EXHIBIT 1.1
NEW PLAN EXCEL REALTY TRUST, INC.
(a Maryland corporation)
6,000,000 Shares of Common Stock
(par value $.01 per share)
UNDERWRITING AGREEMENT
January 23, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
MCDONALD INVESTMENTS INC.
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
New Plan Excel Realty Trust, Inc., a Maryland corporation (the
"Company"), confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. ("▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇"), ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated and McDonald Investments
Inc. (collectively, the "Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ is acting as representative (in such capacity, the
"Representative"), with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the
respective number of shares (the "Initial Shares") of the Company's common
stock, par value $.01 per share (the "Common Shares") set forth in Schedule A
hereto, for an aggregate purchase price of $105,420,000 ($17.57 per share), and
with respect to the grant by the Company to the Underwriters, acting severally
and not jointly, of the option described in Section 2(b) hereof to purchase all
or any part of 900,000 additional Common Shares (the "Option Shares") to cover
over-allotments, if any. The Initial Shares and all or any Option Shares are
collectively referred to herein as the "Securities." Capitalized terms used
herein without definition shall have the meanings assigned to such terms in the
Prospectus (as defined below) relating to the Securities.
The Company understands that the Underwriters propose to make a bona
fide public offering of the Securities at the purchase price per share specified
above as soon as the Underwriters deem advisable after this Agreement has been
executed.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-67511) covering the
registration of securities, including the Securities, under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus. Promptly after execution and delivery of this Agreement, the Company
will prepare and file a prospectus supplement relating to the Securities in
accordance with the provisions of Rule 424(b) ("Rule 424(b)") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations").
Such registration statement and any amendment thereto, including the exhibits
thereto, the schedules thereto, if any, and the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in each
case prior to the execution and delivery of this Agreement, are collectively
referred to herein as the "Registration Statement." The final prospectus and the
prospectus supplement relating to the Securities, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, in the form first furnished to the Underwriters for use in connection with
confirming sales of the Securities, are collectively referred to herein as the
"Prospectus." For purposes of this Agreement, all references to the Registration
Statement or the Prospectus or any amendment or supplement to either of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included," "set forth," "stated" or
"described" in the Registration Statement or the Prospectus (or other references
of like import) shall be deemed to include all such financial statements and
schedules and other information which is incorporated by reference in the
Registration Statement or the Prospectus, as the case may be, at or prior to the
execution and delivery of this Agreement; and all references in this Agreement
to amendments or supplements to the Registration Statement or the Prospectus
shall be deemed to include the filing of any document under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), after the execution and
delivery of this Agreement.
Section 1. Representations and Warranties of the Company.
(a) The Company represents and warrants to each Underwriter
as of the date hereof, as of the Closing Time and as of each Date of Delivery
(if any) (as defined in Sections 2(c) and 2(b), respectively), and agrees with
each Underwriter, as follows:
(i) Due Establishment and Qualification.
The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Maryland and has corporate power and authority to hold
mortgages, to own and lease real property and to conduct its
business as described in the Prospectus; and the Company is duly
qualified and is in good standing in each jurisdiction in which
its ownership of property or its conduct of business requires
such qualification, except where the failure to so qualify and
be in good standing would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
or business prospects of the Company and its subsidiaries
considered as one enterprise (a "Material Adverse Effect").
(ii) Subsidiaries. Each subsidiary of the
Company which is a significant subsidiary (each, a "Significant
Subsidiary"), as defined in Rule 405 of Regulation C of the 1933
Act Regulations, has been duly organized and is validly existing
as a partnership, corporation, limited liability company or
trust in good standing under the laws of its jurisdiction of
organization, has all power and authority to hold mortgages, to
own and lease and operate property and conduct its business as
described in the Prospectus and is duly qualified or registered
as a
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foreign partnership, corporation, limited liability company or
trust to transact business and is in good standing in each
jurisdiction in which such qualification is required, except
where the failure to so qualify and be in good standing would
not have a Material Adverse Effect; and all of the issued and
outstanding equity interests of each Significant Subsidiary have
been duly authorized and validly issued, in the case of
corporations, are fully paid and non-assessable and are owned by
the Company, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, except for security
interests granted in respect of indebtedness of the Company or
any of its subsidiaries which are referred to in the Prospectus.
(iii) Registration Statement and Prospectus.
The Registration Statement, at the time the Registration
Statement or any amendment thereto prior to the execution and
delivery of this Agreement became effective, complied, and the
Prospectus, as of the date hereof and as of the Closing Time
(and, if any Option Shares are purchased, at the applicable Date
of Delivery), complies and will comply, as the case may be, in
all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations; the Registration Statement, at the
time the Registration Statement or any amendment thereto prior
to the execution and delivery of this Agreement became effective
and as of the date hereof (and, if any Option Shares are
purchased, at the applicable Date of Delivery) did not and does
not, as the case may be, 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 and as of
the Closing Time (and, if any Option Shares are purchased, at
the applicable Date of Delivery), does not and will not, as the
case may be, 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 statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any
Underwriter through the Representative expressly for use in the
Registration Statement or Prospectus.
(iv) Incorporated Documents. The documents
incorporated or deemed incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act,
at the time they were or hereafter are filed with the
Commission, complied or when so filed will comply, as the case
may be, in all material respects with the requirements of the
1934 Act and the rules and regulations promulgated thereunder
(the "1934 Act Regulations"), and, when read together with the
other information in the Prospectus, at the time the
Registration Statement became effective, did not, and on each
date thereafter on which any amendment to the Registration
Statement became effective or Annual Report on Form 10-K was
filed by the Company with the Commission did not, and as of the
Closing Time (and, if any Option Shares are purchased, at the
applicable Date of Delivery) will not, include an untrue
statement of a material fact or omit to state a
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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 or are made, not misleading.
(v) Accountants. The accountants who
certified the financial statements and any supporting schedules
thereto included in the Registration Statement and the
Prospectus are independent public accountants within the meaning
of the 1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The financial
statements of the Company and its subsidiaries included in the
Registration Statement and the Prospectus, together with the
related schedules and notes, as well as any financial
statements, schedules and notes of any other entity or property
included therein, present fairly in all material respects the
financial position of the Company and its subsidiaries or such
other entity or property, as the case may be, at the dates
indicated and the statement of operations, stockholders' equity
and cash flows of the Company and its subsidiaries or such other
entity or property, as the case may be, for the periods
specified; such financial statements have been prepared in
conformity with generally accepted accounting principles applied
on a consistent basis throughout the periods involved; the
supporting schedules, if any, included in the Registration
Statement and the Prospectus present fairly in all material
respects in accordance with generally accepted accounting
principles the information required to be stated therein; the
selected financial data and the summary financial information,
if any, included in the Registration Statement and the
Prospectus present fairly in all material respects the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements
included in the Registration Statement and the Prospectus; and
any pro forma financial statements and the related notes thereto
included in the Registration Statement and the Prospectus
present fairly in all material respects the information shown
therein, have been prepared in accordance with the Commission's
rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
described therein.
(vii) Authorization and Delivery of this
Agreement and the Securities. This Agreement has been duly
authorized, executed and delivered by the Company; the
Securities have been duly authorized for issuance, offer and
sale pursuant to this Agreement and, when issued and delivered
pursuant to the provisions of this Agreement against payment of
the consideration therefor, the Securities will be validly
issued, fully paid and nonassessable; the Securities conform to
all statements relating thereto contained in the Prospectus and
such description conforms to the rights set forth in the
instruments defining the same; no holder of the Securities will
be subject to personal liability by reason of being such a
holder, beyond the extent of such holder's investment in the
securities; and
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the issuance of the Securities is not subject to preemptive or
other similar rights of any securityholder of the Company.
(viii) Capitalization. The Company has an
authorized capitalization as set forth in the Prospectus; all of
the issued and outstanding shares of capital stock of the
Company have been duly authorized, and were validly issued,
fully paid and nonassessable; and the issuance of such capital
stock was not subject to preemptive or other similar rights of
any securityholder of the Company.
(ix) Material Changes, Material Transactions
or Distributions. Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as may otherwise be stated therein, (1) there
has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business or business prospects
of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of
business, (2) there have been no transactions or acquisitions
entered into by the Company or any of its subsidiaries other
than those arising in the ordinary course of business, which are
material with respect to the Company and its subsidiaries
considered as one enterprise and (3) except for regular
quarterly dividends on the Common Shares, Common Shares issued
pursuant to the Company's Distribution Reinvestment and Share
Purchase Plan, or dividends declared, paid or made in accordance
with the terms of any series of preferred stock of the Company
(the "Preferred Shares"), there has been no dividend or
distribution of any kind declared, paid or made by the Company
on any class of its Common Shares or Preferred Shares.
(x) No Defaults. The Company is not in
violation of its articles of incorporation (the "Charter") or
by-laws, and no Significant Subsidiary of the Company is in
violation of its charter or by-laws (or similar governing
documents), and neither the Company nor any Significant
Subsidiary of the Company is in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement,
note, lease (other than as disclosed in the Prospectus) or other
instrument to which the Company or any of its Significant
Subsidiaries is a party or by which it or any of them may be
bound or to which any of the property or assets of the Company
or any of its Significant Subsidiaries is subject where the
violation or default would reasonably be expected to result in a
Material Adverse Effect; and the execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated herein and the compliance by the
Company with its obligations hereunder have been duly authorized
by all necessary action of the Company and will not conflict
with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its
Significant Subsidiaries pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to
which the Company or any of its Significant Subsidiaries is a
party or by which it or any of them may be bound or to which any
of the property or assets of the Company or any of its
Significant Subsidiaries
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is subject, nor will such action result in any violation of the
provisions of the Charter or the by-laws of the Company or the
charter or by-laws (or similar governing documents) of any
Significant Subsidiary of the Company or any law, administrative
regulation or administrative or court order or decree.
(xi) Regulatory Approvals. No authorization,
approval or consent of any court or governmental agency or body
is required for the consummation by the Company of the
transactions contemplated by this Agreement or in connection
with the issuance and sale of the Securities hereunder, except
such as have been obtained or rendered, as the case may be, or
as may be required under state securities laws ("Blue Sky").
(xii) Legal Proceedings. There is no action,
suit or proceeding before or by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge
of the Company (for purposes of this Agreement, such knowledge
shall mean the actual knowledge of either an executive officer
or director of the Company) threatened against or affecting the
Company or any of its subsidiaries which is required to be
disclosed in the Prospectus (other than as disclosed therein) or
which would reasonably be expected to result in any Material
Adverse Effect or which might materially and adversely affect
the properties or assets of the Company and its subsidiaries
considered as one enterprise or which might adversely affect the
consummation of this Agreement or the Securities or any
transaction contemplated hereby; and all pending legal or
governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their respective
properties or assets is the subject which are not described in
the Prospectus, including ordinary routine litigation incidental
to the business, are, considered in the aggregate, not
reasonably expected to result in a Material Adverse Effect.
(xiii) Contracts. There are no contracts or
documents of the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement
by the 1933 Act or the 1933 Act Regulations which have not been
so filed.
(xiv) Possession of Licenses and Permits. The
Company and its subsidiaries possess adequate certificates,
authorities or permits issued by the appropriate state or
federal regulatory agencies or bodies necessary to conduct the
business now operated by them, and neither the Company nor any
of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would be reasonably expected to result in a Material
Adverse Effect.
(xv) Title to Property. Each of the Company
and its subsidiaries has good and indefeasible title in fee
simple to all real property and interests in real property owned
by it, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or
such as do not materially
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and adversely affect the conduct of the business, operations,
financial condition or earnings of the Company and its
subsidiaries considered as one enterprise; and, except as
otherwise described in the Prospectus or as such do not
materially and adversely affect the conduct of the business,
operations, financial condition or earnings of the Company and
its subsidiaries considered as one enterprise, any real property
and buildings held under lease by the Company or any of its
subsidiaries or leased by the Company or any of its subsidiaries
to a third party are held or leased by the Company or any of its
subsidiaries, as the case may be, under valid, binding and
enforceable leases conforming to the description thereof set
forth in the Prospectus (to the extent described therein),
enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the enforcement of creditors' rights or by general
equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(xvi) Environmental Laws. Except as set forth
in the Prospectus, neither the Company nor any of its
subsidiaries has knowledge of (a) the unlawful presence of any
hazardous substances, hazardous materials, toxic substances or
waste materials (collectively, "Hazardous Materials") on any of
the properties owned by the Company or any of such subsidiaries,
as applicable, or (b) 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, in either case, have a Material
Adverse Effect; and in connection with the construction on or
operation and use of the properties owned by the Company or any
of its subsidiaries, the Company represents that it has no
knowledge of any failure to comply with any 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 which failure would have
a Material Adverse Effect.
(xvii) Possession of Intellectual Property. The
Company and its respective subsidiaries own or possess, or can
acquire on reasonable terms, the trademarks, service marks,
trade names, or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by them, and no such entity has received any notice or
is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the
interest of such entities therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
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(xviii) Internal Revenue Code. The Company is
qualified as a "real estate investment trust" under the Internal
Revenue Code of 1986, as amended (the "Code").
(xix) Taxable REIT Subsidiary. ERT Development
Corporation ("ERT"), a Delaware corporation, qualifies as a
"taxable REIT subsidiary" of the Company as defined in Section
856(l) of the Code.
(xx) REIT Qualification of Predecessor
Companies. New Plan Realty Trust and Excel Realty Trust, Inc.
(whose businesses were combined in a merger transaction on
September 28, 1998 to form the Company) were organized and had
operated in conformity with the requirements for qualification
and taxation as real estate investment trusts ("REIT") under the
Code at all times throughout their respective existences.
(xxi) Tax Compliance. Each of the Company and
its subsidiaries has filed all federal, state and local income
tax returns which have been required to be filed and has paid
all taxes required to be paid and any other assessment, fine or
penalty levied against it, to the extent that any of the
foregoing is due and payable, except, (A) in all cases, for any
such tax, assessment, fine or penalty that is being contested in
good faith, or for which an extension has been granted, and (B)
except in any case in which the failure to so file or pay would
not have a Material Adverse Effect.
(xxii) Investment Company Act. The Company is
not required to be registered under the Investment Company Act
of 1940, as amended.
(xxiii) No Price Manipulation. Neither the
Company nor any of its subsidiaries, or any of their directors,
officers or controlling persons, has taken or will take,
directly or indirectly, any action designed to cause or result
under the 1934 Act, or otherwise in, or which has constituted or
which reasonably might be expected to constitute, the unlawful
stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(b) Any certificate signed by any officer of the Company, on
behalf of the Company, and delivered to the Underwriters or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
Section 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Shares. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not
jointly, at a purchase price of $17.57 per share, the number of Initial Shares
set forth in Schedule A opposite the name of such Underwriter, plus any
additional number of Initial Shares which such Underwriter may become obligated
to purchase pursuant to the provisions of Section 10 hereof.
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(b) Option Shares. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
Underwriters, severally and not jointly, to purchase up to an additional 900,000
Option Shares in the aggregate at a purchase price of $17.57 per share, less an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial Shares but not payable on the Option Shares. The
option hereby granted will expire 30 days after the date hereof and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Shares upon notice by the Representative to the
Company setting forth the number of Option Shares as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Shares. Any such time and date of delivery (a "Date of
Delivery") shall be determined by the Representative, but shall not be later
than seven full business days after the exercise of said option without the
Company's consent, nor in any event prior to the Closing Time, as hereinafter
defined.
(c) Payment. Payment of the purchase price for, and delivery
of certificates for, the Initial Shares shall be made at the offices of Sidley
▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such
other place as shall be agreed upon by the Representative and the Company, at
9:00 A.M. (New York City time) on January 29, 2002 (unless postponed in
accordance with the provisions of Section 10), or such other time not later than
ten business days after such date as shall be agreed upon by the Representative
and the Company (such time and date of payment and delivery being herein called
"Closing Time").
In addition, in the event that any or all of the Option Shares
are purchased by the Underwriters, payment of the purchase price for, and
delivery of certificates for, such Option Shares shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Representative and the Company, on the applicable Date of Delivery as specified
in the notice from the Representative to the Company.
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company, against
delivery to the Representative for the respective accounts of the Underwriters
of certificates for the Securities to be purchased by them. It is understood
that each Underwriter has authorized the Representative, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for, the
Initial Shares and the Option Shares, if any, which it has agreed to purchase.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Shares or the Option Shares, if any, to be purchased by
any Underwriter whose funds have not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the
Initial Shares and the Option Shares, if any, shall be in such denominations and
registered in such names as the Representative may request in writing at least
two full business days before the Closing Time or the relevant Date of Delivery,
as the case may be. The certificates for the Initial Shares and the Option
Shares, if any, will be made available for examination and packaging by the
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Representative in The City of New York not later than 10:00 A.M. (New York City
time) on the business day prior to the Closing Time or the relevant Date of
Delivery, as the case may be.
Section 3. Covenants of the Company. The Company covenants with
each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. During the period when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Securities, the Company will notify
the Representative immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective,
or any amendment or supplement to the Prospectus shall have been filed, (ii) of
the receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424(b) and will take such
steps as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly refile such
prospectus. The Company 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.
(b) Filing of Amendments. During the period when the
Prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, the Company will give the Representative notice of its
intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)) or any amendment, supplement or
revision to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish the Representative with copies of any
such documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Representative or counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statement. The Company has
furnished or will deliver to the Representative and counsel for the
Underwriters, without charge, conformed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein) and conformed copies of all
consents and certificates of experts, and will also deliver to the
Representative, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will contain the same text as the
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
10
(d) Delivery of Prospectuses. The Company will furnish to
each Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act in connection with
offers and sales of the Securities, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will contain the same text as the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution of
the Securities as contemplated in this Agreement and in the Prospectus. If, at
any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for
the Underwriters or for the Company, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus will not include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b) hereof, such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the Prospectus
comply with such requirements, and the Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) State Law. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other
jurisdictions, including real estate syndication laws, as the Representative may
designate if an exemption from such qualification is not available and to
maintain such qualifications in effect for a period of not less than one year
from the later of the effective date of the Registration Statement and any Rule
462(b) Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any Rule
462(b) Registration Statement. The Company will also supply the Underwriters
with such information as is necessary for the determination of the legality of
the Securities for investment under the laws of such jurisdictions as the
Representative may request.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
11
(h) Reporting Requirements. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act or the 1934
Act in connection with offers and sales of the Securities, will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
(i) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(j) Notification of Certain Events. Prior to the Closing
Time or any Date of Delivery, as applicable, the Company will notify each
Underwriter in writing immediately if any event occurs that renders any of the
representations and warranties of the Company contained herein inaccurate.
(k) Listing. The Company will use its best efforts to effect
the listing of the Securities prior to the Closing Time on the New York Stock
Exchange, Inc. (the "NYSE").
(l) No Manipulation of Market for Securities. Prior to the
completion of the distribution of the Securities as contemplated in this
Agreement and in the Prospectus, except for the authorization of actions
permitted to be taken by the Underwriters as contemplated herein or in the
Prospectus, the Company will not (a) take, directly or indirectly, any action
designed to cause or to result in, or that might reasonably be expected to
constitute, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities, and (b) until
the Closing Time or any Date of Delivery, as applicable, (i) sell, bid for or
purchase the Securities or pay any person any compensation for soliciting
purchases of the Securities or (ii) pay or agree to pay to any person any
compensation for soliciting another to purchase any other securities of the
Company.
(m) Lock-Up. For a period of 30 days from the date of the
Prospectus, the Company will not, directly or indirectly, (1) offer for sale,
sell, contract to sell, pledge, hedge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to, result in
the disposition by any person at any time in the future of), directly or
indirectly, any Common Shares or securities convertible into or exercisable or
exchangeable for or repayable with Common Shares (other than the Securities,
shares issued pursuant to employee benefit plans, qualified stock option plans
or other employee compensation plans existing on the date hereof, shares issued
in connection with the acquisition of real property or interests therein,
including mortgage or leasehold interests or in conjunction with any joint
venture transaction to which the Company or an affiliate of the Company is or
becomes a party, or shares issued in connection with the conversion or
redemption of partnership units by holders of such), or sell or grant options,
rights or warrants with respect to any Common Shares or securities convertible
into or exercisable or exchangeable for or repayable with Common Shares (except
pursuant to customary compensation arrangements and employee benefit plans), or
(2) enter into any swap or other derivatives transaction that transfers to
another, in whole or in part, any of the economic benefits or risks of ownership
of such Common Shares, whether any such transaction described in clause (1) or
(2) above is to be settled by delivery of Common Shares or other securities, in
cash or otherwise, or (3) publicly disclose an intention to make any such offer,
sale, pledge,
12
hedge, swap or other transaction, in each case without the prior written consent
of the Representative; and to cause each executive officer and director to
furnish to the Representative, prior to the Delivery Date, a letter in form and
substance to the effect set forth in Exhibit B hereto.
Section 4. Payment of Fees and Expenses.
(a) Expenses. The Company will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
preparation and filing of any amendments to the Registration Statement, (ii) the
preparation and delivery to the Underwriters of this Agreement, any Agreement
among Underwriters and such other documents as may be reasonably required in
connection with the offering, purchase, sale, issuance and delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, including any stock or other transfer taxes
and any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters, (iv) the fees and disbursements of the Company's
counsel, accountants, and other advisors or agents (including transfer agents
and registrars), (v) the qualification of the Securities under state securities
laws and real estate syndication laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation, printing and delivery of a blue sky memorandum
(the "Blue Sky Memorandum") and any amendment or supplement thereto, (vi) the
printing and delivery to the Underwriters of copies of the Prospectus and any
amendments or supplements thereto and (vii) the fees and expenses incurred in
connection with the listing of the Securities on the NYSE.
(b) Termination of Agreement. If this Agreement is
terminated by the Representative in accordance with the provisions of Section
5(h) or Section 9(a)(i) hereof, the Company shall reimburse the Underwriters for
all of its out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The obligations
of the several Underwriters hereunder are subject to the accuracy, as of the
date hereof, as of the Closing Time and as of each Date of Delivery, if any, of
the representations and warranties of the Company contained in Section 1(a)
hereof, to the performance by the Company of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The
Registration Statement, including any Rule 462(b) Registration Statement, has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters.
(b) Opinions of Counsel. (i) At the Closing Time, the
Representative shall have received the favorable opinion, dated as of the
Closing Time, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and
substance reasonably satisfactory to counsel to the
13
Underwriters, together with signed or reproduced copies of such opinion for each
of the other Underwriters, substantially to the effect set forth in Exhibit A
hereto.
(i) At the Closing Time, the Representative shall have received the
favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., as
tax counsel for the Company, together with signed or reproduced copies of such
opinion for each of the other Underwriters, to the effect that the Company has
been organized and has operated in conformity with the requirements for
qualification as a REIT under the Code, for its taxable years ended December 31,
1998 through December 31, 2001, and the Company's current organization and
proposed method of operation (as described in a representation letter by the
Company and in the Prospectus, including the documents incorporated by reference
into and made part of the Prospectus) will enable it to meet the requirements
for qualification and taxation as a REIT under the Code for its taxable year
ending December 31, 2001 and thereafter.
(ii) At the Closing Time, the Representative shall have received the
favorable opinion, dated as of the Closing Time, of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
LLP, counsel for the Underwriters, together with signed or reproduced copies of
such opinion for each of the other Underwriters, covering those matters
requested by the Underwriters.
In giving their opinions, the foregoing counsel may rely (A) as
to all matters of fact, upon certificates and written statements of officers and
employees of and accountants for the Company and (B) as to the qualification and
good standing of the Company or any of its subsidiaries to do business in any
state or jurisdiction, upon certificates of appropriate government officials or
opinions of counsel in such jurisdictions, which opinions shall be in form and
substance reasonably satisfactory to counsel for the Underwriters. In addition,
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP may rely, as to all matters governed by the laws
of jurisdictions other than the law of the State of New York and the federal law
of the United States, upon the opinions of counsel reasonably satisfactory to
the Representative.
(c) Officers' Certificate. At the Closing Time, there shall
not have been, since the respective dates as of which information is given in
the Prospectus, any Material Adverse Effect, and the Representative shall have
received a certificate of the Chief Executive Officer, President or a Senior
Vice President of the Company and of the chief financial or chief accounting
officer of the Company, on behalf of the Company, dated as of the Closing Time,
evidencing compliance with the provisions of this subsection (c), stating that
(i) there has been no Material Adverse Effect, (ii) the representations and
warranties of the Company set forth in Section 1(a) hereof are accurate as
though expressly made at and as of the Closing Time, (iii) the Company has
satisfied all conditions on its part to be performed or satisfied under this
Section (other than those conditions expressly waived by the Underwriters) and
(iv) no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or are
pending or, to such officer's knowledge, are contemplated by the Commission.
(d) Accountant's Comfort Letter. At the time of execution of
this Agreement, the Representative shall have received from
PricewaterhouseCoopers LLP a letter dated such date, in form and substance
reasonably satisfactory to the Representative, together with signed or
reproduced copies of such letters for each of the other Underwriters, to the
effect that:
14
(i) they are independent accountants with respect to the Company
and its subsidiaries within the meaning of the 1933 Act and the
1933 Act Regulations; (ii) it is their opinion that the
consolidated financial statements and supporting schedules of
the Company included or incorporated by reference in the
Registration Statement and the Prospectus and covered by their
opinions therein comply in form in all material respects with
the applicable accounting requirements of the 1933 Act and the
1934 Act, and the related published rules and regulations; (iii)
they have performed limited procedures, not constituting an
audit, including a reading of the latest available unaudited
interim consolidated financial statements of the Company and its
subsidiaries, a reading of the minute books of the Company and
its subsidiaries, inquiries of certain officials of the Company
and its subsidiaries who have responsibility for financial and
accounting matters and such other inquiries and procedures as
may be specified in such letter, and on the basis of such
limited review and procedures nothing came to their attention
that caused them to believe that (A) the unaudited interim
consolidated financial statements and financial statement
schedules, if any, of the Company included or incorporated by
reference in the Registration Statement and the Prospectus do
not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the
related published rules and regulations thereunder or that any
material modification should be made to the unaudited condensed
interim financial statements included in or incorporated by
reference in the Registration Statement and the Prospectus for
them to be in conformity with generally accepted accounting
principles, (B) the unaudited pro forma condensed financial
statements included in or incorporated by reference in the
Company's Registration Statement, do not comply as to form in
all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X under the 1933 Act
or that the pro forma adjustments have not been properly applied
to the historical amounts in the compilation of such statements
or (C) at a specified date not more than five days prior to the
date of this Agreement, there has been any change in the capital
stock of the Company or increase in the consolidated long term
debt of the Company or any decrease in the net assets of the
Company, as compared with the amounts shown in the most recent
consolidated balance sheet included or incorporated by reference
in the Registration Statement and the Prospectus or, during the
period from the date of the most recent consolidated statement
of operations of the Company included or incorporated by
reference in the Registration Statement and the Prospectus to a
specified date not more than five days prior to the date of this
Agreement, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated
revenues, or decrease in consolidated net income or consolidated
net income per share of the Company, except in all instances for
changes, increases or decreases which the Registration Statement
and the Prospectus disclose have occurred or may occur; and (iv)
in addition to the audit referred to in their opinions and the
limited procedures referred to in clause (iii) above, they have
carried out certain specified procedures, not constituting an
audit, with respect to certain amounts, percentages and
financial information which are included or incorporated by
reference in the Registration Statement and
15
the Prospectus and which are specified by you, and have found
such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other
records of the Company and its subsidiaries identified in such
letter.
(e) Bring-down Comfort Letter. At the Closing Time, the
Representative shall have received from PricewaterhouseCoopers LLP a letter,
dated as of the Closing Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (d) of this Section 5,
except that the "specified date" referred to shall be a date not more than five
days prior to the Closing Time. Any exception will be identified in such letter.
(f) Approval of Listing. At the Closing Time, the Securities
shall have been approved for listing on the NYSE, subject only to official
notice of issuance.
(g) Additional Documents. At the Closing Time and at each
Date of Delivery, if any, counsel for the Underwriters shall have been furnished
with such documents and opinions as they may reasonably require for the purpose
of enabling them to pass upon the issuance of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance of the
Securities as herein contemplated shall be reasonably satisfactory in form and
substance to the Representative and counsel for the Underwriters.
(h) Termination of Agreement. If any condition specified in
this Section 5 shall not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the Representative by notice to
the Company at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as provided in
Section 4 and except that Sections 6, 7, 8 and 13 shall survive any such
termination and remain in full force and effect.
(i) Conditions to Purchase of Option Shares. In the event
that the Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Shares, the representations and
warranties of the Company contained herein and the statements in any
certificates furnished by the Company and any subsidiary shall be true and
correct as of each Date of Delivery and, at the relevant Date of Delivery, the
Representative shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the Chief Executive Officer, President or a Senior Vice President
of the Company and of the chief financial or chief accounting officer of the
Company, confirming that the certificate delivered at the Closing Time pursuant
to Section 5(c) hereof remains true and correct as of such Date of Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion
of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance
reasonably satisfactory to the Representative, dated such Date of Delivery,
relating to the Option Shares to be purchased on
16
such Date of Delivery and otherwise to the same effect as the opinion required
by Section 5(b)(i) hereof.
(iii) Opinion of Tax Counsel for Company. The favorable
opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., as tax counsel for the Company, in form and
substance reasonably satisfactory to the Representative, dated such Date of
Delivery, relating to the Option Shares to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by Section 5(b)(ii)
hereof.
(iv) Opinion of Counsel for Underwriters. The favorable
opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, dated
such Date of Delivery, relating to the Option Shares to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion required by
Section 5(b)(iii) hereof.
(v) Bring-down Comfort Letter. A letter from
PricewaterhouseCoopers LLP, in form and substance reasonably satisfactory to the
Representative and dated such Date of Delivery, substantially in the same form
and substance as the letter furnished to the Representative pursuant to Section
5(e) hereof, except that the "specified date" in the letter furnished pursuant
to this paragraph shall be a date not more than five days prior to such Date of
Delivery.
Section 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, and any director, officer, employee or affiliate
thereof, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made,
not misleading;
(ii) 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; provided that (subject to Section
6(d) below) any such settlement is effected with the written
consent of the Company; and
17
(iii) against any and all expense whatsoever (including,
without limitation, the reasonable fees and disbursements of
counsel chosen by the Representative), reasonably incurred in
investigating, preparing or defending against any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representative expressly for use in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of the Company, Directors, and Officers.
Each Underwriter agrees to indemnify and hold harmless the Company, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, and any director, officer, employee or
affiliate thereof, against any and all loss, liability, claim, damage and
expense of the type described in the indemnity contained in subsection (a) of
this Section 6, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representative expressly for use in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 6(a) above, counsel to the indemnified parties shall be selected by
the Representative, and, in the case of parties indemnified pursuant to Section
6(b) above, counsel to the indemnified parties shall be selected by the Company.
An indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment 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
18
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (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) Settlement without Consent if Failure to Reimburse. 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 of the
nature contemplated by Section 6(a)(iii) effected without its written consent if
(i) such settlement is entered into more than 45 days after 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.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company, on the
one hand, and the Underwriters, on the other, shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company and the Underwriters, as
incurred, in such proportions that the Underwriters are responsible for that
portion represented by the percentage that the discount appearing on the cover
page of the Prospectus bears to the price to public of the Securities appearing
thereon and the Company is responsible for the balance; provided, however, that
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company.
Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities purchased and sold by it to purchasers
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of any untrue or alleged untrue statement or omission
or alleged omission in the Prospectus.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company on behalf of the Company
submitted pursuant hereto, shall remain
19
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or any controlling person, or by or on behalf of
the Company or any controlling person, and shall survive delivery of the
Securities to the Underwriters.
Section 9. Termination of Agreement.
(a) The Representative may terminate this Agreement, by
notice to the Company, at any time at or prior to the Closing Time, (i) if there
has been, since the date of this Agreement or since the respective dates as of
which information is given in the Prospectus, any Material Adverse Effect, (ii)
if there has occurred any material adverse change in the financial markets in
the United States or any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial, or economic conditions, in
each case, the effect of which is such as to make it, in the Representative's
judgment, impracticable to market the Securities or enforce contracts for the
sale of the Securities, (iii) if trading in any of the Company's securities has
been suspended by the Commission or the NYSE or if trading generally on the
NYSE, the American Stock Exchange or the Nasdaq Stock Market has been suspended,
or minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by either of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc.,
or any other governmental authority, (iv) if a banking moratorium has been
declared by either federal, New York or Maryland authorities.
(b) If this Agreement is terminated pursuant to this
Section 9, such termination shall be without liability of any party to any other
party except as provided in Sections 4 and 10 hereof and provided further that
Sections 4, 6, 7, 8 and 13 hereof shall survive such termination and remain in
full force and effect.
Section 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at Closing Time or a Date of Delivery to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representative shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed
10% of the number of Securities to be purchased on such date, each of
the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the
number of Securities to be purchased on such date, this Agreement or,
with respect to any Date of Delivery which occurs after the Closing
Time, the obligation of the Underwriters to purchase and of the Company
to sell the Option Shares to be purchased and sold on such
20
Date of Delivery, shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Shares, as
the case may be, either the (i) Representative or (ii) the Company shall have
the right to postpone Closing Time or the relevant Date of Delivery, as the case
may be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of General Counsel; and notices to the
Company shall be directed to it at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, attention of President, with a copy to General Counsel.
Section 12. Parties. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters, the Company
and their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their successors, heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and their respective successors and said
controlling persons and officers and directors and their successors, heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
Section 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME.
Section 14. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall constitute a single instrument.
21
Section 15. Effect of Headings. The Article, Section and Sub-Section
headings herein are for convenience only and shall not affect the construction
hereof.
* * * * *
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Sr. V.P.
Confirmed and Accepted,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
MCDONALD INVESTMENTS INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Authorized Signatory
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
23
SCHEDULE A
Number of
Name of Underwriter Initial Shares
------------------- --------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc........................................... 3,750,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated............................... 1,650,000
McDonald Investments Inc........................................... 600,000
---------
Total...................................................... 6,000,000
EXHIBIT A
Opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
(a) The Company is validly existing as a corporation and in
good standing as of the date of the certificate specified in paragraph ___
above, under the laws of the State of Maryland.
(b) The Company has the corporate power and authority to
own, lease and operate its current properties and to conduct its business as
described in the Prospectus.
(c) The Underwriting Agreement has been duly authorized,
executed and delivered on behalf of the Company.
(d) The Shares have been duly authorized for issuance and
sale to the Underwriters and, when issued in accordance with the provisions of
the Underwriting Agreement, the Shares will be validly issued, fully paid and
non-assessable. No holder of outstanding Common Shares has any statutory
preemptive right under the Maryland Corporation Law or, to our knowledge, any
contractual right to subscribe for any of the Shares.
(e) The Registration Statement has become effective under
the 1933 Act, the required filings of the Prospectus pursuant to Rule 424(b)
promulgated pursuant to the 1933 Act have been made in the manner and within the
time period required by Rule 424(b) and, to our knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are threatened by the
Commission.
(f) The Registration Statement and the Prospectus, excluding
the documents incorporated by reference therein, as of their respective
effective or issue dates (other than the financial statements, schedules and
other financial and statistical data included or incorporated by reference in
the Registration Statement or the Prospectus, as to which we express no
opinion), complied as to form in all material respects with the requirements of
the 1933 Act and the applicable rules and regulations thereunder.
(g) Each document filed pursuant to the 1934 Act and
incorporated or deemed to be incorporated by reference in the Prospectus (other
than the financial statements, schedules and other financial and statistical
data included therein, as to which we express no opinion) complied when so filed
as to form in all material respects with the 1934 Act and the applicable rules
and regulations thereunder.
(h) The Company is not required to be registered as an
"investment company" under the Investment Company Act of 1940, as amended.
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(i) The execution, delivery and performance on the date
hereof by the Company of the Underwriting Agreement do not breach or constitute
a default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any agreement or contract to which the Company is a
party and which is filed as an exhibit to the Registration Statement (including
documents incorporated or deemed to be incorporated by reference in the
Prospectus).
(j) The execution, delivery and performance on the date
hereof by the Company of the Underwriting Agreement do not (i) violate the
articles of incorporation or bylaws of the Company, or (ii) to our knowledge,
violate any applicable law, administrative regulation or court decree of a
Maryland agency or court. No authorization, approval or consent of any
governmental authority or agency of or within the State of Maryland is required
that has not been obtained in connection with the execution, delivery and
performance on the date hereof by the Company by the Underwriting Agreement,
except such as may be required under state securities laws or real estate
syndication laws.
(k) The form of certificate evidencing the Shares complies
in all material respects with the requirements of the articles of incorporation
and bylaws of the Company, the requirements of the NYSE and Section 2-211 of the
Maryland Corporation Law.
(l) The Shares conform in all material respects to the
description thereof set forth in the Prospectus under the caption "Description
of Common Stock."
(m) The information in the Prospectus under the captions
"Description of Common Stock," "Restrictions on Ownership of Common Stock" and
"Material Federal Income Tax Considerations," to the extent that such
information constitutes matters of law or legal conclusions, has been reviewed
by us, and is correct in all material respects.
(n) To our knowledge, there are no persons with registration
or other similar rights to have any securities of the Company registered
pursuant to the Registration Statement, or to require the Company to file any
other registration statement, as a result of the offer and sale of the Shares.
* * * * *
During the course of the preparation of the Registration
Statement, we participated in conferences with officers and other
representatives of the Company, with representatives of the independent public
accountants of the Company and with you and your representatives. While we have
not undertaken to determine independently, and we do not assume any
responsibility for, the accuracy, completeness or fairness of the statements in
the Registration Statement or Prospectus, we may state on the basis of these
conferences and our activities as counsel to the Company in connection with the
Registration Statement that no facts
A-2
have come to our attention which cause us to believe that (i) the Registration
Statement, at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus, as of the date of the prospectus supplement or as of the date
hereof, contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, (ii) there are any legal or governmental proceedings pending or
threatened against the Company that are required to be disclosed in the
Registration Statement or the Prospectus, other than those disclosed therein, or
(iii) there are any contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or referred to
therein or so filed; provided that in making the foregoing statements (which
shall not constitute an opinion), we are not expressing any views as to the
financial statements and supporting schedules and other financial and
statistical information and data included in or omitted from the Registration
Statement or the Prospectus.
A-3
EXHIBIT B
New Plan Excel Realty Trust, Inc.
Public Offering of Common Stock
January ___, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
and, if applicable, as Representative of the several Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement") between New Plan
Excel Realty Trust, Inc., a Maryland corporation (the "Company"), and you on
your own behalf and, if applicable, as representative of a group of Underwriters
named therein (if applicable), relating to an underwritten public offering of
common stock, par value $0.01 per share, of the Company (the "Common Stock").
In order to induce you and, if applicable, the other
Underwriters to enter into the Underwriting Agreement, I agree that, during a
period of 30 days from the date of the Underwriting Agreement, I will not,
without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., directly or
indirectly, (1) offer for sale, sell, contract to sell, pledge, hedge or
otherwise dispose of any shares of capital stock of the Company or any
securities convertible into or exercisable or exchangeable for such capital
stock or (2) enter into any swap or other derivatives transaction that transfers
to another, in whole or in part, any of the economic benefits or risks of
ownership of such Common Stock. Notwithstanding the foregoing, I may transfer
any or all of the shares of Common Stock or any securities convertible into or
exchangeable or exercisable for Common Stock owned by me by gift, will or
intestate succession to members of my immediate family or to trusts the
beneficiaries of which are exclusively me and/or one or more members of my
immediate family, so long as such family members or trusts agree to the same
30-day limitation specified above.
If for any reason the Underwriting Agreement shall be terminated
prior to the Closing Date (as defined in the Underwriting Agreement), the
agreement set forth above shall likewise be terminated.
Yours very truly,
[SIGNATURE OF OFFICER OR DIRECTOR]
[Name and address of officer or director]
B-1