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EXHIBIT 1.1
IRVINE APARTMENT COMMUNITIES, L.P.
7% NOTES DUE 2007
Underwriting Agreement
September 25, 1997
X.X. XXXXXX SECURITIES INC.
XXXXXXX, SACHS & CO.
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Irvine Apartment Communities, L.P., a Delaware limited partnership (the
"Partnership"), proposes to issue and sell to the underwriters named in Schedule
II hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under the indenture specified
in Schedule I hereto (the "Indenture") between the Partnership and the Trustee
identified in such Schedule (the "Trustee"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representatives", as used herein, shall each
be deemed to refer to such firm or firms.
The Partnership has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, relating to, among other things, certain debt securities (the "Shelf
Securities") to be issued from time to time by the Partnership. The Partnership
also has filed with, or proposes to file with, the Commission pursuant to Rule
424 under the Securities Act a prospectus supplement specifically relating to
the Securities. The registration statement as amended to the date of this
Agreement
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(including Post-Effective Amendment No. 1 thereto) is hereinafter referred to as
the "Registration Statement" and the related prospectus covering the Shelf
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement specifically relating to the
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus". Any reference in this Agreement to
the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus (a "preliminary prospectus") previously filed with the Commission
pursuant to Rule 424 or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act which were filed under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference therein.
Irvine Apartment Communities, Inc., a Maryland corporation (the
"Company"), owns a general partnership interest in the Partnership and is its
sole managing general partner. The Partnership owns and operates the Properties
(as defined in the Prospectus). The Partnership holds general and limited
partnership interests in a partnership (the "Property Partnership") which owns
one of the Properties. The Company, the Partnership and the Property Partnership
are herein collectively referred to as the "REIT Entities" and all references to
properties and assets of the REIT Entities include, without limitation, the
Properties, unless otherwise noted. For purposes of this Agreement, (i) the
Partnership and each other subsidiary (as defined in Rule 1-02 of Regulation S-X
promulgated by the Commission) of the Company is deemed a "Subsidiary" of the
Company and (ii) the Property Partnership and each other subsidiary (as defined
in Rule 1-02 of Regulation S-X promulgated by the Commission) of the Partnership
is deemed a "Subsidiary" of the Partnership.
The Partnership hereby agrees with the Underwriters as follows:
1. The Partnership agrees to issue and sell the Securities to the
several Underwriters as hereinafter provided, and each Underwriter, on the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Partnership the respective principal amount of Securities set forth
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opposite such Underwriter's name in Schedule II hereto at the purchase price set
forth in Schedule I hereto plus accrued interest, if any, from the date
specified in Schedule I hereto to the date of payment and delivery.
2. The Partnership understands that the several Underwriters intend (i)
to make a public offering of their respective portions of the Securities and
(ii) initially to offer the Securities upon the terms set forth in the
Prospectus.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Partnership to the
Representatives, no later than noon the Business Day (as defined below) prior to
the Closing Date (as defined below), on the date and at the time and place set
forth in Schedule I hereto (or at such other time and place on the same or such
other date, not later than the fifth Business Day (as defined below) thereafter,
as you and the Partnership may agree in writing). As used herein, the term
"Business Day" means any day other than a day on which banks are permitted or
required to be closed in New York City. The time and date of such payment and
delivery with respect to the Securities are referred to herein as the "Closing
Date".
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of the Securities of one or more global notes (the "Global
Note") representing the Securities, with any transfer taxes payable in
connection with the transfer to the Underwriters of the Securities duly paid by
the Company. The Global Note will be made available for inspection by the
Representatives at the office of X.X. Xxxxxx Securities Inc. at the address set
forth above not later than 1:00 P.M., New York City time, on the Business Day
prior to the Closing Date.
4. Each of the Partnership and the Company, jointly and severally,
represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Partnership and/or the Company, threatened by the Commission; the
Registration Statement and Prospectus (as amended or supplemented if
the Partner ship shall have furnished any amendments or supplements
thereto) comply, or will comply, as the case may be, in all material
respects with the Securities Act and the Trust Indenture Act of 1939,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Trust Indenture Act"); and the Registration
Statement and any amendment thereto does not and will not, as of the
applicable effective date, contain
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any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus, as amended or supplemented,
if applicable, as of its date and at the Closing Date, does not and
will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the foregoing representations and warranties
shall not apply to (i) that part of the Registration Statement which
constitutes the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee, and (ii) statements or
omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Partnership and/or the Company in writing
by such Underwriter through the Representatives expressly for use
therein;
(b) the documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Exchange Act, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material
respects to the requirements of the Exchange Act, and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(c) Ernst & Young LLP, who have certified certain financial
statements and supporting schedules of the Partnership and its
Subsidiaries, and Deloitte & Touche LLP, who have certified certain
financial statements of Renaissance Villas, that have been included or
incorporated by reference in the Registration Statement and the
Prospectus are each independent public accountants as required by the
Securities Act;
(d) the historical financial statements of the Partnership,
and the related notes thereto, included or incorporated by reference in
the Registration Statement and the Prospectus present fairly the
consolidated financial position of the Partnership and its Subsidiaries
taken as a whole as of the dates indicated and the results of
operations and the changes in their consolidated cash flows for the
periods specified; except as otherwise stated in the Registration
Statement and the Prospectus, said financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a
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consistent basis and comply with the applicable accounting requirements
of the Securities Act (including, without limitation, Rule 3-14 and
Rule 3-15 of Regulation S-X promulgated by the Commission), and all
adjustments necessary for a fair presentation of the results for such
periods have been made; the supporting schedules included or incorpo-
rated by reference in the Registration Statement and the Prospectus
present fairly the information required to be stated therein; the
financial information and data included or incorporated by reference in
the Registration Statement and the Prospectus present fairly the
information included therein and have been prepared on a basis
consistent with that of the financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus. Except as reflected or disclosed in the financial
statements included in the Registration Statement or otherwise set
forth in the Prospectus, the Partnership is not subject to any material
indebtedness, obligation or liability, contingent or otherwise;
(e) the historical summaries of revenue and certain operating
expenses included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the revenue and those
operating expenses included in such summaries of the properties related
thereto for the periods specified in conformity with generally accepted
accounting principles; the pro forma consolidated financial statements
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the pro forma financial position of the
Company and its Subsidiaries taken as a whole as of the dates indicated
and the results of operations for the periods specified; and such pro
forma financial statements have been prepared in accordance with
generally accepted accounting principles applied on a basis consistent
with the audited financial statements of the Partnership and its
Subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus, the assumptions on which such pro forma
financial statements have been prepared were, when such pro forma
financial statements were prepared, reasonable and are summarized in
the notes thereto, and any such pro forma financial statements have
been prepared, and the pro forma adjustments set forth
therein have been applied, in accordance with the applicable accounting
requirements of the Securities Act (including, without limitation,
Regulation S-X promulgated by the Commission), and any such pro forma
adjustments have been properly applied to the historical amounts in the
compilation of such statements;
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(f) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any material change in the capital stock or long-term debt of the
Partnership and its consolidated subsidiaries, or any material adverse
change, or any development involving a prospective material adverse
change, in the condition, financial or otherwise, or in the earnings,
business, or operations of the REIT Entities, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus; and
except as set forth or contemplated in the Prospectus none of the REIT
Entities nor any of their Subsidiaries has entered into any transaction
or agreement (whether or not in the ordinary course of business)
material to the REIT Entities and their Subsidiaries taken as a whole;
(g) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the
Prospectus, and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or in good
standing would not have a material adverse effect on the REIT Entities,
taken as a whole; other than the Partnership, the Company has no
"significant subsidiaries" as defined in Rule 1-02 of Regulation S-X
promulgated by the Commission (the "Significant Subsidiaries"); the
Partnership has no Significant Subsidiaries;
(h) each of the Partnership and the Property Partnership has
been duly formed, is validly existing as a limited partnership in good
standing under the laws of the jurisdiction of its formation, has the
power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact its
business and is in good standing in California, which is the only other
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the REIT Entities taken as a whole;
(i) the Securities have been duly authorized, and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will have been
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duly and validly executed, authenticated, issued and delivered and will
constitute valid and binding obligations of the Partnership entitled to
the benefits provided by the Indenture, enforceable in accordance with
their terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability; the Indenture has been duly authorized and upon
effectiveness of the Registration Statement will have been duly
qualified under the Trust Indenture Act and, when executed and
delivered by the Partner ship and the Trustee, the Indenture will
constitute a valid and binding agreement of the Operating Partnership,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability; and the Securities
and the Indenture will conform in all material respects to the
descriptions thereof in the Prospectus;
(j) neither the Company, the Partnership nor any of their
Subsidiaries is, or with the giving of notice or lapse of time or both
would be, in violation of or in default under, the Certificate of
Incorporation or by-laws of the Company, the certificates of limited
partnership of the Partnership and the Property Partnership, or the
Amended and Restated Agreement of Limited Partnership of Irvine
Apartment Communities, L.P. dated as of December 1, 1993, as amended
(the "OP Partnership Agreement"), or the partnership agreement of the
Property Partnership (the "Property Partnership Agreement"), or any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which any of the REIT Entities is a party or by which
any of them or any of their respective properties is bound, except for
violations and defaults which individually and in the aggregate are not
material to the REIT Entities taken as a whole; the issue and sale of
the Securities and the performance by the Partnership of all its
obligations under the Securities and the Indenture and the performance
by each of the Partnership and the Company of all their respective
obligations under this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which any of the REIT Entities is a
party or by which any of them or their respective properties is
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bound that is material to the REIT Entities taken as a whole, nor will
any such action result in any violation of the provisions of the
Certificate of Incorporation or the by-laws of the Company, the
certificates of limited partnership of the Partnership and the Property
Partnership, or the OP Partnership Agreement or the Property
Partnership Agreement, or any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the REIT Entities or any of their respective
properties; and no consent, approval, authorization, order, license,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Securities by the Partnership or the consummation of the transactions
contemplated by the Indenture by the Partnership or this Agreement by
the Partnership and the Company, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act, the Trust Indenture Act
and as may be required under state securities or Blue Sky Laws in
connection with the purchase and distribution of the Securities by the
Underwriters;
(k) each of the Partnership and the Property Partnership is
organized in conformity with the requirements for qualification as a
partnership under the Internal Revenue Code of 1986, as amended (the
"Code"), and its method of operation enables it to meet the
requirements for taxation as a partnership under the Code;
(l) neither the Partnership nor the Company is, and, after
giving effect to the offering and sale of the Securities, will be, an
"investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(m) there are no legal or governmental proceedings pending or
threatened to which any of the REIT Entities is a party or to which any
of the Properties is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to
the Registration Statement that are not described, filed or incorpo-
rated as required;
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(n) each preliminary prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder;
(o) the Properties are, to the best knowledge of the REIT
Entities, in compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental
Laws"), and the REIT Entities (i) have received all permits, licenses
or other approvals required of them under applicable Environmental Laws
to conduct their respective businesses and (ii) are in compliance with
all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material
adverse effect on the REIT Entities, taken as a whole;
(p) to the best of the knowledge of the Company and the
Partnership, there are no costs and liabilities associated with
Environmental Laws except as disclosed in the Registration Statement,
which would, singly or in the aggregate, have a material adverse effect
on the REIT Entities, taken as a whole;
(q) the Partnership has (whether directly or indirectly
through the ownership of the Property Partnership) good title in fee
simple to the Properties and good title to all personal property owned
as is material to the business of the REIT Entities, taken as a whole,
in each case free and clear of all liens, encumbrances and defects
except such as are described in the Prospectus or in title policies
held by the Partnership or such as do not materially affect the value
of such property and do not interfere with the use made and proposed to
be made of such property by the REIT Entities; any real property held
under lease by any REIT Entity is held by it under valid, subsisting,
enforceable leases, and no default by any REIT Entity has occurred and
is continuing thereunder, with such exceptions as are not material and
do not interfere in any material respect with the use made and proposed
to be made of such property by any REIT Entity; the operation of the
buildings, fixtures and other improvements located on the Properties as
presently
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conducted is not in violation of any applicable building code, zoning
ordinance or other law or regulation, except where such violation of
any applicable building code, zoning ordinance or other law or
regulation would not, singly or in the aggregate, have a material
adverse effect on the REIT Entities, taken as a whole; neither the
Company nor the Partnership has received notice of any proposed special
assessment or any proposed material change in any property tax, zoning
or land use laws or availability of water for irrigation affecting all
or any portion of the Properties; there do not exist any material
violations of any declaration of covenants, conditions and restrictions
with respect to any of the Properties, nor is there any existing state
of facts or circumstances or condition or event which could, with the
giving of notice or passage of time, or both, constitute such a
violation; and the improvements comprising any portion of the
Properties (the "Improvements") are free of any and all material
physical, mechanical, structural, design and construction defects and
the Improvements (including, without limitation, all water, electric,
sewer, plumbing, heating, ventilation, gas and air conditioning
servicing the Improvements) are in good condition and proper working
order and are free of material defects;
(r) the REIT Entities have and will maintain liability,
property, casualty and other insurance policies, with respect to each
of the Properties, insuring them against the risks of loss (other than
with respect to loss from earthquakes) arising out of or related to
their businesses, in an amount and on such terms as is adequate and
appropriate for such businesses;
(s) all of the partnership interests of the Partnership ("OP
Units") have been validly issued and are validly owned, directly or
indirectly, in the percentage amounts set forth in the Prospectus by
the Company and The Irvine Company; the OP Units owned, directly or
indirectly, by the Company are owned free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity (each of
the foregoing a "Lien"). The Company is the sole general partner of the
Partnership;
(t) all of the partnership interests of the Property
Partnership have been validly issued and are owned of record by the
Partnership and a third party; the partnership interests of the
Property Partnership owned of record by the Partnership are owned free
and clear of all Liens;
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(u) this Agreement has been duly authorized, executed and
delivered by each of the Company and the Partnership;
(v) immediately after any sale of Securities by the
Partnership hereunder, the aggregate amount of Securities which have
been issued and sold by the Partnership hereunder and of any securities
of the Partnership (other than the Securities) that shall have been
issued and sold pursuant to the Registration Statement will not exceed
the amount of securities registered under the Registration Statement;
and
(w) the Partnership and the Company have complied with all
provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws
of Florida) relating to doing business with the Government of Cuba or
with any person or affiliate located in Cuba.
5. Each of the Partnership and the Company covenants and agrees with
each of the several Underwriters as follows:
(a) to file the Prospectus in a form approved by you pursuant
to Rule 424 under the Securities Act not later than the Commission's
close of business on the second Business Day following the date of
determination of the offering price of the Securities or, if
applicable, such earlier time as may be required by Rule 424(b);
(b) to furnish to each Representative and counsel for the
Underwriters, at the expense of the Partnership, a signed copy of the
Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and documents incorporated by
reference therein and, during the period mentioned in paragraph (e)
below, to furnish each of the Underwriters as many copies of the
Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference therein as you may reasonably
request;
(c) from the date hereof and prior to the Closing Date, to
furnish to you a copy of any proposed amendment or supplement to the
Registration Statement or the Prospectus, for your review, and not to
file any such proposed amendment or supplement to which you reasonably
object;
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(d) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Partnership with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during such
same period, to advise you promptly, and to confirm such advice in
writing, (i) when any amendment to the Registration Statement shall
have become effective, (ii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose, and (iv) of the receipt
by the Partnership of any notification with respect to any suspension
of the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of
any such stop order or notification and, if issued, to obtain as soon
as possible the withdrawal thereof;
(e) if, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law
to be delivered in connection with sales by an Underwriter or dealer,
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare, file with the
Commission and furnish, at the expense of the Partnership, to the
Underwriters and to the dealers (whose names and addresses you will
furnish to the Partnership) to which Securities may have been sold by
you on behalf of the Underwriters and to any other dealers upon
request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law;
(f) to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to continue such qualification in effect
so long as reasonably required for distribution of the Securi-
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ties; provided that the Partnership shall not be required to file a
general consent to service of process in any jurisdiction;
(g) to make generally available to its security holders and to
you as soon as practicable an earnings statement which shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158 of
the Commission promulgated thereunder covering a period of at least
twelve months beginning with the first fiscal quarter of the
Partnership and the Company occurring after the "effective date" (as
defined in Rule 158) of the Registration Statement;
(h) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of or guaranteed by the Partnership which are
substantially similar to the Securities (other than (i) the Securities
and (ii) commercial paper issued in the ordinary course of business),
without your prior written consent;
(i) to use the net proceeds received by the Partnership from
the sale of the Securities pursuant to this Agreement in the manner
specified in the Prospectus under the caption "Use of Proceeds";
(j) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all costs and expenses incident to the performance of
its obligations hereunder, including without limiting the generality of
the foregoing, all costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the Securities,
including any expenses of the Trustee, (ii) incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Securities under the laws of such jurisdictions as the Underwriters
may designate (including reasonable fees of counsel for the
Underwriters and their disbursements), (iv) related to any filing with
the National Association of Securities Dealers, Inc., (v) in connection
with the printing (including word processing and duplication costs)
and delivery of this Agreement, the Indenture, the Preliminary and
Supple-
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mental Blue Sky Memoranda and any Legal Investment Survey and the
furnishing to Underwriters and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as herein
provided, (vi) payable to rating agencies in connection with the rating
of the Securities and (vii) any expenses incurred by the Partnership
and the Company in connection with a "road show" presentation to
potential investors.
6. The several obligations of the Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Partnership and
the Company contained herein are true and correct on and as of the
Closing Date as if made on and as of the Closing Date and the
Partnership and the Company shall have complied with all agreements and
all conditions on their part to be performed or satisfied hereunder at
or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for
such filing by the rules and regulations under the Securities Act; no
stop order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your satisfaction;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any
downgrading, (ii) any intended or potential downgrading or (iii) any
review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Partnership by
any "nationally recognized statistical rating organization", as such
term is defined for purposes of Rule 436(g)(2) under the Securities
Act;
(d) since the respective dates as of which information is
given in the Prospectus there shall not have been any material change
in the capital stock or long-term debt of the Company or the
Partnership or any material adverse change, or any development
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15
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the REIT Entities, taken as a whole, other wise than as set forth or
contemplated in the Prospectus, the effect of which in the judgment of
the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities on the terms
and in the manner contemplated in the Prospectus; and neither the
Company nor the Partnership has sustained since the date of the latest
audited financial statements included or incorporated by reference in
the Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus;
(e) the Representatives shall have received on and as of the
Closing Date a certificate of an executive officer of the Company, in
its individual capacity and in its capacity as a general partner of the
Partnership, with specific knowledge about the Partnership's and the
Company's financial matters, reasonably satisfactory to you to the
effect set forth in subsections (a) through (c) (with respect to the
respective representations, warranties, agreements and conditions of
the Partnership and the Company) of this Section and to the further
effect that there has not occurred any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of
the REIT Entities taken as a whole from that set forth or contemplated
in the Registration Statement (the officer signing and delivering such
certificate may rely upon the best of his or her knowledge as to
proceedings threatened);
(f) Piper & Marbury L.L.P., Maryland counsel for the Company
and the Partnership, or other Maryland counsel for the Company and the
Partnership, shall have furnished to you their written opinion, dated
the Closing Date, in form and substance satisfactory to you, to the
effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Maryland, and has
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16
the corporate power and authority to own its property and to
conduct its business as described in the Prospectus;
(ii) this Agreement has been duly authorized,
executed and delivered by the Company in its individual
capacity and in its capacity as general partner of the
Partnership;
(iii) the Indenture has been duly authorized,
executed and delivered by the Company in its capacity as
general partner of the Partnership;
(iv) the Securities have been duly authorized and
executed by the Company in its capacity as general partner of
the Partnership;
(v) the execution and delivery by the Company, in its
individual capacity and in its capacity as general partner of
the Partnership, of this Agreement, the Indenture and the
Securities, and the performance by the Company of its
obligations under this Agreement, will not contravene any
provision of applicable law or the charter or by-laws of the
Company, and no consent, approval, authorization or order of,
or qualification with, any governmental body or agency of the
State of Maryland is required for the performance by the
Company of its obligations under this Agreement (excluding the
securities or Blue Sky laws of the State of Maryland, as to
which such counsel need not express any opinion); and
(vi) the OP Partnership Agreement has been duly
authorized, executed and delivered by the Company in its
capacity as general partner of the Partnership.
In rendering the foregoing opinions, Piper & Marbury, L.L.P.
or other Maryland counsel for the Company and the Partnership may state
that their opinion relates only to the laws of the State of Maryland.
(g) The Underwriters shall have received on the Closing Date
an opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel for the Company
and the Partnership, or other special counsel for the Company and the
Partnership, dated the Closing Date, to the effect that:
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17
(i) based solely on certificates of public officials,
such counsel confirms that the Company is qualified to do
business in the State of California; to the best of such
counsel's knowledge, other than the Partnership, the Company
has no Significant Subsidiaries;
(ii) the Partnership has been duly formed, is validly
existing as a limited partnership in good standing under the
laws of the State of Delaware and has the power and authority
to own, lease and operate its property and to conduct its
business as described in the Prospectus; based solely on
certificates of public officials, such counsel confirms that
the Partnership is qualified to do business in the State of
California;
(iii) assuming due authorization, execution and
delivery of this Agreement by the Company in its capacity as
general partner of the Partnership, this Agreement has been
duly authorized, executed and delivered by the Partnership;
(iv) the Indenture has been duly qualified under the
Trust Indenture Act and, assuming due authorization, execution
and delivery by the Company in its capacity as general partner
of the Partnership, is a valid and binding agreement of the
Partnership, enforceable in accordance with its terms except
as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (b) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(v) assuming due authorization by the Company in its
capacity as general partner of the Partnership, the
Securities, when executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for
by the Underwriters in accordance with the terms of this
Agreement, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Partnership,
enforceable in accordance with their respective terms except
as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (b) rights of acceleration, if any, and
the availability of equitable remedies may be limited by
equitable principles of general applicability;
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18
(vi) assuming due authorization, execution and
delivery by the Company in its capacity as general partner of
the Partnership, the execution and delivery by the Partnership
of, and the performance by the Partnership of its obligations
under, this Agreement, the Indenture and the Securities will
not contravene any provision of New York or federal law or
the Delaware Revised Uniform Limited Partnership Act or the
certificate of limited partnership of the Partnership, the OP
Partnership Agreement, the Miscellaneous Rights Agreement (as
defined in the Prospectus) or any agreement or other
instrument binding upon any of the REIT Entities that is
material to the REIT Entities, taken as a whole, or, to the
best of such counsel's knowledge, any judgment or decree of
any New York or federal governmental body, agency or court
having jurisdiction over any of the REIT Entities (it being
understood that such counsel expresses no opinion as to any
judgment or decree of the United States Department of Housing
and Urban Development ("HUD")), and no consent, approval,
authorization or order of, or qualification with, any New York
or federal governmental body or agency (it being understood
that such counsel expresses no opinion as to any consent,
approval, authorization or order of, or qualification with,
HUD) is required for the performance by the Partnership of its
obligations under this Agreement, the Indenture or the
Securities, except such as may be required by the securities,
Blue Sky or real estate syndication laws of the various states
in connection with the offer and sale of the Securities;
(vii) the statements (A) in the Prospectus under the
captions "Description of Notes," "Description of the Debt
Securities" and "Plan of Distribution", (B) in the
Registration Statement under Item 15, (C) in "Item 8 - Legal
Proceedings" of the Partnership's registration statement on
Form 10 incorporated by reference in the Registration
Statement, (D) in "Item 1 - Legal Proceedings" of Part II of
the Partnership's quarterly reports on Form 10-Q, filed since
such Form 10, in each case insofar as such statements
constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
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(viii) such counsel does not know of any legal or
governmental proceedings pending or threatened to which any
of the REIT Entities or any of the Properties is subject that
are required to be described in the Registration Statement or
the Prospectus and are not so described or of any statutes,
regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus
or to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or
incorporated as required;
(ix) each of the Partnership and the Property
Partnership is currently organized in conformity with the
requirements for qualification as a partnership under the Code
and has been so organized since its formation, and its method
of operation has satisfied the requirements for taxation as a
partnership under the Code, and its proposed method of
operation will enable it to continue to do so;
(x) the Registration Statement has been declared
effective under the Securities Act; any required filing of the
Prospectus pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b); and, to
the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been
issued under the Securities Act and no proceedings therefor
have been instituted by the Commission;
(xi) such counsel (A) is of the opinion that each
document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except for
financial and statistical statements and schedules included or
incorporated by reference therein as to which such counsel
need not express any opinion) complied when so filed as to
form in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder,
(B) has no reason to believe that (except for financial and
statistical statements and schedules as to which such counsel
need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1
heretofore referred to) each part of the Registration
Statement, when such part became effective, contained and, as
of the date such opinion is delivered, contains any untrue
statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, (C) is of the
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20
opinion that the Registration Statement and Prospectus (except
for financial and statistical statements and schedules
included or incorporated by reference therein as to which such
counsel need not express any opinion) comply as to form in all
material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (D) has
no reason to believe that (except for financial and
statistical statements and schedules as to which such counsel
need not express any belief) the Prospectus as of the date
such opinion is delivered contains any untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering the foregoing opinions, Xxxxx Xxxx & Xxxxxxxx or
other special counsel for the Company and the Partnership may state
that (i) they have relied as to factual matters on certificates of one
or more officers of the Company and (ii) their opinion relates only to
the federal laws of the United States, the laws of the State of New
York and the Revised Uniform Limited Partnership Act of the State of
Delaware.
(h) The Underwriters shall have received on the Closing Date
an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the
Underwriters, dated the Closing Date, with respect to the validity of
the Indenture and the Securities, the Registration Statement, the
Prospectus and such other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass
upon such matters.
With respect to subparagraph 6(g)(xi) above, Xxxxx Xxxx &
Xxxxxxxx may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and documents
incorporated therein by reference and review and discussion of the
contents thereof, but are without independent check or verification,
except as specified.
The opinions of Piper & Marbury L.L.P. or other counsel for
the Company and the Partnership described in paragraph 6(f) and of
Xxxxx Xxxx & Xxxxxxxx or other special counsel for the Company and the
Partnership described in paragraph 6(g) above
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21
each shall be rendered to the Underwriters at the request of the
Company and the Partnership and shall so state therein.
(i) on the date hereof and on the Closing Date, Ernst & Young
LLP shall have furnished to you letters, dated such date, in form and
substance satisfactory to you, containing statements and information of
the type customarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference in the
Registration Statement and the Prospectus;
(j) on or prior to the Closing Date, the Company shall have
furnished to the Representatives such further certificates and
documents as the Representatives shall reasonably request.
7. The Partnership and the Company, jointly and severally, hereby agree
to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including without limitation the legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Partnership and the Company
shall have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Partnership and/or the Company in
writing by such Underwriter through the Representatives expressly for use
therein, provided, however, that the foregoing indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages or liabilities
purchased Securities, or any person controlling such Underwriter, if a copy of
the Prospectus (as then amended or supplemented if the Partnership shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to have been
delivered, at or
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22
prior to the written confirmation of the sale of the Securities to such person,
and if the Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages or liabilities, unless such
failure is the result of noncompliance by the Partnership with Section 5(b)
hereof.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Partnership, the Company and its directors, each of the
officers of the Company who signs the Registration Statement and each person who
controls the Company or the Partnership within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Partnership and the Company to each Underwriter,
but only with reference to information relating to such Underwriter furnished to
the Partnership or the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement, the Prospectus,
any amendment or supplement thereto, or any preliminary prospectus. For purposes
of this Section 7 and Section 4(a), the only written information furnished by
the Underwriters to the Operating Partnership and the Company expressly for use
in the Registration Statement and the Prospectus is (a) the information in the
last paragraph on the cover page of the prospectus supplement forming a part of
the Prospectus specifically relating to the Securities, (b) the information
regarding stabilization on the inside front cover page of the prospectus
supplement forming a part of the Prospectus specifically relating to the
Securities and (c) the information in the third and sixth paragraphs and the
second sentence of the fourth paragraph under the caption "Underwriting" in the
prospectus supplement forming a part of the Prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the Indemni-
fied Person, shall retain counsel reasonably satisfactory to the Indemnified
Person to represent the Indemnified Person and any others the Indemnifying
Person may designate in such proceeding and shall pay the fees and expenses of
such counsel related to such proceeding. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person unless (i)
the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary, (ii)
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the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Person
shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriters and such control persons of Underwriters
shall be designated in writing by the first of the named Representatives on
Schedule I hereto and any such separate firm for the Partnership or the Company,
its directors, its officers who sign the Registration Statement and such control
persons of the Partnership or the Company or authorized representatives shall be
designated in writing by the Partnership or the Company. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by the
second and third sentences of this paragraph, the Indemnifying Person agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30 days
after receipt by such Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable
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by such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Partnership and the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Partnership
and the Company on the one hand and the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Partnership and the
Company on the one hand and the Underwriters on the other hand shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of such Securities (before deducting expenses) received by the Partnership and
the total underwriting discounts and the commissions received by the
Underwriters bear to the aggregate public offering price of the Securities. The
relative fault of the Partnership and the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Partnership or the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Partnership, the Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Person in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, in no event
shall an Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the
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Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of the Securities set forth opposite their names in
Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Partnership and the Company set
forth in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Partnership, the Company, its officers or directors or
any other person controlling the Company and (iii) acceptance of and payment for
any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Partnership and the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of or guaranteed by the Company or the Partnership shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Representatives,
is material and adverse and which, in the judgment of the Representatives, makes
it impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters
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26
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of the Securities, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Securities
set forth opposite their respective names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the principal amount of Securities that
any Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 9 by an amount in excess of one-tenth of such principal
amount of Securities without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Securities to be purchased, and arrangements satisfactory to you, the
Partnership and the Company for the purchase of such Securities are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter, the Partnership or the
Company. In any such case either you or the Partnership shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Partnership or the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason either the Partnership or the Company shall be
unable to perform its obligations under this Agreement or any condition of the
Underwriters' obligations cannot be fulfilled, the Partnership and the Company
agree to reimburse the Underwriters or such Underwriters as have so terminated
this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and expenses of their counsel) reasonably incurred
by such Underwriters in connection with this Agreement or the offering of
Securities.
11. This Agreement shall inure to the benefit of and be binding upon
the Partnership, the Company, the Underwriters, any controlling persons referred
to herein and their respective
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successors and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person, firm or corporation any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone on behalf of the Under writers, and any such action taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given at the address set forth in Schedule
II hereto. Notices to the Partnership and the Company shall be given to it at
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxx X. Xxxx (Telephone: (000) 000-0000).
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
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14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
Very truly yours,
IRVINE APARTMENT COMMUNITIES, L.P.
By: IRVINE APARTMENT COMMUNITIES, INC.,
its sole general partner
By: /s/ XXXXX XXXXX
-----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President, Corporate
Finance, and Controller
IRVINE APARTMENT COMMUNITIES, INC.
By: /s/ XXXXX XXXXX
-----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President, Corporate
Finance and Controller
Accepted: September 25, 1997
X.X. XXXXXX SECURITIES INC.
XXXXXXX, XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: X.X. XXXXXX SECURITIES INC.
By: /s/ XXXXXX XXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
29
SCHEDULE I
Representatives: X.X. Xxxxxx Securities Inc., Xxxxxxx, Sachs & Co. and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Underwriting Agreement
dated: September 25, 1997
Registration Statement
No.: 333-27181
Title of Securities: 7% Notes due 2007 of Irvine Apartment Communities,
L.P.
Aggregate principal
amount: $100,000,000
Purchase Price: 98.558% of the principal amount of the
Securities, plus accrued interest, if any, from
October 1, 1997 to the Closing Date.
Price to Public: 99.208% of the principal amount of the
Securities, plus accrued interest, if any, from
October 1, 1997 to the Closing Date.
Indenture: Indenture dated as of October 1, 1997 between the
Partnership and First Trust of California, National
Association, as Trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture
dated as of October 1, 1997 between the Partnership
and the Trustee.
30
Maturity: October 1, 2007
Interest Rate: 7% per annum
Interest Payment Dates: April 1 and October 1, commencing
April 1, 1998
Closing Date and
Time of Delivery: 9:00 a.m., October 1, 1997
Closing Location: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices X.X. Xxxxxx Securities Inc.
to Underwriters: 00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Desk
31
SCHEDULE II
Principal Amount
of Securities
Underwriter To Be Purchased
----------- ----------------
X.X. Xxxxxx Securities Inc........................... $ 60,000,000
Xxxxxxx, Sachs & Co.................................. 20,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated........................... 20,000,000
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Total.............. $100,000,000
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