Exhibit 1.1
BRE PROPERTIES, INC.
_____ Shares of
Common Stock
(Par Value $.01 Per Share)
UNDERWRITING AGREEMENT
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_____, 1998
_____
_____
_____
_____
As Representatives of the several Underwriters
c/o _____
Dear Sirs and Mesdames:
1. Introductory. BRE Properties, Inc., a corporation organized under the
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laws of the State of Maryland (the "Company"), proposes to issue and sell,
pursuant to the terms of this Agreement, to the several Underwriters named in
Schedule A hereto (the "Underwriters" which term also shall include any
underwriter substituted as hereinafter provided in Section 10), an aggregate of
_____ shares of common stock, par value $.01 per share ("Common Stock"), of the
Company (the "Firm Shares").
The Company also proposes to issue and sell to the several Underwriters, on
a pro rata basis, at the option of the Underwriters, an aggregate of not more
than _____ additional shares of Common Stock (the "Optional Shares") as provided
in Section 3 of this Agreement. The Firm Shares and the Optional Shares are
collectively referred to herein as the "Shares." _____,
_____, _____ and _____ are acting as representatives of the several Underwriters
and in such capacity are hereinafter referred to as the "Representatives."
2. (a) Representations and Warranties of the Company. The Company
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represents and warrants to the several Underwriters, as of the date hereof, as
of the First Closing Date (as defined in Section 3), and as of the Option
Closing Date (as defined in Section 3), if any, and agrees with the several
Underwriters, as follows:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
_____) for the registration under the Securities Act of 1933, as amended
(the "1933 Act"), of the Shares and certain other securities and has filed
such amendments thereto, if any, as may have been required to the date
hereof. Such registration statement (including all exhibits thereto, and
all documents incorporated or deemed to be incorporated by reference
therein and the information, if any, deemed to be a part thereof pursuant
to Rule 430A(b) of the rules and regulations of the Commission under the
1933 Act (the "Rules and Regulations")), as amended (if applicable) at the
time such registration became effective, and as from time to time amended
or supplemented pursuant to the 1933 Act, the Securities Exchange Act of
1934, as amended (the "1934 Act"), or otherwise, is hereinafter referred to
as the "Registration Statement." The Company proposes to file with the
Commission pursuant to Rule 424(b) ("Rule 424(b)") of the Rules and
Regulations the Prospectus Supplement (as defined in Section 4(j) hereof)
and, if required pursuant to Rule 424(b), the related prospectus dated
_____ (the "Base Prospectus"), and has previously advised you of all
information (financial and other) set forth therein. The Base Prospectus
and the Prospectus Supplement, each in the form first provided to the
Underwriters by the Company for use in connection with the offering of the
Shares (being the forms in which they are to be filed with the Commission
pursuant to Rule 424(b) or, solely in the case of the Base Prospectus, if
the Base Prospectus is not required to be re-filed with the Commission
pursuant to Rule 424(b), being the form in which the Base Prospectus was
most recently filed with the Commission pursuant to Rule 424(b), including
all documents incorporated or deemed to be incorporated by reference
therein, are hereinafter referred to, collectively, as the "Prospectus",
except that if any revised prospectus or prospectus supplement shall be
provided to the Underwriters by the Company for use in connection with the
offering and sale of the Shares which differs from the Prospectus first
provided to the Underwriters for such purpose (whether or not such revised
prospectus or prospectus supplement is required to be filed by the Company
with the Commission pursuant to Rule 424(b) of the Rules and Regulations),
the term "Prospectus" shall refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first
provided to the Underwriters for such use. Unless the context otherwise
requires, all references in this Agreement to documents, financial
statements and schedules and other information which is "contained",
"included", "stated", "described in" or "referred to" in the Registration
Statement or the Prospectus (and all other references of like import) shall
be deemed to mean and include all such documents, financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case
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may be; and all references in this Agreement to amendments or supplements
to the Registration Statement or the Prospectus shall be deemed to mean and
include the filing of any document under the 1934 Act after the date of
this Agreement which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be. For
purposes of this Agreement, all references to the Registration Statement,
any preliminary prospectus supplement, any preliminary prospectus, the
Prospectus Supplement, the Prospectus or any amendment or supplement to any
of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
(ii) The Registration Statement has become effective under the 1933
Act, and no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part
of the Commission for additional information has been complied with.
At the respective times the Registration Statement and any post-
effective amendments thereto became or become effective, as the case may
be, and at the First Closing Date (and, if any Optional Shares are
purchased, at the Option Closing Date), the Registration Statement complied
and will comply in all material respects with the requirements of the 1933
Act and the Rules and Regulations, and did not and will 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. The Prospectus does not and will not include 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; provided, however, that the
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foregoing representations, warranties and agreements shall not apply to
information contained in or omitted from the Registration Statement or the
Prospec tus in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of any Underwriter, through the
Representatives specifically for use in the preparation thereof.
Any preliminary prospectus supplement, any preliminary prospectus
and the Prospectus and any amendment or supplement thereto delivered to the
Underwriters for use in connection with the offering of the Shares was
identical to the respective electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(iii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, when they were
filed with the Commission, complied in all material respects to the
requirements of the 1934 Act and the published rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and
any
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further documents so filed and incorporated or deemed to be incorporated by
reference, when they are filed with the Commission, will comply in all
material respects to the requirements of the 1934 Act and the published
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(iv) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement). Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), except as otherwise stated
therein or contemplated thereby, (A) there has been no change in the
consolidated capital stock or the consolidated long-term debt of the
Company, (B) there have been no transactions entered into by the Company or
any of its subsidiaries which are material to the Company and its
subsidiaries considered as one enterprise, other than those entered into in
the ordinary course of its business, and (C) except for regular quarterly
dividends, there has been no dividend or distribution of any kind declared,
paid or made by the Company on its shares of capital stock.
(v) The financial statements of the Company, of Promontory Point
Apartments ("PPA"), of Red Hawk Ranch ("RHR"), of Xxxxxx'x Landing
Apartments ("FLA"), of Lakeshore Landing Apartments ("LLA"), and of certain
Xxxxxxxx Xxxx Residential multifamily properties (collectively, "TCRW")
included in the Registration Statement and the Prospectus, in each case,
together with the related notes and supporting schedules (if any), present
fairly the financial position of the Company, of PPA, of RHR, of FLA, of
LLA, and of TCRW, respectively, at the dates indicated and the financial
condition, results of operations, cash flows and shareholders' equity of
the Company and its subsidiaries, the gross income and direct operating
expenses of PPA, of RHR, of FLA and of LLA, and combined gross income and
direct operating expenses of TCRW, respectively, as at the respective dates
and for the respective periods therein indicated, and such financial
statements and related notes and supporting schedules have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis throughout the periods involved, except as may be set
forth therein or in the Prospectus. The selected financial data, if
applicable, and the summary financial information included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the Company's audited financial
statements included in the Registration Statement.
(vi) The accountants who have certified the financial statements and
supporting schedules included in the Registration Statement and the
Prospectus are independent public accountants as required by the 1933 Act
and the Rules and Regulations.
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(vii) The pro forma condensed financial statements, together with
the related notes and any supporting schedules, included in the
Registration Statement and the Prospectus present fairly the information
shown therein, have been prepared on a basis substantially consistent with
the audited financial statements of the Company set forth therein, the
assumptions on which such pro forma financial statements have been prepared
are reasonable and are set forth in the notes thereto, and such pro forma
condensed financial statements have been prepared, and the pro forma
adjustments set forth therein have been applied, in accordance with the
applicable accounting requirements of the 1933 Act and the Rules and
Regulations (including, without limitation, Regulation S-X promulgated by
the Commission), and such pro forma adjustments have been properly applied
to the historical amounts in the compilation of such statements.
(viii) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Maryland;
the Company has power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement and the Prospectus; the Company is duly qualified as a foreign
corporation to transact business and is in good standing in the State of
Arizona, the State of California, the State of Colorado, the State of
Nevada, the State of New Mexico, the State of Oregon, the State of Utah and
the State of Washington; the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, except where the
failure to be so qualified or in good standing would not have a material
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(ix) Attached hereto as Schedule D is a true and complete list of
all subsidiaries of the Company and all other corporations, partnerships,
joint ventures, limited liability companies and other entities in which the
Company directly or indirectly owns capital stock or any other equity or
ownership interest. Schedule D accurately sets forth the jurisdiction of
organization of, and the Company's approximate percentage ownership
interest in, each such subsidiary and other entity. The Company does not
have any subsidiaries other than those listed on Schedule D and, except as
set forth in Schedule D, the Company does not directly or indirectly own
any capital stock or other equity or other ownership interests in any
corporation, partnership, joint venture, limited liability company or other
entity. Schedule D also correctly indicates whether each such subsidiary
and other entity listed thereon is a corporation, partnership, limited
liability company or other type of entity.
(x) Each subsidiary of the Company has been duly organized and is
validly existing and in good standing under the laws of the jurisdiction of
its organization, has power and authority to own, lease and operate its
property and conduct its business as described in the Registration
Statement and the Prospectus, and is duly qualified to transact business
and is in good standing in each jurisdiction in which such qualification
is required, except where the failure to be so qualified or in good
standing would
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not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise; and (A) all
of the issued and outstanding shares of capital stock of each such
subsidiary that is a corporation have been duly authorized and validly
issued, are fully paid and non-assessable and except as set forth on
Schedule D, are and, at all times since the date on which such subsidiary
was organized, have been owned by the Company, directly or through wholly-
owned subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, (B) all of the issued and
outstanding limited liability company interests of each such subsidiary
that is a limited liability company have been duly authorized and validly
issued (under applicable law and the limited liability company agreement of
such subsidiary), are fully paid and non-assessable and, except as set
forth on Schedule D, are owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity, and (C) all of the issued and
outstanding limited and general partnership interests of each such
subsidiary that is a partnership have been duly authorized (if applicable)
and validly issued and, except as set forth on Schedule D, are owned by the
Company, directly or through subsidiaries free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(xi) The Company and its subsidiaries own or possess or have
obtained all material governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to lease or own, as the case
may be, and to operate their respective properties and to carry on their
respective businesses as contemplated in the Prospectus.
(xii) The Company is not required to be registered under the
Investment Company Act of 1940, as amended.
(xiii) The authorized, issued and outstanding shares of capital
stock of the Company are as set forth in the Prospectus under the caption
"Capitalization" (except for subsequent issuances, if any, of Common Stock
pursuant to employee benefit, employee and director stock option and
dividend reinvestment plans or upon conversion of convertible securities
or upon exchange of exchangeable securities referred to in the Prospectus
or other subsequent issuances of Common Stock referred to in the
Prospectus); the shares of issued and outstanding Common Stock have been
duly authorized and validly issued, are fully paid and non-assessable; the
Shares to be issued and sold by the Company have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Company pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued and
fully paid and non-assessable; the Common Stock, the Company's charter and
bylaws, and the Rights Agreement (as hereinafter defined) conform in all
material respects to all statements relating thereto contained in the
Prospectus; the form of certificate used to evidence the Common Stock is in
due and proper form and complies with all applicable statutory
requirements; and the issuance
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of the Shares to be issued and sold by the Company is not subject to
preemptive or other similar rights.
(xiv) Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws, certificate of limited partnership,
limited partnership agreement, certificate of formation of a limited
liability company, limited liability company agreement or other similar
organizational certificates, instruments, agreements or documents
(collectively, "Organizational Documents"), as the case may be; neither the
Company nor any of its subsidiaries is in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or any of its property or
assets may be bound, except for such defaults which would not, individually
or in the aggregate, have a material adverse effect on the condition
(financial or otherwise) or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise;
and the execution, delivery and performance of this Agreement, the
consummation of the transactions contemplated herein, and compliance by
the Company with its obligations hereunder, have been duly authorized by
all necessary corporate action and will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, any Subject Agreement (as defined
below) or any other material contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such action result in any violation
of the provisions of the Organizational Documents of the Company or its
subsidi aries or any applicable law, administrative regulation or
administrative or court decree; and no consent, approval, authorization or
order of any court or governmental authority or agency is required for the
consummation by the Company of the transactions contemplated by this
Agreement, except such as may be required under state securities or Blue
Sky laws of any jurisdiction or real estate syndication laws in connection
with the purchase and distribution of the Shares by the Underwriters.
"Subject Agreements" means (i) the Loan Agreement dated as of January 31,
1994 between The Prudential Insurance Company of America and the Company
(as successor by merger to Real Estate Investment Trust of California), as
amended by the First Amendment to Loan Agreement dated as of July 7, 1995,
the Second Amendment to Loan Agreement dated as of April 30, 1996, the
Third Amendment to Loan Agreement dated as of November 20, 1996, the Fourth
Amendment to Loan Agreement dated as of February 25, 1997 and the Fifth
Amendment to Loan Agreement dated as of June 30, 1997, (ii) the Loan
Agreement dated as of July 7, 1995 between The Prudential Insurance Company
of America and the Company (as successor by merger to Real Estate
Investment Trust of California), as amended by the First Agreement to Loan
Agreement dated as of April 30, 1996, the Second Agreement to Loan
Agreement dated as of November 20, 1996, the Third Amendment to Loan
Agreement dated as of February 25, 1997 and the Fourth Amendment to Loan
Agreement dated as of June 30, 1997, (iii) the Unsecured Line of Credit
Loan Agreement dated as of
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November 17, 1997 (the "Credit Agreement") between Bank of America National
Trust and Savings Association ("Bank of America") and the Company, as
amended by the Modification Agreement to Syndicate Loan dated as of January
20, 1998 between the Company and Bank of America, as agent for the several
financial institutions a party thereto, together with all guarantees
entered into by any subsidiaries of the Company in connection therewith,
(iv) the Amended and Restated Credit Agreement between the Company and
Sanwa Bank California dated as of December 31, 1997 (the "Sanwa Credit
Agreement"), together with all guarantees entered into by any subsidiaries
of the Company in connection therewith, (v) the Contribution Agreement
dated as of September 29, 1997, as amended (the "Contribution Agreement"),
between the TCR signatories named on Schedule A thereto, the Company and
BRE Property Investors LLC, a Delaware limited liability company (the
"Operating Company"), together with the guarantee entered into by the
Company pursuant to the Contribution Agreement, as amended by Amendment No.
1 to the Contribution Agreement dated November 18, 1997, (vi) the Amended
and Restated Limited Liability Company Agreement of the Operating Company,
and (vii) the Amended and Restated Limited Liability Company Agreement of
Blue Ravine Investors, LLC, a Delaware limited liability company ("Blue
Ravine"); "Prudential Agreements" means the Loan Agreements, as amended,
referred to in clauses (i) and (ii) of this sentence; and "LLC Agreements"
means the Amended and Restated Limited Liability Company Agreements
referred to in clauses (vi) and (vii) of this sentence. All amendments,
supplements and restatements of the Subject Agreements are listed in
clauses (i) through (vii) of the preceding sentence. Except as otherwise
described in the Prospectus, no subsidiary of the Company is a guarantor
of, or is a party to or bound by any instrument or agreement pursuant to
which it has guaranteed or may be required to guarantee or cause another
subsidiary of the Company to guarantee, any borrowings or other
indebtedness of the Company. Except as otherwise described in the
Prospectus, the Company is not a party to or bound by any instrument or
agreement pursuant to which it is or may be required to cause any of its
subsidiaries to guarantee any borrowings or other indebtedness of the
Company.
(xv) The Company was and is organized to qualify as a "real estate
investment trust" under the Internal Revenue Code of 1986, as amended (the
"Code"); the Company at all times since its organization has elected to be
taxed as a "real estate investment trust"; the Company has qualified as a
"real estate investment trust" under the Code for its taxable years ended
July 31, 1995, its short taxable year ended December 31, 1995, its taxable
year ended December 31, 1996 and its taxable year ended December 31, 1997,
and will continue to qualify as a "real estate investment trust" under the
Code after consummation of the transactions contemplated by the Prospectus;
and the Company's present and contemplated operations, assets and income
will enable the Company to meet the requirements for qualification as a
"real estate investment trust" under the Code. United States Federal
income tax returns of the Company have been closed through the fiscal year
of the Company ended July 31, 1994. As used in this paragraph (xv), the
term "Company" includes BankAmerica Realty Investors, a California business
trust and BRE Properties, Inc., a Delaware corporation which are both
predecessors to BRE Properties, Inc., a Maryland corporation.
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(xvi) Each entity listed on Schedule D either qualifies as a
partnership for federal, state and local income tax purposes or as a
"qualified REIT subsidiary" within the meaning of Section 856(i) of the
Code or qualifies to be disregarded as an entity separate from the Company
or one of its subsidiaries for federal, state and local income tax
purposes.
(xvii) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened against or affecting the
Company or any of its subsidiaries, which is required to be disclosed in
the Registration Statement or the Prospectus (other than as disclosed
therein) or which might result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, or which might materially and adversely affect the properties
or assets of the Company or any of its subsidiaries; and there are no
contracts or documents of the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement or any
document incorporated or deemed to be incorporated therein by the 1933 Act,
the Rules and Regulations, the 1934 Act or the rules and regulations of the
Commission thereunder which have not been so filed.
(xviii) The Company is eligible to use a Form S-3 registration
statement under the 1933 Act. The Company is also eligible to use Form S-3
pursuant to the standards for that Form in effect immediately prior to
October 21, 1992.
(xix) Neither the Company nor any of its subsidiaries nor any of
their respective officers or directors has taken nor will any of them take,
directly or indirectly, any action resulting in a violation of Regulation M
under the 1934 Act, or designed to cause or result in, or which has
constituted or which reasonably might be expected to constitute, the
stabilization or manipulation of the price of the shares of Common Stock or
facilitation of the sale or resale of the Shares.
(xx) Neither the Company nor any of its subsidiaries is required to
own or possess any trademarks, service marks, trade names or copyrights in
order to conduct the business now operated by it.
(xxi) The Company has full right, power and authority to enter into
this Agreement; this Agreement has been duly authorized, executed and
delivered by the Company.
(xxii) The outstanding shares of Common Stock are listed on the New
York Stock Exchange and the Shares to be sold by the Company have been
approved for listing, subject to official notice of issuance, on the New
York Stock Exchange.
(xxiii) Except as otherwise disclosed in the Prospectus: (A) the
Company and its subsidiaries have good and marketable title in fee simple
to all real property and improvements described in the Prospectus as being
owned by the Company (none of
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which is leased by the Company or any of its subsidiaries, as lessee); (B)
all liens, charges, encumbrances, claims or restrictions on or affecting
the real property and improvements of the Company or any of its
subsidiaries which are required to be disclosed in the Prospectus are
disclosed therein; (C) neither the Company nor any of its subsidiaries nor
any lessee of any portion of the real property or improvements of the
Company or any of its subsidiaries is in default under any of the leases
pursuant to which the Company or any of its subsidiaries leases (as lessor)
its real property or improvements and the Company knows of no event which,
but for the passage of time or the giving of notice, or both, would
constitute a default under any of such leases, except such defaults that
would not, individually or in the aggregate, have a material adverse effect
on the condition, financial or otherwise, or on earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise; (D) no tenant under any of the leases pursuant to which the
Company or any of its subsidiaries leases any of its real property or
improvements has an option or right of first refusal to purchase the
premises demised under such lease; (E) all of the real property and
improvements of the Company and its subsidiaries comply with all applicable
codes and zoning laws and regulations, except for such failures to comply
which would not, individually or in the aggregate, have a material adverse
effect on the condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; and (F) the Company has no knowledge of any
pending or threatened condemnation, zoning change or other proceeding or
action that would in any manner affect the size of, use of, improvements
on, construction on, or access to any of the real property of the Company
or any of its subsidiaries, except such proceedings or actions that would
not, individually or in the aggregate, have a material adverse effect on
the condition, financial or otherwise, or earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise.
(xxiv) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (A) transactions
are executed in accordance with management's general or specific
authorizations; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (C) access
to assets is permitted only in accordance with management's general or
specific authorizations; and (D) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. Neither the Company nor
any of its subsidiaries nor any of their respective employees or agents has
made any payment of funds of the Company or any of its subsidiaries or
received or retained any funds in violation of any law, rule or regulation
which payment, receipt or retention of funds is of a character required to
be disclosed in the Prospectus.
(xxv) Except as otherwise set forth in the Registration Statement,
(A) to the best knowledge and information of the Company, neither the
Company nor any of its subsidiaries has at any time, and no other party
has at any time, handled, buried, stored, retained, refined, transported,
processed, manufactured, generated, produced, spilled,
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allowed to seep, leak, escape or xxxxx, or pumped, poured, emitted,
emptied, discharged, injected, dumped, transferred or otherwise disposed of
or dealt with Hazardous Materials (hereinafter defined) on, to or from real
property owned, leased or otherwise utilized by the Company or any of its
subsidiaries or in which the Company or any of its subsidiaries has any
ownership interest, including without limitation any subsurface soils and
ground water (the "Premises"), except for such cases as (u) are not
required to be disclosed in the Registration Statement and (v) would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise) or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, (B) to the best knowledge and information of the Company, no
seepage, leak, escape, xxxxx, discharge, injection, release, emission,
spill, pumping, pouring, emptying or dumping of Hazardous Materials from or
to the Premises has occurred, except for such cases as (w) are not required
to be disclosed in the Registration Statement and (x) would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise) or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, (C) neither the Company nor any of its subsidiaries has
received notice of any claim, or has knowledge of any occurrence or
circumstance which with notice or passage of time or both would give rise
to a claim, under or pursuant to any Environmental Statute (hereinafter
defined), except for such claims as (y) are not required to be disclosed in
the Registration Statement and (z) would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise) or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, and (D) to the
best of Company's knowledge and information, no part of the Premises is
included or proposed for inclusion on the National Priorities List issued
pursuant to CERCLA (hereinafter defined) by the United States Environmental
Protection Agency (the "EPA") or on the inventory of other potential
"problem" sites issued by the EPA and has not otherwise been identified by
the EPA as a potential CERCLA site or included or proposed for inclusion on
any list or inventory issued pursuant to any other Environmental Statute or
issued by any other Governmental Authority (hereinafter defined). As used
herein "Hazardous Material" shall include without limitation, any flammable
explosives, radioactive materials, hazardous materials, hazardous wastes,
hazardous or toxic substances, or related materials, asbestos or any
material containing asbestos, or any other substance or material as defined
by any Federal, state or local environmental law, ordinance, rule, or
regulation including, without limitation, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C.
Sections 9601, et seq.) ("CERCLA"), the Hazardous Materials Transportation
-- ---
Act, as amended (49 U.S.C. Sections 1801, et seq.), the Resource
-- ---
Conservation and Recovery Act, as amended (42 U.S.C. Sections 6901 et seq.)
-- ---
and in the regulations adopted and publications promulgated pursuant to
each of the foregoing (individually, an "Environmental Statute") or by any
Federal, state or local governmental authority having or claiming
jurisdiction over the Premises (a "Governmental Authority").
11
(xxvi) The issuance, sale and public offering of the Shares to be
issued and sold by the Company have been approved by a majority of all of
the "Continuing Directors" and do not constitute a "Business Combination"
(as such terms are defined in Article IX of the Company's charter.
(xxvii) To the extent applicable, the Company has complied and will
comply with the provisions of that certain Florida act relating to
disclosure of doing business with Cuba, codified as Section 517.075 of the
Florida statutes, and the rules and regulations thereunder (collectively,
the "Cuba Act") or is exempt therefrom.
(xxviii) The common share purchase rights (the "Rights") issuable
pursuant to the Rights Agreement dated as of _____, as supplemented (the
"Rights Agreement"), between the Company and _____ have been duly
authorized by the Company and, when the Shares are issued by the Company
pursuant to this Agreement, the Rights attached to such Shares will be
validly issued.
(b) Any certificate signed by any officer of the Company and delivered to
the Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
3. Purchase by and Sale and Delivery to, the Underwriters; Closing Date.
--------------------------------------------------------------------
On the basis of the representations, warranties, covenants and agreements herein
contained, and subject to the terms and conditions herein set forth, the Company
hereby agrees to sell to the Underwriters and the Underwriters agree, severally
and not jointly, to purchase from the Company at the price per share set forth
in Schedule B hereto, the number of Firm Shares set forth opposite their
respective names in Schedule A, subject to adjustment in accordance with Section
10 hereof.
The Company will deliver the Firm Shares to the Representatives for the
respective accounts of the several Underwriters (in the form of definitive
certificates, issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company given not later
than one full business day prior to the First Closing Date or, if no such
direction is received, in the names of the respective Underwriters), against
payment of the purchase price therefor by wire transfer of immediately available
funds, at the offices of Xxxxx & Xxxx llp, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000. The time and date of delivery and closing shall be at 10:00
A.M., New York time, on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day), business day after the date hereof; provided,
--------
however, that such date and time may be accelerated or extended by agreement
between the Company and the Representatives or postponed pursuant to the
provisions of Section 10 hereof. The time and date of such payment and delivery
are herein referred to as the "First Closing Date". The Company shall make the
certificates for the Firm Shares available to the Representatives for
examination on behalf of the Underwriters not later than 10:00 A.M., New York
time, on the business day preceding the First Closing Date in New York, New
York.
12
In addition, on the basis of the representations, warranties, covenants and
agreements herein contained, and subject to the terms and conditions herein set
forth, the Company hereby grants the Underwriters an option to purchase,
severally and not jointly, up to an additional _____ shares of Common Stock for
the purpose of covering any over-allotments in connection with the distribution
and sale of the Firm Shares as contemplated by the Prospectus. The purchase
price per share to be paid for the Optional Shares shall be the same price per
share as for the Firm Shares, less an amount per share equal to any dividends or
distributions declared by the Company and payable on any Firm Shares and not
payable on such Optional Shares. The option granted hereby may be exercised as
to all or any part of the Optional Shares at any time not more than 30 days
subsequent to the date of this Agreement. No Optional Shares shall be sold and
delivered unless the Firm Shares previously have been, or simultaneously are,
sold and delivered. The right to purchase the Optional Shares or any portion
thereof may be surrendered and terminated at any time upon notice by the
Representatives to the Company.
The option granted hereby may be exercised by the Representatives on behalf
of the Underwriters by giving written notice to the Company setting forth the
number of Optional Shares to be purchased by them and the date and time for
delivery of and payment for the Optional Shares. Such date and time for
delivery of and payment for the Optional Shares (which may be the First Closing
Date) is herein called the "Option Closing Date" (the First Closing Date and the
Option Closing Date are herein called, collectively, the "Closing Dates" and,
individually, a "Closing Date") and shall not be later than seven full business
days after written notice is given. Optional Shares shall be purchased for the
account of each Underwriter in the same proportion as the number of Firm Shares
set forth opposite such Underwriter's name in Schedule A hereto bears to the
total number of Firm Shares (subject to adjustment by the Representatives to
eliminate fractional shares or odd lots). Upon exercise of the option by the
Representatives, the Company agrees to sell to the Underwriters the number of
Optional Shares set forth in the written notice of exercise and the Underwriters
agree, severally and not jointly, subject to the terms and conditions herein set
forth, to purchase such Optional Shares.
The Company will deliver the Optional Shares to the Representatives for the
respective accounts of the several Underwriters (in the form of definitive
certificates, issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company given not later
than one full business day prior to the Option Closing Date or, if no such
direction is received, in the names of the respective Underwriters), against
payment of the purchase price therefor by wire transfer of immediately available
funds, at the offices of Xxxxx & Wood llp, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000. The Company shall make the certificates for the Optional
Shares available to the Representatives for examination on behalf of the
Underwriters not later than 10:00 A.M., New York time, on the business day
preceding the Option Closing Date in New York, New York.
It is understood that _____, _____, _____ or _____ individually and not as
Representatives of the several Underwriters, may (but shall not be obligated to)
make payment to the Company on behalf of any Underwriter or Underwriters for the
Shares to be purchased by such
13
Underwriter or Underwriters. Any such payment by _____, _____, _____ or _____
shall not relieve such Underwriter or Underwriters from any of its or their
other obligations hereunder.
After the execution and delivery of this Agreement, the several
Underwriters propose to make an initial public offering of the Shares at the
initial public offering price.
4. Covenants and Agreements of the Company. The Company covenants and
---------------------------------------
agrees with the several Underwriters that:
(a) The Company will advise the Representatives promptly of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the institution of any proceedings for that
purpose, and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible the lifting thereof, if issued. The
Company will advise the Representatives promptly of any request by the
Commission for any amendment of or supplement to the Registration Statement or
the Prospectus or for additional information, and will not at any time file any
amendment to the Registration Statement or supplement to the Prospectus which
shall not previously have been submitted to the Representatives a reasonable
time prior to the proposed filing or use thereof or to which the Representatives
shall reasonably object in writing or which is not in compliance with the 1933
Act and the Rules and Regulations. The Company will advise the Representatives
promptly when the Prospectus has been filed pursuant to Rule 424(b) of the Rules
and Regulations.
(b) The Company will prepare and file with the Commission, promptly upon
the request of the Representatives, any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may be necessary to enable the several Underwriters to continue
the distribution of the Shares and, in the case of any such amendments to the
Registration Statement, will use its best efforts to cause the same to become
effective as promptly as possible. The Company will promptly file all reports
and any definitive proxy or information statements required to be filed with the
Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act for so long as
the delivery of a prospectus is required in connection with the offering or sale
of the Shares.
(c) If at any time when a prospectus relating to the Shares is required to
be delivered under the 1933 Act any event occurs as a result of which the
Prospectus would include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
at any time to amend the Prospectus to comply with the 1933 Act or the Rules and
Regulations, the Company will promptly notify the Representatives thereof and
will prepare an amended or supplemented Prospectus (in form and substance
reasonably satisfactory to counsel to the Underwriters) or, with the consent of
counsel to the Underwriters, make an appropriate filing pursuant to Section 13
or 14 of the 1934 Act which will correct such statement or omission; and, in
case any Underwriter is required to deliver a prospectus relating to the Shares
nine months or more after the date of this Agreement, the Company upon the
request of the Representatives and at the expense of such Underwriters will
prepare promptly such prospectus or prospectuses as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the 1933 Act.
14
(d) The Company will deliver to the Representatives, at or before the First
Closing Date, signed copies of the Registration Statement and all amendments
thereto (including all financial statements and exhibits thereto and all
documents incorporated or deemed to be incorporated by reference therein) and
will deliver to the Representatives such number of copies of the Registration
Statement, including such financial statements and all documents incorporated or
deemed to be incorporated by reference therein but without exhibits, and of all
amendments thereto, as the Representatives may reasonably request. The Company
will deliver or mail to or upon the order of the Representatives on the date of
the initial public offering, and thereafter from time to time during the period
when delivery of a prospectus relating to the Shares is required under the 1933
Act, as many copies of the Prospectus, in final form or as thereafter amended or
supplemented, as the Representatives may reasonably request; provided, however,
--------
that the expense of the preparation and delivery of any prospectus required for
use nine months or more after the date of this Agreement, shall be borne by the
Underwriters required to deliver such prospectus. The copies of the
Registration Statement and each amendment thereto and the copies of any
preliminary prospectus and any preliminary prospectus supplement and the
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(e) The Company will make generally available to its security holders as
soon as practicable, but in any event not later than 60 days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the 0000 Xxx) which will be in reasonable detail
(but which need not be audited) and which will comply with Section 11(a) of the
1933 Act, covering a period of at least twelve months beginning not later than
the first day of the Company's fiscal quarter next following the "effective
date" (as defined in said Rule 158) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the
Shares to be qualified for sale under the securities laws and real estate
syndication laws of such states and other jurisdictions as the Representatives
may reasonably designate and at the request of the Representatives will make
such applications and furnish such information as may reasonably be required of
it as the issuer of the Shares for that purpose; provided, however, that the
-------- -------
Company shall not be required to qualify to do business or to file a general
consent to service of process in any such jurisdiction. The Company will, from
time to time, prepare and file such statements and reports as are or may be
required of it as the issuer of the Shares to continue such qualifications in
effect for so long a period as the Representatives may reasonably request for
the distribution of the Shares.
(g) The Company will furnish to its shareholders annual reports containing
financial statements certified by independent public accountants and with
quarterly summary financial information, in reasonable detail which may be
unaudited. During the period of five years from the date hereof, the Company
will deliver to the Representatives and, upon request, to each of the other
Underwriters, copies of each annual report of the Company and each other report
furnished by the Company to its shareholders; and will deliver to the
Representatives, as soon as they are available, copies of any other reports
(financial or other)
15
which the Company shall publish or otherwise make available to any of its
security holders as such and, as soon as they are available, copies of any
reports and financial statements furnished to or filed with the Commission or
any national securities exchange.
(h) The Company will use its best efforts to effect the listing of the
Shares to be issued and sold by the Company on the New York Stock Exchange.
(i) The Company will use the net proceeds received by it from the sale of
the Shares sold by it in the manner specified in the Prospectus Supplement under
"Use of Proceeds".
(j) Immediately following the execution of this Agreement, the Company will
prepare a prospectus supplement, dated the date hereof (the "Prospectus
Supplement"), containing the public offering price of the Shares, the
underwriting discounts and commissions, the plan of distribution of the Shares
and such other information as may be required by the 1933 Act or the Rules and
Regulations or as the Representatives and the Company deem appropriate, and will
file or transmit for filing with the Commission in accordance with Rule 424(b)
of the Rules and Regulations copies of such Prospectus Supplement and, if
required by Rule 424(b), the Base Prospectus.
(k) During the period of 90 days from the date of this Agreement, the
Company agrees that it will not, without the prior written consent of _____ on
behalf of the Underwriters, directly or indirectly, (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 or otherwise
transfer or dispose of any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of ownership of
Common Stock, whether any such transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Stock, other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold
hereunder, or (B) any shares of Common Stock issued by the Company pursuant to
any employee stock option, director stock option or dividend reinvestment plan
of the Company, or the shareholder rights plan of the Company, referred to in
the Prospectus.
(l) The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the Code.
(m) In accordance with the provisions of the Cuba Act, if applicable, and
without limitation to the provisions of Section 8 hereof, the Company will
indemnify each Underwriter against any and all losses, claims, damages,
liabilities and expenses (including attorneys' fees) arising out of or based
upon any violation by the Company of the Cuba Act.
5. Payment of Expenses. The Company will pay (directly or by
-------------------
reimbursement) all expenses incident to the performance of their obligations
under this Agreement, including but not limited to all expenses and taxes
incident to delivery of the Shares to the
16
Representatives, all expenses incident to the registration of the Shares under
the 1933 Act and the printing of copies of the Registration Statement, any
preliminary prospectus, any preliminary prospectus supplement, the Prospectus,
any amendments or supplements thereto, all expenses incident to the preparation,
word processing, printing and delivery of all "Blue Sky" memoranda and this
Agreement and furnishing the same to the Underwriters and dealers except as
otherwise provided in Sections 4(c) and 4(d), the fees and disbursements of the
Company's counsel and accountants, all filing and printing fees and expenses
(including reasonable legal fees and disbursements of counsel for the
Underwriters) incurred in connection with qualification or exemption of the
Shares for sale under securities laws and real estate syndication laws of such
jurisdictions as the Representatives may designate, all fees and expenses paid
or incurred in connection with any filings made with the National Association of
Securities Dealers, Inc., the fees and expenses incurred in connection with the
listing of the Shares on the New York Stock Exchange, the costs of preparing
certificates evidencing the Shares, the costs and fees of any custodian,
registrar or transfer agent and all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section.
6. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the 1933 Act
or Section 20 of the 1934 Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus, any preliminary prospectus supplement or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein; provided, however, that the
-------- -------
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (excluding documents
incorporated by reference therein) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of the Shares to such person, and
if the Prospectus (excluding documents incorporated by reference therein) would
have cured the defect giving rise to such losses, claims, damages or
liabilities.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, each of the Company's directors, each of the
Company's officers who signed the Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any
17
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus, any preliminary
prospectus supplement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
but only with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, any preliminary prospectus
supplement, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to paragraph (a) or (b) of this Section 6, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party 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 party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party 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 party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the 1933 Act
or Section 20 of the 1934 Act and (ii) the fees and expenses of more than one
separate firm (in addition to any local counsel) for the Company, its directors,
its officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of either such Section. In the case of
any such separate firm for the Underwriters and such control persons of any
Underwriters, such firm shall be designated in writing by _____. In the case of
any such separate firm for the Company, and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the Company.
The indemnifying party 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 party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is
18
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
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
proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b)
of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party 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 indemnifying party or parties on the one hand and the
indemnified party or parties 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 indemnifying party or parties on the one hand and of the indemnified party
or parties on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand in connection
with the offering of the Shares shall be deemed to be in the same respective
proportions as the 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 Underwriters, in each case as set forth in the
table on the cover of the Prospectus, bear to the aggregate Public Offering
Price of the Shares. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Underwriters' respective obligations to contribute
pursuant to this Section 6 are several in proportion to the respective number of
Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro rata
--- ----
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) of this Section 6. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at
19
which the Shares underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6,
and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter, or
the Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Shares.
7. Conditions of Underwriters' Obligations. The respective obligations
---------------------------------------
of the several Underwriters hereunder shall be subject to the accuracy, at and
(except as otherwise stated herein) as of the date of this Agreement, the First
Closing Date and, if applicable, the Option Closing Date, of the respective
representations and warranties made herein by the Company, of the statements of
the Company's officers or directors in any certificates furnished pursuant to
the provisions hereof, to compliance at and as of the First Closing Date or
Option Closing Date (if any), as the case may be, by the Company with their
respective covenants and agreements herein contained and other provisions hereof
to be satisfied at or prior to such First Closing Date or Option Closing Date,
as the case may be, and to the following additional conditions:
(a) The Registration Statement shall be effective and, at such Closing
Date (i) no stop order suspending the effectiveness thereof shall have been
issued and no proceedings for that purpose shall have been initiated or, to
the knowledge of the Company or the Representatives, threatened by the
Commission, and any request for additional information on the part of the
Commission (to be included in the Registration Statement or the Prospectus
or otherwise) shall have been complied with to the reasonable satisfaction
of the Representatives, and (ii) there shall not have come to the attention
of the Representatives any facts that would cause them to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of
the Shares, contained any untrue statement of a material fact or omitted 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. If the Company has elected to rely upon Rule 430A of the Rules
and Regulations, the price of the Shares and any price related information
previously omitted from the Registration Statement pursuant to Rule 430A
shall have been transmitted to the Commission for filing pursuant to Rule
424(b) of the Rules and Regulations within the prescribed time period, and
before the First Closing Date the Company shall have provided evidence
satisfactory to the Representatives of such timely filing, or a post-
effective amendment providing such
20
information shall have been promptly filed and declared effective in
accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) At the date of this Agreement, the Representatives shall have
received from Ernst & Young LLP a letter, dated the date of this Agreement,
in form and substance previously approved by the Representatives, together
with signed or reproduced copies of such letter for each of the
Underwriters, containing statements and information of the type ordinarily
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 (including, without limitation,
as to any pro forma financial statements and as to all historical financial
statements of the Company, PPA, RHR, FLA, LLA and TCRW).
(c) The Representatives shall have received from Ernst & Young LLP a
letter dated the First Closing Date to the effect that they reaffirm the
statements made in the letter furnished pursuant to Section 7(b) above,
except that the specified date referred to therein shall be a date not more
than three business days prior to the First Closing Date.
(d) The Representatives shall have received from Paul, Hastings,
Xxxxxxxx & Xxxxxx LLP, counsel for the Company, a favorable opinion dated
the First Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) To the best of such counsel's knowledge and information, the
Company and its subsidiaries are operating in compliance with all
material franchises, grants, authorizations, licenses, permits,
easements, consents, certificates and orders required for the conduct
of their respective businesses, all of which are valid and in full
force and effect.
(ii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in the State of Arizona, the
State of California, the State of Colorado, the State of Nevada, the
State of New Mexico, the State of Oregon, the State of Utah and the
State of Washington; the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, except where the
failure to be so qualified or in good standing would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise.
(iii) Each Covered Subsidiary (as hereinafter defined) has been
duly organized and is validly existing and in good standing under the
laws of the jurisdiction of its organization and has power and
authority as a corporation, limited partnership or limited liability
company, as the case may be, to own, lease and operate its properties
and to conduct its business as described in the Registration Statement
and the Prospectus; each Covered Subsidiary of the
21
Company is duly qualified to transact business and is in good standing
in each jurisdiction in which such qualification is required, except
where the failure to be so qualified or in good standing would not
have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise; and
(A) all of the issued and outstanding shares of capital stock of each
Covered Subsidiary that is a corporation have been duly authorized and
validly issued, are fully paid and non-assessable and, to the best
knowledge of such counsel and except as otherwise set forth on
Schedule D, are and, at all times since the date on which such
subsidiary was organized, have been owned by the Company, directly or
through wholly-owned subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity, and
(B) all of the issued and outstanding limited liability company
interests of each Covered Subsidiary that is a limited liability
company have been duly authorized and validly issued (under
applicable law and the limited liability company agreement of such
Covered Subsidiary), are fully paid and non-assessable and, to the
best knowledge of such counsel and except as set forth on Schedule D,
are owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity, and (C) all of the issued and outstanding partnership
interests of each Covered Subsidiary that is a partnership have been
duly authorized (if applicable) and validly issued and, to the best
knowledge of such counsel and except as set forth on Schedule D, are
owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity. As used herein, the term "Covered Subsidiary" means
each corporation, limited partnership, limited liability company and
other entity listed under Item A of Schedule D, other than those
entities designated on Schedule D as an "Excluded Subsidiary."
(iv) The authorized, issued and outstanding shares of capital
stock of the Company at _____ are as set forth in the Prospectus under
"Capitalization";
(v) The execution, delivery and performance of this Agreement,
the consummation of the transactions herein contemplated, and
compliance by the Company with its obligations hereunder, will not
result in a breach or violation of any of the terms or provisions of
or constitute a default under (A) any Subject Agreement, (B) any other
material contract, indenture, mortgage, deed of trust, note, loan
agreement or other agreement or instrument known to such counsel to
which the Company or any subsidiary is a party or by which the Company
or any subsidiary is bound or to which any of their respective
properties or assets are subject, (C) the Organizational Documents of
the Company or any of the Covered Subsidiaries, or (D) to the best of
such counsel's knowledge and information, any law, order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their respective properties (provided that such
22
counsel need express no opinion as to state securities or real estate
syndication laws of the various jurisdictions where the Shares are to
be offered).
(vi) The Registration Statement is effective under the 1933 Act
and, to the best of such counsel's knowledge and information, no stop
order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(vii) At the time the Registration Statement became effective
and at the date of this Agreement, the Registration Statement (other
than the financial statements and supporting schedules and other
financial and statistical data included or incorporated by reference
therein or omitted therefrom, as to which no opinion need be rendered)
complied as to form in all material respects with the requirements of
the 1933 Act and the Rules and Regulations; and nothing has come to
such counsel's attention that would lead them to believe that the
Registration Statement, at the time it became effective, contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the date of the
Prospectus Supplement or at the date of such opinion, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading (except that no statement need be made as to financial
statements or supporting schedules or other financial or statistical
data included or incorporated by reference in or omitted from the
Registration Statement or the Prospectus).
(viii) The documents incorporated or deemed to be incorporated
by reference in the Prospectus (other than the financial statements
and supporting schedules and other financial and statistical data
included or incorporated by reference therein or omitted therefrom, as
to which no opinion need be rendered), as of the dates they were filed
with the Commission (or, if such incorporated documents were amended,
when such amendment was filed), complied as to form in all material
respects with the requirements of the 1934 Act and the published rules
and regulations thereunder.
(ix) No filing with, or consent, approval, authorization,
license, registration, qualification, decree or order of, any court or
governmental authority or agency is required in connection with the
execution, delivery or performance of this Agreement, or the issuance
or sale of the Shares to be issued and sold by the Company to the
Underwriters, except such as has been obtained under the 1933 Act or
the Rules and Regulations or such as may be required under state
securities laws or real estate syndication laws (provided that such
counsel need express no opinion as to filings with, or consents,
23
approvals, authorizations, licenses, registrations, qualifications,
decrees or orders of, any foreign court or foreign governmental
authority or agency).
(x) The Company is not required to be registered under the
Investment Company Act of 1940, as amended.
(xi) The Company is eligible to use a Form S-3 registration
statement under the 1933 Act and is also eligible to use a Form S-3
registration statement pursuant to the standards for that Form as in
effect immediately prior to October 21, 1992.
(xii) The Company has all legal right, power and authority
necessary to qualify as a "real estate investment trust" under the
Code; the Company was reorganized in Delaware in 1987 and
reincorporated in Maryland in 1996; the Company has elected to be
treated as a "real estate investment trust" since its original
organization; the Company has qualified as a "real estate investment
trust" for its fiscal year ended July 31, 1995, its short taxable year
ended December 31, 1995 and its taxable year ended December 31, 1996
(the years, to the best knowledge of counsel, that are still subject
to audit by the Internal Revenue Service); it is anticipated that the
Company will qualify to be taxed as a "real estate investment trust"
under the Code for its taxable year ended December 31, 1997; and the
Company was and is organized and was operated and is operating in a
manner that enabled and will enable it to qualify to be taxed as a
"real estate investment trust" under the Code for its taxable year
ended December 31, 1997 and its taxable years ending December 31, 1998
and thereafter provided the Company met (in the case of its taxable
year ended December 31, 1997) and continues to meet (in the case of
its taxable years ending December 31, 1998 and thereafter), through
actual annual operating results, distribution levels and diversity of
stock ownership, the various qualification tests imposed by the Code
necessary for the Company to qualify as a "real estate investment
trust". As used in this paragraph (xii) and paragraph (xiii) below,
the term "Company" includes BankAmerica Realty Investors, a California
business trust and BRE Properties, a Delaware corporation which are
both predecessors to BRE Properties, Inc., a Maryland corporation.
(xiii) Each entity listed on Schedule D either qualifies as a
partnership for federal income tax purposes and for California or
Delaware, as the case may be, income tax purposes or as a "qualified
REIT subsidiary" within the meaning of Section 856(i) of the Code or
qualifies to be disregarded as an entity separate from the Company or
one of its subsidiaries for federal income tax purposes and for
California or Delaware, as the case may be, income tax purposes.
(xiv) The information in the Prospectus under the captions "The
Operating Company", "Risk Factors - Real Estate Investment Risks -
Restrictions
24
in the Operations of the Operating Company", "Risk Factors - Real
Estate Investment Risks - Limited Indemnification" (only with respect
to the first, second and third paragraphs under such caption),
"Description of Common Shares", "Restrictions on Transfers of Capital
Stock; Redemption" and "Federal Income Tax Considerations" and the
information in the Company's 1996 Annual Report on Form 10-K under the
caption "Legal Proceedings", to the extent that it constitutes matters
of law or legal conclusions, or summaries of provisions of the
Company's charter or by-laws, the Subject Agreements, the Rights
Agreement (as defined in Section 2(a)(xxviii) hereof) or of other
documents, agreements or instruments, has been reviewed by such
counsel and is correct in all material respects; and the opinion of
such counsel under the caption "Federal Income Tax Considerations" is
confirmed.
(xv) There are no legal or governmental proceedings pending or,
to the best of such counsel's knowledge and information, threatened
against the Company or any of its subsidiaries which are required to
be disclosed in the Registration Statement, other than those disclosed
therein, and all pending legal or governmental proceedings to which
the Company or any of its subsidiaries is a party or of which any of
the property of the Company or any of its subsidiaries is the subject
which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material.
(xvi) To the best of such counsel's knowledge and information,
there are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in
the Registration Statement or in the documents incorporated by
reference therein or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by reference
as exhibits thereto, the descriptions thereof or references thereto
are correct in all material respects, and, to the best of such
counsel's knowledge and information, no default exists in the due
performance or observance of any obligation, agreement, covenant or
condition contained in any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument so described, referred
to or filed.
(xvii) The issuance, sale and public offering of the Shares to
be issued and sold by the Company have been approved by all of the
"Continuing Directors" and do not constitute a "Business Combination"
(as such terms are defined in Article VIII of the Company's amended
and restated articles of incorporation).
(xviii) The Rights have been duly authorized by the Company
and, when the Shares are issued by the Company pursuant to this
Agreement, the Rights attached to such Shares will be validly issued.
25
Such opinion shall be rendered to the Underwriters at the request of
the Company and shall so state therein. In giving their opinion, Paul,
Hastings, Xxxxxxxx & Xxxxxx llp may rely (i) as to the qualification of the
Company and its subsidiaries to do business in any state or jurisdiction,
upon certificates of appropriate government officials, (ii) as to matters
of fact, upon certificates and written statements of officers of and
accountants for the Company, and (iii) as to matters arising under the laws
of the State of Maryland, upon the opinion of _____ delivered pursuant to
Section 7(e) hereof.
(e) The Representatives have received from _____, Maryland counsel for
the Company, a favorable opinion dated the First Closing Date, in form and
substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Maryland.
(ii) The Company has the corporate power and authority to own,
lease and operate its properties and conduct its business as described
in the Registration Statement and the Prospectus.
(iii) The authorized, issued and outstanding shares of capital
stock of the Company are as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any, of Common
Stock pursuant to the employee benefit, employee and director stock
option and dividend reinvestment plans referred to in the Prospectus);
and the shares of issued and outstanding Common Stock outstanding
prior to the issuance of the Shares to be sold by the Company have
been duly authorized and validly issued, are fully-paid and non-
assessable, and are not subject to any preemptive or other similar
rights arising by operation of law, under the charter or by-laws of
the Company, under any resolution adopted by the board of directors of
the Company or any committee thereof or, to the best of such counsel's
knowledge, otherwise.
(iv) The Shares to be sold by the Company have been duly
authorized by the Company for issuance and sale to the Underwriters
pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and fully paid
and non-assessable; and the issuance of such Shares is not subject to
preemptive or other similar rights arising by operation of law, under
the charter or by-laws of the Company or under any resolution adopted
by the board of directors of the Company or any committee thereof.
(v) The Common Stock conforms to the description thereof
contained in the Prospectus in all material respects, and the form of
certificate used to evidence the Common Stock is in due and proper
form and complies in all material respects with all applicable
statutory requirements.
26
(vi) This Agreement has been duly authorized, executed and
delivered by the Company; and the execution, delivery and performance
of this Agreement, the consummation of the transactions herein
contemplated, and compliance by the Company with its obligations
hereunder, will not result in a breach or violation of any of the
terms or provisions of or constitute a default under the Company's
charter or by-laws or, to the best of such counsel's knowledge, any
law, order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries
or any of their respective properties.
(vii) No filing with, or consent, approval, authorization or
order of any court or governmental authority or agency is required in
connection with the issuance or sale of the Shares to the
Underwriters, except such as has been obtained under the 1933 Act or
the Rules and Regulations or such as may be required under state
securities laws or real estate syndication laws (provided that such
counsel need express no opinion as to consents, approvals,
authorizations or orders of any foreign court or governmental
authority or agency).
(viii) The information in the Prospectus under the captions
"Description of Common Shares", "Restrictions on Transfers of Capital
Stock; Redemption" and "Risk Factors--Provisions Which Could Limit a
Change in Control or Deter a Takeover", and the information in the
Company's 1996 Annual Report on Form 10-K under the caption "Risk
Factors--Provisions Which Could Limit a Change in Control or Deter a
Takeover", to the extent that it constitutes matters of law or legal
conclusions, or summaries of provisions of the Company's charter or
by-laws, or of other documents, agreements or instruments, has been
reviewed by such counsel and is correct in all material respects.
(ix) The issuance, sale and public offering of the Shares have
been approved by the "Continuing Directors" and do not constitute a
"Business Combination" (as such terms are defined in Article VIII of
the Company's charter).
(x) The Rights have been duly authorized by the Company and,
when the Shares to be sold by the Company are issued by the Company
pursuant to this Agreement, the Rights attached to such Shares will be
validly issued.
Such opinion shall be rendered to the Underwriters at the request of
the Company and shall so state therein. In giving their opinion, _____
(i) may rely as to matters of fact, to the extent not independently
verified by such counsel, upon certificates and written statements of
officers and accountants for the Company and (ii) shall state that Paul,
Hastings, Xxxxxxxx & Xxxxxx LLP and Xxxxx & Wood LLP, in rendering their
opinions pursuant to Sections 7(d) and 7(f) of this Agreement, may rely on
such opinion of Maryland counsel as to all matters arising under the laws
of the State of Maryland.
27
(f) The Representatives shall have received from Xxxxx & Xxxx llp,
counsel for the Underwriters, their favorable opinion or opinions dated the
First Closing Date with respect to the organization of the Company, the
validity of the Shares to be sold by the Company, this Agreement, the
Registration Statement, the Prospectus and such other related matters as
the Representatives may require, and the Company shall have furnished to
such counsel such documents as they may request for the purpose of enabling
them to pass upon such matters.
(g) Subsequent to the execution and delivery of this Agreement and
prior to the applicable Closing Date (1) there shall not have occurred any
downgrading, nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded any
of the Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the 1933 Act; and (2) there shall not have occurred any
change, or any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in your judgment,
is material and adverse and that makes it, in your judgment, impracticable
to market the Shares on the terms and in the manner contemplated in the
Prospectus. At the applicable Closing Date (i) the Registration Statement
and the Prospectus shall contain all statements which are required to be
stated therein in accordance with the 1933 Act and the Rules and
Regulations and in all material respects shall conform to the requirements
of the 1933 Act and the Rules and Regulations, and neither the Registration
Statement nor the Prospectus shall 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 not misleading and no
action, suit or proceeding at law or in equity shall be pending or, to the
knowledge of the Company, threatened against the Company or any of its
subsidiaries which would be required to be set forth in the Registration
Statement or the Prospectus other than as set forth therein, (ii) no
proceeding shall be pending or, to the knowledge of the Company, threatened
against the Company or any of its subsidiaries before or by any Federal,
state or other court, commission, board or administrative agency wherein an
unfavorable decision, ruling or finding would materially and adversely
affect the business, property, financial condition or income of the
Company and its subsidiaries considered as one enterprise other than as set
forth in the Registration Statement and the Prospectus, (iii) neither the
Company nor any of its subsidiaries shall be in default in the performance
or observance of any contract to which it is a party, except such defaults
that would not have a material adverse effect on the condition, financial
or otherwise, of the Company and its subsidiaries considered as one
enterprise or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, (iv) no stop
order suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act and no proceeding therefor shall have been
instituted or threatened by the Commission and (v) the Representatives
shall have received, at such First Closing Date, a certificate of the
President and the Chief Financial Officer of the
28
Company, dated as of the First Closing Date, evidencing compliance with the
appropriate provisions of this subsection (g).
(h) The Representatives shall have received a certificate, dated the
First Closing Date, of the President and the Chief Financial Officer of the
Company to the effect that the representations and warranties of the
Company contained in Section 2(a) are true and correct with the same force
and effect as though expressly made at and as of the First Closing Date.
(i) The Company shall have furnished to the Representatives such
additional certificates as the Representatives may have reasonably
requested as to the accuracy, at and as of the relevant Closing Date, of
the representations and warranties made herein by the Company, as to
compliance at and as of such Closing Date by the Company with its covenants
and agreements herein contained and other provisions hereof to be satisfied
at or prior to such Closing Date and as to other conditions to the
obligations of the Underwriters hereunder.
(j) At the date of this Agreement, the Representatives shall have
received an agreement substantially in the form of Exhibit A hereto signed
by the persons listed on Schedule C hereto.
(k) In the event the Underwriters exercise the option granted in
Section 3 hereof to purchase all or any portion of the Optional Shares, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any of its
officers or directors hereunder shall be true and correct as of the Option
Closing Date, and the Representatives shall have received:
(i) A letter from Ernst & Young LLP in form and substance
satisfactory to the Representatives and dated the Option Closing
Date, substantially the same in scope and substance as the letter
furnished to the Representatives pursuant to Section 7(c), except that
the specified date in the letter furnished pursuant to this Section
7(k)(i) shall be a date not more than five days prior to the Option
Closing Date.
(ii) The favorable opinion of Paul, Hastings, Xxxxxxxx & Xxxxxx
LLP, counsel for the Company, in form and substance satisfactory to
the Representatives, dated the Option Closing Date, relating to the
Optional Shares and otherwise to the same effect as the opinion
required by Section 7(d).
(iii) The favorable opinion of _____, Maryland counsel for the
Company, in form and substance satisfactory to the Representatives,
dated the Option Closing Date, relating to the Optional Shares and
otherwise to the same effect as the opinion required by Section 7(e).
29
(iv) The favorable opinion of Xxxxx & Wood LLP, counsel for the
Underwriters, dated the Option Closing Date, relating to the Optional
Shares and otherwise to the same effect as the opinion required by
Section 7(f).
(v) A certificate, dated the Option Closing Date, of the
President and the Chief Financial Officer of the Company confirming
that the certificate or certificates delivered at the First Closing
Date pursuant to Section 7(g) and Section 7(h) remains or remain true
as of the Option Closing Date.
(vi) Such additional certificates, dated the Option Closing
Date, as the Representatives may have reasonably requested pursuant to
Section 7(i).
If any of the conditions hereinabove provided for in this Section shall not
have been satisfied when and as required by this Agreement, (i) this Agreement
may be terminated by the Representatives by notifying the Company of such
termination in writing or by telegram or telecopy at or prior to the First
Closing Date, and (ii) the obligations of the Underwriters to purchase Optional
Shares may be terminated by the Representatives by notifying the Company of such
termination in writing or by telegram or by telecopy at or prior to the Option
Closing Date.
8. Termination. This Agreement may be terminated by the Representatives
-----------
by notice to the Company at or prior to the First Closing Date, and the
obligations of the Underwriters to purchase Optional Shares may be terminated by
the Representatives by notice to the Company at or prior to the Option Closing
Date, if (a) after the execution and delivery of this Agreement and prior to the
First Closing Date or the Option Closing Date, as the case may be, (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activates in New York or California shall have been declared
by either Federal, New York State or California State authorities or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your judgment, is material
and adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event, singly or together with any other such event, makes
it, in your judgment, impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
9. Reimbursement of Underwriters. Notwithstanding any other provisions
-----------------------------
hereof, if this Agreement shall be terminated by the Representatives under
Section 7, Section 8 or Section 11, the Company will bear and pay the expenses
specified in Section 5 hereof and, in addition to its obligations pursuant to
Section 6 hereof, the Company will reimburse the reasonable out-of-pocket
expenses of the several Underwriters (including reasonable fees and
disbursements of counsel for the Underwriters) incurred in connection with this
Agreement and the proposed purchase and offers of the Shares, and promptly upon
demand the Company
30
will pay such amounts to you as Representatives. In addition, the provisions of
Section 6 hereof will survive any termination of this Agreement.
10. Default by Underwriters. If any Underwriter or Underwriters shall
-----------------------
default in its or their obligations to purchase any of the Shares which it or
they are obligated to purchase under this Agreement on the First Closing Date
(including, without limitation, any Optional Shares to be purchased on the First
Closing Date), and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total number of Shares which the Underwriters are obligated to purchase at
the First Closing Date, the other Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Shares
which such defaulting Underwriter or Underwriters agreed but failed to purchase.
If any Underwriter or Underwriters shall so default and the aggregate number of
Shares with respect to which such default or defaults occur is more than 10% of
the total number of Shares which the Underwriters are obligated to purchase at
the First Closing Date and arrangements satisfactory to the Representatives and
the Company for the purchase of such Shares by other persons are not made within
48 hours after such default, this Agreement shall terminate.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or part of the Shares of a defaulting Underwriter
or Underwriters as provided in this Section 10, (i) the Company shall have the
right to postpone the First Closing Date for a period of not more than five full
business days, in order that the Company may effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus, or in
any other documents or arrangements, and the Company agrees promptly to file any
amendments to the Registration Statement or supplements to the Prospectus which
may thereby be made necessary, and (ii) the respective numbers of Shares to be
purchased by the remaining Underwriters or substituted underwriters shall be
taken as the basis of their underwriting obligation for all purposes of this
Agreement. Nothing herein contained shall relieve any defaulting Underwriter of
its liability to the Company or the Underwriters for damages occasioned by its
default hereunder. Any termination of this Agreement pursuant to this Section
10 shall be without liability on the part of any non-defaulting Underwriter or
the Company, except for expenses to be paid or reimbursed pursuant to Section 5
and except for the provisions of Section 6.
11. Default by the Company. If the Company shall fail at the First
----------------------
Closing Date to sell and deliver the number of Shares which each is obligated to
sell hereunder, then this Agreement shall terminate without any liability on the
part of any non-defaulting party. No action taken pursuant to this Section
shall relieve the Company from liability, if any, in respect of such default.
12. Notices. All communications hereunder shall be in writing and, if
-------
sent to the Underwriters shall be mailed, delivered or telecopied and confirmed
to you, as their Representatives c/o _____ at _____, except that notices given
to an Underwriter pursuant to Section 6 hereof shall be sent to such Underwriter
at the address furnished by the Representatives or, if sent to the Company shall
be mailed, delivered or telecopied and confirmed at BRE Properties, Inc.,
31
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000,
attention: XxXxx X. Xxxxxxx.
13. Successors. This Agreement shall inure to the benefit of and be
----------
binding upon the several Underwriters, the Company,and their respective
successors and legal representatives. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person other than the
persons mentioned in the preceding sentence any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; except that the representations, warranties,
covenants, agreements and indemnities of the Company contained in this Agreement
shall also be for the benefit of the person or persons, if any, who control any
Underwriter or Underwriters within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, and the indemnities of the several Underwriters
shall also be for the benefit of each director or trustee of the Company, each
of the Company's officers who has signed the Registration Statement and the
person or persons, if any, who control the Company within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act.
14. Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of New York applicable to agreements made
and to be performed in said state. Unless otherwise expressly stated, specified
times of day refer to New York City time.
32
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding agreement between us.
Very truly yours,
BRE PROPERTIES, INC.
By:
---------------------------
Name:
Title:
[______________________________
By:
---------------------------
Name: Attorney-in-Fact]
Accepted and delivered, as of the date first above written:
_____________________________
_____________________________
_____________________________
_____________________________
Acting on their own behalf and as Representatives of the several Underwriters
referred to in the foregoing Agreement.
BY: ________________________
By:
-----------------------------
Name:
Title:
33
SCHEDULE A
Number of
Firm Shares
to be
Purchased
-----------
__________ ............... _____
__________ ............... _____
__________ ............... _____
__________ ............... _____
__________ ............... _____
__________ ............... _____
__________ ............... _____
__________ ............... _____
__________ ............... _____
__________ ............... _____
__________ ............... _____
__________ ............... _____
__________ ............... _____
__________ ............... _____
__________ ............... _____
__________ ............... _____
-----
Total.... _____
=====
Sch. A-1
SCHEDULE B
1. The initial public offering price per share for the Shares shall be
$_____ (the "Public Offering Price").
2. The purchase price per share for the Shares to be purchased by the
several Underwriters shall be $_____, being an amount equal to the
Public Offering Price set forth above less $_____ per share; provided
that the purchase price per share for any Optional Shares purchased
upon the exercise of the over-allotment option described in Section 3
shall be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Firm Shares
but not payable on the Optional Shares.
Sch. B-1
SCHEDULE C
1. Xxxx XxXxxxx
2. Xxxxx X. XxXxxxxx
3. Xxx X. Xxxxx
4. XxXxx X. Xxxxxxx
5. Xxxxx X. Xxx
6. Xxxx X. Xxxx
7. Xxxxxxx X. Xxxxxxx
8. C. Xxxxxxx Xxxxxxx
9. L. Xxxxxxx Xxxxx
10. Xxxxx X. Xxxxxxxxx
11. Xxxxxxx X. Xxxxx
12. Xxxxxxx Xxxxx
13. Xxxxxx X. xxx Xxxxxx
Sch.C-1
SCHEDULE D
Company's
Percentage
Ownership
A. Subsidiaries of the Company Interest
--------------------------- -----------
1. Corporate Subsidiaries of the Corporation
-----------------------------------------
BRE Camino Seco, Inc., a Delaware corporation 100%
BRE Colonia Del Rio, Inc., a Delaware corporation 100%
BRE Fountain Plaza, Inc., a Delaware corporation 100%
BRE Hacienda Del Rio, Inc., a Delaware corporation 100%
BRE Oracle Village, Inc., a Delaware corporation 100%
BRE Springhill, Inc., a Delaware corporation 100%
Alliance Property Management Company, a Delaware corporation 100%
BRE Builders, Inc., a Delaware corporation 100%
2. Partnerships Subsidiaries of the Company:
----------------------------------------
Vallejo Highlands Associates, a California limited partnership 100%
Vallejo Somerset Limited Partnership, a Texas limited partnership/*/ 100%
ITCR Villa Verde Limited Partnership, a Texas limited partnership/*/ 100%
3. Limited Liability Company Subsidiaries of the Company:
-----------------------------------------------------
BRE Property Investors LLC, a Delaware limited liability company 70.00%
Blue Ravine Investors LLC, a Delaware limited liability company 88.45%
Palm Shadows LLC, a California limited liability company 100%
Riverview LLC, a California limited liability company 100%
Woodlake Holdings LLC, an Arizona limited liability company/*/ 100%
B. Non-Subsidiary Entities in Which the Company Owns an Interest
-------------------------------------------------------------
Westbar Limited Partnership, an Arizona limited partnership 25%
Metro Village Limited Partnership, an Arizona limited partnership 37.5%
-------------------
/*/ Excluded Subsidiary
Sch. D-1
Exhibit A
[FORM OF LOCK-UP AGREEMENT]
_______________, 1997
_________________
_________________
_________________
_________________
c/o _____________
Dear Sirs and Mesdames:
The undersigned understands that _____ ("_____") proposes to enter into an
Underwriting Agreement (the "Underwriting Agreement") with BRE Properties, Inc.,
a Maryland corporation (the "Company"), providing for the public offering (the
"Public Offering") by the several underwriters named therein, including _____
(the "Underwriters"), of _____ shares (the "Shares") of the Common Stock, par
value $.01 per share of the Company (the "Common Stock").
To induce the Underwriters to continue their efforts in connection with the
Public Offering, the undersigned hereby agrees that, without the prior written
consent of _____ on behalf of the Underwriters, the undersigned will not, during
the period commencing on the date hereof and ending 90 days after the date of
the final prospectus 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, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock (whether such shares or any such securities are
now owned by the undersigned or are hereafter acquired), 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 Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to the sale of any Shares to the Underwriters pursuant
to the Underwriting Agreement. In addition, the undersigned agrees that, without
the prior written consent of _____ on behalf of the Underwriters, it will not,
during the period commencing on the date hereof and ending 90 days after the
date of the Prospectus, make any demand for or exercise any right with respect
to, the registration of any shares of Common Stock or any security convertible
into or exercisable or exchangeable for Common Stock.
A-1
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters. The terms of this
agreement shall be of no further force and effect if the first date that any
shares of Common Stock are released by the Underwriters for sale to the public
pursuant to the Public Offering does not occur prior to _____.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
--------------------------------------
(Name)
--------------------------------------
(Address)
A-2
