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EXHIBIT 1.1
___________
XXXXXXX REAL ESTATE, INC.
$100,000,000 OF ___% SENIOR NOTES DUE 2004
UNDERWRITING AGREEMENT
______________________
November __, 1997
PAINEWEBBER INCORPORATED
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
Xxxxxxx Real Estate, Inc., a Maryland corporation (the "Company")
and Xxxxxxx Operating Limited Partnership, a Delaware limited partnership
(the "Operating Partnership" and together with the Company, the
"Transaction Entities"), confirm their agreement with PaineWebber
Incorporated, BT Alex. Xxxxx, Xxxxxxx Brothers Inc. and First Chicago
Capital Markets, Inc., (the "Underwriters," which term shall also include
any underwriter substituted as hereinafter provided in Section 9 of this
Agreement), with respect to the sale by the Operating Partnership and the
purchase by the Underwriters, acting severally and not jointly, of
$100,000,000 aggregate principal amount of its [____]% Senior Notes due
2004 (the "Securities"), as further described on SCHEDULES A AND C hereto.
Capitalized terms used but not otherwise defined herein shall
have the meanings given to those terms in the Prospectus (as herein
defined):
1. DESCRIPTION OF SECURITIES. The Operating Partnership
proposes to issue and sell to the Underwriters the Securities to be issued
under an Indenture, dated [__________], 1997 (the "Senior Indenture"), as
supplemented by Supplemental Indenture No. 1 thereto to be dated November
[__], 1997 (the "Supplemental Indenture" and, together with the Senior
Indenture, the "Indenture") between the Operating Partnership and LaSalle
National Bank, as trustee (the "Trustee").
2. REPRESENTATIONS AND WARRANTIES OF THE TRANSACTION ENTITIES.
Each of the Transaction Entities, jointly and severally, represents and
warrants to you and the Underwriters as follows:
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(a) A registration statement on Form S-3 (File
No. 333-36577) with respect to the Securities being offered by the
Operating Partnership, including a prospectus, has been prepared by
the Transaction Entities in conformity with the requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and the rules and
regulations of the Securities and Exchange Commission (the
"Commission") thereunder (the "1933 Act Rules and Regulations"), has
been filed with the Commission and has been declared effective. Such
registration statement and prospectus may have been amended or
supplemented prior to the date of this Underwriting Agreement; any
such amendment or supplement was so prepared and filed, and any such
amendment filed after the effective date of such registration
statement has been declared effective. No stop order suspending the
effectiveness of the registration statement has been issued, and no
proceeding for that purpose has been instituted or threatened by the
Commission. A prospectus supplement (the "Prospectus Supplement")
setting forth the terms of the offering, sale and plan of distribution
of the Securities being offered by the Operating Partnership and
additional information concerning the Operating Partnership and its
business has been or will be so prepared and will be filed pursuant to
Rule 424(b) of the 1933 Act Rules and Regulations on or before the
second business day after the date hereof (or such earlier time as may
be required by the 1933 Act Rules and Regulations). Copies of such
registration statement and prospectus, any such amendments or
supplements and all documents incorporated by reference therein that
were filed with the Commission on or prior to the date of this
Underwriting Agreement have been delivered or made available to you
and your counsel. Such registration statement, as it may have
heretofore been amended, is referred to herein as the "Registration
Statement," and the final form of prospectus included in the
Registration Statement, as supplemented by the Prospectus Supplement,
is referred to herein as the "Prospectus." Any reference herein to
the Registration Statement, the Prospectus, any preliminary prospectus
or any amendment or supplement thereto shall be deemed to refer to and
include the documents incorporated by reference therein, and any
reference herein to the terms "amend," "amendment" or "supplement"
with respect to the Registration Statement, Prospectus or any
preliminary prospectus shall be deemed to refer to and include the
filing after the execution hereof of any document with the Commission
deemed to be incorporated by reference therein. For purposes of this
Underwriting Agreement, all references to the Registration Statement,
the Prospectus, any preliminary prospectus or any amendment or
supplement thereto shall be deemed to include any copy filed with the
Commission pursuant to its Electronic Data Gathering Analysis and
Retrieval System (XXXXX), and such copy shall be identical to any
Prospectus delivered to you for use in connection with the offering of
the Securities by the Operating Partnership.
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(b) The Registration Statement and the
Prospectus, at the time the Registration Statement became effective
and at each time thereafter at which an Annual Report on Form 10-K, a
Quarterly Report on Form 10-Q or a Current Report on Form 8-K was
filed by either of the Transaction Entities with the Commission,
complied, and as of each applicable Representation Date (as herein
defined) will comply, in all material respects with the requirements
of the 1933 Act and the 1933 Act Rules and Regulations; the Indenture,
on the date of filing thereof with the Commission and at the Closing
Date (as hereinafter defined) conformed or will conform in all
material respects with the requirements of the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission
thereunder (the "TIA"); the Registration Statement, at the time it
became effective and at each time thereafter at which a Quarterly
Report on Form 10-Q or a Current Report on Form 8-K was filed by
either of the Transaction Entities with the Commission, did not, and
at each time thereafter at which any amendment to the Registration
Statement becomes effective or any Annual Report on Form 10-K,
Quarterly Report on Form 10-Q or Current Report on Form 8-K is filed
by either of the Transaction Entities with the Commission and as of
each Representation Date, 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;
and the Prospectus, as of the date hereof, does not, and as of each
Representation Date will not, include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; PROVIDED, HOWEVER, that the
representations and warranties in this subsection shall not apply to
(i) that part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification under the TIA (the "Form T-
1") and (ii) statements in or omissions from the Registration
Statement or Prospectus relating to you and made in reliance upon and
in conformity with information furnished to the Transaction Entities
in writing by you expressly for use in the Registration Statement or
Prospectus.
(c) The documents incorporated by reference in
the Registration Statement and the Prospectus, at the time they were
or hereafter are filed with the Commission, complied and will comply,
as the case may be, in all material respects with the requirements of
the Securities and Exchange Act of 1934 (the "1934 Act") and the rules
and regulations of the Commission thereunder (the "1934 Act Rules and
Regulations"), and, when read together with the other information in
the Registration Statement and the Prospectus, at the time the
Registration Statement became effective, as of each Representation
Date or during the period specified in Section 4(c) hereof, did not
and will not include an untrue statement of a material fact or omit to
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state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) The financial statements of the Operating
Partnership set forth or incorporated by reference in the Registration
Statement and Prospectus fairly present the financial condition of the
Operating Partnership as of the dates indicated and the results of
operations and changes in financial position for the periods therein
specified in conformity with generally accepted accounting principles
consistently applied through the periods involved (except as otherwise
stated therein). The summary financial, pro forma financial and
statistical data included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the
information shown therein and, to the extent based upon or derived
from the financial statements, have been compiled on a basis
consistent with the financial statements presented therein. No other
financial statements are required to be set forth in the Registration
Statement or the Prospectus under the 1933 Act or the 1933 Act Rules
and Regulations.
(e) The only subsidiaries (as defined in the 1933
Act Rules and Regulations) of the Transaction Entities are the
subsidiaries listed on SCHEDULE B hereto (the "Subsidiaries"). Each
of the Transaction Entities and each of their Subsidiaries has been
duly incorporated or formed, as the case may be, and is an existing
corporation or general or limited partnership, as the case may be, in
good standing under the laws of its jurisdiction of incorporation or
formation, as the case may be. Each of the Transaction Entities and
each of its Subsidiaries has full power and authority (corporate and
other) to conduct its business as described in the Registration
Statement and Prospectus, and is duly qualified to do business in each
jurisdiction in which it owns or leases real property or in which the
conduct of its business requires such qualification, except where the
failure to be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the business,
properties, financial position or results of operations of either of
the Transaction Entities; and, other than the Subsidiaries, the
Transaction Entities own no material amounts of stock or beneficial
interest in any corporation, partnership, joint venture or other
business entity and do not own 10% or more of the outstanding voting
stock of any entity separately taxable as a corporation under the
Internal Revenue Code of 1986, as amended (the "Code").
(f) All of the issued and outstanding capital
stock or ownership interests of each Subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable, [other
than _____________], and is wholly owned by one or both of the
Transaction Entities, directly or through subsidiaries, free and clear
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of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity. All of the partnership interests of the Operating
Partnership have been duly and validly authorized and issued and are
fully paid and approximately 95% of such partnership interests are
owned of record and beneficially by the Company, free and clear of all
liens, encumbrances, equities or claims.
(g) The Securities will be as of the Closing Date
duly authorized by the Operating Partnership for issuance and sale
pursuant to this Underwriting Agreement and the Indenture; and when
duly authenticated and delivered by the Trustee in accordance with the
terms of the Indenture (assuming the due authorization, execution and
delivery of the Indenture by the Trustee), and delivered to, and paid
for by, the Underwriters pursuant to this Underwriting Agreement, the
Securities will be valid and legally binding obligations of the
Operating Partnership entitled to the benefit of the Indenture and
will be enforceable against the Operating Partnership in accordance
with their terms, subject to (a) applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, (b) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or law) and (c) the discretion of the court before which any
proceeding therefor may be brought (clauses (a), (b) and (c) are
collectively referred to as the "Enforceability Limitations"); the
Indenture has been duly qualified under the TIA and prior to the
issuance of the Securities will be duly authorized, executed and
delivered by the Operating Partnership, and assuming due
authorization, execution and delivery thereof by the Trustee, will
constitute a valid and legally binding obligation of the Operating
Partnership, enforceable against the Operating Partnership in
accordance with its terms, subject to the Enforceability Limitations;
the Securities and the Indenture will conform in all material respects
to the statements relating thereto contained in the Prospectus; and
the Securities are, in all material respects, in the form contemplated
by the Indenture.
(h) Except as contemplated in the Prospectus,
subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, the Transaction
Entities have not incurred any liabilities or obligations, direct or
contingent, or entered into any transactions, not in the ordinary
course of business, that are material to the Transaction Entities on a
consolidated basis, and there has not been any material change in the
capital stock, short-term debt or long-term debt of the Transaction
Entities, or any material adverse change, or any development involving
a prospective material adverse change, in the condition (financial or
other), business, prospects, net worth or results of operations of the
Transaction Entities on a consolidated basis.
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(i) Except as set forth in the Prospectus, there
is not pending or, to the knowledge of the Transaction Entities,
threatened any action, suit or proceeding to which any of the
Transaction Entities is a party, before or by any court or
governmental agency or body, that might result in any material adverse
change in the condition (financial or other), business, prospects, net
worth or results of operations of the Transaction Entities, or might
materially and adversely affect the properties or assets thereof.
(j) There are no contracts or documents of the
Transaction Entities that are required to be filed as exhibits to the
Registration Statement or to any of the documents incorporated by
reference therein by the 1933 Act or the 1934 Act or by the 1933 Act
or 1934 Act Rules and Regulations that have not been so filed.
(k) The Agreement has been duly executed,
delivered and performed by each of the Transaction Entities, and the
Indenture has been duly authorized, executed delivered and performed
by the Operating Partnership. The execution of this Agreement and the
Indenture and the consummation of the transactions herein and therein
contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute,
any agreement or instrument to which either of the Transaction
Entities is a party or by which it is bound or to which any of the
property of either of the Transaction Entities is subject, the charter
or by-laws of either of the Transaction Entities, or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over either of the Transaction Entities or any of their
properties; no consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the
consummation of the transactions contemplated by this Agreement and
the Indenture in connection with the issuance or sale of the
Securities by the Operating Partnership, except such as may be
required under the 1933 Act, the TIA or state securities laws; and the
Operating Partnership has full power and authority to authorize, issue
and sell the Securities as contemplated by this Agreement and the
Indenture, free of any preemptive rights.
(l) The Transaction Entities have complied in all
respects with all laws, regulations and orders applicable to them or
their respective businesses; Neither of the Transaction Entities are
in default under any indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, bond debenture, note agreement or the
evidence of indebtedness, lease, contract or other agreement or
instrument to which either of the Transaction Entities are a party or
by which either of the Transaction Entities or any of their properties
are bound, violation of which would individually or in the aggregate
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have a material adverse effect on the Transaction Entities, and no
other party under any such agreement or instrument to which either of
the Transaction Entities is a party, to the knowledge of the
Transaction Entities, in default in any material respect thereunder;
and neither of the Transaction Entities are in violation of their
respective charter documents.
(m) Except as described in the Prospectus, and
except for defects or exceptions that are not material in relation to
the business of the Transaction Entities, their Subsidiaries and
Related Entities (as defined below): the Transaction Entities, each of
their Subsidiaries and any partnership or joint venture in which such
party is a participant (a "Related Entity") have good and marketable
title to all properties. If there are any liens, charges,
encumbrances, claims or restrictions affecting the properties and the
assets of any Transaction Entity, they are disclosed in the
Prospectus; the Transaction Entities, their Subsidiaries and Related
Entities have valid, subsisting and enforceable (subject to
limitations on enforceability of the type set forth in the following
Section 2(w) below) leases for the properties described in the
Prospectus as leased by them; no tenant under any of the leases
pursuant to which the Transaction Entities, their Subsidiaries and
Related Entities lease their properties has an option or right of
first refusal to purchase the premises demised under such lease; the
use and occupancy of each of the properties of the Transaction
Entities, their Subsidiaries and Related Entities complies in all
material respects with all applicable codes and zoning laws and
regulations; the Transaction Entities, their Subsidiaries and Related
Entities have no knowledge of any pending or threatened condemnation
or zoning change that will in any material respect affect the size of,
use of, improvement of, construction on, or access to any of the
properties of the Transaction Entities, their Subsidiaries or Related
Entities; and the Transaction Entities, their Subsidiaries and Related
Entities have no knowledge of any pending or threatened proceeding or
action that will in any manner materially affect the size of, use of,
improvements on, construction on, or access to any of the properties
of the Transaction Entities, their Subsidiaries or Related Entities.
(n) Title insurance in favor of the mortgagee,
the Transaction Entities, their Subsidiaries and Related Entities is
maintained with respect to each of the properties owned by the
Transaction Entities, their Subsidiaries and Related Entities in an
amount at least equal to the greater of (i) the cost of acquisition of
such property and (ii) the cost of construction by the Transaction
Entities, their Subsidiaries or Related Entities of the improvements
located on such property (measured at the time of such construction),
except, in each case, where the failure to maintain such title
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insurance would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Transaction Entities, their Subsidiaries and Related
Entities taken as a whole.
(o) The mortgages and deeds of trust encumbering
the properties and assets described in the Prospectus are not
convertible, nor do the Transaction Entities or their Subsidiaries
hold a participating interest therein.
(p) Except as set forth in the Prospectus, none
of the Transaction Entities has any knowledge of (i) the unlawful
presence of any hazardous substances, hazardous materials, toxic
substances or waste materials (collectively, "Hazardous Materials") on
any of the properties owned by each of them, or (ii) any unlawful
spills, releases, discharges or disposal of Hazardous Materials that
have occurred or are presently occurring off such properties as a
result of any construction on or operation and use of such properties,
which presence or occurrence would have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Transaction Entities taken as
whole. In connection with the construction on or operation and use of
the properties owned by the Transaction Entities, each of the
Transaction Entities represents that, as of the date of this
Agreement, it has no knowledge of any failure to comply with all
applicable local, state and federal environmental laws, regulations,
ordinances and administrative and judicial orders relating to the
generation, recycling, sale, storage, handling, transport and disposal
of any Hazardous Materials, which failure would have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Transaction
Entities taken as a whole.
(q) Property and casualty insurance in favor of
each of the Transaction Entities and each of their Subsidiaries is
maintained with respect to each of the properties owned by each of
them in an amount and on such items as is reasonable and customary for
businesses of this type.
(r) Each Transaction Entity has filed all
federal, state and foreign income tax returns which have been required
to be filed and has paid all taxes indicated by said returns and all
assessments received by it to the extent that such taxes have become
due.
(s) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body necessary in connection with
the execution and delivery by the Operating Partnership of this
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Agreement and the consummation of the transactions herein contemplated
has been obtained or made and is in full force and effect.
(t) Each Transaction Entity holds all material
licenses, certificates and permits from governmental authorities which
are necessary to the conduct of its business; and neither of the
Transaction Entities have infringed any patents, patent rights, trade
names, trademarks or copyrights, which infringement is material to the
business of the Operating Partnership as a whole.
(u) For all applicable tax years as to which the
Company's tax returns are subject to audit and the Company is subject
to assessment for taxes reportable therein, the Company has
continuously been organized and operating in conformity with the
requirements for qualification as a real estate investment trust under
the Code. The Company's method of operation will permit it to
continue to meet the requirements for taxation as a real estate
investment trust under the Code. The Company has no intention of
changing its operations or engaging in activities which would
adversely affect its ability to qualify, or make economically
undesirable its continued qualification as, a real estate investment
trust.
(v) Neither Transaction Entity or any of their
subsidiaries, is an "investment company" within the meaning of the
Investment Operating Partnership Act of 1940, as amended.
(w) Each of the partnership and joint venture
agreements to which either of the Transaction Entities is a party, and
which relates to real property described in the Prospectus, has been
duly authorized, executed and delivered by such applicable party and
constitutes the valid agreement thereof, enforceable in accordance
with its terms, except to the extent that enforcement thereof may be
limited by (1) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally and (2) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in
equity) and the executing, delivery and performance of any of such
agreements did not and will not, at the time of execution and
delivery, and does not and will not constitute a breach of, or a
default under, the charter, partnership agreement or bylaws of either
of the Transaction Entities or any material contract, lease or other
instrument to which the Operating Partnership or any of its
Subsidiaries is a party or to which any of their property may be bound
or any law, administrative regulation or administrative or court
decree.
3. PURCHASE, SALE AND DELIVERY OF SECURITIES. On the basis of
the representations, warranties and agreements contained herein, but
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subject to the terms and conditions set forth herein, the Operating
Partnership agrees to issue and sell the Securities to the several
Underwriters, and each of the Underwriters, severally and not jointly,
agrees to purchase from the Operating Partnership the respective principal
amount of Securities set forth on SCHEDULE C hereto at the purchase price
set forth on SCHEDULE A hereto plus accrued interest, if any, from the date
specified on SCHEDULE A hereto to the date of payment and delivery.
The Operating Partnership understands that the Underwriters
intend (i) to make a public offering of the Securities and (ii) initially
to offer the Securities upon the terms set forth in the Prospectus.
Payment for the Securities shall be made to the Operating
Partnership or to its order in immediately available funds in the amount,
on the date and at the time and place set forth on SCHEDULE A hereto (or at
such other time and place on the same or such other date, not later than
the third Business Day thereafter, as you and the Operating Partnership may
agree in writing). Such payment will be made upon delivery to you of the
Securities registered in such names and in such denominations as you shall
request not less than two full Business Days prior to the date of delivery,
with transfer taxes, if any, payable in connection with transfer to the
Underwriters duly paid by the Operating Partnership. As used herein, the
term "Business Day" means any day other than a day on which banks are
permitted or required to be closed in New York City. The time and date of
such payment and delivery with respect to the Securities are referred to
herein as the "Closing Date." The Securities will be delivered through the
book entry facilities of The Depository Trust Company ("DTC") and will be
made available for inspection by you by 1:00 P.M. New York City time on the
Business Day prior to the Closing Date at such place in New York City as
you, DTC and the Operating Partnership shall agree.
4. COVENANTS. Each of the Transaction Entities jointly and
severally covenants and agrees to:
(a) Cause the Prospectus Supplement to be filed
as required by Section 2(a) hereof (but only if you or your counsel
have not reasonably objected thereto by notice to the Transaction
Entities after having been furnished a copy a reasonable time prior to
filing) and will notify you promptly of such filing. During the
period in which a prospectus relating to the Securities is required to
be delivered under the 1933 Act, each of the Transaction Entities will
notify you immediately, and confirm such notice in writing, of (i) the
effectiveness of any amendment to the Registration Statement, (ii) the
transmittal to the Commission for filing of any amendment or
supplement to the Prospectus or any document to be filed pursuant to
the 1934 Act, (iii) the receipt of any comments from the Commission
with respect to the Registration Statement or the Prospectus and (iv)
any request by the Commission for any amendment to the Registration
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Statement or any amendment or supplement to the Prospectus or for
additional information. In addition, the Operating Partnership will
prepare and file with the Commission, promptly upon your request, any
amendments or supplements to the Registration Statement or the
Prospectus that, in your opinion or the opinion of your counsel, may
be necessary or advisable in connection with your distribution of the
Securities;
(b) Notify you immediately, and confirm such
notice in writing, of (i) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose and (ii) any change
in the rating assigned by any nationally recognized statistical rating
organization to any debt securities of the Transaction Entities or the
public announcement by any nationally recognized statistical rating
organization that it has under surveillance or review, with possible
negative implications, its rating of any debt securities of the
Operating Partnership. Each of the Transaction Entities will make
every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment;
(c) Give you advance notice of its intention to
file or prepare any amendment to the Registration Statement or any
amendment or supplement to the Prospectus, whether by filing of
documents pursuant to the 1934 Act or the 1933 Act or otherwise, and
will furnish to you copies of any such amendment or supplement or
other documents proposed to be filed or used a reasonable time in
advance of such proposed filing or use, as the case may be, and will
not file any such amendment or supplement or other documents in a form
to which you or counsel for you shall reasonably object;
(d) Deliver to you as many signed and conformed
copies of the Registration Statement (as originally filed) and of each
amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated by reference in the
Prospectus) as you reasonably request. The Transaction Entities will
furnish to you as many copies of the Prospectus (as amended or
supplemented) as you reasonably request so long as you are required to
deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Securities;
(e) Amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein not misleading in the light of the circumstances
existing at the time the Prospectus is delivered to a purchaser of
Securities sold by the Underwriters hereunder, or if it shall be
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necessary, in the opinion of either such counsel, to amend or
supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Rules and
Regulations, the Transaction Entities shall give immediate notice,
confirmed in writing, to the Underwriters to cease the solicitation of
offers to purchase any of the Securities, and the Operating
Partnership will promptly amend the Registration Statement and the
Prospectus, whether by filing documents pursuant to the 1934 Act or
the 1933 Act or otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement and
Prospectus comply with such requirements, if at any time during the
term of this Agreement any event shall occur or condition exist as a
result of which it is necessary, in the opinion of counsel for you or
counsel for the Operating Partnership, to amend or supplement the
Prospectus;
(f) Furnish such information to you, on or
prior to the date on which there shall be released to the general public
interim financial statement information related to the Operating
Partnership with respect to each of the first three quarters of any
fiscal year or preliminary financial statement information with respect to
any fiscal year, such information to you, confirmed in writing, and shall
cause the Prospectus to be amended or supplemented to include or
incorporate by reference financial information with respect thereto and
corresponding information for the comparable period of the preceding
fiscal year, as well as such other information and explanations as shall
be necessary for an understanding thereof or as shall be required by the
1933 Act or the 1933 Act Rules and Regulations;
(g) Furnish such information to you, on or
prior to the date on which there shall be released to the general public
financial information included in or derived from the audited financial
statements of the Operating Partnership for the preceding fiscal year,
confirmed in writing, and shall cause the Registration Statement and
the Prospectus to be amended, whether by the filing of documents
pursuant to the 1934 Act or the 1933 Act or otherwise, to include or
incorporate by reference such audited financial statements and the
report or reports, and consent or consents to such inclusion or
incorporation by reference, of the independent accountants with
respect thereto, as well as such other information and explanations as
shall be necessary for an understanding of such financial statements or as
shall be required by the 1933 Act or the 1933 Act Rules and Regulations;
(h) Make generally available to its security holders
as soon as practicable, but not later than 90 days after the close of the
period covered thereby, an earning statement (in form complying with the
provisions of Rule 158 of the 1933 Act Rules and Regulations) covering
each twelve month period beginning, in each case, not later than the first
day of the Operating Partnership's fiscal quarter next following the
"effective date" (as defined in such Rule 158) of the Registration
Statement with respect to each sale of Securities;
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(i) Endeavor, in cooperation with you, to file any
notices or other documents required with respect to the offer and sale
of the Securities under the applicable securities laws of such states and
other jurisdictions of the United States as you may designate; PROVIDED,
HOWEVER, that the Operating Partnership shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified. The
Operating Partnership will promptly advise you of the receipt by the
Operating Partnership of any notification by any governmental
authority responsible for administering such laws with respect to
the Securities in any such state or jurisdiction;
(j) File all documents required to be filed with
the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the
time periods prescribed by the 1934 Act and the 1934 Act Rules and
Regulations, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with sales of
the Securities;
(k) Cause all affiliated purchasers within the
meaning of Rule 100 of Regulation M under the 1934 Act to, comply with
Regulation M under the 1934 Act, during the term of this Agreement;
(l) Use, in the case of the Company, its best
efforts to meet the requirements to qualify as a "real estate
investment trust" under the Code for the taxable year in which sales of
the Securities are to occur, unless otherwise specified in the
Prospectus; and
(m) Whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, (i) pay
the costs and charges of any transfer agent or registrar, as well
as the cost of preparing stock certificates, (ii) pay all other expenses
incident to the performance of its obligations hereunder, including, but
not limited to, the expenses of printing all documents relating to the
offering and (iii) reimburse the Underwriters for any filing fee of
the NASD relating to the Securities. If the sale of Securities provided
for herein is not consummated by reason of any failure, refusal
or inability on the part of the Operating Partnership to perform any of
its obligations hereunder, or because any other condition of your
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obligations hereunder required to be fulfilled by the Operating
Partnership is not fulfilled, the Operating Partnership will reimburse
the Underwriters for all reasonable out-of-pocket disbursements (including
reasonable fees and disbursements of counsel) incurred by the
Underwriters in connection with their investigation, preparing to market
and marketing the Securities or in contemplation of performing their
obligations hereunder. The Operating Partnership shall not in any event
be liable to the Underwriters for loss of anticipated profits from the
transactions covered by this Agreement.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS AT THE CLOSING. The
Underwriters' obligation to purchase and pay for the Securities at the
Closing as provided herein shall be subject to the accuracy of the
representations and warranties of the Transaction Entities herein and to
the performance by each Transaction Entity of its obligations hereunder and
to the following additional conditions:
(a) You shall have received the opinion of
Xxxxxxx, Procter & Xxxx LLP, counsel for the Operating Partnership,
dated the Closing Date, to the effect that:
(i) Each of the Transaction Entities and each
of their Subsidiaries has been duly incorporated or formed, as the
case may be, and is validly existing as a corporation or general
or limited partnership, as the case may be, and in good standing
under the laws of its jurisdiction of incorporation or formation,
as the case may be, has full power and authority to conduct
its business as described in the Registration Statement and
Prospectus, and is duly qualified to do business in each
jurisdiction in which it owns or leases real property or in
which the conduct of its business requires such qualification except
where the failure to be so qualified, considering all such cases
in the aggregate, does not involve a material risk to a business,
properties, financial position or results of operations of the
Transaction Entities taken as a whole;
(ii) All of the partnership interests of the
Operating Partnership owned by the Company are owned by the Company
free and clear of all liens, charges and encumbrances;
(iii) The Registration Statement has become
effective under the 1933 Act and the Prospectus Supplement
has been filed as required by Section 2(a) hereof; and no stop
order suspending the effectiveness of the Registration Statement
shall have been issued and no proceeding for that purpose shall
have been instituted or, to the knowledge of such counsel or of
either of the Transaction Entities, threatened by the Commission;
(iv) Each part of the Registration Statement,
when such part became effective, and the Prospectus and any amendment
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or supplement thereto, on the date of filing thereof with the
Commission and at the Closing Date, complied as to form in all
material respects with the requirements of the 1933 Act and the 1933
Act Rules and Regulations; and such counsel has no reason to believe
that either any part of the Registration Statement, when such
part became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
or that the Prospectus and any amendment or supplement thereto, on
the date of filing thereof with the Commission and at the Closing
Date, included an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and the documents incorporated by reference in the
Registration Statement or Prospectus or any amendment or supplement
thereto, when they became effective under the 1933 Act or were filed
with the Commission under the 1934 Act, as the case may be, complied
as to form in all material respects with the requirements of the
1933 Act or the 1934 Act, as applicable, and the 1933 Act or 1934
Act Rules and Regulations, as applicable; it being understood that
such counsel need express no opinion as to the financial statements
or other financial data included in any other documents
mentioned in this clause;
(v) The descriptions in the Registration
Statement and Prospectus of statutes, legal and governmental
proceedings, contracts and other documents are accurate and fairly
present the information required to be shown; and such counsel does
not know of any statutes or legal or governmental proceedings required
to be described in the Prospectus that are not described as required,
or of any contracts or documents of a character required to
be described in the Registration Statement or Prospectus (or
required to be filed under the 1934 Act if upon such filing they
would be incorporated by reference therein) or to be filed as
exhibits to the Registration Statement that are not described and
filed as required;
(vi) The Operating Partnership has the corporate
power and authority to enter into this Agreement, and this Agreement
has been duly authorized, executed and delivered by the Operating
Partnership; the performance of this Agreement and the consummation
of the transactions herein contemplated will not result in a breach
or violation of any of the terms and provisions of, or constitute a
default under, any statute, any agreement or instrument known to such
counsel to which the Operating Partnership is a party or by which it
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is bound or to which any of the property of the Operating
Partnership is subject, the Operating Partnership's charter or
by-laws, or any order, rule or regulation known to such counsel
of any court of governmental agency or body having jurisdiction
over the Operating Partnership or any of its properties; and no
consent, approval, authorization or order of, or filing with, any
court or governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement in connection
with the issuance or sale of the Securities by the Operating
Partnership, except such as have been obtained under the 1933 Act
and such as may be required under state securities laws in
connection with the purchase and distribution of the Securities
by the Underwriters;
(vii) The Company has been duly formed and is
validly existing as a real estate investment trust in good standing
under and by virtue of the laws of the State of Maryland, is in good
standing with the State Department of Assessments and Taxation of
Maryland and as a foreign trust or corporation in those jurisdictions
listed in such opinion, and has all trust power and authority
necessary to own or hold its properties and to conduct the business
in which it is engaged as described in the Registration Statement and
the Prospectus, and to enter into and perform its obligations under
this Agreement;
(viii) None of the Transaction Entities or
their subsidiaries is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(ix) The Operating Partnership is classified as
a partnership (and is not taxed as a corporation) for federal income
tax purposes; and
(x) The Operating Partnership is eligible to use
a Form S-3 Registration Statement under the 1933 Act Rules and
Regulations.
(b) You shall have received from Xxxxxx & Xxxxx, your
counsel, such opinion or opinions, dated the Closing Date, with respect
to the organization of each of the Transaction Entities, the validity
of the Securities, the Registration Statement, the Prospectus and other
related matters as you reasonably may request, and such counsel shall
have received such papers and information as they request to enable them
to pass upon such matters.
(c) At the time of execution of this Agreement and
at the Closing Date, you shall have received a letter from KPMG Peat
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Marwick LLP, dated at the date of delivery thereof, to the effect set forth
in EXHIBIT I hereto.
(d) You shall have received from each of the
Transaction Entities a certificate, signed by the president or a vice
president and by the principal financial or accounting officer of the
Transaction Entity, dated the Closing Date, to the effect that, to the
best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the
Transaction Entities in this Agreement are true and correct, as
if made at and as of the Closing Date, and the Transaction Entities
has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) No stop order suspending the effectiveness
of the Registration Statement has been issued, and no proceeding
for that purpose has been instituted or is threatened, by the
Commission; and
(iii) Since the effective date of the
Registration Statement, there has occurred no event required to
be set forth in an amendment or supplement to the Registration
Statement or Prospectus that has not been so set forth, and there has
been no document required to be filed under the 1934 Act and the 1934
Act Rules and Regulations that upon such filing would be deemed to
be incorporated by reference in the Prospectus that has not been so
filed.
(e) (i) None of the Transaction Entities or their
Subsidiaries or any Property shall have sustained since the date of the
latest audited financial statements included in the Prospectus any 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 or (ii) since such date
there shall not have been any change in the capital stock or long-term
debt of either Transaction Entity or any change, or any development
involving a prospective change, in or affecting any Property
Affiliate or Property or the general affairs, management, financial
position, shareholders' equity or results of operations of either
Transaction Entity, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is, in the judgment of the Underwriters, so material
and adverse as to make it impracticable or inadvisable to proceed with
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the public offering or the delivery of the Securities being delivered
on the Closing Date on the terms and in the manner contemplated in the
Prospectus.
(f) 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 or the
American Stock Exchange or in the over-the-counter market, or trading in
any securities of the Company on any exchange or in the over-the-counter
market, 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 or state 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 Securities being
delivered on the Closing Date on the terms and in the manner
contemplated in the Prospectus.
(g) Subsequent to the execution and delivery of this
Agreement (i) no downgrading shall have occurred in the rating accorded
the Operating Partnership's debt securities by any "nationally recognized
statistical rating organization," as that term is defined by the Commission
for purposes of Rule 436(g)(2) of the Rules and Regulations 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 Operating Partnership's debt securities.
(h) On the date hereof and on the Closing
Date, counsel to you shall have been furnished with such documents and
opinions as such counsel may reasonably require for the purpose of
enabling such counsel to pass upon the issuance and sale of
Securities as herein contemplated and related proceedings, or in order
to evidence the accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Transaction Entities in
connection with the issuance and sale of Securities as herein contemplated
shall be satisfactory in form and substance to you and to counsel to you.
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[(i) To the extent required by its rules, the NASD
shall have approved the underwriting terms and arrangements and such
approval shall not have been withdrawn or limited.]
(j) All such opinions, certificates, letters and
other documents will be in compliance with the provisions hereof only
if they are satisfactory in form and substance to you and your counsel.
The Operating Partnership will furnish you with such conformed copies
of such opinions, certificates, letters and other documents as you shall
reasonably request and the Operating Partnership shall furnish to you
such further certificates and documents as you shall have reasonably
requested.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Transaction Entities jointly and
severally will indemnify and hold harmless each Underwriter and its
directors, officers, employees and agents and each person, if any, who
controls each Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act from and against any and all losses,
claims, liabilities, expenses and damages (including, but not limited
to, any and all investigative, legal and other expenses reasonably
incurred in connection with, and any and all amounts paid in
settlement of, any action, suit or proceeding between any of the
indemnified parties and any indemnifying parties or between any
indemnified party and any third party, or otherwise, or any claim
asserted), as and when incurred, to which an Underwriter, or any such
person, may become subject under the 1933 Act, the 1934 Act or other
federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, liabilities, expenses or
damages arise out of or are based on (i) any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or any amendment or
supplement to the Registration Statement or the Prospectus or in any
documents filed under the 1934 Act and deemed to be incorporated by
reference into the Prospectus, or in any application or other document
executed by or on behalf of the Operating Partnership or based on
written information furnished by or on behalf of the Operating
Partnership filed in any jurisdiction in order to qualify the
Securities under the securities laws thereof or filed with the
Commission, (ii) the omission or alleged omission to state in such
document a material fact required to be stated in it or necessary to
make the statements in it not misleading or (iii) any act or failure
to act or any alleged act or failure to act by an Underwriter in
connection with, or relating in any manner to, the Securities or the
offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, liability, expense or damage arising
out of or based upon matters covered by clause (i) or (ii) above
(provided that the Transaction Entities shall not be liable under this
clause (iii) to the extent it is finally judicially determined by a
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court of competent jurisdiction that such loss, claim, liability,
expense or damage resulted directly from any such acts or failures to
act undertaken or omitted to be taken by an Underwriter through gross
negligence or willful misconduct); provided that the Transaction
Entities will not be liable to the extent that such loss, claim,
liability, expense or damage arises from the sale of the Securities to
any person by an Underwriter and is based on an untrue statement or
omission or alleged untrue statement or omission made in reliance on
and in conformity with information relating to an Underwriter
furnished in writing to the Transaction Entities by an Underwriter
expressly for inclusion in the Registration Statement or the
Prospectus.
(b) The Underwriters will indemnify and hold
harmless each Transaction Entity, its officers and employees, each of
its trustees and, each person, if any, who controls each Transaction
Entity within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act, each partner of the Transaction Entities and each
officer of the Transaction Entities who signs the Registration
Statement to the same extent as the foregoing indemnity from the
Transaction Entities to the Underwriters, but only insofar as losses,
claims, liabilities, expenses or damages arise out of or are based on
any untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information
relating to an Underwriter furnished in writing to the Transaction
Entities by an Underwriter expressly for use in the Registration
Statement or the Prospectus. This indemnity will be in addition to
any liability that the Underwriters might otherwise have; PROVIDED,
HOWEVER, that in no case shall the Underwriters be liable or
responsible for any amount in excess of the underwriting discounts and
commissions received by the Underwriters.
(c) Any party that proposes to assert the right
to be indemnified under this Section 6 will, promptly after receipt of
notice of commencement of any action against such party in respect of
which a claim is to be made against an indemnifying party or parties
under this Section 6, notify each such indemnifying party of the
commencement of such action, enclosing a copy of all papers served,
but the omission so to notify such indemnifying party will not relieve
it from any liability that it may have to any indemnified party under
the foregoing provisions of this Section 6 unless, and only to the
extent that, such omission results in the forfeiture of substantive
rights or defenses by the indemnifying party. If any such action is
brought against any indemnified party and it notifies the indemnifying
party of its commencement, the indemnifying party will be entitled to
participate in and, to the extent that it elects by delivering written
notice to the indemnified party promptly after receiving notice of the
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commencement of the action from the indemnified party, jointly with
any other indemnifying party similarly notified, to assume the defense
of the action, with counsel satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of
its election to assume the defense, the indemnifying party will not be
liable to the indemnified party for any legal or other expenses except
as provided below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the
defense. The indemnified party will have the right to employ its own
counsel in any such action, but the fees, expenses and other charges
of such counsel will be at the expense of such indemnified party
unless (i) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (ii) the indemnified
party has reasonably concluded (based on advice of counsel) that there
may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the
indemnifying party, (iii) a conflict or potential conflict exists
(based on advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of
such action on behalf of the indemnified party) or (iv) the
indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice
of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at
the expense of the indemnifying party or parties. It is understood
that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees, disbursements and other charges of
more than one separate firm admitted to practice in such jurisdiction
at any time for all such indemnified party or parties. All such fees,
disbursements and other charges will be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party will not
be liable for any settlement of any action or claim effected without
its written consent (which consent will not be unreasonably withheld).
No indemnifying party shall, without the prior written consent of each
indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding
relating to the matters contemplated by this Section 6 (whether or not
any indemnified party is a party thereto), unless such settlement,
compromise or consent includes a unconditional release of each
indemnified party form all liability arising or that may arise out of
such claim, action or proceeding. Notwithstanding any other provision
of this Section 6(c), if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel, such indemnifying party agrees that it
shall be liable for any settlement effected without its written
consent if (i) such settlement is entered into more than 45 days after
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receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of
such settlement.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided
for in the foregoing paragraphs of this Section 6 is applicable in
accordance with its terms but for any reason is held to be unavailable
from the Transaction Entities or the Underwriters, the Transaction
Entities and the Underwriters will contribute to the total losses,
claims, liabilities, expenses and damages (including any
investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted, but after deducting any
contribution received by the Transaction Entities from persons other
than the Underwriters, such as persons who control the Transaction
Entities within the meaning of the 1933 Act and officers of the
Transaction Entities who signed the Registration Statement, who also
may be liable for contribution) to which the Transaction Entities and
the Underwriters may be subject in such proportion as shall be
appropriate to reflect the relative benefits received by the
Transaction Entities on the one hand and the Underwriters on the
other. The relative benefits received by the Transaction Entities on
the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Transaction Entities bear
to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page
of the Prospectus Supplement. If, but only if, the allocation
provided by the foregoing sentence is not permitted by applicable law,
the allocation of contribution shall be made in such proportion as is
appropriate to reflect not only the relative benefits referred to in
the foregoing sentence but also the relative fault of the Transaction
Entities, on the one hand, and the Underwriters, on the other, with
respect to the statements or omissions which resulted in such loss,
claim, liability, expense or damage, or action in respect thereof, as
well as any other relevant equitable considerations with respect to
such offering. Such 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 Transaction Entities 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. The amount paid or payable by an indemnified party as a
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result of the loss, claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 6(d) shall be
deemed to include, for purpose of this Section 6(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 6(d), the Underwriters
shall not be required to contribute any amount in excess of the
underwriting discounts, commissions and other compensation received by
the Underwriters and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 6(d), any person who controls a party to this Agreement within
the meaning of the 1933 Act will have the same rights to contribution
as that party, and each officer of the Transaction Entities who signed
the Registration Statement will have the same rights to contribution
as the Transaction Entities, subject in each case to the provisions
hereof. Any party entitled to contribution, promptly after receipt of
notice of commencement of any action against such party in respect of
which a claim for contribution may be made under this Section 6(d),
will notify any such party or parties from whom contribution may be
sought but the omission so to notify will not relieve the party or
parties from whom contribution may be sought from any other obligation
it or they may have under this Section 6(d). Except for a settlement
entered into pursuant to the last sentence of Section 6(c) hereof, no
party will be liable for contribution with respect to any action or
claim settled without its written consent (which consent will not be
unreasonably withheld).
(e) The indemnity and contribution agreements
contained in this Section 6 and the representations and warranties of
the Transaction Entities contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by the Underwriters or on their behalf, (ii)
acceptance of the Securities and payment therefore or (iii) any
termination of this Agreement.
7. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective: (i) upon the execution hereof by the parties hereto; or (ii)
if, at the time this Agreement is executed and delivered, it is necessary
for the Registration Statement or a post-effective amendment thereto to be
declared effective before the offering of the Securities may commence, when
notification of the effectiveness of the Registration Statement or such
post-effective amendment has been released by the Commission.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements of the Transaction Entities
contained herein or in certificates delivered pursuant hereto, and the
Underwriters' agreements contained in Section 6 hereof, shall remain
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operative and in full force and effect regardless of any investigation made
by or on behalf of the Underwriters or any controlling persons, or the
Transaction Entities or any of its officers or any controlling persons, and
shall survive delivery of and payment for the Securities hereunder.
9. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If, on the
Closing Date, any Underwriter defaults in the performance of its
obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the Securities that the defaulting
Underwriter agreed but failed to purchase on the Closing Date in the
respective proportions which the principal amount of Securities set forth
opposite the name of each remaining non-defaulting Underwriter in SCHEDULE
A hereto bears to the total aggregate principal amount of Securities set
forth opposite the names of all the remaining non-defaulting Underwriters
in SCHEDULE A hereto; PROVIDED, HOWEVER, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any of the Securities on
the Closing Date if the total aggregate principal amount of Securities
which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such date exceeds 9.09% of the total aggregate principal amount
of Securities to be purchased on the Closing Date, and any remaining non-
defaulting Underwriter shall not be obligated to purchase more than 110% of
the aggregate principal amount of Securities which it agreed to purchase on
the Closing Date pursuant to the terms of Section 3. If the foregoing
maximums are exceeded, the remaining non-defaulting Underwriters, or those
other underwriters satisfactory to the Underwriters 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 Securities to be purchased on the
Closing Date. If the remaining Underwriters or other underwriters
satisfactory to the Underwriters do not elect to purchase the Securities
which the defaulting Underwriter or Underwriters agreed but failed to
purchase on the Closing Date, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Transaction
Entities, except that the Transaction Entities will continue to be liable
for the payment of expenses to the extent set forth in Sections 4 and 6.
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 A hereto who, pursuant to this Section 9, purchases
Securities 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 Transaction Entities for damages caused
by its default. If other underwriters are obligated or agree to purchase
the Securities of a defaulting or withdrawing Underwriter, either the
Underwriters 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 Operating Partnership or counsel for the Underwriters may
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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 Underwriters by notice given to and received by
the Operating Partnership prior to delivery of and payment for the
Securities if, prior to that time, any of the events described in Sections
5(e) or 5(f) shall have occurred or if the Underwriters shall decline to
purchase the Securities for any reason permitted under this Agreement.
11. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Operating
Partnership shall fail to tender the Securities for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of
the Transaction Entities to perform any agreement on their part to be
performed, or because any other condition of the Underwriters' obligations
hereunder required to be fulfilled by the Transaction Entities is not
fulfilled, the Transaction Entities 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 Securities, and upon demand the Transaction
Entities shall pay the full amount thereof to the Underwriters. If this
Agreement is terminated pursuant to Section 9 by reason of the default of
one or more Underwriters, the Transaction Entities shall not be obligated
to reimburse any defaulting Underwriter on account of those expenses.
12. NOTICES. All notices or communications hereunder shall be
in writing and if sent to you shall be mailed, delivered, telexed or
telecopied and confirmed to you at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, c/o Real Estate Investment Banking, attention: Xxxxx X.
Xxxxxx (phone 000-000-0000; fax 000-000-0000), (with a copy to Xxx X.
Xxxxxxxxx, Esq., c/o Rogers & Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, phone 000-000-0000; fax 000-000-0000), or if sent to the Operating
Partnership, shall be mailed, delivered, telexed or telecopied and
confirmed to Xxxxxx X. D'Arcy, CEO, or Xxxxxx X. Xxxxx, Xx., CFO, Xxxxxxx
Real Estate, Inc., 00 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx
00000 (phone 000-000-0000; fax 000-000-0000) (with copy to Xxxxxxx X. Xxxx,
P.C., x/x Xxxxxxx, Xxxxxxx & Xxxx XXX, Xxxxxxxx Xxxxx, Xxxxxx, XX 00000;
phone 000-000-0000; fax 000-000-0000). Any party to this Underwriting
Agreement may change such address for notices by sending to the other party
to this Underwriting Agreement written notice of a new address for such
purpose.
13. PARTIES. This Agreement shall inure to the benefit of, and
be binding upon, the Transaction Entities and the Underwriters and our
respective successors and the controlling persons and officers referred to
in Section 6(a) hereof, and no other person will have any right or
obligation hereunder.
25
26
14. APPLICABLE LAW. This Underwriting Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
26
27
Very truly yours,
XXXXXXX REAL ESTATE, INC.
By:______________________________________________
Name:
Title:
XXXXXXX OPERATING LIMITED PARTNERSHIP
By:______________________________________________
Name:
Title:
ACCEPTED as of the date first above
written
PAINEWEBBER INCORPORATED
By:____________________________________
Name: Xxxxx X. Xxxxxx
Title: Managing Director
For itself and on behalf of the Underwriters
27
28
EXHIBIT I
FORM OF KPMG COMFORT LETTER
I-1
29
SCHEDULE A
__________
Principal Amount
UNDERWRITERS OF 2004 NOTES
____________ _________________
PaineWebber Incorporated $ [_____]
BT Alex. Xxxxx [_____]
Salomon Brothers Inc. [_____]
First Chicago Capital Markets, Inc. [_____]
Total $100,000,000
X-0
00
XXXXXXXX X
__________
LIST OF SUBSIDIARIES OF THE
TRANSACTION ENTITIES
B-1
31
SCHEDULE C
__________
SENIOR NOTES DUE 2004
_____________________
Principal Amount $100,000,000.00
Coupon: [___]%
Settlement Date: [________], 1997
Price to Public: [____]%
Price to Public: $[_______]
Underwriting Discount: [____]%
Underwriting Discount: $[_____]
Price to Underwriter: [_____]%
Proceeds to the Company $[_______]
Maturity Date: [_______], 2004
2004 NOTES
__________
Total Price to Public: $[_________]
Total Underwriting Discount: $[_________]
Total Proceeds to the Company: $[_________]
C-1
