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Exhibit 1.01
3,500,000 Shares of Common Stock
GLENBOROUGH REALTY TRUST INCORPORATED
UNDERWRITING AGREEMENT
October __, 1996
BEAR, XXXXXXX & CO. INC.
XXXXXXXXX, XXXXXXXX & COMPANY LLC
XXXXXXXXX & COMPANY, INC.,
as Representatives of the
several Underwriters named in
Schedule I attached hereto
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Ladies and Gentlemen:
Glenborough Realty Trust Incorporated, a corporation organized and
existing under the laws of Maryland (the "Company") and the sole general partner
of Glenborough Properties, L.P. (the "Operating Partnership"), proposes, subject
to the terms and conditions stated herein, to issue and sell to the several
underwriters named in Schedule I attached hereto (the "Underwriters") an
aggregate of 3,500,000 shares (the "Firm Shares") of its common stock, par value
$0.001 per share (the "Common Stock") and, for the sole purpose of covering
over-allotments in connection with the sale of the Firm Shares, at the option of
the Underwriters, up to an additional 525,000 shares (the "Additional Shares")
of Common Stock. The Firm Shares and any Additional Shares purchased by the
Underwriters are referred to herein as the "Shares". Bear, Xxxxxxx & Co. Inc.,
Xxxxxxxxx, Xxxxxxxx & Company LLC and Xxxxxxxxx & Company, Inc. have agreed to
act as representatives of the several Underwriters (in such capacity, the
"Representatives") in connection with the purchase of the Shares. The Shares are
more fully described in the Registration Statement referred to below.
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1. Representations and Warranties of the Company and the Operating
Partnership. The Company and the Operating Partnership, jointly and severally,
represent and warrant to, and agree with, the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, and may have filed an
amendment or amendments thereto, on Form S-11 (No. 333-09411), for the
registration of the Shares under the Securities Act of 1933, as amended (the
"Act"). Such registration statement, including the prospectus, financial
statements and schedules, exhibits and all other documents filed as a part
thereof, as amended at the time of effectiveness of the registration statement,
including any information deemed to be a part thereof as of the time of
effectiveness pursuant to paragraph (b) of Rule 430A or Rule 434 of the Rules
and Regulations of the Commission under the Act (the "Regulations"), is herein
called the "Registration Statement." Any registration statement filed by the
Company pursuant to Rule 462(b) under the Regulations is herein called the "Rule
462(b) Registration Statement," and from and after the date and time of such
filing of a Rule 462(b) Registration Statement the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The prospectus, in the
form first used by the Underwriters to confirm sales of the Shares, is herein
called the "Prospectus"; provided, however, if the Company has elected to rely
upon Rule 434 under the Regulations (and has obtained the Representatives'
consent thereto on behalf of the several Underwriters), the term "Prospectus"
shall mean the Company's prospectus subject to completion (each, a "preliminary
prospectus") dated September 9, 1996 (such preliminary prospectus herein called
the "Rule 434 preliminary prospectus") together with the applicable term sheet
(the "Term Sheet") prepared and filed by the Company with the Commission under
Rules 434 and 424(b) under the Regulations and provided, further, that all
references in this Agreement to the date of the Prospectus shall mean the date
of such applicable Term Sheet. Additionally, all references in this Agreement to
the Registration Statement, the Rule 462(b) Registration Statement, a
preliminary prospectus, the Prospectus and the Term Sheet, or any amendments or
supplements to any of the foregoing, shall be deemed to include any copy thereof
filed
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with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System ("XXXXX").
(b) Each preliminary prospectus and Prospectus filed as part of the
Registration Statement, as part of any amendment thereto or pursuant to Rule 424
under the Regulations, complied when so filed in all material respects with the
Act and, if so filed by electronic transmission pursuant to XXXXX (except as may
be permitted by Regulation S-T under the Act) was identical to the copy thereof
delivered to the Underwriters for use in connection with the offer and sales of
the Shares. At the respective times that the Registration Statement, the Rule
462(b) Registration Statement, if any, and any post-effective amendments thereto
became effective, and at all times subsequent thereto up to and including the
Closing Date and the Additional Closing Date, if any (as hereinafter
respectively defined), the Registration Statement, such Rule 462(b) Registration
Statement and each such posteffective amendment thereto complied and will comply
in all material respects with the Act and did not and will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
The Prospectus, as amended or supplemented, as of its date and at all times
subsequent thereto up to and including the Closing Date and the Additional
Closing Date, if any, did not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If the Company has elected to rely upon Rule 434 under the
Regulations, and has obtained the Representatives' consent thereto, the Company
confirms that the Rule 434 preliminary prospectus is not materially different
from the Company's prospectus contained in the Registration Statement at the
time it was declared effective, and the Company agrees that it shall comply with
the requirements of Rule 434. Notwithstanding the foregoing, the representations
and warranties set forth in the second and third sentences of this Section 1(b)
do not apply to statements in or omissions from the Registration Statement, the
Rule 462(b) Registration Statement, if any, and any posteffective amendments
thereto, or the Prospectus, or any amendments or supplements thereto, made in
reliance upon and in conformity with information relating to any Underwriter
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furnished to the Company in writing by any Representative expressly for use
therein. There are no contracts or other documents required to be described in
the Prospectus or to be filed as exhibits to the Registration Statement under
the Act that have not been described, filed or incorporated by reference therein
as required.
(c) Xxxxxx Xxxxxxxx LLP, who have certified the financial
statements, related notes and supporting schedules included in the Registration
Statement, are independent public accountants as required by the Act and the
Regulations.
(d) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as set forth in
the Registration Statement and the Prospectus, there has been no material
adverse change in the business, business prospects, properties, operations,
condition (financial or other) or results of operations of the Company or the
Operating Partnership and their respective subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of business (any
such change with respect to any entity being referred to herein as a "Material
Adverse Change"), and since the date of the latest balance sheet presented in
the Registration Statement and the Prospectus, neither the Company, the
Operating Partnership nor any of their respective subsidiaries has incurred or
undertaken any liabilities or obligations, direct or contingent, which are
material to the Company, the Operating Partnership and their respective
subsidiaries taken as a whole, except for liabilities or obligations which are
reflected or disclosed in the Registration Statement and the Prospectus.
(e) This Agreement and the transactions contemplated herein have
been duly and validly authorized by the Company and the Operating Partnership
and this Agreement has been duly and validly executed and delivered by the
Company and the Operating Partnership.
(f) The execution, delivery, and performance of this Agreement and
the consummation of the transactions contemplated hereby do not and will not (i)
conflict with or result in a breach of any of the terms and provisions of, or
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constitute a default (or an event which with notice or lapse of time, or both,
would constitute a default) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company, the
Operating Partnership or any of their respective subsidiaries pursuant to, any
agreement, instrument, franchise, license or permit to which the Company, the
Operating Partnership or any of their respective subsidiaries is a party or by
which any of such entities or their respective properties or assets may be bound
or (ii) violate or conflict with any provision of the partnership agreement of
the Operating Partnership, the certificate of incorporation or by-laws of the
Company or any of the subsidiaries of the Company or Operating Partnership or
any judgment, decree, order, statute, rule or regulation of any court or any
public, governmental or regulatory agency or body having jurisdiction over the
Company, the Operating Partnership or any of their subsidiaries or any of their
respective properties or assets, except for those violations or conflicts that
would not have a material adverse effect on the Company, the Operating
Partnership and their respective subsidiaries, taken as a whole. No consent,
approval, authorization, order, registration, filing, qualification, license or
permit of or with any court or any public, governmental or regulatory agency or
body having jurisdiction over the Company, the Operating Partnership or any of
their respective subsidiaries or any of their respective properties or assets is
required for the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby, including the issuance,
sale and delivery of the Shares to be issued, sold and delivered by the Company
hereunder, except the registration under the Act of the Shares and such
consents, approvals, authorizations, orders, registrations, filings,
qualifications, licenses and permits as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the Shares
by the Underwriters.
(g) All of the outstanding shares of Common Stock are duly and
validly authorized and issued, fully paid and nonassessable and were not issued
and are not now in violation of or subject to any preemptive rights. The Shares,
when issued, delivered and sold in accordance with this Agreement, will be duly
and validly issued and outstanding, fully paid and nonassessable, and will not
have been issued in
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violation of or be subject to any preemptive rights. The authorized, issued and
outstanding capital stock of the Company is as set forth in the Prospectus under
the caption "Capitalization." The Common Stock, including the Shares, conform to
the description thereof contained in the Registration Statement and the
Prospectus. The Company is the sole general partner of the Operating
Partnership; the partnership agreement of the Operating Partnership has been
duly authorized, executed and delivered by each partner thereto and is valid,
legally binding and enforceable in accordance with its terms; all of the
partnership interests in the Operating Partnership have been duly and validly
authorized and issued and (except as described in the Prospectus) are owned
directly or indirectly by the Company free and clear of all liens, encumbrances,
equities or claims. All issued and outstanding securities of the Operating
Partnership have been duly and validly authorized and issued in compliance with
the federal and state securities laws. The units of the Operating Partnership to
be issued in connection with the acquisitions described in the Prospectus under
the caption "Recent Activities" will be duly and validly issued in compliance
with the federal and state securities laws when issued in the manner described
in the Prospectus.
(h) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Maryland. The
Operating Partnership has been duly organized and is validly existing as a
limited partnership in good standing under the laws of the State of California.
The Company is duly qualified and in good standing as a foreign corporation, and
the Operating Partnership has been duly qualified and in good standing as a
foreign limited partnership, in each jurisdiction in which the character or
location of its respective properties (owned, leased or licensed) or the nature
or conduct of its respective business makes such qualification necessary, except
for those failures to be so qualified or in good standing which will not in the
aggregate have a material adverse effect on the Company, the Operating
Partnership and their respective subsidiaries, taken as a whole. Each of the
Company and the Operating Partnership has all requisite power and authority, and
all necessary consents, approvals, authorizations, orders, registrations,
qualifications, licenses and permits of and from all public, regulatory or
governmental agencies and bodies, to own, lease and operate its properties and
conduct
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its business as now being conducted and as described in the Registration
Statement and the Prospectus, except for the absence of which individually or in
the aggregate would not have a material adverse effect on the Company, the
Operating Partnership and their respective subsidiaries taken as a whole, and no
such consent, approval, authorization, order, registration, qualification,
license or permit contains a materially burdensome restriction not adequately
disclosed in the Registration Statement and the Prospectus.
(i) Each subsidiary of the Company or the Operating Partnership has
been duly organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation. Each subsidiary of the
Company or the Operating Partnership is duly qualified and in good standing as a
foreign corporation in each jurisdiction in which the character or location of
its properties (owned, leased or licensed) or the nature or conduct of its
business makes such qualification necessary, except for those failures to be so
qualified or in good standing which will not in the aggregate have a material
adverse effect on the Company, the Operating Partnership and their respective
subsidiaries, taken as a whole. Each subsidiary of the Company and the Operating
Partnership has all requisite power and authority, and all necessary consents,
approvals, authorizations, orders, registrations, qualifications, licenses and
permits of and from all public, regulatory or governmental agencies and bodies,
to own, lease and operate its properties and conduct its business as now being
conducted and as described in the Registration Statement and the Prospectus,
except for the absence of which individually or in the aggregate would not have
a material adverse effect on the Company, the Operating Partnership and their
respective subsidiaries taken as a whole, and no such consent, approval,
authorization, order, registration, qualification, license or permit contains a
materially burdensome restriction not adequately disclosed in the Registration
Statement and the Prospectus. All of the capital stock in each subsidiary of the
Company or the Operating Partnership has been duly and validly authorized and
issued and (except as described in the Prospectus) is owned directly or
indirectly by the Company or the Operating Partnership, as the case may be, free
and clear of all liens, encumbrances, equities or claims.
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(j) Except as described in the Prospectus, there is no litigation or
governmental proceeding to which the Company, the Operating Partnership or any
of their respective subsidiaries is a party or to which any property of the
Company, the Operating Partnership or any of their respective subsidiaries is
subject or which is pending or, to the knowledge of the Company and the
Operating Partnership, contemplated against the Company, the Operating
Partnership or any of their respective subsidiaries which might result in any
material adverse change in the business, business prospects, properties,
operations, condition (financial or other) or, results of operations of the
Company, the Operating Partnership and their respective subsidiaries taken as a
whole, which might materially and adversely affect the transactions contemplated
by this Agreement or which is required to be disclosed in the Registration
Statement and the Prospectus. The descriptions of litigation matters in the
Prospectus under the captions "Risk Factors -- Other Risks -- Litigation Related
to Consolidation", "Risk Factors --Other Risks -- Chapter 11 Reorganization of
Partnership Consolidation by Senior Management" and "Business and Properties --
Legal Proceedings" are complete and accurate in all material respects.
(k) Neither the Company nor the Operating Partnership has taken or
will take, directly or indirectly, any action designed to cause or result in, or
which constitutes or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the shares of Common Stock to
facilitate the sale or resale of the Shares.
(l) The financial statements, including the notes thereto, and
supporting schedules included in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company, its
subsidiaries and their predecessors in interests of the dates indicated and the
results of their operations for the periods specified; except as otherwise
stated in the Registration Statement, said financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis; the supporting schedules included in the Registration
Statement present fairly the information required to be stated therein; and no
other
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financial statements or supporting schedules are required to be included in the
Registration Statement. The financial data set forth in the Prospectus under the
captions "Prospectus Summary--Summary Financial and Other Data," "Selected
Financial and Other Data" and "Capitalization" fairly present the information
set forth therein on a basis consistent with that of the audited financial
statements contained in the Registration Statement; and the pro forma condensed
consolidated financial statements of the Company and the related notes thereto
included under the caption "Pro Forma Financial Information" and elsewhere in
the Prospectus and in the Registration Statement present fairly the information
contained therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements and have been
properly presented on the bases described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred to
therein.
(m) Except as described in the Prospectus, no holder of securities
of the Company or the Operating Partnership has any rights to the registration
of securities of the Company or securities of the Operating Partnership that are
convertible, exchangeable or exercisable for securities of the Company because
of the filing of the Registration Statement or otherwise in connection with the
sale of the Shares contemplated hereby.
(n) Except as described in the Prospectus, the Company, the
Operating Partnership and their respective subsidiaries have good and marketable
title to all the properties and assets reflected as owned in the financial
statements referred to in Section 1(l) above or elsewhere in the Prospectus, in
each case free and clear of any security interests, mortgages, liens,
encumbrances, equities, claims and other defects, except such as are described
in the Prospectus and such as do not materially and adversely affect the value
of such property and do not materially interfere with the use made or proposed
to be made of such property by the Company, the Operating Partnership or any of
their respective subsidiaries. The real property, improvements, equipment and
personal property held under lease by the Company, the Operating Partnership or
their respective subsidiaries are held under
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valid, subsisting and enforceable leases, with such exceptions as are not
material and do not materially interfere with the use made or proposed to be
made of such real property, improvements, equipment or personal property by the
Company, the Operating Partnership or any of their respective subsidiaries.
(o) The Company, the Operating Partnership and their respective
subsidiaries have filed all necessary federal, state and foreign income and
franchise tax returns and have paid all taxes required to be paid by any of them
and, if due and payable, any related or similar assessment, fine or penalty
levied against any of them, except insofar as the failure to file such returns
would not have a material adverse effect on the Company, the Operating
Partnership and their respective subsidiaries, taken as a whole. The Company,
the Operating Partnership and their respective subsidiaries have made adequate
charges, accruals and reserves in their respective financial statements in
respect of all federal, state and foreign income and franchise taxes for all
periods as to which the tax liability of the Company, the Operating Partnership
or any of their respective subsidiaries has not been finally determined, except
to the extent of any inadequacy that would not have a material adverse effect on
the Company, the Operating Partnership and their respective subsidiaries, taken
as a whole.
(p) Except as described in the Prospectus, the Company, the
Operating Partnership and each of their respective subsidiaries are insured by
recognized financially sound and reputable institutions with policies in such
amounts and with such deductibles and covering such risks that the Company
believes are adequate to insure against potential losses, with such policies
including, but not limited to, policies covering real and personal property
owned or leased by the Company, the Operating Partnership or any of their
respective subsidiaries against theft, damage, destruction, acts of vandalism
and such other risks. Neither the Company nor the Operating Partnership has any
reason to believe that they or any of their respective subsidiaries will not be
able (i) to renew their existing insurance coverage as and when such policies
expire or (ii) to obtain comparable coverage from similar institutions as may be
necessary or appropriate to conduct their business as now conducted and at a
cost that
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would not result in a Material Adverse Change in the Company, the Operating
Partnership or any of their respective subsidiaries. Neither the Company, the
Operating Partnership nor any of their respective subsidiaries has been denied
any insurance coverage for which it has sought or applied
(q) Except as otherwise disclosed in the Prospectus or as would not,
individually or in the aggregate, result in a Material Adverse Change in the
Company, the Operating Partnership and their respective subsidiaries, taken as a
whole, (i) neither the Company, the Operating Partnership nor any of their
respective subsidiaries is in violation of any federal, state, local or foreign
laws and regulations relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including without
limitation, laws and regulations relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum and petroleum products
(collectively, "Materials of Environmental Concern"), or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environment Concern (collectively,
"Environmental Laws"), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations required for
the operation of the business of the Company, the Operating Partnership or any
of their respective subsidiaries under applicable Environmental Laws, or
noncompliance with the terms and conditions thereof, nor has the Company, the
Operating Partnership or any of their respective subsidiaries received any
written communication, whether from a governmental authority, citizens group,
employee or otherwise, that alleges that the Company, the Operating Partnership
or any of their respective subsidiaries is in any such violation; (ii) there is
no claim, action or cause of action filed with a court or governmental
authority, no investigation with respect to which the Company, the Operating
Partnership or any of their respective subsidiaries has received written notice,
and no written notice by any person or entity alleging potential liability for
investigatory costs, cleanup costs, governmental responses costs, natural
resources damages, property damages, personal injuries, attorneys' fees or
penalties arising out
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of, based on or resulting from the presence, or release into the environment, or
any Material of Environmental Concern at any location owned, leased or operated
by the Company, the Operating Partnership or any of their respective
subsidiaries, now or in the past (collectively, "Environmental Claims"), pending
or, to the best knowledge of the Company and the Operating Partnership,
threatened against the Company, the Operating Partnership or any of their
respective subsidiaries or, to the best knowledge of the Company or the
Operating Partnership, against any person or entity whose liability for any
Environmental Claim the Company, the Operating Partnership or any of their
respective subsidiaries has retained or assumed either contractually or by
operation of law; and (iii) to the best of knowledge of the Company and the
Operating Partnership, there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without limitation,
the release, emission, discharge, presence or disposal of any Material of
Environmental Concern, that reasonably could result in a violation of any
Environmental Law or form the basis of a potential Environmental Claim against
the Company, the Operating Partnership or any of their respective subsidiaries
or against any person or entity whose liability for any Environmental Claim the
Company, the Operating Partnership or any of their respective subsidiaries has
retained or assumed either contractually or by operation of law.
(r) In the ordinary course of their business, the Company and the
Operating Partnership conduct periodic reviews of the effect of Environmental
Laws on the business, operations and properties of the Company, the Operating
Partnership and their respective subsidiaries, in the course of which they
identify and evaluate associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review and the amount of
their established reserves, the Company and the Operating Partnership have
reasonably concluded that such associated costs and liabilities would not,
individually or in the aggregate, result in a Material Adverse Change in the
Company, the Operating
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Partnership and their respective subsidiaries, taken as a whole.
(s) Except as otherwise described in the Prospectus, there are no
business relationships or related-party transactions of the type described in
Item 404 of Regulation S-K of the Commission involving the Company, the
Operating Partnership or any of their respective subsidiaries, except for such
transactions that would be considered immaterial under such Item 404. The
descriptions under the caption "Certain Relationships and Related Transactions"
are complete and accurate in all material respects.
(t) The Company will elect to be taxed as a "real estate investment
trust" ("REIT") under the Internal Revenue Code of 1986, as amended (the
"Code"), effective beginning in its taxable year 1996. The Company has at all
times beginning on January 1, 1996 qualified for taxation as a REIT under the
Code and intends to continue to operate in such manner.
(u) The Company is not presently doing business with the government
of Cuba or with any person or affiliate located in Cuba.
(v) The Common Stock (including the Shares) is registered pursuant
to Section 12(g) of the Securities Exchange Act of 1934 (the "Exchange Act") and
is listed on the New York Stock Exchange (the "NYSE"), and the Company has taken
no action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or delisting the Common
Stock from the NYSE, nor has the Company received any notification that the
Commission or the NYSE is contemplating terminating such registration or
listing.
(w) Neither the Company, the Operating Partnership nor any of their
respective subsidiaries is, or, after giving effect to the issue and sale of the
Shares by the Company will be, an "investment company" or a company "controlled"
by an "investment company" within the meaning of the Investment Company Act of
1940.
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Any certificate signed by an officer of the Company or the Operating
Partnership and delivered to the Representatives or their counsel shall be
deemed to be a representation and warranty by the Company or the Operating
Partnership, as the case may be, as to the matters covered thereby.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriters and the Underwriters,
severally and not jointly, agree to purchase from the Company, at a purchase
price per share of $ , the number of Firm Shares set forth opposite the
respective names of the Underwriters in Schedule I hereto plus any additional
number of Shares which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 9 hereof.
(b) Payment of the purchase price for, and delivery of certificates
for, the Shares shall be made at the office of Bear, Xxxxxxx & Co. Inc., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, or at such other place as shall be agreed upon
by you and the Company, at 10:00 A.M. on the third or fourth business day (as
permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in
accordance with the provisions of Section 9 hereof) following the date of the
effectiveness of the Registration Statement (or, if the Company has elected to
rely upon Rule 430A of the Regulations, the third or fourth business day (as
permitted under Rule 15c6-1 under the Exchange Act) after the determination of
the public offering price of the Shares), or such other time not later than ten
business days after such date as shall be agreed upon by you and the Company
(such time and date of payment and delivery being herein called the "Closing
Date"). Payment shall be made to the Company by wire transfer in same day funds,
against delivery to you for the respective accounts of the Underwriters of
certificates for the Shares to be purchased by them. Certificates for the Shares
shall be registered in such name or names and in such authorized denominations
as you may request in writing at least 48 hours prior to the Closing Date. The
Company will permit you to examine and package such certificates for delivery at
least 24 hours prior to the Closing Date.
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(c) In addition, the Company hereby grants to the Underwriters the
option to purchase up to 525,000 Additional Shares at the same purchase price
per share to be paid by the Underwriters to the Company for the Firm Shares as
set forth in this Section 2, for the sole purpose of covering over-allotments in
the sale of Firm Shares by the Underwriters. This option may be exercised at any
time, in whole or in part, on or before the thirtieth day following the date of
the Prospectus, by written notice by you to the Company. Such notice shall set
forth the aggregate number of Additional Shares as to which the option is being
exercised and the date and time, as reasonably determined by you, when the
Additional Shares are to be delivered (such date and time being herein sometimes
referred to as the "Additional Closing Date"); provided, however, that the
Additional Closing Date shall not be earlier than the Closing Date or earlier
than the second full business day after the date on which the option shall have
been exercised nor later than the eighth full business day after the date on
which the option shall have been exercised (unless such time and date are
postponed in accordance with the provisions of Section 9 hereof). Certificates
for the Additional Shares shall be registered in such name or names and in such
authorized denominations as you may request in writing at least 48 hours prior
to the Additional Closing Date. The Company will permit you to examine and
package such certificates for delivery at least 24 hours prior to the Additional
Closing Date.
The number of Additional Shares to be sold to each Underwriter shall
be the number which bears the same ratio to the aggregate number of Additional
Shares being purchased as the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule I hereto (or such number increased as set forth
in Section 9 hereof) bears to the total number of Firm Shares being purchased
from the Company, subject, however, to such adjustments to eliminate any
fractional shares as you in your sole discretion shall make.
Payment for the Additional Shares shall be made by wire transfer in
same day funds at the office Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, or such other location as may be mutually acceptable, upon
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delivery of the certificates for the Additional Shares to you for the respective
accounts of the Underwriters.
3. Offering. Upon your authorization of the release of the Firm Shares,
the Underwriters propose to offer the Shares for sale to the public upon the
terms set forth in the Prospectus.
4. Covenants of the Company and the Operating Partnership. The Company
and the Operating Partnership jointly and severally covenant and agree with the
Underwriters that:
(a) If the Registration Statement has not yet been declared
effective, the Company will use its best efforts to cause the Registration
Statement and any amendments thereto to become effective as promptly as
possible, and if Rule 430A is used or the filing of the Prospectus is otherwise
required under Rule 424(b) or Rule 434, the Company will file the Prospectus
(properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule
434 within the prescribed time period and will provide evidence satisfactory to
you of such timely filing. If the Company elects to rely upon Rule 434, and
obtains the Representatives' consent thereto, the Company agrees that it will
comply with the requirements of Rule 434.
The Company will notify you immediately (and, if requested by you,
will confirm such notice in writing) (i) when the Registration Statement and any
amendments thereto become effective, (ii) of any request by the Commission for
any amendment of or supplement to the Registration Statement or the Prospectus
or for any additional information, (iii) of the mailing or the delivery to the
Commission for filing of any amendment of or supplement to the Registration
Statement or the Prospectus, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto or of the initiation, or the threatening, of
any proceedings therefor, (v) of the receipt of any comments from the
Commission, and (vi) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for that
purpose. If the Commission shall propose or enter a stop order at any time, the
Company will make every reasonable effort to prevent the issuance of any such
stop
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order and, if issued, to obtain the lifting of such order as soon as possible.
The Company will not file any amendment to the Registration Statement or any
amendment of or supplement to the Prospectus (including the prospectus required
to be filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus
on file at the time of the effectiveness of the Registration Statement before or
after the effective date of the Registration to which you shall reasonably
object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is
required to be delivered under the Act any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would, in the judgment
of the Underwriters or the Company include an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary at any
time to amend or supplement the Prospectus or Registration Statement to comply
with the Act or the Regulations, the Company will notify you promptly and
prepare and file with the Commission an appropriate amendment or supplement (in
form and substance satisfactory to you) which will correct such statement or
omission and will use its best efforts to have any amendment to the Registration
Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you three signed copies of
the Registration Statement, including exhibits and all amendments thereto, and
the Company will promptly deliver to each of the Underwriters such number of
copies of any preliminary prospectus, the Prospectus, the Registration
Statement, and all amendments of and supplements to such documents, if any, as
you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with
you, at or prior to the time of effectiveness of the Registration Statement, to
qualify the Shares for offering and sale under the securities laws relating to
the offering or sale of the Shares of such jurisdictions as you may designate
and to maintain such qualification in effect for so long as required for the
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distribution thereof; except that in no event shall the Company be obligated in
connection therewith to qualify as a foreign corporation or to execute a general
consent to service of process.
(e) The Company will make generally available (within the meaning of
Section 11(a) of the Act) to its security holders and to you as soon as
practicable, but not later than 45 days after the end of its fiscal quarter in
which the first anniversary date of the effective date of the Registration
Statement occurs (or if such fiscal quarter is the Company's fourth fiscal
quarter, not later than 90 days after the end of such quarter), an earning
statement (in form complying with the provisions of Rule 158 of the Regulations)
covering a period of at least twelve consecutive months beginning after the
effective date of the Registration Statement.
(f) During the period of 120 days from the date of the Prospectus,
the Company and the Operating Partnership will not, directly or indirectly
without your prior written consent, issue, sell, offer or agree to sell, grant
any option to purchase, or otherwise dispose (or announce any offer, sale, grant
of an option to purchase or other disposition) of, any shares of Common Stock
(or any securities convertible into, exchangeable or exercisable for shares of
Common Stock), other than (i) the Company's sale of Shares hereunder and the
Company's issuance of Common Stock upon the exercise of presently outstanding
stock options, (ii) the exchange of outstanding units in the Operating
Partnership for Common Stock, (iii) the issuance, in connection with bona fide
acquisitions of real property or interests therein, of shares of Common Stock or
units in the Operating Partnership such that the aggregate number of shares of
Common Stock issued, or which may be issued upon conversion or exchange of such
units, will not exceed 2,500,000 (the "Permitted Securities"), provided,
however, that as a precondition to any such issuance, the Company or the
Operating Partnership, as the case may be, shall (i) obtain the undertaking of
the holder or holders of the first 1,700,000 shares or units of Permitted
Securities issued that they will not engage in any of the aforementioined
transactions during the period of 120 days from the date of the Prospectus and
place on the face of any such Permitted Security a legend to that effect and
(ii)
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obtain the undertaking of the holder or holders of the remaining 800,000 shares
or units of Permitted Securities issued that they will not engage in any of the
aforementioined transactions during the period of 90 days from the date of the
Prospectus and place on the face of any such Permitted Security a legend to that
effect.
(g) The Company will obtain the undertaking of each of its officers
and directors and such of its stockholders as have been heretofore designated by
you and listed on Schedule II attached hereto that, during the period of 180
days from the date of the Prospectus, each of them will not, directly or
indirectly, without your prior written consent, issue, sell, offer or agree to
sell, grant any option to purchase, or otherwise dispose (or announce any offer,
sale, grant of an option to purchase or other disposition) of, any shares of
Common Stock (or any securities convertible into, exercisable for or
exchangeable for shares of Common Stock).
(h) During a period of three years from the effective date of the
Registration Statement, the Company will furnish to you copies of (i) all
reports to its stockholders; and (ii) all reports, financial statements and
proxy or information statements filed by the Company with the Commission or any
national securities exchange.
(i) The Company will apply the proceeds from the sale of the Shares
as set forth under "Use of Proceeds" in the Prospectus.
(j) If the Company elects to rely upon Rule 462(b), the Company
shall file the 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing, either pay to the
Commission the filing fee for the Rule 422(b) Registration Statement give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act.
5. Payment of Expenses. Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of the
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obligations of the Company hereunder, including those in connection with (i)
preparing, printing, duplicating, filing and distributing the Registration
Statement, as originally filed and all amendments thereof (including all
exhibits thereto), any preliminary prospectus, the Prospectus and any amendments
or supplements thereto (including, without limitation, fees and expenses of the
Company's accountants and counsel), the underwriting documents (including this
Agreement, the Agreement Among Underwriters and the Selling Agreement) and all
other documents related to the public offering of the Shares (including those
supplied to the Underwriters in quantities as hereinabove stated), (ii) the
issuance, transfer and delivery of the Shares to the Underwriters, including any
transfer or other taxes payable thereon, (iii) the qualification of the Shares
under state or foreign securities or Blue Sky laws, including the costs of
printing and mailing a preliminary and final "Blue Sky Memorandum" and the fees
of counsel for the Underwriters and such counsel's disbursements in relation
thereto, (iv) listing the Shares on the NYSE, (v) filing fees of the Commission
and the National Association of Securities Dealers, Inc.(the "NASD"), (vi) the
cost of printing certificates representing the Shares and (vii) the cost and
charges of any transfer agent or registrar; provided, however, except as
provided for in Section 11, that the Company shall have no obligation to
reimburse the Underwriters or the Representatives for (a) fees, disbursements
and out-of-pocket expenses of counsel for the Underwriters or the
Representatives other than pursuant to clause (iii) above or (b) expenses in
connection with the offering that are customarily borne by the representatives
in public offerings of securities of real estate investment trusts.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject to the accuracy of the representations and
warranties of the Company and the Operating Partnership herein contained, as of
the date hereof and as of the Closing Date (for purposes of this Section 6
"Closing Date" shall refer to the Closing Date for the Firm Shares and any
Additional Closing Date, if different, for the Additional Shares), to the
absence from any certificates, opinions, written statements or letters furnished
to you or to Xxxxxx & Xxxxxxx ("Underwriters' Counsel") pursuant to this Section
6 of any misstatement or omission, to the performance by the Company and the
Operating Partnership of their respective
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obligations hereunder, and to the following additional conditions:
(a) The Registration Statement shall have become effective and all
necessary stock exchange approval has been received not later than 5:30 P.M.,
New York time, on the date of this Agreement, or at such later time and date as
shall have been consented to in writing by you; if the Company shall have
elected to rely upon Rule 430A or Rule 434 of the Regulations, the Prospectus
shall have been filed with the Commission in a timely fashion in accordance with
Section 4(a) hereof; and, at or prior to the Closing Date no stop order
suspending the effectiveness of the Registration Statement or any post-effective
amendment thereof shall have been issued and no proceedings therefor shall have
been initiated or threatened by the Commission.
(b) At the Closing Date you shall have received the opinion of
Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company and the Operating Partnership,
dated the Closing Date addressed to the Underwriters and in form and substance
satisfactory to Underwriters' Counsel, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Maryland.
(ii) The Company is duly qualified and in good standing as a
foreign corporation in each jurisdiction in which the character or location
of its properties (owned, leased or licensed) or the nature or conduct of
its business makes such qualification necessary, except for those failures
to be so qualified or in good standing which will not in the aggregate have
a material adverse effect on the Company, the Operating Partnership and
their respective subsidiaries, taken as a whole.
(iii) The Company has all requisite corporate power and
authority to own, lease and operate its properties and conduct its business
as now being conducted and as described in the Registration Statement and
the Prospectus.
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(iv) The Operating Partnership has been duly formed under the
laws of the State of California, with a stated term beyond the term of the
documents being executed in connection with the transactions contemplated
hereby; the partnership agreement of the Operating Partnership has been duly
authorized, executed and delivered by each partner thereto and is valid,
legally binding and enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and by the effect
of general principles of equity; and all of the partnership interests in the
Operating Partnership have been duly and validly authorized and issued and
(except as described in the Prospectus) are owned directly or indirectly by
the Company free and clear of all liens, encumbrances, equities or claims.
All issued and outstanding securities of the Operating Partnership have been
duly and validly authorized and issued in compliance with the federal and
state securities laws. The units of the Operating Partnership to be issued
in connection with the acquisitions described in the Prospectus under the
caption "Recent Activities" will be duly and validly issued in compliance
with the federal and state securities laws when issued in the manner
described in the Prospectus.
(v) The Operating Partnership has been duly qualified as a
foreign limited partnership and is in good standing in each jurisdiction in
which the character or location of its properties (owned, leased or
licensed) or the nature or conduct of its business makes such qualification
necessary, except for those failures to be so qualified or in good standing
which will not in the aggregate have a material adverse effect on the
Company, the Operating Partnership their respective subsidiaries, taken as a
whole.
(vi) The Operating Partnership has all requisite power and
authority to own, lease and operate its properties and conduct its business
as now being conducted and as described in the Registration Statement and
the Prospectus.
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(vii) Each subsidiary of the Company or the Operating
Partnership that is a "significant subsidiary" (as such term is defined in
Rule 1-02 of Regulation S-X of the Commission) (collectively, the "Material
Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation.
(viii) Each Material Subsidiary is duly qualified and in good
standing as a foreign corporation in each jurisdiction in which the
character or location of its properties (owned, leased or licensed) or the
nature or conduct of its business makes such qualification necessary, except
for those failures to be so qualified or in good standing which will not in
the aggregate have a material adverse effect on the Company, the Operating
Partnership and their respective subsidiaries taken as a whole.
(ix) Each Material Subsidiary has all requisite power and
authority to own, lease and operate its properties and conduct its business
as now being conducted and as described in the Registration Statement and
the Prospectus.
(x) All of the capital stock or partnership units in each
Material Subsidiary has been duly and validly authorized and issued and
(except as described in the Prospectus) is owned directly or indirectly by
the Company or the Operating Partnership, as the case may be, free and clear
of all liens, encumbrances, equities or claims.
(xi) The Company has an authorized capital stock as set forth in
the Registration Statement and the Prospectus. All of the outstanding shares
of Common Stock are duly and validly authorized and issued, are fully paid
and nonassessable. The Shares to be delivered on the Closing Date have been
duly and validly authorized and, when delivered by the Company in accordance
with this Agreement, will be duly and validly issued, fully paid and
nonassessable and will not have been issued in violation of or subject to
any preemptive rights. The Common Stock, the Firm Shares and the Additional
Shares
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conform to the descriptions thereof contained in the Registration Statement
and the Prospectus.
(xii) The Common Stock currently outstanding is listed, and the
Shares to be sold under this Agreement to the Underwriters are duly
authorized for listing, on the NYSE.
(xiii) This Agreement and the transactions contemplated herein
have been duly and validly authorized by the Company and the Operating
Partnership and this Agreement has been duly and validly executed and
delivered by the Company and the Operating Partnership.
(xiv) To the best knowledge of such counsel and except as
described in the Prospectus, there is no litigation or governmental
proceeding to which the Company, the Operating Partnership or any of the
Material Subsidiaries is a party or to which any property of the Company,
the Operating Partnership or any of the Material Subsidiaries is subject or
which is pending or contemplated against the Company, the Operating
Partnership or any of the Material Subsidiaries which might result in any
material adverse change or any development involving a material adverse
change in the business, business prospects, properties, operations,
condition (financial or other) or results of operations of the Company, the
Operating Partnership and their respective subsidiaries taken as a whole,
which might materially and adversely affect the transactions contemplated by
this Agreement or which is required to be disclosed in the Registration
Statement and the Prospectus. The descriptions of litigation matters in the
Prospectus under the captions "Risk Factors -- Other Risks -- Litigation
Related to Consolidation", "Risk Factors -- Other Risks -- Chapter 11
Reorganization of Partnership Consolidation by Senior Management" and
"Business and Properties -- Legal Proceedings" are complete and accurate, in
all material respects.
(xv) The execution, delivery, and performance of this Agreement
and the consummation of the transactions contemplated hereby do not and will
not (A) conflict with or result in a breach of any of the terms and
provisions of, or constitute a default (or an event
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which with notice or lapse of time, or both, would constitute a default)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company, the Operating
Partnership or any of the Material Subsidiaries pursuant to, any agreement,
instrument, franchise, license or permit known to such counsel to which the
Company, the Operating Partnership or any of the Material Subsidiaries is a
party or by which any of such entities or their respective properties or
assets may be bound that is material to the Company, the Operating
Partnership and their subsidiaries, taken as a whole (collectively, the
"Material Contracts") or (B) violate or conflict with any provision of the
partnership agreement of the Operating Partnership, the certificate of
incorporation or by-laws of the Company or any of the Material Subsidiaries,
or, to the best knowledge of such counsel, any judgment, decree, order,
statute, rule or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over the Company, the
Operating Partnership or any of the Material Subsidiaries or any of their
respective properties or assets, except for those violations or conflicts
that would not have a material adverse effect on the Company, the Operating
Partnership and their subsidiaries, taken as a whole. To such counsel's
knowledge, no consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body having jurisdiction over the
Company, the Operating Partnership or any of the Material Subsidiaries or
any of their respective properties or assets is required for the execution,
delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby, except for (A) such as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters (as to which such counsel
need express no opinion) and (B) such as have been made or obtained under
the Act or the rules of the NYSE.
(xvi) The Registration Statement and the Prospectus and any
amendments thereof or supplements thereto (other than the financial
statements and schedules and other financial data included therein, as to
which no opinion need be rendered) comply as to form
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in all material respects with the requirements of the Act and the
Regulations.
(xvii) The Registration Statement, including any Rule 462(b)
Registration Statement, is effective under the Act, and, to the best
knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereof or the Rule
462(b) Registration Statement has been issued and no proceedings therefor
have been initiated or threatened by the Commission. Any required filing of
the Prospectus and any supplement thereto pursuant to Rule 424(b) under the
Regulations has been made in the manner and within the time period required
by such Rule 424(b).
(xviii) To the best knowledge of such counsel and except as
described in the Prospectus, no holder of securities of the Company or the
Operating Partnership has any rights to the registration of securities of
the Company or securities of the Operating Partnership that are convertible,
exchangeable or exercisable for securities of the Company because of the
filing of the Registration Statement or otherwise in connection with the
sale of the Shares contemplated hereby
(xix) To the best knowledge of such counsel, there are no
business relationships or related party transactions of the nature described
in Item 404 of Regulation S-K of the Commission involving the Company or the
Operating Partnership, except as disclosed in the Prospectus or except for
such transactions that would be considered immaterial under such Item. To
the best knowledge of such counsel, the descriptions under the caption
"Certain Relationships and Related Transactions" (except for the financial
or numerical data included therein, as to which counsel need not render an
opinion) are accurate in all material respects.
(xx) The Company is organized in conformity with the
requirements for qualification as a REIT and its method of operation will
enable it to continue to meet the requirements for qualification and
taxation as a REIT under the Code.
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(xxi) The Operating Partnership is properly treated (A) as a
partnership for federal income tax purposes and (B) not as an association or
publicly traded partnership taxable as a corporation.
(xxii) Neither the Company, the Operating Partnership nor any
Material Subsidiary is, or, after giving effect to the issue and sale of the
Shares by the Company will be, an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940.
(xxiii) The statements (i) in the Prospectus under the captions
"Risk Factors -- Certain Tax Risks", "Certain Provisions of Maryland Law and
the Company's Organizational Documents", "Federal Income Tax Considerations"
and (ii) in Item 33 of the Registration Statement, insofar as such
statements constitute matters of law, summaries of legal matters, the
Company's charter or by-law provisions, legal documents or legal
proceedings, or legal conclusions, has been reviewed by such counsel and
fairly present and summarize, in all material respects, the matters referred
to therein.
(xxiv) In addition, such opinion shall also contain a statement
that such counsel has participated in conferences with officers and
representatives of the Company and the Operating Partnership,
representatives of the independent public accountants for the Company and
the Operating Partnership and the Underwriters at which the contents of the
Registration Statement and the Prospectus and related matters were discussed
and, although they are not passing upon, and do not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or Prospectus, and they have not
made any independent check or verification thereof, on the basis of the
foregoing, no facts have come to the attention of such counsel which would
lead such counsel to believe that either the Registration Statement at the
time it became effective (including the information deemed to be part of the
Registration Statement, as amended (except for financial statements and
schedules and other financial statistical data included therein, as to which
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such counsel need make no statement) at the time of effectiveness pursuant
to Rule 430A(b) or Rule 434, if applicable), or any subsequent amendment
thereof made prior to the Closing Date as of the date of such amendment,
contained an 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 or that the Prospectus (except for
financial statements and schedules and other financial or statistical data
included therein, as to which counsel need make no statement) as of its date
(or any subsequent amendment thereof or subsequent supplement thereto made
prior to the Closing Date as of the date of such amendment or supplement)
and as of the Closing Date contained or contains an untrue statement of a
material fact or omitted or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading (it being
understood that such counsel need express no belief or opinion with respect
to the financial statements and schedules and other financial data included
therein).
In rendering such opinion, such counsel may rely as to matters involving the
application of laws other than the laws of the United States, California and
any other jurisdictions in which they are admitted, to the extent such
counsel deems proper and to the extent specified in such opinion, if at all,
upon an opinion or opinions (in form and substance reasonably satisfactory
to Underwriters' Counsel) of other counsel reasonably acceptable to
Underwriters' Counsel, familiar with the applicable laws; provided, that
such opinion shall expressly state that the Underwriters may rely on such
opinion as if it were addressed to them. In rendering such opinion, such
counsel may rely as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and the Operating
Partnership and certificates or other written statements of officers of
departments of various jurisdictions having custody of documents respecting
the existence or good standing of the Company, the Operating Partnership and
their respective subsidiaries, provided that copies of any such statements
or certificates shall be delivered to Underwriters' Counsel and such opinion
shall state
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that such counsel and the Underwriters are justified in so relying upon any
such certificate. The opinion of such counsel for the Company shall state
that the opinion of any such other counsel is in form satisfactory to such
counsel and, in their opinion, you and they are justified in relying
thereon.
All proceedings taken in connection with the sale of the Firm Shares and the
Additional Shares as herein contemplated shall be satisfactory in form and
substance to you and to Underwriters' Counsel, and the Underwriters shall
have received from said Underwriters' Counsel a favorable opinion, dated as
of the Closing Date with respect to the issuance and sale of the Shares, the
Registration Statement and the Prospectus and such other related matters as
you may reasonably require, and the Company shall have furnished to
Underwriters' Counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(c) At the Closing Date you shall have received a certificate of the
Chief Executive Officer and Chief Financial Officer of the Company on behalf of
the Company and as the sole general partner of the Operating Partnership, dated
the Closing Date to the effect that (i) the condition set forth in subsection
(a) of this Section 6 has been satisfied, (ii) as of the date hereof and as of
the Closing Date the representations and warranties of the Company and the
Operating Partnership set forth in Section 1 hereof are accurate, (iii) as of
the Closing Date the obligations of the Company and the Operating Partnership to
be performed hereunder on or prior thereto have been duly performed and (iv)
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, the Company, the Operating
Partnership and their respective subsidiaries have not sustained any material
loss or interference with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental proceeding,
and there has not been any material adverse change, or any development involving
a material adverse change, in the business prospects, properties, operations,
condition (financial or otherwise), or results of operations of the Company, the
Operating Partnership and their respective subsidiaries taken as a
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whole, except in each case as described in or contemplated by the Prospectus.
(d) At the time this Agreement is executed and at the Closing Date,
you shall have received a letter, from Xxxxxx Xxxxxxxx LLP, independent public
accountants for the Company, dated, respectively, as of the date of this
Agreement and as of the Closing Date addressed to the Underwriters and in form
and substance satisfactory to you, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to financial statements and certain information of the Company and its
subsidiaries contained in the Registration Statement and the Prospectus.
(e) Prior to the Closing Date the Company and the Operating
Partnership shall have furnished to you such further information, certificates
and documents as you may reasonably request.
(f) You shall have received from each person who is a director or
officer of the Company or such stockholder as have been heretofore designated by
you and listed on Schedule II hereto an agreement to the effect that such person
will not, directly or indirectly, without your prior written consent, issue,
sell, offer or agree to sell, grant any option to purchase, or otherwise dispose
(or announce any offer, sale, grant of an option to purchase or other
disposition) of, any shares of Common Stock (or any securities convertible into,
exchangeable or exercisable for shares of Common Stock) for a period of 180 days
after the date of the Prospectus
(g) At the Closing Date, the Shares shall have been approved for
listing on the NYSE.
(h) At the Closing Date, you shall have received the opinion of
Xxxxx X. Xxxxxx, General Counsel of the Company, dated the Closing Date
addressed to the Underwriters and in form and substance satisfactory to
Underwriters' Counsel, to the effect that:
(i) "Risk Factors -- Risks Associated with Acquisitions --
Pending Acquisitions May Not Be Completed", "Risk Factors -- Risks
Associated with
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Acquisitions -- Assumption of General Partner Liabilities", "Risk Factors --
Risks Relating to Real Estate -- Management, Leasing and Brokerage Risks;
Lack of Control of Associated Companies", "Risk Factors -- Risks Relating to
Real Estate -- Environmental Matters", "Risk Factors -- Risks Relating to
Real Estate -- Potential Liability Under the Americans with Disabilities
Act", "Risk Factors -- Limitation on Ownership of Common Stock May Preclude
Acquisition of Control", "Formation of the Company", "Recent Activities",
"Distribution Policy", "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Liquidity and Capital Resources",
"Business and Properties -- Growth Opportunities", "Business and Properties
-- Properties", "Business and Properties -- Management Business", "Business
and Properties -- The Associated Companies", "Business and Properties --
Debt Limit", "Business and Properties -- Debt", "Business and Properties --
Environmental Matters", "Business and Properties -- Subsidiaries", "Certain
Relationships and Related Transactions", "Management - Employment
Agreements", "Management -- 1996 Employee Stock Incentive Plan", "Management
-- 0ther Compensation Plans", "Management - 401(k) Plan", "Management -
Indemnification and Limitation of Liability", "Securities Ownership of
Certain Beneficial Owners and Management", "Description of Capital Stock",
"Restriction on Ownership and Transfer of Common Stock", and "Underwriting"
and (ii) in Item 32 of the Registration Statement, insofar as such
statements constitute matters of law, summaries of legal matters, the
Company's charter or by-law provisions, legal documents or legal
proceedings, or legal conclusions, has been reviewed by such counsel and
fairly present and summarize, in all material respects, the matters referred
to therein.
(ii) In addition, such opinion shall also contain a statement
that such counsel has participated in conferences with officers and
representatives of the Company and the Operating Partnership,
representatives of the independent public accountants for the Company and
the Operating Partnership and the Underwriters at which the contents of the
Registration Statement and the Prospectus and related matters were discussed
and, no facts have come to the attention of such counsel which would lead
such counsel to believe that either the
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Registration Statement at the time it became effective (including the
information deemed to be part of the Registration Statement, as amended
(except for financial statements and schedules and other financial
statistical data included therein, as to which such counsel need make no
statement) at the time of effectiveness pursuant to Rule 430A(b) or Rule
434, if applicable), or any subsequent amendment thereof made prior to the
Closing Date as of the date of such amendment, contained an 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 or
that the Prospectus (except for financial statements and schedules and other
financial or statistical data included therein, as to which counsel need
make no statement) as of its date (or any subsequent amendment thereof or
subsequent supplement thereto made prior to the Closing Date as of the date
of such amendment or supplement) and as of the Closing Date contained or
contains an untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
belief or opinion with respect to the financial statements and schedules and
other financial data included therein).
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 6 shall not be in all material
respects reasonably satisfactory in form and substance to you and to
Underwriters' Counsel, all obligations of the Underwriters hereunder may be
canceled by you at, or at any time prior to, the Closing Date and the
obligations of the Underwriters to purchase the Additional Shares may be
canceled by you at, or at any time prior to, the Additional Closing Date. Notice
of such cancellation shall be given to the Company in writing, or by telephone,
telex or telegraph, confirmed in writing.
7. Indemnification.
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(a) The Company and the Operating Partnership, jointly and
severally, agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act against any and all losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement relating to the
Shares, as originally filed or any amendment thereof, or any related preliminary
prospectus or the Prospectus, or in any supplement thereto or amendment thereof,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that neither the Company
nor the Operating Partnership will be liable in any such case (i) to the extent
but only to the extent that any such loss, liability, claim, damage or expense
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company or the Operating
Partnership by or on behalf of any Underwriter through you expressly for use
therein and (ii) with respect to any preliminary prospectus to the extent that
any such loss, claim, damage or liability results from the fact that an
Underwriter sold Shares to a person as to whom there was not sent or given, at
or prior to written confirmation of such sale, a copy of the Prospectus as then
amended or supplemented in any case where such delivery is required by the Act
if the Company has previously furnished copies thereof to such Underwriter and
the loss, claim, damage or liability of the Underwriters results from an untrue
statement or omission of a material fact contained in the preliminary prospectus
which was corrected in the Prospectus as then amended. This indemnity agreement
will be in addition
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to any liability which the Company and the Operating Partnership may otherwise
have including under this Agreement.
(b) Each Underwriter severally, and not jointly, agrees to indemnify
and hold harmless the Company, each of the directors of the Company, each of the
officers of the Company who shall have signed the Registration Statement, the
Operating Partnership and each other person, if any, who controls the Company or
the Operating Partnership within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, against any losses, liabilities, claims, damages and
expenses whatsoever as incurred (including but not limited to attorneys' fees
and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement relating to the Shares, as
originally filed or any amendment thereof, or any related preliminary prospectus
or the Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
any such loss, liability, claim, damage or expense arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company or the Operating Partnership by or on
behalf of any Underwriter through you expressly for use therein; provided,
however, that in no case shall any Underwriter be liable or responsible for any
amount in excess of the underwriting discount applicable to the Shares purchased
by such Underwriter hereunder. This indemnity will be in addition to any
liability which any Underwriter may otherwise have including under this
Agreement. The Company and the Operating Partnership acknowledge that the
statements set forth in the last paragraph of the cover page, the stabilization
language on page 2 and the statements set forth in the [second and third]
paragraphs under the caption
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"Underwriting" in the Prospectus constitute the only information furnished in
writing by or on behalf of any Underwriter expressly for use in the registration
statement relating to the Shares, as originally filed or in any amendment
thereof, any related preliminary prospectus or the Prospectus or in any
amendment thereof or supplement thereto, as the case may be.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7, except to the extent that it
has been prejudiced in any material respect by such failure or from any
liability that it may have otherwise). In case any such action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties. Anything in
this subsection to the contrary notwithstanding, an indemnifying
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party shall not be liable for any settlement of any claim or action effected
without its written consent; provided, however, that such consent was not
unreasonably withheld.
8. Contribution. In order to provide for contribution in circumstances
in which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company, the Operating Partnership
and the Underwriters shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Company or the
Operating Partnership any contribution received by the Company or the Operating
Partnership from persons, other than the Underwriters, who may also be liable
for contribution, including persons who control the Company or the Operating
Partnership within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, officers of the Company who signed the Registration Statement and
directors of the Company) as incurred to which the Company, the Operating
Partnership and one or more of the Underwriters may be subject, in such
proportions as is appropriate to reflect the relative benefits received by the
Company, the Operating Partnership and the Underwriters from the offering of the
Shares or, if such allocation is not permitted by applicable law or
indemnification is not available as a result of the indemnifying party not
having received notice as provided in Section 7 hereof, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company, the Operating Partnership and the
Underwriters in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Operating Partnership on the one hand and the Underwriters on the other
hand shall be deemed to be in the same proportion as (x) the total proceeds from
the offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and (y) the underwriting discounts and
commissions received by the Underwriters, respectively, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault of
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the Company, the Operating Partnership, and the Underwriters 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, the Operating
Partnership, or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Operating Partnership and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above. Notwithstanding
the provisions of this Section 8, (i) in no case shall any Underwriter be liable
or responsible for any amount in excess of the underwriting discount applicable
to the Shares purchased by such Underwriter hereunder, and (ii) 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. Notwithstanding the provisions of this Section 8
and the preceding sentence, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Company or the Operating
Partnership within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company or the Operating Partnership, as the case may be,
subject in each case to clauses (i) and (ii) of this Section 8. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties, notify each party
or parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
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contribution may be sought from any obligation it or they may have under this
Section 8 or otherwise. No party shall be liable for contribution with respect
to any action or claim settled without its consent; provided, however, that such
consent was not unreasonably withheld.
9. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or their
obligation to purchase Firm Shares or Additional Shares hereunder, and if the
Firm Shares or Additional Shares with respect to which such default relates do
not (after giving effect to arrangements, if any, made by you pursuant to
subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares
or Additional Shares, the Firm Shares or Additional Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase shall be
purchased by the non-defaulting Underwriters in proportion to the respective
proportions which the numbers of Firm Shares set forth opposite their respective
names in Schedule I hereto bear to the aggregate number of Firm Shares set forth
opposite the names of the non-defaulting Underwriters.
(b) In the event that such default relates to more than 10% of the
Firm Shares or Additional Shares, as the case may be, you may in your discretion
arrange for yourself or for another party or parties (including any
non-defaulting Underwriter or Underwriters who so agree) to purchase such Firm
Shares or Additional Shares, as the case may be, to which such default relates
on the terms contained herein. In the event that within 5 calendar days after
such a default you do not arrange for the purchase of the Firm Shares or
Additional Shares, as the case may be, to which such default relates as provided
in this Section 9, this Agreement, or in the case of a default with respect to
the Additional Shares, the obligations of the Underwriters to purchase and of
the Company to sell the Additional Shares, shall thereupon terminate, without
liability on the part of the Company with respect thereto (except in each case
as provided in Section 5, 7(a) and 8 hereof) or the Underwriters, but nothing in
this Agreement shall relieve a defaulting Underwriter or Underwriters of its or
their liability, if any, to the other Underwriters and the Company for damages
occasioned by its or their default hereunder.
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(c) In the event that the Firm Shares or Additional Shares to which
the default relates are to be purchased by the non-defaulting Underwriters, or
are to be purchased by another party or parties as aforesaid, you or the Company
shall have the right to postpone the Closing Date or Additional Closing Date, as
the case may be for a period, not exceeding five business days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus or in any other documents and arrangements, and the
Company agrees to file promptly any amendment or supplement to the Registration
Statement or the Prospectus which, in the opinion of Underwriters' Counsel, may
thereby be made necessary or advisable. The term "Underwriter" as used in this
Agreement shall include any party substituted under this Section 9 with like
effect as if it had originally been a party to this Agreement with respect to
such Firm Shares or Additional Shares.
10. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Underwriters, the Company and the
Operating Partnership contained in this Agreement, including the agreements
contained in Section 5, the indemnity agreements contained in Section 7 and the
contribution agreements contained in Section 8, shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or any controlling person thereof or by or on behalf of the
Company, any of its officers and directors, the Operating Partnership or any
controlling person of the Company or the Operating Partnership, and shall
survive delivery of and payment for the Shares to and by the Underwriters. The
representations contained in Section 1 and the agreements contained in Sections
5, 7, 8 and 11(d) hereof shall survive the termination of this Agreement,
including termination pursuant to Section 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective, upon the later of when
(i) you and the Company shall have received notification of the effectiveness of
the Registration Statement or (ii) the execution of this Agreement. If either
the initial public offering price or the purchase price per Share has not been
agreed upon prior to 5:00 P.M., New York time, on the fifth full business day
after the Registration
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Statement shall have become effective, this Agreement shall thereupon terminate
without liability to the Company, the Operating Partnership or the Underwriters
except as herein expressly provided. Until this Agreement becomes effective as
aforesaid, it may be terminated by the Company by notifying you or by you
notifying the Company without any liability of any party to any party hereunder.
Notwithstanding the foregoing, the provisions of this Section 11 and of Sections
1, 5, 7 and 8 hereof shall at all times be in full force and effect.
(b) You shall have the right to terminate this Agreement at any
time prior to the Closing Date or the obligations of the Underwriters to
purchase the Additional Shares at any time prior to the Additional Closing Date,
as the case may be, if (A) any domestic or international event or act or
occurrence has materially disrupted, or in your opinion will in the immediate
future materially disrupt, the market for the Company's securities or securities
in general; or (B) if trading on the NYSE or the American Stock Exchange shall
have been suspended, or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been required, on
the NYSE or the American Stock Exchange by such exchanges or by order of the
Commission or any other governmental authority having jurisdiction; or (C) if a
banking moratorium has been declared by a state or federal authority or if any
new restriction materially adversely affecting the distribution of the Firm
Shares or the Additional Shares, as the case may be, shall have become
effective; or (D) there shall have occurred any Material Adverse Change with
respect to the Company, the Operating Partnership and their respective
subsidiaries taken as a whole; or (E) (i) if the United States becomes engaged
in hostilities or there is an escalation of hostilities involving the United
States or there is a declaration of a national emergency or war by the United
States or (ii) if there shall have been such change in political, financial or
economic conditions if the effect of any such event in (i) or (ii) as in your
judgment makes it impracticable or inadvisable to proceed with the offering,
sale and delivery of the Firm Shares or the Additional Shares, as the case may
be, on the terms contemplated by the Prospectus.
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(c) Any notice of termination pursuant to this Section 11 shall be
by telephone, telex, or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 11(a) hereof or (ii) Section 9(b) or 11(b) hereof), or if
the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof, the
Company will, subject to demand by you, reimburse the Underwriters for all
out-of-pocket expenses (including the fees and expenses of their counsel),
incurred by the Underwriters in connection herewith.
12. Notices. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and , if sent to any
Underwriter, shall be mailed, delivered, or telexed or telegraphed and confirmed
in writing, to such Underwriter c/o Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx,
Xxx Xxxx, X.X. 00000, Attention: Xxxxx Xxxxxx; if sent to the Company, shall be
mailed, delivered, or telegraphed and confirmed in writing to the Company, 000
Xxxxx Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000-0000, Attention: Xxxxx
Xxxxxx.
13. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Underwriters, the Company, the Operating Partnership
and the controlling persons, directors, officers, employees and agents referred
to in Section 7 and 8, and their respective successors and assigns, and no other
person shall have or be construed to have any legal or equitable right, remedy
or claim under or in respect of or by virtue of this Agreement or any provision
herein contained. The term "successors and assigns" shall not include a
purchaser, in its capacity as such, of Shares from any of the Underwriters.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, but without regard to
principles of conflicts of law.
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If the foregoing correctly sets forth the understanding among you, the
Company and the Operating Partnership, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding
agreement among us.
Very truly yours,
GLENBOROUGH REALTY TRUST INCORPORATED
By________________________________
Name_____________________________
Title____________________________
GLENBOROUGH PROPERTIES, L.P.
By Glenborough Realty Trust Incorporated
Its General Partner
By________________________________
Name_____________________________
Title____________________________
Accepted as of the date first above
written
BEAR, XXXXXXX & CO. INC.
XXXXXXXXX, XXXXXXXX & COMPANY LLC
XXXXXXXXX & COMPANY, INC.
On behalf of themselves and the other
Underwriters named in Schedule I hereto.
BEAR, XXXXXXX & CO. INC.
By ________________________________
Name_____________________________
Title____________________________
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SCHEDULE I
Number of Firm
Name of Underwriter Shares to be Purchased
---------------------------------------------------------------------------
Bear, Xxxxxxx & Co. Inc.
Xxxxxxxxx, Xxxxxxxx & Company LLC
Xxxxxxxxx & Company, Inc.
Total. . . . .__________
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SCHEDULE II
GPA, Ltd.
