Exhibit 1.1
EXECUTION COPY
RECKSON ASSOCIATES REALTY CORP.
UNDERWRITING AGREEMENT
TABLE OF CONTENTS
Page
Section 1. Representations and Warranties.................................................................3
(a) Representations and Warranties by the Company and the Operating Partnership....................3
(b) Officers' Certificates........................................................................12
Section 2. Sale and Delivery to Underwriters; Closing....................................................13
(a) Underwritten Securities.......................................................................13
(b) Option Underwritten Securities................................................................13
(c) Payment.......................................................................................13
(d) Denominations; Registration...................................................................14
Section 3. Covenants of the Company and the Operating Partnership........................................14
(a) Compliance with Securities Regulations and Commission Requests................................14
(b) Filing of Amendments..........................................................................14
(c) Delivery of Registration Statements...........................................................14
(d) Delivery of Prospectuses......................................................................15
(e) Continued Compliance with Securities Laws.....................................................15
(f) Blue Sky Qualifications.......................................................................15
(g) Earnings Statement............................................................................16
(h) Reporting Requirements........................................................................16
(i) Listing.......................................................................................16
(j) Restriction on Sale of Securities.............................................................16
(k) REIT Qualification............................................................................16
(l) Reservation of Securities.....................................................................16
(m) Use of Proceeds...............................................................................16
(n) Exchange Act Filings..........................................................................16
(o) No Manipulation of Market for Securities......................................................16
(p) Rule 462(b) Registration Statement............................................................17
Section 4. Payment of Expenses...........................................................................17
(a) Expenses......................................................................................17
(b) Termination of Agreement......................................................................17
Section 5. Conditions of Underwriters' Obligations.......................................................17
(a) Effectiveness of Registration Statement.......................................................18
(b) Opinion of Counsel for Company................................................................18
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(c) Opinion of Counsel for Underwriters...........................................................18
(d) Officers' Certificate.........................................................................19
(e) Accountant's Comfort Letter...................................................................19
(f) Bring-down Comfort Letter.....................................................................19
(g) Ratings.......................................................................................19
(h) Approval of Listing...........................................................................19
(i) Lock-up Agreements............................................................................19
(j) Over-Allotment Option.........................................................................19
(k) Additional Documents..........................................................................20
(l) Termination of Terms Agreement................................................................20
Section 6. Indemnification...............................................................................20
(a) Indemnification of Underwriters...............................................................20
(b) Indemnification of Company, Directors and Officers............................................21
(c) Actions against Parties; Notification; Settlement without Consent if Failure to
Reimburse.....................................................................................22
Section 7. Contribution..................................................................................22
Section 8. Representations, Warranties and Agreements to Survive Delivery................................23
Section 9. Termination...................................................................................23
(a) Underwriting Agreement........................................................................23
(b) Terms Agreement...............................................................................23
(c) Liabilities...................................................................................24
Section 10. Default by One or More of the Underwriters....................................................24
Section 11. Notices.......................................................................................25
Section 12. Parties.......................................................................................25
Section 13. GOVERNING LAW AND TIME........................................................................25
Section 14. Effect of Headings............................................................................25
Section 15. Counterparts..................................................................................26
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RECKSON ASSOCIATES REALTY CORP.
(a Maryland corporation)
Common Stock, Warrants to Purchase Common Stock,
Preferred Stock, Depositary Shares and Warrants to Purchase Preferred Stock
UNDERWRITING AGREEMENT
March 9, 2004
To the Representatives named in a Terms Agreement
Ladies and Gentlemen:
Reckson Associates Realty Corp., a Maryland corporation (the "Company"),
proposes to issue and sell up to $744,739,654 aggregate initial public
offering price of its (i) shares of Class A common stock, par value $0.01 per
share (the "Common Stock"), (ii) warrants to purchase shares of Common Stock
(the "Common Stock Warrants"), (iii) shares of preferred stock, par value
$0.01 per share (the "Preferred Stock"), (iv) depositary shares representing
interests in its preferred stock (the "Depositary Shares"), or (v) warrants to
purchase shares of Preferred Stock (the "Preferred Stock Warrants"), or any
combination thereof, from time to time, in or pursuant to one or more
offerings on terms to be determined at the time of sale.
The Preferred Stock will be issued in one or more series and each series
of Preferred Stock may vary, as applicable, as to the title, specific number
of shares, rank, stated value, liquidation preference, dividend rate or rates
(or method of calculation), dividend payment dates, redemption provisions,
sinking fund requirements, conversion provisions (and terms of the related
Underlying Securities (as defined below)) and any other variable terms as set
forth in the applicable articles supplementary (each, the "Articles
Supplementary") relating to such series of Preferred Stock.
Each issue of Common Stock Warrants and Preferred Stock Warrants
(collectively, the "Warrants") will be issued pursuant to a separate warrant
agreement (each, a "Warrant Agreement") between the Company and the warrant
agent identified therein (each, a "Warrant Agent"). The Warrants may vary, as
applicable, as to, among other terms, title, type, specific number, exercise
dates or periods, exercise price(s), expiration date(s) and terms of the
related Underlying Securities (as defined below).
As used herein, "Securities" shall mean the Common Stock, Common Stock
Warrants, Preferred Stock, Depositary Shares, Preferred Stock Warrants, or any
combination thereof, initially issuable by the Company and "Underlying
Securities" shall mean the Common Stock, or Preferred Stock, issuable upon
exercise of the Warrants, as applicable, or upon conversion of the Preferred
Stock.
Whenever the Company determines to make an offering of Securities
through the Representatives, or through an underwriting syndicate managed by
the Representatives, the Representatives and the Company will enter into an
agreement (each, a "Terms Agreement") providing for the sale of such
Securities to, and the purchase and offering thereof by, the Representatives
and such other underwriters, if any, selected by the Representatives as have
authorized the Representatives to enter into such Terms Agreement on their
behalf (the "Underwriters", which term shall include the Representatives,
whether acting alone in the sale of Underwritten Securities (as defined below)
or as a
member of an underwriting syndicate, as well as any Underwriter substituted
pursuant to Section 10 hereof); provided, that, the Company is not obligated,
and shall have complete and absolute discretion to determine if and when, to
make any offering, to make any offering through the Representatives or any
other person, or to enter into any Terms Agreement. Prior to the execution of
a Terms Agreement, this Underwriting Agreement shall not be construed as an
obligation of the Company to sell any Securities or as an obligation of any of
the Underwriters to purchase Securities. The obligation of the Company to
issue and sell any Securities and the obligation of any of the Underwriters to
purchase any Securities shall be evidenced by the Terms Agreement with respect
to the Underwritten Securities specified therein. The Terms Agreement relating
to the offering of Securities shall specify the number of Securities to be
initially issued (the "Initial Underwritten Securities"), the name of each
Underwriter participating in such offering (subject to substitution as
provided in Section 10 hereof), the name of any Underwriter other than the
Representatives acting as co-manager in connection with such offering, the
number of Initial Underwritten Securities which each such Underwriter
severally agrees to purchase, whether such offering is on a fixed or variable
price basis and, if on a fixed price basis, the initial offering price, the
price at which the Initial Underwritten Securities are to be purchased by the
Underwriters, the form, time, date and place of delivery and payment of the
Initial Underwritten Securities and any other material variable terms of the
Initial Underwritten Securities, as well as the material variable terms of any
related Underlying Securities. In addition, if applicable, such Terms
Agreement shall specify whether the Company has agreed to grant to the
Underwriters an option to purchase additional Securities to cover
over-allotments, if any, and the number of Securities subject to such option
(the "Option Underwritten Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and all or any
portion of any Option Underwritten Securities. The Terms Agreement, which
shall be substantially in the form of Exhibit A hereto, may take the form of
an exchange of any standard form of written telecommunication between the
Company and the Representatives, acting for themselves and, if applicable, as
representative of any other Underwriters.
The Company has filed with the Securities and Exchange Commission (the
"Commission") registration statements on Form S-3 (Nos. 333-28015 and 46883),
for the registration of the Securities and the Underlying Securities under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"), and the
Company has filed such post-effective amendments thereto as may be required
prior to the execution of the applicable Terms Agreement. Such registration
statements (as so amended, if applicable) have been declared effective by the
Commission. Such registration statements (as so amended, if applicable),
including the information, if any, deemed to be a part thereof pursuant to
Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A Information") or Rule
434(d) of the 1933 Act Regulations (the "Rule 434 Information"), is referred
to herein as the "Registration Statement"; and the final prospectus
constituting a part thereof and the applicable prospectus supplement relating
to the offering of the Underwritten Securities, in the form first furnished to
the Underwriters by the Company for use in connection with the offering of the
Underwritten Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the applicable
Terms Agreement; provided, further, that if the Company files a registration
statement with the Commission pursuant to Section 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then, after such
filing, all references to "Registration Statement" shall be deemed to include
the Rule 462 Registration Statement; provided, however, a prospectus
supplement shall be deemed to have supplemented the Prospectus only with
respect to the offering of the Underwritten Securities to which it relates,
and provided, further, that if the Company elects to rely upon Rule 434 of the
1933 Act Regulations, then all references to "Prospectus" shall be deemed to
include the final or preliminary prospectus and the applicable term sheet or
abbreviated term sheet (the "Term Sheet"), as the case may be, in the form
first furnished to the Underwriters by the Company in reliance
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upon Rule 434 of the 1933 Act Regulations, and all references in this
Underwriting Agreement to the date of the Prospectus shall mean the date of
the Term Sheet. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the registration statement became effective and any
prospectus that omitted, as applicable, the Rule 430A Information, the Rule
434 Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, that was used after such effectiveness and prior to the execution
and delivery of the applicable Terms Agreement. For purposes of this
Underwriting Agreement, all references to the Registration Statement,
Prospectus, Term Sheet or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇"). Capitalized terms used but not otherwise defined
herein shall have the meanings given to those terms in the Prospectus.
All references in this Underwriting Agreement to financial statements
and schedules and other information which is "contained," "included" or
"stated" (or other references of like import) in the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to mean and include all
such financial statements and schedules and other information which is or
deemed to be incorporated by reference in the Registration Statement,
Prospectus or preliminary prospectus, as the case may be; and all references
in this Underwriting Agreement to amendments or supplements to the
Registration Statement, Prospectus or preliminary prospectus shall be deemed
to mean and include the filing of any document under the 1934 Act which is or
is deemed to be incorporated by reference in the Registration Statement,
Prospectus or preliminary prospectus, as the case may be.
The term "Subsidiary" means a corporation or a partnership a majority of
the outstanding voting stock, partnership or membership interests, as the case
may be, of which is owned or controlled, directly or indirectly, by the
Company or Reckson Operating Partnership, L.P. (the "Operating Partnership"),
a Delaware limited partnership, or by one or more other Subsidiaries of the
Company or the Operating Partnership.
Section 1. Representations and Warranties.
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(a) Representations and Warranties by the Company and the Operating
Partnership. Each of the Company and the Operating Partnership represents and
warrants, jointly and severally, to the Representatives, as of the date
hereof, and to each Underwriter named in the applicable Terms Agreement, as of
the date thereof, as of the Closing Time (as defined below) and, if
applicable, as of each Date of Delivery (as defined below) (in each case, a
"Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company meets
the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement or any Rule 462(b) Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission or the state securities authority of any
jurisdiction, and any request on the part of the Commission for additional
information has been complied with. No order preventing or suspending the use
of the Prospectus has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company, threatened by the Commission
or the state securities authority of any jurisdiction.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto (including
the filing of the Company's most recent Annual Report on Form 10-K with the
Commission (the "Annual Report on Form 10-K")) became effective and at each
Representation Date, the Registration Statement, any Rule 462(b) Registration
Statement and any
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amendments and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations
and did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. At the date of the Prospectus and
at each Representation Date, the Prospectus and any amendments and supplements
thereto did not and will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If the Company elects to rely upon Rule 434 of the 1933 Act
Regulations, the Company will comply with the requirements of Rule 434.
Notwithstanding the foregoing, the representations and warranties in this
subsection shall not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter through the
Representatives expressly for use in the Registration Statement or the
Prospectus.
Each preliminary prospectus and Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the 1933 Act, complied
when so filed in all material respects with the 1933 Act and the 1933 Act
Regulations and, if applicable, each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with the offering of
Underwritten Securities will, at the time of such delivery, be identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
If a Rule 462(b) Registration Statement is required in connection with
the offering and sale of the Securities, the Company has complied or will
comply with the requirements of Rule 111 under the 1933 Act Regulations
relating to the payment of filing fees therefor.
(2) Incorporated Documents. The documents incorporated or deemed
to be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission thereunder (the "1934
Act Regulations") and, when read together with the other information in the
Prospectus, at the date of the Prospectus and at each Representation Date, or
during the period specified in Section 3(e), did 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.
(3) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in, or incorporated by
reference into, the Registration Statement and the Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements included, or
incorporated by reference, in the Registration Statement and the Prospectus,
together with the related schedules and notes, as well as those financial
statements, schedules and notes of any other entity included therein, present
fairly the financial position of the respective entity or entities or group
presented therein at the respective dates indicated and the statement of
operations, stockholders' equity and cash flows data of such entity, as the
case may be, for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The supporting
schedules, if any, included or incorporated by reference in the Registration
Statement and the Prospectus present fairly, in accordance with GAAP, the
information required to be stated therein. In addition, any pro forma
financial information and the related notes thereto included or incorporated
by reference in the Registration Statement and the Prospectus present
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fairly the information shown therein, have been prepared in accordance with
the Commission's rules and guidelines of the American Institute of Certified
Public Accountants ("AICPA") with respect to pro forma information and have
been properly compiled on the bases described therein, and the assumptions
used in the preparation thereof were then reasonable and the adjustments used
therein were then appropriate to give effect to the transactions and
circumstances referred to therein. All historical financial statements and
information and all pro forma financial statements and information required by
the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations are included, or incorporated by reference, in the Registration
Statement and the Prospectus.
(5) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the earnings,
assets, business affairs or business prospects of the Company, the Operating
Partnership and the Subsidiaries considered as one enterprise whether or not
arising in the ordinary course of business, which would be material to the
Company and the Operating Partnership, taken as a whole (anything which would
be material to the Company and the Operating Partnership taken as a whole,
being hereinafter referred to as "Material;" and such a material adverse
change, a "Material Adverse Effect"), (B) no casualty loss or condemnation or
other adverse event with respect to any of the interests held directly or
indirectly in any of the real properties or real property interests, including
without limitation, any interest or participation, direct or indirect, in any
mortgage obligation owned, directly or indirectly, by the Company, the
Operating Partnership or any Subsidiary (the "Properties") has occurred which
would be Material, (C) there have been no transactions or acquisitions entered
into by the Company, the Operating Partnership or any Subsidiary, other than
those in the ordinary course of business, which would be Material, (D) except
for regular quarterly distributions on Common Stock in amounts per share that
are consistent with past practice and regular quarterly distributions on units
of the Operating Partnership (the "Units"), there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of
its capital stock or any distribution by the Operating Partnership with
respect to its Units, and (E) there has been no increase in the long term debt
or decrease in the capital stock of the Company, the Operating Partnership or
any Subsidiary.
(6) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Maryland and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under, or as
contemplated under this Underwriting Agreement and the applicable Terms
Agreement. The Company is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification or registration is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or register or be in good standing
would not result in a Material Adverse Effect.
(7) Good Standing of the Operating Partnership. The Operating
Partnership is duly organized and validly existing as a limited partnership in
good standing under the laws of the State of Delaware, with partnership power
and authority to own, lease and operate its properties, to conduct the
business in which it is engaged and proposes to engage as described in the
Prospectus and to enter into and perform its obligations under this Agreement
and the applicable Terms Agreement. The Operating Partnership is duly
qualified or registered as a foreign partnership and is in good standing in
each jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or register would not have a
Material Adverse Effect. The Company is the sole general partner of the
Operating Partnership and holds such number and/or percentage of Units as
disclosed in the Prospectus as of the dates set forth therein. The Amended and
Restated Agreement of Limited Partnership of the Operating Partnership,
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dated June 2, 1995, as amended through December 6, 1995 (the "Operating
Partnership Agreement"), is in full force and effect.
(8) Good Standing of the Subsidiaries. Each Subsidiary that is a
"significant subsidiary" as such term is defined in Section 1-02 of Regulation
S-X (each a "Significant Subsidiary," and collectively, the "Significant
Subsidiaries") is listed on Exhibit B hereto and has been duly organized and
is validly existing as a corporation, limited partnership, limited liability
company or other legal entity, as the case may be, in good standing under the
laws of the state of its jurisdiction of incorporation or organization, as the
case may be, with the requisite power and authority to own, lease and operate
its properties, and to conduct the business in which it is engaged or proposes
to engage as described in the Prospectus. Each such entity is duly qualified
or registered as a foreign corporation, limited partnership or limited
liability company or other legal entity, as the case may be, to transact
business and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the failure to
so qualify or register would not have a Material Adverse Effect. Except as
otherwise stated in the Registration Statement and the Prospectus, all of the
issued and outstanding capital stock or other equity interests of each such
entity has been duly authorized and validly issued and is fully paid and
non-assessable, has been offered and sold in compliance with all applicable
laws (including, without limitation, federal or state securities laws) and are
owned directly or indirectly by the Company or the Operating Partnership, in
each case free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity (collectively, "Liens"). No shares of capital
stock or other equity interests of such entities are reserved for any purpose,
and there are no outstanding securities convertible into or exchangeable for
any capital stock or other equity interests of such entities and no
outstanding options, rights (preemptive or otherwise) or warrants to purchase
or to subscribe for shares of such capital stock or other equity interests or
any other securities of such entities, except as disclosed in the Prospectus.
(9) Capitalization. As of the date of this Agreement, the
authorized capital stock of the Company consists of 100,000,000 shares of
Common Stock, 25,000,000 shares of excess stock, par value $.01 per share, and
75,000,000 shares of preferred stock, par value $.01 per share, of which
60,350,658 shares of such Common Stock, 8,834,500 shares of Series A
convertible cumulative preferred stock (the "Series A Preferred Stock") and no
shares of such excess stock are issued and outstanding on the date hereof. All
issued and outstanding shares of capital stock have been duly authorized and
validly issued by the Company and are fully paid and non-assessable and have
been offered and sold or exchanged in compliance with all applicable laws
(including, without limitation, federal and state securities laws), and none
of such shares of capital stock were issued in violation of preemptive or
other similar rights arising by operation of law, under the charter and bylaws
of the Company or under any agreement to which the Company, the Operating
Partnership or any Subsidiary is a party or otherwise. Except for shares of
Common Stock issuable upon exchange of Units or upon the exercise of options
under the stock option plans and/or distribution reinvestment plans of the
Company, there are no shares of capital stock of the Company reserved for any
purpose and there are no outstanding securities convertible into or
exchangeable for any shares of capital stock of the Company and, except as
granted in this Underwriting Agreement, any Terms Agreement or any Warrant
Agreement, there are no outstanding options, rights (preemptive or otherwise)
or warrants to purchase or to subscribe for shares of such stock or any other
securities of the Company.
(10) Authorization of Units. All the issued and outstanding Units
have been duly authorized and are validly issued, fully paid and
non-assessable and have been offered and sold or exchanged in compliance with
all applicable laws (including, without limitation, federal and state
securities laws). There are no Units reserved for any purpose and there are no
outstanding securities convertible into or exchangeable for any Units and no
outstanding options, rights (preemptive or otherwise) or warrants to purchase
or to subscribe for Units, except for rights granted to the partners in
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Omni Partners, L.P. (the "Omni Partnership") and the rights of holders of
Class C Common Units and Series A, B, C, D and F preferred Units.
(11) Authorization of Common Stock. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Common Stock,
such Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance and sale
pursuant to this Underwriting Agreement and such Terms Agreement. Such
Underwritten Securities, when issued and delivered by the Company pursuant to
this Underwriting Agreement and such Terms Agreement against payment of the
consideration therefor specified in such Terms Agreement, will be validly
issued, fully paid and non-assessable and will not be subject to preemptive or
other similar rights arising by operation of law, under the charter and bylaws
of the Company or under any agreement to which the Company, the Operating
Partnership or any Subsidiary is a party, or otherwise. No holder of such
Underwritten Securities will be subject to personal liability by reason of
being such a holder.
(12) Authorization of Preferred Stock. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Preferred Stock, such Underwritten Securities have been, or as of the date of
such Terms Agreement will have been, duly authorized by the Company for
issuance and sale pursuant to this Underwriting Agreement and such Terms
Agreement. The applicable Preferred Stock, when issued and delivered by the
Company pursuant to this Underwriting Agreement and such Terms Agreement
against payment of the consideration therefor, specified in such Terms
Agreement, will be validly issued, fully paid and non-assessable and will not
be subject to preemptive or other similar rights arising by operation of law,
under the charter and bylaws of the Company or under any agreement to which
the Company, the Operating Partnership or any Subsidiary is a party, or
otherwise. No holder of Preferred Stock will be subject to personal liability
by reason of being such a holder. The applicable Articles Supplementary will
be in full force and effect prior to the Closing Time and will comply with all
applicable legal requirements.
(13) Authorization of Warrants. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Warrants, such
Underwritten Securities have been, or as of the date of such Terms Agreement
will have been, duly authorized by the Company for issuance and sale pursuant
to this Underwriting Agreement and such Terms Agreement. Such Underwritten
Securities, when issued and authenticated in the manner provided for in the
applicable Warrant Agreement and delivered against payment of the
consideration therefor specified in such Terms Agreement, will constitute
valid and legally binding obligations of the Company, entitled to the benefits
provided by such Warrant Agreement and enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general equitable
principles.
(14) Authorization of Warrant Agreement. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Warrants, each applicable Warrant Agreement has been, or prior to the issuance
of such Underwritten Securities will have been, duly authorized, executed and
delivered by the Company and, upon such authorization, execution and delivery,
will constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar law relating to or affecting creditors' rights
generally or by general equitable principles.
(15) Authorization of Underlying Securities. If the Underlying
Securities related to the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Common Stock or Preferred Stock, such
Underlying Securities have been, or as of the date of such Terms
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Agreement will have been, duly authorized and reserved for issuance by the
Company upon exercise of the Common Stock Warrants or Preferred Stock
Warrants, as applicable, or upon conversion of the related Preferred Stock or
Depositary Shares, as applicable. If the Underlying Securities include Common
Stock or Preferred Stock, such Underlying Securities, when issued upon such
exercise or conversion, as applicable, will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or other similar rights
arising by operation of law, under the charter and bylaws of the Company or
under any agreement to which the Company, the Operating Partnership or any
Subsidiary is a party, or otherwise. No holder of such Common Stock or
Preferred Stock will be subject to personal liability by reason of being such
a holder.
(16) Descriptions of the Underwritten Securities, Underlying
Securities and Warrant Agreement. The Underwritten Securities being sold
pursuant to the applicable Terms Agreement and each applicable Warrant
Agreement, as of the date of the Prospectus, and any Underlying Securities,
when issued and delivered in accordance with the terms of the related
Underwritten Securities, will conform in all material respects to the
statements relating thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as the case may be,
as an exhibit to the Registration Statement. The form of stock certificate or
warrant to be used to evidence the Underwritten Securities or any Underlying
Securities will be in due and proper form and will comply with all applicable
legal requirements.
(17) Authorization of this Underwriting Agreement and Terms
Agreement. This Underwriting Agreement has been, and the applicable Terms
Agreement as of the date thereof will have been, duly authorized, executed and
delivered by the Company and the Operating Partnership, to the extent each is
a party thereto and, assuming due authorization, execution and delivery by the
Representatives, is enforceable against the Company and the Operating
Partnership, to the extent each is a party thereto, in accordance with its
terms except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally and
by general equitable principles.
(18) Absence of Defaults and Conflicts. None of the Company, the
Operating Partnership or any Subsidiary is in violation of its charter,
bylaws, certificate of limited partnership or partnership agreement or other
organizational document, as the case may be, or in default in the performance
or observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which each entity is a party
or by which any of them may be bound, or to which any of its property or
assets may be bound or subject (collectively, "Agreements and Instruments"),
except for such violations or defaults that would not result in a Material
Adverse Effect. The execution, delivery and performance of this Underwriting
Agreement, the applicable Terms Agreement and each applicable Warrant
Agreement and Deposit Agreement and any other agreement or instrument entered
into or issued or to be entered into or issued by the Company or the Operating
Partnership in connection with the transactions contemplated hereby or thereby
or in the Registration Statement and the Prospectus and the consummation of
the transactions contemplated herein and in the Registration Statement and the
Prospectus (including the issuance and sale of the Underwritten Securities and
the use of the proceeds from the sale of the Underwritten Securities as
described under the caption "Use of Proceeds") and compliance by the Company
and the Operating Partnership with its obligations hereunder and thereunder
have been duly authorized by all necessary corporate or partnership action, as
the case may be, and do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a breach of,
or default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any assets,
properties or operations of the Company, the Operating Partnership or any
Subsidiary pursuant to, any Agreements and Instruments, except for such
conflicts, breaches, defaults, Repayment Events or liens, charges or
encumbrances that would not
8
result in a Material Adverse Effect, nor will such action result in any
violation of the provisions of the charter or bylaws of the Company or the
organizational documents of the Operating Partnership or any Subsidiary or any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company, the Operating Partnership or any
Subsidiary or any of their assets, properties or operations, except for such
violations that would not have a Material Adverse Effect. As used herein, a
"Repayment Event" means any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a material portion of such indebtedness by the Company,
the Operating Partnership or any Subsidiary.
(19) Absence of Labor Dispute. No labor dispute with the employees
of the Company, the Operating Partnership or any Subsidiary exists or, to the
knowledge of the Company and the Operating Partnership, is imminent, and the
Company and the Operating Partnership are not aware of any existing or
imminent labor disturbance by the employees of any of them or any Subsidiary's
principal suppliers, manufacturers, customers or contractors, which dispute or
disturbance, in either case, may reasonably be expected to result in a
Material Adverse Effect.
(20) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or by any court or governmental agency or
body, domestic or foreign, now pending, or to the knowledge of the Company and
the Operating Partnership, threatened against or affecting the Company, the
Operating Partnership or any Subsidiary or any of their respective assets,
properties or operations or any officer or director of the Company which is
required to be disclosed in the Registration Statement and the Prospectus
(other than as stated therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the consummation of this Underwriting
Agreement, the applicable Terms Agreement or any applicable Warrant Agreement
or Deposit Agreement or the transactions contemplated herein or therein. The
aggregate of all pending legal or governmental proceedings to which the
Company, the Operating Partnership or any Subsidiary is a party or of which
any of their respective assets, properties or operations is the subject which
are not described in the Registration Statement and the Prospectus, including
ordinary routine litigation incidental to the business, could not reasonably
be expected to result in a Material Adverse Effect.
(21) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be filed
as exhibits thereto which have not been so described and/or filed as required
and the descriptions thereof or references thereto are correct in all Material
respects.
(22) REIT Qualification. At all times since January 1, 1995 the
Company has been, and upon the sale of the applicable Underwritten Securities,
the Company will continue to be, organized and operated 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 proposed
method of operation will enable it to continue to meet the requirements for
taxation as a real estate investment trust under the Code, and no actions have
been taken (or not taken which are required to be taken) which would cause
such qualification to be lost.
(23) Investment Company Act. Each of the Company, the Operating
Partnership and any Significant Subsidiary is not, and upon the issuance and
sale of the Underwritten Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended (the "1940 Act").
9
(24) Intellectual Property. To the knowledge of the Company and
the Operating Partnership, none of the Company, the Operating Partnership or
any Subsidiary is required to own, possess or obtain the consent of any holder
of any trademarks, service marks, trade names or copyrights not now lawfully
owned, possessed or licensed in order to conduct the business now operated by
such entity, and none of the Company, the Operating Partnership or any
Subsidiary has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any such
proprietary rights, and which infringement or conflict (if the subject of any
unfavorable decisions, ruling or finding) singly or in the aggregate would
result in any Material Adverse Effect.
(25) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration, qualification
or decree of, any court or governmental authority or agency or any other
entity or person is necessary or required for the performance by the Company
and the Operating Partnership of its obligations under this Underwriting
Agreement or the applicable Terms Agreement or in connection with the
transactions contemplated under this Underwriting Agreement, such Terms
Agreement or any applicable Warrant Agreement or Deposit Agreement, except
such as have been already obtained or as may be required under state
securities laws or under the by-laws and rules of the National Association of
Securities Dealers, Inc. (the "NASD") or under state securities or real estate
syndication laws.
(26) Possession of Licenses and Permits. Each of the Company, the
Operating Partnership and the Subsidiaries possesses such certificates,
permits, licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by them except for such Governmental Licenses the failure to obtain
would not, singly or in the aggregate, result in a Material Adverse Effect.
The Company, the Operating Partnership and the Subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, result in a
Material Adverse Effect. All of the Governmental Licenses are valid and in
full force and effect, except where the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and
effect would not result in a Material Adverse Effect. Neither the Company, the
Operating Partnership nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(27) Registration Rights. Except as disclosed in the Prospectus
and for registration rights of holders of Units, rights of purchasers of
Common Stock in the offering made concurrently with the initial public
offering of Common Stock by the Company, and for partners in the Omni
Partnership, there are no persons with registration or other similar rights to
have any securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act.
(28) Title to Property. The Company, the Operating Partnership,
the Subsidiaries or any joint venture partnership in which the Company owns an
interest, as the case may be, (A) have good and marketable fee simple title or
leasehold title, as the case may be, to all real property and related
improvements and other assets owned or leased, or represented to be owned or
leased, as applicable, by the Company, the Operating Partnership or the
Subsidiaries, respectively, and good title to all other properties owned by
them, and any improvements thereon and all other assets that are required for
the effective operation of such properties in the manner in which they
currently are operated, free and clear of all liens, encumbrances, claims,
security interests and defects, except such as are Permitted Encumbrances (as
defined below); (B) all liens, charges, encumbrances, claims or restrictions
on or affecting any of the Properties and the assets of any of the Company,
the Operating Partnership, the Subsidiaries or any joint venture partnership
in which the Company owns an interest that are required to be disclosed in the
10
Prospectus are disclosed therein; (C) each of the Properties comply with all
applicable codes, laws and regulations (including, without limitation,
building and zoning codes, laws and regulations and laws relating to access to
the Properties), except if and to the extent disclosed in the Prospectus and
except for such failures to comply that would not in the aggregate have a
Material Adverse Effect; (D) there are in effect for the assets of each of the
Company, the Operating Partnership, the Subsidiaries or any joint venture
partnership in which the Company owns an interest, insurance policies covering
the risks and in amounts that are commercially reasonable for the types of
assets owned by them and that are consistent with the types and amounts of
insurance typically maintained by prudent owners of properties similar to such
assets in the markets in which such assets are located, and none of the
Company, the Operating Partnership, the Subsidiaries or any joint venture
partnership in which the Company owns an interest has received from any
insurance company notice of any material defects or deficiencies affecting the
insurability of any such assets or any notices of cancellation or intent to
cancel any such policies; and (E) neither the Company nor the Operating
Partnership has knowledge of any pending or threatened litigation, moratorium,
condemnation proceedings, zoning change, or other similar proceeding or action
that could in any manner affect the size of, use of, improvements on,
construction on, access to or availability of utilities or other necessary
services to the Properties, except such proceedings or actions that would not
have a Material Adverse Effect. All of the leases and subleases material to
the business of the Company, the Operating Partnership and the Subsidiaries
considered as one enterprise, and under which the Company, the Operating
Partnership or any Subsidiary holds Properties described in the Prospectus,
are in full force and effect, and neither the Company, the Operating
Partnership nor any Subsidiary has received any notice of any material claim
of any sort that has been asserted by anyone adverse to the rights of the
Company, the Operating Partnership or any Subsidiary under any of the leases
or subleases mentioned above, or affecting or questioning the rights of the
Company, the Operating Partnership or any Subsidiary to the continued
possession of the leased or subleased premises under any such lease or
sublease. "Permitted Encumbrance" shall mean (a) liens on certain Properties
securing any indebtedness of the Company, the Operating Partnership, any
Subsidiary or joint venture partnership obligations, (b) other liens which are
expressly described in, or which are incorporated by reference into, the
Prospectus and (c) customary easements and encumbrances and other exceptions
to title which do not impair the operation, development or use of the
Properties for the purposes intended therefor as contemplated in the
Prospectus.
(29) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except such violations as would
not, singly or in the aggregate, result in a Material Adverse Effect, to the
knowledge of the Company, the Operating Partnership and any Subsidiary, as the
case may be, after due inquiry, (A) neither the Company, the Operating
Partnership nor any Subsidiary is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance or code, policy or rule of
common law and any judicial or administrative interpretation thereof including
any judicial or administrative order, consent decree or judgment, relating to
pollution or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) including, without limitation, laws and regulations
relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or
petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company, the Operating Partnership and any Subsidiaries have
all permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (C)
there are no pending or threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company, the Operating Partnership or any
Subsidiaries, and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company, the Operating
11
Partnership or any Subsidiary or any of their assets relating to any Hazardous
Materials or the violation of any Environmental Laws.
(30) Tax Returns. Each of the Company, the Operating Partnership
and any Subsidiary has filed all federal, state, local and foreign income tax
returns which have been required to be filed (except in any case in which an
extension has been granted or the failure to so file would not have a Material
Adverse Effect) and has paid all taxes required to be paid and any other
assessment, fine or penalty levied against it, to the extent that any of the
foregoing is due and payable, except, in all cases, for any such tax,
assessment, fine or penalty that is being contested in good faith.
(31) Environmental Consultants. None of the environmental
consultants which prepared environmental and asbestos inspection reports with
respect to certain of the Properties was employed for such purpose on a
contingent basis or has any substantial interest in the Company, the Operating
Partnership or any Subsidiary and none of them nor any of their directors,
officers or employees is connected with the Company, the Operating Partnership
or any Subsidiary as a promoter, selling agent, voting trustee, director,
officer or employee.
(32) Title Insurance. The Company, the Operating Partnership and
any Subsidiary, as the case may be, have obtained title insurance on the fee
interests and leasehold interests in each of the Properties in an amount at
least equal to the greater of (A) the mortgage indebtedness on each such
Property or (B) the purchase price paid for each such Property (in the case of
any Property having been acquired by the Operating Partnership via an exchange
of Units for partnership interests in the entity holding such property, the
"purchase price" of such Property being deemed to be the sum of (i) the
per-share price of the Common Stock of the Company on the date such Property
was exchanged for Units multiplied by the number of Units exchanged for such
Property or interests in the entity holding such Property and (ii) the amount
of any assumed indebtedness secured by such Property), except that Omni
Partnership has obtained title insurance insuring Omni Partnership's interest
in its real property assets in an amount not less than $48 million.
(33) Absence of Regulation M Violation. None of the Company, the
Operating Partnership, the Subsidiaries, nor any of their respective
directors, officers, members or controlling persons, has taken or will take,
directly or indirectly, any action resulting in a violation of Regulation M
under the 1934 Act, or designed to cause or result in, or that has constituted
or that reasonably might be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
(b) Officers' Certificates. Any certificate signed by any officer of the
Company or any authorized representative of the Operating Partnership and
delivered to any Underwriter or to counsel for the Underwriters in connection
with the offering of the Underwritten Securities shall be deemed a
representation and warranty by such entity or person, as the case may be, to
each Underwriter as to the matters covered thereby on the date of such
certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
Section 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Underwritten Securities. The several commitments of the Underwriters
to purchase the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth.
12
(b) Option Underwritten Securities. In addition, subject to the terms
and conditions set forth therein, the Company may grant, if so provided in the
applicable Terms Agreement, an option to the Underwriters, severally and not
jointly, to purchase up to the number of the Option Underwritten Securities
set forth therein at a price per Option Underwritten Security equal to the
price per Initial Underwritten Security, less an amount equal to any dividends
or distributions declared by the Company and paid or payable on the Initial
Underwritten Securities but not payable on the Option Underwritten Securities.
Such option, if granted, will expire 30 days after the date of such Terms
Agreement, and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in connection with
the offering and distribution of the Initial Underwritten Securities upon
notice by the Representatives to the Company setting forth the number of
Option Underwritten Securities as to which the several Underwriters are then
exercising the option and the time, date and place of payment and delivery for
such Option Underwritten Securities. Any such time and date of payment and
delivery (each, a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business days after
the exercise of said option, nor in any event prior to the Closing Time,
unless otherwise agreed upon by the Representatives and the Company. If the
option is exercised as to all or any portion of the Option Underwritten
Securities, each of the Underwriters, severally and not jointly, will purchase
that proportion of the total number of Option Underwritten Securities then
being purchased which the number of Initial Underwritten Securities each such
Underwriter has severally agreed to purchase as set forth in such Terms
Agreement bears to the total number of Initial Underwritten Securities,
subject to such adjustments as the Representatives in their discretion shall
make to eliminate any sales or purchases of a fractional number of Option
Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the office of Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ LLP, or at such other place as shall be agreed upon by the
Representatives and the Company, at 10:00 a.m. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 p.m. (Eastern time) on any given
day) business day after the date of the applicable Terms Agreement (unless
postponed in accordance with the provisions of Section 10 hereof), or such
other time not later than ten business days after such date as shall be agreed
upon by the Representatives and the Company (such time and date of payment and
delivery being herein called "Closing Time"). In addition, in the event that
the Underwriters have exercised their option, if any, to purchase any or all
of the Option Underwritten Securities, payment of the purchase price for, and
delivery of such Option Underwritten Securities, shall be made at the
above-mentioned offices of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, or at such other
place as shall be agreed upon by the Representatives and the Company, on the
relevant Date of Delivery as specified in the notice from the Representatives
to the Company.
Payment shall be made to the Company by wire transfer of Federal funds
or similar same day funds payable to the order of the Company, against
delivery to the Representatives for the respective accounts of the
Underwriters of the Underwritten Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for their
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Underwritten Securities which it has severally agreed to
purchase. The Representatives, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Underwritten Securities to be purchased by any Underwriter whose
check has not been received by the Closing Time or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities,
certificates for the Underwritten Securities or Depositary Receipts evidencing
the Depositary Shares, as applicable, shall be in such denominations and
registered in such names as the Representatives may request in writing at
least one full business day prior to the Closing Time or the relevant Date of
Delivery, as the case may be. The
13
Underwritten Securities, certificates for the Underwritten Securities or
Depositary Receipts evidencing the Depositary Shares, as applicable, will be
made available for examination and packaging by the Representatives in The
City of New York not later than 10:00 a.m. (Eastern time) on the business day
prior to the Closing Time or the relevant Date of Delivery, as the case may
be.
Section 3. Covenants of the Company and the Operating Partnership.
------------------------------------------------------
Each of the Company and the Operating Partnership covenants with the
Representatives and with each Underwriter participating in the offering of
Underwritten Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of the
1933 Act Regulations, including Rule 430A and Rule 434, and will notify the
Representatives immediately, and confirm the notice in writing, of (i) the
effectiveness of any post-effective amendment to the Registration Statement or
the filing of any supplement or amendment to the Prospectus, (ii) the receipt
of any comments from the Commission, (iii) any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Underwritten
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424 and will take such
steps as it deems necessary to ascertain promptly whether the Prospectus
transmitted for filing under Rule 424 was received for filing by the
Commission and, in the event that it was not, it will promptly file the
Prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. At any time when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act in connection with sales of
the Underwritten Securities, the Company will give the Representatives notice
of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b) of the 1933 Act
Regulations), any Term Sheet or any amendment, supplement or revision to
either the prospectus included in the Registration Statement at the time it
became effective or to the Prospectus, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish the Representatives with copies of any
such documents a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file or use any such document to which
the Representatives or counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, a signed copy of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives and counsel for the
Underwriters, without charge, conformed copies of the Registration Statement
as originally filed and of each amendment thereto for each of the
Underwriters. If applicable, the copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Company hereby consents to
the use of such copies for purposes permitted by the 1933 Act. The
14
Company will furnish to each Underwriter, without charge, during the period
when the Prospectus is required to be delivered under the 1933 Act or the 1934
Act and prior to 4:00 p.m. New York City time on the New York business day
next succeeding the date of the applicable Terms Agreement such number of
copies of the Prospectus as such Underwriter may reasonably request. If
applicable, the Prospectus and any amendments or supplements thereto furnished
to the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934
Act Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and the
applicable Terms Agreement and in the Registration Statement and the
Prospectus. If at any time when the applicable preliminary prospectus or
Prospectus is required by the 1933 Act or the 1934 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel
for the Underwriter or for the Company, to amend the Registration Statement in
order that the Registration Statement will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or to amend or
supplement the applicable preliminary prospectus or the Prospectus in order
that the applicable preliminary prospectus or the Prospectus will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light
of the circumstances existing at the time it is delivered to a purchaser, or
if it shall be necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement the applicable
preliminary prospectus or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement, the applicable preliminary
prospectus or the Prospectus comply with such requirements, and the Company
will furnish to the Underwriters and counsel for the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Underwritten Securities and
any related Underlying Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or foreign)
as the Representatives may designate and to maintain such qualifications in
effect for a period of not less than one year from the date of the applicable
Terms Agreement; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify or register as a
foreign corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or registered, or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Underwritten Securities or any
related Underlying Securities have been so qualified or registered, the
Company will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for a period of
not less than one year from the date of such Terms Agreement.
(g) Earnings Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its security holders as soon as practicable an earnings statement (in form
complying with Rule 158 of the 1933 Act Regulations) for the purposes of, and
to provide the benefits contemplated by, the last paragraph of Section 11(a)
of the 1933 Act.
(h) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the
15
Commission pursuant to the 1934 Act within the time periods required by the
1934 Act and the 1934 Act Regulations.
(i) Listing. The Company will use its best efforts to effect and
maintain the listing of the Underwritten Securities and any related Underlying
Securities, prior to the Closing Time, on any national securities exchange or
quotation system if and as specified in the applicable Terms Agreement.
(j) Restriction on Sale of Securities. Between the date of the
applicable Terms Agreement and the Closing Time and/or such other date
specified in such Terms Agreement, the Company, the Operating Partnership and
any other entity or person named in the applicable Terms Agreement will not,
without the prior written consent of the Representatives, directly or
indirectly, issue, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, the securities specified in such Terms Agreement subject
to any conditions listed therein.
(k) REIT Qualification. The Company will use its best efforts to
continue to meet the requirements to qualify as a "real estate investment
trust" under the Code for each of its taxable years.
(l) Reservation of Securities. If the applicable Terms Agreement
specifies that any related Underlying Securities include Common Stock,
Preferred Stock and/or Depositary Shares, the Company will reserve and keep
available at all times, free of preemptive or other similar rights, a
sufficient number of shares of Common Stock and/or Preferred Stock, as
applicable, for the purpose of enabling the Company to satisfy any obligations
to issue such Underlying Securities upon exercise of the related Warrants, as
applicable, or upon conversion of the Preferred Stock or Depositary Shares, as
applicable.
(m) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(n) Exchange Act Filings. During the period from each Closing Time until
March 31, 2006, the Company will deliver to the Representatives, (i) promptly
upon their becoming available, copies of all current, regular and periodic
reports of the Company mailed to its stockholders or filed with any securities
exchange or with the Commission or any governmental authority succeeding to
any of the Commission's functions, and (ii) such other information concerning
the Company as the Representatives may reasonably request.
(o) No Manipulation of Market for Securities. Except for the
authorization of actions permitted to be taken by the Underwriters as
contemplated herein or in the Prospectus, neither the Company nor the
Operating Partnership will (a) take, directly or indirectly, any action
designed to cause or to result in, or that might reasonably be expected to
constitute, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Underwritten Securities,
and (b) during the time any preliminary prospectus is being distributed
pursuant to the terms of this Agreement until the Closing Date, or the Date of
Delivery, if any, with respect to such preliminary prospectus (i) sell, bid
for or purchase the Underwritten Securities or pay any person any compensation
for soliciting purchases of the Underwritten Securities or (ii) pay or agree
to pay to any person any compensation for soliciting another to purchase any
other securities of the Company.
(p) Rule 462(b) Registration Statement. 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 this 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 1933 Act.
16
Section 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement and each
applicable Terms Agreement, including (i) the preparation, printing and filing
of the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the printing and delivery
to the Underwriters of this Underwriting Agreement, any Terms Agreement, any
Agreement among Underwriters, any Warrant Agreement and such other documents
as may be required in connection with the offering, purchase, sale and
delivery of the Underwritten Securities or any related Underlying Securities,
(iii) the preparation, issuance and delivery of the Underwritten Securities
and any related Underlying Securities, any certificates for the Underwritten
Securities or such Underlying Securities or Depositary Receipts evidencing the
Depositary Shares, as applicable, to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors or
agents (including transfer agents and registrars), as well as the fees and
disbursements of any warrant agent, and its respective counsel, (v) the
qualification of the Underwritten Securities and any related Underlying
Securities under state securities and real estate syndication laws in
accordance with the provisions of Section 3(f) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation, printing and
delivery of the Blue Sky Survey, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheet, the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto and the Prospectus and any
amendments or supplements thereto, (vii) the fees charged by nationally
recognized statistical rating organizations for the rating of the Underwritten
Securities and any related Underlying Securities, if applicable, (viii) the
fees and expenses incurred with respect to the listing of the Underwritten
Securities and any related Underlying Securities, if applicable, (ix) the
filing fees of the NASD, (x) the fees and expenses of any Underwriter acting
in the capacity of a "qualified independent underwriter" (as defined in Rule
2720(a)(15) of the Conduct Rules of the NASD), if applicable, (xi) any
transfer taxes imposed on the sale of the Underwritten Securities to the
several Underwriters, and (xii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by the Representatives in accordance with the provisions of Section
5 or Section 9(b)(i) hereof, the Company shall reimburse the Underwriters for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations.
---------------------------------------
The obligations of the Underwriters to purchase and pay for the
Underwritten Securities pursuant to the applicable Terms Agreement are subject
to the accuracy of the representations and warranties of the Company and the
Operating Partnership contained in Section 1 hereof or in certificates of any
officer or authorized representative of the Company or the Operating
Partnership delivered pursuant to the provisions hereof, to the performance by
the Company and the Operating Partnership of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under
the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission or the state
securities authority of any jurisdiction, and any request on the part of the
Commission or the state securities authority of any jurisdiction for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing
information relating to the description of the Underwritten
17
Securities and any related Underlying Securities, the specific method of
distribution and similar matters shall have been filed with the Commission in
accordance with Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any
required post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of Rule
430A), or, if the Company has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information shall have been
filed with the Commission in accordance with Rule 424(b)(7).
(b) Opinion of Counsel for Company. (i) At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, together with signed
or reproduced copies of such letter for each of the other Underwriters, such
opinion shall address such of the items set forth in Exhibit C hereto as may
be relevant to the particular offering contemplated or to such further effect
as counsel to the Underwriters may reasonably request.
ii. At Closing Time, the Representatives shall have received the
favorable opinion, dated as of Closing Time, of Solomon and
▇▇▇▇▇▇▇▇ LLP, special tax counsel for the Company and the
Operating Partnership, to the effect that:
(A) at all times since January 1, 1995, the Company has been
organized and operated in conformity with the requirements
for qualification as a real estate investment trust under
the Code and the proposed method of operation of the Company
will enable the Company to continue to meet the requirements
for qualification as a real estate investment trust under
the Code; and
(B) the statements contained in the Prospectus under the caption
"Federal Income Tax Considerations" that describe applicable
U.S. federal income tax law are correct in all material
respects as of Closing Time.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Underwriters, or such other
counsel as may be designated by the Representatives together with signed or
reproduced copies of such letter for each of the other Underwriters, with
respect to the matters set forth in paragraphs (1) (with respect to the first
clause of the first sentence only), (2) with respect to the first clause of
the first sentence only), (6), and (18) (with respect to the first and third
sentences only) of Exhibit C hereto and the last two paragraphs of Exhibit C
hereto. In giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of New
York, the federal law of the United States and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory to the
Representatives, which for this purpose shall include ▇▇▇▇▇▇▇ LLP. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of
officers or authorized representatives of the Company and the Operating
Partnership and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company, the Operating Partnership or any
Subsidiary considered as one enterprise, whether or not arising in the
ordinary course of business, and the Representatives shall have received a
certificate of the President or a Vice President of the Company for itself and
as general partner of the Operating Partnership and of the chief financial
officer or chief accounting officer of the Company for itself and as general
partner of the Operating Partnership, dated as of Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) the
18
representations and warranties in Section 1 are true and correct, in all
material respect, with the same force and effect as though expressly made at
and as of the Closing Time, (iii) each of the Company and the Operating
Partnership has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the Closing Time and (iv)
no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been initiated or
threatened by the Commission or by the state securities authority of any
jurisdiction.
(e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, the Representatives shall have received from Ernst
& Young LLP a letter, dated such date, in form and substance satisfactory to
the Representatives and counsel to the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" as set forth in the AICPA's Statement on
Auditing Standards 72 to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement and
the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from Ernst & Young LLP a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section 5, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Time.
(g) Ratings. At Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical rating organization," as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in
the applicable Terms Agreement, and the Company shall have delivered to the
Representatives a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to the Representatives,
confirming that the Underwritten Securities have such ratings. Since the time
of execution of such Terms Agreement, there shall not have occurred a
downgrading in the rating assigned to the Underwritten Securities or any of
the Company's other securities by any such rating organization, and no such
rating organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of the
Underwritten Securities or any of the Company's other securities.
(h) Approval of Listing. At Closing Time, the Underwritten Securities
shall be listed or shall have been approved for listing, subject only to
official notice of issuance, if and as specified in the applicable Terms
Agreement.
(i) Lock-up Agreements. On the date of the applicable Terms Agreement,
the Representatives shall have received, in form and substance satisfactory to
it, each lock-up agreement, if any, specified in such Terms Agreement as being
required to be delivered by the persons or entities listed therein.
(j) Over-Allotment Option. In the event that the Underwriters are
granted an over-allotment option by the Company in the applicable Terms
Agreement and the Underwriters exercise their option to purchase all or any
portion of the Option Underwritten Securities, the representations and
warranties of the Company and the Operating Partnership contained herein and
the statements in any certificates furnished by the Company or the Operating
Partnership hereunder shall be true and correct as of each Date of Delivery,
and, at the relevant Date of Delivery, the Representatives shall have
received:
(1) A certificate dated such Date of Delivery, of the President or
a Vice President of the Company for itself and as general partner of the
Operating Partnership and the chief financial officer or chief accounting
officer of the Company for itself and as general partner of the Operating
Partnership confirming that the certificate delivered at the Closing Time
pursuant to Section 5(d) hereof remains true and correct as of such Date of
Delivery.
19
(2) The favorable opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel for the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Underwritten
Securities and otherwise to the same effect as the opinion required by Section
5(b)(i) hereof.
(3) The favorable opinion of ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for
the Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(4) A letter from Ernst & Young LLP, in form and substance
satisfactory to the Representatives and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Representatives pursuant to Section 5(f) hereof, except that the "specified
date" on the letter furnished pursuant to this paragraph shall be a date not
more than three business days prior to such Date of Delivery.
(5) The favorable opinion of Solomon and ▇▇▇▇▇▇▇▇ LLP, special tax
counsel for the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Underwritten
Securities and otherwise to the same effect as the opinion required by Section
5(b)(ii) hereof.
(k) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Underwritten Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained.
(l) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement (or, with respect to the Underwriters' exercise
of any applicable over-allotment option for the purchase of Option
Underwritten Securities on a Date of Delivery after the Closing Time, the
obligations of the Underwriters to purchase the Option Underwritten Securities
on such Date of Delivery) may be terminated by the Representatives by notice
to the Company at any time at or prior to the Closing Time (or such Date of
Delivery, as applicable), and such termination shall be without liability of
any party to any other party except as provided in Section 4, and except that
Sections 1, 6 and 7 shall survive any such termination and remain in full
force and effect.
Section 6. Indemnification.
---------------
(a) Indemnification of Underwriters. Each of the Company and the
Operating Partnership agrees, jointly and severally, to indemnify and hold
harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act, and any
director, officer, employee or affiliate thereof, as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement or a material fact contained in the Registration Statement (or any
amendment thereto), including the information deemed to be part of the
Registration Statement pursuant to Rule 430A(b) of the 1933 Act Regulations,
if applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order
20
to make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation or of any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever for which indemnification is provided under subsection (1) above,
if such settlement is effected with the written consent of the indemnifying
party, which consent shall not be unreasonably withheld; and
(3) against any and all expense whatsoever (including without
limitation, the fees and disbursements of counsel chosen by the
Representatives) reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceedings by any
governmental agency or body, commenced or threatened, or any claim whatsoever
for which indemnification is provided under subsection (1) above, to the
extent that any such expense is not paid under subsection (1) or (2) above;
provided, however, that the indemnity agreement provided for in this Section
6(a) shall not apply to any loss, liability, claim, damage or expense to the
extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto); provided, however, that neither the Company
nor the Operating Partnership shall be required to indemnify any Underwriter
with respect to any preliminary prospectus to the extent that any loss, claim,
damage or expense of such Underwriter results solely from an untrue statement
of a material fact contained in, or the omission of a material fact from, such
preliminary prospectus which untrue statement or omission was corrected in the
Prospectus and identified to such Underwriter in writing and which corrected
Prospectus was furnished by the Company to such Underwriter pursuant to
Section 3(d) hereof but it shall be established that such Prospectus was not
sent or given by such Underwriter to the purchaser of the Underwritten
Securities at or prior to the written confirmation of such sale and such
correction would have cured the defect giving rise to such loss, claim, damage
or expense.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally and not jointly agrees to indemnify and hold harmless the Company
and the Operating Partnership, and each person, if any, who controls either of
the Company or the Operating Partnership within the meaning of Section 15 of
the 1933 Act, and any director, officer, employee or affiliate thereof,
against any and all loss, liability, claim, damage, and expense described in
the indemnity contained in subsection (a) of this Section 6, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification; Settlement without Consent if
Failure to Reimburse. Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
so to notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of such action. If it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and reasonably approved by the other
indemnifying parties defendant in such action and reasonably approved by the
indemnified party (who
21
shall not, except with the consent of the indemnified party, be counsel to an
indemnifying party), unless such other indemnifying parties or an indemnified
party reasonably object to such assumption on the ground that the named
parties to any such action (including any impleaded parties) include both such
indemnified party and an indemnifying party, and such indemnified party
reasonably believes that there may be legal defenses available to it which are
different from or in addition to those available to such indemnifying party.
If an indemnifying party assumes the defense of such action, the indemnifying
parties shall not be liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with such action. In no
event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim) unless such settlement,
compromise or judgement (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim and
(ii) does not include a statement as to or an admission of fault, culpability
or a failure to act, by or on behalf of any indemnified party.
Section 7. Contribution.
------------
In order to provide for just and equitable contribution in circumstances
in which the indemnity agreement provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, the Company and the Operating Partnership, on the one hand, and the
Underwriters, on the other, shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and the Operating Partnership and
the Underwriters, as incurred, in such proportions that the Underwriters are
responsible for that portion represented by the percentage that the
underwriting discount appearing on the cover page of the Prospectus bears to
the initial public offering price appearing thereon and the Company and the
Operating Partnership are responsible for the balance. 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 Section 6(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 allocation referred to
in the first sentence of this Section 7 but also the relative fault of the
Company and the Operating Partnership, on the one hand, and the Underwriters
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 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 and 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 and the Operating Partnership and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7
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 Section 7. 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 Section 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 Section 7, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
22
applicable Underwritten Securities 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. Notwithstanding the
foregoing, no person guilty of fraudulent misrepresentation (within the
meaning of section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each person,
if any, who controls either the Company or the Operating Partnership within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company and the Operating Partnership.
The Underwriters' obligations to contribute pursuant to this Section 7
are several in proportion to their respective underwriting commitments and not
joint. For purposes of this Section 7, the Company and the Operating
Partnership shall be deemed one party and jointly and severally liable for any
obligations hereunder.
Section 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in certificates of
officers of the Company or authorized representatives of the Operating
Partnership submitted pursuant hereto or thereto shall remain operative and in
full force and effect, regardless or any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company or
the Operating Partnership, and shall survive delivery of and payment for the
Underwritten Securities.
Section 9. Termination.
-----------
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by
the Company or by the Representatives upon the giving of 30 days' prior
written notice of such termination to the other party hereto.
(b) Terms Agreement. The Representatives may terminate the applicable
Terms Agreement, by notice to the Company, at any time at or prior to the
Closing Time or any relevant Date of Delivery, if (i) there has been, since
the time of execution of such Terms Agreement or since the respective dates as
of which information is given in the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company, the Operating Partnership and any
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, in each case the effect of which is such as to
make it, in the judgment of the Representatives, impracticable or inadvisable
to market the Underwritten Securities, or (ii) there has occurred any material
adverse change in the financial markets in the United States or
internationally or any outbreak of or escalation of hostilities or acts of
terrorism involving the United States or there is a declaration by the United
States of a national emergency or war or escalation thereof or other calamity
or crisis, or any change or development involving a prospective change in
national or international political, financial, or economic conditions, in
each case the effect of which is such as to make it, in the sole judgment of
the Representatives, impracticable or inadvisable to proceed with the offering
or delivery of the Underwritten Securities or to enforce contracts for the
sale of the Underwritten Securities, or (iii) trading in any securities of the
Company or the Operating Partnership has been suspended or limited by the
Commission or the New York Stock Exchange, or if trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market has been suspended or limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges
23
for prices have been required, by either of said exchanges or by such system
or by order of the Commission, the NASD or any other governmental authority,
(iv) a banking moratorium has been declared by either Federal or New York
authorities or (v) if Preferred Stock is offered and the rating assigned by
any nationally recognized statistical rating organization to any shares of
preferred stock of the Company as of the date of the applicable Terms
Agreement shall have been downgraded since such date or if any such rating
organization shall have publicly announced that it has placed any series of
Preferred Stock of the Company under surveillance or review, with possible
negative implications, as to the rating of such Preferred Stock or any of the
Company's other securities.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in
Section 4 hereof, and provided further that Sections 1, 6, 7, 8 and 13 hereof
shall survive such termination and remain in full force and effect.
Section 10. Default by One or More of the Underwriters.
------------------------------------------
If one or more of the Underwriters shall fail at the Closing Time or the
relevant Date of Delivery, as the case may be, to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable
Terms Agreement (the "Defaulted Securities"), then the Representatives shall
have the right, within 24 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth; if,
however, the Representatives shall not have completed such arrangements within
such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Underwritten Securities to be purchased on such date pursuant to
such Terms Agreement, the non-defaulting Underwriters named in such Terms
Agreement shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting
obligations under such Terms Agreement bear to the underwriting obligations of
all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Underwritten Securities to be purchased pursuant to such Terms Agreement, such
Terms Agreement (or, with respect to the Underwriters' exercise of any
applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of
the Underwriters to purchase, and the Company to sell, such Option
Underwritten Securities on such Date of Delivery) shall terminate without
liability on the part of any non-defaulting Underwriter except as provided by
Section 9(e).
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either the Representatives or the Company
shall have the right to postpone the Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or the Prospectus
or in any other documents or arrangements.
24
Section 11. Notices.
-------
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to the
Representatives at the address provided in the Terms Agreement; and notices to
either the Company or the Operating Partnership shall be directed to them at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Chief Executive Officer and President.
Section 12. Parties.
-------
This Underwriting Agreement and the applicable Terms Agreement shall
each inure to the benefit of and be binding upon the parties hereto and, upon
execution of such Terms Agreement, any other Underwriters and their respective
successors. Nothing expressed or mentioned in this Underwriting Agreement or
such Terms Agreement is intended or shall be construed to give any person,
firm or corporation, other than the Underwriters and the Company and the
Operating Partnership and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Underwriting Agreement or such Terms Agreement or
any provision herein or therein contained. This Underwriting Agreement and
such Terms Agreement and all conditions and provisions hereof and thereof are
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
Section 13. GOVERNING LAW AND TIME.
----------------------
THIS UNDERWRITING AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
Section 14. Effect of Headings.
------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 15. Counterparts.
------------
This Underwriting Agreement and the applicable Terms Agreements may be
executed in one or more counterparts, and if executed in more than one
counterpart, the executed counterparts shall constitute a single instrument.
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart of the
applicable Terms Agreement, whereupon this Underwriting Agreement, along with
the applicable Terms Agreement, will become a binding agreement among the
Underwriters, the Company and the Operating Partnership in accordance with
their terms.
Very truly yours,
RECKSON ASSOCIATES REALTY CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer and
President
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.
its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer and
President
26
Exhibit A
RECKSON ASSOCIATES REALTY CORP.
(a Maryland corporation)
Common Stock, Warrants to Purchase Common Stock,
Preferred Stock, Warrants to Purchase Preferred Stock and
Depositary Shares
TERMS AGREEMENT
__________ __, 200[ ]
To: Reckson Associates Realty Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We understand that Reckson Associates Realty Corp., a Maryland
corporation (the "Company"), proposes to issue and sell [ shares of its Class
A common stock, par value $0.01 per share (the "Common Stock")] [ shares of
its preferred stock, par value $0.01 per share (the "Preferred Stock")] [
warrants (the "Common Stock Warrants") to purchase Class A common stock, par
value $0.01 per share] [ warrants (the "Preferred Stock Warrants") to purchase
preferred stock, par value $0.01 per share] ([securities also being
hereinafter referred to as] the "Initial Underwritten Securities"). Subject to
the terms and conditions set forth or incorporated by reference herein, the
underwriters named below (the "Underwriters") offer to purchase, severally and
not jointly, the respective number of Initial Underwritten Securities set
forth below opposite their names at the purchase price set forth below, and a
proportionate share of Option Underwritten Securities (as defined in the
Underwriting Agreement referred to below) set forth below, to the extent any
are purchased.
[Number of Initial
Underwriter Underwritten Securities]
----------- ------------------------
Total [$]
27
The Underwritten Securities shall have the following terms:
[Common Stock]
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Voting Provisions:
Listing requirements:
Black-out provisions:
Initial public offering price per share: $ plus accumulated dividends, if
any, from
Purchase price per share: $
Other terms and conditions:
Closing date and location:
[Common Stock] [Preferred Stock] [Warrants]
Title:
Type:
Number:
Warrant Agent:
Issuable jointly with [Common Stock] [Preferred Stock]: [Yes] [No]
Number of [Common Stock] [Preferred Stock] Warrants issued with each [share of
Common Stock] [share of Preferred Stock]:
Date(s) from which or period(s) during which [Common Stock] [Preferred Stock]
[Warrants] are exercisable:
Date(s) on which [Common Stock] [Preferred Stock] [Warrants] expire:
28
Exercise price(s): $
Initial public offering price: $
Purchase price: $
Title of Underlying Securities:
[Number of shares] purchasable upon exercise of one [Common Stock] [Preferred
Stock] [Warrant]:
Terms of Underlying Securities:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I
hereto entitled "RECKSON ASSOCIATES REALTY CORP.--Common Stock, Warrants to
Purchase Common Stock, Preferred Stock, Warrants to Purchase Preferred Stock
and Depositary Shares--Underwriting Agreement" are hereby incorporated by
reference in their entirety herein and shall be deemed to be a part of this
Terms Agreement to the same extent as if such provisions had been set forth in
full herein. Terms defined in such document are used herein as therein
defined. Notices to the Representatives can be sent to: [ ].
29
Please accept this offer no later than o'clock p.m. (New York City
time) on by signing a copy of this Terms Agreement in the space set forth
below and returning the signed copy to us.
Very truly yours,
[ ]
By:
-------------------------------
Name:
Title: Authorized Signatory
Acting on behalf of itself and the other named Underwriters.
Accepted:
RECKSON ASSOCIATES REALTY CORP.
By:
-------------------------
Name:
Title:
30
Exhibit B
SIGNIFICANT SUBSIDIARIES
Reckson 1185 Avenue of the Americas LLC
Reckson MEZZ 1185 Avenue of the Americas LLC
Reckson Tri-State Member LLC
RT Tri-State LLC
Metropolitan Partners LLC
Metropolitan Operating Partnership, L.P.
Metropolitan ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ LLC
Metropolitan 919 Manager LLC
919 JV LLC
31
Exhibit C
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(i)
(1) The Company has been duly incorporated and is validly existing
as a corporation and is in good standing with the State Department of
Assessments and Taxation of Maryland. The Company has the corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and perform its obligations
under, or as contemplated under, the Underwriting Agreement and the applicable
Terms Agreement and is duly qualified or registered as a foreign corporation
to transact business and is in good standing in jurisdictions indicated on
Schedule I hereto.
(2) The Operating Partnership has been duly organized and is
validly existing as a limited partnership and is in good standing with the
Secretary of State of Delaware. The Operating Partnership has the partnership
power and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and to enter into and perform its
obligations under, or as contemplated under, the Underwriting Agreement and
the applicable Terms Agreement and is duly qualified or registered as a
foreign partnership to transact business and is in good standing in the
jurisdictions indicated on Schedule I hereto.
(3) The issued and outstanding shares of capital stock of the
Company are duly authorized; all issued and outstanding shares of capital
stock of the Company are validly issued, fully paid and nonassessable and
conform in all material respects to the description thereof contained in the
Prospectus; to our knowledge, no shares of capital stock of the Company are
reserved for any purpose except in connection with (i) the Company's employee
stock option plans (collectively, the "Reckson Stock Option Plans"), (ii) the
possible issuance of shares of Common Stock upon the exchange of Units and
(iii) the issuance of shares of Common Stock upon the conversion of the Series
A Preferred Stock; and, to our knowledge, except for the Units, the
outstanding shares of Series A Preferred Stock and the options issued under
the Reckson Stock Option Plans, there are no outstanding securities
convertible into or exchangeable for any capital stock of the Company, no
outstanding preemptive or similar rights to purchase or to subscribe for
shares of such stock or any other securities of the Company arising under
Maryland law or under the charter or bylaws of the Company or any contracts to
which the Company is a party of which we are aware.
(4) All the outstanding Units have been duly authorized for
issuance by the Operating Partnership to the holders of Units and, assuming
that the holders of Units, as limited partners of the Operating Partnership do
not participate in the control of the business of the Operating Partnership,
the Units will represent valid and, subject to the qualifications set forth
herein, fully paid and non-assessable limited partner interests in the
Operating Partnership, as to which the holders of Units, in their capacity as
limited partners of the Operating Partnership, will have no liability in
excess of their obligations to make contributions to the Operating
Partnership, their obligations to make other payments provided for in the
Operating Partnership Agreement and their share of the Operating Partnership's
assets and undistributed profits (subject to the obligation of a limited
partner of the Operating Partnership to repay any funds wrongfully distributed
to it). No Units are reserved for any purpose and except for the "put rights"
accorded to Odyssey Partners, L.P., under Section 12.4 of the Second Amended
and Restated Agreement
32
of Limited Partnership of the Omni Partnership, and the rights of the holders
of the Class C Common Units, Series A, B, C, D and F preferred units of
limited partner interest in the Operating Partnership and except as otherwise
described in the Prospectus, to our knowledge, there are no outstanding
securities convertible into or exchangeable for any Units and no outstanding
preemptive or other similar rights to purchase or subscribe for Units or any
other securities of the Operating Partnership arising under the DRULPA or
under the Operating Partnership Agreement or any contracts to which the
Operating Partnership is a party of which we are aware.
(5) Each Significant Subsidiary has been duly organized and is
validly existing as a limited partnership or other legal entity, as the case
may be, in good standing under the laws of the jurisdiction of its
organization, as the case may be, and has the partnership or limited liability
company power and authority to own, lease and operate its properties and to
conduct the business in which it is engaged or proposes to engage as described
in the Prospectus and is duly qualified or registered as a foreign limited
partnership or other legal entity, as the case may be, to transact business
and is in good standing in the jurisdictions indicated on Schedule I hereto.
Except as otherwise stated in the Registration Statement and the Prospectus,
all of the issued and outstanding capital stock or other equity interests, as
the case may be, of each Significant Subsidiary has been duly authorized and
is validly issued, and except with regards to Metropolitan Operating
Partnership, L.P. fully paid and non-assessable.
(6) The Underwriting Agreement and the applicable Terms Agreement
have been duly authorized, executed and delivered by the Company.
(7) The Underwriting Agreement has been duly authorized, executed
and delivered by the Operating Partnership.
(8) [Include if the Underwritten Securities being sold pursuant to
the applicable Terms Agreement include Common Stock or Preferred Stock] The
Underwritten Securities have been duly authorized by the Company for issuance
and sale pursuant to the Underwriting Agreement and the applicable Terms
Agreement. The Underwritten Securities, when issued and delivered by the
Company pursuant to the Underwriting Agreement and such Terms Agreement
against payment of the consideration therefor specified in such Terms
Agreement, will be validly issued, fully paid and non-assessable. The
Underwritten Securities will not be subject to preemptive or other similar
rights to purchase or subscribe for shares of Common Stock of the Company or
any contract to which the Company is a party of which we are aware. The form
of certificate used to evidence the Underwritten Securities is in due and
proper form and complies with the applicable statutory requirements, and with
any applicable requirements of the charter or bylaws of the Company. [If
applicable, the applicable Articles Supplementary is in full force and
effect.]
(9) [Include if the Underwritten Securities being sold pursuant to
the applicable Terms Agreement include Warrants --] The Underwritten
Securities have been duly authorized by the Company for issuance and sale
pursuant to the Underwriting Agreement and the applicable Terms Agreement. The
Underwritten Securities, when issued and authenticated in the manner provided
for in the applicable Warrant Agreement and delivered against payment of the
consideration therefor specified in such Terms Agreement, will constitute
valid and legally binding obligations of the Company, entitled to the benefits
provided by such Warrant Agreement and enforceable against the Company in
accordance with their terms, except as enforcement therefor may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding in
equity or at law).
33
(10) [Include if the Underwritten Securities being sold pursuant
to the applicable Terms Agreement include Warrants --] The [Each] applicable
Warrant Agreement has been duly authorized, executed and delivered by the
Company and (assuming due authorization, execution and delivery thereof by the
applicable warrant agent) constitutes a valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(11) [Include if the Underlying Securities related to the
Underwritten Securities being sold pursuant to the applicable Terms Agreement
include Common stock or Preferred Stock] The Underlying Securities have been
duly authorized and reserved for issuance by the Company [upon exercise of the
[Common Stock] [Preferred Stock] Warrants] [upon conversion of the related
[Preferred Stock]]. The Underlying Securities, when issued upon such exercise,
will be validly issued, fully paid and non-assessable and will not be subject
to preemptive or other similar rights.
(12) The Underwritten Securities being sold pursuant to the
applicable Terms Agreement and the [each] applicable Warrant Agreement
conform, and any Underlying Securities, when issued and delivered in
accordance with the terms of the related Underwritten Securities, will
conform, in all material respects to the statements relating thereto contained
in the Prospectus and are in substantially the form filed or incorporated by
reference, as the case may be, as an exhibit to the Registration Statement.
(13) The information in the Prospectus under "Description of
Common Stock," "Description of Preferred Stock" and "Description of Warrants,"
as applicable, if any, or any caption purporting to describe any such
Securities, and such other information in the Prospectus Supplement or in any
Annual Report on Form 10-K of the Company as may be agreed upon from time to
time by the Company and the Representatives, to the extent that it constitutes
matters of law, descriptions of statutes, rules or regulations, summaries of
legal matters, the Company's charter and bylaws, documents or legal
proceedings, or legal conclusions, has been reviewed by us and is correct in
all material respects and fairly summarizes the information required to be
disclosed therein.
(14) To our knowledge, none of the Company, the Operating
Partnership or any of the Significant Subsidiaries is in violation of its
charter, bylaws, partnership agreement, or other organizational document, as
the case may be, and, to our knowledge, no default by the Company, the
Operating Partnership or any Significant Subsidiary exists in the due
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument that is filed or incorporated by reference as an
exhibit to the Registration Statement to which the Company, the Operating
Partnership or any Significant Subsidiary is a party or by which any of them
may be bound, except for such defaults that would not have a Material Adverse
Effect, and except that we express no opinion concerning whether there has
been a default under any such contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument with regard to financial
covenants or insurance coverage for acts of terrorism.
(15) The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement [and each applicable Warrant
Agreement] and consummation of the transactions contemplated in the
Underwriting Agreement and such Terms Agreement and in the Registration
Statement and the Prospectus (including the issuance and sale of the
Underwritten Securities) and compliance by the Company, the Operating
Partnership or any Significant Subsidiary with its obligations thereunder do
not and will not, whether with or without the giving of notice or passage of
time
34
or both, conflict with or constitute a breach of, or default or Repayment
Event 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 Significant Subsidiary pursuant to, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
any other agreement or instrument, filed or incorporated by reference as an
exhibit to the Registration Statement to which the Company, the Operating
Partnership or any Significant Subsidiary is a party or by which it or any of
them may be bound, or to which any of the assets, properties or operations of
the Company, the Operating Partnership or any Significant Subsidiary is
subject, except for such conflicts, breaches, defaults, events or liens,
charges or encumbrances that would not result in a Material Adverse Effect,
nor will such action result in any violation of the provisions of the charter,
by-laws, or agreement of limited partnership, as applicable, of the Company,
the Operating Partnership or any Significant Subsidiary or any applicable
Delaware Revised Uniform Limited Partnership Act, Maryland, New York or U.S.
federal laws, statute, rule, regulations, judgment, order, writ or decree,
known to us, of any Delaware, Maryland, New York or U.S. federal government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company, the Operating Partnership or any Significant Subsidiary or
any of their assets, properties or operations.
(16) To our knowledge, except as disclosed in the Prospectus,
there are no pending or threatened actions, suits or proceedings against or
affecting any of the Company, the Operating Partnership or any Subsidiary or
any of their respective properties or other assets that, if determined
adversely to any such entity would individually or in the aggregate have a
Material Adverse Effect or would materially adversely affect the ability of
the Company and the Operating Partnership to perform their obligations under
the Underwriting Agreement and if applicable, the applicable Terms Agreement.
(17) The descriptions in the Registration Statement of the
contracts and other documents filed as exhibits to the Company's Annual Report
on Form 10-K to which the Company, the Operating Partnership or any Subsidiary
is a party are accurate in all material respects. To our knowledge, there are
no franchises, contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by reference as
exhibits thereto.
(18) The Registration Statement has been declared effective under
the 1933 Act. Any required filing of the Prospectus pursuant to Rule 424(b)
has been made in the manner and within the time period required by Rule
424(b). To our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(19) The Registration Statement, the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement
to the Registration Statement and the Prospectus, excluding the documents
incorporated by reference therein, as of their respective effective or issue
dates (other than the financial statements (including notes and supporting
schedules thereto) and other financial data included or incorporated by
reference therein or omitted therefrom, as to which no opinion need be
rendered) complied as to form in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations.
(20) The documents incorporated by reference in the Prospectus
(other than the financial statements (including notes and supporting schedules
thereto) and other financial data included or incorporated by reference
therein or omitted therefrom, as to which no opinion need be rendered), when
they were filed with the Commission (or, if later, upon the filing of an
amendment thereto)
35
complied as to form in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission thereunder.
(21) No filing with, or authorization, approval, consent, license,
order registration, qualification or decree of, any Delaware, Maryland, New
York or U.S. federal court or governmental authority or agency is necessary or
required for the performance by the Company or the Operating Partnership of
its obligations under the Underwriting Agreement or the applicable Terms
Agreement or in connection with the transactions contemplated under the
Underwriting Agreement or such Terms Agreement other than under the 1933 Act
or the 1933 Act Regulations, which have been obtained, or as may be required
under the by-laws and rules of the NASD, state securities or blue sky laws or
real estate syndication laws.
(22) Neither the Company nor the Operating Partnership is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended (the "1940 Act").
No fact has come to our attention that has caused us to believe that the
Registration Statement (other than the financial statements (including notes
and supporting schedules thereto) and other financial data included or
incorporated by reference therein or omitted therefrom and for statistical
information derived from such financial statements, schedules or other
financial data, as to which we have not been requested to comment), at the
time the Registration Statement or any post-effective amendment thereto
(including the filing of the Company's Annual Report on Form 10-K with the
Commission) became effective or at the date of the applicable Terms Agreement,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any amendment or
supplement thereto (other than the financial statements (including notes and
supporting schedules thereto) and other financial data included or
incorporated by reference therein or omitted therefrom and for statistical
information derived from such financial statements, schedules or other
financial data, as to which we have not been requested to comment), at the
time the Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of Maryland, upon the opinions of
▇▇▇▇▇▇▇ LLP (which opinion shall be dated and furnished to the Representatives
at the Closing Time, shall be satisfactory in form and substance to counsel
for the Underwriters and shall expressly state that the counsel for the
Underwriters may rely on such opinion as if it were addressed to them), and
(B), as to matters of fact (but not as to legal conclusions), to the extent
they deem proper, on certificates of responsible officers of the Company and
public officials. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including, without limitation,
the Legal Opinion Accord of the ABA Section of Business Law (1991).
36
Schedule I
----------
1. Reckson Associates Realty Corp.
o New York
o New Jersey
o Connecticut
2. Reckson Operating Partnership, L.P.
o New York
o New Jersey
o Connecticut
3. Metropolitan Partners LLC
o New York
4. Metropolitan Operating Partnership, L.P.
o New York
37
Annex I
[FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)]
We are independent public accountants with respect to the Company within the
meaning of the 1933 Act and the applicable published 1933 Act Regulations.
(i) in our opinion, the audited financial statements and the
related financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the 1933 Act and the published rules and regulations
thereunder;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the unaudited interim [consolidated] financial statements of
the Company for the [three month periods ended __________, 200__, and
__________, 200__, the three and six month periods ended __________,
200__, and __________, 200__, and the three and nine month periods ended
__________, 200__, and __________, 200__, included or incorporated by
reference in the Registration Statement and the Prospectus
(collectively, the "10-Q Financials")](1) [, a reading of the unaudited
interim [consolidated] financial statements of the Company for the
_____-month periods ended __________, 200__, and __________, 200__,
included in the Registration Statement and the Prospectus (the
"_____-month financials")](2) [, a reading of the latest available
unaudited interim [consolidated] financial statements of the Company],(3)
a reading of the minutes of all meetings of the stockholders and
directors of the Company [and its subsidiaries] and the Committees of
the Company's Board of Directors [and any subsidiary committees] since
[day after end of last audited period], inquiries of certain officials
of the Company [and its subsidiaries] responsible for financial and
accounting matters, a review of interim financial information in
accordance with standards established by the American Institute of
Certified Public Accountants in Statement on Auditing Standards No. 71,
Interim Financial Information ("SAS 71"),(4) with respect to the
----------------------
(1) Include the appropriate dates of the 10-Q Financials.
(2) Include if non-10-Q interim financial statements are included in the
Registration Statement and the Prospectus.
(3) Include if the most recent unaudited financial statements are not
included in the Registration Statement and the Prospectus.
(4) Note that a review in accordance with Statements on Auditing Standards
("SAS") No. 71 is required for an accountant to give negative assurance
on interim financial information. A review in accordance with SAS No. 71
will only be performed at the request of the Company and the
accountant's report, if any, related to that review will be addressed
only to the Company. Many companies have a SAS No. 71 review performed
in connection with the preparation of their 10-Q financial statements.
See Codification of Statements on Auditing Standards, AU ss. 722 for a
description of the procedures that constitute such a review. The comfort
letter itself should recite that the review was performed and a copy of
the report, if any, should be attached to the comfort letter. Any report
issued pursuant to SAS No. 71 that is mentioned in the Registration
Statement should also be included in the Registration Statement as an
exhibit. If a review in accordance with SAS No. 71 has not and will not
be performed by the accountants, they should be prepared to perform
certain agreed-upon procedures on the interim financial information and
to report their findings thereon in the comfort letter. See Codification
of Statements on Auditing Standards, AU ss. 622 for a discussion of
reports related to the accountant's performance of agreed-upon
procedures. Any question as to whether a review in accordance with SAS
No. 71 will be performed by the accountants should be resolved early.
38
[description of relevant periods](5) and such other inquiries and
procedures as may be specified in such letter, nothing came to our
attention that caused us to believe that:
[(A) the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form
in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations
applicable to unaudited financial statements included in Form 10-Q
or any material modifications should be made to the 10-Q
Financials incorporated by reference in the Registration Statement
and the Prospectus for them to be in conformity with generally
accepted accounting principles;](6)
[( ) the _____-month financials included in the Registration
Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of
the 1933 Act and the 1933 Act Regulations applicable to unaudited
interim financial statements included in registration statements
or any material modifications should be made to the _____-month
financials included in the Registration Statement and the
Prospectus for them to be in conformity with generally accepted
accounting principles;](7)
( ) at [____________, 200__ and at](8) a specified date not
more than five days (9) prior to the date of the applicable Terms
Agreement, there was any change in the __________ of the Company
[and its subsidiaries] or any decrease in the _________ of the
Company [and its subsidiaries] or any increase in the ___________
of the Company [and its subsidiaries,](10) in each case as compared
with amounts shown in the latest balance sheet included in the
Registration Statement and the Prospectus, except in each case for
changes, decreases or increases that the Registration Statement
and the Prospectus disclose have occurred or may occur; or
( ) [for the period from ___________, 200__ to ___________,
200__ and](11) for the period from _________, 200__ to a specified
date not more than five days prior to
----------------------------
(5) The relevant periods include all interim unaudited condensed
consolidation financial statements included or incorporated by reference
in the Registration Statement and the Prospectus.
(6) Include if the 10-Q Financials are incorporated by reference in the
Registration Statement and the Prospectus.
(7) Include if unaudited financial statements, not just selected unaudited
data, are included in the Registration Statement and the Prospectus.
(8) Include, and insert the date of most recent balance sheet of the
Company, if those statements are more recent than the unaudited
financial statements included in the Registration Statement and the
Prospectus.
(9) According to Example A of SAS No. 72, the specified date should be five
calendar days prior to the date of the applicable Terms Agreement.
However, in unusual circumstances, five business days may be used.
(10) The blanks should be filled in with significant balance sheet items,
selected by the banker and tailored to the issuer's industry in general
and operations in particular. While the ultimate decision of which items
should be included rests with the banker, comfort is routinely requested
for certain balance sheet items, including long-term debt, stockholders'
equity, capital stock and net current assets.
(11) Include, and insert dates to describe the period from the date of the
most recent financial statements in the Registration Statement and the
Prospectus to the date of the most recent unaudited financial statements
of the Company, if those dates are different. Regardless of whether this
language is inserted or not, the period including five days prior to the
date of the applicable Terms Agreement should run from the date of the
last
Continued..
39
the date of the applicable Terms Agreement, there was any decrease
in __________, ___________ or ___________,(12) in each case as
compared with the comparable period in the preceding year, except
in each case for any decreases that the Registration Statement and
the Prospectus discloses have occurred or may occur;
(iii) based upon the procedures set forth in clause (ii) above and
a reading of the [Selected Financial Data] included in the Registration
Statement and the Prospectus [and a reading of the financial statements
from which such data were derived,](13) nothing came to our attention that
caused us to believe that the [Selected Financial Data] included in the
Registration Statement and the Prospectus do not comply as to form in
all material respects with the disclosure requirements of Item 301 of
Regulation S-K of the 1933 Act [, that the amounts included in the
[Selected Financial Data] are not in agreement with the corresponding
amounts in the audited [consolidated] financial statements for the
respective periods or that the financial statements not included in the
Registration Statement and the Prospectus from which certain of such
data were derived are not in conformity with generally accepted
accounting principles];(14)
(iv) we have compared the information in the Registration
Statement and the Prospectus under selected captions with the disclosure
requirements of Regulation S-K of the 1933 Act and on the basis of
limited procedures specified herein. Nothing came to our attention that
caused us to believe that this information does not comply as to form in
all material respects with the disclosure requirements of Items 302, 402
and 503(d), respectively, of Regulation S-K;
[(v) based upon the procedures set forth in clause (ii) above, a
reading of the unaudited financial statements of the Company for [the
most recent period] that have not been included in the Registration
Statement and the Prospectus and a review of such financial statements
in accordance with SAS 71, nothing came to our attention that caused us
to believe that the unaudited amounts for __________________ for the
[most recent period] do not agree with the amounts set forth in the
unaudited consolidated financial statements for those periods or
-------------------------------
financial statement included in the Registration Statement and the
Prospectus, not from the later one that is not included in the
Registration Statement and the Prospectus.
(12) The blanks should be filled in with significant income statements items,
selected by the banker and tailored to the issuer's industry in general
and operations in particular. While the ultimate decision of which items
should be included rests with the banker, comfort is routinely requested
for certain income statement items, including net sales, total and per
share amounts of income before extraordinary items and of net income.
(13) Include only if there are selected financial data that have been derived
from financial statements not included in the Registration Statement and
the Prospectus.
(14) In unusual circumstances, the accountants may report on "Selected
Financial Data" as described in SAS No. 42, Reporting on Condensed
Financial Statements and Selected Financial Data, and include in their
report in the Registration Statement and the Prospectus the paragraph
contemplated by SAS No. 42.9. This situation may arise only if the
Selected Financial Data do not include interim period data and the
five-year selected data are derived entirely from financial statements
audited by the auditors whose report is included in the Registration
Statement and the Prospectus. If the guidelines set forth in SAS No. 42
are followed and the accountant's report as included in the Registration
Statement and the Prospectus includes the additional language prescribed
by SAS No. 42.9, the bracketed language may be eliminated.
40
that such unaudited amounts were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
[consolidated] financial statements;](15)
[(vi) we are unable to and do not express any opinion on the [Pro
Forma Combining Statement of Operations] (the "Pro Forma Statement")
included in the Registration Statement and the Prospectus or on the pro
forma adjustments applied to the historical amounts included in the Pro
Forma Statement; however, for purposes of this letter we have:
(A) read the Pro Forma Statement;
(B) performed [an audit] [a review in accordance with SAS
71] of the financial statements to which the pro forma adjustments
were applied;
(C) made inquiries of certain officials of the Company who
have responsibility for financial and accounting matters about the
basis for their determination of the pro forma adjustments and
whether the Pro Forma Statement complies as to form in all
material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X; and proved the arithmetic accuracy
of the application of the pro forma adjustments to the historical
amounts in the Pro Forma Statement; and
on the basis of such procedures and such other inquiries and
procedures as specified herein, nothing came to our attention that
caused us to believe that the Pro Forma Statement included in the
Registration Statement does not comply as to form in all material
respects with the applicable requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
those statements;(16) and
[(vii) in addition to the procedures referred to in clause (ii)
above, we have performed other procedures, not constituting an audit,
with respect to certain amounts, percentages, numerical data and
financial information appearing in the Registration Statement and the
Prospectus, which are specified herein, and have compared certain of
such items with, and have found such items to be in agreement with, the
accounting and financial records of the Company;(17) and
---------------------------
(15) This language should be included when the Registration Statement and the
Prospectus include earnings or other data for a period after the date of
the latest financial statements in the Registration Statement and the
Prospectus, but the unaudited interim financial statements from which
the earnings or other data is derived is not included in the
Registration Statement and the Prospectus. The blank should be filled in
with a description of the financial statement item(s) included.
(16) If an audit or a review in accordance with SAS No. 71 has not been
performed by the accountants with respect to the underlying historical
financial statements, or if negative assurance on the Company's pro
forma financial statements is not otherwise available, the accountants
should be requested to perform certain other procedures with respect to
such pro forma financial statements. See Example O of SAS No. 72.
(17) This language is intended to encompass all other financial/numerical
information appearing in the Registration Statement and the Prospectus
for which comfort may be given, including (but not limited to) amounts
appearing in the Registration Statement and the Prospectus narrative and
other summary financial data appearing in tabular form (e.g., the
capitalization table).
41
[(viii) in addition, we [comfort on a financial forecast that is included in
the Registration Statement and the Prospectus.(18)]
------------------------------
(18) Accountants' services with respect to a financial forecast may be in one
of three forms: an examination of the forecast, a compilation of the
forecast or the application of agreed-upon procedures to the forecast.
If the accountant is to perform an examination of the forecast included
in the Registration Statement and the Prospectus, delivery of the
related report should be treated separately in Section 5(f) as follows
(remember to change subsequent letters accordingly):
(f) At the time that the applicable Terms Agreement is executed by the
Company, you shall have received from _________________ a report, dated
such date, in form and substance satisfactory to you, together with
signed or reproduced copies of such report for each of the other
Underwriters, stating that, in their opinion, the forecasted financial
statements for the [relevant period or periods] included in the
Registration Statement and the Prospectus are presented in conformity
with guidelines for presentation of a forecast established by the AICPA,
and that the underlying assumptions provide a reasonable basis for
management's forecast.
If the accountant is to perform a compilation of the forecasted
financial statements included in the Registration Statement and the
Prospectus, delivery of the related report should be treated separately
in Section 5(e) as follows:
(f) At the time that the applicable Terms Agreement is executed by the
Company, you shall have received from _________________ a report, dated
such date, in form and substance satisfactory to you, together with
signed or reproduced copies of such report of each of the other
Underwriters, stating that they have compiled the forecasted financial
statements for the [relevant period or periods] included in the
Registration Statement and the Prospectus in accordance with the
guidelines established by the AICPA.
Finally, if the accountant is to perform agreed-upon procedures on a
forecast included in the Registration Statement and the Prospectus, SAS
No. 72 requires that the accountant first prepare a compilation report
with respect to the forecast and attach that report to the comfort
letter. The accountant may then report on specific procedures performed
and findings obtained.
42