EXHIBIT 1.1
XXXXXXXXXX REALTY INVESTORS
Common Shares and Preferred Shares
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Underwriting Agreement
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January 23, 2001
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx Barney Inc.
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
From time to time Xxxxxxxxxx Realty Investors, a Texas real estate
investment trust (the "Company"), proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such
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additions and deletions as the parties thereto may determine, and, subject to
the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
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constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its shares of beneficial interest (the
"Shares") specified in Schedule II to such Pricing Agreement (with respect to
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such Pricing Agreement, the "Designated Shares"). The Shares may include the
Company's common shares of beneficial interest, par value $.03 per share (the
"Common Shares"), or preferred shares of beneficial interest, par value $.03 per
share (the "Preferred Shares").
The terms and rights of any particular issuance of Designated Shares shall
be as specified in the Pricing Agreement relating thereto and in or pursuant to
the resolutions of the board of trust managers of the Company identified in such
Pricing Agreement.
1. Particular sales of Designated Shares may be made from time to time to
the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the Shares
or as an obligation of any of the Underwriters to purchase the Shares. The
obligation of the Company to issue and sell any of the Shares and the obligation
of any of the Underwriters to purchase any of the Shares shall be evidenced by
the Pricing Agreement with respect to the Designated Shares specified therein.
Each Pricing Agreement shall specify the aggregate number of such Designated
Shares, the initial public offering price of such Designated Shares, the
purchase price to the Underwriters of such Designated Shares, the names of the
Underwriters of such Designated Shares, the names of the Representatives of such
Underwriters and the number of such Designated Shares to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Designated Shares and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the registration statement and
prospectus with respect thereto) the terms of such Designated Shares. A Pricing
Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-85967) in
respect of the Securities has been filed with the Securities and
Exchange Commission (the "Commission"); such registration statement
and any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding
exhibits to such registration statement, but including all documents
incorporated by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement") filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to such registration
statement or document incorporated by reference therein has heretofore
been filed or transmitted for filing with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act each in the form
heretofore delivered to the Representatives); and no stop order
suspending the effectiveness of such registration statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in such registration statement or filed with the
Commission pursuant to Rule 424(a) under the Act, is hereinafter
called a "Preliminary Prospectus;" the various parts of such
registration statement and Rule 462(b) Registration Statement, if any,
including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the registration statement at
the time such part of the registration statement became effective,
each as amended at the time such part of the registration statement
became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement;" the
prospectus relating to the Shares, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on
or prior to the date of this Agreement, is hereinafter called the
"Prospectus;" any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Sections 13(a) or 15(d)
of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Shares in the
form in which it is filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of the date of such
filing and if the Company elects to rely on Rule 434 under the Act,
any reference to the Prospectus shall be deemed to include, without
limitation, the form of prospectus and the abbreviated term sheet,
taken together, provided to the Underwriters by the Company in
reliance on Rule 434 under the Act (the "Rule 434 Prospectus");
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under
which they were made; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment
or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Shares through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Shares;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date and Time of Delivery (as defined in Section 4 hereof)
as to the Registration Statement and any amendment thereto and as of
its date of issuance and Time of Delivery (as defined in Section 4
hereof) 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 therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Shares through the Representatives expressly for use in the Prospectus
as amended or supplemented relating to such Shares;
(d) The Company is a real estate investment trust duly formed and
validly existing under the laws of the State of Texas, with full power
and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus; and the Company is duly
qualified to transact business and is in good standing in each other
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction, and holds all authorizations,
approvals, orders, licenses, certificates and permits from all
governmental authorities which are material to the conduct of its
business;
(e) Each subsidiary of the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, has full power and authority
to own, lease and operate its properties and to conduct its business
as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect or a prospective material adverse effect, on
the condition, financial or otherwise, or the earnings or business
affairs of the Company and its subsidiaries considered as one
enterprise; all of the issued and outstanding capital stock of each
such subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and is owned by the Company, directly or
through subsidiaries (except for Xxxxxxxxxx Properties Trust, of which
the Company owns approximately 77% of the outstanding capital shares,
and Xxxxxxxxxx/Investments, Inc., of which the Company owns 95% of the
outstanding common stock), free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity;
(f) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its 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; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
consolidated capital stock of the Company (except for issuances of
Common Shares pursuant to the Company's employee benefit and stock
option plans, the Company's Dividend Reinvestment and Share Purchase
Plan and exchanges of operating partnership units) or any change in
the consolidated debt of the Company or any of its subsidiaries or any
decrease in consolidated net current assets or net assets or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus, and there has been no
material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business;
(g) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and are
fully paid and non-assessable;
(h) The Shares have been duly and validly authorized, and, when
Designated Shares are issued and delivered pursuant to this Agreement
and the Pricing Agreement with respect to such Designated Shares, such
Designated Shares will be duly and validly issued and fully paid and
non-assessable; and the Shares conform to the description thereof
contained in the Registration Statement, and the Designated Shares
will conform to the description thereof contained in the Prospectus as
amended or supplemented with respect to such Designated Shares;
(i) The issue and sale of the Shares and the compliance by the
Company with all of the provisions of this Agreement and any Pricing
Agreement, and the consummation of the transactions herein and therein
contemplated 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 or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Declaration of Trust
or by-laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their respective properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Shares or the consummation by the Company of the transactions
contemplated by this Agreement or any Pricing Agreement, except such
as have been, or will have been prior to the Time of Delivery (as
defined in Section 4 hereof), obtained under the Act and except for
the listing of the Designated Shares on the New York Stock Exchange,
Inc. or other stock exchange and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters;
(j) The statements set forth in the Prospectus under the captions
"Description of Common Shares," "Description of Preferred Shares,"
"Description of Securities Warrants," "Plan of Distribution" and
"Underwriting," insofar as they purport to constitute a summary of the
terms of the Shares, or to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair;
(k) Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws or in default in the performance
or observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or its properties may be bound;
(l) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries;
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(m) The consolidated financial statements together with related
notes and schedules as set forth or incorporated by reference in the
Registration Statement, present fairly the financial position and the
results of operations of the Company and its subsidiaries at the
indicated dates and for the indicated periods. Except as otherwise
stated in the Registration Statement, such financial statements have
been prepared in accordance with generally accepted accounting
principles, applied on a consistent basis; and the supporting
schedules included in the Registration Statement present fairly the
information required to be stated therein;
(n) The Company and its subsidiaries have good and marketable
title to all real property and interests in real property owned by
them and good and marketable title to all personal property owned by
them, in each case free and clear of all pledges, liens, encumbrances,
claims, security interests and defects, except as are described in the
Prospectus and except for property owned in the joint ventures set
forth in Annex III hereto or such as do not materially affect the
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value of such property and interests in the aggregate and do not
interfere with the use made and proposed to be made of such property
and interests by the Company and its subsidiaries taken as a whole; in
the case of real property and interests in real property, the Company
and its subsidiaries have obtained satisfactory confirmation
(consisting of policies of title insurance or binders therefor or
opinions of counsel based upon the examination of abstracts)
confirming, except as is otherwise described in the Prospectus, (a)
that the Company and its subsidiaries have the foregoing title to such
real property and interests in real property; provided, however, that
in those cases in which such information is not current, the Company
and its subsidiaries do not have notice of any material claim of any
sort which has been asserted by anyone adverse to the Company's or its
subsidiaries foregoing title to such real property and interests in
real property, and (b) that the instruments securing the indebtedness
of third parties to the Company or its subsidiaries create valid liens
upon the real properties described in such instruments enjoying the
priorities intended, subject only to exceptions to title which have no
materially adverse effect on the value of such real properties and
interests; and any real property and buildings held under lease by the
Company or its subsidiaries or leased by the Company or its
subsidiaries to a third party are held or leased by them under valid,
binding and enforceable leases conforming to the description thereof
set forth in the Prospectus, with such exceptions as are not material
and do not interfere with the use made and proposed to be made of such
property and buildings by the Company or its subsidiaries or such
third party;
(o) The Company and its subsidiaries have filed all federal,
state, local and foreign income tax returns which have been required
to be filed on or before the due date (taking into account all
extensions of time to file) and have paid or provided for all taxes
indicated by said returns and all assessments received by it to the
extent that taxes have become due;
(p) With respect to all tax periods regarding which the Internal
Revenue Service is or will be entitled to assert any claim, the
Company has met the requirements for qualification as a real estate
investment trust under Sections 856 through 860 of the Internal
Revenue Code of 1986, as amended (the "Code"), and the Company's
present and contemplated operations, assets and income continue to
meet such requirements;
(q) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(r) Deloitte & Touche llp, who have audited certain financial
statements of the Company and its subsidiaries filed with the
Commission as part of, or incorporated by reference in, the
Registration Statement and Prospectus are independent public
accountants as required by the Act and the rules and regulations of
the Commission promulgated thereunder; and
(s) Although the Company is aware of the presence of hazardous
substances, hazardous materials, toxic substances or waste materials
("Hazardous Materials") on certain of its properties, nothing has come
to the attention of the Company which, at this time, would lead the
Company to believe that the presence of such Hazardous Materials, when
considered in the aggregate, would materially adversely affect the
financial condition of the Company. In connection with the
construction on or operation and use of the properties owned or leased
by the Company or any of its subsidiaries, the Company represents
that, as of the date of this Agreement, it has no knowledge of any
material failure by the Company or any of its subsidiaries to comply
with all applicable local, state and federal environmental laws,
regulations, ordinances and administrative and judicial orders
relating to the generation, recycling, reuse, sale, storage, handling,
transport and disposal of any Hazardous Materials.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Shares and authorization by the Representatives of the release of
such Designated Shares, the several Underwriters propose to offer such
Designated Shares for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Certificates for the Designated Shares to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in definitive
form, and in such authorized denominations and registered in such names as the
Representatives may request upon at least twenty-four hours' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company in the funds
specified in such Pricing Agreement, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being herein called the "Time of Delivery" for such Shares.
5. The Company agrees with each of the Underwriters of any
Designated Shares:
(a) If the Company does not elect to rely on Rule 434 under
the Act, immediately following execution and delivery of the
applicable Pricing Agreement, to prepare the Prospectus as amended and
supplemented in relation to the applicable Designated Shares in a form
approved by the Representatives and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than the Commission's close of
business on the business day following the execution and delivery of
the Pricing Agreement relating to the applicable Designated Shares or,
if applicable, such earlier time as may be required by Rule 424(b), or
if the Company elects to rely on Rule 434 under the Act, immediately
following execution and delivery of the applicable Pricing Agreement,
to prepare an abbreviated term sheet relating to the Designated Shares
in a form approved by the Representatives that complies with the
requirements of Rule 434 under the Act and to file such form of Rule
434 Prospectus complying with Rule 434(c)(2) of the Act pursuant to
Rule 424(b) under the Act not later than the Commission's close of
business on the business day following the execution and delivery of
the Pricing Agreement relating to the applicable Designated Shares or,
if applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Shares and prior to the Time of
Delivery for such Shares which shall be disapproved by the
Representatives for such Shares promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment
or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of such
Shares, and during such same period 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 with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any prospectus relating to the Shares, of the suspension of
the qualification of such Shares 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 Prospectus or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of
any prospectus relating to the Shares or suspending any such
qualification, to promptly use every reasonable effort to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Shares 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 such Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m. New York City time, on the New York
business day next succeeding the date of the applicable Pricing
Agreement and from time to time to furnish the Underwriters with
copies of the Prospectus in New York City as amended or supplemented
in such quantities as the Representatives may reasonably request, and,
if the delivery of a prospectus is required at any time in connection
with the offering or sale of the Shares and if at such time any event
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 during
such same period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act or the Exchange Act, to
notify the Representatives and upon their request to file such
document and 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 Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During a period of 30 days beginning from the date of the
Pricing Agreement for such Designated Shares not to offer, sell, grant
any option for the sale of, contract to sell or otherwise issue any
shares of beneficial interest of the Company which are substantially
similar to such Designated Shares (except for shares of beneficial
interest issued pursuant to employee benefit plans, employee and
director stock option plans or as partial or full payment for
properties to be acquired by the Company), without the prior written
consent of the Representatives or enter into any swap or any other
agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of
shares of beneficial interest of the Company which are substantially
similar to such Designated Shares, whether any such swap or
transaction described above is to be settled by delivery of shares of
beneficial interest of the Company which are substantially similar to
such Designated Shares, in cash or otherwise;
(f) To use the net proceeds received by it from the sale of the
Shares in the manner specified in the Prospectus under the caption
"Use of Proceeds;" and
(g) To elect to qualify as a "real estate investment trust" under
the Code, and to use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust."
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto (including each abbreviated term sheet
delivered by the Company pursuant to Rule 434 under the Act) and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement Among Underwriters, this Agreement, any
Pricing Agreement, any blue sky and legal investment surveys and any other
documents in connection with the offering, purchase, sale and delivery of the
Shares; (iii) all expenses in connection with the qualification of the Shares
for offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the blue sky and legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Shares; (v) any filing fees incident to any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Shares; (vi) the cost of preparing certificates for the Shares; (vii) the fees
and expenses of any transfer agent or registrar or dividend disbursing agent;
and (viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section
and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes on resale of
any of the Shares by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated Shares under the
Pricing Agreement relating to such Designated Shares shall be subject, in the
discretion of the Representatives, to the condition that all representations and
warranties and other statements of the Company in or incorporated by reference
in the Pricing Agreement relating to such Designated Shares are, at and as of
the Time of Delivery for such Designated Shares, true and correct, to the
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Shares shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; 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 all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Xxxxx & Xxxx llp, counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions, dated the
Time of Delivery for such Designated Shares, with respect to the
matters covered in paragraphs (i), (ii), (v) (as to the Designated
Shares only), (vii), (viii), (xi) and (xv) of subsection (c) below as
well as such other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass
upon such matters; Xxxxx & Wood LLP may rely upon the opinion of Xxxxx
Liddell & Xxxx LLP as to matters of Texas law;
(c) Xxxxx Liddell & Xxxx LLP, counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Time
of Delivery for such Designated Shares, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company is a real estate investment trust duly
formed and validly existing under the laws of the State of Texas and
is entitled to the benefits of the Texas Real Estate Investment Trust
Act.
(ii) The Company has the power and authority (corporate and
other) to own its properties and to conduct its business as described
in the Prospectus as amended or supplemented.
(iii) The Company is duly qualified to transact business
and is in good standing in each jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification or is subject to no material liability, or disability by
reason of the failure to be so qualified in any such jurisdiction.
(iv) Each subsidiary of the Company has been duly
incorporated (or, with respect to Xxxxxxxxxx Properties Trust, has
been formed as a real estate investment trust) and is validly existing
as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has power and authority (corporate and other) to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and, to the best of their knowledge and
information, is duly qualified as a foreign corporation or trust to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse
effect or a prospective material adverse effect on the condition,
financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries considered as one enterprise; all of the
issued and outstanding capital stock of each such subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable
and is owned by the Company, directly or through subsidiaries (except
for Xxxxxxxxxx Properties Trust, of which the Company owns
approximately 77% of the outstanding capital shares, and
Xxxxxxxxxx/Investments, Inc., of which the Company owns 95% of the
outstanding common stock), free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(v) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented and all of the
issued shares of capital stock of the Company (including the
Designated Shares being delivered at such Time of Delivery) have been
duly and validly authorized and issued and are fully paid and
non-assessable.
(vi) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any its
subsidiaries is the subject other than as set forth in the Prospectus,
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(vii) This Agreement and the Pricing Agreement with respect
to the Designated Shares have been duly authorized, executed and
delivered by the Company.
(viii) The Designated Shares conform to the description
thereof in the Prospectus as amended or supplemented.
(ix) The issue and sale of the Shares and the compliance by
the Company with all of the provisions of this Agreement and any
Pricing Agreement, and the consummation of the transactions herein and
therein contemplated 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 or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Declaration of Trust
or By-laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their respective properties.
(x) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Designated Shares or
the consummation by the Company of the transactions contemplated by
this Agreement or the Pricing Agreement, except such as have been, or
will have been prior to the Time of Delivery, obtained under the Act
and such consents, approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the
Designated Shares by the Underwriters.
(xi) The information set forth in the Prospectus, under
the captions "Description of Common Shares," "Description of Preferred
Shares," "Plan of Distribution" and "Underwriting," to the extent such
information constitutes matters of law, summaries of legal matters,
documents or proceedings, or legal conclusions, has been reviewed by
them and is correct.
(xii) Based upon review of such documents, certificates
and records as counsel has deemed necessary to express its opinion,
upon its discussions with management of the Company, independent
accountants for the Company and with certain shareholders of the
Company and based upon the facts set forth in the Registration
Statement, certain assumptions and certain representations made to it
by the Company's management and by certain of its shareholders,
counsel is of the view that, as of the date of its opinion the
Company's form of organization and its share ownership is such as to
enable the Company to meet the requirements of the Code for
qualifications as a real estate investment trust thereunder and that
its income, assets and method of operations have allowed it to qualify
as a real estate investment trust for its taxable year ended December
31, 1985 and all years thereafter, and its currently contemplated
future assets, income and method of operations should put it in a
position to qualify to be treated as a real estate investment trust
for the calendar year 2001.
(xiii) The Company is not and, after giving effect to the
offering and sale of the Designated Shares, will not be an "investment
company" or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act;
(xiv) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when they became effective or were so filed, as the case
may be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading.
(xv) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company prior to the Time of Delivery for the
Designated Shares (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Act and the rules and regulations thereunder; although they do not
assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in subsection
(xi) of this Section 7(c), they have no reason to believe that, as of
its effective date, the Registration Statement or any further
amendment thereto (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus as amended or
supplemented (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion),
at the time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Time of Delivery,
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(d) On the date of the Pricing Agreement for such Designated
Shares and at the Time of Delivery for such Designated Shares, the
independent public accountants of the Company who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter, dated the date of the
Pricing Agreement and the Time of Delivery, respectively, to the
effect set forth in Annex II hereto, and with respect to such letter
--------
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended
prior to the date of the Pricing Agreement relating to the Designated
Shares any loss or interference with its business from fire,
explosion, flood or other calamity, or from any labor dispute or court
or governmental action, order or decree, or any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, otherwise than as set forth or
contemplated in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Shares, and (ii) since
the respective dates as of which information is given in the
Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Shares there shall not have been any change
in the capital stock of the Company or any change in the consolidated
long-term debt of the Company and its subsidiaries or any decrease in
consolidated net current assets or net assets or any change, or any
development involving a prospective change, in or affecting the
general affairs, management, financial position, shareholders' equity
or results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Shares, 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 Designated
Shares on the terms and in the manner contemplated in the Prospectus
as first amended or supplemented relating to the Designated Shares;
(f) On or after the date of the Pricing Agreement relating to the
Designated Shares (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred shares by any
"nationally recognized statistical rating organization," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities or
preferred shares;
(g) On or after the date of the Pricing Agreement relating to the
Designated Shares there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on the New
York Stock Exchange; (iii) a general moratorium on commercial banking
activities in New York or Texas declared by either Federal, Texas or
New York authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any
such event specified in this clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Designated Shares on the
terms and in the manner contemplated in the Prospectus as first
amended or supplemented relating to the Designated Shares; and
(h) The Company shall have furnished or caused to be furnished
to the Representatives at the Time of Delivery for the Designated
Shares a certificate or certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (e) of
this Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and
any other prospectus relating to the Shares, or any amendment or
supplement thereto (including the information deemed to be a part of
the Registration Statement pursuant to Rule 434 under the Act, if
applicable), or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission if any such settlement
is effected with the written consent of the Company, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred;
provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Shares, or any such amendment or supplement
in reliance upon and in conformity with written information furnished
to the Company by any Underwriter of Designated Shares through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Shares.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Shares, or any amendment or supplement
thereto (including the information deemed to be a part of the
Registration Statement pursuant to Rule 434 under the Act, if
applicable), or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Shares, or any
such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Underwriter
through the Representatives expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel (unless separate counsel is
required due to conflict of interest) or any other expenses, in each
case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
any judgement with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this subsection
(a) or (b) above (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated
Shares on the other from the offering of the Designated Shares to
which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or
if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand
and the Underwriters of the Designated Shares on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and such
Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriters. The relative
fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include
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 subsection (d), no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the applicable Designated
Shares underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated Shares in this subsection (d) to contribute
are several in proportion to their respective underwriting obligations
with respect to such Shares and not joint.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions,
to each officer and trust manager of the Company and to each person,
if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Shares which it has agreed to purchase under the
Pricing Agreement relating to such Designated Shares, the
Representatives may in their discretion arrange for themselves or
another party or other parties to purchase such Designated Shares on
the terms contained herein. If within thirty-six hours after such
default by any Underwriter the Representatives do not arrange for the
purchase of such Designated Shares, then the Company shall be entitled
to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to the Representatives to
purchase such Designated Shares on such terms. In the event that,
within the respective prescribed period, the Representatives notify
the Company that they have so arranged for the purchase of such
Designated Shares, or the Company notifies the Representatives that it
has so arranged for the purchase of such Designated Shares, the
Representatives or the Company shall have the right to postpone the
Time of Delivery for such Designated Shares for a period of not more
than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements,
and the Company agrees to file promptly any amendments or supplements
to the Registration Statement or the Prospectus which in the opinion
of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Shares.
(b) If, after giving effect to any arrangements for the purchase
of the Designated Shares of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a)
above, the aggregate number of such Designated Shares which remains
unpurchased does not exceed one-tenth of the aggregate number of the
Designated Shares, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the number of Designated
Shares which such Underwriter agreed to purchase under the Pricing
Agreement relating to such Designated Shares and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share
(based on the number of Designated Shares which such Underwriter
agreed to purchase under such Pricing Agreement) of the Designated
Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Designated Shares of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a)
above, the aggregate number of Designated Shares which remains
unpurchased exceeds one-tenth of the aggregate number of the
Designated Shares, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above
to require non-defaulting Underwriters to purchase Designated Shares
of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Designated Shares shall thereupon
terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or trust manager or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Shares covered by such Pricing Agreement except
as provided in Section 6 and Section 8 hereof. If this Agreement shall be
terminated as a result of any of the conditions set forth in Section 7 hereof
(other than Section 7(g)(i), (iii) or (iv)) not being satisfied, the Company
will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Designated
Shares, but the Company shall then be under no further liability to any
Underwriter with respect to such Designated Shares except as provided in
Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Shares shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and trust managers of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us four counterparts hereof.
Very truly yours,
XXXXXXXXXX REALTY INVESTORS
By: Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Sr. Vice President/CFO
Accepted as of the date hereof:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX XXXXX XXXXXX
XXXX XXXXX XXXX XXXXXX, INCORPORATED
BY: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: Xxxx X. Xxxxxxxx XX
-------------------------------
Authorized Signatory
ANNEX I
-------
Pricing Agreement
-----------------
[Name(s) of Representative(s)]
As Representatives of the several
Underwriters named in Schedule I hereto,
[Name and address of Representative]
_________________, 200_
Dear Sirs:
Xxxxxxxxxx Realty Investors, a Texas real estate investment trust (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated _______________ __, 200_ (the "Underwriting
Agreement"), between the Company on the one hand and [names of Representatives
named therein] on the other hand, to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") the Shares specified in Schedule II
hereto (the "Designated Shares"). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein; and each of the representations and
warranties set forth therein shall be deemed to have been made at and as of the
date of this Pricing Agreement, except that each representation and warranty
which refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the Designated Shares
which are the subject of this Pricing Agreement. Each reference to the
Representatives herein and in the provisions of the Underwriting Agreement so
incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Shares pursuant to Section 12 of the Underwriting Agreement and the address of
the Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Prospectus,
as the case may be, relating to the Designated Shares, in the form heretofore
delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting
Agreement incorporated herein by reference, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II hereto, the number
of Designated Shares set forth opposite the name of such Underwriter in Schedule
I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us ____ counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
XXXXXXXXXX REALTY INVESTORS
By:______________________________
Name:
Title:
Accepted as of the date hereof:
[Name of Representatives]
By_______________________
On behalf of each of the Underwriters
SCHEDULE I
----------
Number of
Designated Shares
Underwriter to be Purchased
----------- ------------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . .
____________
SCHEDULE II
-----------
TITLE OF DESIGNATED SHARES:
[DATE OF BOARD RESOLUTION ESTABLISHING DESIGNATED SHARES:]
NUMBER OF DESIGNATED SHARES:
INITIAL OFFERING PRICE TO PUBLIC:
[$ ___ per share] [Formula]
PURCHASE PRICE BY UNDERWRITERS:
[$ ___ per share] [Formula]
[COMMISSION PAYABLE TO UNDERWRITERS:
$ ___ per share]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[New York] Clearing House funds
DIVIDEND RATE:
[ % per annum]
DIVIDEND PAYMENT DATES:
[months and dates]
DIVIDEND RIGHTS:
[Non-] cumulative, [deferred]
VOTING RIGHTS:
LIQUIDATION RIGHTS:
PREEMPTIVE AND CONVERSION RIGHTS:
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Shares may be redeemed, [otherwise than through the
sinking fund,] in whole or in part at the option of the Company, [on or
after, at the following redemption prices:
Year Redemption Price
---- ----------------
and thereafter at $per share, together in each case with accrued dividends
to the redemption date.]
[on any dividend payment date falling in or after , , at the election of
the Company, at a redemption price equal to the stated amount thereof, plus
accrued dividends to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
SINKING FUND PROVISIONS:
[None]
[The Designated Shares are entitled to the benefit of a sinking fund to
retire Designated Shares on in each of the years through at
100% of their stated amount plus accrued dividends] [, together
with [cumulative] [noncumulative] redemptions at the option of the
Company to retire an additional Designated Shares in the years
through at 100% of their stated amount plus accrued dividends].
TIME OF DELIVERY:
CLOSING LOCATION FOR DELIVERY OF SHARES:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]*:
___________
*A description of particular tax, accounting or other unusual features
(such as the addition of event risk provisions) of the Designated Shares should
be set forth, or referenced to an attached and accompanying description, if
necessary to ensure agreement as to the terms of the Shares to be purchased and
sold. Such a description might appropriately be in the form in which such
features will be described in the Prospectus Supplement for the offering.
ANNEX II
--------
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants shall
furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been [separately] furnished to the representative or
representatives of the Underwriters (the "Representatives") such term to
include an Underwriter or Underwriters who act without any firm being
designated as its or their representatives [and are attached hereto];
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus and/or
included in the Company's quarterly report on Form 10-Q incorporated by
reference into the Prospectus as indicated in their reports thereon, as
applicable, copies of which [have been separately furnished to the
Representatives][are attached hereto]; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in
paragraph (vi)(A)(i) below comply as to form in all material respects with
the applicable accounting requirements of the [Act and the Exchange] Act
and the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the [Act and the
Exchange] Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d)
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements
of cash flows included in the Prospectus and/or included or
incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus for them to be
in conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
or incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or net assets or
shareholders' equity or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in
the latest balance sheet included or incorporated by reference in
the Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (E) there
were any decreases in total revenues or net income or net income
per share or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each
case as compared with the comparable period of the preceding year
and with any other period of corresponding length specified by
the Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived
from the general accounting records of the Company and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated by
reference), or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
--------
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Shares for purposes
of the letter delivered at the Time of Delivery for such Designated Shares.
ANNEX III
---------
Alabama-Shepherd Shopping Center
AN/WRI Partnership, Ltd.
East Town, Lake Xxxxxxx Co.
Eastex Venture
GJR/Xxxxxxxxxx Little York Venture
GJR/Xxxxxxxxxx River Point Venture
Hospitality Venture
Jacinto City, Ltd.
Lisbon Street Shopping Trust
Main/O.S.T., Ltd.
Markham West Shopping Center, L.P.
NEC Dalrock and SH 66, Ltd.
Northwest Hollister Venture
Xxxxxx Boulevard Venture
Xxxxxxxxx, Ltd.
S/W Albuquerque, X.X.
Xxxxxxx Center, Ltd.
South Loop-Long Wayside Company
SPM/WRI College Station, L.P.
SPM/WRI Overland Park, L.P.
SPM/WRI Rockwall, X.X.
Xxxxxxxxxx/Bridges at Smoky Hills
Xxxxxxxxxx/Finger Venture
Xxxxxxxxxx/Xxxxxx Xxxxxxxxx
Xxxxxxxxxx/Xxxxxx/Englewood
Xxxxxxxxxx/Xxxxxx/Xxxxx Joint Vent
Xxxxxxxxxx/Xxxxxx/Thorncreek Joint
Xxxxxxxxxx-Xxxxxx, Ltd.
WRI/Xxxxxx Venture
WRI/Xxxxxxxxx Venture
