8,000,000 SHARES
ARDEN REALTY, INC.
(A MARYLAND CORPORATION)
COMMON STOCK, $.01 PAR VALUE PER SHARE
UNDERWRITING AGREEMENT
July ___, 1997
XXXXXX BROTHERS INC.
ALEX. XXXXX & SONS INCORPORATED
XXXX XXXXXX XXXXXXXX INC.
X.X. XXXXXXX & SONS, INC.
XXXXX XXXXXX INC.
EVEREN SECURITIES, INC.
[XXXX XXXXX XXXX XXXXXX INCORPORATED]
[XXXXXXX XXXXX & ASSOCIATES, INC.]
As Representatives of the several
Underwriters named in Schedule 1,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Arden Realty, Inc., a Maryland corporation (the "Company"), proposes to
sell 8,000,000 shares (the "Firm Stock") of the Company's Common Stock (the
"Common Stock") par value $.01 per share. In addition, the Company proposes
to grant to the Underwriters named in Schedule 1 hereto (the "Underwriters")
an option to purchase up to an additional 1,200,000 shares of the Common
Stock on the terms and for the purposes set forth in Section 2 (the "Option
Stock"). The Firm Stock and the Option Stock, if purchased, are hereinafter
collectively called the "Stock." This is to confirm the agreement concerning
the purchase of the Stock from the Company by the Underwriters.
As used in this Agreement, "Operating Partnership" shall mean Arden
Realty Limited Partnership, a Maryland limited partnership; "Effective Time"
shall mean the date and the time as of which the registration statement, or
the most recent post-effective amendment thereto, if any, was declared
effective by the Securities and Exchange Commission (the "Commission");
"Effective Date" shall mean the date of the Effective Time; "Preliminary
Prospectus" shall mean each prospectus included in such registration
statement, or amendments thereof, before it became effective under the
Securities Act of 1933, as amended (the "Securities Act"), and any prospectus
filed with the Commission by the Company with the consent of the
representatives ("Representatives") pursuant to Rule 424(a) of the rules and
regulations of the Commission thereunder (the "Rules and Regulations");
"Registration Statement" shall mean such registration statement, as amended
at the Effective Time, including all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations in accordance with Section 6(a) hereof and deemed to be a part of
the registration statement as of the Effective Time pursuant to paragraph (b)
of Rule 430A of the Rules and Regulations; and "Prospectus" shall mean such
final prospectus, as first filed with the Commission pursuant to paragraph
(1) or (4) of Rule 424(b) of the Rules and Regulations. Any registration
statement (including any amendment or supplement thereto or information which
is deemed part thereof) filed by the Company to register additional shares of
Common Stock of the Company under rule 462(b) of the Rules and Regulations
("Rule 462(b) Registration Statement") shall be deemed a part of the
Registration Statement. Any prospectus (including any amendment or supplement
thereto or information which is deemed to be a part thereof) included in a
Rule 462(b) Registration Statement and any term sheet as contemplated by Rule
434 of the Rules and Regulations (a "Term Sheet") shall be deemed to be part
of the Prospectus.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND THE
OPERATING PARTNERSHIP. The Company and the Operating Partnership, jointly and
severally, represent, warrant and agree as follows:
(a) A registration statement on Form S-11 (File No. 333-______)
and certain amendments thereto, with respect to the Stock has (i) been
prepared by the Company in conformity with the requirements of the
Securities Act and the Rules and Regulations of the Commission, (ii)
been filed with the Commission under the Securities Act and (iii)
become effective under the Securities Act. Copies of such
registration statement and each amendment thereto have been delivered
by the Company to you as the Representatives of the Underwriters. The
Commission has not issued any order preventing or suspending the use
of any Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all material respects to
the requirements of the Securities Act and the Rules and Regulations
and do not and will not, as of the applicable effective date (as to
the Registration Statement and any amendment thereto) 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, and as of the applicable filing date (as to
the Prospectus and any amendment or supplement thereto) 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
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therein, in light of the circumstances under which they were made, not
misleading; PROVIDED that no representation or warranty is made as to
information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or
on behalf of any Underwriter concerning such Underwriter specifically
for inclusion therein.
(c) The Company is a corporation duly incorporated and existing
under and by virtue of the laws of the State of Maryland and is in
good standing with the State Department of Assessments and Taxation of
Maryland (the "SDAT") with corporate power to own, lease and operate
its properties, to conduct the business in which it is engaged or
proposes to engage as described in the Prospectus and to enter into
and perform its obligations under this Agreement to which it is a
party. The Company is duly qualified or registered as a foreign
corporation and is in good standing in California and is in good
standing in each other jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or be registered or to be in good standing in
such other jurisdiction would not result in a material adverse effect
on the consolidated financial position, results of operations,
business or prospects of the Company, the Operating Partnership and
their subsidiaries taken as a whole (a "Material Adverse Effect").
(d) The Operating Partnership is a limited partnership duly
formed and existing under and by virtue of the laws of the State of
Maryland and is in good standing with the SDAT with partnership power
to own, lease and operate its properties, to conduct the business in
which it is engaged or proposes to engage as described in the
Prospectus and to enter into and perform its obligations under this
Agreement. The Operating Partnership is duly qualified or registered
as a foreign partnership and is in good standing in California and is
in good standing in each other jurisdiction in which such
qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or be registered or to be in good
standing in such other jurisdiction would not result in a Material
Adverse Effect. The Company is the sole general partner of the
Operating Partnership and, immediately after the First Delivery Date
will be the sole general partner of the Operating Partnership and will
own approximately _____% of all outstanding partnership interests in
the Operating Partnership.
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(e) Each of the subsidiaries (as defined in Section 15) of the
Company and/or the Operating Partnership has been duly organized and
is a validly existing corporation or limited partnership, as the case
may be, in good standing in California and is in good standing in each
other jurisdiction in which qualification or registration is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or be
registered or to be in good standing in such other jurisdiction would
not result in a Material Adverse Effect; each subsidiary has all power
and authority necessary to own or hold its respective properties and
to conduct the businesses in which it is engaged; and none of the
subsidiaries (other than the Operating Partnership and Arden Realty
Finance, L.P.) is a "significant subsidiary," as such term is defined
in Rule 405 of the Rules and Regulations.
(f) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform in all material respects to the description
thereof contained in the Prospectus; all of the issued partnership
interests of the Operating Partnership (the "Partnership Interests")
have been duly and validly authorized and issued and are fully paid
and, with respect to the Partnership Interests owned by the Company
are owned directly by the Company, free and clear of all liens,
encumbrances, equities or claims; and all of the issued shares of
capital stock or partnership interests, as the case may be, of each
subsidiary of the Company or the Operating Partnership have been duly
and validly authorized and issued and are fully paid and non-
assessable (solely with respect to corporate subsidiaries) and are
owned directly or indirectly by the Company or the Operating
Partnership, free and clear of all liens, encumbrances equities or
claims.
(g) The shares of the Stock to be issued and sold by the Company
to the Underwriters hereunder have been duly and validly authorized
and, when issued and delivered against payment therefor as provided
herein will be duly and validly issued, fully paid and non-assessable;
and the Stock will conform in all material respects to the description
thereof contained in the Prospectus.
(h) The limited Partnership Interests in the Operating
Partnership (the "Units") to be issued to the Company have been duly
authorized for issuance by the Operating Partnership and at each
Delivery Date will be validly issued and fully paid. Immediately
after the First Delivery Date, ________ Units will be issued and
outstanding. All outstanding Units have been offered and sold in
compliance with
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all applicable laws (including, without limitation, federal and
state securities laws).
(i) None of the Company, the Operating Partnership or any
subsidiary is in violation of its charter, by-laws, certificate of
limited partnership, articles of organization, operating agreement or
partnership agreement, as the case may be, and none of the Company,
the Operating Partnership or any of their subsidiaries is in default
in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which such entity
is a party or by which such entity may be bound, or to which any of
the property or assets of such entity is subject, except for such
defaults that would not have a Material Adverse Effect.
(j) This Agreement has been duly authorized, executed and
delivered by the Company and the Operating Partnership.
(k) The execution, delivery and performance of this Agreement by
the Company and the Operating Partnership and the consummation of the
transactions contemplated hereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company,
the Operating Partnership or any of their subsidiaries is a party or
by which the Company, the Operating Partnership or any of their
subsidiaries is bound or to which any of the property or assets of the
Company, the Operating Partnership or any of their subsidiaries is
subject (except for such conflicts, breaches, violations or defaults
that, individually or in the aggregate, would not have a Material
Adverse Effect); nor will such actions result in any violation of the
provisions of the charter, by-laws or partnership agreement of the
Company, the Operating Partnership or any of their subsidiaries or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, the Operating
Partnership or any of their subsidiaries or any of the properties,
assets or business owned by them; and except for (a) the registration
of the Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and applicable state and foreign securities laws in connection
with the purchase and distribution of the Stock by the Underwriters,
(b) consents, approvals, authorizations, orders, filings or
registrations that will be completed on or prior to the Closing Date
and (c) such consents, approvals, authorizations, orders, filings or
registrations, the absence of which, individually or in the aggregate
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would not have a Material Adverse Effect, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body or any other person is required
for the execution, delivery and performance of this Agreement by the
Company and the Operating Partnership and the consummation of the
transactions contemplated hereby.
(l) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Securities Act.
(m) Except as set forth in the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any unissued shares of the
Stock to be issued and sold by the Company to the Underwriters
hereunder pursuant to the Company's charter or by-laws or any
agreement or other instrument.
(n) Except as described in the Prospectus, the Company has not
sold or issued any shares of Common Stock during the six-month period
preceding the date of the Prospectus, including any sales pursuant to
Rule 144A under, or Regulations D or S of, the Securities Act, other
than shares issued pursuant to employee benefit plans, qualified stock
option plans or other employee compensation plans or pursuant to
outstanding options, warrants or rights.
(o) Since the date of the latest audited financial statements
included in the Prospectus and except as disclosed in the Prospectus,
(i) there has been no material adverse change in the financial
condition, results of operation or business of the Company, the
Operating Partnership or any of their subsidiaries, whether or not
arising in the ordinary course of business, (ii) no material casualty
loss or material condemnation or other material adverse event with
respect to any business or property of the Company, the Operating
Partnership or any of their subsidiaries has occurred, (iii) there
have been no transactions or acquisitions entered into by the Company
or the Operating Partnership other than those in the ordinary course
of business, which are material with respect to such entity,
(iv) there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its stock or by the
Operating Partnership
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with respect to its Partnership Interests and (v) there has been no
change in the stock of the Company or the Partnership Interests of
the Operating Partnership, or any increase in the indebtedness of
the Company, the Operating Partnership or any of their subsidiaries.
(p) The financial statements and pro forma financial information
(including all necessary pro forma adjustments and including the
related notes and supporting schedules) filed as part of the
Registration Statement or included in the Prospectus present fairly
the financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved and all adjustments necessary for a
fair presentation of results for such periods have been made. The
financial information set forth in the Prospectus presents fairly the
information shown therein and has been prepared on an accounting basis
consistent with such financial statements and the books and records of
the respective entities presented therein. The pro forma financial
statements and other information included in the Prospectus have been
prepared in accordance with the applicable requirements of Rules 11-01
and 11-02 of Regulation S-X under the Securities Act, and the
necessary pro forma adjustments have been properly applied to the
historical amounts in the compilation of such information. Other than
the historical and pro forma financial statements (and schedules)
included therein, no other historical or pro forma financial
statements (or schedules) are required by the Securities Act or the
Rules and Regulations to be included in the Registration Statement.
(q) Ernst & Young LLP, who have certified certain financial
statements included in the Registration Statement, whose report
appears in the Prospectus and who have delivered the initial letter
referred to in Section 7(f) hereof, are independent public accountants
as required by the Securities Act and the Rules and Regulations during
the periods covered by the financial statements on which they reported
contained in the Prospectus.
(r) (i) The Company, the Operating Partnership and their
subsidiaries have good and marketable title in fee simple to all real
property and good title to all personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not materially
affect the value of such property and do not materially interfere with
the use made and proposed to be made of such property by the Company,
the Operating Partnership and their subsidiaries (except for such real
property, buildings and personal property as are described in
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subparagraph (ii) below); and (ii) all real property, buildings and
personal property held under lease by the Company, the Operating
Partnership and their subsidiaries are held by them under valid,
existing and enforceable leases in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus, and such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such
property and buildings by the Company, the Operating Partnership and
their subsidiaries.
(s) Except as described in the Prospectus, the Company, the
Operating Partnership and their subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their
respective properties and as is customary for companies engaged in
similar businesses in similar industries.
(t) The Company, the Operating Partnership and their
subsidiaries own, possess or can acquire on reasonable terms, adequate
rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service xxxx
registrations, copyrights and licenses necessary for the conduct of
their respective businesses 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 rights
of others, which conflict (if the subject of any unfavorable decision,
ruling or finding) would result in a Material Adverse Effect.
(u) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which the Company, the Operating
Partnership, or any of their subsidiaries is a party or of which any
property or assets of the Company, the Operating Partnership or any of
their subsidiaries is the subject which, if determined adversely to
the Company, the Operating Partnership or any of their subsidiaries,
would have a Material Adverse Effect; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(v) The Company is organized in conformity with the requirements
for qualification as a real estate investment trust under the Internal
Revenue Code of 1986, as amended (the "Code"), and its proposed method
of operation will enable it to meet the requirements for taxation as a
real estate investment trust under the Code for its taxable periods
beginning or otherwise including the period after the Effective Date.
All statements in the Prospectus regarding the
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Company's qualification as a REIT are true, complete and correct in
all material respects.
(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 which have not been described in the Prospectus or filed
as exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations.
(x) No relationship, direct or indirect, exists between or among
the Company, the Operating Partnership or any of their subsidiaries on
the one hand, and the directors, officers, stockholders, limited
partners, customers or suppliers of any of such entities on the other
hand, which is required to be described in the Prospectus which is not
so described.
(y) There is (i) no material unfair labor practice complaint
pending against the Company, the Operating Partnership or any of their
subsidiaries nor, to the best knowledge of the Company, threatened
against any of them before the National Labor Relations Board or any
state or local labor relations board, and no significant grievance or
significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Company, the
Operating Partnership or any of their subsidiaries or, to the best
knowledge of the Company, threatened against any of them, (ii) no
material strike, labor dispute, slowdown or stoppage pending against
the Company, the Operating Partnership or any of their subsidiaries
nor, to the best knowledge of the Company, threatened against the
Company, the Operating Partnership or any of their subsidiaries which
in any case would have a Material Adverse Effect.
(z) The Company, the Operating Partnership and their
subsidiaries are in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company, the Operating Partnership
or any of their subsidiaries would have any liability; the Company,
the Operating Partnership or any of their subsidiaries has not
incurred and does not expect to incur liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any "pension
plan" or (ii) Sections 412 or 4971 of the Code including the
regulations and published interpretations thereunder; and each
"pension plan" for which the Company, the Operating Partnership or
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any of their subsidiaries would have any liability that is intended to
be qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification,
except for such noncompliance, reportable events, liabilities, or
failures to qualify that would not result in a Material Adverse
Effect.
(aa) The Company, the Operating Partnership and their
subsidiaries have filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof and
have paid all taxes due thereon, and no tax deficiency has been
determined adversely to the Company, the Operating Partnership or any
of their subsidiaries which has had (nor does the Company have any
knowledge of any tax deficiency which, individually or in the
aggregate, if determined adversely to the Company, the Operating
Partnership or any of their subsidiaries would have) a Material
Adverse Effect.
(ab) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company, the Operating Partnership
and their subsidiaries have not (i) issued or granted any securities,
(ii) incurred any material liability or obligation, direct or
contingent, other than liabilities and obligations which were incurred
in the ordinary course of business, (iii) entered into any transaction
not in the ordinary course of business which is material to the
Company, the Operating Partnership and their subsidiaries, taken as a
whole or (iv) declared or paid any dividend on their stock.
(ac) The Company, the Operating Partnership and their
subsidiaries (i) make and keep books and records which are accurate in
all material respects and (ii) maintain internal accounting controls
which provide reasonable assurance that (A) transactions are executed
in accordance with management's authorization, (B) transactions are
recorded as necessary to permit preparation of their financial
statements and to maintain accountability for their assets, (C) access
to their assets is permitted only in accordance with management's
authorization and (D) the reported accountability for their assets is
compared with existing assets at reasonable intervals.
(ad) None of the Company, the Operating Partnership or any of
their subsidiaries is (i) in violation of its charter, partnership
agreement, by-laws or other similar documents, (ii) in default in any
material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
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contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party
or by which it is bound or to which any of its properties or assets
is subject or (iii) in violation in any material respect of any
law, ordinance, governmental rule, permit, license, regulation or
court decree to which it or its property or assets may be subject
or has failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary
to the ownership of its property or to the conduct of its business.
(ae) None of the Company, the Operating Partnership or any
of their subsidiaries, nor any director, officer, agent, employee
or other person associated with or acting on behalf of the Company,
the Operating Partnership or any of their subsidiaries, has used any
corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; made any
direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; violated or
is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(af) Except as disclosed in the Prospectus, there has been no
storage, disposal, generation, manufacture, refinement,
transportation, handling or treatment of toxic wastes, medical wastes,
hazardous wastes or hazardous substances by the Company, the Operating
Partnership or any of their subsidiaries (or, to the knowledge of the
Company, any of their predecessors in interest or any other person)
at, upon or from any of the property now or previously owned or leased
by the Company, the Operating Partnership or any of their subsidiaries
in violation of any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit or which would require any removal,
remedial or other response action under any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit, except for any
violation or response action which would not have singularly or in the
aggregate with all such violations and response actions, a Material
Adverse Effect; there also has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous substances
by the Company, the Operating Partnership or any of their subsidiaries
(or, to the knowledge of the Company, any of their predecessors in
interest) at or upon any property owned by anyone else in violation of
any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit or which would require any removal, remedial or other
response action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any
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violation or response action which would not have singularly or in the
aggregate with all such violations and response actions, a Material
Adverse Effect; there has been no material spill, discharge, leak,
emission, injection, escape, placement, dumping or release of any
kind onto such property or into the environment surrounding such
property of any toxic wastes, medical wastes, solid wastes,
hazardous wastes or hazardous substances due to or caused by the
Company, the Operating Partnership or any of their subsidiaries or
with respect to which the Company, the Operating Partnership, or
any of their subsidiaries have knowledge, except for any such
spill, discharge, leak, emission, injection, escape, placement,
dumping or release which would not have singularly or in the
aggregate with all such spills, discharges, leaks, emissions,
injections, escapes, placements, dumpings and releases, a Material
Adverse Effect; and the terms "hazardous wastes," "toxic wastes,"
"hazardous substances" and "medical wastes" shall have the meanings
specified in any applicable local, state, federal and foreign laws
or regulations with respect to environmental protection. There are
no underground storage tanks located on or in any of the properties
owned or leased by the Company, the Operating Partnership or any of
their subsidiaries except such tanks, individually or in the
aggregate, the existence of which would not have a Material Adverse
Effect.
(ag) None of the Company, the Operating Partnership or any of
their subsidiaries is an "investment company" within the meaning of
such term under the Investment Company Act of 1940, as amended, and
the rules and regulations of the Commission thereunder.
(ah) The Stock has been approved for listing on the New York
Stock Exchange subject to official notice of issuance.
(ai) None of the Company, the Operating Partnership or any of
their subsidiaries, or any of their directors, officers or controlling
persons, has taken or will take, directly or indirectly, any action
resulting in a violation of Regulation M under the Exchange Act, or
designed to cause or result in, or that has constituted or that
reasonably might be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Stock.
(aj) Except as described in the Prospectus, the Operating
Partnership is not currently prohibited, directly or indirectly, from
paying any dividends or distributions to the Company to the extent
permitted by applicable law, from making any other distribution on the
Operating Partnership's partnership interests, from repaying to the
Company any loans or advances to the Operating Partnership from
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the Company or from transferring any of the Operating Partnership's
property or assets to the Company.
(ak) The Company, the Operating Partnership and their
subsidiaries are currently in substantial compliance with all
presently applicable provisions of the Americans with Disabilities Act
and no failure of the Company, the Operating Partnership or any of
their subsidiaries to comply with all presently applicable provisions
of the Americans with Disabilities Act, individually or in the
aggregate, would result in a Material Adverse Effect.
2. PURCHASE OF THE STOCK BY THE UNDERWRITERS. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 8,000,000 shares of
the Firm Stock to the several Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase the number of shares of the Firm
Stock set forth opposite that Underwriter's name in Schedule 1 hereto. The
respective purchase obligations of the Underwriters with respect to the Firm
Stock shall be rounded among the Underwriters to avoid fractional shares, as the
Representatives may determine.
In addition, the Company grants to the Underwriters an option to
purchase up to 1,200,000 shares of Option Stock. Such option is granted solely
for the purpose of covering over-allotments in the sale of Firm Stock and is
exercisable as provided in Section 4 hereof. Shares of Option Stock shall be
purchased severally for the account of the Underwriters in proportion to the
number of shares of Firm Stock set forth opposite the name of such Underwriters
in Schedule 1 hereto. The respective purchase obligations of each Underwriter
with respect to the Option Stock shall be adjusted by the Representatives so
that no Underwriter shall be obligated to purchase Option Stock other than in
100 share amounts. The price of both the Firm Stock and any Option Stock shall
be $_____ per share.
The Company shall not be obligated to deliver any of the Stock to be
delivered on the First Delivery Date or the Second Delivery Date (as hereinafter
defined), as the case may be, except upon payment for all the Stock to be
purchased on such Delivery Date as provided herein.
3. OFFERING OF STOCK BY THE UNDERWRITERS. Upon authorization by the
Representatives of the release of the Firm Stock, the several Underwriters
propose to offer the Firm Stock for sale upon the terms and conditions set forth
in the Prospectus.
[It is understood that ________ shares of the Firm Stock will
initially be reserved by the several Underwriters for offer and sale upon the
terms and conditions set forth in the Prospectus and in accordance with the
rules and regulations of the National Association of Securities Dealers, Inc. to
employees and
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persons having business relationships with the Company, the Operating
Partnership and their subsidiaries who have heretofore delivered to the
Representatives offers or indications of interest to purchase shares of Firm
Stock in form satisfactory to the Representatives, and that any allocation of
such Firm Stock among such persons will be made in accordance with timely
directions received by the Representatives from the Company; PROVIDED, that
under no circumstances will the Representatives or any Underwriter be liable
to the Company or to any such person for any action taken or omitted in good
faith in connection with such offering to employees and persons having
business relationships with the Company, the Operating Partnership and their
subsidiaries. It is further understood that any shares of such Firm Stock
which are not purchased by such persons will be offered by the Underwriters
to the public upon the terms and conditions set forth in the Prospectus.]
4. DELIVERY OF AND PAYMENT FOR THE STOCK. Delivery of and payment
for the Firm Stock shall be made at the office of Xxxxxx Brothers Inc., Three
World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New York City
time, on the fourth full business day following the date of this Agreement or at
such other date or place as shall be determined by agreement between the
Representatives and the Company. This date and time are sometimes referred to
as the "First Delivery Date." On the First Delivery Date, the Company shall
deliver or cause to be delivered certificates representing the Firm Stock to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by wire transfer of federal same-
day funds to an account or accounts previously designated in writing to Xxxxxx
Brothers Inc. by the Company. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of each Underwriter hereunder. Upon delivery, the Firm Stock
shall be registered in such names and in such denominations as the
Representatives shall request in writing not less than two full business days
prior to the First Delivery Date. For the purpose of expediting the checking
and packaging of the certificates for the Firm Stock, the Company shall make the
certificates representing the Firm Stock available for inspection by the
Representatives in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement, the option granted in Section 2 may be exercised by written notice
being given to the Company by the Representatives. Such notice shall set forth
the aggregate number of shares of Option Stock as to which the option is being
exercised, the names in which the shares of Option Stock are to be registered,
the denominations in which the shares of Option Stock are to be issued and the
date and time, as determined by the Representatives, when the shares of Option
Stock are to be delivered; PROVIDED, HOWEVER, that this date and time shall not
be earlier than the First Delivery Date nor earlier than the second business day
after the date on which the option shall have been exercised nor later than the
fourth business
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day after the date on which the option shall have been exercised. The date
and time the shares of Option Stock are delivered are sometimes referred to
as the "Second Delivery Date" and the First Delivery Date and the Second
Delivery Date are sometimes each referred to as a "Delivery Date."
Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 4
(or at such other place as shall be determined by agreement between the
Representatives and the Company) at 10:00 A.M., New York City time, on the
Second Delivery Date. On the Second Delivery Date, the Company shall deliver or
cause to be delivered the certificates representing the Option Stock to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by wire transfer of federal same-
day funds to an account or accounts previously designated to Xxxxxx Brothers
Inc. in writing by the Company. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition
of the obligation of each Underwriter hereunder. Upon delivery, the Option
Stock shall be registered in such names and in such denominations as the
Representatives shall request in the aforesaid written notice. For the purpose
of expediting the checking and packaging of the certificates for the Option
Stock, the Company shall make the certificates representing the Option Stock
available for inspection by the Representatives in New York, New York, not later
than 2:00 P.M., New York City time, on the business day prior to the Second
Delivery Date.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the Commission's close of
business on the second business day following the execution and
delivery of this Agreement or, if applicable, such earlier time as may
be required by Rule 430A(a)(3) under the Securities Act; to make no
further amendment or any supplement to the Registration Statement or
to the Prospectus except as permitted herein; to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Representatives
with copies thereof; to advise the Representatives, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional
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information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal.
(b) To furnish promptly to each of the Representatives and to
counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith.
(c) To deliver promptly to the Representatives such number of
the following documents as the Representatives shall reasonably
request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits other than this Agreement) and (ii) each
of the Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus; and, if the delivery of a prospectus is
required at any time after the Effective Time in connection with the
offering or sale of the Stock or any other securities relating thereto
and if at such time any events shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply
with the Securities Act, to notify the Representatives and, upon their
request, to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as the Representatives may
from time to time reasonably request of an amended or supplemented
Prospectus which will correct such statement or omission or effect
such compliance, and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Stock at any time
nine months or more after the Effective Time, upon request of the
Representatives but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many copies as the Representatives may
reasonably request of an amended or supplemented prospectus complying
with Section 10(a)(3) of the Securities Act.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the reasonable judgment of the Company or the
Representatives, be required by the Securities Act or requested by the
Commission.
-16-
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Representatives and counsel for the
Underwriters and obtain the consent of the Representatives to the
filing.
(f) As soon as practicable after the Effective Date but in any
event not later than 45 days after the end of the Company's fiscal
quarter in which the first anniversary date of the Effective Date
occurs, to make generally available to the Company's security holders
and to deliver to the Representatives an earning statement of the
Company and its subsidiaries (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).
(g) For a period of five years following the Effective Date, to
furnish to the Representatives copies of all materials furnished by
the Company to its security holders and all public reports and all
reports and financial statements furnished by the Company to the
principal national securities exchange upon which the Common Stock may
be listed pursuant to requirements of or agreements with such exchange
or to the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder.
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Stock for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Stock; PROVIDED, that in connection therewith the
Company shall not be required to take any action that would subject it
to income taxation in such jurisdictions, qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
(i) For a period of 180 days from the date of the Prospectus,
not to, directly or indirectly, offer for sale, sell or otherwise
dispose of (or enter into any transaction or device which is designed
to, or could be expected to, result in the disposition by any person
at any time in the future of) any shares of Common Stock (other than
the Stock offered hereby and shares issued pursuant to the Stock
Incentive Plan existing on the date hereof), or sell or grant options,
rights or warrants with respect to any shares of Common Stock (other
than the grant of
-17-
options pursuant to the Stock Incentive Plan existing on the date
hereof), without the prior written consent of Xxxxxx Brothers Inc.
(j) Prior to the Effective Date, to apply for the listing of the
Stock on the New York Stock Exchange, and to use its best efforts to
complete that listing, subject only to official notice of issuance,
prior to the First Delivery Date.
(k) To apply the net proceeds from the sale of the Stock being
sold by the Company as set forth in the Prospectus.
(l) To take such steps as shall be necessary to ensure that
neither the Company, the Operating Partnership nor any subsidiary
shall become an "investment company" within the meaning of such term
under the Investment Company Act of 1940, as amended, and the rules
and regulations of the Commission thereunder.
6. EXPENSES. The Company agrees to pay (a) the costs incident to
the authorization, issuance, sale and delivery of the Stock and any taxes
payable in that connection; (b) the costs incident to the preparation, printing
and filing under the Securities Act of the Registration Statement and any
amendments and exhibits thereto; (c) the costs of distributing the Registration
Statement as originally filed and each amendment thereto and any post-effective
amendments thereof (including, in each case, exhibits), any Preliminary
Prospectus, the Prospectus and any amendment or supplement to the Prospectus,
all as provided in this Agreement; (d) the costs of printing, photocopying and
distributing this Agreement and any other related documents in connection with
the offering, purchase, sale and delivery of the Stock; (e) the fees and
expenses (including reasonable attorneys' fees) incident to securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of sale of the Stock; (f) any applicable listing or other fees; (g) the
fees and expenses of qualifying the Stock under the securities laws of the
several jurisdictions as provided in Section 5(h) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters); (h) all costs and expenses of the Underwriters,
including fees and disbursements of counsel for the Underwriters, incident to
the offer and sale of shares of the Stock by the Underwriters to employees and
persons having business relationships with the Company, the Operating
Partnership and their subsidiaries as described in Section 3; and (i) all other
costs and expenses incident to the performance of the obligations of the Company
under this Agreement; PROVIDED that, except as provided in this Section 6 and in
Section 11 the Underwriters shall pay their own costs and expenses, including
the costs and expenses of their counsel, any transfer taxes on the Stock which
they may sell and the expenses of advertising any offering of the Stock made by
the Underwriters.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
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and on each Delivery Date, of the representations and warranties of the Company
and the Operating Partnership contained herein, to the performance by the
Company of its obligations hereunder, and to each of the following additional
terms and conditions:
(a) The Registration Statement shall have become effective and
the Representatives shall have received notice thereof, not later than
the first full business day next following the date of this Agreement
or such later date as shall be consented to in writing by the
Representatives. The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a); no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied
with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to such Delivery Date that the Registration
Statement or any amendment thereto contains an untrue statement of a
fact which, in the opinion of Xxxxx & Xxxxxxx L.L.P., counsel for the
Underwriters, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading
or that the Prospectus and any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion of Xxxxx
& Xxxxxxx L.L.P., counsel for the Underwriters, is material or omits
to state a fact which, in the opinion of such counsel, is material and
is required to be stated therein or is necessary to make the
statements, in light of the circumstances under which they were made,
not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Stock,
the Registration Statement and the Prospectus, and all other legal
matters and agreements relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all material
respects to counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Xxxxxxx shall have furnished to the Representatives
its written opinion, as counsel to the Company, addressed to the
Underwriters and dated such Delivery Date, in form
-19-
and substance reasonably satisfactory to the Representatives, to the
effect that:
(i) The Company is a corporation duly incorporated and
existing under and by virtue of the laws of the State of Maryland
and is in good standing with the SDAT. The Company has full
corporate power to conduct its business as described in the
Prospectus. Based solely on certificates from public officials,
the Company is duly qualified as a foreign corporation to
transact business and is in good standing in the State of
California;
(ii) The Operating Partnership is a limited partnership duly
formed and existing under and by virtue of the laws of the State
of Maryland and is in good standing with the SDAT. The Operating
Partnership has full power as a limited partnership to conduct
its business as described in the Prospectus. Based solely on
certificates from public officials, the Operating Partnership is
duly qualified as a foreign limited partnership to transact
business and is in good standing in the State of California;
(iii) Arden Realty Finance Partnership, L.P. ("Arden
Realty LP") is a limited partnership duly formed and existing
under and by virtue of the laws of the State of California and is
in good standing with the Secretary of State of California.
Arden Realty LP has full power as a limited partnership to
conduct its business as described in the Prospectus. Arden
Realty Finance, Inc. ("Arden Realty Inc.") is a corporation duly
incorporated and existing under and by virtue of the laws of the
State of California and is in good standing with the Secretary of
State of California. Arden Realty Inc. has full corporate power
to conduct its business as described in the Prospectus.
(iv) The Company has an authorized capitalization as set
forth in the line items "Preferred Stock" and "Common Stock"
under the caption "Capitalization" in the Prospectus, and all of
the issued shares of stock of the Company (including the shares
of Stock being delivered on such Delivery Date) have been duly
and validly authorized and, assuming receipt of consideration
therefor as provided in the resolutions authorizing issuance
thereof of the board of directors of the Company, are validly
issued, are fully paid and non-assessable and conform in all
material respects to the description thereof contained in the
Prospectus under the caption "Capital Stock"; and all of the
issued stock or partnership interests of the Operating
-20-
Partnership and of each of the subsidiaries have been duly and
validly authorized, assuming receipt of consideration therefor as
provided in the resolutions authorizing issuance thereof of the
board of directors of the Company, as general partner of the
Operating Partnership, or by the board of directors of such
subsidiary or of the general partner of such subsidiary, are
fully paid and (except as set forth in the Prospectus) are owned
of record by the Company; and to the knowledge of such counsel,
based solely on an officer's certificate, are owned free and
clear of all liens, encumbrances, equities or claims;
(v) Except as set forth in the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase, nor
any restriction upon the voting or transfer of, any shares of the
Stock pursuant to the Company's charter or by-laws or any
agreement or other instrument to which the Company is a party
known to such counsel;
(vi) Except as set forth in the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase, nor
any restriction upon the voting or transfer of, any Units
pursuant to the Operating Partnership Agreement or any agreement
or other instrument to which the Operating Partnership is a party
known to such counsel;
(vii) To such counsel's knowledge based solely on an
officer's certificate and review of attorney letters furnished to
the Company's independent public accountants in connection with
their audit of financial statements, and other than as set forth
in the Prospectus, there are no legal or governmental proceedings
pending to which the Company, the Operating Partnership or any of
their subsidiaries is a party or of which any property or assets
of the Company, the Operating Partnership or any of their
subsidiaries is the subject which, if determined adversely to the
Company, the Operating Partnership or any of their subsidiaries,
would have a Material Adverse Effect; and, to such counsel's
knowledge, based solely on an officer's certificate, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(viii) The Registration Statement was declared effective
under the Securities Act as of the date and time specified in
such opinion, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date specified
-21-
therein and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge of
such counsel, no proceeding for that purpose is pending or
threatened by the Commission;
(ix) The Registration Statement at the date it became
effective and at the date of any amendment thereto made by the
Company prior to such Delivery Date (other than the financial
statements and related schedules and other financial and
statistical information and data (collectively, "Financial Data")
included therein, as to which such counsel need express no
opinion) complied, and the Prospectus as of its date and at the
date of any supplement thereto made by the Company prior to such
Delivery Date (other than the Financial Data, as to which counsel
need express no opinion) complied as to form in all material
respects with the requirements of the Securities Act and the
Rules and Regulations;
(x) The statements contained in the Prospectus under the
caption "FEDERAL INCOME TAX CONSEQUENCES" AND "RISK FACTORS --
ADVERSE CONSEQUENCES OF FAILURE TO QUALIFY AS A REIT; OTHER TAX
LIABILITIES," insofar as they describe federal statutes, rules
and regulations, constitute a fair summary thereof and the
opinion of such counsel filed as Exhibit 8.1 to the Registration
Statement is confirmed and the Underwriters may rely upon such
opinion as if it were addressed to them. The information in the
Prospectus under the captions "CAPITAL STOCK" and "SHARES
AVAILABLE FOR FUTURE SALE," to the extent that it constitutes
matters of law or legal conclusions, has been reviewed by such
counsel and is correct in all material respects. The statements
contained in the Prospectus under the heading "CERTAIN PROVISIONS
OF MARYLAND LAW AND THE COMPANY'S CHARTER AND BYLAWS," insofar as
they describe Maryland statutory law are correct in all material
respects;
(xi) To such counsel's knowledge, 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 which have not
been described or filed as exhibits to the Registration
Statement;
(xii) This Agreement has been duly authorized, executed
and delivered by the Company and the Operating Partnership;
-22-
(xiii) The issuance and sale of the shares of Stock being
delivered on such Delivery Date by the Company and the compliance
by the Company and the Operating Partnership with all of the
provisions of this Agreement by the Company and the Operating
Partnership will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument filed as an exhibit to
the Registration Statement except for such conflicts, breaches,
violations or defaults that, individually or in the aggregate,
would not have a Material Adverse Effect, nor will such actions
result in any violation of the provisions of the charter or by-
laws of the Company or Arden Realty Inc. or the Agreement of
Limited Partnership of the Operating Partnership or Arden Realty
LP or any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company, the Operating Partnership or any
of their subsidiaries or any of their properties or assets; and,
except for (a) the registration of the Stock under the Securities
Act, such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state and foreign securities laws in connection with
the purchase and distribution of the Stock by the Underwriters,
(b) consents, approvals, authorizations, orders, filings or
registrations that will be completed on or prior to the Closing
Date and (c) such consents, approvals, authorizations, orders,
filing or registrations, the absence of which, individually or in
the aggregate would not have a Material Adverse Effect, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body
or any other person is required for the execution, delivery and
performance of this Agreement by the Company and the Operating
Partnership;
(xiv) To such counsel's knowledge based solely on a
certificate from a officer of the Company, other than as
disclosed in the Prospectus, there are no contracts, agreements
or understandings between the Company and any person granting
such person the right to require the Company to file a
registration statement under the Securities Act with respect to
any securities of the Company owned or to be owned by such person
or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or
in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities
Act;
-23-
(xv) Neither the Company, the Operating Partnership nor any
of their subsidiaries is an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended;
(xvi) [The issuances of securities described in Items 32
and 33 of the Registration Statement were not at the time of
issue, and are not as of the Delivery Date, required to be
registered under the Securities Act;] and
(xvii) The terms of the Units conform in all material
respects to all statements and descriptions related thereto
contained in the Prospectus.
In rendering such opinion, such counsel may (i) state that its
opinion, as applicable, is limited to matters governed by the federal
securities and tax laws of the United States of America, the corporate
and partnership laws of the State of California and the State of
Maryland and that such counsel is not admitted in the State of
Maryland; and (ii) rely (to the extent such counsel deems proper and
specifies in its opinion), as to matters involving the application of
the laws of the State of Maryland upon the opinion of Xxxxxxx Xxxxx
Xxxxxxx & Xxxxxxxxx, Baltimore, Maryland, PROVIDED that such Maryland
counsel furnishes a copy of its opinion to the Representatives. Such
counsel shall also have furnished to the Representatives a written
statement, addressed to the Underwriters and dated such Delivery Date,
in form and substance satisfactory to the Representatives, to the
effect that (x) such counsel has acted as counsel to the Company in
connection with the preparation of the Registration Statement and
participated in conferences with certain officers and representatives
of the Company and the Operating Partnership, representatives of Ernst
& Young LLP and representatives of the Underwriters at which the
Registration Statement and the Prospectus and related matters were
discussed and (y) during the course of such counsel's participation
(relying as to factual matters as to materiality to a large extent
upon the statements of officers and other representatives of the
Company), no facts have come to the attention of such counsel which
led it to believe that (i) the Registration Statement (other than the
Financial Data as to which such counsel need make no statement), as of
the Effective Date, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or
(ii) the Prospectus as of the Delivery Date (other than the Financial
Data as to which such counsel need make no statement) contains any
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light
-24-
of the circumstances under which they were made, not misleading.
The foregoing opinion and statement may be qualified by a statement
to the effect that such counsel does not assume any responsibility
for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus and has
not made any independent judgment, check or verification thereof
except to the extent set forth in paragraph (ix) above.
(e) The Representatives shall have received from Xxxxx & Xxxxxxx
L.L.P., counsel for the Underwriters, such opinion or opinions, dated
such Delivery Date, with respect to the issuance and sale of the
Stock, the Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(f) At the time of execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP a letter,
in form and substance satisfactory to the Representatives, addressed
to the Underwriters and dated the date hereof (i) confirming that they
are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission and (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information
is given in the Prospectus, as of a date not more than five days prior
to the date hereof), the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily
covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings.
(g) With respect to the letter of Ernst & Young LLP referred to
in the preceding paragraph and delivered to the Representatives
concurrently with the execution of this Agreement (the "initial
letter"), the Company shall have furnished to the Representatives a
letter (the "bring-down letter") of such accountants, addressed to the
Underwriters and dated such Delivery Date (i) confirming that they are
independent public accountants within the meaning of the Securities
Act and are in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission, (ii) stating, as of the date of the bring-down letter
(or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than five
-25-
days prior to the date of the bring-down letter), the conclusions
and findings of such firm with respect to the financial information
and other matters covered by the initial letter and (iii) confirming
in all material respects the conclusions and findings set forth in
the initial letter.
(h) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, of its Chairman of the Board,
its President or a Vice President and its chief financial officer
stating on behalf of the Company that:
(i) The representations, warranties and agreements of the
Company and the Operating Partnership in Section 1 are true and
correct as of such Delivery Date; the Company has complied with
all its agreements contained herein; and the conditions set forth
in Sections 7(a) and 7(i) have been fulfilled; and
(ii) They have carefully examined the Registration Statement
and the Prospectus and, in their opinion (A) as of the Effective
Date, the Registration Statement did not include any untrue
statement of a material fact and did not omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, (B) the Prospectus as of the
Delivery Date did not include any untrue statement of a material
fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading and (C) since the Effective Date no event has occurred
which should have been set forth in a supplement or amendment to
the Registration Statement or the Prospectus.
(i) (i) Neither the Company, the Operating Partnership nor any
of their subsidiaries shall have sustained since the date of the
latest audited financial statements included in the Prospectus any
loss or interference with their business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus or (ii)
since such date there shall not have been any change in the stock,
partnership interests or long-term debt of the Company, the Operating
Partnership or any of their subsidiaries or any change, or any
development involving a prospective change in, or affecting the
general affairs, management, financial position, stockholders' equity,
partners' equity or results of operations of the Company, the
Operating Partnership and their subsidiaries, taken as a whole,
otherwise than as set forth or
-26-
contemplated in the Prospectus, the effect of which, in any such
case described in clause (i) or (ii), is, in the judgment of the
Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Stock being delivered on such Delivery Date on
the terms and in the manner contemplated in the Prospectus.
(j) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, Inc. or the
American Stock Exchange, Inc. or on the Nasdaq Stock Market, Inc., or
trading in any securities of the Company on any exchange or on the
Nasdaq Stock Market, Inc., shall have been suspended or minimum prices
shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by federal, New York or California
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a declaration of
a national emergency or war by the United States or (iv) there shall
have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be
such) as to make it, in the judgment of a majority in interest of the
several Underwriters, impracticable or inadvisable to proceed with the
public offering or delivery of the Stock being delivered on such
Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(k) The New York Stock Exchange, Inc. shall have approved the
Stock for listing, subject only to official notice of issuance and
evidence of satisfactory distribution.
(l) The Company shall have delivered to the Underwriters under
separate cover at or prior to the Delivery Date any and all officers'
and other certificates delivered by the Company, the Operating
Partnership, their subsidiaries or its affiliates to Xxxxxx & Xxxxxxx,
Xxxxxxx Xxxxx Xxxxxxx & Ingersoll and Ernst & Young LLP on which such
firms relied in rendering opinions.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
-27-
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Operating Partnership, jointly and
severally, shall indemnify and hold harmless each Underwriter, its officers and
employees 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,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Stock), to which
that Underwriter, officer, employee or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (B) in any blue sky application or other document prepared
or executed by the Company (or based upon any written information furnished by
the Company) specifically for the purpose of qualifying any or all of the Stock
under the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a "Blue Sky
Application"), (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading or
(iii) any act or failure to act or any alleged act or failure to act by any
Underwriter in connection with, or relating in any manner to, the Stock or the
offering contemplated hereby, and which is included as part of or referred to in
any loss, claim, damage, liability or action arising out of or based upon
matters covered by clause (i) or (ii) above (PROVIDED that the Company and the
Operating Partnership shall not be liable under this clause (iii) to the extent
that is determined in a final judgment by a court of competent jurisdiction that
such loss, claim, damage, liability or action resulted directly from any such
acts or failures to act undertaken or omitted to be taken by such Underwriter
through its gross negligence or willful misconduct) and shall reimburse each
Underwriter and each such officer, employee or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by that Underwriter,
officer, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; PROVIDED, HOWEVER, that the Company and
the Operating Partnership shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus, or in any such amendment or supplement, or in any Blue Sky
Application, in reliance upon and in conformity with written information
specified in Section 8(e) furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein; PROVIDED
FURTHER, that the foregoing indemnity with respect to any Preliminary Prospectus
shall not inure to the benefit of any
-28-
Underwriter from whom the person asserting any such loss, claim, damage or
liability purchased the Stock which is the subject thereof if such person did
not receive a copy of the Prospectus (or the Prospectus as supplemented) at
or prior to the confirmation of the sale of such Stock to such person in any
case where such delivery is required by the Securities Act and the untrue
statement or omission of a material fact contained in such Preliminary
Prospectus was corrected in the Prospectus (or the Prospectus as
supplemented). The foregoing indemnity agreement is in addition to any
liability which the Company or the Operating Partnership may otherwise have
to any Underwriter or to any officer, employee or controlling person of that
Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, the Operating Partnership, each of their
respective officers and employees, each of the Company's directors (including
any person who, with his or her consent, is named in the Registration Statement
as about to become a director of the Company), and each person, if any, who
controls the Company within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company or any such director, officer, employee or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, the Registration Statement or
the Prospectus or in any amendment or supplement thereto, or (B) in any Blue Sky
Application or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information specified in Section 8(e) furnished to the
Company through the Representatives by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the Company and any such
director, officer, employee or controlling person for any legal or other
expenses reasonably incurred by the Company or any such director, officer,
employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred. The foregoing indemnity agreement is in addition to
any liability which any Underwriter may otherwise have to the Company or any
such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under
-29-
this Section 8 except to the extent it has been materially prejudiced by such
failure and, PROVIDED FURTHER, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 8. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that
the Representatives shall have the right to employ a single counsel to
represent jointly the Representatives and those other Underwriters and their
respective officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be
sought by the Underwriters against the Company or the Operating Partnership
under this Section 8 if, in the reasonable judgment of the Representatives,
it is advisable for the Representatives and those Underwriters, officers,
employees and controlling persons to be jointly represented by separate
counsel, and in that event the fees and expenses of such separate counsel
shall be paid by the Company or the Operating Partnership. No indemnifying
party shall (i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld or delayed), settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of such
claim, action, suit or proceeding, or (ii) be liable for any settlement of
any such action effected without its written consent (which consent shall not
be unreasonably withheld or delayed), but if settled with the consent of the
indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) in respect of any loss, claim, damage or liability, or
any action in respect thereof, referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the Company
and the Operating Partnership on the one hand and the Underwriters on the other
hand from the
-30-
offering of the Stock or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Operating Partnership
on the one hand and the Underwriters on the other hand with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Operating
Partnership on the one hand and the Underwriters on the other hand with respect
to such offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Stock purchased under this Agreement (before
deducting expenses) received by the Company and the Operating Partnership, on
the one hand, and the total underwriting discounts and commissions received by
the Underwriters with respect to the shares of the Stock purchased under this
Agreement and any financial advisory fees received by any Underwriter, on the
other hand, bear to the total gross proceeds from the offering of the shares of
the Stock under this Agreement, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company and the Operating Partnership or the Underwriters, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. For purposes of
the preceding two sentences, the net proceeds deemed to be received by the
Company shall be deemed to be also for the benefit of the Operating Partnership
and information supplied by the Company shall also be deemed to have been
supplied by the Operating Partnership. The Company, the Operating Partnership
and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be 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 into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 8(d) shall be
deemed to include, for purposes of this Section 8(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Stock
underwritten by it and distributed to the public was offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 8(d) are several in proportion to their respective underwriting
obligations and not joint.
-31-
(e) The Underwriters severally confirm and the Company and
the Operating Partnership acknowledge that the statements with respect to the
public offering of the Stock by the Underwriters set forth on the cover page
of, the legend concerning stabilization on the inside front cover page of,
under the caption "Underwriting" (excluding the last two paragraphs under
such caption) in and concerning the affiliation of Xxxxxx Brothers Holdings,
Inc. with Xxxxxx Brothers Inc. in the Prospectus are correct and constitute
the only information concerning such Underwriters furnished in writing to the
Company and the Operating Partnership by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the Prospectus.
9. DEFAULTING UNDERWRITERS.
If, on either Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining non-
defaulting Underwriters shall be obligated to purchase the Stock which the
defaulting Underwriter agreed but failed to purchase on such Delivery Date in
the respective proportions which the number of shares of the Firm Stock set
forth opposite the name of each remaining non-defaulting Underwriter in Schedule
1 hereto bears to the total number of shares of the Firm Stock set forth
opposite the names of all the remaining non-defaulting Underwriters in Schedule
1 hereto; PROVIDED, HOWEVER, that the remaining non-defaulting Underwriters
shall not be obligated to purchase any of the Stock on such Delivery Date if the
total number of shares of the Stock which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the
total number of shares of the Stock to be purchased on such Delivery Date, and
any remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the number of shares of the Stock which it agreed to purchase on
such Delivery Date pursuant to the terms of Section 2. If the foregoing
maximums are exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representatives who so agree, shall have the
right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Stock to be purchased on such Delivery Date. If
the remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such Delivery Date,
this Agreement (or, with respect to the Second Delivery Date, the obligation of
the Underwriters to purchase, and of the Company to sell, the Option Stock)
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company, except that the Company will continue to be liable for the
payment of expenses to the extent set forth in Sections 6 and 11. As used in
this Agreement, the term "Underwriter" includes, for all purposes of this
Agreement unless the context requires otherwise, any party not listed in
Schedule 1 hereto who, pursuant to this Section 9, purchases Firm Stock which a
defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter
of any liability it may have to the Company for damages caused by its default.
If
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other underwriters are obligated or agree to purchase the Stock of a
defaulting or withdrawing Underwriter, either the Representatives or the
Company may postpone the Delivery Date for up to seven full business days in
order to effect any changes that in the opinion of counsel for the Company or
counsel for the Underwriters may be necessary in the Registration Statement,
the Prospectus or in any other document or arrangement.
10. TERMINATION. The obligations of the Underwriters hereunder may
be terminated by the Representatives by notice given to and received by the
Company prior to delivery of and payment for the Firm Stock if, prior to that
time, any of the events described in Sections 7(i) or 7(j), shall have occurred
or if the Underwriters shall decline to purchase the Stock for any reason
permitted under this Agreement.
11. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Company shall
fail to tender the Stock for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company or the Operating
Partnership to perform any agreement on its part to be performed, or because any
other condition of the Underwriters' obligations hereunder required to be
fulfilled by the Company or the Operating Partnership is not fulfilled (other
than the conditions set forth in Section 7(j)), the Company and the Operating
Partnership will reimburse the Underwriters for all reasonable out-of-pocket
expenses (including fees and disbursements of counsel) incurred by the
Underwriters in connection with this Agreement and the proposed purchase of the
Stock, and upon demand the Company and the Operating Partnership shall pay the
full amount thereof to the Representatives. If this Agreement is terminated
pursuant to Section 9 by reason of the default of one or more Underwriters,
neither the Company nor the Operating Partnership shall be obligated to
reimburse any defaulting Underwriter on account of those expenses.
12. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to Xxxxxx Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate
Department (Fax: 000-000-0000), with a copy, in the case of any notice
pursuant to Section 8(d), to the Director of Litigation, Office of the
General Counsel, Xxxxxx Brothers Inc., Three World Financial Xxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000;
(b) if to the Company or to the Operating Partnership, shall be
delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement,
Attention: Xxxxxxx X. Xxxxx (Fax: (000) 000-0000);
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PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to Section 8(d)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and
the Operating Partnership shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Underwriters by
Xxxxxx Brothers Inc. on behalf of the Representatives.
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company and
the Operating Partnership. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company and the
Operating Partnership contained in this Agreement shall also be deemed to be for
the benefit of the person or persons, if any, who control any Underwriter or the
Independent Underwriter within the meaning of Section 15 of the Securities Act
and (B) the indemnity agreement of the Underwriters contained in Section 8(b) of
this Agreement shall be deemed to be for the benefit of officers, employees and
directors of the Company and the Operating Partnership, (including persons named
in the Registration Statement with their consent as about to become a director
of the Company) and any person controlling the Company within the meaning of
Section 13 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 13, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
14. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company, the Operating Partnership and the
Underwriters contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Stock and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
15. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY." For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations and, when used in
reference to subsidiaries of the Company or the Operating Partnership, includes
the entities listed on Schedule 2.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
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17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. 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.
If the foregoing correctly sets forth the agreement among the Company,
the Operating Partnership and the Underwriters, please indicate your acceptance
in the space provided for that purpose below.
Very truly yours,
ARDEN REALTY, INC.
By: _______________________________________
Name:
Title:
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ARDEN REALTY LIMITED PARTNERSHIP, the
Operating Partnership
By: Arden Realty, Inc., its General Partner
By: _________________________________________
Name:
Title:
Accepted:
XXXXXX BROTHERS INC.
ALEX. XXXXX & SONS INCORPORATED
XXXX XXXXXX XXXXXXXX INC.
X.X. XXXXXXX & SONS, INC.
XXXXX XXXXXX INC.
EVEREN SECURITIES INC.
[XXXX XXXXX XXXX XXXXXX INCORPORATED]
[XXXXXXX XXXXX & ASSOCIATES, INC.]
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By: ____________________________
XXXXXX BROTHERS INC.
By: ____________________________
AUTHORIZED REPRESENTATIVE
-36-
SCHEDULE 1
Number of
Underwriters Shares
------------ ---------
Xxxxxx Brothers Inc.. . . . . . . . . . . . . . . . . . . . . .
Alex. Xxxxx & Sons Incorporated . . . . . . . . . . . . . . . .
Xxxx Xxxxxx Xxxxxxxx Inc. . . . . . . . . . . . . . . . . . . .
X.X. Xxxxxxx & Sons, Inc. . . . . . . . . . . . . . . . . . . .
Xxxxx Xxxxxx Inc.. . . . . . . . . . . . . . . . . . . . . . .
EVEREN Securities, Inc. . . . . . . . . . . . . . . . . . . . .
[Xxxx Xxxxx Xxxx Xxxxxx Incorporated] . . . . . . . . . . . . .
[Xxxxxxx Xxxxx & Associates, Inc.]. . . . . . . . . . . . . . .
Total 8,000,000
---------
SCHEDULE 2
SUBSIDIARIES
Arden Realty Finance, L.P., a California limited partnership
Arden Realty Finance, Inc., a California corporation
