1
EXHIBIT 1.1
▇▇▇▇▇▇▇ PROPERTIES, INC.
PREFERRED STOCK
-----------------------------
UNDERWRITING AGREEMENT
-----------------------------
June 1, 1998
▇▇▇▇▇▇▇, Sachs & Co.,
BT Alex. ▇▇▇▇▇ Incorporated,
PaineWebber Incorporated,
Prudential Securities Incorporated,
c/o Goldman, Sachs & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Dear Ladies and Gentlemen:
From time to time ▇▇▇▇▇▇▇ Properties, Inc., a Maryland corporation (the
"Company") and the general partner of ▇▇▇▇▇▇▇ Properties, L.P. (the "Operating
Partnership"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain shares of its Preferred Stock, par value $.0001 per
share (the "Shares"), specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, the "Firm Shares"). If specified in such
Pricing Agreement, the Company may grant to the Underwriters the right to
purchase at their election an additional number of shares of Preferred Stock,
specified in such Pricing Agreement as provided in Section 3 hereof (the
"Optional Shares"). The Firm Shares and the Optional Shares, if any, which the
Underwriters elect to purchase pursuant to Section 3 hereof are herein
collectively called the "Designated Shares."
The terms and rights of any particular issuance of Designated Shares
shall be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Shares may be made from time to time
to the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting
2
Agreement shall not be construed as an obligation of the Company to sell any of
the Shares or as an obligation of any of the Underwriters to purchase any of the
Shares. The obligation of the Company to issue and sell any of the Shares and
the obligation of any of the Underwriters to purchase any of the Shares shall be
evidenced by the Pricing Agreement with respect to the Designated Shares
specified therein. Each Pricing Agreement shall specify the aggregate number of
the Firm Shares, the maximum number of Optional Shares, if any, the initial
public offering price of such Firm and Optional Shares or the manner of
determining such price, the terms of the Designated Shares, including the terms
on which and terms of the securities into which the Designated Shares will be
convertible or exchangeable, whether the Designated Shares will be represented
by Depositary Shares, the name of the Depositary and date of the Deposit
Agreement, the purchase price to the Underwriters of such Designated Shares, the
names of the Underwriters of such Designated Shares, the names of the
Representatives of such Underwriters, the number of such Designated Shares to be
purchased by each Underwriter and the commission, if any, payable to the
Underwriters with respect thereto and shall set forth the date, time and manner
of delivery of such Firm and Optional Shares, if any, and payment therefor. The
Pricing Agreement shall also specify (to the extent not set forth in the
registration statement and the prospectus with respect thereto) the terms of
such Designated Shares. A Pricing Agreement shall be in the form of an executed
writing (which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company and the Operating Partnership, jointly and severally,
represent and warrant to, and agree with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-35997) (the
"First Registration Statement") in respect of the Shares, common stock,
warrants, depositary shares and guarantees of the Company and debt
securities of the Operating Partnership and a registration statement on
Form S-3 (File No. 333-51269) (the "Second Registration Statement") in
respect of the Shares, common stock, warrants, depositary shares and
guarantees of the Company and debt securities of the Operating
Partnership have been filed with the Securities and Exchange Commission
(the "Commission"); the First Registration Statement and the Second
Registration Statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to such registration statement, but including
all documents incorporated by reference in the prospectus included in
the Second Registration Statement, to the Representatives for each of
the other Underwriters, have been declared effective by the Commission
in such form; other than a registration statement, if any, increasing
the size of the offering (a "Rule 462(b) Registration Statement") filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became effective upon filing; no other document with
respect to the First Registration Statement or the Second Registration
Statement
-2-
3
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 Representatives); no stop
order suspending the effectiveness of the First Registration Statement
or the Second Registration Statement, any post-effective amendment
thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in the
Second Registration Statement, or filed with the Commission pursuant to
Rule 424(a) under the Act, is hereinafter called a "Preliminary
Prospectus"); the various parts of the First Registration Statement or
the Second Registration Statement, any post-effective amendments thereto
and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto but excluding Form T-1 and including (i) the
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the registration statement at the time it was declared
effective and (ii) the documents incorporated by reference in the
prospectus contained in the Second Registration Statement at the time
such part of the Second Registration Statement became effective, each as
amended at the time such part of the registration statement became
effective or such part of the Rule 462(b) Registration Statement, if
any, became or hereafter becomes effective, is hereinafter collectively
called the "Registration Statement"; the prospectus relating to the
Shares, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of
this Agreement, is hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a)
or 15(d) of the Exchange Act after the effective date of the Second
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended
or supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Shares in the form
in which it is filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time
-3-
4
of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and did 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; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company or the Operating
Partnership by an Underwriter of Designated Shares through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter of Designated Shares through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Shares;
(d) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and
do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Shares through the Representatives expressly for use in the Prospectus
as amended or supplemented relating to such Shares or to that part of
the Registration Statement which shall constitute the Statement of
-4-
5
Eligibility under the Trust Indenture Act (Form T-1) of the Trustee
under the Indenture relating to debt securities of the Operating
Partnership;
(e) Neither the Company nor the Operating Partnership nor any of
their subsidiaries has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any change in the capital stock of the Company or long-term or
short-term debt of the Company or the capital of the Operating
Partnership or any of their subsidiaries or any material adverse change,
or any development involving a prospective material adverse change, in
or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company, the
Operating Partnership or their subsidiaries otherwise than as set forth
or contemplated in the Prospectus;
(f) The Company, the Operating Partnership and their subsidiaries
have good and marketable title in fee simple to all real property and
good and marketable title to all personal property owned by them, in
each case free and clear of all liens, encumbrances, defects and other
beneficial interests except such as are described in the Prospectus or
such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company, the Operating Partnership and their subsidiaries; and any
real property and buildings held under lease by the Company, the
Operating Partnership and their subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company, the Operating Partnership
and their subsidiaries;
(g) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of Maryland with power
and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus, and has been duly qualified
as a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; and
the Operating Partnership has been duly organized and is validly
existing as a limited partnership in good standing under the laws of
California with power and authority to own its properties and conduct
its business as described in the Prospectus, and has been duly qualified
as a foreign limited partnership for the transaction of business under
the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, or is subject to no
-5-
6
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction;
(h) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and non
assessable; 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 or capital stock, as the case may be,
in the Operating Partnership and each subsidiary of the Company have
been duly and validly authorized and issued and (except as described in
the Prospectus) are owned directly or indirectly by the Company free and
clear of all liens, encumbrances, equities or claims;
(i) The Shares have been duly and validly authorized, and, when the
Firm Shares are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Shares and, in the
case of any Optional Shares, pursuant to Over-allotment Option (as
defined in Section 3 hereof) with respect to such Shares, such
Designated Shares will be duly and validly issued and fully paid and non
assessable; the Shares conform to the description thereof contained in
the Registration Statement and the Shares will conform to the
description thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Shares;
(j) The issuance and sale of the Designated Shares and the
compliance by the Company with all of the provisions of this Agreement,
any Pricing Agreement and each Over-allotment Option, if any, and the
consummation of the transactions contemplated herein and therein will
not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
(except where all necessary consents have been obtained) to which the
Company or the Operating Partnership is a party or by which the Company,
the Operating Partnership or any of their subsidiaries is bound or to
which any of the property or assets of the Company, the Operating
Partnership or any of their subsidiaries is subject, nor will such
action result in any violation of the provisions of the Articles of
Incorporation or Bylaws of the Company or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company, the Operating Partnership or any of their
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale
of the Shares or the consummation by the Company, the Operating
Partnership or any of their subsidiaries of the transactions
contemplated by this Agreement or any Pricing Agreement or any
Over-allotment Option, except such as have been, or will have been prior
to each Time of Delivery (as defined in Section 4 hereof), obtained
under the Act and such consents, approvals, authorizations,
registrations or qualifications
-6-
7
as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the Underwriters;
(k) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company, the Operating
Partnership or any of their subsidiaries is a party or of which any
property of the Company, the Operating Partnership or any of their
subsidiaries is the subject, which, if determined adversely to the
Company, the Operating Partnership or any of their subsidiaries, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Company, the Operating Partnership or their
subsidiaries; and, to the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(l) Neither the Company nor any of its subsidiaries is in violation
of its Articles of Incorporation or Bylaws and the Operating Partnership
is not in violation of its partnership agreement; neither the Company,
the Operating Partnership nor any of their subsidiaries is in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound;
(m) The statements set forth in the Prospectus under the captions
"Description of Preferred Stock," "Federal Income Tax Considerations,"
"Plan of Distribution" and such other captions identified in the Pricing
Agreement, insofar as they purport to constitute a summary of the terms
of the Shares or to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(n) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder; and
(o) Neither the Company, the Operating Partnership nor any of their
subsidiaries is, or, after giving effect to the issuance 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, as amended (the "Investment Company
Act").
3. Upon the execution of the Pricing Agreement applicable to any
Designated Shares and authorization by the Representatives of the release of the
Firm Shares, the several Underwriters propose to offer the Firm Shares for sale
upon the terms and conditions set forth in the Prospectus as amended or
supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Shares that the Company thereby grants to the Underwriters the right
(an "Over-allotment Option") to purchase at their election up to the number of
Optional Shares set
-7-
8
forth in such Pricing Agreement, on the terms set forth in the paragraph above,
for the sole purpose of covering over-allotments in the sale of the Firm Shares.
Any such election to purchase Optional Shares may be exercised by written notice
from the Representatives to the Company, given within a period specified in the
Pricing Agreement, setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by the Representatives but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless the Representatives and the
Company otherwise agree in writing, earlier than or later than the respective
number of business days after the date of such notice set forth in such Pricing
Agreement.
The number of Optional Shares to be added to the number of Firm Shares to
be purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Shares shall be, in each case, the
number of Optional Shares which the Company has been advised by the
Representatives have been attributed to such Underwriter; provided that, if the
Company has not been so advised, the number of Optional Shares to be so added
shall be, in each case, that proportion of Optional Shares which the number of
Firm Shares to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Shares (rounded as the Representatives may
determine to the nearest 100 shares). The total number of Designated Shares to
be purchased by all the Underwriters pursuant to such Pricing Agreement shall be
the aggregate number of Firm Shares set forth in Schedule I to such Pricing
Agreement plus the aggregate number of Optional Shares which the Underwriters
elect to purchase.
4. Certificates for the Firm Shares and the Optional Shares to be purchased
by each Underwriter pursuant to the Pricing Agreement relating thereto, in the
form specified in such Pricing Agreement and in such authorized denominations
and registered in such names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor, (i) with respect to the Firm Shares, all in the manner
and at the place and time and date specified in such Pricing Agreement or at
such other place and time and date as the Representatives and the Company may
agree upon in writing, such time and date being herein called the "First Time of
Delivery" and (ii) with respect to the Optional Shares, if any, in the manner
and at the time and date specified by the Representatives in the written notice
given by the Representatives of the Underwriters' election to purchase such
Optional Shares, or at such other time and date as the Representatives and the
Company may agree upon in writing, such time and date, if not the First Time of
Delivery, herein called the "Second Time of Delivery." Each such time and date
for delivery is herein called a "Time of Delivery."
5. The Company agrees with each of the Underwriters of any Designated
Shares:
-8-
9
(a) To prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Shares in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Shares, or, if
applicable, such earlier time as may be required by Rule 424(b) or Rule
430A(a)(3) under the Act; to make no further amendment or any supplement
to the Registration Statement or Prospectus as amended or supplemented
after the date of the Pricing Agreement relating to such Shares and
prior to any Time of Delivery for such Shares which shall be disapproved
by the Representatives for such Shares promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment or
supplement after any Time of Delivery for such Shares and to furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of such Shares, and
during such same period to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
with the Commission, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any prospectus
relating to the Shares, of the suspension of the qualification of the
Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event
of the issuance of any such stop order or of any order preventing or
suspending the use of any prospectus relating to the Shares or
suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated Shares
for offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Designated Shares, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
business day next succeeding the date of the Pricing Agreement for such
Designated Shares and from time to time, to furnish the Underwriters
with copies of the Prospectus in New York City as amended or
supplemented in such quantities as the Representatives may reasonably
request, and, if the delivery of a prospectus is required at any time
prior to the expiration of nine months after the time of issue
-9-
10
of the Prospectus in connection with the offering or sale of the Shares
and if at such time any event shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act or the Exchange Act, to
notify the Representatives and upon their request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time
to time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or effect
such compliance; and in case any Underwriter is required to deliver a
Prospectus in connection with sales of any of the Designated Shares at
any time nine months or more after the time of issue of the Prospectus,
upon the request but at the expense of such Underwriter, to prepare and
to deliver to such Underwriter as many copies as such Underwriter may
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including at the option of the Company Rule 158); and
(e) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., Washington D.C. time, on the
date of the Pricing Agreement, and the Company shall at the time of
filing, either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's and the Operating Partnership's
counsel and accountants in connection with the registration of the Shares under
the Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this Agreement, any Pricing
Agreement, any Blue Sky Memorandum, closing documents (including compilations
thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Shares; (iii) all expenses in connection with
-10-
11
the qualification of the Shares for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Company or the Underwriters, as applicable, in connection with
such qualification and in connection with the Blue Sky survey(s); (iv) any fees
charged by securities rating services for rating the Shares; (v) any filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, any required reviews by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Shares; (vi) any fees and expenses
in connection with listing the Shares; (vii) the cost of preparing certificates
for the Shares; (viii) the cost and charges of any transfer agent or registrar
or dividend disbursing agent; and (ix) all other costs and expenses incident to
the performance of its obligations hereunder and under any Over-allotment
Options which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, Section 8 and
Section 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, taxes on resale of any of the
Shares by them, and any advertising expenses connected with any offers they may
make.
7. The obligations of the Underwriters of any Designated Shares under
the Pricing Agreement relating to such Designated Shares shall be subject, in
the discretion of the Representatives, to the condition that all representations
and warranties and other statements of the Company and the Operating Partnership
in or incorporated by reference in the Pricing Agreement relating to such
Designated Shares are, at and as of each Time of Delivery for such Designated
Shares, true and correct, the condition that the Company and the Operating
Partnership shall have performed all of their obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to such
Designated Shares shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with
Section 5(a) hereof; if the Company has elected 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 Representatives'
reasonable satisfaction;
(b) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Underwriters, shall
have furnished to the Representatives such opinion or opinions, dated
each Time of Delivery for such Designated Shares, with respect to
certain of the matters covered in subsection (c) below and other related
matters as the Underwriters may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
-11-
12
(c) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Company and the
Operating Partnership, shall have furnished to the Representatives their
written opinion, dated each Time of Delivery for such Designated Shares,
respectively, in form and substance satisfactory to the Representatives,
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
Maryland, with the corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
(ii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of the State of California;
(iii) The authorized capital stock of the Company is as set
forth in such opinion;
(iv) All of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid
and nonassessable;
(v) The Underwriting Agreement and the Pricing Agreement have
been duly authorized, executed and delivered by the Company and the
Operating Partnership;
(vi) The issuance and sale of the Designated Shares in
accordance with the Underwriting Agreement and the Pricing Agreement
do not, and the performance by the Company of its obligations under
the Underwriting Agreement, the Pricing Agreement and the Designated
Shares will not, (i) violate the Articles of Incorporation or Bylaws
of the Company, (ii) result in a default under or breach of the
agreements listed in the Officers' Certificate, dated the date of
such opinion (a copy of which certificate is attached as an exhibit
to such opinion), or (iii) violate any Federal law of the United
States or law of the States of New York or Maryland applicable to
the Company, provided that such counsel need not express any opinion
with respect to Federal or state securities laws, other antifraud
laws and fraudulent transfer laws, and insofar as performance by the
Company of its obligations under the Underwriting Agreement, the
Pricing Agreement and the Designated Shares is concerned, such
counsel need not express any opinion as to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights;
(vii) All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Company and the
Operating Partnership under the Federal laws of the United States
and the laws of the States of New York and Maryland for the
issuance, sale and delivery of the Designated Shares to the
Underwriters and the performance by the Company of its obligations
under
-12-
13
the Underwriting Agreement, the Pricing Agreement or the Designated
Shares have been obtained or made; and
(viii) The Company is not an "investment company" as that term
is defined in the Investment Company Act of 1940.
In addition, you shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ a letter
stating that as special counsel to the Company, they reviewed the Registration
Statement, the prospectus contained therein (the "Basic Prospectus") and the
supplements thereto, participated in discussions with your representatives and
those of the Operating Partnership, the Company and their respective
accountants, and advised the Operating Partnership and Company as to the
requirements of the Act and the applicable rules and regulations thereunder; on
the basis of the information that such counsel gained in the course of the
performance of such services, considered in the light of their understanding of
the applicable law (including the requirements of Form S-3 and the character of
the prospectus contemplated thereby) and the experience they have gained through
their practice under the Act, they confirm to you that, in their opinion, each
part of the Registration Statement, when such part became effective, and the
Basic Prospectus, as supplemented by the prospectus supplement (the "Prospectus
Supplement"), as of the date of the Prospectus Supplement, appeared on their
face to be appropriately responsive in all material respects to the requirements
of the Act and the applicable rules and regulations of the Commission
thereunder; nothing that came to such counsel's attention in the course of such
review has caused such counsel to believe that the Registration Statement, when
such part became effective, contained any 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 Basic Prospectus, as
supplemented by the Prospectus Supplement, as of the date of the Prospectus
Supplement, contained any 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, in light of the circumstances under which they were made,
not misleading, and such counsel does not know of any litigation or any
governmental proceeding instituted or threatened against the Company and the
Operating Partnership that would be required to be disclosed in the Basic
Prospectus, as supplemented by the Prospectus Supplement, and is not so
disclosed. Such counsel may state that the limitations inherent in the
independent verification of factual matters and the character of determinations
involved in the registration process are such that they do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Basic Prospectus or any prospectus
supplement except for those made under the captions "Description of Debt
Securities," "Description of Capital Stock - Common Stock," "Description of
Capital Stock - Class B Common Stock," "Description of Capital Stock - Class C
Common Stock," "Description of Capital Stock - Series A Preferred Stock,"
"Description of Capital Stock Series B Preferred Stock," "Description of Capital
Stock - Series C Preferred Stock," "Description of Preferred Stock,"
"Description of Depositary Shares" and
-13-
14
"Description of Warrants" in the Basic Prospectus insofar as they relate to
terms of the securities therein described, the description of the Common Stock,
Series B Preferred Stock and Series C Preferred Stock in the Company's
Registration Statement on Form 8-A (File No. 1-12528) incorporated in the Basic
Prospectus by reference insofar as they relate to provisions of the Common Stock
and Series B Preferred Stock, the caption "Description of Designated Shares" in
the Prospectus Supplement insofar as it relates to provisions of documents
therein described, and the caption "Underwriting" insofar as it relates to
provisions of this Agreement; that such counsel do not express any opinion or
belief as to the financial statements or other financial data derived from
accounting records contained in the Registration Statement, the Basic Prospectus
or any prospectus supplements.
In its written opinion, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ is entitled to rely on the
opinion of Piper & Marbury L.L.P. with respect to matters of Maryland law
pertaining to the above clauses.
(d) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special tax counsel for the Company and
the Operating Partnership, shall have furnished to the Representatives
their written opinion, dated each Time of Delivery for such Designated
Shares, respectively, in form and substance satisfactory to the
Representatives, substantially to the effect that:
(i) Commencing with the Company's taxable year ending December
31, 1993, through its taxable year ending December 31, 1997, the
Company has been organized in conformity with the requirements for
qualification as a real estate investment trust under the Internal
Revenue Code of 1986, as amended (the "Code"), and its method of
operation has enabled it to so qualify, and if it operates
subsequent to December 31, 1997 in the same manner as it has prior
to that date, it will continue to so qualify; and
(ii) The statements under the caption "Federal Income Tax
Considerations" in the Prospectus, insofar as such statements
constitute a summary of legal matters, documents or proceedings
referred to therein, are accurate summaries and fairly and correctly
present the information called for with respect to such legal
matters, documents or proceedings.
(e) Piper & Marbury L.L.P., special Maryland counsel for the
Company, shall have furnished to the Representatives their written
opinion, dated each Time of Delivery for such Designated Shares, in form
and substance satisfactory to the Representatives, 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, with the corporate power and authority to own its
properties and conduct its business as described in its Articles of
Incorporation;
-14-
15
(ii) The authorized capital stock of the Company is as set forth
in such opinion. All of the issued shares of capital stock of the
Company (including the Designated Shares) have been duly and validly
authorized and issued and are fully paid and non-assessable; and the
Designated Shares conform in all material respects to the
description of such Designated Shares in the Prospectus as amended
or supplemented;
(iii) To such counsel's knowledge and other than as set forth in
the Prospectus, as amended or supplemented, there are no legal or
governmental proceedings pending in the State of Maryland to which
the Company is a party or of which any property of the Company is
the subject which, if determined adversely to the Company, would
individually or in the aggregate have a material adverse effect on
the consolidated financial position, the consolidated stockholders'
equity, or the consolidated results of operations of the Company and
its subsidiaries; and, to such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others in the State of Maryland;
(iv) The Underwriting Agreement and the Pricing Agreement with
respect to the Designated Shares have been duly authorized by the
Company, and, assuming they have been executed and delivered by the
appropriate officer or officers of the Company, have been duly
executed and delivered by the Company;
(v) The issue and sale of the Designated Shares being delivered
at closing and the compliance by the Company with all of the
provisions of the Designated Shares, the Underwriting Agreement and
the Pricing Agreement with respect to the Designated Shares and the
consummation of the transactions therein contemplated will not
result in any violation of the provisions of the Articles of
Incorporation or Bylaws of the Company or any statute or any order,
rule, or regulation known to such counsel of any court or
governmental agency or body of the State of Maryland having
jurisdiction over the Company or any of its properties;
(vi) No consent, approval, authorization, order, registration,
or qualification of or with any court or governmental agency or body
of the State of Maryland is required for the issue and sale of the
Designated Shares being delivered at closing or the consummation by
the Company of the transactions contemplated by the Underwriting
Agreement or the Pricing Agreement;
(vii) The statements under the caption "Description of Preferred
Stock" and "Description of Capital Stock" in the Prospectus, insofar
as such statements constitute a summary of legal matters, documents
or proceedings referred to therein, are accurate summaries and
fairly and correctly present the information called for with respect
to such legal matters, documents or proceedings; and
-15-
16
(viii) The statements in Item 15 of Part II of the Registration
Statement, insofar as such statements constitute a summary of
Maryland statutes or provisions of the Articles of Incorporation of
the Company referred to therein are accurate in all material
respects.
(f) On the date of the Pricing Agreement for such Designated Shares
and at each Time of Delivery for such Designated Shares, the independent
accountants of the Company who have certified the financial statements
of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to the
Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the
Commission containing financial statements and incorporated by reference
in the Registration Statement, if the date of such report is later than
such effective date, and a letter dated such Time of Delivery,
respectively, to the effect set forth in Annex II hereto, and with
respect to such letter dated such Time of Delivery, as to such other
matters as the Representatives may reasonably request and in form and
substance satisfactory to the Representatives (the executed copy of the
letter delivered prior to the execution of this Agreement is attached as
Annex I(a) hereto and a draft of the form of letter to be delivered on
the effective date of any post-effective amendment to the Registration
Statement, and as of each Time of Delivery is attached as Annex I(b)
hereto);
(g) (i) None of the Company, the Operating Partnership, nor any of
their subsidiaries shall have sustained since the date of the latest
audited financial statements included or incorporated by reference in
the Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Shares any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Shares, and (ii) since the respective dates
as of which information is given in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated Shares
there shall not have been any change in the capital stock or long-term
or short-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Shares, the effect of which, in any such case
described in Clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Shares on the terms and in the manner contemplated in the
Prospectus as amended relating to the Designated Shares;
-16-
17
(h) On or after the date of the Pricing Agreement relating to the
Designated Shares (i) no downgrading shall have occurred in the rating
accorded the Company's preferred stock or the Operating Partnership's
debt securities by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's
preferred stock or the Operating Partnership's debt securities;
(i) On or after the date of the Pricing Agreement relating to the
Designated Shares there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities
generally on the NYSE; (ii) a suspension or material limitation in
trading in the Company's securities on the NYSE; (iii) a general
moratorium on commercial banking activities declared by either Federal
or New York State authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such event
specified in this Clause (iv) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Firm Shares or Optional Shares or both
on the terms and in the manner contemplated in the Prospectus as first
amended or supplemented relating to the Designated Shares;
(j) At each Time of Delivery, an application for listing the
Designated Shares on the NYSE shall have been filed;
(k) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New
York Business Day next succeeding the date of the Pricing Agreement
relating to such Designated Shares; and
(l) The Company shall have furnished or caused to be furnished to
the Representatives at each Time of Delivery for the Designated Shares
certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties
of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a) and (g) of this Section and as to such other
matters as the Representatives may reasonably request.
8. (a) The Company and the Operating Partnership, jointly and severally,
will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, any Preliminary Prospectus supplement, the Registration
Statement,
-17-
18
the Prospectus as amended or supplemented and any other prospectus
relating to the Shares, or any amendment 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, and will reimburse each
Underwriter for all reasonable legal or other expenses incurred by such
Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that
neither the Company nor the Operating Partnership shall be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, any Preliminary Prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Shares, or any such amendment or supplement
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter of Designated Shares through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Shares; and provided further, that the
Company shall not be liable to any Underwriter under the Indemnity
agreement in this subsection (a) with respect to any Preliminary
Prospectus or any Preliminary Prospectus supplement to the extent that
any such loss, claim, damage or liability of such Underwriter results
from the fact that such Underwriter sold Designated Shares to a person
as to whom it shall be established that there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the
Prospectus as then amended or supplemented in any case where such
delivery is required by the Act if the Company has previously furnished
copies thereof in sufficient quantity to such Underwriter and the loss,
claim, damage or liability of such Underwriter results from an untrue
statement or omission of a material fact contained in the Preliminary
Prospectus or the Preliminary Prospectus supplement which was corrected
in the Prospectus or in the Prospectus as then amended or supplemented.
(b) Each Underwriter will indemnify and hold harmless the Company
and the Operating Partnership against any losses, claims, damages or
liabilities to which the Company or the Operating Partnership may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Shares,
or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Shares, or any such amendment or supplement in reliance upon and
in conformity with
-18-
19
written information furnished to the Company by such Underwriter through
the Representatives expressly for use therein; and will reimburse the
Company or the Operating Partnership for all reasonable legal or other
expenses incurred by the Company or the Operating Partnership in
connection with investigating or defending any such action or claim as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable
costs of investigation. In addition, the indemnifying party shall not be
required to indemnify, reimburse, or otherwise make any contribution to
the amount paid or payable by the indemnified party for any losses,
claims, damages, expenses or liabilities incurred by the indemnified
party in settlement of any actions, proceedings or investigations
otherwise covered hereunder, unless such settlement has been previously
approved by the indemnifying party, which approval shall not be
unreasonably withheld.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company and the Operating Partnership on the one hand and the
Underwriters of the Designated Shares on the other from the offering of
the Designated Shares to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law
or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion
as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company
-19-
20
and the Operating Partnership on the one hand and the Underwriters of
the Designated Shares on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Operating Partnership on the one hand and such Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company
or the Operating Partnership bear to the total underwriting discounts
and commissions received by such Underwriters, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault
shall be determined by reference to, 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 or the Operating Partnership on the one hand or
such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Operating Partnership and
the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Designated Shares
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated Shares in this subsection (d) to contribute
are several in proportion to their respective underwriting obligations
with respect to such Shares and not joint.
(e) The obligations of the Company and the Operating Partnership
under this Section 8 shall be in addition to any liability which the
Company or the Operating Partnership may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company or the Operating Partnership
and to each
-20-
21
person, if any, who controls the Company or the Operating Partnership
within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Firm Shares or Optional Shares which it has agreed to purchase at
the Time of Delivery under the Pricing Agreement relating to such
Shares, the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such Shares on
the terms contained herein. If within thirty-six hours after such
default by any Underwriter the Representatives do not arrange for the
purchase of such Firm Shares or Optional Shares, as the case may be,
then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties reasonably
satisfactory to the Representatives to purchase such Shares on such
terms. In the event that, within the respective prescribed period, the
Representatives notify the Company that they have so arranged for the
purchase of such Shares, or the Company notifies the Representatives
that it has so arranged for the purchase of such Shares, the
Representatives or the Company shall have the right to postpone a Time
of Delivery for such Shares for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or
in any other documents or arrangements, and the Company agrees to file
promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby
be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect
as if such person had originally been a party to the Pricing Agreement
with respect to such Designated Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Firm Shares or Optional Shares, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate number of such Shares
which remains unpurchased does not exceed one-eleventh of the aggregate
number of the Firm Shares or Optional Shares, as the case may be, to be
purchased at the respective Time of Delivery, then the Company shall
have the right to require each non-defaulting Underwriter to purchase
the number of Firm Shares or Optional Shares, as the case may be, which
such Underwriter agreed to purchase under the Pricing Agreement relating
to such Designated Shares and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
number of Firm Shares or Optional Shares, as the case may be, which such
Underwriter agreed to purchase under such Pricing Agreement) of the Firm
Shares or Optional Shares, as the case may be, of such defaulting
Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Firm Shares or Optional Shares, as the case may be, of a defaulting
Underwriter or
-21-
22
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of Firm Shares or Optional
Shares, as the case may be, which remains unpurchased exceeds
one-eleventh of the aggregate number of the Firm Shares or Optional
Shares, as the case may be, to be purchased at the respective Time of
Delivery, as referred to in subsection (b) above, or if the Company
shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Firm Shares or Optional
Shares, as the case may be, of a defaulting Underwriter or Underwriters,
then the Pricing Agreement relating to such Firm Shares or the
Over-allotment Option relating to such Optional Shares, as the case may
be, shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Operating Partnership and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company or the Operating Partnership, or any officer or
director or controlling person of the Company or the Operating Partnership, and
shall survive delivery of and payment for the Designated Shares.
11. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 9 hereof, the Company shall not then be under any
liability to any Underwriter with respect to the Firm Shares or Optional Shares
with respect to which such Pricing Agreement shall have been terminated except
as provided in Sections 6 and 8 hereof; but, if for any other reason, Designated
Shares are not delivered by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Designated
Shares, but neither the Company nor the Operating Partnership shall then be
under any further liability to any Underwriter with respect to such Designated
Shares except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Shares shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
-22-
23
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company or the Operating Partnership shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company, the Operating
Partnership and, to the extent provided in Sections 8 and 10 hereof, the
officers and directors of the Company and the Operating Partnership and each
person who controls the Company, the Operating Partnership or any Underwriter,
and their respective heirs, executors, administrators, successors and assigns,
and no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Shares
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
-23-
24
If the foregoing is in accordance with your understanding, please sign
and return to us nine counterparts hereof.
Very truly yours,
▇▇▇▇▇▇▇ PROPERTIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President, Finance
▇▇▇▇▇▇▇ PROPERTIES, L.P.
By: ▇▇▇▇▇▇▇ PROPERTIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President, Finance
Accepted as of the date hereof:
▇▇▇▇▇▇▇, Sachs & Co.
BT Alex. ▇▇▇▇▇ Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
By: ▇▇▇▇▇▇▇, Sachs & Co.
/s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
--------------------------------------
(▇▇▇▇▇▇▇, Sachs & Co.)
-24-