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EXHIBIT 1.01
EXCEL REALTY TRUST, INC.
UNDERWRITING AGREEMENT
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TABLE OF CONTENTS
UNDERWRITING AGREEMENT.................................... 1
SECTION 1. Representations and Warranties...... 4
(a) Representations and Warranties by the
Company................................ 4
(1) Compliance with Registration
Requirements........................ 4
(2) Incorporated Documents................ 5
(3) Independent Accountants............... 5
(4) Financial Statements.................. 5
(5) Pro Forma Financial Statements........ 6
(6) No Material Adverse Change in
Business............................ 6
(7) Good Standing of the Company.......... 7
(8) Good Standing of Subsidiaries......... 7
(9) Agreements............................ 7
(10) Capitalization....................... 8
(11) Authorization of this Underwriting
Agreement and Terms Agreement by
the Company........................ 8
(12) Authorization of Underwritten
Securities......................... 8
(13) Authorization of Warrants............ 8
(14) Authorization of Underlying
Securities Issuable Upon
Conversion......................... 9
(15) Authorization of Warrant and
Deposit Agreements................. 9
(16) Depositary Receipts.................. 9
(17) Authorization of Senior Debt
Securities and/or Subordinated
Debt Securities.................... 9
(18) Authorization of the Indenture....... 10
(19) Absence of Defaults and Conflicts.... 10
(20) REIT Qualification................... 11
(21) Absence of Proceedings............... 11
(22) Accuracy of Exhibits................. 11
(23) Absence of Further Requirements...... 11
(24) Possession of Intellectual Property.. 12
(25) Possession of Licenses and Permits... 12
(26) Registration Rights Agreements....... 12
(27) Title to Property.................... 12
(28) Internal Controls.................... 13
(29) Title Insurance...................... 13
(30) Investment Company Act............... 14
(31) Environmental Laws................... 14
(b) Officers' Certificates................... 14
SECTION 2. Sale and Delivery to Underwriters;
Closing........................... 14
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(a) Underwritten Securities.................. 14
(b) Option Underwritten Securities........... 14
(c) Payment.................................. 15
(d) Denominations; Registration.............. 16
SECTION 3. Covenants of the Company............ 16
SECTION 4. Payment of Expenses................. 19
(a) Expenses................................. 19
(b) Termination of Agreement................. 20
SECTION 5. Conditions of Underwriters'
Obligations....................... 20
(a) Effectiveness of Registration Statement.. 20
(b) Opinion of Counsel for the Company....... 21
(c) Opinion of Special Maryland Counsel for
the Company............................ 21
(d) Opinion of General Counsel of the
Company................................ 21
(e) Opinion of Counsel for Underwriters...... 21
(g) Officers' Certificate.................... 22
(h) Accountant's Comfort Letter.............. 22
(i) Bring-down Comfort Letter................ 22
(j) Comfort Letter for Acquisitions.......... 23
(k) Ratings.................................. 23
(l) Approval of Listing....................... 23
(m) No Objection.............................. 23
(n) Lock-up Agreements........................ 23
(o) Over-Allotment Option.................... 24
(p) Additional Documents..................... 25
(q) Termination of Terms Agreement........... 25
SECTION 6. Indemnification..................... 25
(a) Indemnification of Underwriters.......... 25
(b) Indemnification of Company, Directors
and Officers........................... 27
(c) Actions against Parties; Notification.... 27
(d) Settlement without Consent if Failure
to Reimburse........................... 27
SECTION 7. Contribution........................ 28
SECTION 8. Representations, Warranties and
Agreements to Survive Delivery.... 29
SECTION 9. Termination......................... 29
(a) Underwriting Agreement................... 29
(b) Terms Agreement.......................... 29
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(c) Liabilities.............................. 30
SECTION 10. Default by One or More of the
Underwriters..................... 30
SECTION 11. Notices............................ 31
SECTION 12. Parties............................ 31
SECTION 13. GOVERNING LAW AND TIME............. 32
SECTION 14. Effect of Headings................. 32
SECTION 15. Counterparts....................... 32
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EXCEL REALTY TRUST, INC.
(a Maryland corporation)
Common Stock,
Preferred Stock, Depositary Shares, Warrants
and
Debt Securities
UNDERWRITING AGREEMENT
January 8, 1998
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Excel Realty Trust, Inc., a Maryland corporation (the "Company") proposes
to issue and sell up to $500,000,000 aggregate initial public offering price of
its shares of common stock, par value $.01 per share (the "Common Stock"), or
warrants to purchase a number of shares of Common Stock (the "Common Stock
Warrants"), or both, or shares of preferred stock, par value $.01 per share (the
"Preferred Stock"), or warrants to purchase a number of shares of Preferred
Stock (the "Preferred Stock Warrants"), or both, or interests in Preferred Stock
in the form of depositary shares (the "Depositary Shares") represented by
depositary receipts (the "Depositary Receipts"), or warrants to purchase a
number of Depositary Shares (the "Depositary Share Warrants"), or both, or
senior or subordinated debt securities (the "Debt Securities"), or warrants to
purchase an amount of Debt Securities (the "Debt Security Warrants"), or both,
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 Common Stock Warrants, Preferred Stock Warrants, Depositary Share
Warrants and Debt Security Warrants (collectively, the "Warrants") will be
issued pursuant to one or more Warrant Agreements (each a "Warrant Agreement")
between the Company and a warrant agent specified therein (the "Warrant Agent").
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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, an "Articles Supplementary") relating
to such series of Preferred Stock.
The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under an indenture, dated as of May
8, 1995, as supplemented as of April 4, 1997 and July 3, 1997 (the "Senior
Indenture"), between the Company and State Street Bank and Trust Company of
California, N.A., as trustee (the "Senior Trustee"), or as subordinated
indebtedness (the "Subordinated Debt Securities") under an indenture, dated as
of o (the "Subordinated Indenture", and collectively with the Senior Indenture,
the "Indentures", and each, an "Indenture"), between the Company and o, as
trustee (the "Subordinated Trustee", and collectively with the Senior Trustee,
the "Trustees", and each, a "Trustee"). Each series of Debt Securities may vary,
as applicable, as to title, aggregate principal amount, rank, interest rate or
formula and timing of payments thereof, stated maturity date, redemption and/or
repayment provisions, sinking fund requirements, conversion provisions (and
terms of the related Underlying Securities) and any other variable terms
established by or pursuant to the applicable Indenture.
As used herein, "Securities" shall mean the Common Stock, Common Stock
Warrants, Preferred Stock, Preferred Stock Warrants, Depositary Shares,
Depositary Share Warrants, Depositary Receipts, Senior Debt Securities,
Subordinated Debt Securities, or Debt Security Warrants, or any combination
thereof, initially issuable by the Company; "Warrant Securities" shall mean the
Common Stock, Preferred Stock, Depositary Shares or Debt Securities issuable
upon exercise of the Warrants; and "Underlying Securities" shall mean the Common
Stock, Preferred Stock, Senior Debt Securities or Subordinated Debt Securities
issuable upon conversion of the Preferred Stock, Senior Debt Securities or
Subordinated Debt Securities, as applicable.
Whenever the Company determines to make an offering of Securities through
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ("▇▇▇▇▇ ▇▇▇▇▇▇"), or through an underwriting syndicate managed
by ▇▇▇▇▇ ▇▇▇▇▇▇, 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, ▇▇▇▇▇ ▇▇▇▇▇▇ and such other underwriters, if any, selected
by ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Underwriters", which term shall include ▇▇▇▇▇ ▇▇▇▇▇▇,
whether acting as sole Underwriter or as a member of an underwriting syndicate,
as well as any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of Securities shall specify the number or
aggregate principal amount, as the case may be, of Securities to be initially
issued (the "Initial Underwritten Securities"), including the number of
Warrants, if any, whether the Initial Underwritten Securities shall be in the
form of Depositary Shares and the fractional amount of shares of
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Preferred Stock represented by each Depositary Share, the name of each
Underwriter participating in such offering (subject to substitution as provided
in Section 10 hereof) and the name of any Underwriter other than ▇▇▇▇▇ ▇▇▇▇▇▇
acting as co-manager in connection with such offering, the number or aggregate
principal amount, as the case may be, 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 or aggregate principal amount, as the
case may be, 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 ▇▇▇▇▇ ▇▇▇▇▇▇, acting
for itself and, if applicable, as representative of any other Underwriters. Each
offering of Underwritten Securities through ▇▇▇▇▇ ▇▇▇▇▇▇ as sole Underwriter or
through an underwriting syndicate managed by ▇▇▇▇▇ ▇▇▇▇▇▇ will be governed by
this Underwriting Agreement, as supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-24615) and amendment
no. 1 thereto 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 amendments thereto as may be
required prior to the execution of the applicable Terms Agreement. Such
registration statement (as so amended, if applicable) has been declared
effective by the Commission and each Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act"), and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act Regulations").
Such registration statement (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 and the final 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 also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior
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to the execution of the applicable Terms Agreement; provided, further, that if
the Company files a registration statement with the Commission pursuant to Rule
462(b) of the 1933 Act Regulations (the "Rule 462(b) Registration Statement"),
then, after such filing, all references to "Registration Statement" shall also
be deemed to include the Rule 462 Registration Statement; and provided, further,
that if the Company elects to rely upon Rule 434 of the 1933 Act Regulations,
then all references to "Prospectus" shall also 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 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
any copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("▇▇▇▇▇").
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 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 incorporated by reference in the
Registration Statement, Prospectus or preliminary prospectus, as the case may
be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to ▇▇▇▇▇ ▇▇▇▇▇▇, 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 Registration
Statement and the Prospectus, at the time the Registration Statement
became effective and at each time thereafter on which the Company filed an
Annual Report on Form 10-K with the
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Commission, complied, and as of each Representation Date will comply, in
all material respects with the requirements of the 1933 Act and the 1933
Act Regulations; the Registration Statement, at the time the Registration
Statement became effective and at each time thereafter on which the
Company filed an Annual Report on From 10-K with the Commission, did not,
and at each time thereafter on which any amendment to the Registration
Statement becomes effective or the Company files an Annual Report on Form
10-K with the Commission and as of each Representation Date, and at the
Closing Time (as defined herein), will not, contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
the Prospectus, as of the date hereof, does not, and as of each
Representation Date will not, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to the Company in
writing by any Underwriter through ▇▇▇▇▇ ▇▇▇▇▇▇ expressly for use in the
Registration Statement or Prospectus.
(2) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Prospectus (the "Incorporated
Documents"), 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 under the 1934 Act (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date or Closing Time (as defined herein) or during the
period specified in Section 3(f) hereof, did not and will not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(3) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations and there have been no disagreements with any accountants or
"reportable events" (as defined in Item 304 of Regulation S-K promulgated
by the Commission) required to be disclosed in the Prospectus or elsewhere
pursuant to such Item 304.
(4) Financial Statements. The historical financial statements of the
Company included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries, as at the dates indicated and
the results of operations for the periods specified; except as
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otherwise stated in the Registration Statement and the Prospectus, said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis and comply
with the applicable accounting requirements of the 1933 Act (including,
without limitation, Rule 3-14 of Regulation S-X promulgated by the
Commission), and all adjustments necessary for a fair presentation of the
results for such periods have been made; the supporting schedules included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly the information required to be stated therein;
and the selected financial data (both historical and pro forma) included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with the related financial statements
presented therein. The historical summaries of revenue and certain
operating expenses included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the revenue and
those operating expenses included in such summaries of the properties
related thereto for the periods specified in conformity with generally
accepted accounting principles.
(5) Pro Forma Financial Statements. The pro forma consolidated
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the pro forma
financial position of the Company and its consolidated subsidiaries as of
the dates indicated and the results of operations for the periods
specified; and such pro forma financial statements have been prepared in
accordance with generally accepted accounting principles applied on a
basis consistent with the audited financial statements of the Company
included or incorporated by reference in the Registration Statement and
the Prospectus, the assumptions on which such pro forma financial
statements have been prepared are reasonable and are set forth in the
notes thereto, and such pro forma financial statements have been prepared,
and the pro forma adjustments set forth therein have been applied, in
accordance with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations (including, without limitation, Regulation S-X
promulgated by the Commission), and such pro forma adjustments have been
properly applied to the historical amounts in the compilation of such
statements.
(6) 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, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its subsidiaries other than those in
the ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and (C) except
for regular monthly or quarterly dividends on the Company's Common Stock
or dividends declared, paid or made in accordance
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with the terms of any series of the Company's preferred stock, there has
been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(7) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Maryland, with 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 this Agreement and the Terms Agreement; the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification 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 to be in
good standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise; and the Articles Supplementary relating to the Preferred Stock
or Depositary Shares, if applicable, will be in full force and effect as
of each Representation Date.
(8) Good Standing of Subsidiaries. Each subsidiary (which term, as
used in this Agreement, includes corporations, limited and general
partnerships, joint ventures and other entities) of the Company has been
duly organized and is validly existing and in good standing under the laws
of the jurisdiction of its organization, has power and authority to own,
lease and operate its properties and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which such qualification 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 to be in
good standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise; except as otherwise stated in the Prospectus, all of the
issued and outstanding capital stock of or other ownership interests in
each such subsidiary have been duly authorized and validly issued, are
fully paid and non-assessable and are owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, except for security interests
granted in respect of indebtedness of the Company or any of its
subsidiaries and described in the Prospectus.
(9) Agreements. Each of the partnership and joint venture agreements
to which the Company or any of its subsidiaries is a party, and which
relates to real property described in the Prospectus, has been duly
authorized, executed and delivered by such applicable party and
constitutes the valid agreement thereof, enforceable in accordance with
its terms, except as limited by (a) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights or remedies of creditors or (b)
the effect of general principles of
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equity, whether enforcement is considered in a proceeding in equity or at
law, and the discretion of the court before which any proceeding therefor
may be brought; and the execution, delivery and performance of any of such
agreements by the Company or its subsidiaries, as applicable, did not, at
the time of execution and delivery, and does not constitute a breach of,
or default under, the charter or by-laws (or other organizational
documents) of such party or any material contract, lease or other
instrument to which such party is a party or by which its properties may
be bound or any law, administrative regulation or administrative or court
decree.
(10) Capitalization. The authorized, issued and outstanding capital
stock of the Company is in all material respects as set forth in the
Prospectus under "Capitalization" (except for subsequent issuances, if
any, pursuant to reservations, agreements, employee benefit plans,
dividend reinvestment plans, employee and director stock option plans, or
upon the exercise of options, warrants or convertible debt securities
referred to in the Prospectus); and such shares of capital stock have been
duly authorized and validly issued and are fully paid and non-assessable
and are not subject to preemptive or other similar rights.
(11) Authorization of this Underwriting Agreement and Terms Agreement
by the Company. The Company has full corporate, power and authority to
enter into this Agreement and the applicable Terms Agreement, and this
Agreement has been, and as of each Representation Date, the applicable
Terms Agreement, will have been, duly authorized, executed and delivered
by the Company.
(12) Authorization of Underwritten Securities. The Underwritten
Securities being sold pursuant to this Agreement and the applicable Terms
Agreement and, if applicable, the deposit of the shares of Preferred Stock
in accordance with the provisions of a Deposit Agreement (each, a "Deposit
Agreement"), among the Company, the financial institution specified
therein (the "Depositary") and the holders of the Depositary Receipts
issued thereunder, have, as of each Representation Date, been duly
authorized by the Company and such Underwritten Securities have been duly
authorized for issuance and sale pursuant to this Agreement and such Terms
Agreement and such Underwritten Securities, when issued and delivered by
the Company pursuant to this Agreement against payment of the
consideration set forth in such Terms Agreement, will be validly issued,
fully paid and non-assessable, and the issuance of such Underwritten
Securities will not be subject to preemptive or other similar rights; the
shares of Preferred Stock, if applicable, conform to the provisions of the
Articles Supplementary; and the Underwritten Securities and each
applicable Indenture and any Underlying Securities being sold pursuant to
the applicable Terms Agreement conform in all material respects to all
statements relating thereto contained in the Prospectus.
(13) Authorization of Warrants. If applicable, the Warrants have been
duly authorized and, when issued and delivered pursuant to this Agreement
and the
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applicable Terms Agreement and countersigned by the Warrant Agent as
provided in the Warrant Agreement, will have been duly executed,
countersigned, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by
the Warrant Agreement under which they are to be issued; and the issuance
of the Warrant Securities upon exercise of the Warrants will not be
subject to preemptive or other similar rights; and the Warrants conform in
all material respects to all statements relating thereto contained in the
Prospectus.
(14) Authorization of Underlying Securities Issuable Upon Conversion.
If applicable, the Underlying Securities issuable upon conversion of any
of the shares of Preferred Stock or the Depositary Shares, or the exercise
of the Warrant Securities, or the conversion of any Debt Securities, will
have been duly and validly authorized and reserved for issuance upon such
conversion or exercise of the Warrants, as the case may be, by all
necessary corporate action and such Underlying Securities, when issued
upon such conversion or exercise, will be duly authorized and validly
issued and will be fully paid and non-assessable, and the issuance of such
Underlying Securities upon such conversion or exercise will not be subject
to preemptive or other similar rights; the Underlying Securities issuable
upon conversion of any of the shares of Preferred Stock or the Depositary
Shares, or the exercise of the Warrant Securities, or the conversion of
any Debt Securities, conform in all material respects to all statements
relating thereto contained in the Prospectus.
(15) Authorization of Warrant and Deposit Agreements. The applicable
Warrant Agreement, if any, and the applicable Deposit Agreement, if any,
will have been duly authorized, executed and delivered by the Company
prior to the issuance of the related Underwritten Securities, and each
constitutes a valid and legally binding agreement of the Company
enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency or other similar laws relating to
or affecting creditors' rights generally and by general equity principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law); and the Warrant Agreement, if any, and the Deposit Agreement,
if any, each conforms in all material respects to all statements relating
thereto contained in the Prospectus.
(16) Depositary Receipts. If applicable, upon execution and delivery
of the Depositary Receipts pursuant to the terms of the Deposit Agreement,
the persons in whose names such Depositary Receipts are registered will be
entitled to the rights specified therein and in the Deposit Agreement,
except as enforcement of such rights may be limited by bankruptcy,
insolvency or other similar laws relating to or affecting creditors'
rights generally and by general equity principles (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(17) Authorization of Senior Debt Securities and/or Subordinated Debt
Securities. If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement
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include Senior Debt Securities and/or Subordinated Debt Securities, 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 Indenture and delivered against payment of
the consideration therefor specified in such Terms Agreement, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law), and except further as enforcement thereof may be limited by
requirements that a claim with respect to any Debt Securities payable in a
foreign or composite currency (or a foreign or composite currency judgment
in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States. Such Underwritten Securities will be in the
form contemplated by, and each registered holder thereof is entitled to
the benefits of, the applicable Indenture.
(18) Authorization of the Indenture. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Senior Debt
Securities and/or Subordinated Debt Securities or if Preferred Stock is
convertible into Debt Securities, each applicable Indenture has been, or
prior to the issuance of the Debt Securities thereunder will have been,
duly authorized, executed and delivered by the Company and, upon such
authorization, execution and delivery, will constitute a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(19) Absence of Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its charter or by-laws (or, in the
case of subsidiaries which are not corporations, other organizational
documents) or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject, except for any such
violation or default that would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its
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subsidiaries considered as one enterprise; and the execution, delivery and
performance of this Agreement, the applicable Terms Agreement, the
applicable Warrant Agreement, if any, or the applicable Deposit Agreement,
if any, and the consummation of the transactions contemplated herein and
therein and compliance by the Company with its obligations hereunder and
thereunder have been duly authorized by all necessary corporate action,
and will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries
pursuant to, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the charter or
by-laws of the Company or any applicable law, administrative regulation or
administrative or court decree.
(20) REIT Qualification. The Company has operated and intends to
continue to operate in such a manner as to qualify to be taxed as a "real
estate investment trust" under the Internal Revenue Code of 1986, as
amended (the "Code"), for the taxable year in which sales of the
Underwritten Securities are to occur.
(21) Absence of Proceedings. There is no action, suit or proceeding
before or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries which is
required to be disclosed in the Prospectus (other than as disclosed
therein), or which might result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, or which might materially and adversely affect the properties
or assets thereof or which might materially and adversely affect the
consummation of this Agreement, the applicable Terms Agreement, the
applicable Warrant Agreement, if any, or the applicable Deposit Agreement,
if any, or the transactions contemplated herein or therein; all pending
legal or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any property or assets of the Company
or any of its subsidiaries is subject which are not described in the
Prospectus, including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material; and there are no
contracts or documents of the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement by the 1933
Act or by the 1933 Act Regulations which have not been so filed.
(22) 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 filed as required.
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(23) Absence of Further Requirements. No authorization, approval,
permit or consent of any court or governmental authority or agency is
necessary in connection with the consummation by the Company of the
transactions contemplated by this Agreement, the applicable Terms
Agreement, any Warrant Agreement or any Deposit Agreement, except such as
may be required under the 1933 Act or the 1933 Act Regulations or state
securities or real estate syndication laws.
(24) Possession of Intellectual Property. The Company and its
subsidiaries own or possess any trademarks, service marks, trade names or
copyrights required in order to conduct their respective businesses as
described in the Prospectus, other than those the failure to possess or
own would not have a material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise.
(25) Possession of Licenses and Permits. The Company and its
subsidiaries possess such certificates, authorities or permits issued by
the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct their respective businesses as described in the
Prospectus, other than those the failure to possess or own would not have
a material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, and neither the Company nor any
of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise.
(26) Registration Rights Agreements. There are no persons with
registration or other similar rights to have any securities registered
pursuant to the Registration Statement.
(27) Title to Property. Except as otherwise disclosed in the
Prospectus and except as would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise: (a) the Company and its subsidiaries have good and marketable
title in fee simple to all real property and improvements described in the
Prospectus and, at the Closing Time, the Company and its subsidiaries will
have good and marketable title in fee simple to all real property and
improvements as described in the Prospectus; (b) all liens, charges,
encumbrances, claims or restrictions on or affecting the real property and
improvements owned by the Company or any of its subsidiaries which are
required to be disclosed in the Prospectus are disclosed therein; (c)
neither the Company nor any of its subsidiaries nor, to the knowledge of
the Company, any lessee of any portion of the real property or
improvements owned by the
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Company or any of its subsidiaries is in default under any of the leases
pursuant to which the Company or any of its subsidiaries leases such real
property or improvements, and the Company knows of no event which, but for
the passage of time or the giving of notice, or both, would constitute a
default under any of such leases, except such defaults that would not,
individually or in the aggregate, have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise; (d) no tenant under any of the leases pursuant to which the
Company or any of its subsidiaries leases any of its real property or
improvements has an option or right of first refusal to purchase the
premises demised under such lease, except that a tenant of the Galleria in
Scottsdale, Arizona holds a right of first refusal to purchase such
property; (e) all the real property and improvements owned by the Company
and its subsidiaries comply with all applicable codes and zoning laws and
regulations, except for such failures to comply that would not,
individually or in the aggregate, have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise; and (f) the Company has no knowledge of any pending or
threatened condemnation, zoning change or other proceeding or action that
would in any manner affect the size of, use of, improvements on,
construction on, or access to any of the real property or improvements
owned by the Company or any of its subsidiaries, except such proceedings
or actions that would not, individually or in the aggregate, have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(28) Internal Controls. The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (a)
transactions are executed in accordance with management's general or
specific authorizations; (b) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(c) access to assets is permitted only in accordance with management's
general or specific authorization; and (d) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Neither the
Company nor any of its employees or agents has made any payment of funds
of the Company or received or retained any funds in violation of any law,
rule or regulation which payment, receipt or retention of funds is of a
character required to be disclosed in the Prospectus.
(29) Title Insurance. The Company and its subsidiaries have title
insurance on each of their respective properties, in each case in an
amount at least equal to (a) the cost of acquisition of such property or
(b) the cost of construction of the improvements located on such property
(measured at the time of such construction), except, in each case, where
the failure to maintain such title insurance would not have a material
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adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(30) Investment Company Act. Neither the Company nor any of its
subsidiaries is required to be registered under the Investment Company Act
of 1940, as amended (the "1940 Act").
(31) Environmental Laws. Except as otherwise disclosed in the
Prospectus, the Company has no knowledge of: (a) the unlawful presence of
any hazardous substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") on any of the properties
owned by the Company or any of its subsidiaries, or (b) any unlawful
spills, releases, discharges or disposal of Hazardous Materials that have
occurred or are presently occurring on or from any such properties as a
result of any construction on or operation and use of such properties,
which presence or occurrence would have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise; and in connection with the construction on or operation and
use of the properties owned by the Company or its subsidiaries, the
Company has no knowledge of any material failure to comply with all
applicable local, state and federal environmental laws, regulations,
ordinances and administrative and judicial orders relating to the
generation, recycling, reuse, sale, storage, handling, transport and
disposal of any Hazardous Materials that could have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(b) Officers' Certificates. Any certificate signed by any officer of the
Company in such capacity 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 the Company to each Underwriter
participating in such offering 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.
(b) Option Underwritten Securities. In addition, subject to the terms and
conditions herein set forth, 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 or
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aggregate principal amount, as the case may be, 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 or such lesser number
of days as may be specified in the applicable Terms Agreement after the
Representation Date relating to the Initial Underwritten Securities, 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 ▇▇▇▇▇ ▇▇▇▇▇▇
to the Company setting forth the number or aggregate principal amount, as the
case may be, 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
▇▇▇▇▇ ▇▇▇▇▇▇, 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 ▇▇▇▇▇ ▇▇▇▇▇▇ 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 or aggregate principal amount, as the case may be, of Option
Underwritten Securities then being purchased which the number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities each
such Underwriter has severally agreed to purchase as set forth in the applicable
Terms Agreement bears to the total number or aggregate principal amount, as the
case may be, of Initial Underwritten Securities (except as otherwise provided in
the applicable Terms Agreement), subject to such adjustments as ▇▇▇▇▇ ▇▇▇▇▇▇ in
its discretion shall make to eliminate any sales or purchases of a fractional
number or aggregate principal amount, as the case may be, of Option Underwritten
Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of ▇▇▇▇▇ & ▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or at such other place as
shall be agreed upon by ▇▇▇▇▇ ▇▇▇▇▇▇ and the Company, at 9:00 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 ▇▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇▇▇ & Wood LLP or at such other place as shall be agreed upon by
▇▇▇▇▇ ▇▇▇▇▇▇ and the Company, on the relevant Date of Delivery as specified in
the notice from ▇▇▇▇▇ ▇▇▇▇▇▇ to the Company.
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Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
▇▇▇▇▇ ▇▇▇▇▇▇ for the respective accounts of the Underwriters of the Underwritten
Securities to be purchased by them. It is understood that each Underwriter has
authorized ▇▇▇▇▇ ▇▇▇▇▇▇, for its 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. ▇▇▇▇▇ ▇▇▇▇▇▇, 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 funds have not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, shall be in such
denominations and registered in such names as ▇▇▇▇▇ ▇▇▇▇▇▇ 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 Underwritten Securities or
certificates for the Underwritten Securities, as applicable, will be made
available for examination and packaging by ▇▇▇▇▇ ▇▇▇▇▇▇ 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. The Company covenants with ▇▇▇▇▇
▇▇▇▇▇▇ and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) Immediately following the execution of the applicable Terms Agreement,
the Company will prepare a Prospectus Supplement setting forth the number of
Underwritten Securities covered thereby and their terms not otherwise specified
in the Prospectus pursuant to which the Underwritten Securities are being
issued, the names of the Underwriters participating in the offering and the
number of Underwritten Securities which each severally has agreed to purchase,
the names of the Underwriters acting as co-managers in connection with the
offering, the price at which the Underwritten Securities are to be purchased by
the Underwriters from the Company, the initial public offering price, if any,
the selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as ▇▇▇▇▇ ▇▇▇▇▇▇ and the Company deem
appropriate in connection with the offering of the Underwritten Securities; and
the Company will, by the close of business in New York on the business day
immediately succeeding the date of the applicable Terms Agreement, transmit
copies of the Prospectus Supplement to the Commission for filing pursuant to
Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters
named therein as many copies of the Prospectus (including such Prospectus
Supplement) as ▇▇▇▇▇ ▇▇▇▇▇▇ shall reasonably request. If the Company elects to
rely on Rule 434 under the 1933 Act Regulations, the Company will prepare an
abbreviated term sheet that complies with the requirements of Rule 434 under the
1933 Act Regulations and will provide the Underwriters with copies of the form
of Rule 434 Prospectus, in such number as the Underwriters may reasonably
request, and file or transmit for filing with the Commission the
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form of Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in
accordance with Rule 424(b) of the 1933 Act Regulations by the close of business
in New York on the business day immediately succeeding the date of the
applicable Terms Agreement.
(b) The Company will notify ▇▇▇▇▇ ▇▇▇▇▇▇ immediately, and confirm such
notice in writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any Prospectus
Supplement or other supplement or amendment to the Prospectus or any document to
be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the
Commission, (iv) 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 (v) 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 make every reasonable effort to
prevent the issuance of any such stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(c) 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 ▇▇▇▇▇ ▇▇▇▇▇▇ notice of its intention to file
or prepare any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or
otherwise, (including any revised Prospectus which the Company proposes for use
by the Underwriters in connection with an offering of Underwritten Securities
which differs from the Prospectus on file at the Commission at the time the
Registration Statement first becomes effective, whether or not such revised
Prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of
the 1933 Act Regulations) and will furnish ▇▇▇▇▇ ▇▇▇▇▇▇ with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or preparation, as the case may be, and will not file or prepare any such
amendment or supplement or other documents in a form to which ▇▇▇▇▇ ▇▇▇▇▇▇ or
counsel for the Underwriters shall reasonably object.
(d) The Company will deliver to each Underwriter as many signed and
conformed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) as such Underwriter reasonably requests.
(e) The Company will furnish to each Underwriter, from time to time during
the period when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act in connection with sales of the Underwritten Securities, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request for the purposes
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contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934
Act Regulations.
(f) If 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 any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or counsel for the
Company, to amend or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a purchaser,
or if it shall be necessary, in the opinion of either such counsel, at any such
time to amend or supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, then the Company will promptly prepare and file with the Commission
such amendment or supplement, whether by filing documents pursuant to the 1933
Act, the 1934 Act or otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement and Prospectus
comply with such requirements, and the Company will furnish to the Underwriters
a reasonable number of copies of such amendment or supplement.
(g) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Underwritten Securities for offering and sale under the applicable
securities laws and real estate syndication laws of such states and other
jurisdictions of the United States as ▇▇▇▇▇ ▇▇▇▇▇▇ may designate; provided,
however, that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction where it is not so qualified. In each
jurisdiction in which the Underwritten Securities have been so qualified, the
Company will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for so long as may be
required for the distribution of the Underwritten Securities; provided, however,
that the Company shall not be obligated to qualify as a foreign corporation in
any jurisdiction where it is not so qualified.
(h) With respect to each sale of Underwritten Securities, the Company will
make generally available to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a twelve month period beginning not later than the first
day of the Company's fiscal quarter next following the "effective date" (as
defined in such Rule 158) of the Registration Statement.
(i) The Company will use its best efforts to meet the requirements to
qualify as a "real estate investment trust" under the Code for the taxable year
in which sales of the Underwritten Securities are to occur.
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(j) 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 the
caption "Use of Proceeds."
(k) The Company, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, will file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time
periods prescribed by the 1934 Act and the 1934 Act Regulations.
(l) The Company will not, during a period of 90 days from the date of the
applicable Terms Agreement, with respect to the Underwritten Securities covered
thereby, without ▇▇▇▇▇ Barney's prior written consent, directly or indirectly,
sell, offer to sell, grant any option for the sale of, or otherwise dispose of,
any Securities of the same class or series or ranking on a parity with such
Underwritten Securities (other than the Underwritten Securities which are to be
sold pursuant to such Terms Agreement) or, if such Terms Agreement relates to
Underwritten Securities that are convertible into Common Stock, any Common Stock
or any security convertible into Common Stock (except for Common Stock issued
pursuant to reservations, agreements, employee benefit plans, dividend
reinvestment plans, employee and director stock option plans or as partial or
full payment for properties acquired or to be acquired by the Company), except
as may be otherwise provided in the applicable Terms Agreement.
(m) If the shares of Preferred Stock or Depositary Shares are convertible
into shares of Common Stock or if Warrants are issued, 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 or Preferred Stock, as the case may
be, for the purpose of enabling the Company to satisfy any obligations to issue
such shares upon conversion of the shares of Preferred Stock or the Depositary
Shares, as the case may be, or upon exercise of the Warrants.
(n) If applicable, the Company will use its best efforts to list the
Initial Underwritten Securities or the Underlying Securities on the New York
Stock Exchange or such other national exchange on which the Company's Initial
Underwritten Securities are then listed.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Underwriting
Agreement or the 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 preparation, printing and delivery to the Underwriters of this Underwriting
Agreement, any Terms Agreement, any Agreement among Underwriters, the Indentures
and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Underwritten Securities or any
related Underlying Securities, (iii) the preparation, issuance and delivery of
the Underwritten Securities and any
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related Underlying Securities, any certificates for the Underwritten Securities
or such Underlying Securities, to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors or agents
(including transfer agents and registrars), as well as the fees and
disbursements of the Trustees and their respective counsel, (v) the
qualification of the Underwritten Securities, the Warrant Securities and any
related Underlying Securities under state securities laws and real estate
syndication laws in accordance with the provisions of Section 3(g) 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, and any amendment thereto, (vi)
the printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Term Sheet, and the Prospectus and any amendments or supplements
thereto, (vii) the printing and delivery to the Underwriters of copies of the
applicable Deposit Agreement, if any, and the applicable Warrant Agreement, if
any, (viii) the fees charged by nationally recognized statistical rating
organizations for the rating of the Underwritten Securities and any related
Underlying Securities, if applicable, (ix) the fees and expenses incurred with
respect to the listing of the Warrant Securities, the Underwritten Securities
and any related Underlying Securities, if applicable, and (x) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review, if any, by the National Association
of Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Underwritten Securities and any related Underlying Securities.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by ▇▇▇▇▇ ▇▇▇▇▇▇ 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 contained in Section 1 hereof or in certificates
of any officer of the Company delivered pursuant to the provisions hereof, to
the performance by the Company of its covenants and other obligations hereunder,
and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act and no proceedings for that purpose shall have been
instituted or be pending or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing information relating to the
description of the Underwritten 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),
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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 the Company. At Closing Time, ▇▇▇▇▇ ▇▇▇▇▇▇
shall have received the favorable opinion, dated as of Closing Time, of
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, 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, to
the effect set forth in Exhibit B hereto.
(c) Opinion of Special Maryland Counsel for the Company. At Closing
Time, ▇▇▇▇▇ ▇▇▇▇▇▇ shall have received the favorable opinion, dated as of
Closing Time, of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, special Maryland
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, to the effect set forth in Exhibit C
hereto.
(d) Opinion of General Counsel of the Company. At Closing Time, ▇▇▇▇▇
▇▇▇▇▇▇ shall have received the favorable opinion, dated as of Closing
Time, of S. ▇▇▇▇ ▇▇▇▇▇▇▇, Esq., general counsel of 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, to the effect set forth in Exhibit D hereto.
(e) Opinion of Counsel for Underwriters. The favorable opinion, dated
as of Closing Time, of ▇▇▇▇▇ & Wood LLP, counsel for the Underwriters with
respect to the matters requested by the Underwriters.
(f) In giving their opinions required by subsections (b), (d) and
(e), respectively, of this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, S. ▇▇▇▇ ▇▇▇▇▇▇▇,
Esq. and ▇▇▇▇▇ & Wood LLP shall each additionally state that nothing has
come to their attention that would lead them to believe that the
Registration Statement or any amendment thereto, (except for financial
statements, supporting schedules and other financial data, as to which
counsel need make no statement) at the time it became effective (or, if an
amendment to the Registration Statement or an Annual Report on Form 10-K
has been filed by the Company with the Commission, subsequent to the
effectiveness of the Registration Statement, then at the time such
amendment becomes effective or at the time of the most recent filing of
such Annual Report, as the case may be) or at the Representation Date,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto, (except for financial statements,
supporting schedules and other financial data, as to
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which such counsel need make no statement) at the Representation Date or
at 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 giving their opinions required by
subsections (b), (c), (d) and (e), respectively, of this Section, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, S. ▇▇▇▇ ▇▇▇▇▇▇▇, Esq. and
▇▇▇▇▇ & Wood LLP may rely, (1) as to all matters of fact, upon
certificates and written statements of officers and employees of and
accountants for the Company, (2) with respect to certain other matters,
upon certificates of appropriate government officials in such
jurisdiction, and (3) ▇▇▇▇▇ & ▇▇▇▇ LLP may additionally rely, as to
matters involving the laws of the State of Maryland, upon the opinion of
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll (or other counsel reasonably
satisfactory to counsel for the Underwriters) in form and substance
satisfactory to counsel for the Underwriters.
(g) 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 the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, from that set forth in the Prospectus; no
proceedings shall be pending or, to the knowledge of the Company,
threatened against the Company or any of its subsidiaries before or by any
Federal, state or other commission, board or administrative agency wherein
an unfavorable decision, ruling or finding would materially and adversely
affect the business, property, financial condition or income of the
Company and its subsidiaries considered as one enterprise, other than as
set forth in the Prospectus or incorporated therein by reference; and
▇▇▇▇▇ ▇▇▇▇▇▇ shall have received a certificate of the President and Chief
Executive Officer and of the Chief Financial Officer of the Company in
such capacity, dated as of such Closing Time, to the effect that (i) there
has been no such material adverse change, (ii) the representations and
warranties in Section 1 are true and correct with the same force and
effect as though such Closing Time were a Representation Date, (iii) the
Company 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
instituted, are pending or, to the best of such officers' knowledge, are
threatened by the Commission. As used in this Section 5(g), the term
"Prospectus" means the Prospectus in the form first used to confirm sales
of the Underwritten Securities.
(h) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, ▇▇▇▇▇ ▇▇▇▇▇▇ shall have received from Coopers
& ▇▇▇▇▇▇▇ L.L.P. a letter dated such date, in form and substance
satisfactory to ▇▇▇▇▇ ▇▇▇▇▇▇, together
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with signed or reproduced copies of such letter for each of the other
Underwriters, containing statements and information as set forth in
Exhibit E.
(i) Bring-down Comfort Letter. At Closing Time, ▇▇▇▇▇ ▇▇▇▇▇▇ shall
have received from Coopers & ▇▇▇▇▇▇▇ L.L.P. a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (h) 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.
(j) Comfort Letter for Acquisitions. At the time of the execution of
the applicable Terms Agreement, ▇▇▇▇▇ ▇▇▇▇▇▇ shall have received a letter
dated such date from such independent accountants that have prepared
historical financial statements included in or incorporated by reference
into the Registration Statement and Prospectus which financial statements
relate to properties or assets acquired or to be acquired by the Company,
in form and substance reasonably satisfactory to the Underwriters, to the
effect that (i) they are independent accountants with respect to the
Company and such properties or assets within the meaning of the 1933 Act
and the 1933 Act Regulations; and (ii) it is their opinion that the
historical financial statements for such properties or assets that have
been audited by them and covered by their opinions included or
incorporated by reference into the Registration Statement and the
Prospectus comply in form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations.
(k) Ratings. At Closing Time and at any relevant Date of Delivery,
unless the Underwritten Securities being sold pursuant to the applicable
Terms Agreement relate solely to Common Stock, 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 ▇▇▇▇▇
▇▇▇▇▇▇ a letter, dated as of such date, from each such rating
organization, or other evidence reasonably satisfactory to ▇▇▇▇▇ ▇▇▇▇▇▇,
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, or withdrawal of, 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 its rating of the
Underwritten Securities or any of the Company's other securities.
(l) Approval of Listing. At Closing Time, the Underwritten
Securities shall have been approved for listing, subject only to official
notice of issuance, if and as specified in the applicable Terms Agreement.
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(m) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD
shall not have raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(n) Lock-up Agreements. On the date of the applicable Terms
Agreement, ▇▇▇▇▇ ▇▇▇▇▇▇ 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 listed
therein.
(o) 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 contained herein and the statements in any
certificates furnished by the Company or any of its subsidiaries hereunder
shall be true and correct as of each Date of Delivery, and, at the
relevant Date of Delivery, ▇▇▇▇▇ ▇▇▇▇▇▇ shall have received:
(1) A certificate, dated such Date of Delivery, of the
President and Chief Executive Officer or a Vice President of the
Company and of the chief financial or chief accounting officer of
the Company on behalf of the Company confirming that the certificate
delivered at the Closing Time pursuant to Section 5(g) hereof
remains true and correct as of such Date of Delivery.
(2) The favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
Company, in form and substance reasonably satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Underwritten Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by
Sections 5(b) and 5(f) hereof.
(3) The favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Ingersoll, special Maryland counsel for the Company, in form and
substance reasonably satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Underwritten
Securities and otherwise to the same extent as the opinion required
by Sections 5(c) and 5(f) hereof.
(4) The favorable opinion of S. ▇▇▇▇ ▇▇▇▇▇▇▇, Esq., general
counsel of the Company, in form and substance reasonably
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Underwritten Securities and
otherwise to the same extent as the opinion required by Sections
5(d) and 5(f) hereof.
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(5) The favorable opinion of ▇▇▇▇▇ & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Sections
5(e) and 5(f) hereof.
(6) A letter from Coopers & ▇▇▇▇▇▇▇ L.L.P., in form and
substance satisfactory to ▇▇▇▇▇ ▇▇▇▇▇▇ and dated such Date of
Delivery, substantially the same in scope and substance as the
letter furnished to ▇▇▇▇▇ ▇▇▇▇▇▇ pursuant to Section 5(h) hereof,
except that the "specified date" in the letter furnished pursuant to
this Section 5(o)(6) shall be a date not more than three days prior
to such Date of Delivery.
(7) Since the time of execution of such Terms Agreement, there
shall not have occurred a downgrading in, or withdrawal of, 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 its rating of the Underwritten
Securities or any of the Company's other securities.
(p) 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; and all proceedings taken by the Company in
connection with the issuance and sale of the Underwritten Securities as
herein contemplated shall be satisfactory in form and substance to ▇▇▇▇▇
▇▇▇▇▇▇ and counsel for the Underwriters.
(q) 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
▇▇▇▇▇ ▇▇▇▇▇▇ 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, 7 and 8
shall survive any such termination and remain in full force and effect.
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SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act 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 of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information deemed to be a part thereof, 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 included 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 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 any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the indemnifying party; and
(3) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by ▇▇▇▇▇ ▇▇▇▇▇▇), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (1) or (2)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through ▇▇▇▇▇ ▇▇▇▇▇▇ expressly for use in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto); provided
further, that with respect to any preliminary prospectus, such indemnity shall
not inure to the benefit of any
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Underwriter (or the benefit of any person controlling such Underwriter) if the
person asserting any such losses, liabilities, claims, damages or expense
purchased the Underwritten Securities which are the subject thereof from such
Underwriter and if such person was not sent or given a copy of the Prospectus at
or prior to confirmation of the sale of such Underwritten Securities to such
person in any case where such sending or giving is required by the 1933 Act and
the untrue statement or omission of a material fact contained in such
preliminary prospectus was corrected in the Prospectus and the Prospectus was
delivered to such Underwriter a reasonable amount of time prior to the date of
delivery of such confirmation.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, 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), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through ▇▇▇▇▇ ▇▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇ ▇▇▇▇▇▇, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7
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hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification 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, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet bear to the
aggregate initial public offering price of such Underwritten Securities as set
forth on such cover.
The relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the
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parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company 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 aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
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 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 any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number or aggregate principal amount, as the case may be, of
Initial Underwritten Securities set forth opposite their respective names in the
applicable Terms Agreement, and not joint.
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 any of its subsidiaries submitted pursuant hereto or thereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of and payment for
the Underwritten Securities.
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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 ▇▇▇▇▇ ▇▇▇▇▇▇ upon the giving of 30 days' prior written notice of
such termination to the other party hereto.
(b) Terms Agreement. ▇▇▇▇▇ ▇▇▇▇▇▇ 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 and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or, if the Underwritten Securities or any related Underlying
Securities include Debt Securities denominated or payable in, or indexed to, one
or more foreign or composite currencies, in the international financial markets,
or any outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of ▇▇▇▇▇ ▇▇▇▇▇▇,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (iii) trading in any securities of
the Company has been suspended or materially limited by the Commission or the
New York Stock Exchange, or if trading generally on the New York Stock Exchange
or the American Stock Exchange or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by either of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) a banking moratorium has been declared by either
Federal or New York authorities or, if the Underwritten Securities or any
related Underlying Securities include Debt Securities denominated or payable in,
or indexed to, one or more foreign or composite currencies, by the relevant
authorities in the related foreign country or countries.
(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, in the event of a termination pursuant to
Section 9(b), Sections 1, 6, 7 and 8 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 ▇▇▇▇▇ ▇▇▇▇▇▇ shall have the
30
35
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, ▇▇▇▇▇ ▇▇▇▇▇▇ shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities does not exceed 10% of the number or aggregate
principal amount, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations under such Terms Agreement bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on
such date 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.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
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 ▇▇▇▇▇ ▇▇▇▇▇▇ 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.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to ▇▇▇▇▇ ▇▇▇▇▇▇ at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of Manager, Investment Banking Division; and
notices to the Company shall be directed to it at 16955 Via
31
▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
Executive Vice President and Secretary.
SECTION 12. Parties. This Underwriting Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Company,
▇▇▇▇▇ ▇▇▇▇▇▇ 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 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 CONTRACTS MADE AND TO BE
PERFORMED WITHIN THE STATE OF NEW YORK. 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 Agreement and the applicable Terms
Agreement may be executed in one or more counterparts, and if executed in more
than one counterpart, the executed counterparts shall constitute a single
instrument.
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37
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Underwriting Agreement, along with all counterparts, will become a binding
agreement between ▇▇▇▇▇ ▇▇▇▇▇▇ and the Company in accordance with its terms.
Very truly yours,
EXCEL REALTY TRUST, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
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38
Exhibit A
EXCEL REALTY TRUST, INC.
(a Maryland Corporation)
TERMS AGREEMENT
To: Excel Realty Trust, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We understand that Excel Realty Trust, Inc., a Maryland corporation (the
"Company"), proposes to issue and sell [ shares of its common stock, par value
$.01 per share (the "Common Stock")] [ shares of its preferred stock, par value
$.01 per share (the "Preferred Stock")] [in the form of depositary shares (the
"Depositary Shares") each representing of a share of Preferred Stock] [$
aggregate principal amount of its [senior] [subordinated] debt securities (the
"Debt Securities")] [ warrants (the "Common Stock Warrants") to purchase common
stock, par value $.1 per share] [ warrants (the "Preferred Stock Warrants") to
purchase preferred stock, par value $.01 per share] [ warrants (the "Debt
Security Warrants") to purchase $ aggregate principal amount of [senior]
[subordinated] debt securities] ([such securities also being hereinafter
referred to as] the "[Initial] Underwritten Securities"). Subject to the terms
and conditions set forth or incorporated by reference herein, we [the
underwriters named below (the "Underwriters")] offer to purchase [, severally
and not jointly,] the [[number] [principal] [amount] of] Underwritten Securities
[opposite their names set forth below] at the purchase price set forth below [,
and a proportionate share of Option Underwritten Securities set forth below, to
the extent any are purchased].
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[Number]
[Principal Amount]
Underwriter of [Initial] Underwritten Securities
----------------
Total [$]
===========
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:
Listing requirements:
Black-out provisions:
Lock-up provisions:
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40
Initial public offering price per share: $___ plus accumulated dividends, if
any, from _____
Purchase price per share: $___ plus accumulated dividends, if any, from _____
Other terms and conditions:
Closing date and location:
[Depositary Shares]
Title:
Fractional amount of Preferred Stock represented by each Depositary Share:
Ratings:
Rank:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $___ plus accumulated dividends, if
any, from _____
Purchase price per share: $___ plus accumulated dividends, if any, from _____
Other terms and conditions:
Closing date and location:
[Debt Securities]
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
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41
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share: ___% of
the principal amount, plus accrued interest [amortized original issue
discount], if any, from __________________.
Purchase price per share: ___% of principal amount, plus accrued interest
[amortized original issue discount], if any, from _________________.
Form:
Other terms and conditions:
Closing date and location:
[Common Stock] [Preferred Stock] [Debt Security] Warrants
Title:
Type:
Number:
Warrant Agent:
Issuable jointly with [Common Stock] [Preferred Stock] [Debt Securities]: [Yes]
[No] Number of [Common Stock] [Preferred Stock] [Debt Security] Warrants
issued with each [share of Common Stock] [share of Preferred Stock] [$
principal amount of Debt Securities]:
Date(sfrom which or period(s) during which [Common Stock] [Preferred Stock]
[Debt Security] Warrants are exercisable:
Date(s) on which [Common Stock] [Preferred Stock] [Debt Security] Warrants
expire:
Exercise price(s):
Initial public offering price:
Purchase price:
Title of Underlying Securities:
[Number of shares] [Principal amount] purchasable upon exercise of one [Common
Stock] [Preferred Stock] [Debt Security] Warrant:
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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 "EXCEL REALTY TRUST, INC.-- Common Stock, Preferred Stock, Depositary
Shares, Warrants and Debt Securities--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.
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,
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:
--------------------------------
Name:
Title: Authorized Signatory
[Acting on behalf of itself and the
other named Underwriters.]
Accepted:
EXCEL REALTY TRUST, INC.
By:
--------------------------------
Name:
Title:
A-5
43
EXHIBIT B
FORM OF OPINION OF COMPANY'S
COUNSEL TO BE DELIVERED
PURSUANT TO SECTION 5(b)
(i) The applicable Warrant Agreement, if any, and the applicable
Deposit Agreement, if any, have been duly executed and delivered by the
Company, and (assuming due authorization, execution and delivery by the
Warrant Agent in the case of the Warrant Agreement, and the Depositary, in
the case of the Deposit Agreement) each constitutes a valid and legally
binding agreement of the Company enforceable in accordance with its terms;
and the Warrant Agreement, if any, and the Deposit Agreement, if any, each
conforms in all material respects to all statements relating thereto
contained in the Prospectus.
(ii) If applicable, upon execution and delivery of the Depositary
Receipts pursuant to the terms of the Deposit Agreement, the persons in
whose names such Depositary Receipts are registered will be entitled to
the rights specified therein and in the Deposit Agreement, to the extent
such rights are governed by the laws of the State of New York.
(iii) Each of this Agreement and the applicable Terms Agreement has
been duly executed and delivered by the Company.
(iv) The Registration Statement is effective under the 1933 Act and,
to the best of their knowledge and information, 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.
(v) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, as of their respective
effective or issue dates, comply as to form in all material respects with
the requirements for registration statements on Form S-3 under the 1933
Act and the 1933 Act Regulations; if applicable, the Rule 434 Prospectus
conforms to the requirements of Rule 434 under the 1933 Act Regulations;
it being understood, however, that no opinion need be rendered with
respect to the financial statements and notes thereto, schedules and other
financial and related statistical data included or incorporated by
reference in the Registration Statement or the Prospectus; and it being
understood, further, that in passing upon the compliance as to form of the
Registration Statement, the Prospectus and the Rule 434 Prospectus, if
applicable, such counsel may assume that the statements made therein are
correct and complete.
(vi) Each document filed pursuant to the 1934 Act (other than the
financial statements and notes thereto, schedules and other financial and
related statistical data
B-1
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included therein, as to which no opinion need be rendered) and
incorporated or deemed to be incorporated by reference in the Prospectus
complied when so filed as to form in all material respects with the 1934
Act and the 1934 Act Regulations. In passing upon compliance as to form of
such documents, such counsel may assume that the statements made therein
are correct and complete.
(vii) No authorization, approval, permit or consent of any court or
governmental authority or agency is required that has not been obtained in
connection with the consummation by the Company of the transactions
contemplated by this Agreement, the applicable Terms Agreement, the
applicable Deposit Agreement, if any, or the applicable Warrant Agreement,
if any, except such as may be required under the 1933 Act and state
securities laws or real estate syndication laws.
(viii) Neither the Company nor any of its subsidiaries is required
to be registered under the 1940 Act.
(ix) The partnership agreements of EH Properties, L.P., a Delaware
limited partnership and Excel Realty Partners, L.P., a Delaware limited
partnership (the "Partnership Agreements") have been duly executed and
delivered by the Company and constitute the valid agreement thereof,
enforceable against the Company in accordance with their respective terms.
(x) Each of EH Properties, L.P., a Delaware limited partnership, and
Excel Realty Partners, L.P., a Delaware limited partnership, has been duly
organized and is validly existing and in good standing under the laws of
the State of Delaware, has partnership power and authority to own, lease
and operate its properties and to conduct its business substantially as
described in the Prospectus; except as otherwise stated in the Prospectus,
all of the issued and outstanding limited partnership interests in each
such limited partnership have been duly authorized and validly issued.
(xi) ERT Development Corporation, a Delaware corporation ("ERT"),
has been duly incorporated and is validly existing and in good standing
under the laws of the State of Delaware, has corporate power and authority
to own, lease and operate its properties and to conduct its business
substantially as described in the Prospectus; except as otherwise stated
in the Prospectus, all of the issued an outstanding shares of capital
stock of ERT have been duly authorized and validly issued and are fully
paid and are non-assessable.
(xii) Commencing not later than January 1, 1993, the Company has
been organized in conformity with the requirements for qualification as a
"real estate investment trust" under the Internal Revenue Code of 1986, as
amended (the "Code"), and its method of operation will enable it to meet
the requirements for qualification and taxation as a "real estate
investment trust" under the Code, provided that such counsel's opinion as
to this
B-2
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matter may be conditioned upon certain representations as to factual
matters made by the Company to such counsel as described therein.
(xiii) The statements set forth (a) in the Prospectus under the
caption "Certain Federal Income Tax Considerations to the Company of its
REIT Election" and "Description of Debt Securities" and (b) if applicable,
in the Prospectus Supplement under the caption "Certain Federal Income Tax
Considerations to Holders of Common Stock" and "Description of Notes", to
the extent such statements constitute matters of law, summaries of legal
matters, or legal conclusions, have been reviewed by them and are accurate
in all material respects.
(xiv) The Indenture has been duly authorized, executed and delivered
by the Company and (assuming due authorization, execution and delivery
thereof by the applicable Trustee) constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by (A)
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws affecting the enforcement of creditors' rights
generally, (B) general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law), (C)
requirements that a claim with respect to any debt securities issued under
the Indenture that are payable in a foreign or composite currency (or a
foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (D) governmental authority to
limit, delay or prohibit the making of payments outside the United States.
(xv) The Notes are in the form contemplated by the Indenture, have
been duly authorized by the Company for offer, sale, issuance and delivery
pursuant to this Agreement and, when executed by the Company and
authenticated by the Trustee in the manner provided for in the Indenture
(assuming the due authorization, execution and delivery of the Indenture
by the Trustee) and delivered against payment of the consideration
therefor as specified in the applicable Terms Agreement, will constitute
valid and legally binding obligations of the Company, entitling the
holders thereof to the benefits provided by the Indenture, enforceable
against the Company, in accordance with their terms, except as the
enforcement thereof may be limited by (A) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
affecting the enforcement of creditors' rights generally, (B) general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), (C) requirements that a claim with
respect to any Notes payable in a foreign or composite currency (or a
foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (D) governmental authority to
limit, delay or prohibit the making of payments outside the United States.
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46
(xvi) The Indenture and the Notes, in the forms certified on the
date hereof, 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.
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EXHIBIT C
FORM OF OPINION OF SPECIAL MARYLAND COUNSEL
FOR THE COMPANY PURSUANT TO SECTION 5(c)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland.
(ii) The Company has corporate power to own, lease and operate its current
properties, to conduct its current business substantially as described in the
Prospectus and to enter into and perform its obligations under this Agreement
and the applicable Terms Agreement.
(iii) The authorized, issued and outstanding capital stock of the Company
is in all material respects as set forth in the Prospectus (as of the date set
forth therein) under "Capitalization" (except for subsequent issuances, if any,
pursuant to reservations, agreements, employee benefit plans, dividend
reinvestment plans, employee and director stock option plans, or upon the
exercise of options, warrants or convertible debt securities referred to in the
Prospectus) and such shares of stock have been duly authorized and validly
issued and are fully paid and non-assessable.
(iv) The Underwritten Securities being sold pursuant to this Agreement and
the applicable Terms Agreement and, if applicable, the deposit of the shares of
Preferred Stock in accordance with the provisions of a Deposit Agreement, have
been duly and validly authorized by all necessary corporate action on the part
of the Company and such Underwritten Securities have been duly authorized for
issuance and sale pursuant to this Agreement and such Terms Agreement; and such
Underwritten Securities, when issued and delivered by the Company pursuant to
this Agreement against payment of the consideration set forth in such Terms
Agreement, will be validly issued, fully paid and non-assessable, and the
issuance of such Underwritten Securities will not be subject to preemptive or
other similar rights arising under the Charter or Bylaws of the Company, or
under the Maryland General Corporation Law ("MGCL"); and the shares of Preferred
Stock, if applicable, conform to the provisions of the Articles Supplementary.
(v) If applicable, the Warrants have been duly authorized and, when issued
and delivered pursuant to this Agreement and the applicable Terms Agreement and
countersigned by the Warrant Agent as provided in the Warrant Agreement, will
have been duly executed, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits provided by
the Warrant Agreement under which they are to be issued, insofar as the Warrants
are governed by the MGCL and assuming the validity and enforceability of such
Warrant Agreement.
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48
(vi) If applicable, the shares of Common Stock issuable upon conversion of
any of the shares of Preferred Stock or Depositary Shares, or the exercise of
Warrant Securities, have been duly and validly authorized and reserved for
issuance upon such conversion or exercise by all necessary corporate action on
the part of the Company and such shares, when issued upon such conversion or
exercise in accordance with the charter of the Company, the Deposit Agreement,
the Terms Agreement, or the Warrant Agreement, as the case may be, will be duly
authorized and validly issued and will be fully paid and non-assessable, and the
issuance of such shares upon such conversion or exercise will not be subject to
preemptive or other similar rights arising under the Charter or Bylaws of the
Company, or under the MGCL;
(vii) The applicable Warrant Agreement, if any, and the applicable Deposit
Agreement, if any, have been duly authorized by the Company, and the person(s)
executing such agreements on behalf of the Company have been duly authorized to
do so.
(viii) If applicable, upon execution and delivery of the Depositary
Receipts pursuant to the terms of the Deposit Agreement, the persons in whose
names such Depositary Receipts are registered will be entitled to the rights
specified therein and in the Deposit Agreement, to the extent such rights are
governed by the laws of the State of Maryland and assuming the validity and
enforceability of the Deposit Agreement.
(ix) The execution and delivery on behalf of the Company of each of this
Agreement, the applicable Terms Agreement has been duly authorized by the
Company, and the person(s) executing each such agreement on behalf of the
Company have been duly authorized to do so.
(x) If applicable, the relative rights, preferences, interests and powers
of the Preferred Shares or Depositary Shares, as the case may be, are as set
forth in the Articles Supplementary relating thereto, and all such provisions
are valid under the MGCL; and, as applicable, the form of certificate used to
evidence the Preferred Shares being represented by the Depositary Shares and the
form of certificate used to evidence the related Depositary Receipts are in due
and proper form under the MGCL and comply with all applicable statutory
requirements under the MGCL.
(xi) The Underwritten Securities, the Warrant Securities, and the shares
of Common Stock issuable upon conversion of the Preferred Shares or Depositary
Shares, as applicable, conform in all material respects to the descriptions
thereof contained in the Prospectus, insofar as such descriptions relate to the
Charter or Bylaws of the Company or issues arising under the MGCL, and the form
of certificate used to evidence the Underwritten Securities, if applicable, is
in due and proper form and complies in all material respects with all applicable
statutory requirements under the MGCL.
(xii) The execution and delivery by the Company of each of the partnership
agreements entered into by the Maryland corporation subsequent to the
organization of the Company in the State of Maryland in May 1993 to which the
Company or any of its subsidiaries organized under the laws of the State of
Maryland is a party, and which relates to real property described in the
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Prospectus, has been duly authorized by such applicable party, and the person(s)
executing each such agreement on behalf of such applicable party have been
authorized to do so.
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Exhibit D
FORM OF OPINION OF THE COMPANY'S
GENERAL COUNSEL TO BE DELIVERED PURSUANT
TO SECTION 5(d)
(i) To the best of his knowledge and information, the Company is duly
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which the Company owns or leases real property, except
where the failure to so qualify or to be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(ii) To the best of his knowledge and information, there are no legal or
governmental proceedings pending or threatened against the Company or any of its
subsidiaries which are required to be disclosed in the Prospectus, other than
those disclosed therein, and all pending legal or governmental proceedings to
which the Company or any of its subsidiaries is a party or of which any of the
property or assets of the Company or its subsidiaries is the subject which are
not described in the Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not material.
(iii) To the best of his knowledge and information, there are no
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or the Prospectus or to be filed as exhibits thereto other than those
described or referred to therein or filed as exhibits thereto, the descriptions
thereof or references thereto are correct in all material respects, and, to the
best of his knowledge and information, no default exists in the due performance
or observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other instrument so described, referred to or filed which would have a material
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(iv) To the best of his knowledge and information, there are no persons
with registration or other similar rights to have any securities registered
pursuant to the Registration Statement.
(v) To the best of his knowledge and information, the execution and
delivery of this Agreement, the applicable Terms Agreement, the applicable
Deposit Agreement, if any, or the applicable Warrant Agreement, if any, and the
consummation of the transactions contemplated herein and therein and compliance
by the Company with its obligations hereunder and thereunder will not conflict
with or constitute a breach of, or default under, or result in the creation or
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51
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Company
or any of its subsidiaries is a party or by which it or any of them may be bound
or to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in violation of the
provisions of the charter or by-laws of the Company or any applicable law,
administrative regulation or administrative or court order or decree.
(vi) To the best of his knowledge and information, except as otherwise
stated in the Prospectus and except as would not have a material adverse effect
on the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise: (a) all of the issued and outstanding capital stock of each
corporate subsidiary of the Company are owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity and (b) all of the Company's ownership
interests in each partnership subsidiary of the Company are owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(vii) The execution, delivery and performance of any of the partnership
agreements to which the Company or any of its subsidiaries is a party, and which
relates to real property described in the Prospectus, did not, at the time of
execution and delivery, and does not constitute a breach of, or default under,
the charter or by-laws of the Company or any of its subsidiaries, as applicable,
or any material contract, lease or other instrument to which such party is a
party or by which its properties may be bound or any law, administrative
regulation or administrative or court decree.
(viii) The Company and/or its respective subsidiaries hold title to the
properties and assets described in the Prospectus, subject only to the liens and
encumbrances securing indebtedness reflected in the Prospectus and such other
liens, encumbrances and matters of record which do not materially and adversely
affect the value of such properties and assets considered in the aggregate.
(ix) To the best of his knowledge and information, each subsidiary (which
term, as used in such opinion, shall be defined to include corporations,
material limited and general partnerships and other entities) is duly qualified
to transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
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Exhibit E
FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(h)
We are independent public accountants with respect to the Company and the
Predecessor within the meaning of the 1933 Act and the 1933 Act Regulations and:
(i) in our opinion, the audited consolidated 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 1933 Act Regulations;
(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 _________, 19__ and _________,
19__, the three- and six-month periods ended _________, 19__ and
_________, 19__ and the three- and nine-month periods ended _________,
19__ and _________, 19__, included or incorporated by reference in the
Registration Statement and the Prospectus (collectively, the "10-Q
Financials")] [, a reading of the unaudited interim consolidated financial
statements of the Company for the _____-month periods ended _________,
19___ and _________, 19___, included or incorporated by reference in the
Registration Statement and the Prospectus (the "_____- month financials")]
[, a reading of the latest available unaudited interim consolidated
financial statements of the Company], a reading of the minutes of all
meetings of the stockholders and directors of the Company and its
subsidiaries and committees thereof 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"), with
respect to the [description of relevant periods] 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 included or incorporated by reference
in the Registration Statement and the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 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
included or incorporated by reference in the Registration Statement
and the Prospectus for them to be in conformity with generally
accepted accounting principles;
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53
[(B) the _____-month financials included or incorporated by
reference in the Registration Statement and the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the 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;]
(C) at [_________, 19___ and at] a specified date not more
than three days prior to the date of the applicable Terms Agreement,
there was any change in the capital stock of the Company and its
subsidiaries, any decrease in the net assets of the Company and its
subsidiaries or any increase in the debt of the Company and its
subsidiaries, in each case as compared with amounts shown in the
most recent consolidated balance sheet included or incorporated by
reference in the Registration Statement and the Prospectus, except
in each case for any changes, decreases or increases that the
Registration Statement and the Prospectus disclose have occurred or
may occur; or
(D) for the period from [_________, 19__ to _________, 19__
and for the period from] _________, 19__ to a specified date not
more than three days prior to the date of the applicable Terms
Agreement, there was any decrease in consolidated revenue, operating
income, funds from operation or net income or net income per share
of the Company, 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 Information included or incorporated
by reference in the Registration Statement and the Prospectus [and a
reading of the financial statements from which such data were derived],
nothing came to our attention that caused us to believe that the Selected
Financial Information included or incorporated by reference 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 Information 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 or
incorporated by reference in the Registration Statement and the Prospectus
from which certain of such data were derived are not in conformity with
generally accepted accounting principles;]
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(iv) we have compared the information included or incorporated by
reference 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 such 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 latest available unaudited financial statements of the
Company that have not been included or incorporated by reference 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 that such unaudited
amounts were not determined on a basis substantially consistent with that
of the corresponding amounts in the audited consolidated financial
statements;]
[(vi) we are unable to and do not express any opinion on the [Pro
Forma Combined Balance Sheet and Statement of Operations] (collectively,
the "Pro Forma Statements") included or incorporated by reference in the
Registration Statement and the Prospectus or on the pro forma adjustments
applied to the historical amounts included in the Pro Forma Statements;
however, for purposes of this letter we have:
(A) read the Pro Forma Statements;
(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 Statements comply as to form in all material
respects with the applicable accounting requirements of Rule 11-02
of Regulation S-X; and
(D) proved the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the Pro Forma
Statements; 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 Statements included or incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not
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been properly applied to the historical amounts in the compilation of
those statements;] 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 included or incorporated by reference 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.
E-4