EXHIBIT INDEX
Exhibit Page
No. Description No.
------- ----------- ----
1 Form of Underwriting Agreement to E-2
be entered into between the Company
and Xxxxxxx Xxxxx & Associates, Inc.
DRAFT - 12/17/96
__________ Shares
XXXXXX RESIDENTIAL PROPERTIES, INC.
Common Stock
UNDERWRITING AGREEMENT
December ____, 1996
XXXXXXX XXXXX & ASSOCIATES, INC.
The Xxxxxxx Xxxxx Financial Center
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Dear Sirs:
Xxxxxx Residential Properties, Inc., a Maryland corporation
qualified for federal income tax purposes as a real estate
investment trust pursuant to Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended, (the "Company"),
proposes to issue and sell an aggregate of __________ shares (the
"Firm Shares") of its common stock, $0.01 par value per share (the
"Common Stock"), to you (the "Underwriter"). The Company also
proposes to sell to the Underwriter, upon the terms and conditions
set forth in Section 2 hereof, up to an additional _________
shares (the "Additional Shares") of Common Stock. The Firm Shares
and the Additional Shares are hereinafter collectively referred to
as the "Shares."
The Company wishes to confirm as follows its agreement with
you in connection with the purchase of the Shares by the
Underwriter.
1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a registration
statement on Form S-3 (Registration No. 333-13809) under the Act,
including a prospectus subject to completion relating to the
Shares; and such amendments to such registration statement as may
have been required prior to the date hereof have been filed with
the Commission, and such amendments have been similarly prepared.
Such registration statement and any post-effective amendments
thereto have become effective under the Act. Such registration
statement, as amended, at the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1)(x) under the Act and
complies in all other material respects with said Rule. The
Company also has filed, or proposes to file, with the Commission
pursuant to Rule 424(b) under the Act, a final prospectus
supplement to the base prospectus included in such registration
statement, as so amended, specifically relating to the Shares.
The term "Registration Statement" as used in this Agreement
means the registration statement, as amended at the time it became
effective, as supplemented or amended prior to the execution of
this Agreement, including (i) all financial schedules and exhibits
thereto and (ii) all documents incorporated by reference therein.
If the Company files a registration statement to register a portion
of the Shares and relies on Rule 462(b) under the Act for such
registration statement to become effective upon filing with the
Commission (the "Rule 462 Registration Statement"), the term
"Registration Statement" as used in this Agreement means the
registration statement referred to above and the Rule 462
Registration Statement, each as may be amended pursuant to the Act.
If it is contemplated, at the time this Agreement is executed, that
a post-effective amendment to the registration statement will be
filed and must be declared effective before the offering of the
Shares may commence, the term "Registration Statement" as used in
this Agreement means the registration statement as amended by said
post-effective amendment. The term "Base Prospectus" as used in
this Agreement means the prospectus included in the Registration
Statement. The term "Prepricing Prospectus" as used in this
Agreement means any preliminary form of the Prospectus (as defined
herein) specifically relating to the Shares, in the form first
filed with, or transmitted for filing to, the Commission pursuant
to Rule 424 of the Rules and Regulations. The term "Prospectus
Supplement" as used in this Agreement means any prospectus
supplement specifically relating to the Shares in the form first
filed with, or transmitted for filing to, the Commission pursuant
to Rule 424 under the Act (including the information, if any,
deemed to be part thereof pursuant to Rule 430A(b) or Rule 434
under the Act). The term "Prospectus" as used in this Agreement
means the Base Prospectus together with the Prospectus Supplement
except that if such Base Prospectus is amended or supplemented on
or prior to the date on which the Prospectus Supplement was first
filed pursuant to Rule 424, the term "Prospectus" shall refer to
the Base Prospectus as so amended or supplemented and as
supplemented by the Prospectus Supplement. If the Company elects
to rely on Rule 434 under the Act, all references to the Prospectus
shall be deemed to include, without limitation, the form of the
Prospectus and the term sheet taken together, provided to the
Underwriters by the Company in reliance on Rule 434 under the Act.
Any reference in this Agreement to the Registration Statement, the
Base Prospectus, any Prepricing Prospectus, any Prospectus
Supplement or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Act, as of the date of the
Registration Statement, such Prepricing Prospectus, Prospectus
Supplement or the Prospectus, as the case may be, and any reference
to any amendment or supplement to the Registration Statement, any
Prepricing Prospectus, any Prospectus Supplement or the Prospectus
shall be deemed to refer to and include any documents filed after
such date under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), which, upon filing, are incorporated by
reference therein, as required by paragraph (b) of Item 12 of Form
S-3. As used herein, the term "Incorporated Documents" means the
documents which at the time are incorporated by reference in the
Registration Statement, any Prepricing Prospectus, any Prospectus
Supplement, the Prospectus, or any amendment or supplement thereto.
2. Agreements to Sell and Purchase. The Company hereby
agrees, subject to all the terms and conditions set forth herein,
to issue and sell to the Underwriter and, upon the basis of the
representations, warranties and agreements of the Company herein
contained and subject to all the terms and conditions set forth
herein, the Underwriter agrees to purchase from the Company, at a
purchase price of $_______ per Share (the "Purchase Price Per
Share"), the number of Firm Shares set forth above.
The Company also agrees, subject to all the terms and
conditions set forth herein, to sell to the Underwriter, and, upon
the basis of the representations, warranties and agreements of the
Company herein contained and subject to all the terms and
conditions set forth herein, the Underwriter shall have the right
to purchase from the Company, at the Purchase Price Per Share,
pursuant to an option (the "Over-allotment Option") which may be
exercised at any time and from time to time prior to 9:00 P.M., New
York City time, on the 30th day after the date of the Prospectus
Supplement (or, if such 30th day shall be a Saturday or Sunday or
a holiday, on the next business day thereafter when the New York
Stock Exchange is open for trading), up to an aggregate of ________
Additional Shares. Additional Shares may be purchased only for the
purpose of covering over-allotments made in connection with the
offering of the Firm Shares.
3. Terms of Public Offering. The Company has been advised by
you that the Underwriter proposes to make a public offering of the
Shares as soon after the Registration Statement and this Agreement
have become effective as in your judgment is advisable and
initially to offer the Shares upon the terms set forth in the
Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to
the Underwriter of and payment for the Firm Shares shall be made at
the office of Xxxxxxx Xxxxx & Associates, Inc., 000 Xxxxxxxx
Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000 at 10:00 A.M., New York City
time, on December ___, 1996 (the "Closing Date"). The place of
closing for the Firm Shares and the Closing Date may be varied by
agreement between you and the Company.
Delivery to the Underwriter of and payment for any Additional
Shares to be purchased by the Underwriter shall be made at the
aforementioned office of Xxxxxxx Xxxxx & Associates, Inc. at such
time and on such date (the "Option Closing Date"), which may be the
same as the Closing Date but shall in no event be earlier than the
Closing Date nor earlier than two nor later than ten business days
after the giving of the notice hereinafter referred to, as shall be
specified in a written notice from you on behalf of the Underwriter
to the Company of the Underwriter's determination to purchase a
number, specified in such notice, of Additional Shares. The place
of closing for any Additional Shares and the Option Closing Date
for such Shares may be varied by agreement between you and the
Company.
Certificates for the Firm Shares and for any Additional Shares
to be purchased hereunder shall be registered in such names and in
such denominations as you shall request prior to 9:30 A.M., New
York City time, on the second business day preceding the Closing
Date or any Option Closing Date, as the case may be. Such
certificates shall be made available to you in New York City for
inspection and packaging not later than 9:30 A.M., New York City
time, on the business day next preceding the Closing Date or the
Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and any Additional Shares to be
purchased hereunder shall be delivered to you on the Closing Date
or the Option Closing Date, as the case may be, against payment of
the purchase price therefor by wire transfer of immediately
available funds to the Company.
5. Agreements of the Company. The Company agrees with the
Underwriter as follows:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for a post-effective amendment to the
Registration Statement to be declared effective before the offering
of the Shares may commence, the Company will endeavor to cause such
post-effective amendment to become effective as soon as possible
and will advise you promptly and, if requested by you, will confirm
such advice in writing, when such post-effective amendment has
become effective.
(b) The Company will advise you promptly and, if
requested by you, will confirm such advice in writing: (i) of any
request by the Commission for amendment of or a supplement to the
Registration Statement, any Prepricing Prospectus Supplement or the
Prospectus or for additional information; (ii) of the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement or of the suspension of qualification of
the Shares for offering or sale in any jurisdiction or the
initiation of any proceeding for such purpose; and (iii) within the
period of time referred to in paragraph (f) below, of any change in
the Company's condition (financial or other), business, prospects,
properties, net worth or results of operations, or of the happening
of any event, which makes any statement of a material fact made (x)
in the Registration Statement (as then amended or supplemented)
untrue or which requires the making of any additions to or changes
in the Registration Statement (as then amended or supplemented) in
order to state a material fact required by the Act or the
regulations thereunder to be stated therein or necessary in order
to make the statements therein not misleading or (y) in the
Prospectus (as then amended or supplemented) in order to state a
material fact or to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or of
the necessity to amend or supplement the Prospectus (as then
amended or supplemented) to comply with the Act or any other law.
If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, the Company will
make every reasonable effort to obtain the withdrawal of such order
at the earliest possible time.
(c) The Company will furnish to you, without charge, (i)
two conformed copies of the Registration Statement as originally
filed with the Commission and of each amendment thereto, including
financial statements and all exhibits thereto, (ii) such number of
conformed copies of the Registration Statement as originally filed
and of each amendment thereto, but without exhibits, as you may
reasonably request, (iii) such number of copies of the Incorporated
Documents, without exhibits, as you may reasonably request, and
(iv) two copies of the exhibits to the Incorporated Documents.
(d) The Company will not file any amendment to the
Registration Statement or make any amendment or supplement to the
Prospectus or, prior to the end of the period of time referred to
in the first sentence in subsection (f) below, file any document
which upon filing becomes an Incorporated Document, of which you
shall not previously have been advised or to which, after you shall
have received a copy of the document proposed to be filed, you
shall reasonably object.
(e) Prior to the execution and delivery of this
Agreement, the Company has delivered to you, without charge, in
such quantities as you have requested, copies of the Prepricing
Prospectus Supplement, if any. The Company consents to the use, in
accordance with the provisions of the Act and with the securities
or Blue Sky laws of the jurisdictions in which the Shares are
offered by the Underwriter and by dealers, prior to the date of
the Prospectus, of each Prepricing Prospectus Supplement so
furnished by the Company.
(f) As soon after the execution and delivery of this
Agreement as possible and thereafter from time to time for such
period as in the opinion of counsel for the Underwriter a
prospectus is required by the Act to be delivered in connection
with sales by any Underwriter or dealer, the Company will
expeditiously deliver to each Underwriter and each dealer, without
charge, as many copies of the Prospectus (and of any amendment or
supplement thereto) as you may reasonably request. The Company
consents to the use of the Prospectus (and of any amendment or
supplement thereto) in accordance with the provisions of the Act
and with the securities or Blue Sky laws or real estate syndication
laws of the jurisdictions in which the Shares are offered by the
Underwriter and by any dealers to whom Shares may be sold, both in
connection with the offering and sale of the Shares and for such
period of time thereafter as the Prospectus is required by the Act
to be delivered in connection with sales by the Underwriter or any
dealer. If during such period of time any event shall occur that
in the judgment of the Company or in the opinion of counsel for the
Underwriter is required to be set forth in the Prospectus (as then
amended or supplemented) or should be set forth therein in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary
to supplement or amend the Prospectus (or to file under the
Exchange Act any document which, upon filing, becomes an
Incorporated Document) in order to comply with the Act or any other
law, the Company will forthwith prepare and, subject to the
provisions of paragraph (d) above, file with the Commission an
appropriate supplement or amendment thereto (or to such document),
and will expeditiously furnish to the Underwriter and dealers a
reasonable number of copies thereof. In the event that the Company
and you, as Underwriter, agree that the Prospectus should be
amended or supplemented, the Company, if requested by you, will
promptly issue a press release announcing or disclosing the matters
to be covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel
for the Underwriter in connection with the registration or
qualification of the Shares for offering and sale by the several
Underwriter and by dealers under the securities or Blue Sky laws or
real estate syndication laws of such jurisdictions as you may
designate and will file such consents to service of process or
other documents necessary or appropriate in order to effect such
registration or qualification; provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would
subject it to service of process in suits, other than those arising
out of the offering or sale of the Shares, in any jurisdiction
where it is not now so subject.
(h) The Company will make generally available to its
security holders a consolidated earnings statement, which need not
be audited, covering a twelve-month period commencing after the
effective date of the Registration Statement and ending not later
than 15 months thereafter, as soon as practicable after the end of
such period, which consolidated earnings statement shall satisfy
the provisions of Section 11(a) of the Act.
(i) During the period of three years hereafter, the
Company will furnish to you as soon as available, a copy of each
report of the Company mailed to shareholders or filed with the
Commission, and from time to time such other information
concerning the Company as you may reasonably request.
(j) If this Agreement shall terminate or shall be
terminated after execution pursuant to any provisions hereof
(otherwise than pursuant to the second paragraph of Section 10
hereof or by notice given by you terminating this Agreement
pursuant to Section 10 or Section 11 hereof) or if this Agreement
shall be terminated by the Underwriter because of any failure or
refusal on the part of the Company to comply with the terms or
fulfill any of the conditions of this Agreement to be complied with
or fulfilled by the Company, the Company agrees to reimburse the
Underwriter for all reasonable out-of-pocket expenses (including
fees and expenses of counsel for the Underwriter) incurred by you
in connection herewith.
(k) The Company will apply the net proceeds from the
sale of the Shares substantially in accordance with the description
set forth in the Prospectus Supplement.
(l) The Company will timely file the Prospectus
Supplement pursuant to Rule 424(b) under the Act and will advise
you of the time and manner of such filing.
(m) Except as provided in this Agreement, the Company
will not sell, offer to sell, solicit an offer to buy, contract to
sell, grant any option to purchase (other than pursuant to the
Company's 1994 Stock Option Plan, as amended (the "Option Plan"),
or the Company's Dividend Reinvestment and Stock Purchase Plan (the
"DRIP")) or otherwise transfer or dispose of any shares of Common
Stock or any other securities convertible into, or exercisable or
exchangeable for, shares of Common Stock (other than the Common
Stock issuable upon exercise of (i) the Company's 9.16% Series A
Convertible Redeemable Preferred Stock and 9.16% Series B
Convertible Redeemable Preferred Stock (collectively, the
"Convertible Redeemable Preferred Stock") and (ii) the warrants to
purchase shares of Common Stock issued on December ___, 1996 in an
underwritten public offering (the "Warrants")) for a period of 45
days after the date of the Prospectus, without the prior written
consent of Xxxxxxx Xxxxx & Associates, Inc..
(n) The Company has furnished or will furnish to you
"lock-up" letters, in form and substance satisfactory to you,
signed by each of its current executive officers named in the
Prospectus.
(o) Except as stated in this Agreement and in any
Prepricing Prospectus Supplement and Prospectus, the Company has
not taken, nor will it take, directly or indirectly, any action
designed to or that might reasonably be expected to cause or result
in stabilization or manipulation of the price of the Common Stock
to facilitate the sale or resale of the Shares.
(p) The Company will use its best efforts to list the
Shares on The New York Stock Exchange.
(q) The Company will use its best efforts to continue to
qualify as a "real estate investment trust" under the Code.
(r) The Company will not file any registration statement
with the Commission for the registration of any securities of the
Company for a period of 30 days after the date of the Prospectus
Supplement without the prior written consent of Xxxxxxx Xxxxx &
Associates, Inc.
(s) The Company will not undertake any transaction which
constitutes a "refinancing" under the terms of the Registration
Rights Agreement dated as of June 30, 1995 by and between the
Company and the Galesi Partnerships (the "Registration Rights
Agreement") which would trigger demand registration rights under
the Registration Rights Agreement for a period of 30 days after the
date of the Prospectus Supplement without the prior written consent
of Xxxxxxx Xxxxx & Associates, Inc.
6. Representations and Warranties of the Company. The
Company represents and warrants to each Underwriter that:
(a) No order preventing or suspending the use of any
Prepricing Prospectus Supplement has been issued and no proceeding
for that purpose has been instituted or threatened by the
Commission or the securities authority of any state or other
jurisdiction. No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or threatened by
the Commission or the securities authority of any state or other
jurisdiction.
(b) The Company and the transactions contemplated by
this Agreement meet the requirements and conditions for using a
registration statement on Form S-3 under the Act, set forth in the
General Instructions to Form S-3. When any Prepricing Prospectus
Supplement was filed with the Commission it (i) contained all
statements required to be stated therein in accordance with, and
complied in all material respects with the requirements of, the Act
and (ii) did not include any 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. When the Registration Statement or
any amendment thereto was declared effective, and on the Closing
Date (or the Option Closing Date, as the case may be) it (i)
contained or will contain all statements required to be stated
therein in accordance with, and complied or will comply in all
material respects with the requirements of, the Act and (ii) did
not or will not include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein not misleading. When the Prospectus or any amendment or
supplement thereto is filed with the Commission pursuant to Rule
424(b) and at the Closing Date (or the Option Closing Date, as the
case may be), the Prospectus, as amended or supplemented at any
such time, (i) contained or will contain all statements required to
be stated therein in accordance with, and complied or will comply
in all material respects with the requirements of, the Act and the
rules and regulations of the Commission thereunder and (ii) did not
or will not include any 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. The representation and warranty in
this paragraph (b) does not apply to statements in or omissions
from the Registration Statement or the Prospectus made in reliance
upon and in conformity with information furnished to the Company in
writing by or on behalf of any Underwriter through you expressly
for use therein.
(c) The Incorporated Documents heretofore filed, when
they were filed (or, if any amendment with respect to any such
document was filed, when such amendment was filed), conformed in
all material respects with the requirements of the Exchange Act and
the rules and regulations thereunder, any further Incorporated
Documents so filed will, when they are filed, conform in all
material respects with the requirements of the Exchange Act and the
rules and regulations thereunder; no such document when it was
filed (or, if an amendment with respect to any such document was
filed, when such amendment was filed), contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and no such further document,
when it is filed, will contain an untrue statement of a material
fact or will omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading.
(d) All the outstanding shares of Common Stock of the
Company have been duly authorized and validly issued, are fully
paid and nonassessable and are free of any preemptive or similar
rights; the Shares have been duly authorized and, when issued and
delivered to the Underwriter against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid and
nonassessable and free of any preemptive or similar rights; and the
capital stock of the Company conforms to the description thereof in
the Registration Statement and the Prospectus.
(e) The Company is a corporation duly organized and
validly existing in good standing under the laws of the State of
Maryland with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
the Registration Statement and the Prospectus, and is duly
registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such
registration or qualification, except where the failure so to
register or qualify does not have a material adverse effect on the
condition (financial or other), business, properties, net worth or
results of operations of the Company and the Subsidiaries (as
hereinafter defined) taken as a whole.
(f) All the Company's subsidiaries (collectively, the
"Subsidiaries") are listed on Schedule I hereto. Each Subsidiary
that is a corporation is duly organized, validly existing and in
good standing in the jurisdiction of its incorporation, with full
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus; each of the Subsidiaries
that is a partnership has been duly approved and is validly
existing as a limited partnership under the laws of its state of
organization and has full partnership authority to conduct its
business as presently conducted; the partnership agreement of each
of the Subsidiaries that is a partnership has been duly authorized,
executed and delivered by each partner thereof and constitutes the
valid and binding agreement of such partners enforceable against
such partners in accordance with its terms; each of the
Subsidiaries is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the
failure so to register or qualify does not have a material adverse
effect on the condition (financial or other), business, properties,
net worth or results of operations of such Subsidiary; all the
outstanding shares of capital stock of each of the Subsidiaries
have been duly authorized and validly issued, are fully paid and
nonassessable, and, except as set forth on Schedule I hereto, are
owned by the Company directly, or indirectly through one of the
other Subsidiaries, free and clear of any lien, adverse claim,
security interest, equity, or other encumbrance; all of the
partnership interests in each of the Subsidiaries that is a
partnership has been validly issued and are owned of record as
indicated on Schedule I hereto; and no rights to purchase
agreements or other obligations to issue or rights to convert any
obligations into partnership interests in any of the Subsidiaries
that are partnerships are outstanding.
(g) Except for the Subsidiaries and the Transferred
Interests, the Company owns no capital stock or other beneficial
interest, directly or indirectly, in any corporation, partnership,
joint venture or other business entity. For purposes of this
Agreement, the term "Transferred Interests" means the Company's
interests in distribution (assigned by the Xxxxxx Group, Inc.
("Xxxxxx") to the Company) attributable to Xxxxxx'x general
partnership interests in three partnerships which own multifamily
residential properties, which were not acquired by the Company and
Xxxxxx'x limited partnership interests in two of such partnerships.
(h) There are no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened, against
the Company or any of the Subsidiaries, or to which the Company or
any of the Subsidiaries, or to which any of their respective
properties is subject, that are required to be described in the
Registration Statement or the Prospectus but are not described as
required, and there are no agreements, contracts, indentures,
leases or other instruments that are required to be described in
the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement or any Incorporated Document
that are not described or filed as required by the Act or the
Exchange Act.
(i) The Company has the corporate power and authority to
enter into this Agreement and to issue, sell and deliver the Shares
to the Underwriter as provided herein.
(j) Neither the Company nor any of the Subsidiaries is
in violation of its certificate or articles of incorporation or by-laws,
or other organizational documents, or of any law, ordinance,
administrative or governmental rule or regulation applicable to the
Company or any of the Subsidiaries or of any decree of any court or
governmental agency or body having jurisdiction over the Company or
any of the Subsidiaries, or in default in any material respect in
the performance of any obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of indebtedness
or in any material agreement, indenture, lease or other instrument
to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be
bound.
(k) Neither the issuance and sale of the Shares, the
execution, delivery or performance of this Agreement by the Company
nor the consummation by the Company of the transactions
contemplated hereby (i) requires any consent, approval,
authorization or other order of or registration or filing with, any
court, regulatory body, administrative agency or other governmental
body, agency or official (except such as may be required for the
registration of the Shares under the Act and the Exchange Act and
compliance with the securities or Blue Sky laws of various
jurisdictions, all of which have been or will be effected in
accordance with this Agreement) or conflicts or will conflict with
or constitutes or will constitute a breach of, or a default under,
the certificate or articles of incorporation or bylaws, or other
organizational documents, of the Company or any of the Subsidiaries
or (ii) conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, any agreement,
indenture, lease or other instrument to which the Company or any of
the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound, or violates or will violate any
statute, law, regulation or filing or judgment, injunction, order
or decree applicable to the Company or any of the Subsidiaries or
any of their respective properties, or will result in the creation
or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of the Subsidiaries pursuant to the
terms of any agreement or instrument to which any of them is a
party or by which any of them may be bound or to which any of the
property or assets of any of them is subject.
(l) The accountants, Deloitte & Touche LLP, who have
certified or shall certify the financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) are independent
public accountants as required by the Act.
(m) The financial statements, together with related
schedules and notes, included or incorporated by reference in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position
of the Company and the Subsidiaries and the Xxxxxx Predecessors (as
such term is defined in the Registration Statement) on the basis
stated in the Registration Statement at the respective dates or for
the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and
the other financial and statistical information and data included
or incorporated by reference in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) are accurately
presented and prepared on a basis consistent with such financial
statements and the books and records of the Company and the
Subsidiaries and the Xxxxxx Predecessors..
(n) The execution and delivery of, and the performance
by the Company of its obligations under, this Agreement have been
duly and validly authorized by the Company, and this Agreement has
been duly executed and delivered by the Company and constitutes the
valid and legally binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as rights
to indemnity and contribution hereunder may be limited by federal
or state securities laws.
(o) Except as disclosed in the Registration Statement
and the Prospectus (or any amendment or supplement thereto or in
any Incorporated Document), subsequent to the respective dates as
of which such information is given in the Registration Statement
and the Prospectus (or any amendment or supplement thereto or in
any Incorporated Document), neither the Company nor any of the
Subsidiaries has incurred any liability or obligation, direct or
contingent, or entered into any transaction, not in the ordinary
course of business, that is material to the Company and the
Subsidiaries taken as a whole, and there has not been any change in
the capital stock, or material increase in the short-term debt or
long-term debt, of the Company or any of the Subsidiaries, or any
material adverse change, or any development involving or which may
reasonably be expected to involve, a prospective material adverse
change, in the condition (financial or other), business, net worth
or results of operations of the Company and the Subsidiaries taken
as a whole.
(p) Each of the Company and the Subsidiaries has good
and marketable title to all property (real and personal) described
in the Prospectus as being owned by it, free and clear of all
liens, claims, security interests or other encumbrances except such
as are described in the Registration Statement and the Prospectus
or in a document filed as an exhibit to the Registration Statement
and all the property described in the Prospectus as being held
under lease by each of the Company and the Subsidiaries is held by
it under valid, subsisting and enforceable leases.
(q) Upon consummation of the offering of the Shares and
application of the net proceeds therefrom, the Company and the
Subsidiaries will carry, or will be covered by, insurance in such
amounts and covering such risks as will be adequate for the conduct
of their business and the value of their properties and as is
customary for companies engaged in similar businesses.
(r) The Company has not distributed and, prior to the
later to occur of (i) the Closing Date and (ii) completion of the
distribution of the Shares, will not distribute any offering
material in connection with the offering and sale of the Shares
other than the Registration Statement, the Prepricing Prospectus,
the Prospectus or other materials, if any, permitted by the Act.
(s) The Company and each of the Subsidiaries has such
permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("permits") as are necessary to own its
respective properties and to conduct its business in the manner
described in the Prospectus, subject to such qualifications as may
be set forth in the Prospectus; the Company and each of the
Subsidiaries has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such permit, subject
in each case to such qualification as may be set forth in the
Prospectus; and, except as described in the Prospectus, none of
such permits contains any restriction that is materially burdensome
to the Company or any of the Subsidiaries.
(t) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are recorded
as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(u) To the Company's knowledge, neither the Company nor
any of its Subsidiaries nor any employee or agent of the Company or
any Subsidiary has made any payment of funds of the Company or any
Subsidiary 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.
(v) The Company and each of the Subsidiaries have filed
all tax returns required to be filed, which returns are complete
and correct, and neither the Company nor any Subsidiary is in
default in the payment of any taxes which were payable pursuant to
said returns or any assessments with respect thereto.
(w) No holder of any security of the Company has any
right that has not been previously waived in writing to require
registration of shares of Common Stock or any other security of the
Company because of the filing of the Registration Statement or
consummation of the transactions contemplated by this Agreement.
(x) The Company and the Subsidiaries own or possess all
patents, trademarks, trademark registrations, service marks,
service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights necessary for the conduct of
their respective businesses, and the Company is not aware of any
claim to the contrary or any challenge by any other person to any
rights of the Company and the Subsidiaries with respect to the
foregoing.
(y) Neither the Company nor any of the Subsidiaries is,
or after sale of the Shares to be sold by the Company hereunder and
application of the net proceeds from such sale as described in the
Prospectus under the caption "Use of Proceeds" will be, an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940,
as amended.
(z) The Company qualified as a REIT for its taxable
years ended December 31, 1994 and December 31, 1995, and its
organization and method of operation described in the Prospectus
and in its Annual Report on Form 10-K for the year ended December
31, 1995 (the "1995 Form 10-K") will enable the Company to continue
to satisfy the requirements for such qualification under the Code
for its taxable year ending December 31, 1996 and for subsequent
taxable years.
(aa) Each of the Subsidiaries that is a partnership
constitutes either a partnership for federal income tax purposes or
a "qualified REIT subsidiary" within the meaning of Section 856(i)
of the Code.
(bb) None of the assets of the Company or the
Subsidiaries constitute, nor will such assets, as of the Closing
Date, constitute "plan assets," as such term is defined in the
Employee Retirement Income Security Act of 1974, as amended
("ERISA").
(cc) Subject to the provisions of applicable law, none of
the Subsidiaries is currently prohibited, directly or indirectly,
from paying any dividends to the Company, from making any other
distributions on such Subsidiary's capital stock or from repaying
to the Company any loans or advances to such Subsidiary's property
or assets to the Company.
(dd) The information and disclosures regarding the
Company's directors and officers, contained in the Company's Proxy
Statement for the Annual Meeting of Stockholders held on May 15,
1996, (i) are accurate and consistent with the information provided
to the Company by each director and officer for that purpose and
(ii) did not omit to disclose any fact that should have been so
disclosed under the rules and regulations of the Exchange Act
governing Proxy Statement disclosure obligations.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act from and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any
Prepricing Prospectus or any Prospectus Supplement or in the
Registration Statement or the Prospectus or in any amendment or
supplement thereto, or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be
stated therein or (x) in the case of the Registration Statement,
necessary to make the statements therein not misleading and (y) in
the case of the Prospectus or the Prospectus Supplement, necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or
are based upon any untrue statement or omission or alleged untrue
statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information
relating to the Underwriter furnished in writing to the Company by
or on behalf of the Underwriter through you expressly for use in
connection therewith; provided, however, that the indemnification
contained in this paragraph (a) with respect to any Prepricing
Prospectus shall not inure to the benefit of the Underwriter (or to
the benefit of any person controlling the Underwriter) on account
of any such loss, claim, damage, liability or expense arising from
the sale of the Shares by the Underwriter to any person if a copy
of the Prospectus shall not have been delivered or sent to such
person within the time required by the Act and the regulations
thereunder, and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such
Prepricing Prospectus was corrected in the Prospectus, provided
that the Company has delivered the Prospectus to the Underwriter in
requisite quantity on a timely basis to permit such delivery or
sending. The foregoing indemnity agreement shall be in addition to
any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought
against the Underwriter or any person controlling the Underwriter
in respect of which indemnity may be sought against the Company,
the Underwriter or such controlling person shall promptly notify
the Company, and the Company shall assume the defense thereof,
including the employment of counsel and payment of all reasonable
fees and expenses. The Underwriter or any such controlling person
shall have the right to employ separate counsel in any such action,
suit or proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of
the Underwriter or such controlling person unless the Company has
agreed in writing to pay such fees and expenses, the Company has
failed to assume the defense and employ counsel, or the named
parties to any such action, suit or proceeding (including any
impleaded parties) include both the Underwriter or such controlling
person and the Company, and the Underwriter or such controlling
person shall have been advised by its counsel that representation
of such indemnified party and the Company by the same counsel would
be inappropriate under applicable standards of professional conduct
(whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between
them (in which case the Company shall not have the right to assume
the defense of such action, suit or proceeding on behalf of the
Underwriter or such controlling person). It is understood,
however, that the Company shall, in connection with any one such
action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate
firm of attorneys (in addition to any local counsel), at any time
for the Underwriter and controlling persons not having actual or
potential differing interests with you or among themselves, which
firm shall be designated in writing by the Underwriter, and that
all such fees and expenses shall be reimbursed as they are
incurred. The Company shall not be liable for any settlement of
any such action, suit or proceeding effected without its written
consent, but if settled with such written consent, or if there be
a final judgment for the plaintiff in any such action, suit or
proceeding, the Company agrees to indemnify and hold harmless the
Underwriter, to the extent provided in the preceding paragraph, and
any such controlling person from and against any loss, claim,
damage, liability or expense by reason of such settlement or
judgment.
(c) The Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors and
officers who sign the Registration Statement, and any person who
controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company to the Underwriter, but only with
respect to information furnished in writing by or on behalf of the
Underwriter through you expressly for use in the Registration
Statement, the Prospectus or any Prepricing Prospectus or any
Prospectus Supplement, or any amendment or supplement thereto. If
any action, suit or proceeding shall be brought against the Company
or any of its respective directors, any such officer, or any such
controlling person based on the Registration Statement, the
Prospectus or any Prepricing Prospectus, or any amendment or
supplement thereto, and in respect of which indemnity may be sought
against the Underwriter pursuant to this paragraph (c), the
Underwriter shall have the rights and duties given to the Company
by paragraph (b) above (except that if the Company shall have
assumed the defense thereof the Underwriter shall not be required
to do so, but may employ separate counsel therein and participate
in the defense thereof, but the fees and expenses of such counsel
shall be at the Underwriter's expense), and the Company or its
respective directors, any such officer, and any such controlling
person shall have the rights and duties given to the Underwriter by
paragraph (b) above. The foregoing indemnity agreement shall be in
addition to any liability which the Underwriter may otherwise have.
(d) If the indemnification provided for in this
Section 7 is unavailable to an indemnified party under
paragraphs (a) or (c) hereof in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriter on the other hand from the offering of the Shares, or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand
and the Underwriter on the other in connection with the statements
or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and the Underwriter on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering
of the Shares (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by
the Underwriter bear to the price to public of the Shares, in each
case as set forth in the table on the cover page of the Prospectus
Supplement. The relative fault of the Company on the one hand and
the Underwriter on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the
Company on the one hand or by the Underwriter on the other hand and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriter agree that it would
not be just and equitable if contribution pursuant to this Section
7 were determined by a pro rata allocation (even if the Underwriter
were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid
or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph
(d) above shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating any
claim or defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 7, the Underwriter
shall not be required to contribute any amount in excess of the
amount by which the total price of the Shares underwritten by it
and distributed to the public exceeds the amount of any damages
which the 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.
(f) No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of
any pending or threatened action, suit or proceeding 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 includes an unconditional release of
such indemnified party from all liability on claims that are the
subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses
for which an indemnified party is entitled to indemnification or
contribution under this Section 7 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages,
liabilities or expenses are incurred. The indemnity and
contribution agreements contained in this Section 7 and the
representations and warranties of the Company and the Underwriter
set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on
behalf of the Underwriter or any person controlling the
Underwriter, the Company, their respective directors or officers,
or any person controlling the Company, (ii) acceptance of any
Shares and payment therefor hereunder, and (iii) any termination of
this Agreement. A successor to the Underwriter or any person
controlling the Underwriter, or to the Company, their respective
directors or officers, or any person controlling the Company, shall
be entitled to the benefits of the indemnity, contribution, and
reimbursement agreements contained in this Section 7.
8. Conditions of Underwriter' Obligations. The obligations
of the Underwriter to purchase the Firm Shares hereunder are
subject to the following conditions:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for a post-effective amendment to the
Registration Statement to be declared effective before the offering
of the Shares may commence, such post-effective amendment shall
have become effective not later than 5:30 P.M., New York City time,
on the date hereof, or at such later date and time as shall be
consented to in writing by you, and all filings, if any, required
by Rules 424 and 430A under the Act shall have been timely made; no
stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose
shall have been instituted or, to the knowledge of the Company or
the Underwriter, threatened by the Commission, and any request of
the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall have
been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement,
there shall not have occurred any change, or any development
involving a prospective change, in or affecting the condition
(financial or other), business, properties, net worth, or results
of operations of the Company or the subsidiaries not contemplated
by the Prospectus, which in your opinion, would materially,
adversely affect the market for the Shares, or any event or
development relating to or involving the Company or any officer or
director of the Company which makes any statement made in the
Prospectus untrue or which, in the opinion of the Company and its
counsel or the Underwriter and its counsel, requires the making of
any addition to or change in the Prospectus in order to state a
material fact required by the Act or any other law to be stated
therein or necessary in order to make the statements therein not
misleading, if amending or supplementing the Prospectus to reflect
such event or development would, in your opinion, materially
adversely affect the market for the Shares.
(c) You shall have received on the Closing Date, an
opinion of Xxxxxxxx Xxxxxxxx & Xxxxxx P.C., counsel for the
Company, dated the Closing Date and addressed to you to the effect
that:
(i) The Company has been duly organized and is
validly existing as a corporation in good standing under the
laws of the State of Maryland, and has full corporate power
and authority to own the Properties and to conduct its
business as described in the Registration Statement and the
Prospectus; and the Company is duly qualified to do business
as a foreign corporation in the States of Arizona, Florida,
Indiana, New Mexico, Oklahoma, Tennessee, Texas and Utah; and
the Company is the sole general partner of each of the
partnerships set forth on a schedule to such opinion and owns
the percentage of the partnership interests of such
partnerships as set forth therein;
(ii) Each of the Subsidiaries that is a corporation
has been duly organized and is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation, and has full corporate power
and authority to conduct its business as presently conducted;
each of the Subsidiaries that is a corporation is duly
qualified to do business as a foreign corporation in such
jurisdictions set forth on a Schedule I hereto; all of the
outstanding shares of capital stock of the Subsidiaries that
are corporations have been duly authorized, are validly
issued, fully paid and non-assessable and are owned of record
as set forth in a schedule to such opinion; and no options,
warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any
obligations into shares of capital stock or ownership
interests in the corporate Subsidiaries are outstanding; and
each of the corporate Subsidiaries owns the capital stock and
partnership interests set forth on a schedule to such opinion;
(iii) Each of the Subsidiaries that is a
partnership has been duly formed and is validly existing as a
limited partnership under the laws of its state of
organization; each of the Subsidiaries that is a partnership
has full partnership authority to conduct its business as
presently conducted; each of the Subsidiaries that is a
partnership is duly qualified to do business as a foreign
limited partnership in each jurisdiction set forth on
Schedule I; the partnership agreement of each of the
Subsidiaries that is a partnership has been duly authorized,
executed and delivered by each partner thereof and constitutes
the valid and binding agreement of such partners enforceable
against such partners in accordance with its terms; all of the
partnership interests in each of the Subsidiaries that is a
partnership has been validly issued and are owned of record as
indicated on a schedule to this opinion; and no rights to
purchase agreements or other obligations to issue or rights to
convert any obligations into partnership interests in any of
the Subsidiaries that are partnerships are outstanding;
(iv) To such counsel's knowledge, except for the
Subsidiaries and the Transferred Interests, the Company owns,
directly or indirectly, no capital stock or other beneficial
interest in any corporation, partnership, joint venture or
other business entity, directly or indirectly;
(v) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Registration
Statement and the Prospectus; all the outstanding shares of
capital stock of the Company have been duly authorized, are
validly issued, fully paid and non-assessable, have been
offered and sold in compliance with all applicable laws
(including, without limitation, federal and state securities
laws) and conform to either (i) the description of the Common
Stock set forth in the Base Prospectus under the caption
"Description of Common Stock," (ii) the description of the
preferred stock set forth in the Base Prospectus under the
caption "Description of the Preferred Stock" or (iii) the
terms of the convertible preferred stock set forth in the
Articles Supplementary filed with the Commission on April 23,
1996 and included in the Incorporated Documents; none of the
outstanding shares of capital stock of the Company has been
issued or is owned or held in violation of any preemptive
rights of stockholders; and no shares of capital stock of the
Company are reserved for any purpose, except the shares of
Common Stock issuable upon conversion of the shares of the
Company's Convertible Redeemable Preferred Stock and upon the
exercise of the Warrants, except in connection with the Option
Plan and except for shares of Common Stock issuable pursuant
to the DRIP and upon the exercise of the interests in Xxxxxx
Operating Partnership, L.P. (the "Interests"); and except for
the options outstanding under the Option Plan, the Interests,
the Company's Convertible Redeemable Preferred Stock and the
Warrants, there are no outstanding securities convertible into
or exchangeable for any capital stock of the Company and no
outstanding options, rights (preemptive or otherwise), or
warrants to purchase or to subscribe for shares of such stock
or any other securities of the Company;
(vi) The Shares have been duly authorized and, when
the Shares are paid for, sold or issued as provided in the
Agreement, the Shares will be validly issued, fully paid and
non-assessable and will conform to the description of the
Common Stock set forth in the Base Prospectus under the
caption "Description of Common Stock;" upon payment of the
purchase price and delivery of the Shares in accordance with
the Agreement, the Underwriter will receive good, valid and
marketable title to the Shares, free and clear of all liens,
encumbrances, claims, security interests and defects; the
certificates evidencing the Shares will comply with all
applicable requirements of Maryland law; none of the Shares
will be issued or sold in violation of any preemptive rights
of stockholders; and no person or entity has the right to
require registration of shares of Common Stock or other
securities of the Company by virtue of the filing or
effectiveness of the Registration Statement or the offer and
sale of the Shares as contemplated by the Agreement;
(vii) The Registration Statement has become
effective under the Act; any required filing of the
Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period
required by Rule 424(b); to such counsel's knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose
have been instituted or threatened and the Registration
Statement (including the Incorporated Documents) and the
Prospectus (other than financial statements and other
financial and statistical data contained therein and except
for the information referred to under the caption "Experts" as
having been incorporated by reference in the Registration
Statement on the authority of Deloitte & Touche LLP as
experts, as to which such counsel need not express an opinion)
comply as to form in all material respects with the applicable
requirements of the Act and the rules and regulations
thereunder;
(viii) The Company has timely filed all reports,
contracts or documents required to be filed by it with the
Commission under the Exchange Act and each document filed
pursuant to the Exchange Act and incorporated by reference in
the Prospectus complies in all material respects with
applicable requirements of the Exchange Act and rules and
regulations thereunder;
(ix) To such counsel's knowledge, there is no
pending or threatened action, suit or proceeding before or by
any court or governmental agency, authority or body or any
arbitrator involving the Company or any Subsidiary or any
property of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in
the Prospectus, and there is no contract or other document of
a character required to be described in the Registration
Statement or Prospectus, or any document incorporated by
reference in the Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required; and the
statements in the Prospectus Supplement under the captions
"Recent Developments" and "Description of Common Stock" and in
the Base Prospectus under the captions "Description of Common
Stock," "Description of Preferred Stock," "Description of
Securities Warrants," "Federal Income Tax Considerations" and
"ERISA Considerations," insofar as such statements constitute
a summary of documents or matters of law, fairly and
accurately summarize the material terms of such documents or
matters of law therein described;
(x) To such counsel's knowledge, each of the
Company and the Subsidiaries has complied in all respects with
all laws, regulations and orders applicable to each of them or
their respective businesses, except for such noncompliance as
could not reasonably be expected to have a material adverse
effect on the condition financial or otherwise, or on the
earnings, business or operations of the Company or any
Subsidiary, and each of them is in possession of and to such
counsel's knowledge is operating in compliance with all
material franchises, grants, authorizations, approvals,
licenses, permits, easements, consents, certificates and
orders necessary to the conduct of its business, all of which
are valid and in full force and effect; to such counsel's
knowledge, none of the Company or any Subsidiary is and, upon
consummation of the transactions contemplated by the
Agreement, none of them will be in default under any
indenture, mortgage, deed of trust, voting trust agreement,
loan agreement, bond, debenture, note agreement, promissory
note or other evidence of indebtedness, lease, contract or
other agreement or instrument to which any of them are a party
or by which any of them or any of their respective properties
are bound and which is filed pursuant to Rule 601(b)(1) of
Regulation S-K as an exhibit to any report filed with the
Commission by the Company pursuant to the Exchange Act and
incorporated by reference in the Prospectus (collectively, the
"Operative Documents"), the violation of which would
individually or in the aggregate have a material adverse
effect on the condition financial or otherwise, or on the
earnings, business or operations of the Company or any
Subsidiary, and no other party under any such agreement or
instrument to which the Company or any Subsidiary is a party
is, to such counsel's knowledge, in default in any material
respect thereunder; and to such counsel's knowledge none of
the Company or any of the corporate Subsidiaries is in
violation of its articles or certificate of incorporation or
bylaws, and none of the Subsidiaries that are Partnerships is
in violation of its partnership agreement;
(xi) The Company has corporate power and authority
to enter into this Agreement and to issue, sell and deliver
the Shares to the Underwriter as provided herein; the
Agreement has been duly authorized, executed and delivered by
the Company and, assuming the laws of the State of Florida are
the same as the laws of the State of Texas, constitutes the
valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except as rights to indemnity and contribution hereunder may
be limited by federal or state securities laws;
(xii) The execution, delivery and the
performance of the Agreement and the consummation of the
transactions therein contemplated will not result in a breach
or violation of any term or provision of, or constitute a
default under, any law, rule or regulation by which the
Company or any Subsidiary is bound or to which any property of
the Company or any Subsidiary is subject, or any of the
Operative Documents, the Company's or any corporate
Subsidiary's articles or certificate of incorporation or
bylaws, or any of the partnership Subsidiaries' partnership
agreement, or to such counsel's knowledge, any order or decree
of any court or governmental agency or body having
jurisdiction over the Company or any Subsidiary or any of
their respective properties; no consent, approval,
authorization or order of, or filing with, any court or
governmental agency or body or any other third party is
required to be obtained by the Company or any Subsidiary for
the consummation of the transactions contemplated in the
Agreement or in connection with the issuance or sale of the
Shares by the Company, except such consents, approvals,
authorizations, orders or filings as may be required under the
Act, the Exchange Act or state securities or Blue Sky laws;
and the Company has full power and authority to authorize,
issue and sell the Shares, as contemplated in the Agreement,
free of any preemptive rights;
(xiii) None of the Company or the Subsidiaries is
an "investment company" or an entity controlled by an
"investment company," as such terms are defined in the
Investment Company Act of 1940, as amended;
(xiv) None of the assets of the Company or the
Subsidiaries constitute "plan assets," as such term is defined
in ERISA;
(xv) The Company qualified as a REIT for its taxable
years ended December 31, 1994 and December 31, 1995, and its
organization and method of operation described in the
Prospectus and in the 1995 Form 10-K will enable the Company
to continue to satisfy the requirements for such qualification
under the Code for its taxable year ending December 31, 1996
and for subsequent taxable years;
(xvi) The discussion in the Prospectus under the
caption "Federal Income Tax Considerations" is accurate in all
material respects and fairly summarizes the federal income tax
considerations that are likely to be material to holders of
the Common Stock who are United States citizens or residents
or domestic corporations and who are not subject to special
treatment under the tax laws;
(xvii) The discussion in the Prospectus under the
caption "ERISA Considerations" is correct in all material
respects;
(xviii) Each of the Subsidiaries that is a
partnership constitutes either a partnership for federal
income tax purposes or a "qualified REIT subsidiary" within
the meaning of Section 856(i) of the Code;
(xix) To the extent the Interests or interests
in any other entity constitute an equity interest in the
Company ("Deemed Stock"), such Deemed Stock will constitute a
class of stock separate from the Common Stock for purposes of
Section 562 of the Code and the applicable Treasury
regulations thereunder; and
(xx) Such counsel has participated in the
preparation of the Registration Statement and the Prospectus
and in connection therewith has had discussions with certain
officers, directors and employees of the Company, Deloitte &
Touche LLP, the independent accountants of the Company who
examined certain of the financial statements included and
incorporated by reference in the Registration Statement and
the Prospectus, and Representative of the Underwriter
concerning the information contained in the Registration
Statement and the Prospectus and the proposed responses to
various items in Form S-3, and, although such counsel has not
independently verified and are not passing upon, and does not
assume any responsibility for, the accuracy, the completeness
or fairness of the information contained in the Registration
Statement and the Prospectus, based upon the participation and
discussions described above, nothing has come to such
counsel's attention that causes it to believe that the
Registration Statement (including the Incorporated Documents)
(except for the financial statements and other financial and
statistical data included therein and in the Incorporated
Documents and except for the information referred to under the
caption "Experts" as having been incorporated by reference in
the Registration Statement on the authority of Deloitte &
Touche LLP as experts, as to which such counsel need not
express an opinion) at the time the Registration Statement
became effective and as of the Closing Date or the Option
Closing Date, as the case may be, contained any untrue
statement of a material fact or omitted to state a material
fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein
not misleading, or that the Prospectus (with the foregoing
exceptions) as of the date of the Prospectus and as of the
Closing Date or the Option Closing Date, as the case may be,
contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances in which they were made, not misleading.
In rendering their opinion as aforesaid, counsel may rely upon
an opinion or opinions, each dated the Closing Date, of other
counsel retained by them or the Company as to laws of any
jurisdiction other than the United States or the State of Texas,
provided that (1) each such local counsel is acceptable to the
Representative, (2) such reliance is expressly authorized by each
opinion so relied upon and a copy of each such opinion is delivered
to the Representative and is, in form and substance satisfactory to
them and their counsel, and (3) counsel shall state in their
opinion that they believe that they and the Underwriter are
justified in relying thereon.
(d) You shall have received on the Closing Date an
opinion of King & Spalding, counsel for the Underwriter, dated the
Closing Date and addressed to you and in form and substance
reasonably satisfactory to you.
(e) You shall have received letters addressed to you and
dated the date hereof and the Closing Date from Deloitte & Touche
LLP, independent certified public accountants, substantially in the
forms heretofore approved by you.
(f) (i) No stop order suspending the effectiveness of
the Registration Statement shall have been issued and no
proceedings for that purpose shall have been taken or, to the
knowledge of the Company, shall be contemplated by the Commission
at or prior to the Closing Date; (ii) there shall not have been any
change in the capital stock of the Company nor any material
increase in the consolidated short-term or long-term debt of the
Company (other than in the ordinary course of business) from that
set forth or contemplated in the Registration Statement or the
Prospectus (or any amendment or supplement thereto); (iii) there
shall not have been, since the respective dates as of which
information is given in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), except as may
otherwise be stated in the Registration Statement and Prospectus
(or any amendment or supplement thereto), any material adverse
change in the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Company and
its subsidiaries taken as a whole; (iv) the Company shall not have
any liabilities or obligations, direct or contingent (whether or
not in the ordinary course of business), that are material to the
Company, taken as a whole, other than those reflected in the
Registration Statement or the Prospectus (or any amendment or
supplement thereto); and (v) all the representations and warranties
of the Company contained in this Agreement shall be true and
correct on and as of the date hereof and on and as of the Closing
Date as if made on and as of the Closing Date, and you shall have
received a certificate, dated the Closing Date and signed by the
chief executive officer and the chief financial officer of the
Company (or such other officers as are acceptable to you), to the
effect set forth in this Section 8(f) and in Section 8(g) hereof.
(g) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its
agreements herein contained and required to be performed or
complied with by it hereunder at or prior to the Closing Date.
(h) The Shares shall have been listed or approved for
listing upon notice of issuance on The New York Stock Exchange.
(i) The National Association of Securities Dealers, Inc.
(the "NASD"), upon a review of the terms of the public offering of
the Shares, shall not have objected to such offering, such terms or
the Underwriter's participation in the same.
(j) The Company shall have furnished or caused to be
furnished to you such further certificates and documents as you
shall have reasonably requested.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are
satisfactory in form and substance to you and your counsel in your
reasonable discretion.
Any certificate or document signed by any officer of the
Company and delivered to you or to your counsel, shall be deemed a
representation and warranty by the Company to the Underwriter as to
the statements made therein.
The obligations of the Underwriter to purchase Additional
Shares hereunder are subject to the satisfaction on and as of any
Option Closing Date of the conditions set forth in this Section 8,
except that, if any Option Closing Date is other than the Closing
Date, the certificates, opinions and letters referred to in
paragraphs (c) through (f) shall be dated the Option Closing Date
in question and the opinions called for by paragraphs (c) and (d)
shall be revised to reflect the sale of Additional Shares.
9. Expenses. The Company agrees to pay the following costs
and expenses and all other costs and expenses incident to the
performance by it of its obligations hereunder:(i) the preparation,
printing or reproduction, and filing with the Commission of the
Registration Statement (including financial statements and exhibits
thereto), each Prepricing Prospectus Supplement, the Prospectus,
and each amendment or supplement to any of them; (ii) the printing
(or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of
the Registration Statement, each Prepricing Prospectus Supplement,
the Prospectus, and all amendments or supplements to any of them as
may be reasonably requested for use in connection with the offering
and sale of the Shares; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the
Shares, including any stamp taxes in connection with the original
issuance and sale of the Shares; (iv) the reproduction and delivery
of this Agreement, the preliminary and supplemental Blue Sky
Memoranda and all other agreements or documents reproduced and
delivered in connection with the offering of the Shares; (v) the
listing of the Shares on the New York Stock Exchange; (vi) the
registration or qualification of the Shares for offer and sale
under the securities or Blue Sky laws or real estate syndication
laws of the several states as provided in Section 5(g) hereof
(including the reasonable fees, expenses and disbursements of
counsel for the Underwriter relating to the preparation,
reproduction, and delivery of the preliminary and supplemental Blue
Sky Memoranda and such registration and qualification); (vii) the
filing fees and the fees and expenses of counsel for the
Underwriter in connection with any filings required to be made with
the NASD; (viii) the transportation and other expenses incurred by
or on behalf of Company Representative in connection with
presentations to prospective purchasers of the Shares; (ix) the
fees and expenses of the Company's accountants and the fees and
expenses of counsel (including local and special counsel) for the
Company.
10. Effective Date of Agreement. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the
parties hereto; or (ii) if, at the time this Agreement is executed
and delivered, it is necessary for a post-effective amendment to
the Registration Statement to be declared effective before the
offering of the Shares may commence, when notification of the
effectiveness of or such post-effective amendment has been released
by the Commission. Until such time as this Agreement shall have
become effective, it may be terminated by the Company, by notifying
you, or by you, as Underwriter, by notifying the Company.
Any notice under this Section 10 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed within 24
hours by letter.
11. Termination of Agreement. This Agreement shall be
subject to termination in your absolute discretion, without
liability on the part of the Underwriter to the Company, by notice
to the Company, if prior to the Closing Date or any Option Closing
Date (if different from the Closing Date and then only as to the
Additional Shares), as the case may be, (i) trading in securities
generally on the New York Stock Exchange, the American Stock
Exchange or The Nasdaq Stock Market shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal
or state authorities, or (iii) there shall have occurred any
outbreak or escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial or
economic conditions, the effect of which on the financial markets
of the United States is such as to make it, in your reasonable
judgment, impracticable or inadvisable to commence or continue the
offering of the Shares at the offering price to the public set
forth on the cover page of the Prospectus or to enforce contracts
for the resale of the Shares by the Underwriter. Notice of such
termination may be given to the Company by telegram, telecopy or
telephone and shall be subsequently confirmed within 48 hours by
letter.
12. Information Furnished by the Underwriter. The statements
set forth in the last paragraph on the cover page, the
stabilization legend on the inside cover page and the statements
in the first and third paragraphs under the caption "Underwriting"
in any Prepricing Prospectus, Prospectus Supplement and in the
Prospectus, constitute the only information furnished by or on
behalf of you as such information is referred to in Sections 6(b)
and 7 hereof.
13. Miscellaneous. Except as otherwise provided in
Sections 5, 10 and 11 hereof, notice given pursuant to any
provision of this Agreement shall be in writing and shall be
delivered (i) if to the Company, at the office of the Company at
Xxxxxx Residential Properties, Inc., One Lincoln Centre, 0000 XXX
Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx, 00000, Attention: Xxx X. Xxxxxx,
or (ii) if to you, at Xxxxxxx Xxxxx & Associates, Inc., The Xxxxxxx
Xxxxx Financial Center, 000 Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx,
Xxxxxxx 00000, Attention: Xxxx X. Xxxxxx.
This Agreement has been and is made solely for the benefit of
the Underwriter, the Company, the Subsidiary, their respective
directors and officers, and the other controlling persons referred
to in Section 7 hereof and their respective successors and assigns,
to the extent provided herein, and no other person shall acquire or
have any right under or by virtue of this Agreement. Neither the
term "successor" nor the term "successors and assigns" as used in
this Agreement shall include a purchaser from the Underwriter of
any of the Shares in his status as such purchaser.
14. Applicable Law; Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the State
of Florida applicable to contracts made and to be performed within
the State of Florida.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in
counterparts, this Agreement shall not become effective unless at
least one counterpart hereof shall have been executed and delivered
on behalf of each party hereto.
Please confirm that the foregoing correctly sets forth the
agreement among the Company and the Underwriter.
Very truly yours,
XXXXXX RESIDENTIAL PROPERTIES, INC.
By: ----------------------------
Xxxx X. Xxxxxxxxx
Executive Vice President and
Chief Financial Officer
Confirmed as of the date first above mentioned:
XXXXXXX XXXXX & ASSOCIATES, INC.
By: ____________________________
Name: ______________________
Title: _____________________
SCHEDULE I
SUBSIDIARIES AND PARTNERSHIP INTERESTS
Subsidiaries
Name Percentage
Interest
Partnership Interests
Name Percentage
Interest
