shall occur that in the
judgment of the Company or in the opinion of counsel for
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the Underwriters is required to be set forth in the Prospectus
(as then amended or supplemented) or should be set forth therein in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary to supplement or amend the Prospectus to comply with the
Act or any other law, the Company will forthwith prepare and, subject
to Sections 5(a) and 5(c) hereof, file with the Commission and use
its best efforts to cause to become effective as promptly as possible
an appropriate supplement or amendment thereto, and will furnish to
each Underwriter who has previously requested Prospectuses, without
charge, a reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the
Underwriters in connection with the registration or qualification of
the Shares for offering and sale by the several Underwriters and by
dealers under the securities or Blue Sky laws of such jurisdictions
as you may reasonably designate and will file such consents to
service of process or other documents as may be reasonably necessary
in order to effect and maintain such registration or qualification
for so long as required to complete the distribution of the Shares;
provided that in no event shall the Company be obligated to qualify
to do business in any jurisdiction where it is not now so qualified
or to take any action which would subject it to general service of
process in suits, other than those arising out of the offering or
sale of the Shares, in any jurisdiction where it is not now so
subject. In the event that the qualification of the Shares in any
jurisdiction is suspended, the Company shall so advise you promptly
in writing.
(g) The Company will make generally available to its security
holders a consolidated earnings statement (in form complying with the
Provisions of Rule 158), which need not be audited, covering a
twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months
thereafter, as soon as practicable after the end of such period,
which consolidated earnings statement shall satisfy the provisions of
Section 11(a) of the Act.
(h) During the period ending two years from the date hereof,
the Company will furnish to you and, upon your request, to each of
the other Underwriters, (i) as soon as available, a copy of each
proxy statement, quarterly or annual report or other report of the
Company mailed to shareholders or filed with the Commission, the
National Association of Securities Dealers, Inc. (the "NASD"), the
New York Stock Exchange (the "NYSE") or any securities exchange and
(ii) from time to time such other information concerning the Company
as you may reasonably request.
(i) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provision hereof (except pursuant to
a termination under Section 10 or 11 hereof) or if this Agreement
shall be terminated by the Underwriters because of any inability,
failure or refusal on the part of the Company to perform any
agreement herein or to comply with any of the terms or provisions
hereof, the Company agrees to reimburse you and the other
Underwriters for all out-of-pocket expenses (including travel
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expenses and fees and expenses of counsel for the Underwriters
but excluding wages and salaries paid by you) reasonably incurred by
you in connection herewith.
(j) The Company will apply the net proceeds from the sale of
the Shares to be sold by it hereunder for the purposes set forth
under "Use of Proceeds" in the Prospectus.
(k) If Rule 430A under the Act is employed, the Company will
timely file the Prospectus pursuant to Rule 424(b) under the Act and
will advise you of the time and manner of such filing.
(l) For a period of 120 days after the date of the Prospectus
first filed pursuant to Rule 424(b) under the Act, without your prior
written consent, the Company will not, directly or indirectly, issue,
sell, offer or contract to sell or otherwise dispose of or transfer
any shares of Common Stock or securities convertible into or
exchangeable or exercisable for shares of Common Stock (collectively,
"Company Securities") or any rights to purchase Company Securities,
except (i) to the Underwriters pursuant to this Agreement, (ii)
pursuant to and in accordance with the Company's Stock Incentive
Option Plan which is referenced in the Registration Statement under
the caption "Management," or (iii) convertible securities or
securities exchangeable for shares of Common Stock of the Company
outstanding on the date hereof and described in the Registration
Statement.
(m) Prior to the Closing Date or the Additional Closing Date,
as the case may be, the Company will furnish to you, as promptly as
possible, copies of any unaudited interim consolidated financial
statements of the Company and its subsidiaries for any period
subsequent to the periods covered by the financial statements
appearing in the Prospectus.
(n) The Company will comply with all provisions of any
undertakings contained in the Registration Statement.
(o) The Company will not at any time, directly or indirectly,
take any action designed, or which might reasonably be expected to
cause or result in, or which will constitute, stabilization or
manipulation of the price of the shares of Common Stock to facilitate
the sale or resale of any of the Shares.
(p) The Company will use its best efforts to qualify or
register its Common Stock for sale in non-issuer transactions under
(or obtain exemptions from the application of) the Blue Sky laws of
each state where necessary to permit market making transactions and
secondary trading.
(q) For so long as the Company's Common Stock is qualified for
trading on the NYSE, the Company will comply in all material respects
with the filing and other requirements of the NYSE.
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(r) The Company will (i) timely file with the NYSE an
additional listing application, together with all documents and
notices required by the NYSE of companies that have issued securities
that are listed on the NYSE and (ii) use its commercially reasonable
efforts to maintain such listing on the NYSE or be listed on another
national securities exchange on a continuous basis for at least three
years from the date hereof.
(s) If at any time during the period beginning on the date the
Registration Statement becomes effective and ending on the later of
(i) the date 25 days after such effective date (or, if the
Underwriter's option granted pursuant to the Section 2 hereof has not
been exercised by such date, then 30 days after such effective date)
or (ii) the date that is the earlier of (A) the date on which the
Company first files with the Commission a Quarterly Report on Form
10-Q after such effective date and (B) the date on which the Company
first issues a quarterly financial report to shareholders after such
effective date, any rumor, publication or event relating to or
affecting the Company shall occur as a result of which, in the
reasonable opinion of the Underwriters, the market price of the
Common Stock has been or is likely to be materially affected
(regardless of whether such rumor, publication or event necessitates
an amendment of or supplement to the Prospectus), the Company will,
after written notice from the Representative advising the Company to
the effect set forth above, forthwith prepare, consult with the
Representative concerning the substance of, and consult with Company
counsel to determine whether or not it is advisable, under the
circumstances, to disseminate a press release or other public
statement, reasonably satisfactory to the Representative, responding
to or commenting on such rumor, publication or event.
6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter on the date hereof, and shall be
deemed to represent and warrant to each Underwriter on the Closing Date and
the Additional Closing Date, that:
(a) Each Prepricing Prospectus included as part of the
Registration Statement as originally filed or as part of any
amendment or supplement thereto, or filed pursuant to Rule 424(a)
under the Act, complied when so filed in all material respects with
the provisions of the Act, except that this representation and
warranty does not apply to statements in or omissions from such
Prepricing Prospectus (or any amendment or supplement thereto) made
in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by or on behalf of
any Underwriter through you expressly for use therein. The Commission
has not issued any order preventing or suspending the use of the
Prospectus or any Prepricing Prospectus.
(b) The Company satisfies all of the requirements for using
Form S-11 under the Act. The Registration Statement, in the form in
which it becomes effective and also in such form as it may be when
any post-effective amendment thereto shall become effective, and the
Prospectus and any supplement or amendment thereto when filed with
the Commission under Rule 424(b) under the Act, will comply in all
material respects with the provisions of the Act and will not at any
such times contain an untrue statement
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of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except that this representation and warranty does not
apply to statements in or omissions from the Registration Statement
or the Prospectus (or any amendment or supplement thereto) made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by or on behalf of
any Underwriter through you expressly for use therein.
(c) The capitalization of the Company is and will be as set
forth in the Prospectus as of the date set forth therein. All the
outstanding shares of Common Stock of the Company have been, and as
of the Closing Date will be, duly authorized and validly issued, are
fully paid and nonassessable and are free of any preemptive or
similar rights; except as set forth in the Prospectus, the Company is
not a party to or bound by any outstanding options, warrants, or
similar rights to subscribe for, or contractual obligations to issue,
sell, transfer or acquire, any of its capital stock or any securities
convertible into or exchangeable for any of such capital stock; the
Shares to be issued and sold to the Underwriters by the Company
hereunder have been duly authorized and, when issued and delivered to
the Underwriters against payment therefor in accordance with the
terms hereof, will be validly issued, fully paid and nonassessable
and free of any preemptive or similar rights; the capital stock of
the Company conforms to the description thereof in the Registration
Statement and the Prospectus (or any amendment or supplement
thereto); and the delivery of certificates for the Shares against
payment therefor pursuant to the terms of this Agreement will pass
valid title to the Shares, free and clear of any claim, encumbrance
or defect in title, to the several Underwriters purchasing such
Shares in good faith and without notice of any lien, claim or
encumbrance. The certificates for the Shares are in valid and
sufficient form.
(d) All offers and sales of the Company's capital stock prior
to the date hereof were at all relevant times duly registered under
the Act or exempt from the registration requirements of the Act and
were duly registered or the subject of an available exemption from
the registration requirements of the applicable state securities or
blue sky laws.
(e) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Maryland
with full power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and as
described in the Registration Statement and the Prospectus (and any
amendment or supplement thereto), and is duly registered and
qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification,
except where the failure to so register or qualify does not have a
material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the
Company and the Operating Partnership (as defined in the Prospectus
or, if the Prospectus is not in existence, as defined in the most
recent Prepricing Prospectus) taken as a whole ("Material Adverse
Effect").
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(f) Except for the Operating Partnership and the Joint
Ventures (as defined in the Prospectus or, if the Prospectus is not
in existence, as defined in the most recent Prepricing Prospectus),
the Company does not have any subsidiaries and does not own a
material interest in or control, directly or indirectly, any other
corporation, partnership, joint venture, association, trust or other
business organization. The Operating Partnership has been duly
organized and is validly existing and in good standing under the laws
of the state of its formation and has full power and authority to
own, lease and operate its properties and to conduct its business as
presently conducted and as contemplated in the Registration Statement
and the Prospectus (and any amendment or supplement thereto), and is
duly registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration
or qualification, except where the failure to so register or qualify
does not have a Material Adverse Effect. All of the partnership
interests of the Operating Partnership have been duly authorized and
are validly issued, fully paid and nonassessable, and are owned by
the Company (or Messrs. Xxxxxxx Agree, Xxxxxx Xxxxxxxxx and Xxxx
Xxxxxx) directly, free and clear of any lien, adverse claim, security
interest, equity or other encumbrance.
(g) There are no legal or governmental proceedings pending or,
to the best knowledge of the Company, threatened, against the
Company, the Operating Partnership or the Joint Ventures, or to which
the Company, the Operating Partnership or the Joint Ventures or any
of their respective properties is subject that are required to be
described in the Registration Statement or the Prospectus (or any
amendment or supplement thereto) but are not described as required.
Except as described in the Prospectus, there is no action, suit,
inquiry, proceeding, or investigation by or before any court or
governmental or other regulatory or administrative agency or
commission pending or, to the best knowledge of the Company,
threatened, against or involving the Company, the Operating
Partnership or the Joint Ventures, which might individually or in the
aggregate prevent or adversely affect the transactions contemplated
by this Agreement or result in a Material Adverse Effect, nor is
there any basis for any such action, suit, inquiry, proceeding, or
investigation.
(h) There are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the
Registration Statement or the Prospectus (or any amendment or
supplement thereto) or to be filed as an exhibit to the Registration
Statement that are not described or filed as required by the Act. All
such contracts to which the Company, the Operating Partnership or any
of the Joint Ventures is a party have been duly authorized, executed
and delivered by the Company, the Operating Partnership or the Joint
Ventures, as the case may be, constitute valid and binding agreements
of the Company, the Operating Partnership or the Joint Ventures, as
the case may be, and are enforceable against the Company, the
Operating Partnership or the Joint Ventures, as the case may be, in
accordance with the terms thereof, except as may be limited by
bankruptcy, insolvency, reorganization or other laws of general
application regarding the enforceability of creditors rights
generally or the availability of equitable
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remedies, and neither the Company, the Operating Partnership
or the Joint Venturer, nor to the best of the Company's knowledge,
any other party, is in breach of or default under any of such
contracts.
(i) Neither the Company, the Operating Partnership nor any of
the Joint Ventures is in violation of its certificate or articles of
incorporation or bylaws, partnership agreement, or other
organizational documents, or of any material law, ordinance,
administrative or governmental rule or regulation applicable to the
Company, the Operating Partnership nor any of the Joint Ventures, as
the case may be, or of any decree of any court or governmental agency
or body having jurisdiction over the Company, the Operating
Partnership or any of the Joint Ventures, or is in default in any
material respect in the performance of any obligation, agreement or
condition contained in (i) any bond, debenture, note or any other
evidence of indebtedness, or (ii) any material agreement, indenture,
lease or other instrument to which the Company, the Operating
Partnership or any of the Joint Ventures is a party or by which any
of their respective properties may be bound; and there does not exist
any state of facts which constitutes an event of default on the part
of the Company, the Operating Partnership or any of the Joint
Ventures as defined in such documents or which, with notice or lapse
of time or both, would constitute such an event of default.
(j) The Company's execution and delivery of this Agreement and
the performance by the Company of its obligations under this
Agreement have been duly and validly authorized by the Company, and
this Agreement has been duly executed and delivered by the Company
and (assuming execution of this Agreement by the Representatives)
constitutes the valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except
to the extent enforceability be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws
relating to or affecting enforcement of creditor's rights generally
or by general equitable principles.
(k) Neither the issuance and sale of the Shares, the
execution, delivery or performance of this Agreement by the Company
nor the consummation by the Company of the transactions contemplated
hereby (i) requires any consent, approval, authorization or other
order of or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official
(except such as may be required for the registration of the Shares
under the Act and compliance with the securities or Blue Sky laws of
various jurisdictions, all of which will be, or have been, effected
in accordance with this Agreement), (ii) conflicts with or will
conflict with or constitutes or will constitute a breach of, or a
default under, the certificate or articles of incorporation or
bylaws, partnership agreement or other organizational documents of
the Company, the Operating Partnership or any of the Joint Ventures,
(iii) conflicts or will conflict with or constitute a breach of, or a
default under, any agreement, indenture, lease or other instrument to
which the Company, the Operating Partnership or any of the Joint
Ventures is a party or by which any of their respective properties
may be bound, (iv) violates any
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statute, law, regulation, ruling, filing, judgment, injunction, order
or decree applicable to the Company, the Operating Partnership or any
of the Joint Ventures or any of their respective properties, or (v)
results in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company, the Operating
Partnership or any of the Joint Ventures.
(l) Except as described in the Prospectus, the Company does
not have outstanding and at the Closing Date (and the Additional
Closing Date, if applicable) will not have outstanding any options to
purchase, or any warrants to subscribe for, or any securities or
obligations convertible into, or any contracts or commitments to
issue or sell, any shares of Common Stock or any such warrants or
convertible securities or obligations. No holder of securities of the
Company has rights to the registration of any securities of the
Company as a result of or in connection with the filing of the
Registration Statement or the consummation of the transactions
contemplated hereby that have not been satisfied or heretofore waived
in writing.
(m) BDO Xxxxxxx, the certified public accountants who have
certified the financial statements filed as part of the Registration
Statement and the Prospectus (or any amendment or supplement thereto)
are independent public accountants as required by the Act.
(n) The financial statements, together with related schedules
and notes, included in the Registration Statement and the Prospectus
(and any amendment or supplement thereto), present fairly the
combined financial position, results of operations and changes in
financial position of the Company and the Operating Partnership on
the basis stated in the Registration Statement at the respective
dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein;
and the other financial and statistical information and data set
forth in the Registration Statement and Prospectus (and any amendment
or supplement thereto) is accurately presented and prepared on a
basis consistent with such financial statements and the books and
records of the Company. The selected financial data set forth under
the caption "Selected Financial Information" in the Prospectus
Supplement present fairly, on the basis stated in the Prospectus
Supplement, the information included therein. The unaudited pro forma
financial statements included in the Prospectus Supplement comply in
all material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X and the pro forma adjustments have been
properly applied to the historical amounts in the compilation of that
data. No other financial statements or schedules are required to be
included in the Registration Statement.
(o) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to
the respective dates as of which such information is given in the
Registration Statement and the Prospectus (or any
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amendment or supplement thereto), (i) neither the Company, the
Operating Partnership nor any of the Joint Ventures has incurred any
material liabilities or obligations, indirect, direct or contingent,
or has entered into any other transaction which is not in the
ordinary course of business or which could result in a material
reduction in the future earnings of the Company or the Operating
Partnership taken as a whole; (ii) neither the Company, the Operating
Partnership nor any of the Joint Ventures has sustained any material
loss or interference with their respective businesses or properties
from fire, flood, windstorm, accident or other calamity, whether or
not covered by insurance; (iii) the Company has not paid or declared
any dividends or other distributions with respect to its capital
stock and the Company is not in default under the terms of any class
of capital stock of the Company and neither the Company nor the
Operating Partnership is in default under any outstanding debt
obligations; (iv) there has not been any change in the authorized or
outstanding capital stock (other than the issuance or exercise of
options under the Stock Incentive Plan) of the Company or any
material change in the indebtedness of the Company, the Operating
Partnership or any of the Joint Ventures (other than in the ordinary
course of business); and (v) there has not been any material adverse
change, or any development involving or which may reasonably be
expected to involve a future material adverse change, in the
condition (financial or otherwise), business, properties or results
of operations of the Company, the Operating Partnership or any of the
Joint Ventures.
(p) Each of the Company, the Operating Partnership and the
Joint Ventures has good and marketable title to all property (real
and personal) described in the Prospectus as being owned by them,
free and clear of all liens, claims, security interests or other
encumbrances except (i) such as are described in the financial
statements included in, or elsewhere in, the Prospectus or (ii) such
as are not materially burdensome and do not interfere in any material
respect with the use of the property or the conduct of the business
of the Company and the Operating Partnership taken as a whole. All
property (real and personal) held under lease by each of the Company,
the Operating Partnership and the Joint Ventures is held by it under
valid, subsisting and enforceable leases with only such exceptions as
in the aggregate are not materially burdensome and do not interfere
in any material respect with the conduct of the business of the
Company and the Operating Partnership taken as a whole.
(q) The Company has not distributed and will not distribute
any offering material in connection with the offering and sale of the
Shares other than the Prepricing Prospectus, the Prospectus, or other
offering material, if any, as permitted by the Act.
(r) The Company has not taken, directly or indirectly, any
action which constituted, or any action designed, or which might
reasonably be expected to cause or result in or constitute, under the
Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares.
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(s) The Company is not an "investment company," an "affiliated
person" of, or "promoter" or "principal underwriter" for an
investment company within the meaning of the Investment Company Act
of 1940, as amended.
(t) Each of the Company, the Operating Partnership and the
Joint Ventures has all permits, licenses, franchises, approvals,
consents and authorizations of governmental or regulatory authorities
(hereinafter "permit" or "permits") as are necessary to own its
respective properties and to conduct its respective business in the
manner described in the Prospectus, subject to such qualifications as
may be set forth in the Prospectus, except where the failure to have
obtained any such permit has not and will not have a Material Adverse
Effect; each of the Company, the Operating Partnership and the Joint
Ventures has fulfilled and performed all of its material obligations
with respect to each such permit and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination of any such permit or result in any other material
impairment of the rights of the holder of any such permit, subject in
each case to such qualification as may be set forth in the
Prospectus; and, except as described in the Prospectus, such permits
contain no restrictions that are materially burdensome to the
Company, the Operating Partnership or the Joint Ventures, as the case
may be.
(u) Each of the Company and the Operating Partnership has
complied and will comply in all material respects with wage and hour
determinations issued by the U.S. Department of Labor under the
Service Contract Act of 1965 and the Fair Labor Standards Act in
paying its employees' salaries, fringe benefits, and other
compensation for the performance of work or other duties in
connection with contracts with the U.S. government. Each of the
Company and the Operating Partnership has complied and will comply in
all material respects with the terms of all certifications and
representations made to the U.S. government in connection with the
submission of any bid or proposal or any contract. Each of the
Company and the Operating Partnership has complied and will comply in
all material respects with the requirements of the Americans with
Disabilities Act of 1990, the Family and Medical Leave Act of 1993,
the Employee Retirement Income Security Act, the Civil Rights Act of
1964 (Title VII), as amended, the Age Discrimination in Employment
Act and other applicable federal and state employment and labor laws.
(v) Each of the Company and the Operating Partnership
maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or
specific authorizations; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
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(w) Neither the Company nor the Operating Partnership has,
directly or indirectly, at any time during the past five years (i)
made any unlawful contribution to any candidate for political office,
or failed to disclose fully any contribution in violation of law, or
(ii) made any payment to any federal, state or foreign governmental
official, or other person charged with similar public or quasi-public
duties, other than payments required or permitted by the laws of the
United States or any jurisdiction thereof or applicable foreign
jurisdictions.
(x) Each of the Company, the Operating Partnership and the
Joint Ventures has obtained all required permits, licenses, and other
authorizations, if any, which are required under federal, state,
local and foreign statutes, ordinances and other laws relating to
pollution or protection of the environment, including laws relating
to emissions, discharges, releases, or threatened releases of
pollutants, contaminants, chemicals, or industrial, hazardous, or
toxic materials or wastes into the environment (including, without
limitation, ambient air, surface water, ground water, land surface,
or subsurface strata) or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants, chemicals, or
industrial, hazardous, or toxic materials or wastes, or any
regulation, rule, code, plan, order, decree, judgment, injunction,
notice, or demand letter issued, entered, promulgated, or approved
thereunder ("Environmental Laws"), except where the failure to obtain
any such permit, license or other authorization has not resulted in
and will not result in a Material Adverse Effect. Each of the
Company, the Operating Partnership and the Joint Ventures is in
material compliance with all terms and conditions of all required
permits, licenses, and authorizations, and also is in material
compliance with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules, and
timetables contained in the Environmental Laws. There is no pending
or, to the knowledge of the Company, threatened civil or criminal
litigation, notice of violation, or administrative proceeding
relating in any way to the Environmental Laws (including but not
limited to notices, demand letters, or claims under the Resource
Conservation and Recovery Act of 1976, as amended ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended ("CERCLA"), the Emergency Planning and Community
Right to Know Act of 1986, as amended ("EPCRA"), the Clean Air Act,
as amended ("CAA"), or the Clean Water Act, as amended ("CWA"), and
similar federal, foreign, state, or local laws or regulations,
including, without limitation, laws and regulations promulgated by
the United States Food and Drug Administration) involving the
Company, the Operating Partnership or any of the Joint Ventures.
There have not been and there are not any past, present or
foreseeable future events, conditions, circumstances, activities,
practices, incidents, actions, or plans which may interfere with or
prevent continued compliance, or which may give rise to any material
common law or legal liability, or otherwise form the basis of any
material claim, action, demand, suit, proceeding, hearing, study, or
investigation, based on or related to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or
handling, or the emission, discharge, release, or threatened release
into the environment, of any pollutant, contaminant, chemical, or
industrial, hazardous, or toxic material or waste by the
-14-
Company, the Operating Partnership or any of the Joint
Ventures, including, without limitation, any material liability
arising, or any material claim, action, demand, suit, proceeding,
hearing, study, or investigation which may be brought, under RCRA,
CERCLA, EPCRA, CAA, CWA or similar federal, foreign, state or local
laws.
(y) Each of the Company and the Operating Partnership owns and
has full right, title and interest in and to, or has valid licenses
to use, each material trade name, trademark or service xxxx under
which the Company or the Operating Partnership conducts all or any
material part of its business, and neither the Company nor the
Operating Partnership has created any lien or encumbrance on, or
granted any right or license with respect to, any such trade name,
trademark or service xxxx; there is no claim pending against the
Company or the Operating Partnership with respect to any trade name,
trademark or service xxxx and neither the Company nor the Operating
Partnership has received notice or otherwise become aware that any
trade name, trademark or service xxxx which it uses or has used in
the conduct of its business infringes upon or conflicts with the
rights of any third party.
(z) Except as described in the Prospectus, the Company, the
Operating Partnership or the Joint Ventures, as applicable, has
obtained title insurance policies on all of the Properties and each
such title insurance policy is, or as of the Firm Closing Date will
be, in full force and effect.
(aa) The mortgages and deeds of trust encumbering the
properties and assets (including the Properties) described in the
Prospectus are not convertible and neither the Company nor the
Operating Partnership holds a participating interest therein and such
mortgages and deeds of trust are not cross-defaulted or
cross-collateralized to any property which is not owned by the
Company or the Operating Partnership.
(ab) The Company and the Operating Partnership are insured by
insurers of recognized financial responsibility against such losses
and risks and in such amounts as are sufficient, in the judgment of
the Company; and neither the Company nor the Operating Partnership
has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not materially and
adversely affect the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company or the
Operating Partnership, except as described in or contemplated by the
Prospectus.
(ac) All offers, sales, conversions and redemptions of the
Company's and the Operating Partnership's capital stock and
partnership or other beneficial interests through the date hereof,
including pursuant to the transactions described in Section 6(ai)
below, have been or will be made in compliance with the Act and all
other applicable state and federal laws or regulations, or pursuant
to an exemption therefrom.
-15-
(ad) The Shares have been duly listed on the NYSE.
(ae) All federal, state and local tax returns required to be
filed by or on behalf of the Company, the Operating Partnership or
the Joint Ventures with respect to all periods ended prior to the
date of this Agreement have been filed (or are the subject of valid
extension) with the appropriate federal, state and local authorities
and all such tax returns are accurate in all material respects. All
federal, state and local taxes (including estimated tax payments)
required to be shown on all such tax returns or claimed to be due
from or with respect to the business of the Company, the Operating
Partnership or the Joint Ventures have been paid or reflected as a
liability on the financial statements of the Company and the
Operating Partnership or the Joint Ventures, as applicable, for
appropriate periods, except for those taxes or claims therefor which
are being contested in good faith and for which appropriate reserves
are reflected in the financial statements of the Company and the
Operating Partnership or the Joint Ventures. All deficiencies
asserted as a result of any federal, state, local or foreign tax
audits have been paid or finally settled and no issue has been raised
in any such audit which, by application of the same or similar
principles, reasonably could be expected to result in a proposed
deficiency for any other period not so audited. No state of facts
exists which would constitute grounds for the assessment of any tax
liability with respect to the periods which have not been audited by
appropriate federal, state or local authorities. There are no
outstanding agreements or waivers extending the statutory period of
limitation applicable to any federal, state, local or foreign tax
return for any period. On the Closing Date, and each Additional
Closing Date, if any, all stock transfer and other taxes which are
required to be paid in connection with the sale of the shares to be
sold by the Company to the Underwriters will have been fully paid by
the Company and all laws imposing such taxes will have been complied
with.
(af) The Company has since December ___, 1994 been qualified
as a real estate investment trust ("REIT") under the Internal Revenue
Code of 1986, as amended (the "Code"), has elected to be taxed as a
REIT under the Code for the taxable year ended December 31, 1996, and
expects to continue to be organized and to operate in a manner so as
to qualify as a REIT in the taxable year ending December 31, 1997 and
succeeding taxable years.
(ag) Except as set forth in the Prospectus, there are no
transactions with "affiliates" (as defined in Rule 405 promulgated
under the Act) or any officer, director or 5% or greater security
holder of the Company (whether or not an affiliate) which are
required by the Act and the applicable rules and regulations
thereunder to be disclosed in the Registration Statement.
(ah) The Company has procured the written agreement of Messrs.
Xxxxxxx Agree, Xxxxxx Xxxxxxxxx and Xxxxxxx Xxxx not to directly or
indirectly sell, offer or contract to sell or otherwise dispose of or
transfer any shares of Common Stock or securities of the Company
convertible into or exchangeable or exercisable for Common
-16-
Stock (collectively, "Company Securities") or any rights to
purchase Company Securities owned or controlled by such persons now
or hereafter for a period of 120 days after the date of the
Prospectus first filed pursuant to Rule 424(b) under the Act (the
"Restriction Period"), without the prior written consent of Xxxxxxx
Xxxxx & Associates, Inc.
7. Expenses. Whether or not the transactions contemplated hereby are
consummated or this Agreement becomes effective or is terminated, the Company
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, each
Prepricing Prospectus, the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof and of any Prepricing
Prospectus to the Underwriters and dealers; (ii) the printing or reproduction
and delivery (including, without limitation, postage, air freight charges and
charges for counting and packaging) of such copies of the Registration
Statement, the Prospectus, each Prepricing Prospectus, the Blue Sky
memoranda, the Power of Attorney, the Master Agreement Among Underwriters,
this Agreement, the Selected Dealers Agreement and all amendments or
supplements to any of them as may be reasonably requested for use in
connection with the offering and sale of the Shares; (iii) all expenses in
connection with the requisite filings and any qualification of the Shares for
offering and sale under state securities laws or Blue Sky laws, including the
reasonable attorneys' fees and out-of-pocket expenses of the counsel for the
Underwriters in connection therewith; (iv) the filing fees incident to
securing any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Shares and the reasonable fees
and disbursements of the Underwriters' counsel relating thereto; (v) the cost
of preparing stock certificates; (vi) the costs and charges of any transfer
agent or registrar; (vii) the cost of the tax stamps, if any, in connection
with the issuance and delivery of the Shares to the respective Underwriters;
(viii) all other fees, costs and expenses referred to in Item 30 of the
Registration Statement, (ix) the transportation, lodging, graphics and other
expenses incidental to the Company's preparation for and participation in the
"roadshow" for the offering contemplated hereby; and (x) all other costs and
expenses incident to the performance of the obligations of the Company
hereunder which are not otherwise specifically provided for in this Section.
Notwithstanding the foregoing, in the event that the proposed offering is
terminated for the reasons set forth in Section 5(i) hereof, the Company
agrees to reimburse the Underwriters as provided in Section 5(i).
8. Indemnification and Contribution. The Company agrees to indemnify
and hold harmless you and each other Underwriter, the directors, officers,
employees and agents of each Underwriter, and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") from and against any and all losses, claims, damages, liabilities and
expenses, including, without limitation, reasonable costs of investigation
and attorneys' fees and expenses (collectively, "Damages") arising out of or
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in any Prepricing Prospectus or in the Registration Statement
or the Prospectus or in any amendment or supplement thereto, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make
-17-
the statements therein not misleading, except to the extent that any such
Damages arise out of or are based upon an untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information furnished
in writing to the Company by or on behalf of any Underwriter through you
expressly for use in connection therewith, or (ii) any inaccuracy in or
breach of the representations and warranties of the Company contained herein
or any failure of the Company to perform its obligations hereunder or under
law; provided, however, that with respect to any untrue statement or omission
made in any Prepricing Prospectus, the indemnity agreement contained in this
paragraph shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased the
Shares concerned if both (A) a copy of the Prospectus was not sent or given
to such person at or prior to the written confirmation of the sale of such
Shares to such person as required by the Act, and (B) the untrue statement or
omission in the Prepricing Prospectus was corrected in the Prospectus.
In addition to its other obligations under this Section 8, the
Company agrees that, as an interim measure during the pendency of any claim,
action, investigation, inquiry or other proceeding arising out of or based
upon any statement or omission, or any inaccuracy in the representations and
warranties of the Company herein or failure to perform its obligations
hereunder, all as set forth in this Section 8, it will reimburse each
Underwriter on a quarterly basis for all reasonable legal or other
out-of-pocket expenses incurred in connection with the investigation or
defense of any such claim, action, investigation, inquiry or other
proceeding, notwithstanding the absence of a judicial determination as to the
propriety and enforceability of the Company's obligation to reimburse each
Underwriter for such expenses and the possibility that such payments might
later be held to have been improper by a court of competent jurisdiction. To
the extent that any such interim reimbursement payment is so held to have
been improper, each Underwriter shall promptly return it to the Company,
together with interest compounded daily determined on the basis of the base
lending rate announced from time to time by Chase Manhattan Bank, N.A. (the
"Prime Rate"). Any such interim reimbursement payments which are not made to
the Underwriters within 30 days of a request for reimbursement shall bear
interest at the Prime Rate from the date of such request.
If any action or claim shall be brought against any Underwriter or
any person controlling any Underwriter in respect of which indemnity may be
sought against the Company, such Underwriter or such controlling person shall
promptly notify in writing the party(s) against whom indemnification is being
sought (the "indemnifying party" or "indemnifying parties"), and such
indemnifying party(s) shall assume the defense thereof, including the
employment of counsel reasonably acceptable to such Underwriter or such
controlling person and payment of all fees and expenses. Such Underwriter or
any such controlling person shall have the right to employ separate counsel
(but the Company shall not be liable for the fees and expenses of more than
one counsel) in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person unless (i) the indemnifying party(s)
has (have) agreed in writing to pay such fees and expenses, (ii) the
indemnifying party(s) has (have) failed to assume the defense and employ
counsel reasonably
-18-
acceptable to the Underwriter or such controlling person or (iii) the named
parties to any such action (including any impleaded parties) include both
such Underwriter or such controlling person and the indemnifying party(s),
and such Underwriter or such controlling person shall have been advised by
its counsel that one or more legal defenses may be available to the
Underwriter which may not be available to the Company, or that representation
of such indemnified party and any indemnifying party(s) by the same counsel
would be inappropriate under applicable standards of professional conduct
(whether or not such representation by the same counsel has been proposed)
due to actual or potential differing interests between them, in which case
the indemnifying party(s) shall not have the right to assume the defense of
such action on behalf of such Underwriter or such controlling person
(notwithstanding its (their) obligation to bear the fees and expenses of such
counsel). The indemnifying party(s) shall not be liable for any settlement of
any such action effected without its (their) written consent, but if settled
with such written consent, or if there be a final judgment for the plaintiff
in any such action, the indemnifying party(s) agree(s) to indemnify and hold
harmless any Underwriter and any such controlling person from and against any
loss, claim, damage, liability or expense by reason of such settlement or
judgment, but in the case of a judgment only to the extent stated in the
first paragraph of this Section 8.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the
Registration Statement, the Operating Partnership and any person who controls
the Company or the Operating Partnership within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
respect to information furnished in writing by or on behalf of such
Underwriter through you expressly for use in the Registration Statement, the
Prospectus or any Prepricing Prospectus, or any amendment or supplement
thereto. If any action or claim shall be brought or asserted against the
Company, any of its directors, any such officers, or any such controlling
person based on the Registration Statement, the Prospectus or any Prepricing
Prospectus, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Underwriter pursuant to this paragraph,
such Underwriter shall have the rights and duties given to the Company by the
preceding paragraph (except that if the Company shall have assumed the
defense thereof such Underwriter shall not be required to do so, but may
employ separate counsel therein and participate in the defense thereof, but
the fees and expenses of such counsel shall be at such Underwriter's
expense), and the Company, its directors, any such officers, and any such
controlling persons shall have the rights and duties given to the
Underwriters by the immediately preceding paragraph.
In addition to its other obligations under this Section 8, each
Underwriter severally agrees that, as an interim measure during the pendency
of any claim, action, investigation, inquiry or other proceeding arising out
of or based upon any statement or omission, or any alleged statement or
omission, described in this Section 8 which relates to information furnished
to the Company in writing by or on behalf of the Underwriters through you
expressly for use in the Registration Statement, it will reimburse the
Company (and, to the extent applicable, each officer, director or controlling
person) on a quarterly basis for all reasonable legal or other out-of-pocket
expenses incurred in connection with investigating or defending any such
claim, action, investigation,
-19-
inquiry or other proceeding, notwithstanding the absence of a judicial
determination as to the propriety and enforceability of the Underwriters'
obligation to reimburse the Company (and, to the extent applicable, each
officer, director, or controlling person) for such expenses and the
possibility that such payments might later be held to have been improper by a
court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, the Company (and, to
the extent applicable, each officer, director, or controlling person) shall
promptly return it to the Underwriters, together with interest, compounded
daily, determined on the basis of the Prime Rate. Any such interim
reimbursement payments which are not made to the Company within 30 days of a
request for reimbursement shall bear interest at the Prime Rate from the date
of such request.
If the indemnification provided for in this Section 8 is unavailable
or insufficient for any reason whatsoever to an indemnified party under the
first or fourth paragraph of this Section 8 in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then an indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriters on the
other hand in connection with the statements or omissions that resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus; provided that, in the
event that the Underwriters shall have purchased any Additional Shares
hereunder, any determination of the relative benefits received by the Company
or the Underwriters from the offering of the Shares shall include the net
proceeds (before deducting expenses) received by the Company, and the
underwriting discounts and commissions received by the Underwriters, from the
sale of such Additional Shares, in each case computed on the basis of the
respective amounts set forth in the notes to the table on the cover page of
the Prospectus. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or by the Underwriters on
the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8 was determined by a pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately
-20-
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to
in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price of the Shares underwritten by
it and distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 8 are several in proportion to the respective
numbers of Firm Shares set forth opposite their names in Schedule I hereto
(or such numbers of Firm Shares increased as set forth in Section 10 hereof)
and not joint.
Notwithstanding the second and fifth paragraphs of this Section 8,
any losses, claims, damages, liabilities or expenses for which an indemnified
party is entitled to indemnification or contribution under this Section 8
shall be paid by the indemnifying party to the indemnified party as such
losses, claims, damages, liabilities or expenses are incurred. The indemnity,
contribution and reimbursement agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement
shall remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Company, its directors or officers or any
person controlling the Company, (ii) acceptance of any Shares and payment
therefor hereunder and (iii) any termination of this Agreement. A successor
to any Underwriter or any person controlling any Underwriter, or to the
Company, its directors or officers, or any person controlling the Company,
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 8.
It is agreed that any controversy arising out of the operation of the
interim reimbursement arrangements set forth in the second and fifth
paragraphs of this Section 8, including the amounts of any requested
reimbursement payments and the method of determining such amounts, shall be
settled by arbitration conducted under the provisions of the Constitution and
Rules of the Board of Governors of the New York Stock Exchange, Inc. or
pursuant to the Code of Arbitration Procedure of the NASD. Any such
arbitration must be commenced by service of a written demand for arbitration
or written notice of intention to arbitrate, therein electing the arbitration
tribunal. In the event the party demanding arbitration does not make such
designation of an arbitration tribunal in such demand or notice, then the
party responding to said demand or notice is authorized to do so. Such an
arbitration would be limited to the operation of the interim reimbursement
provisions contained in the second and fifth paragraphs of this Section 8,
and would not resolve the ultimate propriety or enforceability of the
obligation to reimburse expenses which is created by the provisions of the
second and fifth paragraphs of this Section 8.
-21-
9. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters to purchase the Firm Shares hereunder are subject to the
following conditions:
(a) The Registration Statement shall have become effective not
later than 12:00 noon, New York City time, on the date hereof, or at
such later date and time as shall be consented to in writing by you,
and all filings required by Rules 424(b) and 430A under the Act shall
have been timely made.
(b) You shall be reasonably satisfied that since the
respective dates as of which information is given in the Registration
Statement and Prospectus, (i) there shall not have been any change in
the capital stock, partnership interests or other beneficial
interests (other than pursuant to the exercise of outstanding options
and warrants disclosed in the Prospectus) of the Company or the
Operating Partnership or any material change in the indebtedness
(other than in the ordinary course of business) of the Company or the
Operating Partnership, (ii) except as set forth or contemplated by
the Registration Statement or the Prospectus, no material oral or
written agreement or other transaction shall have been entered into
by the Company or the Operating Partnership which is not in the
ordinary course of business or which could reasonably be expected to
result in a material reduction in the earnings of the Company and the
Operating Partnership or the Company's Funds from Operations (as
defined in the Prospectus), (iii) no loss or damage (whether or not
insured) to the property of the Company, the Operating Partnership or
any of the Joint Ventures shall have been sustained which had or
could reasonably be expected to have a Material Adverse Effect, (iv)
no legal or governmental action, suit or proceeding affecting the
Company, the Operating Partnership or any of the Joint Ventures or
which is material to the Company or the Operating Partnership or
which affects or could reasonably be expected to affect the
transactions contemplated by this Agreement shall have been
instituted or threatened, and (v) there shall not have been any
material change in the condition (financial or otherwise), business,
management or results of operations of the Company or the Operating
Partnership which makes it impractical or inadvisable in your
judgment to proceed with the public offering or purchase the Shares
as contemplated hereby.
(c) You shall have received on the Closing Date (and the
Additional Closing Date, if any) an opinion of Kramer, Levin,
Naftalis & Xxxxxxx, as counsel for the Company, and of Piper &
Marbury, as counsel for the Company with respect to matters of
Maryland law, in each case dated the Closing Date, and satisfactory
to you and your counsel, substantially to the effect that:
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Maryland,
with full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto), and is duly registered or otherwise qualified to
conduct its business as a foreign corporation and is in good standing
-22-
in each jurisdiction or place where the nature of its properties or
the conduct of its business requires such registration or
qualification, except where the failure to so register or qualify
does not have a Material Adverse Effect.
(ii) The Operating Partnership is duly organized and validly
existing in good standing under the laws of the jurisdiction of its
organization, with full partnership power and authority to own, lease
and operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus (and any amendment
or supplement thereto); and is duly registered or otherwise qualified
to conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where
the failure to so register or qualify does not have a Material
Adverse Effect; and all of the outstanding partnership interests of
the Operating Partnership have been duly authorized and validly
issued, and are fully paid and are owned by the Company or Messrs.
Agree, Xxxxxxxxx and Xxxxxx directly, free and clear of any perfected
security interest or, to the knowledge of such counsel, any other
security interest, lien, adverse claim, equity or other encumbrance.
(iii) The authorized and the outstanding capital stock of the
Company conforms in all respects to the description thereof contained
in the Prospectus under the caption "Description of Capital Stock."
Except as set forth in the Prospectus, to the knowledge of such
counsel, the Company is not a party to or bound by any outstanding
options, warrants or similar rights to subscribe for, or contractual
obligations to issue, sell, transfer or acquire, any of its capital
stock or any securities convertible into or exchangeable for any of
such capital stock.
(iv) All shares of capital stock of the Company outstanding
prior to the issuance of the Shares to be issued and sold by the
Company hereunder have been duly authorized and validly issued, are
fully paid and nonassessable and are free of any preemptive or, to
the knowledge of such counsel, similar rights that entitle or will
entitle any person to acquire any Shares upon the issuance thereof by
the Company, and no such rights will exist as of the Closing Date.
(v) To the knowledge of such counsel, all offers and sales of
the Company's securities (other than offers and sales of the Shares
by the Underwriters, as to which such counsel need not opine) have
been made in compliance in all material respects with the Act and all
other applicable state and federal securities laws or regulations or
applicable exemptions therefrom.
(vi) The Shares to be issued and sold to the Underwriters by
the Company hereunder have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance
with the terms hereof, (A) will be validly issued, fully paid and
nonassessable and free of any preemptive
-23-
or, to the knowledge of such counsel, similar rights that entitle or
will entitle any person to acquire any Shares upon the issuance
thereof by the Company, and (B) good, valid and marketable title to
such Shares issued hereunder, free and clear of any claim,
encumbrance or defect in title of any nature (other than any arising
by or through the Underwriters), will pass to each Underwriter that
has purchased any portion of such Shares in good faith and without
knowledge of any such claim, encumbrance or defect.
(vii) The form of certificates for the Shares conforms in all
material respects to the requirements of the applicable corporate
laws of the State of Maryland.
(viii) The Registration Statement has become effective under
the Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose are pending before or
contemplated by the Commission.
(ix) The Company has all requisite corporate power and
authority to enter into this Agreement and to issue, sell and deliver
the Shares to be sold by it to the Underwriters as provided herein,
and this Agreement has been duly authorized, executed and delivered
by the Company and constitutes the valid, legal and binding
agreement(s) of the Company, enforceable against the Company in
accordance with its terms, except to the extent enforceability may be
limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally or by general
equitable principles, and except to the extent enforceability of the
provisions relating to indemnity and contribution for liabilities
under the Act may be limited by or under the Act.
(x) Neither the Company nor the Operating Partnership is in
violation of its certificate or articles of incorporation or bylaws,
partnership agreement, or other organizational documents, and, to the
knowledge of such counsel, neither the Company nor the Operating
Partnership is in default in the performance of any obligation,
agreement or condition contained in any bond, indenture, note or
other evidence of indebtedness or any other agreement or obligation
of the Company or the Operating Partnership, where the default would
have, individually or in the aggregate, a Material Adverse Effect.
(xi) Neither the offer, sale or delivery of the Shares, the
execution, delivery or performance of this Agreement, compliance by
the Company with all provisions hereof nor consummation by the
Company of the transactions contemplated hereby (A) conflicts with or
will conflict with or constitutes or will constitute a breach of, or
a default under, the certificate or articles of incorporation or
bylaws, partnership agreement, or other organizational documents, of
the
-24-
Company or the Operating Partnership or any material agreement,
indenture, lease or other instrument known to such counsel to which
the Company or the Operating Partnership is a party or by which any
of them or any of their respective properties is bound, (B) creates
or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or the
Operating Partnership, or (C) violates or will result in any
violation of any existing law, statute, regulation, ruling (assuming
compliance with all applicable state securities and Blue Sky laws),
judgment, injunction, order or decree which is known to such counsel
and applicable to the Company or the Operating Partnership or any of
their respective properties.
(xii) No consent, approval, authorization or other order of,
or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official
is required on the part of the Company (except such as have been
obtained under the Act or such as may be required under state
securities or Blue Sky laws governing the purchase and distribution
of the Shares) for the valid issuance and sale of the Shares to the
Underwriters under this Agreement.
(xiii) The Registration Statement and the Prospectus and any
supplements or amendments thereto (except for the financial
statements and the notes thereto and the schedules and other
financial and statistical data included therein, as to which such
counsel need not express any opinion) comply as to form in all
material respects with the requirements of the Act. Without limiting
the generality of the foregoing, any Rule 434 Prospectus conforms in
all material respects with the requirements of Rule 434 under the
Act.
(xiv) To the knowledge of such counsel, (A) there are no legal
or governmental proceedings pending or threatened against the Company
or the Operating Partnership or to which the Company or the Operating
Partnership or any of their respective properties is subject, that
are required to be described in the Registration Statement or
Prospectus (or any amendment or supplement thereto) that are not
described therein, and (B) there are no agreements, contracts,
indentures, leases or other instruments that are required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement that are not
described or filed, as the case may be.
(xv) To the knowledge of such counsel, neither the Company nor
the Operating Partnership is in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the
Company or the Operating Partnership or of any decree of any court or
governmental agency or body having jurisdiction over the Company or
the Operating Partnership except where such violation does not and
will not have a Material Adverse Effect.
-25-
(xvi) To the knowledge of such counsel, each of the Company
and the Operating Partnership has such permits, licenses, franchises,
approvals, consents and authorizations of governmental or regulatory
authorities ("Permits"), as are necessary to own its properties and
to conduct its business in the manner described in the Prospectus
except where the failure to have such Permits would not individually
or in the aggregate have a Material Adverse Effect.
(xvii) To the knowledge of such counsel, the properties
described in the Prospectus as held under lease by the Company or the
Operating Partnership are held under duly executed leases.
(xviii) Such counsel has reviewed all agreements, contracts,
indentures, leases or other documents or instruments described or
referred to in the Registration Statement and the Prospectus (other
than routine contracts entered into by the Company or the Operating
Partnership for the purchase of materials or the sale of products
entered into in the normal course of business, although such counsel
has reviewed the forms of such routine contracts), and such
agreements, contracts (and forms of contracts), indentures, leases or
other documents or instruments are fairly summarized or disclosed in
all material respects therein, and filed as exhibits thereto as
required, and such counsel does not know of any agreements,
contracts, indentures, leases or other documents required to be so
summarized or disclosed or filed which have not been so summarized or
disclosed or filed.
(xix) The descriptions in the Prospectus of statutes,
regulations or legal or governmental proceedings, insofar as they
purport to summarize certain of the provisions thereof, are accurate
and fairly present in all material respects the information required
to be shown.
(xx) The Company is not an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter" for,
an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended.
(xxi) The Company will be treated as having met the
requirements for qualification and taxation as a REIT for taxable
years ending December 31, 1994, 1995 and 1996 and assuming compliance
with the actions described in the "Federal Income Tax Considerations"
section of the Prospectus, its proposed method of operation described
in the Prospectus will enable it to continue to meet the requirements
for qualification and taxation as a REIT under the Code.
In rendering such opinion, such counsel may rely, to the extent they
deem such reliance proper, upon an opinion or opinions, each dated the
Closing Date, of other counsel as to matters governed by the laws of
jurisdictions other than the United States or the State of New York provided
that (1) each such local counsel is acceptable to you
-26-
and your counsel, (2) counsel shall state in their opinion that they believe
that they and you are justified in relying thereon, and (3) such reliance is
expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to you and is in form and substance satisfactory to you.
In rendering such opinion, such counsel may rely, to the extent they deem
such reliance proper, as to matters of fact upon certificates of officers of
the Company and of government officials, provided that counsel shall state
their belief that they and you are justified in relying thereon. Copies of
all such certificates shall be furnished to you and your counsel on the
Closing Date.
In rendering such opinion, in each case where such opinion is
qualified by "the knowledge of such counsel" or "known to such counsel," such
counsel may rely as to matters of fact upon certificates of executive and
other officers and employees of the Company or the Operating Partnership as
you and such counsel shall deem are appropriate and such other procedures as
you and such counsel shall mutually agree; provided, however, in each such
case, such counsel shall state that it has no knowledge contrary to the
information contained in such certificates or developed by such procedures
and knows of no reason why you should not reasonably rely upon the
information contained in such certificates or developed by such procedures.
Such counsel may state in such opinion that their knowledge is limited to the
knowledge of their attorneys and other representatives and employees that
have given attention to the matters involving the Company.
In addition to the opinion set forth above, such counsel shall
state that such counsel has participated in conferences with the
officers and other representatives of the Company and the
Underwriters and their counsel during which the contents of the
Registration Statement and the Prospectus and related matters were
discussed and reviewed, and, although such counsel is not passing
upon and does not assume any responsibility, explicitly or
implicitly, for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus,
on the basis of the information that such counsel developed in the
course of the performance of the services referred to above,
considered in the light of such counsel's understanding of the
applicable law, that nothing came to their attention that caused them
to believe that the Registration Statement or the Prospectus (other
than the financial statements and schedules and the other financial
and statistical data therein, as to which such counsel need express
no belief), on such effective date, contained any untrue statement of
a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(d) You shall have received on the Closing Date (and the
Additional Closing Date, if any) an opinion of Xxxxxxxx Xxxxxxxx &
Xxxxxx P.C., as counsel for the Underwriters, dated the Closing Date
with respect to the issuance and sale of the Firm Shares, the
Registration Statement and other related matters as you may
reasonably request, and the Company and its counsel shall have
furnished to your counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
-27-
(e) You shall have received letters addressed to you and dated
the date hereof and the Closing Date from BDO Xxxxxxx, independent
certified public accountants, substantially in the forms heretofore
requested and approved by you.
(f) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall be pending or, to the knowledge of the Company,
shall be threatened or contemplated by the Commission at or prior to
the Closing Date; (ii) no order suspending the effectiveness of the
Registration Statement or any qualification or registration of the
Shares under the securities or Blue Sky laws of any jurisdiction
shall be in effect and no proceeding for such purpose shall be
pending or, to the knowledge of the Company, threatened or
contemplated by the Commission or the authorities of any
jurisdiction; (iii) any request for additional information on the
part of the staff of the Commission or any such authorities shall
have been complied with to the satisfaction of the staff of the
Commission or such authorities; (iv) after the date hereof no
amendment or supplement to the Registration Statement or the
Prospectus shall have been filed unless a copy thereof was first
submitted to you and you did not object thereto in good faith; and
(v) all of the representations and warranties of the Company
contained in this Agreement shall be true and correct in all respects
on and as of the date hereof and on and as of the Closing Date as if
made on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed by the president and
the chief financial officer of the Company (or such other officers as
are acceptable to you) to the effect set forth in this Section 9(f)
and in Sections 9(b) and (g) hereof.
(g) The Company shall not have failed in any respect at or
prior to the Closing Date to have performed or complied with any of
its agreements herein contained and required to be performed or
complied with by it hereunder at or prior to the Closing Date.
(h) The Company shall have furnished or caused to have been
furnished to you such further certificates and documents as you shall
have reasonably requested.
(i) At or prior to the Closing Date, you shall have received
the written commitment of each of the Company's officers and
directors not to (i) directly or indirectly sell, offer or contract
to sell, or otherwise dispose of or transfer any shares of Common
Stock or rights to purchase any Company Securities owned or
controlled by such persons now or hereafter or any rights to purchase
Company Securities during the Restriction Period without your prior
written consent.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of the Additional
Closing Date of the conditions set forth
-28-
in this Section 9, except that, if the Additional Closing Date is other than
the Closing Date, the certificates, opinions and letters referred to in
paragraphs (c) through (h) shall be dated as of the Additional Closing Date
and the opinions called for by paragraphs (c) and (d) shall be revised to
reflect the sale of Additional Shares.
If any of the conditions hereinabove provided for in this Section 9
shall not have been satisfied when and as required by this Agreement, this
Agreement may be terminated by you by notifying the Company of such
termination in writing at or prior to such Closing Date, but you shall be
entitled to waive any of such conditions.
10. Effective Date of Agreement. This Agreement shall become
effective upon the later of (a) the execution and delivery hereof by the
parties hereto, and (b) release of notification of the effectiveness of the
Registration Statement by the Commission; provided, however, that the
provisions of Sections 7 and 8 shall at all times be effective.
If any one or more of the Underwriters shall fail or refuse to
purchase Firm Shares which it or they have agreed to purchase hereunder, and
the aggregate number of Firm Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate number of the Firm Shares, each non-defaulting
Underwriter shall be obligated, severally, in the proportion which the number
of Firm Shares set forth opposite its name in Schedule I hereto bears to the
aggregate number of Firm Shares set forth opposite the names of all
non-defaulting Underwriters or in such other proportion as you may specify in
the Agreement Among Underwriters, to purchase the Firm Shares which such
defaulting Underwriter or Underwriters agreed, but failed or refused to
purchase. If any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares and the aggregate number of Firm Shares with respect to which
such default occurs is more than one-tenth of the aggregate number of Firm
Shares and arrangements satisfactory to you and the Company for the purchase
of such Firm Shares are not made within 48 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case which does not result in
termination of this Agreement, either you or the Company shall have the right
to postpone the Closing Date, but in no event for longer than seven (7) days,
in order that the required changes, if any, in the Registration Statement and
the Prospectus or any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any such default of any such
Underwriter under this Agreement.
11. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company, by notice to the Company, if prior to the Closing
Date or the Additional Closing Date (if different from the Closing Date and
then only as to the Additional Shares), as the case may be, in your sole
judgment, (i) trading in the Company's Common Stock shall have been suspended
by the Commission or the NYSE, (ii) trading in securities generally on the
NYSE, American Stock Exchange or National Association of Securities Dealers
Automated Quotation National Market System ("NASDAQ/NMS") shall have been
suspended or materially limited, or minimum or
-29-
maximum prices shall have been generally established on such exchange, or
additional material governmental restrictions, not in force on the date of
this Agreement, shall have been imposed upon trading in securities generally
by any such exchange or by order of the Commission or any court or other
governmental authority, (iii) a general moratorium on commercial banking
activities shall have been declared by either federal or New York State
authorities or (iv) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions or other material event the
effect of which on the financial markets of the United States is such as to
make it, in your judgment, impracticable or inadvisable to market the Shares
or to enforce contracts for the sale of the Shares. Notice of such
cancellation shall be promptly given to the Company and its counsel by
telecopy or telephone and shall be subsequently confirmed by letter.
12. Information Furnished by the Underwriters. The Company
acknowledges that (i) the paragraph immediately following footnote 3 on the
cover page of the Prospectus and (ii) the first and second paragraphs under
the caption "Underwriting" in any Prepricing Prospectus and in the
Prospectus, constitute the only information furnished by or on behalf of the
Underwriters through you or on your behalf as such information is referred to
in Sections 6(a), 6(b) and 8 hereof.
13. Miscellaneous. Except as otherwise provided in Sections 5 and 11
hereof, notice given pursuant to any of the provisions of this Agreement
shall be in writing and shall be delivered (i) if to the Company, to the
office of the Company at 00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxxxxxxx Xxxxx,
Xxxxxxxx 00000, Attention: Xxxxxxx Agree or (ii) if to you, as
Representatives of the Underwriters, to Xxxxxxx Xxxxx & Associates, Inc., 000
Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxx X. Xxxxxx,
Managing Director.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company, its directors and officers, and the other
controlling persons referred to in Section 8 hereof, and their respective
successors and assigns, to the extent provided herein, and no other person
shall acquire or have any right under or by virtue of this Agreement. Neither
of the terms "successor" and "successors and assigns" as used in this
Agreement shall include a purchaser from you of any of the Shares in his
status as such purchaser.
14. Applicable Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York without
reference to choice of law principles thereunder.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument. This Agreement shall be
effective when, but only when, at least one counterpart hereof shall have
been executed on behalf of each party hereto.
The Company and the Underwriters each hereby irrevocably waive any
right they may have to a trial by jury in respect to any claim based upon or
arising out of this Agreement or the transactions contemplated hereby.
-30-
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the several Underwriters.
Very truly yours,
AGREE REALTY CORPORATION
By: ______________________________
Name: _______________________
Title: ______________________
CONFIRMED as of the date first above mentioned, on behalf of itself and the
other several Underwriters named in Schedule I hereto.
XXXXXXX XXXXX & ASSOCIATES, INC. SUTRO & CO. INCORPORATED
By:______________________________ By:_______________________________
Name: _______________________ Name: ________________________
Title: ______________________ Title: _______________________
XxXXXXXX & COMPANY SECURITIES, INC.
By: _____________________________
Name: _______________________
Title: ______________________
-31-
SCHEDULE I
Number
of Firm
Name Shares
---- ------
Xxxxxxx Xxxxx & Associates, Inc. ................................
XxXxxxxx & Company Securities, Inc. .............................
Sutro & Co. Incorporated ........................................
TOTAL............................................................ 1,500,000
=========
