1
EXHIBIT 1.1
CROWN AMERICAN REALTY TRUST
(A MARYLAND REAL ESTATE INVESTMENT TRUST)
__% SENIOR PREFERRED SHARES
($50.00 LIQUIDATION PREFERENCE)
UNDERWRITING AGREEMENT
___________, 1997
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
Potomac Tower
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Dear Sirs:
Crown American Realty Trust, a Maryland real estate investment trust
(the "Company"), Crown American Properties, L.P., a Delaware limited
partnership (the "Operating Partnership") and Crown American Financing
Partnership, a Delaware general partnership (the "Financing Partnership") each
confirms its agreement with Friedman, Billings, Xxxxxx & Co., Inc. (the
"Underwriter"), with respect to (i) the sale by the Company and the purchase by
the Underwriter of [2,500,000] ___% Senior Preferred Shares of Beneficial
Interest, par value $0.01 per share, of the Company ("Preferred Shares") and
(ii) the grant by the Company to the Underwriter of the option described in
Section 1(b) hereof to purchase all or any part of [375,000] additional shares
of Preferred Shares to cover over-allotments, if any. The [2,500,000] shares of
Preferred Shares (the "Initial Shares") to be purchased by the Underwriter and
all or any part of the [375,000] shares of Preferred Shares subject to the
option described in Section 1(b) hereof (the "Option Shares") are hereinafter
called, collectively, the "Shares".
The Company and the Operating Partnership understand that the
Underwriter proposes to make a public offering of the Shares as soon as the
Underwriter deems advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-3 (No. 333-26967) for the
registration of the Shares under the Securities Act of 1933, as amended (the
"Securities Act"), and the offering thereof from time to time in accordance
with Rule 430 A and 415 of the rules and regulations thereunder (the
"Securities Act Regulations") and the Company has filed such amendments thereto
as has been necessary to provide for the sale of the Shares pursuant to this
Agreement. The registration statement (as amended) has been declared effective
under the Securities Act by
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the Commission. Such registration statement and the prospectus constituting a
part thereof (including all information deemed to be a part of the registration
statement at the time it became effective pursuant to Rule 430A(b) of the
Securities Act Regulations and each prospectus supplement relating to the
offering of the Shares pursuant to Rule 430A or 415 of the Securities Act
Regulations (a "Prospectus Supplement"), including all documents incorporated
therein by reference as from time to time amended or supplemented pursuant to
the Securities Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or otherwise is hereinafter called the "Registration Statement"
and the "Prospectus", respectively; provided, that if any revised Prospectus
shall be provided to you by the Company for use in connection with the offering
of Shares which differs from the Prospectus on file at the Commission at the
time the Registration Statement became effective whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of
the Securities Act Regulations), the term "Prospectus" shall refer to each such
revised prospectus from and after the time it is first provided to you for such
use; provided, further, that a Prospectus Supplement shall be deemed to have
supplemented the Prospectus only with respect to the offering of Shares. Any
registration statement (including any supplement thereto or information which
is deemed part thereof) filed by the Company under Rule 462(b) of the
Securities Act Regulations (a "Rule 462(b) Registration Statement") shall be
deemed to be part of the Registration Statement. Any prospectus (including any
amendment or supplement thereto or information which is deemed part thereof)
included in the Rule 462(b) Registration Statement and any term sheet as
contemplated by Rule 434 of the Securities Act Regulations (a "Term Sheet")
shall be deemed to be part of the Prospectus. All references in this agreement
to financial statements and schedules and other information which is
"contained," "included," "set forth," "contemplated" or stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include
the filing of any document under the Exchange Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, preliminary prospectus
supplement, Prospectus or Prospectus Supplement or any Term Sheet or any
amendment or supplement to the foregoing shall be deemed to include the copy
filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system ("XXXXX"). The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
The Company, the Operating Partnership and the Underwriter agree as
follows:
1. Sale and Purchase:
a. Initial Shares. Upon the basis of the warranties and
representations and other terms and conditions herein set forth, the Company
agrees to sell to the Underwriter and the Underwriter agrees to purchase from
the Company the Initial Shares at the purchase price per share of $________.
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b. Option Shares. In addition, upon the basis of the
warranties and representations and other terms and conditions herein set forth,
the Company hereby grants an option to the Underwriter to purchase from the
Company an amount up to the amount of the Option Shares at the purchase price
per share set forth in paragraph (a) above. The option hereby granted will
expire 30 days after the date hereof and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Initial Shares
upon notice by the Underwriter to the Company setting forth the number of
Option Shares as to which the Underwriter is then exercising the option and the
time and date of payment and delivery for such Option Shares. Any such time and
date of delivery (a "Date of Delivery") shall be determined by the Underwriter,
but shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter defined. If
the option is exercised as to all or any portion of the Option Shares, the
Underwriter will purchase the number of Option Shares then being purchased.
2. Payment and Delivery:
a. Initial Shares. Payment of the purchase price for the
Initial Shares shall be made to the Company by wire transfer or certified or
official bank check payable in federal (same-day) funds at the office of
Friedman, Billings, Xxxxxx & Co., Inc., Potomac Tower, 0000 Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000-0000 (unless another place shall be agreed
upon by the Underwriter and the Company) against delivery of the certificates
for the Initial Shares to the Underwriter. Such payment and delivery shall be
made at 10:00 a.m., Washington, D.C. time, on the third (fourth, if pricing
occurs after 4:30 p.m. (Washington, D.C. time) business day after the date
hereof (unless another time, not later than ten business days after such date,
shall be agreed to by the Underwriter and the Company). The time at which such
payment and delivery are made is hereinafter called the "Closing Time".
Certificates for the Initial Shares shall be delivered to the Underwriter in
definitive form registered in such names and in such denominations as the
Underwriter shall specify. For the purpose of expediting the checking of the
certificates for the Initial Shares by the Underwriter, the Company agrees to
make such certificates available to the Underwriter for such purpose at least
one full business day preceding the Closing Time.
b. Option Shares. In addition, payment of the purchase price
for the Option Shares shall be made to the Company by wire transfer or
certified or official bank check payable in federal (same-day) funds at the
office of Friedman, Billings, Xxxxxx & Co., Inc., Potomac Tower, 0000
Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000-0000 (unless another place
shall be agreed upon by the Underwriter and the Company), against delivery of
the certificates for the Option Shares to the Underwriter. Such payment and
delivery shall be made at 10:00 a.m., Washington, D.C. time, on each Date of
Delivery. Certificates for the Option Shares shall be delivered to the
Underwriter in definitive form registered in such names and in such
denominations as the Underwriter shall specify. For the purpose of expediting
the checking of the certificates for the Option Shares by the Underwriter, the
Company agrees to make such certificates available to the Underwriter for such
purpose at least one full business day preceding the relevant Date of Delivery.
3. Representations and Warranties of the Company: The Company,
the Operating Partnership and the Financing Partnership, jointly and severally,
represent and warrant to the Underwriter that:
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a. the Company has been duly organized and is validly
existing as a real estate investment trust in good standing under the laws of
the State of Maryland, with requisite power and authority to own its
properties, conduct its business as described in the Prospectus and to enter
into and perform its obligations under this Agreement; the Company has been
duly qualified or licensed for the transaction of business and is in good
standing under the laws of each other jurisdiction in which such qualification
or license is required, whether by reason of the ownership, leasing, or
management of any properties or the conduct of any other business, except where
the failure to be so licensed or qualified would not have a material adverse
effect on the condition, financial or otherwise, or the earnings, assets or
business affairs of the Company, the Operating Partnership and the Significant
Subsidiaries, considered as a single enterprise;
b. the Operating Partnership, the Financing Partnership and
each other partnership which directly owns the Company's interests in the
Properties (each such partnership individually, other than the Operating
Partnership and the Financing Partnership, a "Property Partnership" and
collectively, the "Property Partnerships") has been duly organized and is
validly existing as a partnership in good standing (to the extent applicable)
under the laws of its jurisdiction of organization, with partnership power and
authority to own its properties, conduct its business as described in the
Prospectus and, with respect to the Operating Partnership and the Financing
Partnership, enter into and perform their obligations under this Agreement;
each of the Operating Partnership, the Financing Partnership and each Property
Partnership has been duly qualified or licensed for the transaction of business
and is in good standing (to the extent applicable) under the laws of each
jurisdiction in which such qualification or license is required, whether by
reason of the ownership, leasing, or management of any properties (including
the Properties) or the conduct of any other business, except where the failure
to be so licensed or qualified would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, assets or business affairs
of the Company, the Operating Partnership, the Financing Partnership and the
Significant Subsidiaries, considered as a single enterprise; all of the
partnership interests in each Property Partnership have been duly and validly
authorized and issued, are fully paid, and (except as described in the
Prospectus) are owned directly or indirectly by the Company, the Operating
Partnership, or the Financing Partnership free and clear of all liens,
encumbrances, equities or claims;
c. the Company has an authorized capitalization as set forth
in the Prospectus under the caption "Description of Shares"; the outstanding
shares of beneficial interest of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable, and conform in all
material respects to all statements relating thereto contained in the
Prospectus; the Shares have been duly authorized for issuance and sale to the
Underwriter pursuant to this Agreement and, when issued and delivered as
provided herein and when Articles Supplementary setting the terms of the Shares
are duly executed and filed for record with the Maryland State Department of
Assessments and Taxation ("SDAT"), the Shares will be validly issued, fully
paid and non-assessable; except as described in the Prospectus (or incorporated
by reference), there are no outstanding securities convertible into or
exchangeable for the Shares or any shares of beneficial interest of the Company
and no outstanding options, rights (preemptive or otherwise) or warrants to
purchase or to subscribe for such shares or any other securities of the
Company;
d. each Significant Subsidiary within the meaning of Rule
1-02 of Regulation S-X (the "Significant Subsidiary") has been duly formed and
is validly existing and in good standing
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under the laws of the jurisdiction of its formation; each Significant
Subsidiary has the power and authority to own, lease and operate its properties
and to conduct the business in which it is engaged, and is duly qualified as a
foreign corporation or partnership and is in good standing in each other
jurisdiction where such qualification is required; all of the issued and
outstanding shares of capital stock, LLC interests and partnership interests,
as applicable, of each Significant Subsidiary have been duly authorized and
validly issued, are fully paid and are owned free and clear of security
interest, mortgage, pledge, lien, encumbrance, claim or equity other than as
set forth in the Registration Statement or Prospectus; the ownership of the
shares of capital stock, LLC interests and partnership interests, as
applicable, of each Significant Subsidiary is as described in the Registration
Statement or Prospectus;
e. the Company, the Operating Partnership, the Financing
Partnership and each Significant Subsidiary are in compliance in all respects
with all applicable laws, orders, rules, regulations and directives, including
those relating to transactions with affiliates, except for non-compliance
which would not have a material adverse effect on the assets, operations,
business or condition (financial or otherwise), of the Company, the Operating
Partnership, the Financing Partnership and the Significant Subsidiaries taken
as a whole;
f. neither the Company, the Operating Partnership nor any
Significant Subsidiary is in breach of or in default under (nor has any event
occurred which with notice, lapse of time, or both would constitute a breach of
or default under), its respective declaration of trust, articles of
incorporation, charter, by-laws, certificate of limited partnership,
partnership agreement, or other organizational document, as applicable, or in
the performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan or credit
agreement or other agreement or instrument to which the Company, the Operating
Partnership, the Financing Partnership or any Significant Subsidiary is a party
or by which any of them is bound, except for such breaches or defaults which
would not have a material adverse effect on the assets, operations, business or
condition (financial or otherwise) of the Company, the Operating Partnership,
the Financing Partnership and the Significant Subsidiaries taken as a whole,
and the execution, delivery and performance of this Agreement, and consummation
of the transactions contemplated hereby will not conflict with, or result in
any breach of or constitute a default under (nor constitute any event which
with notice, lapse of time, or both would constitute a breach of or default
under), (i) any provision of the declaration of trust, articles of
incorporation, charter, by-laws, certificate of limited partnership,
partnership agreement, or other organizational document, as applicable, of the
Company, the Operating Partnership, the Financing Partnership or any
Significant Subsidiary, (ii) any provision of any license, indenture, mortgage,
deed of trust, loan or credit agreement or other agreement or instrument to
which the Company, the Operating Partnership, the Financing Partnership or any
Significant Subsidiary is a party or by which any of them or their respective
properties may be bound or affected, or (iii) any federal, state, local or
foreign law, regulation or rule or any decree, judgment or order applicable to
the Company, the Operating Partnership, the Financing Partnership or any
Significant Subsidiary, except in the case of clause (ii) for such breaches or
defaults which would not have a material adverse effect on the assets,
operations, business or condition (financial or otherwise) of the Company, the
Operating Partnership, the Financing Partnership and the Significant
Subsidiaries taken as a whole;
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g. this Agreement has been duly authorized, executed and
delivered by the Company, the Operating Partnership and the Financing
Partnership and is a legal, valid and binding agreement of the Company, the
Operating Partnership, and the Financing Partnership enforceable against the
Company, the Operating Partnership and the Financing Partnership in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, and by general principles of equity, and except to the extent that
the indemnification provisions of Section 8 hereof may be limited by federal or
state securities laws or public policy considerations in respect thereof;
h. no approval, authorization, consent or order of or filing
with any federal, state or local governmental or regulatory commission, board,
body, authority or agency is required in connection with the sale and delivery
of the Shares by the Company as contemplated hereby and the performance by the
Company, the Operating Partnership, the Financing Partnership and the
Significant Subsidiaries of their obligations under this Agreement other than
(A) such as have been obtained, or will have been obtained at the Closing Time
or the relevant Date of Delivery, as the case may be, under the Securities Act,
(B) such approvals as have been obtained in connection with the approval of the
quotation of the Shares on the New York Stock Exchange and (C) any necessary
qualification under the securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the Underwriter;
i. each of the Company, the Operating Partnership, the
Financing Partnership and each Significant Subsidiary has all necessary
licenses, authorizations, consents and approvals and has made all necessary
filings required under any federal, state or local law, regulation or rule, and
has obtained all necessary authorizations, consents and approvals from other
persons, required in order to conduct their respective businesses, except to
the extent that any failure to have any such licenses, authorizations, consents
or approvals, to make any such filings or to obtain any such authorizations,
consents or approvals would not, individually or in the aggregate, have a
material adverse effect on the assets, operations, business or condition
(financial or otherwise) of the Company, the Operating Partnership, the
Financing Partnership and the Significant Subsidiaries taken as a whole;
neither the Company, the Operating Partnership, the Financing Partnership nor
any of the Significant Subsidiaries is in violation of or in default under, any
such license, authorization, consent or approval or any federal, state, local
or foreign law, regulation or rule or any decree, order or judgment applicable
to the Company, the Operating Partnership, the Financing Partnership or any of
the Significant Subsidiaries the effect of which could be material and adverse
to the assets, operations, business or condition (financial or otherwise) of
the Company, the Operating Partnership, the Financing Partnership and the
Significant Subsidiaries taken as a whole;
j. each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the Securities Act and no
stop order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the Securities Act and
no proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, the Operating Partnership or the Financing
Partnership, are contemplated by the Commission, and any request on the part of
the Commission or by the state securities authority of any jurisdiction for
additional information has been complied with;
k. the Registration Statement complies and the Prospectus and
any further amendments or supplements thereto will, when they become effective
or are filed with the
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Commission, as the case may be, comply in all material respects with the
requirements of the Securities Act and the Securities Act Regulations; the
Registration Statement did not, and any amendment thereto will not, in each
case as of the applicable effective date, 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 light of the circumstances under
which they were made, not misleading, and the Prospectus and any amendment or
supplement thereto will not, as of the applicable filing date and at the
Closing Time and on each Date of Delivery (if any), 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; provided, however;
that the Company makes no warranty or representation with respect to any
statement contained in the Registration Statement or the Prospectus in reliance
upon and in conformity with information concerning the Underwriter and
furnished in writing by or on behalf of the Underwriter to the Company
expressly for use in the Registration Statement or the Prospectus; if the
Company elects to rely upon Rule 434 of the Securities Act Regulations, the
Company will comply with Rule 434; if a Rule 462(b) Registration Statement is
required in connection with the offering and sale of the Shares, the Company
has complied or will comply with the requirements of Rule 111 of the Securities
Act Regulations relating to the payment of filing fees therefor;
l. the Prospectus delivered to the Underwriter for use in
connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T;
m. all legal or governmental proceedings, contracts or
documents of a character required to be filed as exhibits to the Registration
Statement or to be summarized or described in the Prospectus or to be filed as
exhibits to the Registration Statement have been so filed, summarized or
described as required;
n. except as disclosed (or incorporated by reference) in the
Registration Statement or the Prospectus, there are no actions, suits or
proceedings pending or, to the Company's, the Operating Partnership's or the
Financing Partnership's knowledge, threatened against the Company, the
Operating Partnership, the Financing Partnership or any of the Significant
Subsidiaries or any of their respective properties, at law or in equity, or
before or by any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency which could result in a judgment,
decree or order having a material adverse effect on the assets, operations,
business or condition (financial or otherwise) of the Company, the Operating
Partnership, the Financing Partnership and the Significant Subsidiaries taken
as a whole;
o. the financial statements, including the notes thereto,
included in or incorporated by reference into the Registration Statement and
the Prospectus present fairly the consolidated financial position of the
Company, the Operating Partnership, the Financing Partnership and the
Significant Subsidiaries as of the dates indicated and the consolidated results
of operations and changes in financial position and cash flows of the Company,
the Operating Partnership, the Financing Partnership and the Significant
Subsidiaries for the periods specified, such financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis during the periods involved (except as indicated in the
notes thereto); the financial statement schedules included in or incorporated
by reference into the Registration Statement present fairly the information
required to be stated therein; the financial
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information and data included in or incorporated by reference into 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 in or incorporated by reference into the
Registration Statement and the Prospectus and the books and records of the
respective entities presented therein; other than the historical or pro forma
financial statements (and schedules) included or incorporated by reference
therein, no other historical or pro forma financial statements (or schedules)
are required by the Securities Act or the Securities Act Regulations to be
included in or incorporated by reference into the Registration Statement;
except as reflected or disclosed in the financial statements included in or
incorporated by reference into the Registration Statement or otherwise set
forth in the Prospectus, none of the Company, the Operating Partnership, the
Financing Partnership or the Significant Subsidiaries are subject to any
material indebtedness, obligation, or liability, contingent or otherwise, known
to the Company;
x. Xxxxxx Xxxxxxxx LLP, who have certified the financial
statements and financial statement schedules included in or incorporated by
reference into the Registration Statement and Prospectus, are independent
public accountants as required by the Securities Act and the Securities Act
Regulations;
q. subsequent to the effective date of the Registration
Statement and the date of the Prospectus, and except as may be otherwise stated
in the Registration Statement or Prospectus, there has not been (A) any
material and unfavorable change, in the assets, operations, business or
condition (financial or otherwise), present or prospective, of the Company, the
Operating Partnership, the Financing Partnership and the Significant
Subsidiaries taken as a whole, (B) any transaction, which is material to the
Company, the Operating Partnership, the Financing Partnership and the
Significant Subsidiaries taken as a whole, entered into, or the terms of which
have been definitely agreed to, by the Company, the Operating Partnership, the
Financing Partnership or any of the Significant Subsidiaries or (C) other than
immaterial financing and refinancing activities in the ordinary course of
business, any obligation, contingent or otherwise, directly or indirectly
incurred by the Company, the Operating Partnership, the Financing Partnership
or any of the Significant Subsidiaries, which is material to the Company, the
Operating Partnership, the Financing Partnership and the Significant
Subsidiaries taken as a whole, (D) any dividend or distribution of any kind
declared, paid, or made by the Company on any class of its shares of beneficial
interest or by the Operating Partnership or the Financing Partnership with
respect to their partnership interests, other than regular quarterly dividend
payments, (E) any change in the shares of beneficial interest of the Company or
the partnership interests of the Operating Partnership, the Financing
Partnership or any Significant Subsidiary, other than issuances of common
shares pursuant to the Company's dividend reinvestment plan (F) any increase in
the indebtedness of the Company, the Operating Partnership, the Financing
Partnership or any Significant Subsidiary that is material to such entities,
taken as a whole, and (G) a material casualty loss or material condemnation or
other material adverse event with respect to the Properties (as the same is
defined in the Prospectus);
r. neither the Company, the Operating Partnership, the
Financing Partnership nor any of the Significant Subsidiaries is, and upon the
issuance and sale of the Shares as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectus will not be (i) an
"investment company" or a company "controlled" by an "investment company"
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within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), or (ii) a "holding company" or a "subsidiary
company" of a "registered holding company," as defined in the Public Utility
Holding Company Act of 1935, as amended;
s. the Shares being sold pursuant to this Agreement will
conform in all material respects to the description thereof contained in the
Registration Statement and Prospectus and will be in substantially the form
filed or incorporated by reference, as the case may be, as an exhibit to the
Registration Statement;
t. there are no persons with registration or other similar
rights to have any securities registered pursuant to the Registration Statement
or otherwise registered by the Company under the Securities Act;
u. the Company has and will at the Closing Time and on each
Date of Delivery have good and marketable title to the Shares to be sold on
such date by the Company hereunder, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind, other
than pursuant to this Agreement and upon delivery of such Shares and payment of
the purchase price therefor as herein contemplated, assuming the Underwriter
has no notice of any adverse claim (as such term is defined in the Uniform
Commercial Code as in effect in the State of New York), the Underwriter will
receive good and marketable title to the Shares purchased by it on such date
from the Company, free and clear of any security interest, mortgage, pledge,
lien, charge, claim, equity or encumbrance of any kind;
v. the Company, the Operating Partnership, the Financing
Partnership and the Significant Subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all personal
property owned by them, as described in the Prospectus, in each case free and
clear of all liens, encumbrances and defects except such as are described in
the Prospectus or such as do not materially adversely affect the value of such
property and do not materially adversely interfere with the use made and
proposed to be made of such property by the Company, the Operating Partnership,
the Financing Partnership and the Significant Subsidiaries; and any real
property and buildings described in the Prospectus as being held under lease by
the Company, the Operating Partnership, the Financing Partnership or any
Significant Subsidiary are held by it under valid, subsisting and enforceable
leases with such exceptions as are not material and do not materially adversely
interfere with the use made and proposed to be made of such property and
buildings by the Company, the Operating Partnership, the Financing Partnership
and the Significant Subsidiaries;
w. neither the Company nor the Operating Partnership, nor the
Financing Partnership, nor any of their trustees, directors, officers or
controlling persons has taken and will take, directly or indirectly, any action
which is designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Shares;
x. neither the Company nor any of its officers directly, or
indirectly through one or more intermediaries, controls or has any other
association with (within the meaning of Article 1 of the By-Laws of the
National Association of Securities Dealers, Inc. (the "NASD")), any member firm
of the NASD;
y. the Company has not relied upon the Underwriter or legal
counsel for the Underwriter for any legal, tax or accounting advice in
connection with the offering and sale of the Shares;
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z. the Company is organized in conformity with the
requirements for qualification as a real estate investment trust under the
Internal Revenue Code of 1986, as amended (the "Code"), the Company's method of
operation has enabled it to meet the requirements for qualification and
taxation as a real estate investment trust under the Code, and its method of
operation enables it to continue to meet the requirements for taxation as a
real estate investment trust under the Code;
aa. each of the Operating Partnership, the Finance
Partnership, and any other partnership in which the Company has a direct or
indirect interest is organized and operated to qualify as a partnership for
Federal income tax purposes, and not as an association or publicly traded
partnership taxable as a corporation; and neither the Company nor any of such
partnerships has received any communication from the Internal Revenue Service
regarding the status of any such partnership as a partnership for Federal
income tax purposes;
bb. with respect to each corporation in which the Company
owns more than 10% of the voting securities or whose securities account for
more than 5% of the fair market value of the Company's assets, the Company has
at all times owned 100% of all the equity interests in such corporation since
the corporation was formed;
cc. the documents incorporated or deemed to be incorporated
by reference in the Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder (the "Exchange Act Regulations") and, when read together
with the other information in the Prospectus, at the time the Registration
Statement became effective did not and will not include 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 light of the circumstances
under which they were made, not misleading;
dd. other than this Agreement, the Company is not a party to
any contract, agreement or understanding with any person that would give rise
to a valid claim against the Company for a brokerage commission, finder's fee
or like payment in connection with the sale of the Shares;
ee. no statement, representation, warranty or covenant made
by the Company or the Operating Partnership in any certificate or document
required by this Agreement to be delivered to the Underwriter was or will be,
when made, inaccurate, untrue or incorrect in any material respect; and
ff. any certificate signed by any authorized officer of the
Company, the Operating Partnership or any Significant Subsidiary delivered to
the Underwriter or to counsel for the Underwriter pursuant to or in connection
with this Agreement shall be deemed a representation and warranty by the
Company to the Underwriter as to the matters covered thereby.
4. Certain Covenants of the Company: The Company, the Operating
Partnership and the Financing Partnership hereby agree with the Underwriter:
a. to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as the Underwriter may designate and
to maintain such qualifications in effect as long as required for the
distribution of the Shares, provided that the Company shall not be required to
qualify as a foreign corporation or to consent to the service of process under
the laws of any such state (except service of process with respect to the
offering and sale of the Shares);
b. to prepare the Prospectus and Prospectus Supplement in a
form approved by the Underwriter and file such Prospectus and Prospectus
Supplement with the Commission pursuant
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to Rule 424(b) of the Securities Act Regulations not later than 10:00 a.m.
(Washington, D.C. time), on the day following the execution and delivery of
this Agreement and to furnish promptly (and with respect to the initial
delivery of such Prospectus and Prospectus Supplement, not later than 10:00
a.m. (Washington, D.C. time) on the day following the execution and delivery
of this Agreement) to the Underwriter as many copies of the Prospectus and the
Prospectus Supplement (or of the Prospectus as amended or supplemented if the
Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriter may reasonably
request for the purposes contemplated by the Securities Act Regulations, which
Prospectus and Prospectus Supplement and any amendments or supplements thereto
furnished to the Underwriter will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T;
c. to advise the Underwriter promptly and (if requested by
the Underwriter) to confirm such advice in writing, when the Registration
Statement has become effective and when any post-effective amendment thereto
becomes effective under the Securities Act Regulations;
d. to advise the Underwriter promptly, confirming such advice
in writing, of (i) any request by the Commission for amendments or supplements
to the Registration Statement or Prospectus or for additional information with
respect thereto, or (ii) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any Preliminary Prospectus, the Prospectus,
the Prospectus Supplement or of the suspension of the qualification of the
Shares for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes and, if the Commission
or any other government agency or authority should issue any such order, to
make every reasonable effort to obtain the lifting or removal of such order as
soon as possible; to advise the Underwriter promptly of any proposal to amend
or supplement the Registration Statement or Prospectus and to file no such
amendment or supplement to which the Underwriter shall reasonably object in
writing;
e. to furnish to the Underwriter for a period of five years
from the date of this Agreement (i) as soon as available, copies of all annual,
quarterly and current reports or other communications supplied to holders of
Preferred Shares, (ii) as soon as practicable after the filing thereof; copies
of all reports filed by the Company with the Commission, the NASD or any
securities exchange, and (iii) such other information as the Underwriter may
reasonably request regarding the Company, the Operating Partnership, the
Financing Partnership and the Significant Subsidiaries;
f. to advise the Underwriter promptly of the happening of any
event known to the Company, the Operating Partnership, or the Financing
Partnership within the time during which a Prospectus relating to the Shares is
required to be delivered under the Securities Act Regulations which, in the
judgment of the Company, would require the making of any change in the
Prospectus then being used so that the Prospectus would not include 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 light of the
circumstances under which they were made, not misleading, and, during such
time, to prepare and furnish, at the Company's expense, to the Underwriter
promptly such amendments or supplements to such Prospectus as may be necessary
to reflect any
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such change and to furnish to the Underwriter a copy of such proposed amendment
or supplement before filing any such amendment or supplement with the
Commission;
g. to furnish promptly to the Underwriter a signed copy of
the Registration Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto) and such number of
conformed copies of the foregoing as the Underwriter may reasonably request;
h. to furnish to the Underwriter, not less than two business
days before filing with the Commission subsequent to the effective date of the
Prospectus and during the period referred to in paragraph (f) above, a copy of
any document proposed to be filed with the Commission pursuant to Section 13,
14, or 15(d) of the Exchange Act;
i. the Company will apply the net proceeds of the sale of the
Shares in accordance with its statements under the caption "Use of Proceeds" in
the Prospectus;
j. to make generally available to its security holders as
soon as practicable an earning statement (in form, at the option of the
Company, complying with the provisions of Rule 158 of the Securities Act
Regulations) of the Company and its Significant Subsidiaries covering a period
of 12 months beginning after the effective date of the Registration Statement;
k. to use its best efforts to effect and maintain the
quotation of the Shares on the New York Stock Exchange and to file with the New
York Stock Exchange all documents and notices required by the New York Stock
Exchange of companies that have securities that are traded in the New York
Stock Exchange and quotations for which are reported by the New York Stock
Exchange;
l. to refrain during a period of 180 days from the date of
the Prospectus, without the prior written consent of the Underwriter, from (i)
offering, pledging, selling, contracting to sell, selling any option or
contract to purchase, purchasing any option or contract to sell, granting any
option for the sale of or otherwise disposing of or transferring, directly or
indirectly, any Shares or any securities convertible into or exercisable or
exchangeable for Shares, or filing any registration statement under the
Securities Act with respect to any of the foregoing or (ii) entering into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Shares, whether any such swap or transaction described in clause (i) or (ii)
above is to be settled by delivery of the Shares or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to the Shares to be
sold hereunder;
m. the Company will use its best efforts to meet the
requirements to continue to qualify as a "real estate investment trust" under
the Code;
n. the Company and the Operating Partnership will not invest,
reinvest or otherwise use the proceeds received by the Company or the Operating
Partnership from the sale of the Shares in such a manner, or take any action or
omit to take any action, that would cause the Company, the Operating
Partnership, or the Financing Partnership to become an "investment company" as
that term is defined in the investment Company Act;
o. neither the Company nor the Operating Partnership nor the
Financing Partnership will (A) take, directly or indirectly, any action
designed to cause or to result in, or that might reasonably be expected to
constitute, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares, (B) sell, bid for
or purchase the Shares or pay any person any compensation for soliciting
purchase of the Shares, or (C) pay or
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agree to pay to any person any compensation for soliciting another to purchase
any other securities of the Company; and
p. on or prior to the Closing Time, the Company will cause
Articles Supplementary relating to the Preferred Shares to be filed for record
with the SDAT in accordance with the laws of the State of Maryland.
5. Payment of Expenses:
a. The Company agrees to pay all costs and expenses incident
to the performance of its obligations under this Agreement, whether or not the
transactions contemplated hereunder are consummated or this Agreement is
terminated, including expenses, fees and taxes in connection with (i) the
preparation and filing of the Registration Statement, each Preliminary
Prospectus, the Prospectus, and any amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to the Underwriter and to
dealers (including costs of mailing and shipment), (ii) the preparation,
issuance and delivery of the certificates for the Shares to the Underwriter,
including any stock or other transfer taxes or duties payable upon the sale of
the Shares to the Underwriter, (iii) the printing of this Agreement and any
dealer agreements, and the reproduction and/or printing and furnishing of
copies of each thereof to the Underwriter and to dealers (including costs of
mailing and shipment), (iv) the qualification of the Shares for offering and
sale under state laws that the Company and the Underwriter have mutually agreed
are appropriate and the determination of their eligibility for investment under
state law as aforesaid assuming that the Shares are approved for quotation on
the New York Stock Exchange and the printing and furnishing of copies of any
blue sky surveys or legal investment surveys to the Underwriter and to dealers,
(v) reasonable legal fees, filing fees and other charges of counsel for the
Underwriter in connection with this Agreement and the offering and sale of the
Shares consistent with the terms of the engagement letter between the Company
and the Underwriter, (vi) filing for review of the public offering of the
Shares by the NASD, (vii) the fees and expenses of any transfer agent or
registrar for the Shares, (viii) the fees and expenses incurred in connection
with the inclusion of the Shares in the New York Stock Exchange, (ix) making
road show presentations with respect to the offering of the Shares, (x)
preparing and distributing a reasonable number of bound volumes of transaction
documents for the Underwriter and its legal counsel and (xi) the performance of
the Company's other obligations hereunder. Upon the Underwriter's request, the
Company will provide funds in advance for filing fees.
b. The Company agrees to reimburse the Underwriter for its
reasonable and documented out-of-pocket expenses in connection with the
performance of its activities under this Agreement, whether or not the
transactions contemplated hereunder are consummated or this Agreement is
terminated, including, but not limited to, costs such as reasonable printing,
facsimile, courier service, direct computer expenses, accommodations, travel
and the reasonable fees and expenses of the Underwriter's outside legal counsel
consistent with the terms of the engagement letter between the Company and the
Underwriter;
6. Conditions of the Underwriter's Obligations: The obligations
of the Underwriter hereunder are subject to the accuracy of the representations
and warranties on the part of the Company on the date hereof and at the Closing
Time and on each Date of Delivery, the performance by the Company of its
obligations hereunder and to the following conditions:
a. the Registration Statement shall have become effective
under the Securities Act and no stop order suspending the effectiveness of the
Registration Statement or any part thereof
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shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
Underwriter's and its counsel's reasonable satisfaction. A prospectus
containing information relating to the description of the Shares, the specific
method of distribution and similar matters shall have been filed within the
prescribed time period, and prior to the Closing Time with the Commission in
accordance with Rule 424(b) (or any required post-effective amendment providing
such information shall have been filed and declared effective in accordance
with the requirements of Rule 430A), or, if the Company has elected to rely
upon Rule 434 of the Securities Act Regulations, a Term Sheet including the
Rule 434 information shall have been filed with the Commission in accordance
with Rule 424(b)(7). The rating assigned by any nationally recognized
statistical rating organization to the Shares as of the date of this Agreement
shall not have been lowered since such date nor shall any such rating
organization have publicly announced that it has placed the Shares on what is
commonly termed a "watch list" for possible downgrading. There shall not have
come to the Underwriter's attention any facts that would cause the Underwriter
to believe that the Prospectus, together with the Prospectus Supplement, at the
time it was required to be delivered to purchasers of the Shares, included an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at such time, not misleading.
b. the Company shall furnish to the Underwriter at the
Closing Time and on each Date of Delivery an opinion of Xxxx Xxxxx Xxxx &
XxXxxx, counsel for the Company, addressed to the Underwriter and dated the
Closing Time and each Date of Delivery and in form satisfactory to Winston &
Xxxxxx, counsel for the Underwriter, stating that:
i. the Company has been duly organized and is validly
existing as a real estate investment trust in good standing under the laws of
the State of Maryland, with requisite power and authority to own its properties
and conduct its business as described in the Prospectus;
ii. the Company has an authorized capitalization as set
forth in the Prospectus under the caption "Description of Shares"; the
outstanding shares of beneficial interest of the Company have been duly and
validly authorized and issued and are fully paid and nonassessable; the terms
of the Shares conform in all material respects to all statements and
descriptions related thereto contained in the Prospectus;
iii. each of the Operating Partnership, the Financing
Partnership and each Significant Subsidiary has been duly organized and is
validly existing as a partnership or corporation, as the case may be, in good
standing (to the extent applicable) under the laws of its jurisdiction of
organization; the partnership agreement of the Operating Partnership has been
duly authorized, executed and delivered by the Company and the Operating
Partnership and, assuming the due authorization, execution and delivery where
applicable by each of the parties thereto other than the Company and the
Operating Partnership, constitutes valid and legally binding obligations of the
Company and the Operating Partnership, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium, and similar laws of general applicability relating to or affecting
creditors' rights and to the effect of general principles of equity; and the
partnership agreement of the Financing Partnership and each Significant
Subsidiary that is a partnership has been duly authorized, executed and
delivered by the parties thereto and, assuming the due authorization, execution
and delivery where applicable by each of
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the parties thereto other than the Company, the Operating Partnership, the
Financing Partnership and any Significant Subsidiary constitutes valid and
legally binding obligations of the Company, the Operating Partnership, and the
Significant Subsidiaries, as applicable, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium, and similar laws of general applicability relating to or affecting
creditors' rights and to the effect of general principles of equity (such
counsel being entitled to rely in respect of the opinion in this clause in
respect of matters of fact upon certificates of officers of the Company, the
Operating Partnership, the Financing Partnership or the Significant
Subsidiaries, provided that such counsel shall state that they believe that
both the Underwriter and they are justified in relying upon such certificates);
iv. each of the Company, the Operating Partnership, the
Financing Partnership and the Significant Subsidiaries has been duly qualified
or licensed as a foreign corporation, limited partnership, or otherwise, as
appropriate, for the transaction of business and is in good standing (to the
extent applicable) under the laws of each other jurisdiction in which such
qualification or license is required, whether by reason of the ownership,
leasing or management of any properties or the conduct of any other business,
except where the failure to be so qualified or licensed would not have a
material adverse effect on the assets, operations, business or condition
(financial or otherwise) of the Company, the Operating Partnership, the
Financing Partnership and the Significant Subsidiaries taken as a whole, (such
counsel being entitled to rely in respect of the opinion in this clause in
respect of matters of fact upon certificates of officers of the Company and
governmental authorities, provided that such counsel shall state that they
believe that both the Underwriter and they are justified in relying upon such
certificates);
v. to such counsel's knowledge and other than as set
forth in the Registration Statement or Prospectus or incorporated by reference
therein, there are no legal or governmental proceedings pending to which the
Company, the Operating Partnership, the Financing Partnership or any
Significant Subsidiary is a party or of which any property of the Company, the
Operating Partnership, the Financing Partnership or any Significant Subsidiary
is the subject which would individually or in the aggregate, be reasonably
expected to have a material adverse effect on the assets, operations, business
or condition (financial or otherwise) of the Company, the Operating
Partnership, the Financing Partnership and the Significant Subsidiaries taken
as a whole; and, to such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
vi. this Agreement has been duly authorized, executed,
and delivered by the Company, the Operating Partnership, the Financing
Partnership; the Shares have been duly and validly authorized by all necessary
corporate/trust action on the part of the Company, and when executed,
authenticated and delivered in accordance with this Agreement will be validly
issued, fully paid and non-assessable and will be valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms; the issuance of the Shares is not subject to any statutory
preemptive rights or, to counsel's knowledge, any contractual rights to
subscribe for more shares;
vii. to such counsel's knowledge, the Company, the
Operating Partnership, the Financing Partnership and the Significant
Subsidiaries are in compliance in all respects with all applicable laws,
orders, rules, regulations and directives, except for non-compliance which
would not have a material adverse effect on the assets, operations, business or
condition (financial or
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otherwise) of the Company, the Operating Partnership, the Financing Partnership
and the Significant Subsidiaries taken as a whole;
viii. to such counsel's knowledge, neither the Company,
the Operating Partnership, the Financing Partnership nor any of the Significant
Subsidiaries is in breach of or in default under (nor has any event occurred
which with notice, lapse of time, or both would constitute a breach of or
default under), any license, indenture, mortgage, deed of trust, loan or credit
agreement or any other agreement or instrument to which the Company, the
Operating Partnership, the Financing Partnership or any of the Significant
Subsidiaries is a party or by which any of them or their respective properties
may be bound or affected or under any law, regulation or rule or any decree,
judgment or order applicable to the Company, the Operating Partnership, the
Financing Partnership or any of the Significant Subsidiaries, except such
breaches or defaults which would not have a material adverse effect on the
assets, operations, business or condition (financial or otherwise) of the
Company, the Operating Partnership, the Financing Partnership and the
Significant Subsidiaries taken as a whole.
ix. the execution, delivery and performance of this
Agreement by the Company, the Operating Partnership and, the Financing
Partnership and the consummation by the Company, the Operating Partnership and
the Financing of the transactions contemplated hereby do not and will not
conflict with, or result in any breach of or constitute a default under (nor
constitute any event which with notice, lapse of time, or both would constitute
a breach of or default under), (i) any provisions of the declaration of trust,
the articles of incorporation, charter, by-laws, certificate of limited
partnership, partnership agreement or other organizational documents, as the
case may be, of the Company, the Operating Partnership, the Financing
Partnership or any Significant Subsidiary, (ii) to the knowledge of such
counsel, any provision of any license, indenture, mortgage, deed of trust, loan
or credit agreement or other agreement or instrument to which the Company, the
Operating Partnership, the Financing Partnership or any Subsidiary is a party
or by which any of them or their respective properties may be bound or
affected, or (iii) any law or regulation or any decree, judgment or order
applicable to the Company, the Operating Partnership, the Financing Partnership
or any Significant Subsidiary, except in the case of clause (ii) for such
conflicts, breaches or defaults which individually or in the aggregate would
not have a material adverse effect on the assets, operations, business or
condition (financial or otherwise) of the Company, the Operating Partnership,
the Financing Partnership and the Significant Subsidiaries taken as a whole;
x. no approval, authorization, consent or order of or
filing with any federal, state or local governmental or regulatory commission,
board, body, authority or agency is required in connection with the sale and
delivery of the Shares by the Company as contemplated hereby other than such as
have been obtained or made under the Securities Act and except that such
counsel need express no opinion as to any necessary qualification under the
state securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriter;
xi. to such counsel's knowledge, each of the Company,
the Operating Partnership, the Financing Partnership and the Significant
Subsidiaries has all necessary licenses, authorizations, consents and approvals
and has made all necessary filings required under any federal, state or local
law, regulation or rule, and has obtained all necessary authorizations,
consents and approvals from other persons, required in order to conduct their
respective businesses, except to
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the extent that any failure to have any such licenses, authorizations, consents
or approvals, to make any such filings or to obtain any such authorizations,
consents or approvals would not, individually or in the aggregate, have a
material adverse effect on the assets, operations, business or condition
(financial or otherwise) of the Company, the Operating Partnership, the
Financing Partnership and the Significant Subsidiaries taken as a whole; to
such counsel's knowledge, neither the Company, the Operating Partnership, the
Financing Partnership nor any of the Significant Subsidiaries is in violation
of or in default under, any such license, authorization, consent or approval or
any federal, state, local or foreign law, regulation or rule or any decree,
order or judgment applicable to the Company, the Operating Partnership, the
Financing Partnership or any of the Significant Subsidiaries the effect of
which could be material and adverse to the assets, operations, business or
condition (financial or otherwise) of the Company, the Operating Partnership,
the Financing Partnership and the Significant Subsidiaries taken as a whole;
xii. the Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined in
the Investment Company Act;
xiii. the sale of the Shares by the Company is not
subject to preemptive or other similar rights arising by operation of law,
under the declaration of trust or by-laws of the Company, to such counsel's
knowledge under any agreement to which the Company, the Operating Partnership,
the Financing Partnership or any of the Significant Subsidiaries is a party or,
to such counsel's knowledge, otherwise;
xiv. the Company has and will at the Closing Time and
on each Date of Delivery have good and marketable title to the Shares to be
sold on such date by the Company hereunder, free and clear of any security
interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of any
kind, other than pursuant to this Agreement; and upon delivery of such Shares
and payment of the purchase price therefor as herein contemplated, assuming the
Underwriter has no notice of any adverse claim (as such term is defined in the
Uniform Commercial Code as in effect in the State of New York), each
Underwriter will receive good and marketable title to the Shares purchased by
it on such date from the Company, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind;
xv. to such counsel's knowledge, there are no persons
with registration or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the Company
under the Securities Act;
xvi. the form of certificate used to evidence the
Shares complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the declaration of trust and
by-laws of the Company and the requirements of the New York Stock Exchange;
xvii. the Shares conform in all material respects to
the descriptions thereof contained in the Registration Statement and Prospectus
and have been duly authorized by the Company and are validly issued, fully paid
and nonassessable;
xviii. the Registration Statement has become effective
under the Securities Act and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings with respect thereto
have been commenced or threatened;
xix. the statements under the captions "Description of
Shares", "Certain Provisions of Maryland Law and Crown's Declaration of Trust
and Bylaws" and "Certain Federal Income Tax
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Considerations to Crown of its REIT Election" in the Registration Statement and
the Prospectus and the statements under the caption "Certain Federal Income Tax
Consequences" in the Prospectus Supplement, insofar as such statements
constitute matters of law or legal conclusions or constitute summaries of
documents described therein, fairly and accurately describe such legal matters
or documents and fairly and accurately summarize the matters referred to
therein;
xx. there are no actions, suits or proceedings pending
or, to such counsel's knowledge, threatened against the Company, the Operating
Partnership, the Financing Partnership or any of the Significant Subsidiaries
or any of their respective properties, at law or in equity, or before or by any
federal, state, local or foreign governmental or regulatory commission, board,
body, authority or agency which are required to be described in the Prospectus
but are not so described or incorporated by reference;
xxi. to such counsel's knowledge, there are no
contracts or documents of a character which are required to be filed as
exhibits to the Registration Statement or to be summarized or described in the
Prospectus which have not been so filed, summarized, described, or incorporated
therein by reference;
xxii. the Company is organized in conformity with the
requirements for qualification as a real estate investment trust under the
Code, the Company's method of operation has enabled it to meet the requirements
for qualification and taxation as a real estate investment trust under the
Code, and its method of operation enables it to continue to meet the
requirements for taxation as a real estate investment trust under the Code;
xxiii. at the time the Registration Statement became
effective, the Registration Statement and Prospectus (except for financial
statements and schedules and related notes included therein, and the other
financial, statistical, and accounting data included in the Registration
Statement or Prospectus as to which such counsel need not express any opinion),
excluding the documents incorporated by reference therein complied as to form
in all material respects with the requirements of the Securities Act and the
Securities Act Regulations;
xxiv. each document heretofore filed pursuant to the
Exchange Act and incorporated or deemed to be incorporated by reference in the
prospectus (except for financial statements and schedules and other financial
information included or incorporated by reference therein, as to which such
counsel need not express any opinion) complied as to form in all material
respects with the requirements of the Exchange Act and the applicable Exchange
Act Regulations in effect at the date of their respective filings; and
xxv. the Articles Supplementary relating to the Shares
have been filed for record with the SDAT pursuant to the laws of the State of
Maryland and the number of Shares and the title, par value, liquidation
preference, ranking, dividend rate or rates (or method of calculation),
dividend payment dates, redemption or sinking fund requirements, conversion
provisions and other terms of the Shares have been set forth therein.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company and
independent public accountants of the Company at which the contents of the
Registration Statement and Prospectus were discussed and, although such counsel
is not passing upon and does not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or Prospectus (except as and to the extent stated in subparagraphs
(xvii), (xix) and (xxi) above), on the basis of the foregoing, nothing has come
to the attention of such counsel that causes them to believe that
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the Registration Statement, the Preliminary Prospectus or the Prospectus, as of
their respective effective or issue dates and as of the date of such counsel's
opinion, 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, in light of the circumstances under which they were made, not
misleading (it being understood that, in each case, such counsel need express
no view with respect to the financial statements and other financial and
statistical data included in the Registration Statement, Preliminary Prospectus
or Prospectus).
a. (i) At the time of the execution of this Agreement, Xxxxxx
Xxxxxxxx LLP shall have furnished to the Underwriter a letter or letters, dated
such date, in form and substance satisfactory to the Underwriter, to the effect
set forth in Annex I hereto and (ii) at Closing Time, the Underwriter shall
have received from Xxxxxx Xxxxxxxx LLP a letter, dated as of the Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (c)(i) of this Section 6, and, if the Company has
elected to rely upon Rule 430A of the Securities Act Regulations, to the
further effect that they have carried out procedures specified in paragraph (v)
of Annex I with respect to certain amounts, percentages, and financial
information specified by and deemed to be part of the Registration Statement
pursuant to Rule 430A(b) and have found such amounts, percentages and financial
information to be in agreement with the records specified in such paragraph
(v).
b. The Underwriter shall have received at the Closing Time
and on each Date of Delivery the favorable opinion of Winston & Xxxxxx, counsel
for the Underwriter, dated the Closing Time or such Date of Delivery, in form
and substance satisfactory to the Underwriter.
c. No amendment or supplement to the Registration Statement
or Prospectus shall have been filed to which the Underwriter shall have
objected in writing.
d. Prior to the Closing Time and each Date of Delivery (i) no
stop order suspending the effectiveness of the Registration Statement or any
order preventing or suspending the use of any Preliminary Prospectus or
Prospectus has been issued by the Commission, and no suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes, has
occurred and (ii) the Registration Statement and the Prospectus shall not
contain an untrue statement of 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.
e. Between the time of execution of this Agreement and the
Closing Time or the relevant Date of Delivery (i) no material and unfavorable
change (other than as disclosed in the Registration Statement and Prospectus),
in the assets, operations, business or condition (financial or otherwise) of
the Company, the Operating Partnership and the Significant Subsidiaries taken
as a whole shall occur or become known and (ii) no transaction which is
material and unfavorable to the Company shall have been entered into by the
Company, the Operating Partnership or any of the Significant Subsidiaries.
f. At the Closing Time, the Shares shall have been approved
for inclusion in the New York Stock Exchange.
g. The NASD shall not have raised any objection with respect
to the fairness and reasonableness of the underwriting terms and arrangements.
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h. The Company will, at the Closing Time and on each Date of
Delivery, deliver to the Underwriter a certificate of its two principal
executive officers, Xxxxx X. Xxxxxxxxxxx and Xxxx X. Xxxxxxxxxxx, to the effect
that, to each of such officer's knowledge, the representations and warranties
of the Company set forth in this Agreement and the conditions set forth in
paragraphs (f), (g) and (h) have been met and are true and correct as of such
date.
i. The Company shall have furnished to the Underwriter such
other documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Prospectus as of the Closing
Time or any Date of Delivery as the Underwriter may reasonably request.
j. The Company, the Operating Partnership and the Financing
Partnership shall perform such of their obligations under this Agreement as are
to be performed by the terms hereof at or before the Closing Time or the
relevant Date of Delivery.
2. Termination: The obligations of the Underwriter hereunder
shall be subject to termination in the absolute discretion of the Underwriter,
at any time prior to the Closing Time or any Date of Delivery, if trading in
securities in the New York Stock Exchange shall have been suspended or minimum
prices shall have been established on the New York Stock Exchange, or if a
banking moratorium shall have been declared either by the United States or New
York State authorities, or if the United States shall have declared war in
accordance with its constitutional processes or there shall have occurred any
material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as, in the judgment of the Underwriter,
to make it impracticable to market the Shares.
If the Underwriter elects to terminate this Agreement as provided in
this Section 7, the Company and the Underwriter shall be notified promptly by
letter or facsimile.
If the sale to the Underwriter of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriter for any reason permitted under
this Agreement or if such sale is not carried out because the Company, the
Operating Partnership and the Financing Partnership shall be unable to comply
with any of the terms of this Agreement, the Company, the Operating Partnership
and the Financing Partnership shall not be under any obligation or liability
under this Agreement (except to the extent provided in Sections 5 and 8 hereof)
and the Underwriter shall be under no obligation or liability to the Company,
the Operating Partnership or the Financing Partnership under this Agreement
(except to the extent provided in Section 8 hereof) or to one another
hereunder.
1. Indemnity and Contribution by the Company and the
Underwriter:
a. The Company, the Operating Partnership and the Financing
Partnership, jointly and severally, agree to indemnify, defend and hold
harmless the Underwriter and any person who controls the Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any loss, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, the Underwriter
or controlling person may incur under the Securities Act, the Exchange Act or
otherwise, insofar as such loss, expense, liability or claim arises out of or
is based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or in the Registration Statement
as
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amended by any post-effective amendment thereof by the Company) or in a
Prospectus (the term Prospectus for the purpose of this Section 8 being deemed
to include any Preliminary Prospectus, the Prospectus and the Prospectus as
amended or supplemented by the Company), or arises out of or is based upon any
omission or alleged omission to state a material fact required to be stated in
either such Registration Statement or Prospectus or necessary to make the
statements made therein, in light of the circumstances under which they were
made, not misleading, except insofar as any such loss, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in and
in conformity with information furnished in writing by the Underwriter to the
Company expressly for use in such Registration Statement or such Prospectus,
provided, however; that the indemnity agreement contained in this subsection
(a) with respect to any Preliminary Prospectus shall not inure to the benefit
of the Underwriter (or to the benefit of any person controlling the
Underwriter) with respect to any person asserting any such loss, expense,
liability or claim which is the subject thereof if the Prospectus corrected any
such alleged untrue statement or omission and if the Underwriter failed to send
or give a copy of the Prospectus to such person at or prior to the written
confirmation of the sale of Shares to such person, unless such failure resulted
from noncompliance by the Company with Section 4(b). The statements set forth
in the last paragraph on the cover page and under the caption "Underwriting" in
the Preliminary Prospectus and the Prospectus (to the extent such statements
relate to the Underwriter) constitute the only information furnished by or on
behalf of the Underwriter to the Company for purposes of Sections 2(b) and this
Section 8(a).
If any action is brought against the Underwriter or controlling person
in respect of which indemnity may be sought against the Company, the Operating
Partnership or the Financing Partnership pursuant to the preceding paragraph,
the Underwriter shall promptly notify the Company in writing of the institution
of such action and the Company shall assume the defense of such action,
including the employment of counsel and payment of expenses. The Underwriter or
controlling person 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 the Underwriter or such controlling person unless the employment of
such counsel shall have been authorized in writing by the Company in connection
with the defense of such action or the Company shall not have employed counsel
to have charge of the defense of such action within a reasonable time or such
indemnified party or parties shall have reasonably concluded (based on the
advice of counsel) that there may be defenses available to it or them which are
different from or additional to those available to the Company (in which case
the Company 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 Company and paid as incurred (it being
understood, however, that the Company shall not be liable for the expenses of
more than one separate counsel for the Underwriter or controlling persons in
any one action or series of related actions in the same jurisdiction
representing the indemnified parties who are parties to such action). Anything
in this paragraph to the contrary notwithstanding, the Company, the Operating
Partnership and the Financing Partnership shall not be liable for any
settlement of any such claim or action effected without its written consent.
a. The Underwriter agrees to indemnify, defend and hold
harmless the Company, the
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Operating Partnership and the Financing Partnership and each of the Company's
directors and each of the Company's officers that signed the Registration
Statement and any person who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act from and against any
loss, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company, the Operating
Partnership and the Financing Partnership or each such other person may incur
under the Securities Act, the Exchange Act or otherwise, insofar as such loss,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in and in conformity
with information furnished in writing by the Underwriter through the
Underwriter to the Company expressly for use in the Registration Statement (or
in the Registration Statement as amended by any post-effective amendment
thereof by the Company) or in a Prospectus, or arises out of or is based upon
any omission or alleged omission to state a material fact in connection with
such information required to be stated either in such Registration Statement or
Prospectus or necessary to make such information, in light of the circumstances
under which made, not misleading.
If any action is brought against the Company, the Operating
Partnership or any such other person in respect of which indemnity may be
sought against the Underwriter pursuant to the foregoing paragraph, the
Company, the Operating Partnership, the Financing Partnership or such person
shall promptly notify the Underwriter in writing of the institution of such
action and the Underwriter shall assume the defense of such action, including
the employment of counsel and payment of expenses. The Company, the Operating
Partnership, the Financing Partnership or such person shall have the right to
employ its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of the Company, the Operating Partnership, the
Financing Partnership or such person unless the employment of such counsel
shall have been authorized in writing by the Underwriter in connection with the
defense of such action or the Underwriter shall not have employed counsel to
have charge of the defense of such action within a reasonable time or such
indemnified party or parties shall have reasonably concluded (based on the
advice of counsel) that there may be defenses available to it or them which are
different from or additional to those available to the Underwriter (in which
case the Underwriter 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 Underwriter and paid as incurred
(it being understood, however, that the Underwriter shall not be liable for the
expenses of more than one separate counsel in any one action or series of
related actions in the same jurisdiction representing the indemnified parties
who are parties to such action). Anything in this paragraph to the contrary
notwithstanding, the Underwriter shall not be liable for any settlement of any
such claim or action effected without the written consent of the Underwriter.
a. If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 8 in respect of any losses, expenses, liabilities or claims referred to
therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, expenses, liabilities or claims
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company, the Operating Partnership and the Financing
Partnership on the one hand and the Underwriter on the other hand
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from the offering of the Shares or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, the Operating Partnership and
the Financing Partnership on the one hand and of the Underwriter on the other
in connection with the statements or omissions which resulted in such losses,
expenses, liabilities or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Company, the Operating
Partnership and the Financing Partnership on the one hand and the Underwriter
on the other shall be deemed to be in the same proportion as the total proceeds
from the offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company or the Operating Partnership bear
to the underwriting discounts and commissions received by the Underwriter. The
relative fault of the Company, the Operating Partnership and the Financing
Partnership on the one hand and of the Underwriter on the other shall be
determined by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
relates to information supplied by the Company, the Operating Partnership, or
the Financing Partnership or by the Underwriter and the parties, relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result
of the losses, claims, damages and liabilities referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any claim or action.
b. The Company, the Operating Partnership, the Financing
Partnership and the Underwriter agree that it would not be just and equitable
if contribution pursuant to this Section 8 were determined by pro rata
allocation by any other method of allocation which does not take account of the
equitable considerations referred to in subsection (c) above. Notwithstanding
the provisions of this Section 8, (i) the Underwriter shall not 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 which the Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission and (ii) the Company, the Operating Partnership
and the Financing Partnership shall not be required to contribute any amount in
excess of the amount by which the proceeds received in connection herewith
exceed the amount of any damages which the Company 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
c. The indemnity and contribution agreements contained in
this Section 8 and the covenants, warranties and representations of the
Company, the Operating Partnership and the Financing Partnership contained in
this Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of the Underwriter, or any person who
controls the Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, or by or on behalf of the Company the
Operating Partnership or the Financing Partnership or the Company's directors
and officers or any person who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, and shall
survive any termination of this Agreement or the sale and delivery of the
Shares. The
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Company, the Operating Partnership, the Financing Partnership and the
Underwriter agree promptly to notify the others of the commencement of any
litigation or proceeding against it and, in the case of the Company, against
any of the Company's officers and directors, in connection with the sale and
delivery of the Shares, or in connection with the Registration Statement or
Prospectus.
2. Notices: Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriter, shall be sufficient in all respects if delivered or sent to
Friedman, Billings, Xxxxxx & Co., Inc., 0000 00xx Xxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxx 00000, Attention: Compliance Department; if to the Company, shall be
sufficient in all respects if delivered to the Company at the offices of the
Company at Xxxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: General
Counsel.
3. Governing Law; Headings: THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF MARYLAND WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES. The section headings in this Agreement
have been inserted as a matter of convenience of reference and are not a part
of this Agreement.
4. Parties at Interest: The Agreement herein set forth has been
and is made solely for the benefit of the Underwriter, the Company, the
Operating Partnership, the Financing Partnership and the controlling persons,
directors and officers referred to in Section 8 hereof; and their respective
successors, assigns, executors and administrators. No other person,
partnership, association or corporation (including a purchaser, as such
purchaser, from the Underwriter) shall acquire or have any right under or by
virtue of this Agreement.
5. Counterparts: This Agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement among
the parties.
[signature page follows]
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If the foregoing correctly sets forth the understanding among the
Company, the Operating Partnership, the Financing Partnership and the
Underwriter, please so indicate in the space provided below for the
purpose, whereupon this Agreement shall constitute a binding agreement
among the Company, the Operating Partnership and the Underwriter.
Very truly yours,
CROWN AMERICAN REALTY TRUST
By:
Name:
Title:
CROWN AMERICAN PROPERTIES, L.P.
By: CROWN AMERICAN REALTY TRUST
By:
Name:
Title:
CROWN AMERICAN FINANCING PARTNERSHIP
By: CROWN AMERICAN FINANCING CORPORATION
By:
Name:
Title:
Accepted and agreed to as
of the date first above written:
FRIEDMAN, BILLINGS, XXXXXX &
CO., INC.
By:
Name:
Title:
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ANNEX I
Pursuant to Section 6(c) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriter to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the
Securities Act and the applicable rules and regulations thereunder;
(i) In their opinion, the financial statements and any supplemental
financial information and schedules audited (and, if applicable,
and/or pro forma financial information examined) by them and included
in the Prospectus or the Registration Statement comply as to form in
all material respects with the applicable accounting requirements of
the Securities Act and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the unaudited consolidated interim financial
statements as indicated in their reports thereon, copies of which have
been furnished to the Underwriter;
(i) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the
Company for the five recent fiscal years included in the Prospectus
agrees with the corresponding amounts (after restatements where
applicable) in the audited consolidated financial statements for such
five fiscal years for such fiscal years;
(i) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included in the Prospectus,
inquiries of officials of the Company and its subsidiaries responsible
for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
A) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of
the Securities Act and the related published rules and
regulations thereunder, or are not in conformity with generally
accepted accounting principles applied on a basis substantially
consistent with the basis for the audited consolidated
statements of income, consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus;
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A) Any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
included in the Prospectus;
A) the unaudited financial statements which were not included
in the Prospectus but from which were derived any unaudited
condensed financial statements referred to in Clause (A) and any
unaudited income statement data and balance sheet items included
in the Prospectus and referred to in Clause (B) were not
determined on a basis substantially consistent with the basis
for the audited consolidated financial statements included in
the Prospectus;
A) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the
consolidated capital shares (other than issuances of capital
shares upon exercise of options and share appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest financial statements included in the
Prospectus) or any increase in the consolidated long-term debt
of the Company and its subsidiaries, or any decreases in
consolidated net current assets or other items specified by the
Underwriter or any increases in any items specified by the
Underwriter, in each case as compared with amounts shown in the
latest balance sheet included in the Prospectus, except in each
case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
A) for the period from the date of the latest financial
statements included in the Prospectus to the specified date
referred to in Clause (D) there were any decreases in
consolidated net revenues or operating profit or the total or
per share amounts of consolidated net income or other items
specified by the Underwriter, or any increases in any items
specified by the Underwriter, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the Underwriter,
except in each case for decreases or increases which the
Prospectus discloses have occurred or may occur or which are
described in such letter.
(I) in addition to the audit referred to in their report(s) included
in the Prospectus and the limited procedures, inspection of minute books,
inquiries and other procedures referred to in paragraphs (iii) and (iv) above,
they have carried out certain specified procedures, not constituting an audit
in accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Underwriter, which are derived from the general accounting records of the
Company and its subsidiaries, which appear in
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the Prospectus, or in exhibits and schedules to the Registration Statement
specified by the Underwriter, and have compared certain of such amounts,
percentages and financial information with the accounting records of the
Company and its subsidiaries and have found them to be in agreement.
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TABLE OF CONTENTS
PAGE
UNDERWRITING AGREEMENT .................................................. 1
1. Sale and Purchase ................................................... 2
2. Payment and Delivery ................................................ 3
3. Representations and Warranties of the Company ....................... 4
4. Certain Covenants of the Company .................................... 11
5. Payment of Expenses ................................................. 13
6. Conditions of the Underwriter's Obligations ......................... 14
7. Termination ......................................................... 21
8. Indemnity and Contribution by the Company and the Underwriter ....... 22
9. Notices ............................................................. 25
10. Governing Law; Headings ............................................. 25
11. Parties at Interest ................................................. 25
12. Counterparts ........................................................ 25
Annex I ................................................................. 27
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