Exhibit 1.1
Execution Copy
2,750,000 Shares
of 8.05% Series B Cumulative Redeemable Preferred Stock
LEXINGTON CORPORATE PROPERTIES TRUST
UNDERWRITING AGREEMENT
June 10, 2003
Bear, Xxxxxxx & Co. Inc.
X.X. Xxxxxxx & Sons, Inc.
Xxxxxxx Xxxxx & Associates, Inc.
Friedman, Billings, Xxxxxx & Co., Inc.
Advest, Inc.
BB&T Capital Markets
Xxxxxx, Xxxxx Xxxxx Incorporated
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Lexington Corporate Properties Trust, a statutory real estate investment
trust organized and existing under the laws of Maryland (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the several underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 2,750,000 preferred shares of beneficial interest (the "Firm
Shares"), classified as 8.05% Series B Cumulative Redeemable Preferred Stock,
par value $0.0001 per share, liquidation preference $25.00 per share (the
"Series B Preferred Shares") and, for the sole purpose of covering
over-allotments in connection with the sale of the Firm Shares, at the option of
the Underwriters, up to an additional 410,000 shares (the "Additional Shares")
of Series B Preferred Shares. The Firm Shares and any Additional Shares
purchased by the Underwriters are referred to herein as the "Shares." The Shares
are more fully described in the Registration Statement and the Prospectus
referred to below. Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") is acting as lead
manager in connection with the offering and sale of the Shares (the "Offering").
The Company and each of Lepercq Corporate Income Fund, L.P., Lepercq
Corporate Income Fund II, L.P. and Net 3 Acquisition, L.P., for each of which
the Company serves directly or indirectly as sole general partner (each, a
"Partnership" and collectively, the "Partnerships"), hereby agree with the
Underwriters as follows:
1. Representations and Warranties. The Company and each Partnership,
jointly and severally, represent and warrant to, and agree with, each of the
Underwriters as of the date hereof and as of the Closing Date and each
Additional Closing Date (as hereinafter defined) that:
(a) A registration statement on Form S-3 (File No. 333-49351), with
respect to the Shares, including a base prospectus dated April 10, 1998, was
prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations (the "Rules and Regulations")
of the Securities and Exchange Commission (the "Commission"), was filed with the
Commission and declared effective. The registration statement and prospectus may
have been amended or supplemented prior to the date of this Agreement; any such
amendment or supplement was prepared and filed, and any such amendment filed
after the effective date of such registration statement has been declared
effective. No stop order suspending the effectiveness of the registration
statement has been issued, and no proceeding for that purpose has been
instituted, or to the Company's knowledge, threatened by the Commission. On or
prior to the date hereof, a registration statement on Form S-3 (File No.
333-105977) was filed pursuant to Rule 462(b) (the "Rule 462(b) Registration
Statement") with the Commission and became effective upon filing in accordance
with Rule 462(b). No amendment to the Rule 462(b) Registration Statement has
been filed with the Commission and no stop order suspending the effectiveness of
the Rule 462(b) Registration Statement has been issued, and no proceeding for
that purpose has been instituted, or to the Company's knowledge, threatened by
the Commission. A prospectus supplement (the "Prospectus Supplement") setting
forth the terms of the Offering, sale and plan of distribution of the Shares and
additional information concerning the Company and its business has been or will
be prepared and, together with the prospectus included in the original
registration statement, will be filed pursuant to Rule 424(b) of the Rules and
Regulations on or before the second business day after the date hereof (or such
earlier time as may be required by the Rules and Regulations). The original
registration statement and the Rule 462(b) Registration Statement, as they may
have heretofore been amended and at the time they became effective, are referred
to herein together as the "Registration Statement," and the final form of
prospectus included in the Registration Statement, as supplemented by the
Prospectus Supplement, in the form filed by the Company with the Commission
pursuant to Rule 424(b) under the Rules and Regulations, is referred to herein
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 which differs from the Prospectus (whether or not
such revised prospectus or prospectus supplement is required to be filed by the
Company 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. Copies of the Registration Statement and the
Prospectus, any amendments or supplements thereto and all documents incorporated
by reference therein that were filed with the Commission on or prior to the date
of this Agreement have been made available to the Underwriters and their
counsel. Any preliminary prospectus or prospectus subject to completion included
in the Registration Statement or filed with the Commission pursuant to Rule 424
under the Securities Act and the Rules and Regulations is hereafter called a
"Preliminary Prospectus." Any reference herein to the Registration Statement,
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), on or before the effective date of the Registration
Statement, the date of such Preliminary Prospectus or the date of the
Prospectus, as the case may be, and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
(i) the filing of any document under the Exchange Act after the effective date
of the Registration Statement, the date of such Preliminary Prospectus or the
date
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of the Prospectus, as the case may be, which is incorporated therein by
reference and (ii) any such document so filed. For purposes of this Agreement,
all references to the Registration Statement, the Prospectus, any Preliminary
Prospectus or to any amendment or supplement thereto shall be deemed to include
any copy filed with the Electronic Data Gathering Analysis and Retrieval System
(XXXXX), and such copy shall be identical in content to any Prospectus delivered
to the Underwriters for use in connection with the Offering.
(b) The Registration Statement, when it became or becomes effective, and
the Prospectus and any amendment or supplement thereto, on the date of filing
thereof with the Commission and at the Closing Date (as hereinafter defined)
and, if later, at any Additional Closing Date (as hereinafter defined), complied
or will comply in all material respects with the applicable requirements of the
Securities Act and the Rules and Regulations; the Registration Statement, when
it became or becomes effective, or when it was filed with the Commission, did
not or 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 not misleading; the Prospectus and any amendment or
supplement thereto, on the date of the filing thereof with the Commission and at
the Closing Date and, if later, at any Additional Closing Date, did not or will
not include an untrue statement of a material fact required to be stated therein
or omit to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. When any
related Preliminary Prospectus was first filed with the Commission (whether
filed as part of the registration statement for the registration of the Shares
or any amendment thereto or pursuant to Rule 424(a) under the Securities Act)
and when any amendment thereof or supplement thereto was first filed with the
Commission, such Preliminary Prospectus and any amendments thereof and
supplements thereto complied in all material respects with the applicable
provisions of the Securities Act, the Exchange Act and the Rules and Regulations
and did not contain an untrue statement of a material fact and did not omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. No representation and warranty is made in this subsection
(b), however, with respect to any information contained in or omitted from the
Registration Statement or the Prospectus or any related Preliminary Prospectus
or any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Underwriter through you specifically for use therein (the "Underwriters'
Information"). The parties acknowledge and agree that the Underwriters'
Information consists solely of the last paragraph of the cover page to the
Prospectus, the list of Underwriters and their respective participation in the
sale of the Shares under the section "Underwriting" in the Prospectus and the
material included in paragraphs six, nine, ten, eleven and twelve and the fourth
and fifth sentences of paragraph eight under the caption "Underwriting" in the
Prospectus.
(c) The documents incorporated or deemed to be incorporated by reference
in the Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the Exchange Act and the Rules and Regulations, and did not 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.
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(d) KPMG LLP, the accountants whose reports on the audited financial
statements of the Company are incorporated by reference in the Registration
Statement, are independent public accountants as required by the Securities Act
and the Rules and Regulations.
(e) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as set forth in the
Registration Statement and the Prospectus, there has been no material adverse
change or any development involving a prospective material adverse change in the
business, prospects, properties, operations, condition (financial or other) or
results of operations of the Company and any of its partnership, limited
liability company or corporate subsidiaries set forth in Exhibit 21 to the
Company's Annual Report on Form 10-K for the year ended December 31, 2002 (each,
a "Subsidiary", together, the "Subsidiaries" and such exhibit, the "List of
Subsidiaries"), taken as a whole, whether or not arising from transactions in
the ordinary course of business, and since the date of the latest balance sheet
presented in the Registration Statement and the Prospectus, neither the Company
nor any of the Subsidiaries has incurred or undertaken any liabilities or
obligations, direct or contingent, which are material to the Company and the
Subsidiaries, taken as a whole, except for liabilities or obligations which are
reflected in the Registration Statement and the Prospectus. The Company has no
other significant subsidiaries (as such term is defined in Rule 1-02 of
Regulation S-X) that are not set forth on the List of Subsidiaries.
(f) This Agreement and the transactions contemplated herein have been
duly and validly authorized by the Company and the Partnerships, and this
Agreement has been duly and validly executed and delivered by the Company and
the Partnerships and constitutes the legal, valid and binding obligation of the
Company and the Partnerships enforceable against the Company and the
Partnerships in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally or by general principles of equity.
(g) At the Closing Date (as defined herein), the joint and several
funding agreement (the "Funding Agreement"), in a form satisfactory to the
Underwriters and Underwriters' Counsel (as defined herein), and the transactions
contemplated therein will have been validly authorized by the Company and the
Partnerships, and the Funding Agreement will be duly and validly executed and
delivered by the Company and the Partnerships and will constitute the legal,
valid and binding obligation of the Company and the Partnerships enforceable
against the Company and the Partnerships in accordance with its terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally or by general principles of equity.
Upon execution of the Funding Agreement and except as permitted by its terms,
each of the Partnerships will be jointly and severally liable to pay the Company
an amount which, when taken together with other funds the Company has available,
will be equal to the declared and unpaid dividends on the Series B Preferred
Shares before paying any distributions (from operations or upon liquidation) on
account of outstanding operating partnership units held by partners in the
Partnerships.
(h) The execution, delivery, and performance of this Agreement and the
Funding Agreement and the consummation of the transactions contemplated hereby
and thereby do not and will not (i) conflict with or result in a breach of any
of the terms and provisions of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a
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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 the
Subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement, instrument, franchise, license or permit to which the
Company or any of the Subsidiaries is a party or by which the Company or any of
the Subsidiaries or their respective properties or assets may be bound and which
is material to the business of the Company and the Subsidiaries taken as a
whole, except as would not have a material adverse effect on the condition
(financial or otherwise), results of operations, business, properties or
prospects of the Company and the Subsidiaries taken as a whole (a "Material
Adverse Effect"), or (ii) violate or conflict with any provision of the charter,
bylaws, or limited liability company agreements as the case may be, of the
Company or the Subsidiaries or any judgment, decree, order, statute, rule or
regulation of any court or any public, governmental or regulatory agency or body
having jurisdiction over the Company or any of the Subsidiaries or any of their
respective properties or assets. No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any court or
any public, governmental or regulatory agency or body having jurisdiction over
the Company or any of the Subsidiaries or any of their respective properties or
assets is required for the execution, delivery and performance of this Agreement
and the Funding Agreement or the consummation of the transactions contemplated
hereby or thereby, by the Registration Statement and by the Prospectus,
including the issuance, sale and delivery of the Shares to be issued, sold and
delivered by the Company hereunder, except the registration under the Securities
Act of the Shares and such consents, approvals, authorizations, orders,
registrations, filings, qualifications, licenses and permits as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters.
(i) The Company has the authorized equity capitalization set forth in
the Prospectus and all of the issued and outstanding shares of capital stock of
the Company have been duly authorized and validly issued, are fully paid and
non-assessable and were not issued in violation of or subject to any preemptive
or similar rights that entitle or will entitle any person to acquire any Shares
from the Company upon issuance thereof by the Company, except for such rights as
may have been fully satisfied or waived prior to the effectiveness of the
Registration Statement. The Shares to be delivered on the Closing Date and the
Additional Closing Date, if any, (as hereinafter respectively defined) have been
duly and validly authorized and, when issued and delivered by the Company
against payment therefore in accordance with this Agreement, will be validly
issued, fully paid and non-assessable and will not have been issued in violation
of or subject to any preemptive or similar rights that entitle or will entitle
any person to acquire any Shares from the Company upon issuance thereof by the
Company. At or prior to the Closing Date, the Company will have executed and
filed Articles Supplementary (the "Articles Supplementary") to the Company's
Articles of Amendment and Restatement establishing the terms of the Shares with
the State Department of Assessments and Taxation of the State of Maryland. All
of the issued shares of capital stock (or other equity interests, as the case
may be) of each of the Subsidiaries of the Company have been duly authorized and
validly issued and are fully paid and non-assessable and (except as set forth in
the Prospectus) are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims. The Series B Preferred Shares,
the Firm Shares and the Additional Shares conform to the descriptions thereof
contained in the Registration Statement and the Prospectus and such description
conforms to the rights set forth in the Articles Supplementary.
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(j) The Company and each of the Subsidiaries has been duly organized and
is validly existing as a corporation, limited liability company or real estate
investment trust in good standing under the laws of its respective jurisdiction
of organization. Each of the Company and the Subsidiaries is duly qualified to
do business and is in good standing as a foreign corporation, limited liability
company or real estate investment trust in each jurisdiction in which the
character or location of its properties (owned, leased or licensed) or the
nature or conduct of its business makes such qualification necessary, except for
those failures to be so qualified or in good standing which will not have a
Material Adverse Effect. Each of the Company and the Subsidiaries has all
requisite power and authority, and all necessary consents, approvals,
authorizations, orders, registrations, qualifications, licenses and permits of
and from all public, regulatory or governmental agencies and bodies
(collectively, "Governmental Licenses"), to own, lease and operate their
respective properties and conduct their respective businesses as are now being
conducted and as described in the Registration Statement and the Prospectus,
except where the failure to possess any such Governmental Licenses would not in
the aggregate have a Material Adverse Effect; and no such consent, approval,
authorization, order, registration, qualification, license or permit contains a
materially burdensome restriction that is not adequately disclosed in the
Registration Statement and the Prospectus.
(k) The Limited Partnership Agreement of each Partnership, including any
amendments thereto (each a "Partnership Agreement" and, together, the
Partnership Agreements"), has been duly and validly authorized, executed and
delivered by the Company and its Subsidiaries and constitutes a valid and
binding agreement, enforceable in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally or by general principles of equity.
(l) Except as described in the Prospectus, there is no legal or
governmental proceeding to which the Company or any of the Subsidiaries is a
party, or any property of the Company or any of the Subsidiaries is the subject
which, singularly or in the aggregate, if determined adversely to the Company or
any of the Subsidiaries, are reasonably likely to have a Material Adverse
Effect, and to the Company's knowledge, no such proceedings are overtly
threatened or contemplated by governmental authorities or overtly threatened or
contemplated by others.
(m) Neither the Company nor any of its affiliates have taken nor will
take, directly or indirectly, any action designed to cause or result in, or
which constitutes or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the shares of Series B Preferred
Shares to facilitate the sale or resale of the Shares.
(n) The financial statements, including the notes thereto, incorporated
by reference in the Registration Statement and the Prospectus present fairly the
financial position of the Company and its consolidated subsidiaries as of the
dates indicated and the condition and results of operations for the periods
specified; except as otherwise stated in the Registration Statement, said
financial statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent basis
throughout the periods involved; the financial statement schedules incorporated
by reference in the Registration Statement and the Prospectus fairly present the
information required to be shown therein.
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(o) Except as set forth in the Registration Statement and Prospectus,
there are no pro forma or as adjusted financial statements which are required to
be included in accordance with Regulation S-X under the Rules and Regulations.
(p) No relationship, direct or indirect, exists between or among any of
the Company or any affiliate of the Company, on the one hand, and any director,
officer, stockholder, customer or supplier of the Company or any affiliate of
the Company, on the other hand, which is required by the Securities Act, the
Exchange Act, and the Rules and Regulations to be described in the Registration
Statement or the Prospectus which is not so described or is not described as
required. There are no outstanding loans, advances (except normal advances for
business expenses in the ordinary course of business) or guarantees of
indebtedness by the Company to or for the benefit of any of the officers or
directors of the Company or any of their respective family members, except as
disclosed in the Registration Statement and the Prospectus.
(q) The Company and the Subsidiaries maintain a system of internal
accounting and other controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization, and (iv) the recorded accounting for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(r) No holder of securities of the Company has any rights to the
registration of securities of the Company because of the filing of the
Registration Statement or otherwise in connection with the sale of the Shares
contemplated hereby.
(s) Neither the Company nor any Subsidiary is, and upon consummation of
the transactions contemplated hereby and in the Prospectus neither will be, an
"investment company" as such term is defined in the Investment Company Act of
1940, as amended (the "Investment Company Act").
(t) With such exceptions as could not reasonably be expected to have a
Material Adverse Effect, the Company and the Subsidiaries have good and
marketable fee simple title or leasehold title, as the case may be, to all real
property owned or leased, as applicable, by the Company or the Subsidiaries, and
good title to all other personal property owned by them, in each case free and
clear of all liens, encumbrances, claims, security interests and defects, except
such as are disclosed in the Prospectus or such as do not materially and
adversely affect the value of such property and do not interfere with the use
made or proposed to be made of such property by the Company and the
Subsidiaries; and any real property and buildings held under lease by the
Company or the Subsidiaries are held under valid, existing and enforceable
leases, with such exceptions as are disclosed in the Prospectus or are not
material and do not interfere with the use made or proposed to be made of such
property and buildings by the Company or the Subsidiaries.
(u) The Company and each of the Subsidiaries have accurately prepared in
all material respects and timely filed all federal, state and other tax returns
that are required to be
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filed by it and have paid or made provision for the payment of all taxes,
assessments, governmental or other similar charges, including without
limitation, all sales and use taxes and all taxes which such entity is obligated
to withhold from amounts owing to employees, creditors and third parties, with
respect to the periods covered by such tax returns (whether or not such amounts
are shown as due on any tax return), except, in all cases, for any such amounts
that the Company is contesting in good faith and except in any case in which the
failure to so file or pay would not in the aggregate have a Material Adverse
Effect. No deficiency assessment with respect to a proposed adjustment of the
Company's or any of the Subsidiaries' federal, state, or other taxes is pending
or, to the Company's knowledge, threatened, which could reasonably be expected
in the aggregate at to have a Material Adverse Effect. There is no tax lien,
other than for taxes not yet due, whether imposed by any federal, state, or
other taxing authority, outstanding against the assets, properties or business
of the Company or any of the Subsidiaries.
(v) On or prior to the Closing Date, the Shares will be registered
pursuant to Section 12(b) of the Exchange Act and will have been approved for
listing, subject to notice of issuance, on the New York Stock Exchange, Inc.
(the "NYSE"), and the Company has not taken and will not take any action
designed to, or likely to have the effect of, terminating the registration of
the Shares under the Exchange Act, nor has the Company received any notification
that the Commission is contemplating terminating such registration.
(w) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration Statement
by the Securities Act or by the Rules and Regulations and which have not been so
described or filed. All of the contracts to which any of the Company or the
Subsidiaries is a party and which are material to the business and operations of
the Company and the Subsidiaries, taken as a whole, (i) have been duly
authorized, executed and delivered by such entity, constitute valid and binding
obligations of such entity and are enforceable against such entity in accordance
with the terms thereof, except as such enforcement may be limited by (A)
bankruptcy, insolvency, reorganization or similar other laws affecting
creditors' rights generally and (B) general equity principles and limitations on
the availability of equitable relief, or (ii) in the case of any contract to be
executed on or before the Closing Date, will on the Closing Date be duly
authorized, executed and delivered by the Company and/or a subsidiary, and
constitute valid and binding agreements of such entity enforceable against each
entity in accordance with the terms thereof, except as such enforcement may be
limited by (A) bankruptcy, insolvency, reorganization or similar other laws
affecting creditors' rights generally and (B) general equity principles and
limitations on the availability of equitable relief.
(x) Neither the Company nor any of the Subsidiaries (i) is in violation
of its charter, by-laws or limited liability company agreement as the case may
be, (ii) is in default under, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of the Subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of the Subsidiaries is a party or by which the Company
or any of the Subsidiaries is bound or to which any of their properties or
assets is subject or (iii) is in violation in any respect of any statute or any
judgment, decree, order, rule or regulation of any court or governmental or
regulatory agency or body having jurisdiction over the Company or any of the
Subsidiaries or
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any of their properties or assets, except in the case of (ii) or (iii) above any
violation or default, lien, charge or encumbrance that would not have a Material
Adverse Effect.
(y) The Company and the Subsidiaries own or possess adequate right to
use all trademarks, service marks, trade names, trademark registrations, service
xxxx registrations, copyrights, licenses, know-how and other intellectual
property (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures) necessary for
the conduct of their respective businesses as being conducted and as described
in the Registration Statement and Prospectus, except where the failure to own or
possess such right would not in the aggregate have a Material Adverse Effect,
and have no reason to believe that the conduct of their respective businesses
will conflict with, and have not received any notice of any claim of conflict
with, any such right of others which claim, if the subject of an unfavorable
decision, ruling or judgment, could in the aggregate reasonably be expected to
result in a Material Adverse Effect.
(z) The statistical and market-related data included in the Prospectus
are based on or derived from sources which the Company believes, in good faith,
to be reliable and accurate.
(aa) The conditions for use of Form S-3 under the Securities Act, as set
forth in the General Instructions thereto, have been satisfied. During the
period of at least the last 24 calendar months prior to the date of this
Agreement, the Company has timely filed with the Commission all documents and
other material required to be filed pursuant to Sections 13, 14 and 15(d) under
the Exchange Act. During the period of at least the last 36 calendar months
preceding the filing of the Registration Statement, the Company has filed all
reports required to be filed pursuant to Sections 13, 14 and 15(d) under the
Exchange Act. Immediately preceding the filing of the Registration Statement,
the aggregate market value of the Company's voting stock held by non-affiliates
of the Company was equal to or greater than $150 million.
(bb) The Company has not prior to the date hereof offered or sold any
securities which would be "integrated" with the offer and sale of the Shares
pursuant to the Registration Statement. Except as described in the Registration
Statement and the Prospectus, the Company has not sold or issued any of its
common shares, preferred shares, any other equity security of the Company or the
Subsidiaries and any security convertible into, or exercisable or exchangeable
for, any of its common shares, preferred shares or other such equity security
during the six-month period preceding the date of the Prospectus, including but
not limited to any sales pursuant to Rule 144A or Regulation D or S under the
Securities Act, other than its common shares issued pursuant to employee benefit
plans, qualified stock option plans or the employee compensation plans, pursuant
to outstanding options, rights or warrants as described in the Prospectus.
(cc) Commencing with its taxable year ended December 31, 1998, the
Company has been, and upon the sale of the Shares, the Company will continue to
be organized and operated in conformity with the requirements for qualification
and taxation as a real estate investment trust (a "REIT") under the Internal
Revenue Code of 1986, as amended (the "Code"), and the Company's proposed method
of operation as described in the Prospectus will enable it to continue to meet
the requirements for qualification and taxation as a REIT under the Code, and
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no actions have been taken (or not taken which are required to be taken) which,
in of themselves, would cause such qualification to be lost.
(dd) The Company has not incurred any liability for any finder's fees or
similar payments in connection with the transactions herein contemplated except
as may otherwise exist with respect to the Underwriters pursuant to this
Agreement.
(ee) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby do not and will not
conflict with or result in a breach of any of the terms and provisions of, or
constitute a default under, that certain Underwriting Agreement, dated as of
April 29, 2003, between Wachovia Securities, Inc. ("Wachovia") on the one hand,
and the Company and the Partnerships, on the other hand (the "Wachovia
Agreement").
(ff) Each of the Company, the Partnerships and the Subsidiaries
maintains insurance (issued by insurers of recognized financial responsibility)
of the types and in the amounts generally deemed adequate, if any, for their
respective businesses and consistent with insurance coverage maintained by
similar companies in similar businesses, including, but not limited to,
insurance covering real and personal property owned or leased by the Company,
the Partnerships and the Subsidiaries against theft, damage, destruction, acts
of vandalism and all other risks customarily insured against, all of which
insurance is in full force and effect.
(gg) Except as otherwise described in the Prospectus, neither the
Company, the Partnerships nor any Subsidiary has authorized or conducted or has
knowledge of the generation, transportation, storage, presence, use, treatment,
disposal, release, or other handling of any hazardous substance, hazardous
waste, hazardous material, hazardous constituent, toxic substance, pollutant,
contaminant, asbestos, radon, polychlorinated biphenyls ("PCBs"), petroleum
product or waste (including crude oil or any fraction hereof, natural gas,
liquefied gas, synthetic gas or other material defined, regulated, controlled or
potentially subject to any remediation requirement under any environmental law
(collectively, "Hazardous Materials"), on, in, under or affecting any Property,
except in material compliance with applicable laws; except as disclosed in the
Prospectus, to the knowledge of the trustees and officers of the Company, the
Properties are in compliance with all federal, state and local laws, ordinances,
rules, regulations and other governmental requirements relating to pollution,
control of chemicals, management of waste (collectively, "Environmental Laws"),
and the Company, the Partnerships and the Subsidiaries are in compliance with
all licenses, permits, registrations and government authorizations necessary to
operate under all applicable Environmental Laws in all material respects; except
as otherwise described in the Prospectus, neither the Company, any Partnership
or any Subsidiary has received any written or oral notice from any governmental
entity or any other person and there is no pending, or, to the knowledge of the
trustees and officers of the Company, threatened claim, litigation or any
administrative agency proceeding that: alleges a violation of any Environmental
Laws by the Company, the Partnerships or any Subsidiary; or that the Company,
any Partnership or any Subsidiary is a liable party or a potentially responsible
party under the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. ss. 9601, et. seq., or any state superfund law; has resulted in
or could result in the attachment of an environmental lien on any of the
properties; or alleges that the Company, any Partnership or any Subsidiary is
liable for any contamination of the environment, contamination
10
of the Property, damage to natural resources, property damage, or personal
injury based on their activities or the activities of their predecessors or
third parties (whether at the properties or elsewhere) involving Hazardous
Materials, whether arising under the Environmental Laws common law principles,
or other legal standards. In the ordinary course of its business, the Company,
the Partnerships and the Subsidiaries conduct Phase I environmental assessments
on each of the Properties at the time such Property is acquired and periodic
reviews of the effect of Environmental Laws on the business, operations and
properties of the Company, the Partnerships and the Subsidiaries.
(hh) None of the entities which prepared appraisals of the Properties or
Phase I environmental assessment reports with respect to such Properties was
employed for such purpose on a contingent basis or has any substantial interest
in the Company, any Partnership or any Subsidiary, and none of their directors,
officers or employees is connected with the Company, any Partnership or any
Subsidiary as a promoter, selling agent, voting trustee, officer or employee.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriters and the Underwriters,
severally and not jointly, agree to purchase from the Company, at a purchase
price per Share of $24.2125, the number of Firm Shares set forth opposite the
respective names of the Underwriters on Schedule I hereto plus any additional
number of Shares which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 9 hereof.
(b) Payment of the purchase price for, and delivery of certificates for,
the Shares shall be made at the office of Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Underwriters' Counsel"), or at such other
place as shall be agreed upon by you and the Company, at 10:00 A.M., New York
City time, on or before June 19, 2003, or such other time not later than ten
business days after such date as shall be agreed upon by you and the Company
(such time and date of payment and delivery being herein called the "Closing
Date").
Payment for the Shares shall be made to or upon the order of the Company
of the purchase price by wire transfer in Federal (same day) funds to the
Company upon delivery of certificates for the Shares to you through the
facilities of the Depository Trust Company for the respective accounts of the
several Underwriters against receipt therefor signed by you. Certificates for
the Shares to be delivered to you shall be registered in such name or names and
shall be in such denominations as you may request at least one business day
before the Closing Date. The Company will permit you to examine and package such
certificates for delivery at least one full business day prior to the Closing
Date.
(c) In addition, the Company hereby grants to the Underwriters the
option to purchase up to 410,000 Additional Shares at the same purchase price
per Share to be paid by the Underwriters to the Company for the Firm Shares as
set forth in this Section 2, for the sole purpose of covering over-allotments in
the sale of Firm Shares by the Underwriters. This option may be exercised at any
time and from time to time, in whole or in part, on or before the thirtieth
11
day following the date of the Prospectus, by written notice by you to the
Company. Such notice shall set forth the aggregate number of Additional Shares
as to which the option is being exercised and the date and time, as reasonably
determined by you, when the Additional Shares are to be delivered (such date and
time being herein sometimes referred to as the "Additional Closing Date");
provided, however, that the Additional Closing Date shall not be earlier than
the Closing Date or earlier than the second full business day after the date on
which the option shall have been exercised nor later than the eighth full
business day after the date on which the option shall have been exercised
(unless such time and date are postponed in accordance with the provisions of
Section 9 hereof). Certificates for the Additional Shares shall be registered in
such name or names and in such authorized denominations as you may request in
writing at least two full business days prior to the Additional Closing Date.
The Company will permit you to examine and package such certificates for
delivery at least one full business day prior to the Additional Closing Date.
(d) The number of Additional Shares to be sold to each Underwriter shall
be the number which bears the same ratio to the aggregate number of Additional
Shares being purchased as the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule I hereto (or such number increased as set forth
in Section 9 hereof) bears to the total number of Firm Shares being purchased
from the Company, subject, however, to such adjustments to eliminate any
fractional shares as Bear Xxxxxxx in its sole discretion shall make.
(e) Payment for the Additional Shares shall be made to or upon the order
of the Company of the purchase price by wire transfer in Federal (same day)
funds to the Company at the offices of Underwriters' Counsel, or such other
location as may be mutually acceptable, upon delivery of the certificates for
the Additional Shares to you for the respective accounts of the Underwriters.
3. Offering. Upon your authorization of the release of the Firm Shares,
the Underwriters propose to offer the Shares for sale to the public upon the
terms and conditions set forth in the Prospectus.
4. Covenants of the Company. The Company covenants and agrees with the
Underwriters that:
(a) The Company will cause the Prospectus Supplement to be filed as
required by Section 1(a) hereof (but only if the Underwriters or Underwriter'
Counsel have not reasonably objected thereto by notice to the Company after
having been furnished a copy a reasonable time prior to filing) and will notify
the Underwriters promptly of such filing.
(b) The Company will notify you (and, if requested by you, will confirm
such notice in writing) of (i) any request by the Commission for any amendment
of or supplement to the Registration Statement or the Prospectus or for any
additional information, (ii) the mailing or the delivery to the Commission for
filing of any amendment of or supplement to the Registration Statement or the
Prospectus, (iii) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or any post-effective amendment
thereto or of the initiation, or the threatening, of any proceedings therefor,
(iv) the receipt of any comments from the Commission, and (v) the receipt by the
Company of any notification with respect to the
12
suspension of the qualification of the Shares for sale in any jurisdiction or
the initiation or threatening of any proceeding for that purpose. If the
Commission shall propose or enter a stop order at any time, the Company will
make every reasonable effort to prevent the issuance of any such stop order and,
if issued, to obtain the lifting of such order as soon as possible. The Company
will prepare and file with the Commission, promptly upon the Underwriters'
request, any amendments or supplements to the Registration Statement or the
Prospectus that, in the Underwriters' opinion, may be necessary or advisable in
connection with the Underwriters' distribution of the Shares; and the Company
will not file any amendment to the Registration Statement or any amendment of or
supplement to the Prospectus (other than any prospectus supplement relating to
the offering of other securities registered under the Registration Statement or
any document required to be filed under the Exchange Act that upon filing is
deemed to be incorporated by reference therein) that differs from the prospectus
on file at the time of the effectiveness of the Registration Statement before or
after the effective date of the Registration Statement to which you shall
reasonably object in writing after being timely furnished in advance a copy
thereof.
(c) The Company shall comply with the Securities Act, the Exchange Act
and the Rules and Regulations to permit completion of the distribution as
contemplated in this Agreement, the Registration Statement and the Prospectus.
If at any time when a prospectus relating to the Shares is required to be
delivered under the Securities Act or the Exchange Act any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would, in the judgment of the Underwriters or the Company, include an 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, in the light of the
circumstances under which they were made, not misleading, or if it shall be
necessary at any time to amend or supplement the Prospectus or Registration
Statement to comply with the Securities Act or the Exchange Act or the Rules and
Regulations, the Company will notify you promptly and prepare and file with the
Commission an appropriate amendment or supplement (at the expense of the Company
and in form and substance satisfactory to you) which will correct such statement
or omission and will use its best efforts to have any amendment to the
Registration Statement declared effective as soon as possible.
(d) The Company will promptly deliver to each of the Underwriters and
Underwriters' Counsel a copy of the Registration Statement, including all
consents and exhibits filed therewith and all amendments thereto, and the
Company will promptly deliver to each of the Underwriters such number of copies
of any Preliminary Prospectus (which the Underwriters have agreed may be in
electronic form in lieu of paper copies), the Prospectus, the Registration
Statement, and all amendments of and supplements to such documents, if any, as
you may reasonably request. Prior to 10:00 A.M., New York City time, on the
business day next succeeding the date of this Agreement and from time to time
thereafter the Company will furnish the Underwriters with copies of the
Prospectus in such quantities as you may reasonably request.
(e) The Company consents to the use and delivery of the Preliminary
Prospectus by the Underwriters in accordance with Section 5(b) of the Securities
Act.
(f) The Company will make generally available to its security holders
and to the Underwriters as soon as practicable, but not later than 45 days (or
90 days, in the case of a period
13
that is also the Company's fiscal year) after the close of the period covered
thereby an earnings statement of the Company (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Company, Rule 158) covering a period of twelve
months beginning not later than the first day of the Company's fiscal quarter
following the "effective date" (as defined in Rule 158) of the Registration
Statement.
(g) During the period of three years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to security holders, and the
Company will deliver to you (i) as soon as practicable after the filing thereof,
copies of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of securities
of the Company are listed; and (ii) such additional information concerning the
business and financial condition of the Company as you may from time to time
reasonably request (such financial statements to be on a consolidated basis to
the extent the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its security holders generally or to the Commission).
(h) The Company will apply the net proceeds from the sale of the Shares
as set forth under "Use of Proceeds" in the Prospectus.
(i) The Company will use its best efforts to list, subject to notice of
issuance, the Shares on the NYSE.
(j) The Company, during the period when the Prospectus is required to be
delivered under the Securities Act or the Exchange Act, will file all documents
required to be filed with the Commission pursuant to the Securities Act, the
Exchange Act and the Rules and Regulations within the time periods required
thereby.
(k) The Company will not at any time, directly or indirectly, take any
action designed to, or which might reasonably be expected to, cause or result
in, or which has constituted or which might reasonably be expected to
constitute, a violation of Regulation M under the Exchange Act, or the
stabilization of the price of its capital stock to facilitate the sale or resale
of any of the Shares.
(l) The Company will not be or become, at any time prior to the
expiration of three years after the date of the Agreement, an "investment
company," as such term is defined in the Investment Company Act.
(m) The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the Code for
each of its taxable years for so long as the Board of Trustees of the Company
deems it in the best interests of the Company's stockholders to remain so
qualified.
(n) For a period commencing on the date hereof and ending 90 days
following the Closing Date, without the prior written consent of Bear Xxxxxxx,
the Company shall not authorize or effect the sale or issuance, or agree to sell
or issue, any shares of Series B Preferred Shares or any parity or senior
securities with respect to the Series B Preferred Shares (as to dividend rights,
14
or rights upon liquidation, dissolution or winding up), except for the sales to
the Underwriters pursuant to this Agreement.
(o) During the period when the Prospectus is required to be delivered
under the Securities Act or the Exchange Act, the Company shall notify you of
the occurrence of any material events respecting its activities, affairs or
condition, financial or otherwise, if, but only if, as a result of any such
event it is necessary, in the opinion of counsel, to amend or supplement the
Prospectus in order to make the Prospectus not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, and prepare
an amendment or supplement to the Prospectus so that, as so amended or
supplemented, the Prospectus will not contain an 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 existing at the time it is delivered
to a purchaser, not misleading.
5. Payment of Expenses. Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of the
obligations of the Company hereunder, including the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Securities Act and all
other expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of producing any
Agreement among Underwriters, this Agreement, the Blue Sky Memoranda, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Shares; (iii)
all expenses in connection with the qualification of the Shares for offering and
sale under state securities laws, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky survey; (iv) all fees and expenses in connection
with listing the Shares on the NYSE; (v) all travel expenses of the Company's
officers and employees and any other expense of the Company incurred in
connection with attending or hosting meetings with prospective purchasers of the
Shares (other than as shall have been specifically approved by the Underwriters
in writing to be paid for by the Underwriters); (vi) any stock transfer taxes
incurred in connection with this Agreement or the Offering; and (vii) the filing
fees incident to, and the fees and disbursements of counsel for the Underwriters
in connection with, securing any required review by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the Shares.
The Company also will pay or cause to be paid: (i) the cost of preparing stock
certificates representing the Shares; (ii) the cost and charges of any transfer
agent or registrar for the Shares; and (iii) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section 5. It is understood, however, that
except as provided in this Section, and Sections 7, 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees
and expenses of Underwriters' counsel, stock transfer taxes on resale of any of
the Shares by them, and any advertising expenses connected with any offers they
may make.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject to the accuracy of the representations and
warranties of the Company and the
15
Partnerships herein contained, as of the date hereof and as of the Closing Date
(for purposes of this Section 6 "Closing Date" shall refer to the Closing Date
for the Firm Shares and any Additional Closing Date, if different, for the
Additional Shares), to the absence from any certificates, opinions, written
statements or letters furnished to you or to Underwriters' Counsel pursuant to
this Section 6 of any misstatement or omission, to the performance by the
Company and the Partnerships of their respective obligations hereunder, and to
each of the following additional terms and conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for a post-effective amendment to the Registration Statement to be
declared effective before the Offering may commence, such post-effective
amendment shall have become effective not later than 5:30 P.M., New York time,
on the date of this Agreement, or at such later time and date as shall have been
consented to in writing by you; at the Closing Date, the Shares shall have been
approved for listing on the NYSE upon official notice of issuance; the
Prospectus containing information relating to the description of the Shares and
the method of distribution and similar matters shall have been filed with the
Commission pursuant to Rule 424(b) in a timely fashion in accordance with
Section 4(a) hereof; and, at or prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement or any post-effective
amendment thereof shall have been issued and no proceedings therefor shall have
been initiated or threatened by the Commission, nor shall any state securities
authority have suspended the qualification or registration of the Shares for
offering or sale in any jurisdiction and any request of the Commission for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the satisfaction of
the Underwriters and the Underwriters' Counsel.
(b) The Underwriters shall not have advised the Company that the
Registration Statement or any amendment thereto contains an untrue statement of
fact that in the opinion of the Underwriters or the Underwriters' Counsel is
material or omits to state a material fact that in the opinion of the
Underwriters or the Underwriters' Counsel is required to be stated therein or is
necessary to make the statements therein not misleading, or that the Prospectus,
or any amendment or supplement thereto, contains an untrue statement of fact
that in the opinion of the Underwriters or the Underwriters' counsel is material
or omits to state a material fact that in the opinion of the Underwriters or the
Underwriters' counsel is material and is required to be stated therein or
necessary, in the light of the circumstances under which they were made, to make
the statements therein not misleading.
(c) At the Closing Date you shall have received the written opinion of
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, counsel for the Company, dated the
Closing Date and addressed to the Underwriters. Such opinion shall substantially
reflect the statements set forth in Annex I and shall be in form and substance
reasonably satisfactory to the Underwriters and Underwriters' Counsel.
(d) At the Closing Date you shall have received the written opinion of
Xxxxx Xxxxxxx LLP (or such other counsel that shall be approved by the
Underwriters and Underwriters' Counsel), special Maryland counsel to the
Company, dated the Closing Date and addressed to the Underwriters which shall be
in form and substance reasonably satisfactory to the Underwriters and
Underwriters' Counsel.
16
(e) At the Closing Date you shall have received the written opinion of
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, tax counsel for the Company, dated the
Closing Date and addressed to the Underwriters regarding the qualification of
the Company as a REIT under the Code. Such opinion shall substantially reflect
the statements set forth in Annex II and shall be in form and substance
reasonably satisfactory to the Underwriters and Underwriters' Counsel.
(f) All proceedings taken in connection with the sale of the Firm Shares
and the Additional Shares as herein contemplated shall be reasonably
satisfactory in form and substance to you and to Underwriters' Counsel, and the
Underwriters shall have received from Underwriters' Counsel a favorable opinion,
dated as of the Closing Date, with respect to the issuance and sale of the
Shares, the Registration Statement and the Prospectus and such other related
matters as you may reasonably require, and the Company shall have furnished to
Underwriters' Counsel such documents as they request for the purpose of enabling
them to pass upon such matters. In rendering such opinion, Xxxxxxx Xxxx &
Xxxxxxxxx may rely upon the opinion of Xxxxx Xxxxxxx LLP as to matters of
Maryland law.
(g) At the Closing Date you shall have received a certificate of the
Chairman of the Board or the President and the chief financial officer or chief
accounting officer of the Company, dated the Closing Date to the effect that (i)
the condition set forth in subsection (a) of this Section 6 has been satisfied,
(ii) as of the date hereof and as of the Closing Date, the representations and
warranties of the Company and the Partnerships set forth in Section 1 hereof are
accurate, (iii) as of the Closing Date, all obligations, agreements and
conditions of the Company to be performed hereunder on or prior thereto have
been duly performed and (iv) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, the
Company and the Subsidiaries have not sustained any material loss or
interference with their respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding, and there has
not been any material adverse change, or any development involving a material
adverse change, in the business prospects, properties, operations, condition
(financial or otherwise), or results of operations of the Company and the
Subsidiaries taken as a whole, except in each case as described in or
contemplated by the Prospectus.
(h) At the time this Agreement is executed and at the Closing Date, you
shall have received a comfort letter from KPMG LLP, independent public
accountants for the Company, dated, respectively, as of the date of this
Agreement and as of the Closing Date addressed to the Underwriters and in form
and substance satisfactory to the Underwriters and Underwriters' Counsel.
(i) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been any change in the capital
stock or long-term debt of the Company or any of the Subsidiaries or any change,
or any development involving a prospective change, in or affecting the condition
(financial or otherwise), results of operations, business, properties or
prospects of the Company and the Subsidiaries taken as a whole, the effect of
which, in any such case described above, is, in the judgment of the
Underwriters, so material and adverse as to make it impracticable or
17
inadvisable to proceed with the public offering or the delivery of the Shares on
the terms and in the manner contemplated in the Prospectus (exclusive of any
supplement).
(j) The Company shall have complied with the provisions of Section 4(d)
hereof with respect to the furnishing of Prospectuses.
(k) The NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
(l) On or prior to the Closing Date, the Company shall have duly filed
the Articles Supplementary with the State Department of Assessments and Taxation
of Maryland.
(m) On or prior to the Closing Date, the Underwriters and the Company
shall have executed and delivered an agreement and waiver, in form and substance
satisfactory to both the Underwriters and the Company, waiving certain ownership
restrictions in the Company's Declaration of Trust.
(n) On or prior to the Closing Date, the Company and the Partnerships
shall have executed and delivered the Funding Agreement, in form and substance
satisfactory to the Underwriters and Underwriters' Counsel.
(o) On or prior to the Closing Date, the Company shall have furnished
the Underwriters with an original copy of the letter from Wachovia to the
Company, dated May 30, 2003, clarifying certain provisions of the Wachovia
Agreement.
(p) The Company shall have furnished the Underwriters and Underwriters'
Counsel with such other certificates, opinions or other documents as they may
have reasonably requested.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as required by this Agreement, or if any of the certificates,
opinions, written statements or letters furnished to you or to Underwriters'
Counsel pursuant to this Section 6 shall not be in all material respects
reasonably satisfactory in form and substance to you and to Underwriters'
Counsel, all obligations of the Underwriters hereunder may be cancelled by you
at, or at any time prior to, the Closing Date and the obligations of the
Underwriters to purchase the Additional Shares may be cancelled by you at, or at
any time prior to, the Additional Closing Date. Notice of such cancellation
shall be given to the Company in writing or by telephone. Any such telephone
notice shall be confirmed promptly thereafter in writing.
7. Indemnification.
(a) The Company shall indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, against any and all
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities,
18
claims, damages or expenses (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, as originally filed or any amendment
thereof, or any related Preliminary Prospectus or the Prospectus, or in any
supplement thereto or amendment thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that the Company will not be liable in any such case to the
extent but only to the extent that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through you expressly for use therein. The parties
agree that such information provided by or on behalf of any Underwriter through
you consists solely of the material referred to in the last sentence of Section
1(b) hereof. The foregoing indemnity agreement with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter who failed to
deliver the Prospectus (as then amended or supplemented, provided to the several
Underwriters in the requisite quantity and on a timely basis to permit proper
delivery on or prior to the Closing Date) to the person asserting any losses,
claims, damages and liabilities and judgments caused by any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, 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, if such material misstatement or omission or alleged
material misstatement or omission was cured, as determined by a court of
competent jurisdiction in a decision not subject to further appeal, in such
Prospectus and such Prospectus was required by law to be delivered at or prior
to the written confirmation of sale to such person. This indemnity agreement
will be in addition to any liability which the Company may otherwise have
including under this Agreement.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, each of the directors of the Company, each of the
officers of the Company who shall have signed the Registration Statement, and
each other person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, against any
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, as originally filed or any amendment thereof, or any
related Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through you expressly for use therein. The parties
agree that such information provided by or on behalf of any Underwriter through
you consists solely of the material referred
19
to in the last sentence of Section 1(b) hereof. This indemnity agreement will be
in addition to any liability which any Underwriter may otherwise have including
under this Agreement.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of any claims or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the claim or the commencement
thereof (but the failure so to notify an indemnifying party shall not relieve it
from any liability which it may have under this Section 7 to the extent that it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability that such indemnifying party may have otherwise
than on account of the indemnity agreement hereunder). In case any such claim or
action is brought against any indemnified party, and it notifies an indemnifying
party of the commencement thereof, the indemnifying party will be entitled to
participate at its own expense in the defense of such action, and to the extent
it may elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel satisfactory to such indemnified party; provided,
however, that such counsel to the indemnifying party shall not (except with the
written consent of the indemnified party) also be counsel to the indemnified
party. Notwithstanding the foregoing, the indemnified party or parties shall
have the right to employ its or their own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
or parties unless (i) the employment of such counsel shall have been authorized
in writing by one of the indemnifying parties in connection with the defense of
such action, (ii) the indemnifying parties shall not have employed counsel to
have charge of the defense of such action within a reasonable time after notice
of commencement of the action or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
action in respect of which the indemnified party is or reasonably could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless (x) such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or reasonably could have been the subject matter of
such action and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of the indemnified party
and (y) the indemnifying party confirms in writing its indemnification
obligations hereunder with respect to such settlement, compromise or judgment.
8. Contribution. In order to provide for contribution in circumstances
in which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company and the Underwriters shall
contribute to the aggregate losses, claims, damages, liabilities and expenses of
the nature contemplated by such indemnification provision (including any
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the
20
case of losses, claims, damages, liabilities and expenses suffered by the
Company, any contribution received by the Company from persons, other than the
Underwriters, who may also be liable for contribution, including persons who
control the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, officers of the Company who signed the
Registration Statement and directors of the Company) as incurred to which the
Company and one or more of the Underwriters may be subject, in such proportions
as is appropriate to reflect the relative benefits received by the Company, on
the one hand, and the Underwriters, on the other hand, from the offering of the
Shares or, if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to above but also the relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company, on the one hand, and the Underwriters, on the other hand, shall
be deemed to be in the same proportion as (x) the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and (y) the underwriting discount received by
the Underwriters, respectively, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company, on the one
hand, and of 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, on the one hand, or the
Underwriters, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8 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 which does not take account of the
equitable considerations referred to above in this Section 8. Notwithstanding
the provisions of this Section 8, (i) no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares are underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Underwriter, and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to clauses
(i) and (ii) of the immediately preceding sentence. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties, notify each party or
parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section 8 or
otherwise. The obligations of the Underwriters to contribute
21
pursuant to this Section 8 are several in proportion to the respective number of
Shares purchased by each of the Underwriters hereunder and not joint.
9. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or their
obligation to purchase Firm Shares or Additional Shares hereunder, and if the
Firm Shares or Additional Shares with respect to which such default relates do
not (after giving effect to arrangements, if any, made by you pursuant to
subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares
or Additional Shares, the Firm Shares or Additional Shares to which the default
relates shall be purchased by the non-defaulting Underwriters in proportion to
the respective proportions which the numbers of Firm Shares set forth opposite
their respective names in Schedule I hereto bear to the aggregate number of Firm
Shares set forth opposite the names of the non-defaulting Underwriters.
(b) In the event that such default relates to more than 10% of the Firm
Shares or Additional Shares, as the case may be, you may in your discretion
arrange for yourself or for another party or parties (including any
non-defaulting Underwriter or Underwriters who so agree) to purchase such Firm
Shares or Additional Shares, as the case may be, to which such default relates
on the terms contained herein. In the event that within 5 calendar days after
such a default you do not arrange for the purchase of the Firm Shares or
Additional Shares, as the case may be, to which such default relates as provided
in this Section 9, this Agreement or, in the case of a default with respect to
the Additional Shares, the obligations of the Underwriters to purchase and of
the Company to sell the Additional Shares shall thereupon terminate, without
liability on the part of the Company with respect thereto (except in each case
as provided in Section 5, 7(a) and 8 hereof) or the Underwriters, but nothing in
this Agreement shall relieve a defaulting Underwriter or Underwriters of its or
their liability, if any, to the other Underwriters and the Company for damages
occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Additional Shares to which the
default relates are to be purchased by the non-defaulting Underwriters, or are
to be purchased by another party or parties as aforesaid, you or the Company
shall have the right to postpone the Closing Date or Additional Closing Date, as
the case may be for a period, not exceeding five business days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus or in any other documents and arrangements, and the
Company agrees to file promptly any amendment or supplement to the Registration
Statement or the Prospectus which, in the opinion of Underwriters' Counsel, may
thereby be made necessary or advisable. The term "Underwriter" as used in this
Agreement shall include any party substituted under this Section 9 with like
effect as if it had originally been a party to this Agreement with respect to
such Firm Shares and Additional Shares.
10. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Underwriters, the Company and the
Partnerships contained in this Agreement, including the agreements contained in
Section 5, the indemnity agreements contained in Section 7 and the contribution
agreements contained in Section 8, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any Underwriter
or any controlling person thereof or by or on behalf of the Company or the
22
Partnerships, any of their respective officers, directors, partners or members
or any controlling person thereof, and shall survive delivery of and payment for
the Shares to and by the Underwriters. The representations contained in Section
1 and the agreements contained in Sections 5, 7, 8, 10 and 11(d) hereof shall
survive the termination of this Agreement, including termination pursuant to
Section 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the execution of this
Agreement.
(b) You shall have the right to terminate this Agreement at any time
prior to the Closing Date or the obligations of the Underwriters to purchase the
Additional Shares at any time prior to the Additional Closing Date, as the case
may be, if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the Prospectus,
(A) any material adverse change in the condition, financial or otherwise, or in
the earnings business affairs or business prospects of the Company; or (B) any
domestic or international event or act or occurrence has materially disrupted,
or in your opinion will in the immediate future materially disrupt, the market
for the Company's securities or securities in general; or (C) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the NYSE, or if trading on the NYSE shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by the NYSE or by order of
the Commission or any other governmental authority having jurisdiction; or (D)
if a banking moratorium has been declared by any state or federal authority or
if any new restriction materially adversely affecting the distribution of the
Firm Shares or the Additional Shares, as the case may be, shall have become
effective or if a material disruption in commercial banking or securities
settlement or clearance services shall have occurred; or (E) (i) there has
occurred any outbreak or escalation of hostilities or acts of terrorism
involving the United States or there is a declaration of a national emergency or
war by the United States or (ii) there shall have been any other such calamity
or crisis or any change in political, financial or economic conditions, if the
effect of any such event in (i) or (ii) as in your judgment makes it
impracticable or inadvisable to proceed with the offering, sale and delivery of
the Firm Shares or the Additional Shares, as the case may be, on the terms and
in the manner contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 11 shall be in
writing.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to Section 9(b) or Section 11(b)(B),
(C), (D) or (E) hereof), or if the sale of the Shares provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth herein is not satisfied or because of any refusal, inability or failure on
the part of the Company or the Partnerships to perform any agreement herein or
comply with any provision hereof, the Company will, subject to demand by you,
reimburse the Underwriters for all out-of-pocket expenses (including the fees
and expenses of their counsel) incurred by the Underwriters in connection
herewith.
12. Notices. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing, and:
23
(a) if sent to any Underwriter, shall be mailed, delivered, or faxed and
confirmed in writing, to such Underwriter c/o Bear, Xxxxxxx & Co. Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Capital Markets,
with a copy to Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx X. Xxxxx;
(b) if sent to the Company or the Partnerships, shall be mailed,
delivered, or faxed and confirmed in writing to such party c/o Lexington
Corporate Properties Trust, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxxx, with a copy to Paul, Hastings, Xxxxxxxx & Xxxxxx
LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxxxxxx;
provided, however, that any notice to an Underwriter pursuant to Section 7 shall
be delivered or sent by mail or facsimile transmission to such Underwriter at
its address set forth in its acceptance facsimile to you, which address will be
supplied to any other party hereto by you upon request. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof.
13. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Underwriters, the Company and the Partnerships and
the controlling persons, directors, officers, employees and agents referred to
in Section 7 and 8, and their respective successors and assigns, and no other
person shall have or be construed to have any legal or equitable right, remedy
or claim under or in respect of or by virtue of this Agreement or any provision
herein contained. The term "successors and assigns" shall not include a
purchaser, in its capacity as such, of Shares from any of the Underwriters.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, but without regard to
principles of conflicts of law.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
16. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
17. Time is of the Essence. Time shall be of the essence of this
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
[signature pages follow]
24
If the foregoing correctly sets forth the understanding between you, on
the one hand, and the Company and the Partnerships, on the other hand, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among us. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination, upon request, but
without warranty on your part as to the authority of the signers thereof.
Very truly yours,
LEXINGTON CORPORATE PROPERTIES TRUST
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
LEPERCQ CORPORATE INCOME FUND, L.P.
By: Lex GP-1 Trust, General Partner
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President and Assistant Secretary
LEPERCQ CORPORATE INCOME FUND II, L.P.
By: Lex GP-1 Trust, General Partner
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President and Assistant Secretary
NET 3 ACQUISITION, L.P.
By: Lex GP-1 Trust, General Partner
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President and Assistant Secretary
Accepted as of the date first above written
BEAR, XXXXXXX & CO. INC.
By: Bear, Xxxxxxx & Co. Inc.
By: /s/ Xxxxx X'Xxxxxx
-----------------------------
Name: Xxxxx X'Xxxxxx
Title: Managing Director
On behalf of themselves and the other Underwriters named in Schedule I hereto.
SCHEDULE I
Number of Additional
Total Number of Firm Shares to be Purchased if
Name of Underwriter Shares to be Purchased Maximum Option Exercised
----------------------------------- ---------------------------- -------------------------------
Bear, Xxxxxxx & Co. Inc. .......... 962,500 143,500
X.X. Xxxxxxx & Sons, Inc. ......... 962,500 143,500
Xxxxxxx Xxxxx & Associates, 385,000 57,400
Inc. ..............................
Friedman, Billings, Xxxxxx & Co., 110,000 16,400
Inc. ..............................
Advest, Inc. ...................... 110,000 16,400
BB&T Capital Markets............... 110,000 16,400
Xxxxxx, Xxxxx Xxxxx Incorporated... 110,000 16,400
Total.............................. 2,750,000 410,000
============================ ===============================
ANNEX I
-------
Form of Opinion of Counsel to be delivered pursuant to Section 6(c)
1. Each of the Partnerships and the Subsidiaries has been duly
incorporated, organized or formed and is validly existing as a
corporation, trust, limited liability company or partnership, as
applicable, in good standing under the laws of the jurisdiction in which
it is incorporated, organized or formed. Except to the extent that the
failure to so qualify or to be in good standing, singly or collectively,
would not have a Material Adverse Effect, each of the Company, the
Partnerships and the Subsidiaries is duly qualified and in good standing
as a foreign entity in each jurisdiction where the ownership or lease of
its assets and properties or the conduct of its business requires such
qualification.
2. Each of the Partnerships and the Subsidiaries has all
requisite corporate, limited liability company or partnership power and
authority to own and lease its assets and properties and conduct its
business as now being conducted and as described in the Registration
Statement and, with respect to the Partnerships, to enter into, deliver
and perform the Underwriting Agreement. A subsidiary of the Company, of
which 100% of the outstanding units are owned by the Company, is the
sole general partner of each Partnership.
3. The capital shares of the Company conform in all respects to
the descriptions thereof contained in the Prospectus, which descriptions
meet the requirements of Item 9 of Form S-3 under the Act. Other than
statutory rights which may exist or arise under the laws of the State of
Maryland (with respect to which we make no statement), the holders of
outstanding shares of capital stock of the Company are not entitled to
any statutory or, to the best of our knowledge, contractual preemptive
or other rights to subscribe for the Offered Shares. Except as set forth
in the Prospectus, to the best of our knowledge, no options, warrants or
other rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities for,
shares of capital stock of or ownership interests in the Company are
outstanding. To the best of our knowledge, no person or entity has a
right to participate in the registration under the Act of the Offered
Shares pursuant to the Registration Statement.
4. All of the outstanding equity interests of each Subsidiary
have been duly and validly authorized and issued and are fully paid and
nonassessable, were not issued and are not owned or held in violation of
any preemptive rights, and, except as otherwise set forth on Schedule I
to the Company Secretary's Certificate, all outstanding equity interests
of the Subsidiaries are owned of record by the Company either directly
or through Subsidiaries and, to the best of our knowledge, free of any
security interest, claim, lien or encumbrance. To the best of our
knowledge, the units of limited partnership interest in the Partnerships
have been issued, offered and sold in compliance with all applicable
laws, including, without limitation, federal and state securities laws.
A-1
5. The Underwriting Agreement has been duly and validly
authorized, executed and delivered by the Partnerships and constitutes
the legal, valid and binding obligation of each Partnership enforceable
against each Partnership in accordance with its terms.
6. None of the issuance, sale and delivery of the Offered Shares
by the Company, the execution, delivery and performance of the
Underwriting Agreement by the Company or the Partnerships, the
consummation by the Company or the Partnerships of any other of the
transactions contemplated by the Underwriting Agreement, or the
fulfillment of the terms thereof by the Company or the Partnerships will
conflict with or, result in a breach or violation of (A) the charter,
by-laws, partnership agreement, operating agreement, limited liability
company certificate or certificate of limited partnership of any
Subsidiary; (B) to the best of our knowledge, the terms of any material
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other material agreement, obligation, condition,
covenant or instrument to which the Company or any of the Subsidiaries
is a party or bound or to which its or their property is subject; or (C)
any statute, law, rule, regulation, judgment, order or decree applicable
to the Company or the Subsidiaries (other than as may arise under the
laws of the State of Maryland, with respect to which we make no
statement) of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company or the Subsidiaries or any of its or their properties,
or, to the best of our knowledge, result in the creation or imposition
of any lien, charge, claim or encumbrance upon any property or asset of
the Company or any Subsidiary.
7. No consent, approval, authorization, order, license,
certificate, permit, registration, designation or filing is required for
the execution, delivery and performance of the Underwriting Agreement by
the Company (other than as may arise under the laws of the State of
Maryland, with respect to which we make no statement) or the
Partnerships or the consummation of the transactions contemplated
thereby, except such as have been obtained under the Act and such as may
be required under state or foreign blue sky laws in connection with the
purchase and distribution of the Offered Shares by the Underwriters in
the manner contemplated in the Underwriting Agreement and in the
Prospectus.
8. To the best of our knowledge, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its Subsidiaries or its or their property which,
individually or in the aggregate, might have a Material Adverse Effect,
or might materially and adversely affect the consummation of the
Underwriting Agreement or which are required to be disclosed in the
Registration Statement or the Prospectus that are not so disclosed, and
there is no contract, lease or other document, or statute, rule or
regulation, of a character required to be described in the Registration
Statement or the Prospectus, or to be filed as an exhibit thereto, which
is not described or filed as required. The statements included or
incorporated by reference in the Prospectus under the headings "Federal
Income Tax Considerations", "Description of Debt Securities",
"Description of Preferred Shares", "Description of Common Shares",
"Restrictions on Transfers of Capital Shares and Anti-Takeover
Provisions" and "Risk Factors" (other
A-2
than relating to matters of Maryland law or to the Declaration of Trust,
with respect to which we make no statement) insofar as such statements
constitute summaries of the legal matters, documents or proceedings
referred to therein, have been reviewed by us and are correct in all
material respects and the discussion thereunder does not omit any
material provisions with respect to the matters covered and fairly
presents the information called for with respect to such legal matters,
documents and proceedings and fairly summarizes the matters therein
described.
9. The Registration Statement has become effective under the
Act. Any required filing of the Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b). To the best of our knowledge (based upon
oral advice from the SEC), no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened. To the best of our
knowledge, the Registration Statement and the Prospectus (other than the
financial statements, notes and supporting schedules thereto and other
financial and statistical information contained therein, as to which we
make no statement) comply as to form in all material respects with the
applicable requirements of the Act and the rules thereunder. The
documents incorporated by reference in the Registration Statement or the
Prospectus (other than the financial statements, notes and supporting
schedules thereto and other financial and statistical information
contained therein, as to which we make no statement), at the time they
became effective or were filed, complied as to form in all material
respects with the Exchange Act and the rules and regulations thereunder.
10. The Offered Shares have been listed and admitted and
authorized for trading on the New York Stock Exchange, subject to notice
of issuance.
11. The Company is not, and after giving effect to the offering
and sale of the Offered Shares and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act.
We have participated in conferences with officers and other
representatives of the Company, representatives of the Underwriters and
representatives of the independent certified public accountants of the Company
(collectively, the "Conferences"), at which Conferences the contents of the
Registration Statement, the Prospectus and related matters were discussed. We
are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except as specified in the foregoing opinions).
However, on the basis of the Conferences, no facts have come to our attention
which lead us to believe that (i) the Registration Statement (including any
documents incorporated by reference therein), at the time it became effective
and on the Closing Date (except with respect to the financial statements, notes
and supporting schedules thereto and other financial and statistical information
contained therein, as to which we make no statement, and after giving effect to
any changes incorporated pursuant to Section 430A under the Act), contained any
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 (ii) that the Prospectus(including any documents incorporated by reference
therein), as amended or
A-3
supplemented (except with respect to the financial statements, notes and
supporting schedules thereto and other financial and statistical information
contained therein, as to which we make no statement), on the date thereof and on
the Closing Date, contained any untrue statement of a material fact or omitted
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.
A-4
ANNEX II
--------
Form of Opinion of Counsel to be delivered pursuant to Section 6(e)
Commencing with its taxable year ended December 31, 1998, the Company
has been organized and has operated in conformity with the requirements for
qualification as a real estate investment trust pursuant to Sections 856 through
860 of the Code, and the Company's current and proposed method of operation will
enable it to continue to meet the requirements for qualification and taxation as
a real estate investment trust under the Code.
A-5
