1
EXHIBIT 1.1
10,000,000 Shares of Common Stock
GLENBOROUGH REALTY TRUST INCORPORATED
UNDERWRITING AGREEMENT
October 20, 1997
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
SALOMON BROTHERS INC
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇▇▇▇ & COMPANY SECURITIES, INC.
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Ladies and Gentlemen:
Glenborough Realty Trust Incorporated, a corporation organized
and existing under the laws of Maryland (the "Company") and the sole general
partner of Glenborough Properties, L.P. (the "Operating Partnership"), proposes,
subject to the terms and conditions stated herein, to issue and sell to Bear,
▇▇▇▇▇▇▇ & Co. Inc., Salomon Brothers Inc, ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., BancAmerica
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Company, Inc. and ▇▇▇▇▇▇▇▇ & Company Securities,
Inc. (collectively, the "Underwriters") an aggregate of 10,000,000 shares (the
"Firm Shares") of its common stock, par value $0.001 per share (the "Common
Stock") and, for the sole purpose of covering over-allotments in connection with
the sale of the Firm Shares, at the option of the Underwriters, up to an
additional 1,500,000 shares (the "Additional Shares") of Common Stock. The Firm
Shares and any Additional Shares purchased by the Underwriters are referred to
herein as the "Shares". The Shares are more fully described in the Second
Registration Statement referred to below.
1. Representations and Warranties of the Company and the
Operating Partnership. The Company and the Operating Partnership, jointly and
severally, represent and warrant to, and agree with, the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") registration statements on Form S-3 (Nos.
333-19279 and 333-26815), and any amendments thereto, and related preliminary
prospectuses for the registration under the Securities Act of 1933, as amended
(the "Securities Act") of preferred stock, common
2
stock (including the Shares) and warrants to purchase shares of preferred stock
or common stock, each of which registration statements, as so amended, has been
declared effective by the Commission and copies of which have heretofore been
delivered to the Underwriters. Such registration statements (and any
registration statement increasing the size of the offering (a "Rule 462(b)
Registration Statement") filed pursuant to Rule 462(b) under the Securities
Act), in the respective forms in which they were declared effective, as amended,
including all exhibits thereto and the documents incorporated or deemed to be
incorporated by reference therein through the date hereof, are each hereinafter
referred to as a "Registration Statement" and are collectively referred to as
the "Registration Statements". Registration Statement No. 333-26815 is herein
referred to as the "Second Registration Statement". Other than a Rule 462(b)
Registration Statement, which became effective upon filing, no other document
with respect to the Registration Statements or document incorporated by
reference therein has heretofore been filed with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act, each in the form heretofore delivered to the
Underwriters). No stop order suspending the effectiveness of either Registration
Statement or the Rule 462(b) Registration Statement, if any, has been issued and
no proceeding for that purpose has been initiated or, to the Company's
knowledge, threatened by the Commission. The Company proposes to file with the
Commission pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Securities Act (the "Securities Act Regulations") the
Prospectus Supplement (as defined in Section 4(j) hereof) relating to the Shares
and the Company's base prospectus dated October 20, 1997 (the "Base
Prospectus"), and has previously advised the Underwriters of all further
information (financial and other) with respect to the Company set forth therein.
The Base Prospectus together with the Prospectus Supplement, in their respective
forms on the date hereof (being the forms in which they are to be filed with the
Commission pursuant to Rule 424(b) of the Securities Act Regulations), including
all documents incorporated or deemed to be incorporated by reference therein
through the date hereof, are hereinafter referred to as the "Prospectus," except
that if any revised prospectus or prospectus supplement shall be provided to the
Underwriters by the Company for use in connection with the offering and sale of
the Shares which differs from the Prospectus (whether or not such revised
prospectus or prospectus supplement is required to be filed by the Company
pursuant to Rule 424(b) of the Securities Act Regulations), the term
"Prospectus" shall refer to such revised prospectus or prospectus supplement, as
the case may be, from and after the time it is first provided to the
Underwriters for such use. As used herein, the term "date of the Prospectus"
shall be deemed to refer to the date of the Prospectus Supplement. Any
preliminary prospectus or prospectus subject to completion included in the
Second Registration Statement or filed with the Commission pursuant to Rule 424
under the Securities Act is hereafter called a "Preliminary Prospectus." Unless
the context otherwise requires, all references in this Agreement to documents,
financial statements and schedules and other information which is "contained",
"included", "stated", "described in" or "referred to" in the Registration
Statements or the Prospectus (and all other references of like import) shall be
deemed to mean and include all such documents, financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statements or the Prospectus, as the case may be,
and all references in this Agreement to amendments or supplements to the
Registration Statements or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934 (the
"Exchange Act") after the date of this Agreement
2
3
which is or is deemed to be incorporated by reference in the Registration
Statements or the Prospectus, as the case may be. Additionally, all references
in this Agreement to the Registration Statements, the Rule 462(b) Registration
Statement, a Preliminary Prospectus, the Base Prospectus, the Prospectus
Supplement and the Prospectus, or any amendments or supplements to any of the
foregoing, shall be deemed to include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval System
("▇▇▇▇▇").
(b) The Second Registration Statement and the Base Prospectus
(including the documents incorporated by reference therein), at the time the
Second Registration Statement became effective and as of the Closing Date,
complied and comply in all material respects with the requirements of the
Securities Act and the Securities Act Regulations (including Rule 415(a) of the
Securities Act Regulations), and did not and as of the Closing Date do not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Prospectus (including the documents incorporated by reference
therein), as of the date hereof (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriters by the Company for use in
connection with the offering of the Shares which differs from the Prospectus
filed with the Commission pursuant to Rule 424(b) of the Securities Act
Regulations, in which case at the time it is first provided to the Underwriters
for such use) and on the Closing Date referred to in Section 2 hereof, does not
and will not include an untrue statement of a material fact or omit to state a
material fact necessary 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 (b) shall not apply
to statements in or omissions from the Second Registration Statement or
Prospectus made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by any Underwriter expressly
for use in the Second Registration Statement or the Prospectus. Each Preliminary
Prospectus and Prospectus filed as part of the Second Registration Statement, as
part of any amendment thereto or pursuant to Rule 424 under the Securities Act
Regulations, if filed by electronic transmission pursuant to ▇▇▇▇▇ (except as
may be permitted by Regulations S-T under the Securities Act) was identical to
the copy thereof delivered to the Underwriters for use in connection with the
offer and sales of the Shares. There are no contracts or other documents
required to be described in the Prospectus or to be filed as exhibits to the
Second Registration Statement under the Securities Act that have not been
described, filed or incorporated by reference therein as required.
(c) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, whose reports are incorporated by
reference into the Registration Statements, are independent public accountants
with respect to the Company and with respect to the Company's subsidiaries, in
each case as required by the Securities Act and the Securities Act Regulations.
(d) Subsequent to the respective dates as of which information is
given in the Second Registration Statement and the Prospectus, except as set
forth in the Second Registration Statement and the Prospectus, there has been no
material adverse change in the business, business prospects, properties,
operations, condition (financial or other) or results of operations of the
Company or the Operating Partnership and their respective subsidiaries, taken as
a whole, whether or not arising from transactions in the ordinary course of
business (any such
3
4
change with respect to any entity being referred to herein as a "Material
Adverse Change"), and since the date of the latest balance sheet included or
incorporated by reference in the Second Registration Statement and the
Prospectus, neither the Company, the Operating Partnership nor any of their
respective subsidiaries has incurred or undertaken any liabilities or
obligations, direct or contingent, which are material to the Company, the
Operating Partnership and their respective subsidiaries taken as a whole, except
for liabilities or obligations which are set forth in or contemplated by the
Second Registration Statement and the Prospectus.
(e) This Agreement and the transactions contemplated herein have
been duly and validly authorized by the Company and the Operating Partnership
and this Agreement has been duly and validly executed and delivered by the
Company and the Operating Partnership.
(f) The execution, delivery, and performance of this Agreement
and the consummation of the transactions contemplated hereby do not and will not
(i) conflict with or result in a breach of any of the terms and provisions of,
or constitute a default (or an event which with notice or lapse of time, or
both, would constitute a default) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company,
the Operating Partnership or any of their respective subsidiaries pursuant to,
any agreement, instrument, franchise, license or permit to which the Company,
the Operating Partnership or any of their respective subsidiaries is a party or
by which any of such entities or their respective properties or assets may be
bound or (ii) violate or conflict with any provision of the partnership
agreement of the Operating Partnership, the certificate of incorporation or
by-laws of the Company or any of the subsidiaries of the Company or Operating
Partnership or any judgment, decree, order, statute, rule or regulation of any
court or any public, governmental or regulatory agency or body having
jurisdiction over the Company, the Operating Partnership or any of their
subsidiaries or any of their respective properties or assets, except for those
violations or conflicts that would not have a material adverse effect on the
Company, the Operating Partnership and their respective subsidiaries, taken as a
whole. No consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company,
the Operating Partnership or any of their respective subsidiaries or any of
their respective properties or assets is required for the execution, delivery
and performance of this Agreement or the consummation of the transactions
contemplated hereby, including the issuance, sale and delivery of the Shares to
be issued, sold and delivered by the Company hereunder, except the registration
under the Securities Act of the Shares and such consents, approvals,
authorizations, orders, registrations, filings, qualifications, licenses and
permits as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the Underwriters.
(g) All of the outstanding shares of Common Stock are duly and
validly authorized and issued, fully paid and nonassessable and were not issued
and are not now in violation of or subject to any preemptive rights. The Shares,
when issued, delivered and sold in accordance with this Agreement, were or will
be, as the case may be, duly and validly issued and outstanding, fully paid and
nonassessable, and will not have been issued in violation of or be subject to
any preemptive rights. The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus Supplement under the caption
"Capitalization" and in
4
5
the descriptions thereof incorporated by reference in the Prospectus. The Common
Stock, including the Shares, conform to the description thereof contained in the
Second Registration Statement and the Prospectus. The Company is the sole
general partner of the Operating Partnership; the partnership agreement of the
Operating Partnership has been duly authorized, executed and delivered by each
partner thereto and is valid, legally binding and enforceable in accordance with
its terms; all of the partnership interests in the Operating Partnership have
been duly and validly authorized and issued and (except as described in the
Prospectus) the partnership interests owned directly or indirectly by the
Company in the Operating Partnership are free and clear of all liens,
encumbrances, equities or claims. All issued and outstanding securities of the
Operating Partnership have been duly and validly authorized and issued in
compliance with the federal and state securities laws. The units of the
Operating Partnership issued in connection with the acquisitions described in
the Prospectus Supplement under the caption "Recent Activities" were duly and
validly issued in compliance with the federal and state securities laws.
(h) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Maryland. The
Operating Partnership has been duly organized and is validly existing as a
limited partnership in good standing under the laws of the State of California.
The Company is duly qualified and in good standing as a foreign corporation, and
the Operating Partnership has been duly qualified and is in good standing as a
foreign limited partnership, in each jurisdiction in which the character or
location of its respective properties (owned, leased or licensed) or the nature
or conduct of its respective business makes such qualification necessary, except
for those failures to be so qualified or in good standing which will not in the
aggregate have a material adverse effect on the Company, the Operating
Partnership and their respective subsidiaries, taken as a whole. Each of the
Company and the Operating Partnership has all requisite power and authority, and
all necessary consents, approvals, authorizations, orders, registrations,
qualifications, licenses and permits of and from all public, regulatory or
governmental agencies and bodies, to own, lease and operate its properties and
conduct its business as now being conducted and as described in the Second
Registration Statement and the Prospectus, except for the absence of which
individually or in the aggregate would not have a material adverse effect on the
Company, the Operating Partnership and their respective subsidiaries taken as a
whole, and no such consent, approval, authorization, order, registration,
qualification, license or permit contains a materially burdensome restriction
not adequately disclosed in the Second Registration Statement and the
Prospectus.
(i) Each subsidiary of the Company or the Operating Partnership
has been duly organized and is validly existing as a corporation or partnership
in good standing under the laws of the jurisdiction of its organization. Each
subsidiary of the Company or the Operating Partnership is duly qualified and in
good standing as a foreign corporation or partnership in each jurisdiction in
which the character or location of its properties (owned, leased or licensed) or
the nature or conduct of its business makes such qualification necessary, except
for those failures to be so qualified or in good standing which will not in the
aggregate have a material adverse effect on the Company, the Operating
Partnership and their respective subsidiaries, taken as a whole. Each subsidiary
of the Company and the Operating Partnership has all requisite power and
authority, and all necessary consents, approvals, authorizations, orders,
registrations, qualifications, licenses and permits of and from all public,
regulatory or governmental agencies
5
6
and bodies, to own, lease and operate its properties and conduct its business as
now being conducted and as described in the Second Registration Statement and
the Prospectus, except for the absence of which individually or in the aggregate
would not have a material adverse effect on the Company, the Operating
Partnership and their respective subsidiaries taken as a whole, and no such
consent, approval, authorization, order, registration, qualification, license or
permit contains a materially burdensome restriction not adequately disclosed in
the Second Registration Statement and the Prospectus. All of the capital stock
or partnership units in each subsidiary of the Company or the Operating
Partnership has been duly and validly authorized and issued and (except as
described in the Prospectus) the capital stock or partnership units in each such
subsidiary owned directly or indirectly by the Company or the Operating
Partnership, as the case may be, is free and clear of all liens, encumbrances,
equities or claims.
(j) Except as described or incorporated by reference in the
Prospectus, there is no litigation or governmental proceeding to which the
Company, the Operating Partnership or any of their respective subsidiaries is a
party or to which any property of the Company, the Operating Partnership or any
of their respective subsidiaries is subject or which is pending or, to the
knowledge of the Company and the Operating Partnership, contemplated against the
Company, the Operating Partnership or any of their respective subsidiaries which
might result in any material adverse change in the business, business prospects,
properties, operations, condition (financial or other) or, results of operations
of the Company, the Operating Partnership and their respective subsidiaries
taken as a whole, which might materially and adversely affect the transactions
contemplated by this Agreement or which is required to be disclosed in the
Second Registration Statement or the Prospectus or in any documents incorporated
by reference therein. The descriptions of litigation matters in the Base
Prospectus under the captions "Risk Factors -- Litigation Related to
Consolidation" and "Risk Factors -- Chapter 11 Reorganization of Partnership
Consolidation by Senior Management" and the descriptions of such matters
incorporated by reference in the Prospectus are complete and accurate in all
material respects.
(k) Neither the Company nor the Operating Partnership has taken
or will take, directly or indirectly, any action designed to cause or result in,
or which constitutes or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the shares of Common Stock to
facilitate the sale or resale of the Shares.
(l) The financial statements, including the notes thereto, and
supporting schedules included or incorporated by reference in the Second
Registration Statement and the Prospectus present fairly the consolidated
financial position of the Company, its subsidiaries and their predecessors in
interests of the dates indicated and the results of their operations for the
periods specified; except as otherwise stated in the Second Registration
Statement, said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis; the
supporting schedules included in the Second Registration Statement present
fairly the information required to be stated therein; and no other financial
statements or supporting schedules are required to be included in the Second
Registration Statement. The Company's ratios of earnings to fixed charges and
ratios of earnings to combined fixed charges and preferred stock dividends
included in the Base Prospectus under
6
7
the caption "Ratio of Earnings to Fixed Charges" and in Exhibit 12.1 to the
Second Registration Statement have been calculated in compliance with Item
503(d) of Regulation S-K of the Securities Act Regulations. The financial data
incorporated by reference in the Prospectus and set forth in the Prospectus
Supplement under the captions "Selected Historical and Pro Forma Financial and
Other Data", and "Capitalization" and elsewhere in the Prospectus and in the
Second Registration Statement fairly present the information set forth therein
on a basis consistent with that of the audited financial statements contained or
incorporated by reference in the Second Registration Statement; and the pro
forma condensed consolidated financial statements of the Company and the related
notes thereto incorporated by reference in the Prospectus and included under the
caption "Selected Historical and Pro Forma Financial and Other Data" and
elsewhere in the Prospectus and in the Second Registration Statement present
fairly the information contained therein, have been prepared in accordance with
the Commission's rules and guidelines with respect to pro forma financial
statements and have been properly presented 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 referred to therein.
(m) Except as described or incorporated by reference in the
Prospectus, no holder of securities of the Company or the Operating Partnership
has any rights to the registration of securities of the Company or securities of
the Operating Partnership that are convertible, exchangeable or exercisable for
securities of the Company because of the filing of either Registration Statement
or otherwise in connection with the sale of the Shares contemplated hereby.
(n) Except as described in the Prospectus, the Company, the
Operating Partnership and their respective subsidiaries have good and marketable
title to all the properties and assets reflected as owned in the financial
statements referred to in Section 1(l) above or elsewhere in the Prospectus, in
each case free and clear of any security interests, mortgages, liens,
encumbrances, equities, claims and other defects, except such as are described
in the Prospectus and such as do not materially and adversely affect the value
of such property and do not materially interfere with the use made or proposed
to be made of such property by the Company, the Operating Partnership or any of
their respective subsidiaries. The real property, improvements, equipment and
personal property held under lease by the Company, the Operating Partnership or
their respective subsidiaries are held under valid, subsisting and enforceable
leases, with such exceptions as are not material and do not materially interfere
with the use made or proposed to be made of such real property, improvements,
equipment or personal property by the Company, the Operating Partnership or any
of their respective subsidiaries.
(o) The Company, the Operating Partnership and their respective
subsidiaries have filed all necessary federal, state and foreign income and
franchise tax returns and have paid all taxes required to be paid by any of them
and, if due and payable, any related or similar assessment, fine or penalty
levied against any of them, except insofar as the failure to file such returns
would not have a material adverse effect on the Company, the Operating
Partnership and their respective subsidiaries, taken as a whole. The Company,
the Operating Partnership and their respective subsidiaries have made adequate
charges, accruals and reserves in their respective
7
8
financial statements in respect of all federal, state and foreign income and
franchise taxes for all periods as to which the tax liability of the Company,
the Operating Partnership or any of their respective subsidiaries has not been
finally determined, except to the extent of any inadequacy that would not have a
material adverse effect on the Company, the Operating Partnership and their
respective subsidiaries, taken as a whole.
(p) Except as described in the Prospectus, the Company, the
Operating Partnership and each of their respective subsidiaries are insured by
recognized financially sound and reputable institutions with policies in such
amounts and with such deductibles and covering such risks that the Company
believes are adequate to insure against potential losses, with such policies
including, but not limited to, policies covering real and personal property
owned or leased by the Company, the Operating Partnership or any of their
respective subsidiaries against theft, damage, destruction, acts of vandalism
and such other risks. Neither the Company nor the Operating Partnership has any
reason to believe that they or any of their respective subsidiaries will not be
able (i) to renew their existing insurance coverage as and when such policies
expire or (ii) to obtain comparable coverage from similar institutions as may be
necessary or appropriate to conduct their business as now conducted and at a
cost that would not result in a Material Adverse Change in the Company, the
Operating Partnership or any of their respective subsidiaries. Neither the
Company, the Operating Partnership nor any of their respective subsidiaries has
been denied any insurance coverage for which it has sought or applied.
(q) Except as otherwise disclosed in the Prospectus or as would
not, individually or in the aggregate, result in a Material Adverse Change in
the Company, the Operating Partnership and their respective subsidiaries, taken
as a whole, (i) neither the Company, the Operating Partnership nor any of their
respective subsidiaries is in violation of any federal, state, local or foreign
laws and regulations relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including without
limitation, laws and regulations relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum and petroleum products
(collectively, "Materials of Environmental Concern"), or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environmental Concern (collectively,
"Environmental Laws"), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations required for
the operation of the business of the Company, the Operating Partnership or any
of their respective subsidiaries under applicable Environmental Laws, or
noncompliance with the terms and conditions thereof, nor has the Company, the
Operating Partnership or any of their respective subsidiaries received any
written communication, whether from a governmental authority, citizens group,
employee or otherwise, that alleges that the Company, the Operating Partnership
or any of their respective subsidiaries is in any such violation; (ii) there is
no claim, action or cause of action filed with a court or governmental
authority, no investigation with respect to which the Company, the Operating
Partnership or any of their respective subsidiaries has received written notice,
and no written notice by any person or entity alleging potential liability for
investigatory costs, cleanup costs, governmental responses costs, natural
resources damages, property damages, personal injuries, attorneys' fees or
penalties arising out of, based on or resulting from the presence, or
8
9
release into the environment, or any Material of Environmental Concern at any
location owned, leased or operated by the Company, the Operating Partnership or
any of their respective subsidiaries, now or in the past (collectively,
"Environmental Claims"), pending or, to the best knowledge of the Company and
the Operating Partnership, threatened against the Company, the Operating
Partnership or any of their respective subsidiaries or, to the best knowledge of
the Company or the Operating Partnership, against any person or entity whose
liability for any Environmental Claim the Company, the Operating Partnership or
any of their respective subsidiaries has retained or assumed either
contractually or by operation of law; and (iii) to the best of knowledge of the
Company and the Operating Partnership, there are no past or present actions,
activities, circumstances, conditions, events or incidents, including, without
limitation, the release, emission, discharge, presence or disposal of any
Material of Environmental Concern, that reasonably could result in a violation
of any Environmental Law or form the basis of a potential Environmental Claim
against the Company, the Operating Partnership or any of their respective
subsidiaries or against any person or entity whose liability for any
Environmental Claim the Company, the Operating Partnership or any of their
respective subsidiaries has retained or assumed either contractually or by
operation of law.
(r) In the ordinary course of their business, the Company and the
Operating Partnership conduct periodic reviews of the effect of Environmental
Laws on the business, operations and properties of the Company, the Operating
Partnership and their respective subsidiaries, in the course of which they
identify and evaluate associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review and the amount of
their established reserves, the Company and the Operating Partnership have
reasonably concluded that such associated costs and liabilities would not,
individually or in the aggregate, result in a Material Adverse Change in the
Company, the Operating Partnership and their respective subsidiaries, taken as a
whole.
(s) Reserved.
(t) The Company has elected to be taxed as a "real estate
investment trust" ("REIT") under the Internal Revenue Code of 1986, as amended
(the "Code"), effective beginning in its taxable year 1996. The Company has at
all times beginning on January 1, 1996 qualified for taxation as a REIT under
the Code and intends to continue to operate in such manner.
(u) The Common Stock (including the Shares) is registered
pursuant to Section 12(g) of the Exchange Act and is listed on the New York
Stock Exchange (the "NYSE"), and the Company has taken no action designed to, or
likely to have the effect of, terminating the registration of the Common Stock
under the Exchange Act or delisting the Common Stock from the NYSE, nor has the
Company received any notification that the Commission or the NYSE is
contemplating terminating such registration or listing.
(v) Neither the Company, the Operating Partnership nor any of
their respective subsidiaries is, or, after giving effect to the issue and sale
of the Shares by the Company
9
10
will be, an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940.
(w) The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied.
(x) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were filed with the Commission,
complied in all material respects with the requirements of the Exchange Act and
the rules and regulations of the Commission under the Exchange Act, and, when
read together with the other information in the Prospectus, at the respective
times the Second Registration Statement and any amendments thereto became
effective, at the date hereof and at the Closing Date, did not and do not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
Any certificate signed by an officer of the Company or the Operating
Partnership and delivered to the Underwriters or their counsel shall be deemed
to be a representation and warranty by the Company or the Operating Partnership,
as the case may be, as to the matters covered thereby.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants
and agreements herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to sell to the Underwriters and the Underwriters,
severally and not jointly, agree to purchase from the Company, at a purchase
price per share of $23.725, the number of Firm Shares set forth opposite the
respective names of the Underwriters in Schedule I hereto plus any additional
number of Shares which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 9 hereof.
(b) Payment of the purchase price for, and delivery of
certificates for, the Shares shall be made at the office of Bear, ▇▇▇▇▇▇▇ & Co.
Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or at such other place as shall be
agreed upon by the Underwriters and the Company, at 10:00 A.M. on the third or
fourth business day (as permitted under Rule 15c6-1 under the Exchange Act)
(unless postponed in accordance with the provisions of Section 9 hereof) after
the determination of the public offering price of the Shares, or such other time
not later than ten business days after such date as shall be agreed upon by the
Underwriters and the Company (such time and date of payment and delivery being
herein called the "Closing Date"). Payment shall be made to the Company by wire
transfer in same day funds, against delivery to the Underwriters of certificates
for the Shares to be purchased by them. Certificates for the Shares shall be
registered in such name or names and in such authorized denominations as the
Underwriters may request in writing at least 48 hours prior to the Closing Date.
The Company will permit the Underwriters to examine and package such
certificates for delivery at least 24 hours prior to the Closing Date.
(c) In addition, the Company hereby grants to the Underwriters
the
10
11
option to purchase up to 1,500,000 Additional Shares at the same purchase price
per share to be paid by the Underwriters to the Company for the Firm Shares as
set forth in this Section 2, for the sole purpose of covering over-allotments in
the sale of Firm Shares by the Underwriters. This option may be exercised at any
time, in whole or in part, on or before the thirtieth day following the date of
the Prospectus, by written notice by the Underwriters to the Company. Such
notice shall set forth the aggregate number of Additional Shares as to which the
option is being exercised and the date and time, as reasonably determined by the
Underwriters, when the Additional Shares are to be delivered (such date and time
being herein sometimes referred to as the "Additional Closing Date"); provided,
however, that the Additional Closing Date shall not be earlier than the Closing
Date or earlier than the second full business day after the date on which the
option shall have been exercised nor later than the eighth full business day
after the date on which the option shall have been exercised (unless such time
and date are postponed in accordance with the provisions of Section 9 hereof).
Certificates for the Additional Shares shall be registered in such name or names
and in such authorized denominations as the Underwriters may request in writing
at least 48 hours prior to the Additional Closing Date. The Company will permit
the Underwriters to examine and package such certificates for delivery at least
24 hours prior to the Additional Closing Date.
(d) The number of Additional Shares to be sold to each
Underwriter shall be the number which bears the same ratio to the aggregate
number of Additional Shares being purchased as the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto (or such number
increased as set forth in Section 9 hereof) bears to the total number of Firm
Shares being purchased from the Company, subject, however, to such adjustments
to eliminate any fractional shares as the Underwriters in their sole discretion
shall make.
(e) Payment for the Additional Shares shall be made by wire
transfer in same day funds at the office Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or such other location as may be mutually
acceptable, upon delivery of the certificates for the Additional Shares to the
Underwriters.
3. Offering. Upon the Underwriters' authorization of the release of the
Firm Shares, the Underwriters propose to offer the Shares for sale to the public
upon the terms set forth in the Prospectus.
4. Covenants of the Company and the Operating Partnership. The Company
and the Operating Partnership jointly and severally covenant and agree with the
Underwriters that:
(a) The Company will notify the Underwriters immediately (and, if
requested by the Underwriters, will confirm such notice in writing) (i) when any
post-effective amendment to the Registration Statements becomes effective, (ii)
of any request by the Commission for any amendment of or supplement to the
Registration Statements or the Prospectus or for any additional information,
(iii) of the mailing or the delivery to the Commission for filing of the
Prospectus or any amendment of or supplement to the Registration Statements or
the Prospectus or any document to be filed pursuant to the Exchange Act during
any period when
11
12
the Prospectus is required to be delivered under the Securities Act, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of
either Registration Statement or any post-effective amendment thereto or of the
initiation, or the threatening, of any proceedings therefor, (v) of the receipt
of any comments or inquiries from the Commission, and (vi) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Shares for sale in any jurisdiction or the initiation or threatening of
any proceeding for that purpose. If the Commission shall propose or enter a stop
order at any time, the Company will make every reasonable effort to prevent the
issuance of any such stop order and, if issued, to obtain the lifting of such
order as soon as possible. The Company will not file any post-effective
amendment to the Registration Statements or any amendment of or supplement to
the Prospectus (including any revised prospectus which the Company proposes for
use by the Underwriters in connection with the offering of the Shares which
differs from the prospectus filed with the Commission pursuant to Rule 424(b) of
the Securities Act Regulations, whether or not such revised prospectus is
required to be filed pursuant to Rule 424(b) of the Securities Act Regulations)
to which the Underwriters or Underwriters' Counsel (as hereinafter defined)
shall reasonably object, will furnish the Underwriters with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which the Underwriters or counsel for
the Underwriters shall reasonably object.
(b) If any event shall occur as a result of which the Prospectus
would, in the judgment of the Underwriters or the Company include an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it shall be
necessary at any time to amend or supplement the Prospectus or either
Registration Statement to comply with the Securities Act or the Securities Act
Regulations, or to file under the Exchange Act so as to comply therewith any
document incorporated by reference in the Registration Statements or the
Prospectus or in any amendment thereof or supplement thereto, the Company will
notify the Underwriters promptly and prepare and file with the Commission an
appropriate amendment or supplement (in form and substance satisfactory to the
Underwriters) which will correct such statement or omission or which will effect
such compliance.
(c) The Company has delivered to the Underwriters four signed
copies of the Second Registration Statement as originally filed, including
exhibits and all documents incorporated or deemed to be incorporated by
reference therein and all amendments thereto, and the Company will promptly
deliver to each of the Underwriters, from time to time during the period that
the Prospectus is required to be delivered under the Securities Act or the
Exchange Act, such number of copies of the Prospectus and the Registration
Statements, and all amendments of and supplements to such documents, if any, as
the Underwriters may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with
the Underwriters, to qualify the Shares for offering and sale under the
securities laws relating to the offering or sale of the Shares of such
jurisdictions as the Underwriters may designate and to maintain such
qualification in effect for so long as required for the distribution thereof;
except that
12
13
in no event shall the Company be obligated in connection therewith to qualify as
a foreign corporation or to execute a general consent to service of process.
(e) The Company will make generally available (within the meaning
of Section 11(a) of the Securities Act) to its security holders and to the
Underwriters as soon as practicable, but not later than 45 days after the end of
its fiscal quarter in which the first anniversary date of the effective date of
the Second Registration Statement occurs (or if such fiscal quarter is the
Company's fourth fiscal quarter, not later than 90 days after the end of such
quarter), an earnings statement (in form complying with the provisions of Rule
158 of the Regulations) covering a period of at least twelve consecutive months
beginning after the effective date of the Second Registration Statement (as
defined in Rule 158(c) under the Securities Act).
(f) During the period of 60 days from the date of the Prospectus,
the Company and the Operating Partnership will not, directly or indirectly
without the prior written consent of Bear, ▇▇▇▇▇▇▇ & Co. Inc., issue, sell,
offer or agree to sell, grant any option to purchase, or otherwise dispose (or
announce any offer, sale, grant of an option to purchase or other disposition)
of, any shares of Common Stock (or any securities convertible into, exchangeable
or exercisable for shares of Common Stock), other than (i) the Company's sale of
Shares hereunder and the Company's issuance of Common Stock upon the exercise of
stock options outstanding at the date of the Prospectus, (ii) the exchange of
outstanding units in the Operating Partnership for Common Stock, (iii) the
issuance, in connection with bona fide acquisitions of real property or
interests therein, to the sellers of such property, of shares of Common Stock or
units in the Operating Partnership such that the aggregate number of shares of
Common Stock issued, or which may be issued upon conversion or exchange of such
units, will not exceed 3,500,000 (the "Permitted Securities"); provided,
however, that as a precondition to any such issuance, the Company or the
Operating Partnership, as the case may be, shall obtain the undertaking of each
such holder that it will not engage in any of the aforementioned transactions
during the period of 60 days from the date of the Prospectus and place on the
face of any such Permitted Security a legend to that effect.
(g) Reserved.
(h) During a period of three years from the date of the
Prospectus, the Company will furnish to the Underwriters copies of (i) all
reports to its stockholders; and (ii) all reports, financial statements and
proxy or information statements filed by the Company with the Commission or any
national securities exchange.
(i) The Company will apply the proceeds from the sale of the
Shares as set forth under "Use of Proceeds" in the Base Prospectus and the
Prospectus Supplement.
(j) Immediately following the execution of this Agreement, the
Company will prepare a prospectus supplement, dated the date hereof (the
"Prospectus Supplement"), containing the plan of distribution of the Shares and
such other information as may be required by the Securities Act or the
Securities Act Regulations or as the Underwriters and the Company deem
appropriate, and will file or transmit for filing with the Commission in
accordance
13
14
with Rule 424(b) of the Securities Act Regulations copies of the Prospectus
(including such Prospectus Supplement).
(k) If the Company elects to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement, no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission, and all requests for additional information on the
part of the Commission shall have been complied with to the Underwriters'
reasonable satisfaction.
(l) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act or the Exchange Act, will file
all documents required to be filed with the Commission pursuant to Sections 13,
14 or 15 of the Exchange Act within the time periods required by the Exchange
Act and the rules and regulations thereunder.
5. Payment of Expenses. Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of the
obligations of the Company hereunder, including those in connection with (i)
preparing, printing, duplicating, filing and distributing the Registration
Statements, as originally filed and all amendments thereof (including all
exhibits thereto), any Preliminary Prospectus, the Prospectus and any amendments
or supplements thereto (including, without limitation, fees and expenses of the
Company's accountants and counsel), the underwriting documents (including this
Agreement, the Agreement Among Underwriters and the Selling Agreement) and all
other documents related to the public offering of the Shares (including those
supplied to the Underwriters in quantities as hereinabove stated), (ii) the
issuance, transfer and delivery of the Shares to the Underwriters, including any
transfer or other taxes payable thereon, (iii) the qualification of the Shares
under state or foreign securities or Blue Sky laws, including the costs of
printing and mailing a preliminary and final "Blue Sky Memorandum" and the fees
of counsel in connection therewith and such counsel's disbursements in relation
thereto, (iv) listing the Shares on the NYSE, (v) filing fees of the Commission
and the National Association of Securities Dealers, Inc. (the "NASD"), (vi) the
cost of printing certificates representing the Shares and (vii) the cost and
charges of any transfer agent or registrar; provided, however, except as
provided for in Section 11, that the Company shall have no obligation to
reimburse the Underwriters for (a) fees, disbursements and out-of-pocket
expenses of counsel for the Underwriters or the Underwriters other than pursuant
to clause (iii) above or (b) expenses in connection with the offering that are
customarily borne by the underwriters in public offerings of securities of real
estate investment trusts.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject to the accuracy of the representations and
warranties of the Company and the Operating Partnership herein contained, as of
the date hereof and as of the Closing Date (for purposes of this Section 6,
"Closing Date" shall refer to the Closing Date for the Firm Shares and any
Additional Closing Date, if different, for the Additional Shares), to the
absence from any certificates, opinions, written statements or letters furnished
to the Underwriters or to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to
this Section 6 of any misstatement or omission, to
14
15
the performance by the Company and the Operating Partnership of their respective
obligations hereunder, and to the following additional conditions:
(a) On the Closing Date, no stop order suspending the
effectiveness of either Registration Statement shall have been issued under the
Securities Act or proceedings therefor initiated or threatened by the
Commission. The Prospectus (including the Prospectus Supplement referred to in
Section 4(j) hereof) shall have been filed or transmitted for filing with the
Commission pursuant to Rule 424(b) of the Securities Act Regulations within the
prescribed time period, and prior to Closing Date the Company shall have
provided evidence satisfactory to the Underwriters of such timely filing or
transmittal.
(b) On the Closing Date the Underwriters shall have received the
opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company and the Operating
Partnership, dated the Closing Date addressed to the Underwriters and in form
and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
State of Maryland.
(ii) The Company is duly qualified and in good standing
as a foreign corporation in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or
conduct of its business makes such qualification necessary, except for
those failures to be so qualified or in good standing which will not in
the aggregate have a material adverse effect on the Company, the
Operating Partnership and their respective subsidiaries, taken as a
whole.
(iii) The Company has all requisite corporate power and
authority to own, lease and operate its properties and conduct its
business as now being conducted and as described in the Second
Registration Statement and in the Prospectus.
(iv) The Operating Partnership has been duly formed
under the laws of the State of California, with a stated term beyond the
term of the documents being executed in connection with the transactions
contemplated hereby; the partnership agreement of the Operating
Partnership has been duly authorized, executed and delivered by each
partner thereto and is valid, legally binding and enforceable in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and by the effect of general principles of
equity; and all of the partnership interests in the Operating
Partnership have been duly and validly authorized and issued and (except
as described in the Prospectus) the partnership interests owned directly
or indirectly by the Company are free and clear of all liens,
encumbrances, equities or claims. All issued and outstanding securities
of the Operating Partnership have been duly and validly authorized and
issued in compliance with the federal and state securities laws. The
units of the Operating Partnership issued in connection with the
acquisitions described in the Prospectus Supplement under the caption
"Recent Activities" were duly and validly issued in compliance with the
federal and state securities laws.
15
16
(v) The Operating Partnership has been duly qualified as
a foreign limited partnership and is in good standing in each
jurisdiction in which the character or location of its properties
(owned, leased or licensed) or the nature or conduct of its business
makes such qualification necessary, except for those failures to be so
qualified or in good standing which will not in the aggregate have a
material adverse effect on the Company, the Operating Partnership and
their respective subsidiaries, taken as a whole.
(vi) The Operating Partnership has all requisite power
and authority to own, lease and operate its properties and conduct its
business as now being conducted and as described in the Second
Registration Statement and the Prospectus.
(vii) Each subsidiary of the Company or the Operating
Partnership that is a "significant subsidiary" (as such term is defined
in Rule 1-02 of Regulation S-X of the Commission) (collectively, the
"Material Subsidiaries") has been duly organized and is validly existing
as a corporation or partnership in good standing under the laws of the
jurisdiction of its organization.
(viii) Each Material Subsidiary is duly qualified and in
good standing as a foreign corporation or partnership in each
jurisdiction in which the character or location of its properties
(owned, leased or licensed) or the nature or conduct of its business
makes such qualification necessary, except for those failures to be so
qualified or in good standing which will not in the aggregate have a
material adverse effect on the Company, the Operating Partnership and
their respective subsidiaries taken as a whole.
(ix) Each Material Subsidiary has all requisite power
and authority to own, lease and operate its properties and conduct its
business as now being conducted and as described in the Second
Registration Statement and the Prospectus.
(x) All of the capital stock or partnership units in
each Material Subsidiary has been duly and validly authorized and issued
and (except as described in the Prospectus) such capital stock or
partnership units owned directly or indirectly by the Company or the
Operating Partnership, as the case may be, are free and clear of all
liens, encumbrances, equities or claims.
(xi) The Company has an authorized capital stock as set
forth in the Second Registration Statement and the Prospectus. All of
the outstanding shares of Common Stock are duly and validly authorized
and issued, are fully paid and nonassessable. The Shares to be delivered
on the Closing Date have been duly and validly authorized and, when
delivered by the Company in accordance with this Agreement, will be duly
and validly issued, fully paid and nonassessable and will not have been
issued in violation of or subject to any preemptive rights. The Common
Stock, the Firm Shares and the Additional Shares conform to the
descriptions thereof contained in the Second Registration Statement and
the Prospectus.
16
17
(xii) The Common Stock currently outstanding is listed,
and the Shares to be sold under this Agreement to the Underwriters are
duly authorized for listing, on the NYSE.
(xiii) This Agreement and the transactions contemplated
herein have been duly and validly authorized by the Company and the
Operating Partnership and this Agreement has been duly and validly
executed and delivered by the Company and the Operating Partnership.
(xiv) To the best knowledge of such counsel and except
as described in the Prospectus, there is no litigation or governmental
proceeding to which the Company, the Operating Partnership or any of the
Material Subsidiaries is a party or to which any property of the
Company, the Operating Partnership or any of the Material Subsidiaries
is subject or which is pending or contemplated against the Company, the
Operating Partnership or any of the Material Subsidiaries which might
result in any material adverse change or any development involving a
material adverse change in the business, business prospects, properties,
operations, condition (financial or other) or results of operations of
the Company, the Operating Partnership and their respective subsidiaries
taken as a whole, which might materially and adversely affect the
transactions contemplated by this Agreement or which is required to be
disclosed in the Second Registration Statement and the Prospectus. The
descriptions of litigation matters in the Base Prospectus under the
captions "Risk Factors -- Litigation Related to Consolidation" and "Risk
Factors -- Chapter 11 Reorganization of Partnership Consolidation by
Senior Management" are complete and accurate in all material respects.
(xv) The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby
do not and will not (A) conflict with or result in a breach of any of
the terms and provisions of, or constitute a default (or an event which
with notice or lapse of time, or both, would constitute a default)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company, the Operating
Partnership or any of the Material Subsidiaries pursuant to any
agreement, instrument, franchise, license or permit known to such
counsel to which the Company, the Operating Partnership or any of the
Material Subsidiaries is a party or by which any of such entities or
their respective properties or assets may be bound that is material to
the Company, the Operating Partnership and their subsidiaries, taken as
a whole (collectively, the "Material Contracts") or (B) violate or
conflict with any provision of the partnership agreement of the
Operating Partnership, the certificate of incorporation or by-laws of
the Company or any of the Material Subsidiaries, or, to the best
knowledge of such counsel, any judgment, decree, order, statute, rule or
regulation of any court or any public, governmental or regulatory agency
or
17
18
body having jurisdiction over the Company, the Operating Partnership or
any of the Material Subsidiaries or any of their respective properties
or assets, except for those violations or conflicts that would not have
a material adverse effect on the Company, the Operating Partnership and
their subsidiaries, taken as a whole. To such counsel's knowledge, no
consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body having jurisdiction over the
Company, the Operating Partnership or any of the Material Subsidiaries
or any of their respective properties or assets is required for the
execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby, except for (A)
such as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters (as to which such counsel need express no opinion) and (B)
such as have been made or obtained under the Securities Act or the rules
of the NYSE.
(xvi) At the time the Second Registration Statement
became effective and on the date hereof, the Second Registration
Statement and the Prospectus as amended or supplemented (other than the
financial statements and schedules and other financial data included or
incorporated by reference therein, as to which no opinion need be
rendered) complied and comply as to form in all material respects with
the requirements of the Securities Act and the Securities Act
Regulations.
(xvii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus (other than the financial
statements and schedules and other financial data included or
incorporated by reference therein, as to which no opinion need be
rendered), at the time they were filed with the Commission, complied as
to form in all material respects with the requirements of the Securities
Act and the Securities Act Regulations.
(xviii) Each of the Registration Statements, including
any Rule 462(b) Registration Statement, is effective under the
Securities Act, and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of either Registration Statement or
any post-effective amendment thereof or the Rule 462(b) Registration
Statement has been issued and no proceedings therefor have been
initiated or threatened by the Commission. Any required filing of the
Prospectus and any supplement thereto pursuant to Rule 424(b) under the
Regulations has been made in the manner and within the time period
required by such Rule 424(b).
(xix) To the best knowledge of such counsel and except
as described or incorporated by reference in the Prospectus, no holder
of securities of the Company or the Operating Partnership has any rights
to the registration of securities of the Company or securities of the
Operating Partnership that are convertible, exchangeable or exercisable
for securities of the Company because of the filing of either
Registration Statement or otherwise in connection with the sale of the
Shares contemplated hereby.
(xx) Commencing with its fiscal year ending December 31,
1996, the Company has been organized in conformity with the requirements
for qualification as a REIT and its method of operation enables it to
continue to meet the requirements for qualification and taxation as a
REIT under the Code, and the conversion rights of the limited partners
of the Operating Partnership or of other holders of securities of the
Operating Partnership will not cause the Company to fail to be "closely
held" within the meaning of Section 856(a)(6) of the Code.
18
19
(xxi) The Operating Partnership is properly treated (A)
as a partnership for federal income tax purposes and (B) not as an
association or publicly traded partnership taxable as a corporation.
(xxii) Neither the Company, the Operating Partnership
nor any Material Subsidiary is, or, after giving effect to the issue and
sale of the Shares by the Company will be, an "investment company" or a
company "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940.
(xxiii) The statements in the Base Prospectus under the
captions "Description of Preferred Stock", "Description of Common
Stock", "Description of Warrants", "Risk Factors -- Certain Tax Risks",
"Certain Provisions of the Company's Charter and Bylaws" and "Federal
Income Tax Consequences" and (ii) in Item 15 of the Second Registration
Statement, insofar as such statements constitute matters of law,
summaries of legal matters, the Company's charter or by-law provisions,
legal documents or legal proceedings, or legal conclusions, has been
reviewed by such counsel and, as of the date of the Prospectus
Supplement and as of the Closing Date hereof, fairly present and
summarize, in all material respects, the matters referred to therein.
(xxiv) In addition, such opinion shall also contain a
statement that such counsel has participated in conferences with
officers and representatives of the Company and the Operating
Partnership, representatives of the independent public accountants for
the Company and the Operating Partnership and the Underwriters at which
the contents of the Second Registration Statement and the Prospectus and
related matters were discussed and, although they are not passing upon,
and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Second Registration
Statement or Prospectus or incorporated by reference therein, and they
have not made any independent check or verification thereof, on the
basis of the foregoing, no facts have come to the attention of such
counsel which would lead such counsel to believe that either the Second
Registration Statement at the time it became effective (including the
information incorporated by reference therein or deemed to be part of
the Second Registration Statement, as amended (except for financial
statements and schedules and other financial or statistical data
included or incorporated by reference therein, as to which such counsel
need make no statement) or any subsequent amendment thereof made prior
to the Closing Date as of the date of such amendment, contained an
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, including the documents
incorporated or deemed to be incorporated by reference therein (except
for financial statements and schedules and other financial or
statistical data included or incorporated by reference therein, as to
which counsel need make no statement), as of the date it was first
provided by the Company to the Underwriters for use in connection with
the offer and sale of the Shares and as of the Closing Date, contained
or contains an untrue statement of a material fact or omitted or omits
to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
19
20
(xxv) In rendering such opinion, such counsel may rely
as to matters involving the application of laws other than the laws of
the United States, California and any other jurisdictions in which they
are admitted, to the extent such counsel deems proper and to the extent
specified in such opinion, if at all, upon an opinion or opinions (in
form and substance reasonably satisfactory to Underwriters' Counsel) of
other counsel familiar with the applicable laws and reasonably
acceptable to Underwriters' Counsel; provided, that such opinion shall
expressly state that the Underwriters may rely on such opinion as if it
were addressed to them. In rendering such opinion, such counsel may rely
as to matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Company and the Operating Partnership and
certificates or other written statements of officers of departments of
various jurisdictions having custody of documents respecting the
existence or good standing of the Company, the Operating Partnership and
their respective subsidiaries, provided that such opinion shall state
that such counsel and the Underwriters are justified in so relying upon
any such certificate. The opinion of such counsel for the Company shall
state that the opinion of any such other counsel is in form satisfactory
to such counsel and, in their opinion, the Underwriters and they are
justified in relying thereon.
(c) All proceedings taken in connection with the sale of the Firm
Shares and the Additional Shares as herein contemplated shall be satisfactory in
form and substance to the Underwriters and to Underwriters' Counsel, and the
Underwriters shall have received from Underwriters' Counsel a favorable opinion,
dated as of the Closing Date with respect to the issuance and sale of the
Shares, the Second Registration Statement and the Prospectus and such other
related matters as the Underwriters may reasonably require, and the Company
shall have furnished to Underwriters' Counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(d) At the Closing Date the Underwriters shall have received a
certificate of the Chief Executive Officer and Chief Financial Officer of the
Company on behalf of the Company and as the sole general partner of the
Operating Partnership, dated the Closing Date to the effect that (i) the
condition set forth in subsection (a) of this Section 6 has been satisfied, (ii)
as of the date hereof and as of the Closing Date the representations and
warranties of the Company and the Operating Partnership set forth in Section 1
hereof are accurate, (iii) as of the Closing Date the obligations of the Company
and the Operating Partnership to be performed hereunder on or prior thereto have
been duly performed and (iv) subsequent to the respective dates as of which
information is given in the Second Registration Statement and the Prospectus,
the Company, the Operating Partnership and their respective subsidiaries have
not sustained any material loss or interference with their respective businesses
or properties from fire, flood, hurricane, accident or other calamity, whether
or not covered by insurance, or from any labor dispute or any legal or
governmental proceeding, and there has not been any material adverse change in
the business, business prospects, properties, operations, condition (financial
or other), or results of operations of the Company or the Operating Partnership
and their respective subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except in each case as
described in or contemplated by the Prospectus in the form first provided by the
Company to the Underwriters for use in connection with the offer and sale of the
20
21
Shares.
(e) At the time this Agreement is executed and at the Closing
Date, the Underwriters shall have received a letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
independent public accountants for the Company, dated, respectively, as of the
date of this Agreement and as of the Closing Date addressed to the Underwriters
and in form and substance satisfactory to the Underwriters, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to financial statements and
certain information of the Company and its subsidiaries contained or
incorporated by reference in the Registration Statements and the Prospectus.
(f) Prior to the Closing Date the Company and the Operating
Partnership shall have furnished to the Underwriters such further information,
certificates and documents as they may reasonably request.
(g) Reserved.
(h) At the Closing Date, the Shares shall have been approved for
listing on the NYSE.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as required by this Agreement, or if any of the certificates,
opinions, written statements or letters furnished to the Underwriters or to
Underwriters' Counsel pursuant to this Section 6 shall not be in all material
respects reasonably satisfactory in form and substance to the Underwriters and
to Underwriters' Counsel, all obligations of the Underwriters hereunder may be
canceled by the Underwriters at, or at any time prior to, the Closing Date and
the obligations of the Underwriters to purchase the Additional Shares may be
canceled by the Underwriters at, or at any time prior to, the Additional Closing
Date. Notice of such cancellation shall be given to the Company in writing, or
by telephone, telex or telegraph, confirmed in writing.
7. Indemnification.
(a) The Company and the Operating Partnership, jointly and
severally, agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act against any and all
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
either Registration Statement, as originally filed or any amendment thereof, or
any related preliminary prospectus, preliminary prospectus supplement or the
prospectus, or in any supplement thereto or amendment thereof, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein
21
22
or necessary to make the statements therein not misleading; provided, however,
that neither the Company nor the Operating Partnership will be liable in any
such case (i) to the extent but only to the extent that any such loss,
liability, claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company or the Operating Partnership by or on behalf of any
Underwriter expressly for use therein and (ii) with respect to any preliminary
prospectus or preliminary prospectus supplement to the extent that any such
loss, claim, damage or liability results from the fact that an Underwriter sold
Shares to a person as to whom there was not sent or given, at or prior to
written confirmation of such sale, a copy of the prospectus or prospectus
supplement as then amended or supplemented in any case where such delivery is
required by the Securities Act if the Company has previously furnished copies
thereof to such Underwriter and the loss, claim, damage or liability of the
Underwriters results from an untrue statement or omission of a material fact
contained in the preliminary prospectus or preliminary prospectus supplement
which was corrected in the prospectus or prospectus supplement as then amended.
This indemnity agreement will be in addition to any liability which the Company
and the Operating Partnership may otherwise have including under this Agreement.
(b) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the Company,
each of the officers of the Company who shall have signed the Registration
Statements, the Operating Partnership and each other person, if any, who
controls the Company or the Operating Partnership within the meaning of Section
15 of the Securities Act or Section 20(a) of the Exchange Act, against any
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
either Registration Statement, as originally filed or any amendment thereof, or
any related preliminary prospectus, preliminary prospectus supplement or
prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that any
such loss, liability, claim, damage or expense arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company or the Operating Partnership by or on
behalf of any Underwriter expressly for use therein; provided, however, that in
no case shall any Underwriter be liable or responsible for any amount in excess
of the underwriting discount applicable to the Shares purchased by such
Underwriter hereunder. This indemnity will be in addition to any liability which
any Underwriter may otherwise have including under this Agreement. The Company
and the Operating Partnership acknowledge that the statements set forth in (i)
the last paragraph of the outside front cover of the Prospectus Supplement,
concerning the delivery of the shares of Common Stock to the Underwriters and
the offering of such shares
22
23
by the Underwriters; (ii) the paragraph on the inside front cover of the
Prospectus Supplement, concerning transactions that stabilize, maintain, or
otherwise affect the price of the Common Stock; (iii) the second paragraph under
the caption "Underwriting" in the Prospectus Supplement, concerning the proposed
public offering price, discount and concession; and (iv) the last paragraph
under the caption "Plan of Distribution" in the Base Prospectus and the sixth
paragraph under the caption "Underwriting" in the Prospectus Supplement,
concerning transactions that stabilize, maintain, or otherwise affect the price
of the Common Stock, constitute the only information furnished in writing by or
on behalf of any Underwriter expressly for use in the Second Registration
Statement, as originally filed or in any amendment thereof, any related
Preliminary Prospectus or preliminary prospectus supplement or the Prospectus or
in any amendment thereof or supplement thereto, as the case may be.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7, except to the extent that it
has been prejudiced in any material respect by such failure or from any
liability that it may have otherwise). In case any such action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties. Anything in
this subsection to the contrary notwithstanding, an indemnifying party shall not
be liable for any settlement of any claim or action effected without its written
consent; provided, however, that such consent was not unreasonably withheld.
8. Contribution. In order to provide for contribution in circumstances
in which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company, the Operating Partnership
and the Underwriters shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses
23
24
suffered by the Company or the Operating Partnership any contribution received
by the Company or the Operating Partnership from persons, other than the
Underwriters, who may also be liable for contribution, including persons who
control the Company or the Operating Partnership within the meaning of Section
15 of the Securities Act or Section 20(a) of the Exchange Act, officers of the
Company who signed the Registration Statements and directors of the Company) as
incurred to which the Company, the Operating Partnership and one or more of the
Underwriters may be subject, in such proportions as is appropriate to reflect
the relative benefits received by the Company, the Operating Partnership and the
Underwriters from the offering of the Shares or, if such allocation is not
permitted by applicable law or indemnification is not available as a result of
the indemnifying party not having received notice as provided in Section 7
hereof, in such proportion as is appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the Company, the
Operating Partnership and the Underwriters in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Operating Partnership on the one hand
and the Underwriters on the other hand shall be deemed to be in the same
proportion as (x) the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company
and (y) the underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company, the Operating Partnership, and
the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Operating Partnership, or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Operating
Partnership and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 8, (i) in no case shall any Underwriter be liable or responsible
for any amount in excess of the underwriting discount applicable to the Shares
purchased by such Underwriter hereunder, and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Notwithstanding the provisions of this Section 8
and the preceding sentence, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act shall have the same rights to contribution
as such Underwriter, and each person, if any, who controls the Company or the
Operating Partnership within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, each officer of the Company who shall have
signed the Registration Statements and each director of the Company shall have
the same rights to contribution as the Company or the Operating Partnership, as
the case may be, subject in each case to clauses (i) and (ii) of this
24
25
Section 8. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party or
parties, notify each party or parties from whom contribution may be sought, but
the omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 8 or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its consent;
provided, however, that such consent was not unreasonably withheld.
9. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or
their obligation to purchase Firm Shares or Additional Shares hereunder, and if
the Firm Shares or Additional Shares with respect to which such default relates
do not (after giving effect to arrangements, if any, made by the Underwriters
pursuant to subsection (b) below) exceed in the aggregate 10% of the number of
Firm Shares or Additional Shares, the Firm Shares or Additional Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase shall be purchased by the non-defaulting Underwriters in proportion to
the respective proportions which the numbers of Firm Shares set forth opposite
their respective names in Schedule I hereto bear to the aggregate number of Firm
Shares set forth opposite the names of the non-defaulting Underwriters.
(b) In the event that such default relates to more than 10% of
the Firm Shares or Additional Shares, as the case may be, the Underwriters may
in their discretion arrange for themselves or for another party or parties
(including any non-defaulting Underwriter or Underwriters who so agree) to
purchase such Firm Shares or Additional Shares, as the case may be, to which
such default relates on the terms contained herein. In the event that within 5
calendar days after such a default the Underwriters do not arrange for the
purchase of the Firm Shares or Additional Shares, as the case may be, to which
such default relates as provided in this Section 9, this Agreement, or in the
case of a default with respect to the Additional Shares, the obligations of the
Underwriters to purchase and of the Company to sell the Additional Shares, shall
thereupon terminate, without liability on the part of the Company with respect
thereto (except in each case as provided in Section 5, 7(a) and 8 hereof) or the
Underwriters, but nothing in this Agreement shall relieve a defaulting
Underwriter or Underwriters of its or their liability, if any, to the other
Underwriters and the Company for damages occasioned by its or their default
hereunder.
(c) In the event that the Firm Shares or Additional Shares to
which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
the Underwriters or the Company shall have the right to postpone the Closing
Date or Additional Closing Date, as the case may be for a period, not exceeding
five business days, in order to effect whatever changes may thereby be made
necessary in the Registration Statements or the Prospectus or in any other
documents and arrangements, and the Company agrees to file promptly any
amendment or supplement to the Registration Statements or the Prospectus which,
in the opinion of Underwriters' Counsel, may thereby be made necessary or
advisable. The term "Underwriter" as used in this Agreement shall include any
25
26
party substituted under this Section 9 with like effect as if it had originally
been a party to this Agreement with respect to such Firm Shares or Additional
Shares.
10. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Underwriters, the Company and the
Operating Partnership contained in this Agreement, including the agreements
contained in Section 5, the indemnity agreements contained in Section 7 and the
contribution agreements contained in Section 8, shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or any controlling person thereof or by or on behalf of the
Company, any of its officers and directors, the Operating Partnership or any
controlling person of the Company or the Operating Partnership, and shall
survive delivery of and payment for the Shares to and by the Underwriters. The
representations contained in Section 1 and the agreements contained in Sections
5, 7, 8 and 11(d) hereof shall survive the termination of this Agreement,
including termination pursuant to Section 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the execution of
this Agreement.
(b) The Underwriters shall have the right to terminate this
Agreement at any time prior to the Closing Date or the obligations of the
Underwriters to purchase the Additional Shares at any time prior to the
Additional Closing Date, as the case may be, if (A) any domestic or
international event or act or occurrence has materially disrupted, or in the
Underwriters' opinion will in the immediate future materially disrupt, the
market for the Company's securities or securities in general; or (B) if trading
on the NYSE or the American Stock Exchange shall have been suspended, or minimum
or maximum prices for trading shall have been fixed, or maximum ranges for
prices for securities shall have been required, on the NYSE or the American
Stock Exchange by such exchanges or by order of the Commission or any other
governmental authority having jurisdiction; or (C) if a banking moratorium has
been declared by a state or federal authority or if any new restriction
materially adversely affecting the distribution of the Firm Shares or the
Additional Shares, as the case may be, shall have become effective; or (D) there
shall have occurred any Material Adverse Change with respect to the Company, the
Operating Partnership and their respective subsidiaries taken as a whole; or (E)
(i) if the United States becomes engaged in hostilities or there is an
escalation of hostilities involving the United States or there is a declaration
of a national emergency or war by the United States or (ii) if there shall have
been such change in political, financial or economic conditions if the effect of
any such event in (i) or (ii) as in the Underwriters' judgment makes it
impracticable or inadvisable to proceed with the offering, sale and delivery of
the Firm Shares or the Additional Shares, as the case may be, on the terms
contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 11 shall
be by telephone, telex, or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to Section 9(b) or 11(b) hereof), or
if the sale of the
26
27
Shares provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth herein is not satisfied or because of
any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof, the Company will, subject
to demand by the Underwriters, reimburse the Underwriters for all out-of-pocket
expenses (including the fees and expenses of their counsel), incurred by the
Underwriters in connection herewith.
12. Notices. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and , if sent to any
Underwriter, shall be mailed, delivered, or telexed or telegraphed and confirmed
in writing, to such Underwriter c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇; if sent to the Company, shall be
mailed, delivered, or telegraphed and confirmed in writing to the Company, ▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇.
13. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Underwriters, the Company, the Operating Partnership
and the controlling persons, directors, officers, employees and agents referred
to in Section 7 and 8, and their respective successors and assigns, and no other
person shall have or be construed to have any legal or equitable right, remedy
or claim under or in respect of or by virtue of this Agreement or any provision
herein contained. The term "successors and assigns" shall not include a
purchaser, in its capacity as such, of Shares from any of the Underwriters.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in such State, without regard to principles of conflicts of
law.
27
28
If the foregoing correctly sets forth the understanding among the
Underwriters, the Company and the Operating Partnership, please so indicate in
the space provided below for that purpose, whereupon this letter shall
constitute a binding agreement among us.
Very truly yours,
GLENBOROUGH REALTY TRUST INCORPORATED
By
--------------------------------------
Name
-----------------------------------
Title
-----------------------------------
GLENBOROUGH PROPERTIES, L.P.
By Glenborough Realty Trust Incorporated
Its General Partner
By
--------------------------------------
Name
-----------------------------------
Title
-----------------------------------
Accepted as of the date first above written
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
SALOMON BROTHERS INC
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇▇▇▇ & COMPANY SECURITIES, INC.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By
---------------------------------
Name
--------------------------------
Title
-------------------------------
29
SCHEDULE I
Number of Firm
Name of Underwriter Shares to be Purchased
------------------- ----------------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc. .......................................2,000,000
Salomon Brothers Inc ...........................................2,000,000
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ..............................................2,000,000
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ .................................2,000,000
▇▇▇▇▇▇▇▇▇ & Company, Inc. ......................................1,000,000
▇▇▇▇▇▇▇▇ & Company Securities, Inc. ............................1,000,000
Total..........................................................10,000,000