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EXHIBIT 1.2
PAN PACIFIC RETAIL PROPERTIES, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
1. Introductory. Pan Pacific Retail Properties, Inc., a Maryland
corporation ("COMPANY"), proposes to issue and sell from time to time certain of
its unsecured debt securities registered under the registration statement
referred to in Section 2(a) ("REGISTERED SECURITIES"). The Registered Securities
will be issued under an indenture, dated as of April 6, 2001 (the "INDENTURE"),
between the Company and The Bank of New York, as trustee ("TRUSTEE"), in one or
more series, which series may vary as to interest rates, maturities, redemption
provisions, selling prices and other terms, with all such terms for any
particular series of the Registered Securities being determined at the time of
sale. Particular series of the Registered Securities will be sold pursuant to a
Terms Agreement referred to in Section 3, for resale in accordance with terms of
offering determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "OFFERED SECURITIES". The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"UNDERWRITERS" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "REPRESENTATIVES"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in Sections
2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company, as of
the date of each Terms Agreement referred to in Section 3, represents and
warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (No. 333-63743), as
amended by Amendment No. 1 thereto, including a prospectus, relating to
the Registered Securities has been filed with the Securities and
Exchange Commission ("COMMISSION") and has become effective. Such
registration statement, as amended at the time of any Terms Agreement
referred to in Section 3, is hereinafter referred to as the
"REGISTRATION STATEMENT", and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3 to
reflect the terms of the Offered Securities and the terms of offering
thereof, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("RULE 424(b)") under the Securities Act of
1933, as amended ("ACT"), including all material incorporated by
reference therein, is hereinafter referred to as the "PROSPECTUS". No
document has been or will be prepared or distributed in reliance on
Rule 434 under the Act.
(b) On the effective date of the registration statement relating to
the Registered Securities and certain other securities, such
registration statement conformed in all material respects to the
requirements of the Act, the Trust Indenture Act of 1939 ("TRUST
INDENTURE ACT") and the rules and regulations of the Commission under
the Act and the Trust Indenture Act ("RULES AND REGULATIONS"), and the
Registration Statement did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
on the date of each Terms Agreement referred to in Section 3, the
Registration Statement and the Prospectus will conform in all material
respects to the requirements of the Act, the Trust Indenture Act and
the Rules and Regulations, and the Prospectus does not and, on the date
of each Terms Agreement referred to in Section 3, the Prospectus will
not, include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein in
light of the circumstances under which they were made, not misleading,
except that the foregoing representations and warranties do not apply
to statements in or omissions from any of such documents based upon
written information furnished to the Company by any Underwriter through
the Representatives, if any, specifically for use therein.
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(c) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Maryland;
the Company has power and authority (corporate and other) to own, lease
and operate its properties and conduct its business as described in the
Registration Statement and the Prospectus; the Company is duly
qualified to transact business as a foreign corporation and is in good
standing in the State of California, the State of Florida, the State of
Nevada, the State of Oregon and the State of Washington; and the
Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which such
qualification is required, except where the failure to be so qualified
or in good standing would not have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries considered as one
enterprise ("MATERIAL ADVERSE EFFECT").
(d) Attached hereto as Annex I is a true and complete list of all
subsidiaries of the Company and all other corporations, partnerships,
joint ventures, limited liability companies and other entities in which
the Company directly or indirectly owns capital stock or any other
equity or ownership interest. Annex I accurately sets forth the
jurisdiction of organization of, and the Company's approximate
percentage ownership interest in, each such subsidiary and other
entity. The Company does not have any subsidiaries other than those
listed on Annex I and, except as set forth in Annex I, the Company does
not directly or indirectly own any capital stock or other equity or
other ownership interests in any corporation, partnership, joint
venture, limited liability company or other entity. Annex I also
correctly indicates whether each such subsidiary and other entity
listed thereon is a corporation, partnership, limited liability company
or other type of entity.
(e) Each subsidiary of the Company has been duly organized and is
validly existing and in good standing under the laws of the
jurisdiction of its organization, has power and authority to own, lease
and operate its property and conduct its business as described in the
Registration Statement and the Prospectus, and is duly qualified to
transact business and is in good standing in each jurisdiction in which
such qualification is required, except where the failure to be so
qualified or in good standing would not have a Material Adverse Effect;
and (A) all of the issued and outstanding shares of capital stock of
each such subsidiary that is a corporation have been duly authorized
and validly issued, are fully paid and non-assessable and, except as
set forth on Annex I, are and, at all times since the date on which
such subsidiary was organized, have been owned by the Company, directly
or through wholly-owned subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity, (B) all
of the issued and outstanding limited liability company interests of
each such subsidiary that is a limited liability company have been duly
authorized and validly issued (under applicable law and the limited
liability company agreement of such subsidiary), are fully paid and
non-assessable and, except as set forth on Annex I, are owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity, and (C) all of the issued and outstanding limited and general
partnership interests of each such subsidiary that is a partnership
have been duly authorized (if applicable) and validly issued and,
except as set forth on Annex I, are owned by the Company, directly or
through subsidiaries free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(f) The Company and its subsidiaries own or possess or have
obtained all material governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to lease or own, as the
case may be, and to operate their respective properties and to carry on
their respective businesses as contemplated in the Prospectus.
(g) The partnership agreements of the Company's subsidiaries (which
are partnerships) have been duly authorized, executed and delivered by
the general partners thereof and constitute the valid and binding
obligations of the general partners thereof. Except as disclosed in the
Prospectus, such partnership agreements reflect the Company and/or one
or more of the Company's subsidiaries as the sole beneficial owners of
the partnership interests in such partnerships. The operating
agreements of the Company's subsidiaries (which are limited liability
companies) have been duly authorized, executed and delivered by the
members thereof and constitute the valid and binding obligations of the
members thereof. Such
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operating agreements reflect the Company and/or one or more of the
Company's subsidiaries as the sole beneficial owners of all the
membership interests in such limited liability companies.
(h) The Indenture has been duly authorized by the Company and has
been duly qualified under the Trust Indenture Act and, at the Closing
Date (as hereinafter defined), will have been duly executed and
delivered by the Company and will constitute a legally valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditor's rights generally or by
general equitable principles.
(i) The Offered Securities have been duly authorized and, at the
Closing Date, will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor specified in the Terms
Agreement, will constitute legally valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally or by general equitable
principles, and will be entitled to the benefits of the Indenture.
(j) The Offered Securities and the Indenture will conform in all
material respects to the respective statements relating thereto
contained in the Prospectus and will be in substantially the respective
forms filed or incorporated by reference, as the case may be, as
exhibits to the Registration Statement.
(k) The Offered Securities rank and will rank on a parity with all
unsecured indebtedness of the Company (other than subordinated
indebtedness of the Company) that is outstanding on the date hereof or
that may be incurred hereafter, and senior to all subordinated
indebtedness of the Company that is outstanding on the date hereof or
that may be incurred hereafter.
(l) The Terms Agreement (including the provisions of this
Agreement) has been duly authorized, executed and delivered by the
Company.
(m) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY
RIGHTS") necessary to conduct the business now operated by them, or
presently employed by them, and neither the Company nor any such
subsidiary has received any notice of infringement of or conflict with
asserted rights of any third party with respect to any of the foregoing
which, singly or in the aggregate if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect.
(n) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Company, threatened against or affecting the
Company or any of its subsidiaries, which is required to be disclosed
in the Registration Statement or the Prospectus or which might result
in any Material Adverse Effect or which might materially and adversely
affect the properties or assets of the Company or any of its
subsidiaries which has not been so disclosed; and there are no
contracts or documents of the Company or any of its subsidiaries which
are required to be filed as exhibits to the Registration Statement or
any document incorporated or deemed to be incorporated therein by the
Act, the Rules and Regulations, the Exchange Act (as hereinafter
defined) or the rules and regulations of the Commission thereunder
which have not been so filed.
(o) The financial statements of the Company included in the
Registration Statement and Prospectus in each case, together with the
related notes and supporting schedules (if any), present fairly the
financial position of the Company and its consolidated subsidiaries as
of the dates shown and their results of operations and cash flows for
the periods shown, and such financial statements and related notes and
schedules have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent
basis; and with respect to the pro forma financial statements included
in the Registration
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Statement and Prospectus, the assumptions used in preparing the pro
forma financial statements included in the Registration Statement and
the Prospectus are reasonable, the related pro forma adjustments have
been applied, in accordance with the applicable accounting requirements
of the Act and the Rules and Regulations (including, without
limitation, Regulation S-X promulgated by the Commission), and such pro
forma adjustments have been properly applied to the corresponding
historical amounts in the compilation of such statements.
(p) The accountants who have certified the financial statements and
supporting schedules included in the Registration Statement and the
Prospectus are independent public accountants as required by the Act
and the Rules and Regulations.
(q) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus and except for regular
quarterly dividends payable on our common stock and our preferred
stock, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(r) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(s) Neither the Company nor any of its subsidiaries is in violation
of its charter or by-laws, certificate of limited partnership, limited
partnership agreement, certificate of formation of a limited liability
company, limited liability company agreement or other similar
organizational certificates, instruments, agreements or documents
(collectively, "ORGANIZATIONAL DOCUMENTS"), as the case may be; neither
the Company nor any of its subsidiaries is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or by
which it or any of its property or assets may be bound, except for such
defaults which would not, individually or in the aggregate, have a
Material Adverse Effect; and the execution, delivery and performance of
the Terms Agreement (including the provisions of this Agreement), the
Indenture and the Offered Securities, the consummation of the
transactions contemplated herein and therein (including, without
limitation, the incurrence of the indebtedness evidenced by the Offered
Securities), and compliance by the Company with its obligations
hereunder and thereunder, have been duly authorized by all necessary
corporate action and will not conflict with or result in a breach or
violation of, or default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the provisions
of the Organizational Documents of the Company or its subsidiaries or
any applicable law, administrative regulation or administrative or
court decree; and no consent, approval, authorization or order of or
filing with any court or governmental authority or agency is required
for the consummation by the Company of the transactions contemplated by
the Terms Agreement (including the provisions of this Agreement), the
Indenture or the Offered Securities, except such as have been obtained
and made under the Act and the Trust Indenture Act and such as may be
required under state securities or Blue Sky laws of any jurisdiction or
real estate syndication laws in connection with the purchase and
distribution of the Offered Securities by the Underwriters. Except as
otherwise described in the Prospectus, no subsidiary of the Company is
a guarantor of, or is a party to or bound by any instrument or
agreement pursuant to which it has guaranteed or may be required to
guarantee or cause another subsidiary of the Company to guarantee, any
borrowings or other indebtedness of the Company. Except as otherwise
described in the Prospectus, the Company is not a party to or bound by
any instrument or agreement
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pursuant to which it is or may be required to cause any of its
subsidiaries to guarantee any borrowings or other indebtedness of the
Company.
(t) No subsidiary of the Company is currently prohibited, directly
or indirectly, from paying any dividends to the Company, from making
any other distribution on such subsidiary's capital stock or
partnership interests, from repaying to the Company any loans or
advances to such subsidiary from the Company or from transferring any
of such subsidiary's property or assets to the Company or any other
subsidiary of the Company, except as described or contemplated by the
Prospectus and except pursuant to (i) existing indebtedness as in
effect on the date hereof, (ii) the Company's revolving credit
facility, (iii) applicable law and (iv) with respect to prohibitions
only against transferring any of such subsidiary's property or assets
to the Company or any other subsidiary of the Company, (A) customary
non-assignment provisions contained in leases to which the Company or
any of its subsidiaries is a party and (B) security interests,
including purchase money obligations, applicable to any property of the
Company or any of its subsidiaries as of the date hereof.
(u) The Company was and is organized to qualify as a "real estate
investment trust" under the Internal Revenue Code of 1986, as amended
(the "CODE"); the Company at all times since its organization has
elected to be taxed as a "real estate investment trust"; the Company
has qualified as a "real estate investment trust" under the Code for
all tax years since its taxable year ended December 31, 1997, and will
continue to qualify as a "real estate investment trust" under the Code
after consummation of the transactions contemplated by the Prospectus;
and the Company's present and contemplated operations, assets and
income will enable the Company to meet the requirements for
qualification as a "real estate investment trust" under the Code. The
Company has filed United States Federal income tax returns for each of
its fiscal years through and including the fiscal year ended December
31, 1999 but has not yet filed a United States Federal income tax
return for the fiscal year ended December 31, 2000.
(v) Other than Esave, Inc., each entity listed on Annex I either
qualifies as a partnership for federal, state and local income tax
purposes, as a "qualified REIT subsidiary" within the meaning of
Section 856(i) of the Code, as a "Taxable REIT Subsidiary" within the
meaning of Section 856(l) of the Code or qualifies to be disregarded as
an entity separate from the Company or one of its subsidiaries for
Federal, state and local income tax purposes, and the securities the
Company owns will not cause the Company to be treated as owning
securities in excess of the permissible limits under Section 856(c)(4)
of the Code.
(w) The Company is eligible to use a Form S-3 registration
statement under the Act.
(x) The Company has full right, power and authority to enter into
the Terms Agreement (including the provisions of this Agreement), the
Indenture and the Offered Securities.
(y) Except as otherwise disclosed in the Prospectus, (A) the
Company and its subsidiaries have good and marketable title in fee
simple to all real property and improvements described in the
Prospectus as being owned by the Company (none of which is leased by
the Company or any of its subsidiaries, as lessee); (B) all liens,
charges, encumbrances, claims or restrictions on or affecting the real
property and improvements of the Company or any of its subsidiaries
which are required to be disclosed in the Prospectus are disclosed
therein; (C) neither the Company nor any of its subsidiaries nor any
lessee of any portion of the real property or improvements of the
Company or any of its subsidiaries is in default under any of the
leases pursuant to which the Company or any of its subsidiaries leases
(as lessor) its real property or improvements and the Company knows of
no event which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases, except such
defaults that would not, individually or in the aggregate, have a
Material Adverse Effect; (D) no tenant under any of the leases pursuant
to which the Company or any of its subsidiaries leases any of its real
property or improvements has an option or right of first refusal to
purchase the premises demised under such lease; (E) all of the real
property and improvements of the Company and its subsidiaries comply
with all applicable codes and zoning laws and regulations, except for
such failures to comply which would not, individually or in the
aggregate, have a Material Adverse Effect; and (F) the Company has no
knowledge of any pending
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or threatened condemnation, zoning change or other proceeding or action
that would in any manner affect the size of, use of, improvements on,
construction on, or access to any of the real property of the Company
or any of its subsidiaries, except such proceedings or actions that
would not, individually or in the aggregate, have a Material Adverse
Effect.
(z) No default exists, and no event has occurred which, with notice
or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or any of their
respective properties is bound or may be affected in any material
adverse respect with regard to the property, business or operations of
the Company and its subsidiaries taken as a whole.
(aa) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (C) access to assets is permitted
only in accordance with management's general or specific
authorizations; and (D) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. Neither the Company
nor any of its subsidiaries nor any of their respective employees or
agents has made any payment of funds of the Company or any of its
subsidiaries or received or retained any funds in violation of any law,
rule or regulation which payment, receipt or retention of funds is of a
character required to be disclosed in the Prospectus.
(bb) Except as otherwise disclosed in the Registration Statement
(A) to the best knowledge and information of the Company, neither the
Company nor any of its subsidiaries has at any time, and no other party
has at any time, handled, buried, stored, retained, refined,
transported, processed, manufactured, generated, produced, spilled,
allowed to seep, leak, escape or xxxxx, or pumped, poured, emitted,
emptied, discharged, injected, dumped, transferred or otherwise
disposed of or dealt with Hazardous Materials (hereinafter defined) on,
to or from real property owned, leased or otherwise utilized by the
Company or any of its subsidiaries or in which the Company or any of
its subsidiaries has any ownership interest, including without
limitation any subsurface soils and ground water (the "PREMISES"),
except for such cases as (u) are not required to be disclosed in the
Registration Statement and (v) would not, individually or in the
aggregate, have a Material Adverse Effect, (B) to the best knowledge
and information of the Company, no seepage, leak, escape, xxxxx,
discharge, injection, release, emission, spill, pumping, pouring,
emptying or dumping of Hazardous Materials from or to the Premises has
occurred, except for such cases as (w) are not required to be disclosed
in the Registration Statement and (x) would not, individually or in the
aggregate, have a Material Adverse Effect, (C) neither the Company nor
any of its subsidiaries has received notice of any claim, or has
knowledge of any occurrence or circumstance which with notice or
passage of time or both would give rise to a claim, under or pursuant
to any Environmental Statute (as hereinafter defined), except for such
claims as (y) are not required to be disclosed in the Registration
Statement and (z) would not, individually or in the aggregate, have a
Material Adverse Effect, and (D) to the best of Company's knowledge and
information, no part of the Premises is included or proposed for
inclusion on the National Priorities List issued pursuant to CERCLA
(hereinafter defined) by the United States Environmental Protection
Agency (the "EPA") or on the inventory of other potential "problem"
sites issued by the EPA and has not otherwise been identified by the
EPA as a potential CERCLA site or included or proposed for inclusion on
any list or inventory issued pursuant to any other Environmental
Statute or issued by any other Governmental Authority (hereinafter
defined). As used herein "Hazardous Materials" shall include without
limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances, or related
materials, asbestos or any material containing asbestos, or any other
substance or material as defined by any Federal, state or local
environmental law, ordinance, rule, or regulation including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.)
("CERCLA"), the Hazardous Materials Transportation Act, as amended (49
U.S.C. Sections 1801, et seq.), the Resource
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Conservation and Recovery Act, as amended (42 U.S.C. Sections 6901 et
seq.), and in the regulations adopted and publications promulgated
pursuant to each of the foregoing (individually, an "ENVIRONMENTAL
STATUTE") or by any Federal, state or local governmental authority
having or claiming jurisdiction over the Premises (a "GOVERNMENTAL
AUTHORITY").
(cc) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, when they
were filed with the Commission, complied in all material respects to
the requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and the published rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and any further documents so filed and incorporated or
deemed to be incorporated by reference, when they are filed with the
commission, will comply in all material respects to the requirements of
the Exchange Act and the published rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("TERMS AGREEMENT") at the
time the Company determines to sell the Offered Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount to be
purchased by each Underwriter, the purchase price to be paid by the Underwriters
and the terms of the Offered Securities not already specified in the Indenture,
including, but not limited to, interest rate, maturity, any redemption
provisions and any sinking fund requirements. The Terms Agreement will also
specify the time and date of delivery and payment (such time and date, or such
other time not later than seven full business days thereafter as the Underwriter
first named in the Terms Agreement (the "LEAD UNDERWRITER") and the Company
agree as the time for payment and delivery, being herein and in the Terms
Agreement referred to as the "CLOSING DATE"), the place of delivery and payment
and any details of the terms of offering that should be reflected in the
prospectus supplement relating to the offering of the Offered Securities. For
purposes of Rule 15c6-1 under the Exchange Act, the Closing Date (if later than
the otherwise applicable settlement date) shall be the date for payment of funds
and delivery of securities for all the Offered Securities sold pursuant to the
offering. The obligations of the Underwriters to purchase the Offered Securities
will be several and not joint. It is understood that the Underwriters propose to
offer the Offered Securities for sale as set forth in the Prospectus.
If the Terms Agreement specifies "Book-Entry Only" settlement or
otherwise states that the provisions of this paragraph shall apply, the Company
will deliver against payment of the purchase price the Offered Securities in the
form of one or more permanent global securities in definitive form (the "GLOBAL
SECURITIES") deposited with the Trustee as custodian for The Depository Trust
Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC.
Interests in any permanent global securities will be held only in book-entry
form through DTC, except in the limited circumstances described in the
Prospectus. Payment for the Offered Securities shall be made by the Underwriters
in Federal (same day) funds by official check or checks or wire transfer to an
account previously designated by the Company at a bank acceptable to the Lead
Underwriter, in each case drawn to the order of the Company at the place of
payment specified in the Terms Agreement on the Closing Date, against delivery
to the Trustee as custodian for DTC of the Global Securities representing all of
the Offered Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters one
signed copy of the registration statement relating to the Registered Securities,
including all exhibits, in the form it became effective and of all amendments
thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by the Lead Underwriter, subparagraph (5)) not
later than the second business day following the execution and delivery
of the Terms Agreement.
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(b) The Company will advise the Lead Underwriter promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Lead Underwriter a reasonable
opportunity to comment on any such proposed amendment or supplement;
and the Company will also advise the Lead Underwriter promptly of the
filing of any such amendment or supplement and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will notify the Lead Underwriter of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither the
Lead Underwriter's consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5 hereof.
(d) As soon as practicable, but not later than 16 months, after the
date of each Terms Agreement, the Company will make generally available
to its securityholders an earnings statement covering a period of at
least 12 months beginning after the later of (i) the effective date of
the registration statement relating to the Registered Securities, (ii)
the effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such
Terms Agreement and (iii) the date of the Company's most recent Annual
Report on Form 10-K filed with the Commission prior to the date of such
Terms Agreement, which will satisfy the provisions of Section 11(a) of
the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the
Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the Lead
Underwriter reasonably requests. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as the Lead
Underwriter designates and will continue such qualifications in effect
so long as required for the distribution.
(g) During the period of five years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to
the Representatives (i) as soon as available, a copy of each report and
any definitive proxy statement of the Company filed with the Commission
under the Exchange Act or mailed to stockholders, and (ii) from time to
time, such other information concerning the Company as the Lead
Underwriter may reasonably request.
(h) The Company will pay all expenses incident to the performance
of its obligations under the Terms Agreement (including the provisions
of this Agreement), for any filing fees or other expenses (including
reasonable legal fees and disbursements of counsel) in connection with
qualification or exemption of the Registered Securities for sale under
the securities and real estate syndication laws of such jurisdictions
as the Lead Underwriter may designate and the printing of memoranda
relating thereto, any fees charged by investment rating agencies for
the rating of the Offered Securities, any applicable filing fee and
expense incident to, any review by the National Association of
Securities Dealers, Inc. of the Registered Securities, all expenses
incident to the registration of the Offered Securities and the printing
and the wordprocessing of copies of the Registration Statement, any
prospectus and this Agreement, the fees and expenses of the
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Trustee, including if required the fees and disbursements of counsel
for the Trustee in connection with the Indenture and the Offered
Securities, the fees and expenses of any depositary in connection with
holding the Offered Securities in book-entry form, any travel expenses
of the Company's officers and employees and any other expenses of the
Company in connection with attending or hosting meetings with
prospective purchasers of Registered Securities and expenses incurred
in distributing the Prospectus, any preliminary prospectus supplements
or any other amendments or supplements to the Prospectus to the
Underwriters.
(i) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, United States
dollar-denominated debt securities issued or guaranteed by the Company
and having a maturity of more than one year from the date of issue or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of the Lead
Underwriter for a period beginning at the time of execution of the
Terms Agreement and ending on the date specified under "Blackout" in
the Terms Agreement.
(j) The Company will use the net proceeds received by it from the
sale of the Offered Securities sold by it in the manner specified in
the Prospectus Supplement under "Use of Proceeds".
(k) The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the
Code.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Offered Securities will
be subject to the accuracy of the representations and warranties on the part of
the Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of KPMG LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating in effect that:
(i) in their opinion the financial statements and
schedules and pro forma condensed consolidated financial
statements and any summary of earnings examined by them and
included in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on any unaudited financial statements included in
the Registration Statement;
(iii) on the basis of the review referred to in clause
(ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements, if any,
and any summary of earnings included in the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements
of the Act and the related published Rules and
Regulations or any material modifications should be
made to such unaudited financial statements and
summary of earnings for them to be in conformity
with generally accepted accounting principles;
(B) if any unaudited "capsule" information is
contained in the Prospectus, the unaudited
consolidated net operating income, net income, net
income per share, total revenue or funds from
operations of the Company or other amounts
constituting such
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"capsule" information and described in such letter
do not agree with the corresponding amounts set
forth in the unaudited consolidated financial
statements or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited statements of
income;
(C) at the date of the latest available balance
sheet read by such accountants, or at a subsequent
specified date not more than three business days
prior to the date of the such letter, there was any
change in the capital stock or any increase in
short-term indebtedness or long-term debt of the
Company and its consolidated subsidiaries or, at the
date of the latest available balance sheet read by
such accountants, there was any decrease in
consolidated net current assets, net assets or
stockholder's equity, as compared with amounts shown
on the latest balance sheet included in the
Prospectus; or
(D) for the period from the closing date of the
latest income statement included in the Prospectus
to the closing date of the latest available income
statement read by such accountants there were any
decreases, as compared with the corresponding period
of the previous year, in consolidated revenues or
funds from operations or total or per-share amounts
of income or net income;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter;
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Prospectus (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter; and
(v) on the basis of a reading of the unaudited pro forma
condensed financial statements, inquiries of officials of the
Company who have responsibility for financial and accounting
matters, and other specified procedures, nothing came to their
attention that caused them to believe that:
(A) the unaudited pro forma condensed financial
statements do not comply as to form in all material
respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X; and
(B) that the pro forms adjustments have not been
properly applied to the historical amounts in the
compilation of those statements.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or any Underwriter, shall be contemplated
by the Commission.
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(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any change, or any development or event involving
a prospective change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as one enterprise which, in the judgment of a majority in
interest of the Underwriters including any Representatives, is material
and adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such
rating); (iii) any material suspension or material limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (iv) any banking moratorium declared
by U.S. Federal or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved,
any declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Underwriters including any Representatives, the
effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities.
(d) (i) The Representatives shall have received an opinion, dated
the Closing Date, of Xxxxxx & Xxxxxxx, counsel for the Company,
substantially to the effect that:
(a) based solely on certificates from public officials,
the Company is duly qualified to transact business as a
foreign corporation and is in good standing under the laws of
the States of California, Florida, Oregon, Nevada and
Washington;
(b) each of Pan Pacific (Clackamas), Inc., a Delaware
corporation, Pan Pacific (Portland), LLC, a Delaware limited
liability company, Pan Pacific Development (Chino) Inc., a
Delaware corporation, and Pan Pacific (Xxxxxx) LP, a Delaware
limited partnership (the "Covered Subsidiaries") is validly
existing and in good standing as a corporation, limited
partnership, or limited liability company, as the case may be,
under the laws of the State of their organization;
(c) based solely on certificates from public officials,
such counsel confirms that each Covered Subsidiary is duly
qualified to transact business as a corporation, partnership
or limited liability company (as the case may be) and is in
good standing under the laws of its respective state of
incorporation or formation and primary place of business;
(d) the Covered Subsidiaries have corporate, partnership
or limited liability power and authority (as the case may be)
to own, lease and operate their respective properties and to
conduct their respective businesses as described in the
Registration Statement and the Prospectus;
(e) the Indenture has been duly qualified under the Trust
Indenture Act and, assuming due authorization, execution and
delivery by the Trustee, is a legally valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms. Assuming due authorization,
execution and delivery of the Securities by the Company, the
Securities, when duly authenticated in accordance with the
terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the provisions of the Terms
Agreement (including the provisions of this Agreement), will
be legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their
terms;
(f) the Company is eligible to use a Form S-3 registration
statement under the Act;
(g) the information in the Prospectus Supplement under the
captions "Description of the Notes" and "Description of United
Stated Federal Income Tax Considerations," the information in
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the Base Prospectus under the caption "Description of Debt
Securities," and the information in the Company's Annual
Report on Form 10-K for the year ended December 31, 2000 under
the caption "Certain Cautionary Statements-Tax Liabilities as
a Consequence of Failure to Qualify as a REIT," and "Certain
Cautionary Statements-Dispositon of Properties with Built-In
Gain," to the extent it constitutes a summary or description
of U.S. federal statutes or regulations or provisions of the
Indenture, the Securities or of other existing agreements, is
correct in all material respects; and the description in the
Prospectus of federal statutes and of legal and governmental
proceedings, if any, and of contracts and agreements are
accurate in all material respects;
(h) to the knowledge of such counsel, (A) based solely on
an officer's certificate provided to such counsel by the
Company which sets forth the litigation to which the Company
is a party, a copy of which has been provided to you, there is
no litigation except for that stated in such officer's
certificate and (B) no contract or other document is required
to be disclosed in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration
Statement that is not disclosed therein or filed as required;
(i) the issuance, offering and sale of the Securities to
the Underwriters by the Company pursuant to this Agreement and
the Indenture, the compliance by the Company with the other
provisions of this Agreement and the consummation of the other
transactions herein contemplated do not (A) require a filing
with, or the consent, approval, authorization, registration or
qualification of or with any federal, or California or New
York governmental authority, except such as have been obtained
under the Act, the Trust Indenture Act and such as may be
required under state securities or blue sky laws, or (B)
conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any
agreement filed as an exhibit to the Company's Annual Report
on Form 10-K for the year ended December 31, 2000 (the
"Material Agreements"), or the charter documents or by-laws or
certificate of limited partnership or partnership agreement
(as the case may be) of the Company or any of its
subsidiaries, or any provision of any California or New York
statute, rule or regulation (other than federal or state
securities laws, which are addressed elsewhere herein), or
court orders specifically directed to the Company and
identified by an officer of the Company as material to the
Company or any of its subsidiaries (the "Court Orders");
(j) the Company is not, and after giving effect to the
offering and sale of the Securities and the application of the
proceeds from the sale as described in the Prospectus will not
be, an "investment company" as that term is defined in the
Investment Company Act of 1940, as amended;
(k) the Registration Statement has become effective under
the Act; any required filing of the Prospectus that
constitutes a part thereof, pursuant to Rules 424(b) has been
made in the manner and within the time period required
thereby; and based upon such counsel's due inquiry made to the
Office of the Secretary of the Commission, no stop order
suspending the effectiveness of the Registration Statement or
any amendment thereto has been issued, and, to the knowledge
of such counsel, no proceedings for that purpose have been
instituted or threatened or, are contemplated by the
Commission;
(l) the Registration Statement originally filed with
respect to the Securities and each amendment thereto, any Rule
462(b) Registration Statement and the Prospectus (in each
case, other than the financial statements, schedules and other
financial data, and the Form T-1, contained or incorporated by
reference therein, as to which such counsel need express no
opinion), as of the date of this Agreement and as of the
Closing Date, complied as to form in all material respects
with the applicable requirements of the Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder. The Incorporated Documents, as of the respective
dates filed with the Commission (in each case, other than the
financial statements, schedules, and other financial data
contained therein as to which such counsel need express no
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opinion) complied as to form in all material respects with the
provisions of the Securities Exchange Act of 1934, as amended,
and the published rules and regulations of the Commission
thereunder. In passing upon the compliance as to form of the
Registration Statement, the Prospectus and the Incorporated
Documents, such counsel may assume that the statements made
and incorporated by reference in the Registration Statement,
the Prospectus and the Incorporated Documents are correct and
complete;
(m) beginning with its taxable year ended December 31,
1997, the Company has been organized in conformity with the
requirements for qualification as a real estate investment
trust under the Code, and its method of operation has enabled,
and its proposed method of operation will enable, the Company
to meet the requirements for taxation as a real estate
investment trust under the Code beginning with its taxable
year ended December 31, 1997. Such opinion may be based on the
method of operation of the Company as described in the
Registration Statement, the Prospectus and a certificate of an
authorized officer of the Company; and
(n) other than Esave, Inc., each subsidiary of the Issuer
listed on Annex I either (i) qualifies as a partnership for
federal income tax purposes, as a "qualified REIT subsidiary"
within the meaning of Section 856(i) of the Code or as a
"Taxable REIT Subsidiary" within the meaning of Section 856(l)
of the Code or (ii) qualifies to be disregarded as an entity
separate from the Issuer or one of its subsidiaries for
Federal income tax purposes. The Company's ownership of the
Securities listed on Annex I will not cause the Company to be
treated as owning securities in excess of the permissible
limits under Section 856(c)(4) of the Code.
Such counsel shall also state that they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company, and
representatives of the Underwriters, at which the contents of the Registration
Statement and the Prospectus and related matters were discussed and, although
such counsel is not passing upon, and does not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus (other than for the information
contained in the Prospectus under the captions referred to in paragraph (g)
above) and has not made any independent check or verification thereof, during
the course of such participation no facts came to the attention of such counsel
that caused such counsel to believe that the Registration Statement, at the time
it became effective, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of its date or as
of the Closing Date, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as of the date of the
Terms Agreement or as of such Closing Date, or any amendment or supplement
thereto, as of its date or as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading; the descriptions in the Registration Statement
and Prospectus of statutes, legal and governmental proceedings and contracts and
other documents are accurate and fairly present the information required to be
shown; and such counsel do not know of any legal or governmental proceedings
required to be described in the Prospectus which are not described as required
or of any contracts or documents of a character required to be described it
being understood that such counsel need express no belief with respect to the
financial statements, schedules and other financial data included in the
Registration Statement or the Prospectus or with respect to the Form T-1.
(d) (ii) The Representatives shall have received an opinion,
dated the Closing Date, of Xxxxxxx Xxxxx Xxxxxxx and Xxxxxxxxx, LLP, Maryland
counsel for the Company, substantially to the effect that:
(a) The Company is a corporation duly incorporated and validly
existing under and by virtue of the laws of the State of Maryland, and is in
good standing with the State Department of Assessments and Taxation in Maryland.
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(b) The Company has the corporate power to own or lease its
properties and to conduct its business substantially as described in the Base
Prospectus and in the Prospectus Supplement under the caption, "The Company" and
to enter into and perform its obligations under the Terms Agreement, including
the Underwriting Agreement attached thereto.
(c) The Notes and the execution and delivery thereof have been
duly authorized and, upon the due execution, authentication and delivery of the
global note evidencing the Notes in accordance with the Indenture and the
resolutions of the Board of Directors, the Notes will be duly authorized and
executed and validly issued.
(d) The Terms Agreement (including the Underwriting Agreement
attached thereto) and the execution and delivery thereof have been duly
authorized by all necessary corporate action of the Company, and the Terms
Agreement has been duly executed by the Company.
(e) The Indenture and the execution and delivery thereof have
been duly authorized by all necessary corporate action of the Company, and the
Indenture has been duly executed by the Company.
(f) Neither the performance by the Company of its obligations
under the Terms Agreement, including the Underwriting Agreement attached
thereto, nor the consummation by the Company of the transactions contemplated
thereby will result in any breach or violation of any applicable Maryland
statute, rule, order or regulation or the charter or the bylaws of the Company.
(g) No filing with, or consent, approval, authorization,
registration or qualification of, any Maryland court or governmental agency is
required to be obtained by the Company for the issuance, offering or sale of the
Notes by the Company or the consummation by the Company of the transactions
contemplated by the Terms Agreement, including the Underwriting Agreement
attached thereto, except such filings, consents, approvals, authorizations,
registrations and qualifications as may be required under the Securities Act or
under applicable Maryland securities, real estate syndication or blue sky laws,
if any.
(h) The description of Maryland law contained in the
Prospectus under the caption, "Certain Provisions of Maryland Law and the
Company's Charter and Bylaws" is accurate as of October 5, 1998, the date of the
Prospectus.
Such opinions shall be rendered to the Underwriters at the request of
the Company and shall so state therein. In rendering such opinions, such counsel
may rely, as to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and public officials. As to
matters involving the application of laws of any jurisdiction other than the
State of California, the State of New York, the Delaware General Corporation Law
and the Delaware Revised Limited Partnership Act or the United States, to the
extent satisfactory in form and scope to counsel for the Underwriters, Xxxxxx &
Xxxxxxx may rely upon the opinion of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP,
Baltimore, Maryland, a copy of which shall be delivered to the Underwriters and
their counsel and which must be in form and scope satisfactory to the
Underwriters and their counsel.
References to the Registration Statement and the Prospectus in this
Section 5(d) shall include any amendment or supplement thereto at the date of
such opinion.
(e) The Representatives shall have received from Milbank, Tweed,
Xxxxxx & XxXxxx LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the incorporation of
the Company, the validity of the Offered Securities, the Registration
Statement, the Prospectus and other related matters as the
Representatives may require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling
them to pass upon such matters. In rendering such opinion, Milbank,
Tweed, Xxxxxx & XxXxxx LLP may rely as to the incorporation of the
Company and all other matters governed by Maryland law upon the opinion
of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP referred to above.
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(f) The Representatives shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated by
the Prospectus or as described in such certificate.
(g) At the date of this Agreement and at the Closing Date, the
Offered Securities shall be rated at least Baa3 by Xxxxx'x Investors
Service, BBB- by Standard & Poor's Ratings Services, and the Company
shall have delivered to the Representatives evidence satisfactory to
the Representatives, confirming that the Offered Securities have such
ratings.
(h) The Representatives shall have received a letter, dated the
Closing Date, of KPMG LLP which meets the requirements of subsection
(a) of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to the Closing
Date for the purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives, if any, specifically for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in the Terms
Agreement.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the
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Representatives, if any, specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in the Terms Agreement.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or behalf of an
indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of Offered Securities (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
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and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities under the Terms Agreement
and the aggregate principal amount of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of Offered Securities, the Lead Underwriter may make
arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments under the
Terms Agreement (including the provisions of this Agreement), to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount of Offered Securities with respect to which such default or
defaults occur exceeds 10% of the total principal amount of Offered Securities
and arrangements satisfactory to the Lead Underwriter and the Company for the
purchase of such Offered Securities by other persons are not made within 36
hours after such default, the Terms Agreement will terminate without liability
on the part of any non-defaulting Underwriter or the Company, except as provided
in Section 8. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to the Terms Agreement (including the provisions of this Agreement)
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the Offered
Securities. If the Terms Agreement is terminated pursuant to Section 7 or if for
any reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 4 and the respective obligations of the
Company and the Underwriters pursuant to Section 6 shall remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of the Terms
Agreement pursuant to Section 7 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 5(c), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their address furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at Pan Pacific Retail Properties, Inc.,
0000-X Xxxxx Xxxxxxx Xxxxx, Xxxxx, Xxxxxxxxxx 00000, Attention: Chief Financial
Officer.
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and such
Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to in
Section 6, and no other person will have any right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for
the several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
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The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
thereby.
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ANNEX I
COMPANY'S
PERCENTAGE
OWNERSHIP
A. SUBSIDIARIES OF THE COMPANY INTEREST
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1. Corporate Subsidiaries of the Company
Oregon Food Stores, Inc. 72.06
Oregon Real Estate Services, Inc. 72.06
Pan Pacific (Clackamas), Inc. 100.00
Pan Pacific (RLP), Inc. 100.00
Pan Pacific Development (Chino), Inc. 100.00
Pan Pacific Development (Kentucky), Inc. 100.00
Pan Pacific Development (New Mexico), Inc. 100.00
Pan Pacific Development (Olympia Square), Inc. 100.00
Pan Pacific Development (Rosewood), Inc. 100.00
Pan Pacific Development (Tennessee) Acquisition, Inc. 100.00
Sahara Pavilion North U.S., Inc. 100.00
2. Limited Liability Company Subsidiaries of the Company
OP Walnut Creek, LLC 50.00
Pan Pacific (Cable Park), LLC 100.00
Pan Pacific (Clackamas), LLC 56.61
Pan Pacific (Marina Village), LLC 100.00
Pan Pacific (Portland), LLC 56.17
Pan Pacific (Rancho Las Palmas), LLC 16.00
Pan Pacific (Sunset Mall), LLC 56.17
3. Limited Partnership Subsidiaries of the Company
Maysville Marketsquare Associates, L.P. 100.00
Pan Pacific (Xxxxxx'x), L.P. 74.29
Pan Pacific (Pinecreek), L.P. 74.72
Pan Pacific Development (Tennessee), L.P. 100.00
Pan Pacific U.S. Shopping Center I, LP 99.00
B. OTHER
North Coast Health Center (JV Partnership) 50.00
Esave, Inc. 6.58*
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* Percentage ownership interest as of December 31, 2000.
