12,051,000 Shares ARCHSTONE–SMITH TRUST Common Shares, Par Value $0.01 Per Share Underwriting Agreement
Exhibit 1.1
12,051,000 Shares
ARCHSTONE–XXXXX TRUST
Common Shares, Par Value $0.01 Per Share
Underwriting Agreement
September 6, 2005
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Archstone–Xxxxx Trust, a real estate investment trust organized under the laws of the State of
Maryland (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and
sell to the underwriter named in Schedule I hereto (the “Underwriter”), an aggregate of 12,051,000
common shares (the “Shares”) of beneficial interest, par value $0.01 per share (the “Common
Shares”).
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 “Securities Act”), a
registration statement (File Number 333-89160) on Form S-3, relating to certain equity securities
(the “Shelf Securities”) to be issued from time to time by the Company. The Company also has filed
with, or proposes to file with, the Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement specifically relating to the Shares. The registration statement as amended
to the date of this Agreement is hereinafter referred to as the “Registration Statement” and the
related prospectus covering the Shelf Securities in the form used to confirm sales of the Shares is
hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus as supplemented by the
prospectus supplement specifically relating to the Shares in the form used to confirm sales of the
Shares is hereinafter referred to as the “Prospectus.” Any reference in this Agreement to the
Registration Statement, the Basic Prospectus, or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Securities Act which were filed under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the “Exchange Act”) or under the
Securities Act on or before the date of this Agreement or the date of the Basic Prospectus or the
Prospectus, as the case may be; and any reference to “amend”, “amendment” or “supplement” with
respect to the Registration Statement, the Basic Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed under the Exchange Act after the date of this Agreement,
or the date of the Basic Prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
The Company hereby agrees with the Underwriter as follows:
1. The Company agrees to issue and sell the Shares to the Underwriter as hereinafter provided,
and the Underwriter, on the basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, agrees to purchase from the Company the aggregate
amount of Shares set forth in Schedule I hereto at the purchase price set forth in Schedule I
hereto.
2. The Company understands that the Underwriter intends (i) to make a public offering of the
Shares and (ii) initially to offer the Shares upon the terms set forth in the Prospectus.
3. Payment for the Shares shall be made to the Company or to its order in immediately
available funds on the date and at the time and place set forth in Schedule I hereto (or at such
other time and place on the same or such other date, not later than the third Business Day
thereafter, as the Underwriter and the Company may agree in writing). Such payment will be made
upon delivery to the Underwriter of the certificates for the Shares through the facilities of The
Depository Trust Company for the account of the Underwriter. As used herein, the term “Business
Day” means any day other than a Saturday or Sunday or a day on which banks are permitted or
required to be closed in New York City. The time and date of such payment and delivery with
respect to the Shares are referred to herein as the “Closing Date.” The certificates for the
Shares will be made available for inspection and packaging by the Underwriter at least one full
Business Day prior to the Closing Date at such place in New York City as the Underwriter and the
Company shall agree.
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4. The Company represents and warrants to the Underwriter that:
(a) the Registration Statement has been declared effective by the Commission under the
Securities Act; no stop order suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission; and the Registration Statement and Prospectus (as amended or
supplemented, if applicable) comply, or will comply, as the case may be, in all material respects
with the Securities Act, and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the date of the Prospectus and any
amendment or supplement thereto contain 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, and in
the case of the Prospectus, in the light of the circumstances under which they were made, not
misleading, and the Prospectus, as amended or supplemented at the Closing Date, if applicable, will
not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading; except that the foregoing representations and warranties shall not apply to statements
or omissions in the Registration Statement or the Prospectus made in reliance upon and in
conformity with information relating to the Underwriter furnished to the Company in writing by the
Underwriter expressly for use therein, it being agreed and understood that the only such
information is that described as such in the second paragraph of Section 7 hereof;
(b) the documents incorporated by reference in the Prospectus, when they were filed with the
Commission, conformed in all material respects to the requirements of the Exchange Act or the
Securities Act, as applicable, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact 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 by reference in the Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the requirements of the Exchange Act, as
applicable, and will not contain an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading;
(c) KPMG LLP, who has certified the financial statements filed with the Commission as part of
the Registration Statement and the Prospectus or incorporated by reference therein, are independent
registered public accountants as required by the Securities Act;
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(d) the financial statements and the related notes thereto, included or incorporated by
reference in the Registration Statement and the Prospectus, present fairly the consolidated
financial position of the Company and its consolidated subsidiaries and the entities which were
acquired by or merged into the Company (the “Company Group”) as of the dates indicated and the
results of their operations and the changes in their consolidated cash flows for the period
specified; the financial statements with respect to the properties acquired by the Company or the
entities which were acquired by or merged into the Company, together with related notes and
schedules as set forth or incorporated by reference in the Registration Statement or the
Prospectus, present fairly, in all material respects, the financial position and the results of
operations of such properties at the indicated dates and for the indicated periods; the foregoing
financial statements have been prepared in conformity with U.S. generally accepted accounting
principles (“GAAP”) applied on a consistent basis, and the supporting schedules included or
incorporated by reference in the Registration Statement or the Prospectus present fairly the
information required to be stated therein; the financial information and statistical data included
or incorporated by reference in the Registration Statement or the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with the financial
statements presented therein; and the pro forma financial information and the related notes
thereto, included or incorporated by reference in the Registration Statement and the Prospectus has
been prepared in accordance with the applicable requirements of the Securities Act and the Exchange
Act, as applicable;
(e) since the respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs, business prospects,
management, financial position, shareholders’ equity or results of operations of the Company and
its Subsidiaries (as defined below), taken as a whole (a “Material Adverse Effect”), otherwise than
as set forth or contemplated in the Prospectus; and except as set forth or contemplated in the
Prospectus neither the Company nor any of its Subsidiaries has entered into any transaction or
agreement (whether or not in the ordinary course of business) material to the Company and its
Subsidiaries taken as a whole;
(f) the Company has been duly organized and is validly existing as a real estate investment
trust of unlimited duration with transferable shares of beneficial interest in good standing under
the laws of the State of Maryland, with power and authority (trust or other) to own its properties
and conduct its business as described in the Prospectus, and has been duly qualified for the
transaction of business and is in good standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so as to
require such qualifica-
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tion, other than where the failure to be so qualified or in good standing would not have a
Material Adverse Effect;
(g) each of the Company’s subsidiaries (within the meaning of the Securities Act) is listed in
Schedule II hereto (the “Subsidiaries”) and has been duly incorporated or organized and is validly
existing as a corporation, limited liability company or limited partnership, as the case may be,
under the laws of its jurisdiction of incorporation, formation or organization, with power and
authority (corporate or other) to own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign entity or limited partnership, as the case may
be, for the transaction of business and is in good standing under the laws of each jurisdiction in
which it owns or leases properties or conducts any business so as to require such qualification,
other than where the failure to be so qualified or in good standing would not have a Material
Adverse Effect; and all the outstanding equity securities of each subsidiary of the Company have
been duly authorized and validly issued, are fully-paid and non-assessable, and (except for general
partnership interests or in the case of foreign Subsidiaries, for directors’ qualifying shares) are
owned by the Company, directly or indirectly, free and clear of all liens, encumbrances, security
interests and claims;
(h) neither the Company nor any of its Subsidiaries is party to any joint venture with any
other entity, except as described or incorporated by reference in the Prospectus;
(i) this Agreement has been duly authorized, executed and delivered by the Company and
constitutes the valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting creditors’ rights and
the effect of general principles of equity, and except as rights to indemnity and contribution
hereunder may be limited by applicable law;
(j) neither the Company nor any of the Subsidiaries is, nor with the giving of notice or lapse
of time or both would be, in violation of or in default under, (i) its Amended and Restated
Declaration of Trust or By-Laws, or (ii) joint venture agreement, partnership agreement or other
governing instruments or any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of
them or any of their respective properties is bound, except in the case of clause (ii) for
violations and defaults which individually and in the aggregate are not material to the Company and
its Subsidiaries taken as a whole or to the holders of the Shares;
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the issue and sale of the Shares and the performance by the Company of all of the provisions
of its obligations under the Shares and this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other material 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 is bound or to which any of the
property or assets of the Company or any of its Subsidiaries is subject, nor will any such action
result in any violation of the provisions of the Amended and Restated Declaration of Trust or the
By-Laws of the Company or any applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company, its Subsidiaries or any
of their respective properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is required for the issue
and sale of the Shares or the consummation by the Company of the transactions contemplated by this
Agreement, except such consents, approvals, authorizations, registrations or qualifications as have
been obtained under the Securities Act and as may be required under state securities or Blue Sky
Laws in connection with the purchase and distribution of the Shares by the Underwriter or consents,
the failure of which to obtain would not have a Material Adverse Effect or a material adverse
effect on the consummation of the transactions contemplated by this Agreement or on the validity of
the Shares;
(k) the Company is not an “investment company” or an entity “controlled” by an “investment
company”, as such terms are defined in the Investment Company Act of 1940, as amended (the
“Investment Company Act”);
(l) other than as set forth or contemplated in the Prospectus, there are no legal or
governmental proceedings pending or, to the knowledge of the Company, threatened to which the
Company or any of its Subsidiaries is or may be a party or to which any property of the Company or
any of its Subsidiaries is or may be the subject which, if determined adversely to the Company or
any of its Subsidiaries, could individually or in the aggregate reasonably be expected to have a
Material Adverse Effect and, to the best of the Company’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others; and there are no
contracts or other documents of a character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or the Prospectus which are not
filed or described as required;
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(m) the Company’s authorized, issued and outstanding shares of beneficial interest is as set
forth or incorporated by reference in the Prospectus; and all of the issued shares of beneficial
interest have been duly and validly authorized and issued, are fully paid and non-assessable;
(n) the Shares have been duly authorized and when delivered by the Company in accordance with
this Agreement and the Company’s Amended and Restated Declaration of Trust, will be validly issued,
fully paid and non-assessable, free of any pledge or any other charge; the issuance of such Shares
will not be subject to any preemptive or similar rights, except as set forth in the Prospectus; and
the Shares will conform to the descriptions thereof in the Prospectus in all material respects;
(o) the Company or its Subsidiaries have good and marketable title in fee simple to all real
property described in the Prospectus as owned by them and good and marketable title to all personal
property owned by them, in each case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made of such property by the
Company or its Subsidiaries; and any real property and buildings held under lease by the Company or
its Subsidiaries and described in the Prospectus are held by them under valid and subsisting leases
with such exceptions as are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company or its Subsidiaries;
(p) the Company and its Subsidiaries taken as a whole carry, or are covered by, insurance in
such amounts and covering such risks as is adequate for the conduct of their business and the value
of their properties;
(q) for the fiscal year ended December 31, 2001 ending on and including the date hereof, the
Company met the requirements for qualification as a real estate investment trust under Sections 856
through 860 of the Internal Revenue Code of 1986, as amended (the “Code”);
(r) for the period beginning October 30, 2001 and ending on and including the date hereof,
Archstone-Xxxxx Operating Trust, a Maryland real estate investment trust (the “Operating Trust”),
has operated in a manner to be classified as a partnership, and not as an association or
partnership taxable as a corporation, for federal income tax purposes;
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(s) all material Tax returns required to be filed by the Company Group have been filed and all
such returns are true, complete, and correct in all material respects. All material Taxes that are
due or claimed to be due from the Company Group have been paid other than those (i) currently
payable without penalty or interest or (ii) being contested in good faith and by appropriate
proceedings and for which, in the case of both clauses (i) and (ii), adequate reserves have been
established on the books and records of the Company Group in accordance with GAAP. There are no
proposed material Tax assessments against the Company Group. To the best knowledge and belief of
the Company, the accruals and reserves on the books and records of the Company Group in respect of
any material Tax liability for any Taxable period which liability has not been finally determined
are adequate to meet any assessments of Tax for any such period. For purposes of this Agreement,
the term “Tax” and “Taxes” shall mean all federal, state, local and foreign taxes, and other
assessments of a similar nature (whether imposed directly or through withholding), including any
interest, additions to tax, or penalties applicable thereto;
(t) each of the Company and its Subsidiaries owns, possesses or has obtained all licenses,
permits, certificates, consents, orders, approvals and other authorizations from, and has made all
declarations and filings with, all federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as conducted as of the date hereof, except in each case
where the failure to obtain licenses, permits, certificates, consents, orders, approvals and other
authorizations, or to make all declarations and filings, would not have a Material Adverse Effect,
and none of the Company or any of its Subsidiaries has received any notice of any proceeding
relating to revocation or modification of any such license, permit, certificate, consent, order,
approval or other authorization, except as described in the Registration Statement and the
Prospectus and except, in each case, where such revocation or modification would not have a
Material Adverse Effect; and the Company and each of its Subsidiaries are in material compliance
with all laws, rules and regulations relating to the conduct of their respective businesses as
conducted as of the date hereof, except where noncompliance with such laws or regulations would not
have a Material Adverse Effect;
(u) except as disclosed in the Prospectus, the Company and its Subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received all
permits, licenses or other approvals required of them under applicable Environmental Laws to
conduct their
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business, (iii) are in compliance with all terms and conditions of any such permit, license or
approval and (iv) have no knowledge of the unlawful presence of any hazardous substances, hazardous
materials, toxic substances or waste materials on any of the properties owned by them, or of any
unlawful spills, releases, discharges or disposal of such hazardous materials that have occurred or
are presently occurring off such properties as a result of any construction on or operation and use
of such properties, except where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals or unlawful presence of hazardous materials or occurrence would
not, singly or in the aggregate, result in a Material Adverse Effect;
(v) the mortgages and deeds of trust encumbering the properties and assets described in the
Prospectus (i) are not convertible and neither the Company nor any of its Subsidiaries holds a
participating interest therein, and (ii) are not cross-defaulted or cross-collateralized to any
property not owned by the Company or any of its Subsidiaries;
(w) subsequent to the respective dates as of which information is given in the Prospectus, (i)
the Company has not purchased any of its outstanding shares of beneficial interest, nor declared,
paid or otherwise made any dividend or distribution of any kind on its shares of beneficial
interest other than regular periodic dividends on its shares of beneficial interest (preferred or
common); and (ii) there has not been any material change in the shares of beneficial interest,
short-term debt or long-term debt of the Company, except in either case as described in or
contemplated by the Prospectus;
(x) the Company has not taken and will not take, directly or indirectly, any action designed
to, or that might be reasonably expected to, cause or result in stabilization or manipulation of
the price of the Common Shares, and the Company has not distributed and has agreed not to
distribute any prospectus or other offering material in connection with the offering and sale of
the Shares other than the Prospectus, any preliminary prospectus filed with the Commission or other
material permitted by the Securities Act;
(y) the Company and each of its Subsidiaries 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 GAAP and to maintain
accountability for assets; (iii) access to assets is permitted only in accordance with management’s
9
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; and
(z) the Company has established and maintains “disclosure controls and procedures” (as defined
in Rule 13a-15(e) under the Exchange Act) that are effective in ensuring that information required
to be disclosed by the Company in the reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported, within the time periods specified in the rules and
forms of the Commission, including, without limitation, controls and procedures designed to ensure
that information required to be disclosed by the Company in the reports that it files or submits
under the Exchange Act is accumulated and communicated to the Company’s management, including its
principal executive officer or officers and its principal financial officer or officers, as
appropriate to allow timely decisions regarding required disclosure, and the Company is otherwise
in compliance in all material respects with all applicable effective provisions of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations issued thereunder by the Commission in
connection therewith, including, without limitation, Section 402 related to loans and Section 906
related to certifications.
5. The Company covenants and agrees with the Underwriter as follows:
(a) to file the Prospectus in a form approved by the Underwriter pursuant to Rule 424 under
the Securities Act not later than the Commission’s close of business on the second Business Day
following the date of determination of the offering price of the Shares;
(b) to deliver to the Underwriter and counsel for the Underwriter, at the expense of the
Company, a signed copy of the Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and documents incorporated by reference therein and,
during the period mentioned in paragraph (e) below, to the Underwriter as many copies of the
Prospectus (including all amendments and supplements thereto) and documents incorporated by
reference therein as the Underwriter may reasonably request;
(c) from the date hereof and prior to the Closing Date, to furnish to the Underwriter a copy
of any proposed amendment or supplement to the Registration Statement or the Prospectus, for review
by the Underwriter, and not to file any such proposed amendment or supplement to which the
Underwriter reasonably objects;
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(d) to file promptly all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares, and during such same period, to advise the Underwriter promptly,
and to confirm such advice in writing, (i) when any amendment to the Registration Statement shall
have become effective, (ii) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for any additional information, (iii)
of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceeding for that purpose, and
(iv) of the receipt by the Company of any notification with respect to any suspension of the
qualification of the Shares for offer and sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; and to use its best efforts to prevent the issuance of any such
stop order or notification and, if issued, to obtain as soon as possible the withdrawal thereof;
(e) if, during such period after the first date of the public offering of the Shares as in the
reasonable opinion of counsel for the Underwriter a prospectus relating to the Shares is required
by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur
as a result of which it is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply
with law, and such amendment or supplement, reasonably satisfactory in all respects to the
Underwriter, forthwith to prepare and furnish, at the expense of the Company, to the Underwriter
and to the dealers (whose names and addresses the Underwriter will furnish to the Company) to which
Shares may have been sold by you and to any other dealers upon request, such amendments or
supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances existing at the time that the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with
law;
(f) to endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws
of such jurisdictions as the Underwriter shall reasonably request and to continue such
qualification in effect so long as reasonably required for distribution of the Shares and to pay
all fees and expenses (including fees and disbursements of counsel to the Underwriter) reasonably
incurred in connection with such qualification and in connection with the determination of the
eligibility of the
11
Shares for investment under the laws of such jurisdictions as the Underwriter may designate;
provided that the Company shall not be required to file a general consent to service of process in
any jurisdiction or to qualify to do business in any jurisdiction where it is not so qualified;
(g) to make generally available to its security holders and to the Underwriter as soon as
practicable an earnings statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the effective date of the Registration
Statement, which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
of the Commission promulgated thereunder;
(h) to operate in a manner to continue to qualify as a real estate investment trust under
Section 856 through 860 of the Code;
(i) to use the net proceeds of the offering of the Shares in the manner specified in the
Prospectus under “Use of Proceeds;”
(j) as long as any Shares are outstanding, not to be or become an open-end investment trust,
unit investment trust, closed-end investment company or face-amount certificate company that is or
is required to be registered under the Investment Company Act;
(k) to pay all costs and expenses incident to the performance of its obligations hereunder,
including without limiting the generality of the foregoing, all costs and expenses (i) incident to
the preparation, issuance, execution, authentication and delivery of the Shares, (ii) incident to
the preparation, printing and filing under the Securities Act of the Registration Statement and the
Prospectus (including in each case all exhibits, amendments and supplements thereto), (iii)
incurred in connection with the registration or qualification and determination of eligibility for
investment of the Shares under the laws of such jurisdictions as the Underwriter may designate
(including reasonable fees of counsel for the Underwriter and their disbursements), (iv) related to
any filing with National Association of Securities Dealers, Inc. in respect of the Shares, (v) in
connection with the printing (including word processing and duplication costs) and delivery of this
Agreement, the Preliminary and Supplemental Blue Sky Memoranda and any Legal Investment Survey and
the furnishing to the Underwriter and dealers of copies of the Registration Statement and the
Prospectus, including mailing and shipping, as herein provided, (vi) in connection with any stock
transfer taxes incurred in connection with this Agreement, (vii) incurred in connection with the
cost and charges of any transfer agent or
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registrar, and (viii) incurred in connection with the cost of preparing stock certificates;
and
(l) that, without the prior written consent of the Underwriter, the Company will not, during
the period ending 60 days after the date of the Prospectus, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for
Common Shares; or (2) enter into any swap or other arrangement that transfers to another, in whole
or in part, any of the economic consequences of ownership of the Common Shares, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of Common Shares or
such other securities, in cash or otherwise. The foregoing sentence shall not apply to (a) the
sale of any Shares to the Underwriter pursuant to this Agreement, (b) the issuance by the Company
of Common Shares upon the redemption of Class A-1 common units of beneficial interest, par value
$0.01 per unit (“Class A-1 Units”), of the Operating Trust in accordance with the Amended and
Restated Declaration of Trust of the Operating Trust, (c) the issuance by the Company of Common
Shares upon the exercise of an option or warrant or the conversion of a security outstanding on the
date hereof which are described in the Prospectus, (d) the grant of options to purchase Common
Shares pursuant to the Company’s or the Operating Trust’s existing employee or trustee benefit
plans as in effect on the date hereof, (e) the issuance of Class B common units of beneficial
interest, par value $0.01 per unit (together with the Class A-1 Units, the “Units”), of the
Operating Trust in connection with the acquisition of property, directly or indirectly, by the
Operating Trust or (f) the issuance by the Company of Common Shares or by the Operating Trust of
Units in accordance with the Company’s dividend reinvestment and share purchase plan.
6. The obligations of the Underwriter to purchase and pay for the Shares, as provided herein,
shall be subject to the following conditions:
(a) the representations and warranties of the Company contained herein are true and correct as
of the date hereof and as of the Closing Date as if made on and as of the date hereof and of the
Closing Date, and the Company shall have complied with all agreements and all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission pursuant to Rule 424 within the
applicable time period prescribed for such filing by the rules and regulations under the Securities
Act; no stop order suspending the
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effectiveness of the Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the reasonable
satisfaction of the Underwriter;
(c) subsequent to the execution and delivery of this Agreement and prior to the Closing Date,
there shall not have occurred any downgrading, nor shall any notice have been given of (i) any
intended or potential downgrading or (ii) any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or guaranteed by the Company by any
“nationally recognized statistical rating organization”, as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the Prospectus there shall
not have been any material change in the shares of beneficial interest, short-term debt or
long-term debt of the Company or any Material Adverse Effect, otherwise than as set forth or
contemplated in the Prospectus, the effect of which in the judgment of the Underwriter makes it
impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on
the terms and in the manner contemplated in the Prospectus;
(e) the Underwriter shall have received on and as of the Closing Date a certificate of two
officers of the Company, at least one of whom is a Chairman, Chief Executive Officer, Chief
Financial Officer or Vice President of the Company satisfactory to the Underwriter, to the effect
set forth in subsections (a) through (c) of this Section and to the further effect that there has
not occurred any Material Adverse Effect from that set forth or contemplated in the Registration
Statement;
(f) the Shares will have been approved for listing on the New York Stock Exchange on or prior
to the Closing Date;
(g) Mayer, Brown, Xxxx & Maw LLP, counsel for the Company, shall have furnished to the
Underwriter their written opinion, dated the Closing Date, in form and substance satisfactory to
the Underwriter, to the effect that:
(i) the Company has been duly organized and is validly existing as a real estate
investment trust in good standing under the laws of the State of Maryland, with
power and authority (trust or other) to own its properties and conduct its
business as described in the Prospectus as then amended or supplemented;
14
(ii) the Company has been duly qualified for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such qualification, other
than where the failure to be so qualified or in good standing would not have a
Material Adverse Effect;
(iii) [reserved]
(iv) other than as set forth or contemplated in the Prospectus, to such counsel’s
knowledge, there are no legal or governmental proceedings pending or threatened to
which the Company or any of its Subsidiaries is or may be a party or to which any
property of the Company or its Subsidiaries is or may be the subject which, if
determined adversely to the Company or such Subsidiaries, could individually or in
the aggregate reasonably be expected to have a Material Adverse Effect; to such
counsel’s knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and such counsel does not know
of any amendment to the Registration Statement required to be filed or of any
contracts or other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by reference into the
Prospectus or required to be described in the Registration Statement or the
Prospectus which are not filed or incorporated by reference or described as
required;
(v) this Agreement has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium
and similar laws now or hereafter in effect relating to creditors’ rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity) and except as
rights to indemnity and contribution hereunder may be limited by applicable law;
(vi) the Shares have been duly and validly authorized by the Company and, when
delivered by the Company in accordance with this
15
Agreement, will be duly and validly issued, fully paid and non-assessable;
(vii) the Shares conform in all material respects to the descriptions thereof in
the Registration Statement and the Prospectus;
(viii) the Company’s authorized, issued and outstanding shares of beneficial
interest are as set forth or incorporated by reference in the Prospectus; and all
of the issued shares of beneficial interest have been duly and validly authorized
and issued, are fully paid and non-assessable;
(ix) neither the Company nor any of its Subsidiaries is, nor with the giving of
notice or lapse of time or both would be, in violation of or in default under, (i)
its Amended and Restated Declaration of Trust, By-Laws, partnership agreement or
other governing instruments or (ii) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to which the
Company or any of its Subsidiaries is a party or by which it or any of them or any
of their respective properties is bound, except for violations and defaults (other
than violations or defaults with respect to the Amended and Restated Declaration
of Trust and Bylaws of the Company) which individually and in the aggregate are
not material to the Company and its Subsidiaries taken as a whole or to the
holders of the Common Shares; the issue and sale of the Shares and the performance
by the Company of its obligations with respect to the Shares and this Agreement
and the consummation of the transactions herein and therein contemplated will not
(i) conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan agreement
or other material agreement or instrument known to such counsel 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, (ii) nor will any such action result in any
violation of the provisions of the Amended and Restated Declaration of Trust, or
the By-Laws of the Company or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company, its Subsidiaries or any of their respective properties, the violation
of which would have a Material Adverse Effect or a
16
material adverse effect on the consummation of the transactions contemplated by
this Agreement or on the validity of the Shares;
(x) no consent, approval, authorization, order, registration or qualification of
or with any court or governmental agency or body is required for the issue and
sale of the Shares or the consummation of the other transactions contemplated by
this Agreement, except such consents, approvals, authorizations, registrations or
qualifications as have been obtained under the Securities Act and as may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriter or consents, the failure of
which to obtain would not have a Material Adverse Effect or a material adverse
effect on the consummation of the transactions contemplated by this Agreement or
on the validity of the Shares;
(xi) the statements (A) contained in the Basic Prospectus under “Description of
Common Shares,” (B) incorporated by reference in the Prospectus from Item 3 of
Part 1 of the Company’s Annual Report on Form 10-K for the year ended December 31,
2004, and (C) contained in the Registration Statement in Item 15 insofar as such
statements constitute a summary of the legal matters, documents or proceedings
referred to therein, are true and correct in all material respects;
(xii) (A) the Company qualified to be taxed as a real estate investment trust
pursuant to Sections 856 through 860 of the Code, as amended, for the fiscal year
ended December 31, 2004, (B) the Operating Trust was classified as a partnership,
and not as an association or partnership taxable as a corporation, for federal
income tax purposes, from October 30, 2001, through the date hereof, and (C) based
on the representation that the Operating Trust will continue to satisfy the “90%
qualifying income” test under Section 7704 of the Code, the Operating Trust will
be classified for federal income tax purposes as a partnership, and not as an
association or partnership taxable as a corporation; and the Company is not an
open-end investment company, unit investment trust, closed-end investment company
or face-amount certificate company that is or is required to be registered under
the Investment Company Act;
17
(xiii) the investments of the Company described in the Prospectus are permitted
investments under the Amended and Restated Declaration of Trust of the Company;
(xiv) the Registration Statement is effective under the Securities Act and no stop
order suspending the effectiveness of the Registration Statement has been issued
under the Securities Act or proceeding therefor initiated or, to the best of such
counsel’s knowledge and information, threatened by the Commission; and
(xv) such counsel (A) believes that (except for the financial statements,
supporting schedules and other financial data included therein or omitted
therefrom) each part of the Registration Statement (including the documents
incorporated by reference therein) filed with the Commission pursuant to the
Securities Act relating to the Securities, when such part became effective, did
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading, (B) is of the opinion that the Registration Statement and the
Prospectus and any amendments and supplements thereto (except for the financial
statements, supporting schedules and other financial data included therein or
omitted therefrom) comply as to form in all material respects with the
requirements of the Securities Act and (C) believes that (except for the financial
statements, supporting schedules and other financial data included therein or
omitted therefrom) the Registration Statement and the Prospectus, as of their
respective dates and on the date of this Agreement, did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, and in the case of the
Prospectus, in the light of the circumstances under which they were made, not
misleading, and that the Prospectus as amended or supplemented, if applicable, on
the Closing Date does not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
In rendering such opinions, such counsel may rely (A) as to matters involving the application
of laws other than the laws of the United States and the States of Illinois and New York, to the
extent such counsel deems proper and to the extent specified in such opinion, if at all, upon an
opinion or opinions (in form and
18
substance reasonably satisfactory to Underwriter’s counsel) of other counsel reasonably
acceptable to the Underwriter’s counsel, familiar with the applicable laws; and (B) as to matters
of fact, to the extent such counsel deems proper, on certificates of responsible officers of the
Company and certificates or other written statements of officials of jurisdictions having custody
of documents respecting the corporate existence or good standing of the Company. The opinion of
such counsel for the Company shall state that the opinion of any such other counsel or such
certificates is in form satisfactory to such counsel and, in such counsel’s opinion, the
Underwriter and they are justified in relying thereon. With respect to the matters to be covered
in subparagraph (xv) above counsel may state their opinion and belief is based upon their
participation in the preparation of the Registration Statement and the Prospectus and any amendment
or supplement thereto but is without independent check or verification except as specified. In
rendering the opinions contained in (xii), such opinions may be based upon (a) the Code and the
rules and regulations promulgated thereunder, (b) Maryland law existing and applicable to the
Company, (c) facts and other matters set forth in the Prospectus, (d) the provisions of the Amended
and Restated Declaration of Trust of the Company, and (e) certain statements and representations
made by the Company to Mayer, Brown, Xxxx & Maw LLP provided that such statements and
representations are also set forth in a certificate to the Underwriter.
(h) Xxxxxxxx Xxxxxx, Executive Vice President and General Counsel of the Company, shall have
furnished to the Underwriter her written opinion, dated the Closing Date, in form and substance
satisfactory to the Underwriter, to the effect that:
(i) other than as set forth or contemplated in the Prospectus, there are no legal
or governmental proceedings pending or, to the best of her knowledge, threatened
to which the Company or any of its Subsidiaries is or may be a party or to which
any property of the Company or its Subsidiaries is or may be the subject which, if
determined adversely to the Company or such Subsidiaries, could individually or in
the aggregate reasonably be expected to have a Material Adverse Effect; and
(ii) to the best of her knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; she does not
know of any amendment to the Registration Statement required to be filed; and
there are no contracts or other documents of a character required to be filed as
an exhibit to the Registration Statement or required to be incorporated by
reference into the Prospectus
19
or required to be described in the Registration Statement or the Prospectus which
are not filed or incorporated by reference or described as required.
(i) on the date of execution of this Agreement and also on the Closing Date, KPMG LLP shall
have furnished to you letters, dated such respective dates of delivery, in form and substance
reasonably satisfactory to the Underwriter, containing statements and information of the type
customarily included in accountants “comfort letters” to underwriters with respect to the financial
statements and certain financial information contained in the Registration Statement and the
Prospectus;
(j) [reserved];
(k) the Underwriter shall have received on and as of the Closing Date an opinion of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Underwriter, with respect to the validity of the
Registration Statement, the Prospectus and other related matters as the Underwriter may reasonably
request, and such counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(l) on or prior to the Closing Date, the Company shall have furnished to the Underwriter such
further certificates and documents as the Underwriter shall reasonably request; and
(m) the Underwriter shall have received “lock-up” agreements, each substantially in the form
of Exhibit A hereto, from the executive officers and trustees of the Company relating to sales and
certain other dispositions of Common Shares or certain other securities, and all of such “lock-up”
agreements, delivered to you on or before the date hereof, shall be in full force and effect on the
Closing Date.
7. The Company agrees to indemnify and hold harmless the Underwriter and each person, if any,
who controls the Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including without limitation the legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted) arising out of or caused by any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or arising out of or caused by any omission or
alleged
20
omission to state therein a material fact required to be stated therein or necessary to make
the statements therein, in the case of the Prospectus or any preliminary prospectus, in the light
of the circumstances under which they were made, not misleading, except insofar as such losses,
claims, damages or liabilities arising out of or are caused by any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity with information
relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for
use therein, it being agreed and understood that the only such information is that which is
described as such in the second paragraph of this section; provided, that the foregoing indemnity
with respect to any preliminary prospectus shall not inure to the benefit of the Underwriter (or to
the benefit of the person controlling the Underwriter) from whom the person asserting any such
losses, claims, damages or liabilities purchased Shares if such untrue statement or omission or
alleged untrue statement or omission made in such preliminary prospectus is eliminated or remedied
in the Prospectus (as amended or supplemented if the Company shall have previously furnished any
amendments or supplements thereto to the Underwriter) and, if required by law, a copy of the
Prospectus (as so amended or supplemented but excluding any material incorporated by reference)
shall not have been furnished to such person at or prior to the written confirmation of the sale of
such Shares to such person.
The Underwriter agrees to indemnify and hold harmless the Company, its trustees, its officers
who sign the Registration Statement and each person who controls the Company within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Underwriter, but only with reference to information
relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for
use in the Registration Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus. For purposes of this Section 7 and Section 4(a), the only written
information furnished by the Underwriter to the Company expressly for use in the Registration
Statement and the Prospectus is the information in the eighth paragraph (other than with respect to
the Company) under the caption “Underwriting” in the prospectus supplement.
If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any person in respect of which indemnity may
be sought pursuant to either of the two preceding paragraphs, such person (the “Indemnified
Person”) shall promptly notify the person against whom such indemnity may be sought (the
“Indemnifying Person”) in writing, and the Indemnifying Person, upon request of the Indemnified
Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the
21
Indemnified Person and any others the Indemnifying Person may designate in such proceeding and
shall pay the fees and expenses of such counsel related to such proceeding. In any such
proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory
to the Indemnified Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred.
Any such separate firm for the Underwriter and such control persons of the Underwriter shall be
designated in writing by the Underwriter and any such separate firm for the Company, its trustees,
its officers who sign the Registration Statement and such control persons of the Company or
authorized representatives shall be designated in writing by the Company. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested an Indemnifying Person to reimburse the Indemnified Person
for fees and expenses of counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30 days after receipt
by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying Person shall not
have reimbursed the Indemnified Person in accordance with such request prior to the date of such
settlement; provided that if it is ultimately determined that an Indemnified Person was not
entitled to indemnification hereunder, such person shall be responsible for repaying or reimbursing
such amounts to the Indemnifying Person. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are the subject matter of such
proceeding.
22
If the indemnification provided for in the first and second paragraphs of this Section 7 is
unavailable to an Indemnified Person in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying
such Indemnified Person thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the 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 or liabilities, 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 respective
proportions as the net proceeds from the offering of such Shares (before deducting expenses)
received by the Company and the total underwriting discounts received by the Underwriter bear to
the aggregate public offering price of the Shares. The relative fault of the Company on the one
hand and the Underwriter on the other 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 by the
Underwriter and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriter agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an Indemnified Person as a result
of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any legal or other expenses
incurred by such Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall the Underwriter be
required to contribute any amount in excess of the amount by which the total price at which the
Shares underwritten by it and distributed to the public were offered to the public exceeds the
amount of any damages that the Underwriter have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
23
Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution agreements contained in this Section 7 are in addition to any
liability which the Indemnifying Persons may otherwise have to the Indemnified Persons referred to
above.
The indemnity and contribution agreements contained in this Section 7 and the representations,
warranties, and covenants of the Company set forth in this Agreement shall remain operative and in
full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation
made by or on behalf of the Underwriter or any person controlling the Underwriter or by or on
behalf of the Company, its officers or directors or any other person controlling the Company and
(iii) acceptance of and payment for any of the Shares.
8. Notwithstanding anything herein contained, this Agreement may be terminated in the absolute
discretion of the Underwriter, by notice given to the Company, if after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, the New York Stock Exchange, (ii) trading of any
securities of or guaranteed by the Company shall have been suspended or materially limited on any
exchange or in any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York State authorities,
(iv) there shall have occurred any outbreak or escalation of hostilities involving the United
States or any change in financial markets in the United States or any calamity or crisis or any
change or development involving a prospective change in national or international political,
financial or economic conditions, in each case the effect of which is such as to make it, in the
judgment of the Underwriter, material and adverse and which, in the judgment of the Underwriter
makes it impracticable or inadvisable to market the Shares on the terms and in the manner
contemplated in the Prospectus or (v) there has occurred a material disruption in securities
settlement or clearance services.
9. 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 to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriter’s obligations cannot be fulfilled, the Company agrees
to reimburse the Underwriter, for all out-of-pocket expenses (including the fees and expenses of
its counsel) reasonably incurred by the Underwriter in connection with this Agreement or the
offering of Shares contemplated hereunder and the Company
24
shall then be under no further liability to the Underwriter except as provided in Sections
5(l) and 7 of this Agreement.
10. This Agreement shall inure to the benefit of and be binding upon the Company, the
Underwriter, any controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained. No purchaser of Shares from the
Underwriter shall be deemed to be a successor by reason merely of such purchase.
11. Under the terms of the Company’s Amended and Restated Declaration of Trust, all persons
dealing with the Company shall look solely to the Company property for satisfaction of claims of
any nature, and no trustee, officer, agent or shareholder of the Company shall be held to any
person liable in tort, contract or otherwise as the result of the execution and delivery of this
Agreement by the Company.
12. All notices and other communications hereunder shall be in writing and shall be deemed to
have been duly given if mailed or transmitted by any standard form of telecommunication. Notices
to the Underwriter shall be given to Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 Attention: Financing Services Group, Facsimile: (000) 000-0000. Notices to the
Company shall be given to it at 0000 Xxxx Xxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 (facsimile
number: (000) 000-0000), Attention: Xxxxxxxx Xxxxxx, Executive Vice President and General Counsel.
13. This Agreement may be signed in counterparts, each of which shall be an original and all
of which together shall constitute one and the same instrument. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, without giving effect to the
conflicts of laws provisions thereof.
14. Entire Agreement.
(a) This Agreement, together with any contemporaneous written agreements and any prior
written agreements (to the extent not superseded by this Agreement) that relate to the offering of
the Shares, represents the entire agreement between the Company and the Underwriter with respect to
the preparation of the Prospectus, the conduct of the offering, and the purchase and sale of the
Shares.
25
(b) The Company acknowledges that in connection with the offering of the Shares: (i) the
Underwriter has acted at arms length, are not agents of, and owe no fiduciary duties to, the
Company or any other person, (ii) the Underwriter owes the Company only those duties and
obligations set forth in this Agreement and (iii) the Underwriter may have interests that differ
from those of the Company. The Company waives to the full extent permitted by applicable law any
claims it may have against the Underwriter arising from an alleged breach of fiduciary duty in
connection with the offering of the Shares.
26
If the foregoing is in the accordance with your understanding, please sign and return to
us five counterparts hereof.
Very truly yours, ARCHSTONE–XXXXX TRUST |
||||
By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
Title: | Chief Financial Officer | |||
Accepted: September 6, 2005
XXXXXX XXXXXXX & CO. INCORPORATED
By:
|
/s/ Xxxx Xxxxx | |||
Title: Executive Director |
Schedule I | ||
Underwriter:
|
Xxxxxx Xxxxxxx & Co. Incorporated | |
Underwriting Agreement dated:
|
September 6, 2005 | |
Registration Statement Number:
|
333-89160 | |
Total Number of Shares to be
Purchased:
|
12,051,000 | |
Purchase Price:
|
$40.78 per share | |
Closing Date:
|
The Closing will be held at Time of Delivery: 10:00 a.m. (E.S.T.) on September 9, 2005, with the certificates of the Shares being delivered through the book-entry facilities of The Depository Trust Company (“DTC”) and made available for checking by DTC at least 24 hours prior to the Closing Date | |
Closing Location:
|
Offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Four Times Square, Xxx Xxxx, XX 00000 |
I-1
Schedule II
SUBSIDIARIES
ARCHSTONE-XXXXX TRUST
State of | ||||
Incorporation or | Percentage | |||
Subsidiary Name | Organization | Owned | ||
Xxxxx Five, Inc.
|
Delaware | 100% | ||
Xxxxx Four, Inc.
|
Delaware | 100% | ||
Xxxxx One, Inc.
|
Delaware | 100% | ||
Xxxxx Seven, Inc.
|
Delaware | 100% | ||
Xxxxx Six, Inc.
|
Delaware | 100% | ||
Xxxxx Three, Inc.
|
Delaware | 100% | ||
Xxxxx Two, Inc.
|
Delaware | 100% | ||
Archstone-Xxxxx Operating Trust
|
Maryland | 100% | ||
Archstone-Xxxxx Communities LLC
|
Delaware | 100% | ||
PTR-California Holdings (1) LLC
|
Delaware | 100% | ||
PTR-California Holdings (3) LLC
|
Delaware | 100% | ||
PTR-Colorado (1), LLC
|
Colorado | 80% | ||
Security Capital Atlantic Multifamily LLC
|
Delaware | 100% | ||
SCA-North Carolina (1) LLC
|
Delaware | 100% | ||
SCA-North Carolina (2) LLC
|
Delaware | 100% | ||
SCA Florida Holdings (2) LLC
|
Delaware | 100% | ||
SCA North Carolina Limited Partnership
|
Delaware | 100% | ||
ASN RH Member LLC
|
Delaware | 100% | ||
ASN San Diego LLC
|
Delaware | 100% | ||
ASN Studio City LLC
|
Delaware | 100% |
State of | ||||
Incorporation or | Percentage | |||
Subsidiary Name | Organization | Owned | ||
ASN Massachusetts Holdings (1) LLC
|
Delaware | 100% | ||
ASN Massachusetts Holdings (2) LLC
|
Delaware | 100% | ||
ASN Massachusetts Holdings (3) LLC
|
Delaware | 100% | ||
ASN Massachusetts Holdings (4) LLC
|
Delaware | 100% | ||
ASN Massachusetts Holdings (5) LLC
|
Delaware | 100% | ||
ASN Multifamily Limited Partnership
|
Delaware | 100% | ||
Turtle Run at Coral Springs, L.L.C.
|
Delaware | 25% | ||
ASN Pinacle LLC
|
Delaware | 25% | ||
Xxxxx Property Holding Ballston Place LLC
|
Delaware | 100% | ||
ASN Dakota Ridge L.L.C.
|
Delaware | 100% | ||
ASN Wendemere L.L.C.
|
Delaware | 100% | ||
Archstone Vinnin Square LLC
|
Delaware | 25% | ||
ASN Northgate, LLC
|
Delaware | 100% | ||
ASN Xxxxxxxxxx Highlands LLC
|
Delaware | 100% | ||
ASN Technologies, Inc.
|
Delaware | 100% | ||
ASN Xxxxxxx Commons LLC
|
Delaware | 100% | ||
ASN Sussex Commons LLC
|
Delaware | 100% | ||
ASN Saybrooke LLC
|
Delaware | 100% | ||
ASN Cambridge LLC
|
Delaware | 100% | ||
ASN Watertown LLC
|
Delaware | 100% | ||
ASN Washington Boulevard LLC
|
Delaware | 100% |
State of | ||||
Incorporation or | Percentage | |||
Subsidiary Name | Organization | Owned | ||
ASN West End LLC
|
Delaware | 100% | ||
Courthouse Hill L.L.C.
|
Delaware | 100% | ||
Xxxxx Property Holdings 2000
Commonwealth L.L.C.
|
Delaware | 100% | ||
Xxxxx Property Holdings Crystal
Plaza L.L.C.
|
Delaware | 100% | ||
Xxxxx Property Holdings One
East Delaware L.L.C.
|
Delaware | 100% | ||
Xxxxx Property Holdings Lincoln
Towers L.L.C.
|
Virginia | 100% | ||
Xxxxx Property Holdings Xxxxxxx Xxxxxx
L.P.
|
Delaware | 99.5% | ||
Xxxxx Property Holdings Kenmore L.P.
|
Delaware | 100% | ||
First Xxxxxxx Associates Limited Partnership |
Delaware | 99.5% | ||
Xxxxx Property Holdings Van
Ness L.P.
|
Delaware | 99.5% | ||
Xxxxx Property Holdings Columbia Road,
L.P.
|
Delaware | 99.5% | ||
Xxxxx Property Holdings Xxxxxx’x Landing
L.P.
|
Massachusetts | 99.5% | ||
Xxxxx Property Holdings 0000 Xxxxxxxxxxx
Xxxxxx L.L.C.
|
Delaware | 99.5% | ||
Xxxxx Property Holdings
Xxxxxxxx House L.L.C.
|
Delaware | 100% | ||
Xxxxx Property Holdings
XxXxxxx Court L.L.C.
|
Delaware | 100% | ||
Xxxxx Property Holdings Parc Vista L.L.C.
|
Delaware | 100% |
State of | ||||
Incorporation or | Percentage | |||
Subsidiary Name | Organization | Owned | ||
Xxxxx Property Holdings
Superior Place L.L.C.
|
Delaware | 100% | ||
Xxxxx Property HoldingsWater Park Towers
L.L.C.
|
Delaware | 100% | ||
Xxxxx Property Holdings Xxxxx
Xxxxxx L.L.C.
|
Delaware | 99.5% | ||
Xxxxx Property Holdings Xxxxx Xxxxxx Two
L.L.C.
|
Delaware | 100% | ||
Xxxxx Property Holdings Consulate L.L.C.
|
Delaware | 99.5% | ||
Xxxxx Property Holdings
Crystal Houses L.L.C.
|
Delaware | 100% | ||
Xxxxx Property Holdings Illinois Center
L.L.C.
|
Delaware | 100% | ||
Xxxxx Property Holdings New River Village
L.L.C.
|
Delaware | 100% | ||
Xxxxx Property Holdings Reston Landing
L.L.C.
|
Delaware | 100% | ||
Xxxxx Property Holdings Sagamore Towers,
L.L.C.
|
Delaware | 100% | ||
Xxxxx Property Holdings
Springfield L.L.C.
|
Virginia | 100% | ||
Xxxxx Property Holdings Xxxxxx L.L.C.
|
Delaware | 100% | ||
Metropolitan Acquisition Finance L.P.
|
Delaware | 99.5% | ||
Xxxxx Realty Company
|
Maryland | 100% | ||
Archstone Property Management LLC
|
Delaware | 100% | ||
Archstone Property Management (California) Incorporated |
Delaware | 100% |
State of | ||||
Incorporation or | Percentage | |||
Subsidiary Name | Organization | Owned | ||
ASN Maple Leaf (Office) LLC
|
Delaware | 100% | ||
ASN Meadow Wood LLC
|
Delaware | 100% | ||
ASN Newport Crossing LLC
|
Delaware | 100% | ||
ASN Rockville LLC
|
Delaware | 100% | ||
ASN Stone Ridge Manager LLC
|
Delaware | 100% | ||
ASN Stone Ridge LLC
|
Delaware | 40% | ||
ASN Villa Redondo LLC
|
Delaware | 100% | ||
Xxxxx Property Holdings Five (D.C.) L.P.
|
Delaware | 99.5% | ||
Xxxxx Property Holdings Five L.P.
|
Delaware | 99.5% | ||
Xxxxx Property Holdings Four L.P.
|
Delaware | 99.5% | ||
ASN Lakeshore East LLC
|
Delaware | 100% | ||
Xxxxx Property Holdings One (D.C.) L.P.
|
Delaware | 99.5% | ||
Xxxxx Property Holdings One L.P.
|
Delaware | 99.5% | ||
Xxxxx Property Holdings Seven L.P.
|
Delaware | 99.5% | ||
Xxxxx Property Holdings Six (D.C.) L.P.
|
Delaware | 99.5% | ||
Xxxxx Property Holdings Six L.P.
|
Delaware | 99.5% | ||
Xxxxx Property Holdings Three (D.C.) L.P.
|
Delaware | 99.5% | ||
Xxxxx Property Holdings Three L.P.
|
Delaware | 99.5% | ||
Xxxxx Property Holdings Two (D.C.) L.P.
|
Delaware | 99.5% | ||
Xxxxx Property Holdings Two L.P.
|
Delaware | 99.5% | ||
Archstone-Xxxxx Unitholder Services LLC
|
Delaware | 100% | ||
ASN Bowie LLC
|
Delaware | 100% |
State of | ||||
Incorporation or | Percentage | |||
Subsidiary Name | Organization | Owned | ||
ASN Calabasas I LLC
|
Delaware | 100% | ||
ASN Calabasas II LLC
|
Delaware | 100% | ||
ASN Cypress Cove LLC
|
Florida | 100% | ||
ASN Dupont Cirle LLC
|
Delaware | 99.5% | ||
ASN Estancia LLC
|
Delaware | 100% | ||
ASN Fairfax Corner LLC
|
Delaware | 100% | ||
ASN Las Xxxxxx LLC
|
Delaware | 100% | ||
ASN Maple Leaf Member LLC
|
Delaware | 100% | ||
ASN Marina Del Rey LLC
|
Delaware | 100% | ||
ASN Miramar Lakes LLC
|
Delaware | 100% | ||
TRG-Pembroke Road LLC
|
Florida | 100% | ||
ASN Park Essex LLC
|
Delaware | 100% | ||
ASN Presidio View LLC
|
Delaware | 50% | ||
ASN Rolling Hills Manager LLC
|
Delaware | 100% | ||
ASN Roosevelt Center LLC
|
Delaware | 100% | ||
ASN Santa Xxxxxx LLC
|
Delaware | 100% | ||
ASN Sonoma LLC
|
Delaware | 100% | ||
ASN Ventura LLC
|
Delaware | 100% | ||
Panorama Insurance Ltd.
|
Bahamas | 100% |
State of | ||||
Incorporation or | Percentage | |||
Subsidiary Name | Organization | Owned | ||
AMERITON Properties Incorporated
|
Maryland | 100% | ||
API Barrington Hills, L.L.C.
|
Delaware | 100% | ||
API Genesis Park LLC
|
Delaware | 100% | ||
API Hibiscus LLC
|
Delaware | 100% | ||
API Mission North LLC
|
Delaware | 100% | ||
API Multifamily Properties I LLC
|
Delaware | 100% | ||
API Roosevelt Center Incorporated
|
Delaware | 100% | ||
API Sonoma Incorporated
|
Delaware | 100% | ||
API Cameron Park LLC
|
Delaware | 100% | ||
API Dadeland LLC
|
Delaware | 100% | ||
API Lakemont LLC
|
Delaware | 100% | ||
API Laurel Crossing LLC
|
Delaware | 100% | ||
API Stratford LLC
|
Delaware | 100% | ||
ASN Hoboken I LLC
|
Delaware | 99.5% | ||
ASN Hoboken II LLC
|
Delaware | 99.5% | ||
ASN Holdings LLC
|
Delaware | 100% | ||
ASN Palm Trace Landings LLC
|
Florida | 100% | ||
ASN Reading LLC
|
Delaware | 100% | ||
Capital Mezz LLC
|
Delaware | 100% | ||
Chateau Marina LLC
|
Delaware | 100% |
State of | ||||
Incorporation or | Percentage | |||
Subsidiary Name | Organization | Owned | ||
Fiji Villas, LLC
|
Delaware | 100% | ||
Golden State Mezz LLC
|
Delaware | 100% | ||
Hacienda Cove, LLC
|
Florida | 100% | ||
KV Construction Incorporated
|
Delaware | 100% | ||
ASN Bellevue LLC
|
Delaware | 100% | ||
ASN Chicago LLC
|
Delaware | 100% | ||
ASN Falls Church LLC
|
Delaware | 100% | ||
ASN Gaithersburg LLC
|
Delaware | 100% | ||
ASN Las Colinas LP
|
Delaware | 100% | ||
ASN Texas GP LLC
|
Delaware | 100% | ||
ASN Long Beach LLC
|
Delaware | 100% | ||
ASN Marina LLC
|
Delaware | 100% | ||
ASN Mountain View LLC
|
Delaware | 100% | ||
ASN San Xxxx LLC
|
Delaware | 100% | ||
ASN Seattle LLC
|
Delaware | 100% | ||
ASN Woodland Hills East LLC
|
Delaware | 100% | ||
ASN LaJolla LLC
|
Delaware | 100% | ||
ASN Xxxxxxx LLC
|
Delaware | 100% | ||
ASN Regency Club LLC
|
Delaware | 100% | ||
ASN Symphony Place LLC
|
Delaware | 100% | ||
ASN Walnut Creek LLC
|
Delaware | 100% |
State of | ||||
Incorporation or | Percentage | |||
Subsidiary Name | Organization | Owned | ||
ASN Xxxx Lakes LLC
|
Delaware | 100% | ||
ASN Paradise Lakes LLC
|
Delaware | 100% | ||
ASN Portofino LLC
|
Delaware | 100% | ||
ASN Summit LLC
|
Delaware | 100% | ||
ASN Los Feliz LLC
|
Delaware | 100% | ||
ASN Shadowood LLC
|
Delaware | 100% | ||
ASN Chelsea LLC
|
Delaware | 100% | ||
ASN Foundry LLC
|
Delaware | 100% | ||
API Rio Salado LLC
|
Delaware | 100% | ||
Ameriton Property Holdings LLC
|
Delaware | 100% | ||
Archstone B.V.
|
The Netherlands | 100% | ||
ASN Mission Center LLC |
||||
ASN Fox Plaza LLC |
||||
API Fox Plaza LLC |
||||
API Highland Lake Incorporated |
||||
API Pasadena LLC |
||||
API Foundry Incorporated |
||||
API Chelsea Incorporated |
||||
ASN 00xx Xxxxxx LLC |
||||
ASN Aston LLC |
||||
ASN Xxxxxxx Park LLC |
||||
7158 Xxxxxxxxxx, LLC |
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
, 2005
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Trustee or Executive Officer]
c/o Archstone-Xxxxx Trust
0000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
c/o Archstone-Xxxxx Trust
0000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated (the “Underwriter”) has
entered into an Underwriting Agreement (the “Underwriting Agreement”) with Archstone-Xxxxx Trust, a
real estate investment trust organized under the laws of the State of Maryland (the “Company”),
providing for the public offering (the “Public Offering”) by the Underwriter of 12,051,000 common
shares of beneficial interest (the “Shares”) of the Company, par value $0.01 per share (the “Common
Shares”) to be sold by the Company.
As a condition to the closing of the transactions contemplated by the Underwriting Agreement,
the undersigned hereby agrees that, without the prior written consent of the Required Consenting
Parties (as defined below), it will not, during the period commencing on the date hereof and ending
60 days after the date of the final prospectus and prospectus supplement relating to the Public
Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Common Shares or
any securities convertible into or exercisable or exchangeable for Common Shares, or (2) enter into
any swap or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Shares, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Shares or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (a) the sale of any Shares to the Underwriter
pursuant to the Underwriting Agreement, (b) transactions relating to Common Shares or other
securities acquired in open market transactions after the completion of the Public Offering, (c)
transfers of Common Shares or securities convertible into or exercisable or exchangeable for Common
Shares to a family member of the undersigned or trust created for the benefit of the undersigned or
a family member of the undersigned, (d) as a bona fide gift or gifts, or (e) one or more gifts or
donations by Xxxxxx X. Xxxxx not to exceed an aggregate value of Common Shares of $5,000,000 to
[charity name][this clause (e) shall only apply to the lock-up agreement to be entered into by
Xxxxxx X. Xxxxx], provided that in the case of any transfer or distribution pursuant to clause (c)
or (d), (i) each transferee agrees to be bound by the terms of this agreement and (ii) no filing by
any party (transferee or transferor) under Section 16(a) of the Securities Exchange Act of 1934
shall be required or shall be made voluntarily in connection with such transfer or distribution
(other than a filing on Form 5 made after the expiration of the 60-day period referred to above).
In addition, the undersigned agrees that, without the prior written consent of the Required
Consenting Parties, it will not, during the period commencing on the date hereof and ending 60 days
after the date of the Prospectus, make any demand for or exercise any right with respect to, the
registration of any Common Shares or any security convertible into or exercisable or exchangeable
for Common Shares. The undersigned also agrees and consents to the
entry of stop transfer instructions with the Company’s transfer agent and registrar against
the transfer of the undersigned’s Common Shares except in compliance with the foregoing
restrictions. As used herein, “Required Consenting Party” means both (A) the Underwriter and (B)
the Company; provided that in the case of any consent granted by the Company such consent shall be
evidenced by a resolution of the Board of Trustees of the Company upon which any trustee requesting
consent (in his or her capacity as a shareholder) shall not be entitled to vote.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Lock-Up Agreement. The undersigned understands that the Company and
the Underwriter are relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this Lock-Up Agreement is irrevocable
and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.
Very truly yours, | ||