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EXHIBIT 1.1
10,000,000 SHARES OF 7-3/4% SERIES A CONVERTIBLE PREFERRED STOCK
GLENBOROUGH REALTY TRUST INCORPORATED
UNDERWRITING AGREEMENT
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January 22, 1998
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇. ▇▇▇▇▇ INCORPORATED
as Representatives of the
several Underwriters named in
Schedule I attached hereto
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Ladies and Gentlemen:
Glenborough Realty Trust Incorporated, a corporation organized
and existing under the laws of Maryland (the "Company") and the sole general
partner of Glenborough Properties, L.P. (the "Operating Partnership"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
several underwriters named in Schedule I attached hereto (collectively, the
"Underwriters") an aggregate of 10,000,000 shares (the "Firm Shares") of its
7-3/4% Series A Convertible Preferred Stock, par value $0.001 per share (the
"Preferred Stock") and, for the sole purpose of covering over-allotments in
connection with the sale of the Firm Shares, at the option of the Underwriters,
up to an additional 1,500,000 shares (the "Additional Shares") of Preferred
Stock. The Firm Shares and any Additional Shares purchased by the Underwriters
are referred to herein as the "Shares". Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇▇▇ ▇▇▇▇▇▇
Inc., BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and BT Alex. ▇▇▇▇▇ Incorporated have agreed
to act as representatives of the several Underwriters (in such capacity, the
"Representatives") in connection with the purchase of the Shares. The Shares are
more fully described in the Prospectus referred to below.
1. Representations and Warranties of the Company and the
Operating Partnership. The Company and the Operating Partnership, jointly and
severally, represent and warrant to, and agree with, the Underwriters that:
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(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") registration statements on Form S-3 (Nos.
333-26815 and 333-40959), and any amendments thereto, and related preliminary
prospectuses for the registration under the Securities Act of 1933, as amended
(the "Securities Act") of preferred stock (including the Shares, "Preferred
Stock"), common stock, par value $0.001 per share ("Common Stock") and warrants
to purchase shares of Preferred Stock or Common Stock, each of which
registration statements, as so amended, has been declared effective by the
Commission and copies of which have heretofore been delivered to the
Underwriters. Such registration statements (and any registration statement
increasing the size of the offering (a "Rule 462(b) Registration Statement")
filed pursuant to Rule 462(b) under the Securities Act), in the respective forms
in which they were declared effective, as amended, including all exhibits
thereto and the documents incorporated or deemed to be incorporated by reference
therein through the date hereof, are each hereinafter referred to as a
"Registration Statement" and are collectively referred to as the "Registration
Statements". Registration Statement No. 333-40959 is herein referred to as the
"Second Registration Statement". Other than a Rule 462(b) Registration
Statement, which became effective upon filing, no other document with respect to
the Registration Statements or document incorporated by reference therein has
heretofore been filed with the Commission (other than prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the Commission under the
Act, each in the form heretofore delivered to the Representatives). No stop
order suspending the effectiveness of either Registration Statement or the Rule
462(b) Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or, to the Company's knowledge, threatened by
the Commission. The Company proposes to file with the Commission pursuant to
Rule 424(b) of the rules and regulations of the Commission under the Securities
Act (the "Securities Act Regulations") the Prospectus Supplement (as defined in
Section 4(j) hereof) relating to the Shares and the Company's base prospectus
dated December 18, 1997 (the "Base Prospectus"), and has previously advised the
Underwriters of all further information (financial and other) with respect to
the Company set forth therein. The Base Prospectus together with the Prospectus
Supplement, in their respective forms on the date hereof (being the forms in
which they are to be filed with the Commission pursuant to Rule 424(b) of the
Securities Act Regulations), including all documents incorporated or deemed to
be incorporated by reference therein through the date hereof, are hereinafter
referred to as the "Prospectus," except that if any revised prospectus or
prospectus supplement shall be provided to the Underwriters by the Company for
use in connection with the offering and sale of the Shares which differs from
the Prospectus (whether or not such revised prospectus or prospectus supplement
is required to be filed by the Company pursuant to Rule 424(b) of the Securities
Act Regulations), the term "Prospectus" shall refer to such revised prospectus
or prospectus supplement, as the case may be, from and after the time it is
first provided to the Underwriters for such use. As used herein, the term "date
of the Prospectus" shall be deemed to refer to the date of the Prospectus
Supplement. Any preliminary prospectus or prospectus subject to completion
included in the Second Registration Statement or filed with the Commission
pursuant to Rule 424 under the Securities Act is hereafter called a "Preliminary
Prospectus." Unless the context otherwise requires, all references in this
Agreement to documents, financial statements and schedules and other information
which is "contained", "included", "stated", "described in" or "referred to" in
the Registration Statements or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such
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documents, financial statements and schedules and other information which is or
is deemed to be incorporated by reference in the Registration Statements or the
Prospectus, as the case may be, and all references in this Agreement to
amendments or supplements to the Registration Statements or the Prospectus shall
be deemed to mean and include the filing of any document under the Securities
Exchange Act of 1934 (the "Exchange Act") after the date of this Agreement which
is or is deemed to be incorporated by reference in the Registration Statements
or the Prospectus, as the case may be. Additionally, all references in this
Agreement to the Registration Statements, the Rule 462(b) Registration
Statement, a Preliminary Prospectus, the Base Prospectus, the Prospectus
Supplement and the Prospectus, or any amendments or supplements to any of the
foregoing, shall be deemed to include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval System
("▇▇▇▇▇").
(b) The Second Registration Statement and the Base
Prospectus (including the documents incorporated by reference therein), at the
time the Second Registration Statement became effective and as of the Closing
Date referred to in Section 2 hereof (and any Additional Closing date referred
to in Section 2 hereof), complied and comply in all material respects with the
requirements of the Securities Act and the Securities Act Regulations (including
Rule 415(a) of the Securities Act Regulations), and did not and as of the
Closing Date (and any Additional Closing Date) do not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. The
Prospectus (including the documents incorporated by reference therein), as of
the date hereof (unless the term "Prospectus" refers to a prospectus which has
been provided to the Underwriters by the Company for use in connection with the
offering of the Shares which differs from the Prospectus filed with the
Commission pursuant to Rule 424(b) of the Securities Act Regulations, in which
case at the time it is first provided to the Underwriters for such use) and on
the Closing Date (and any Additional Closing Date), does not and will not
include an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
representations and warranties in this subsection (b) shall not apply to
statements in or omissions from the Second Registration Statement or Prospectus
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by any Representative expressly
for use in the Second Registration Statement or the Prospectus. Each Preliminary
Prospectus and Prospectus filed as part of the Second Registration Statement, as
part of any amendment thereto or pursuant to Rule 424 under the Securities Act
Regulations, if filed by electronic transmission pursuant to ▇▇▇▇▇ (except as
may be permitted by Regulations S-T under the Securities Act) was identical to
the copy thereof delivered to the Underwriters for use in connection with the
offer and sales of the Shares. There are no contracts or other documents
required to be described in the Prospectus or to be filed as exhibits to the
Second Registration Statement under the Securities Act that have not been
described, filed or incorporated by reference therein as required.
(c) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, whose reports are incorporated by
reference into the Registration Statements, are independent public accountants
with respect to the Company and with respect to the Company's subsidiaries, in
each case as required by the Securities Act and the Securities Act Regulations.
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(d) Subsequent to the respective dates as of which
information is given in the Second Registration Statement and the Prospectus,
except as set forth in the Second Registration Statement and the Prospectus,
there has been no material adverse change in the business, business prospects,
properties, operations, condition (financial or other) or results of operations
of the Company or the Operating Partnership and their respective subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary
course of business (any such change with respect to any entity being referred to
herein as a "Material Adverse Change"), and since the date of the latest balance
sheet included or incorporated by reference in the Second Registration Statement
and the Prospectus, neither the Company, the Operating Partnership nor any of
their respective subsidiaries has incurred or undertaken any liabilities or
obligations, direct or contingent, which are material to the Company, the
Operating Partnership and their respective subsidiaries taken as a whole, except
for liabilities or obligations which are set forth in or contemplated by the
Second Registration Statement and the Prospectus.
(e) This Agreement and the transactions contemplated herein
have been duly and validly authorized by the Company and the Operating
Partnership and this Agreement has been duly and validly executed and delivered
by the Company and the Operating Partnership.
(f) The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby
(including the issuance and sale of the Shares and the issuance of the shares
(the "Common Shares") of the Company's common stock, par value $0.001 per share
(the "Common Stock") upon conversion of the Shares) do not and will not (i)
conflict with or result in a breach of any of the terms and provisions of, or
constitute a default (or an event which with notice or lapse of time, or both,
would constitute a default) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company, the
Operating Partnership or any of their respective subsidiaries pursuant to, any
agreement, instrument, franchise, license or permit to which the Company, the
Operating Partnership or any of their respective subsidiaries is a party or by
which any of such entities or their respective properties or assets may be bound
or (ii) violate or conflict with any provision of the partnership agreement of
the Operating Partnership, the certificate of incorporation or by-laws of the
Company, the organizational documents of any of the subsidiaries of the Company
or the Operating Partnership or any judgment, decree, order, statute, rule or
regulation of any court or any public, governmental or regulatory agency or body
having jurisdiction over the Company, the Operating Partnership or any of their
subsidiaries or any of their respective properties or assets, except for those
violations or conflicts that would not have a material adverse effect on the
Company, the Operating Partnership and their respective subsidiaries, taken as a
whole. No consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company,
the Operating Partnership or any of their respective subsidiaries or any of
their respective properties or assets is required for the execution, delivery
and performance of this Agreement or the consummation of the transactions
contemplated hereby, including the issuance, sale and delivery of the Shares to
be issued, sold and delivered by the Company hereunder, and the issuance of the
Common Shares upon
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conversion of the Shares, except the registration under the Securities Act of
the Shares and the Common Shares and such consents, approvals, authorizations,
orders, registrations, filings, qualifications, licenses and permits as may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters.
(g) All of the outstanding shares of Common Stock are duly
and validly authorized and issued, fully paid and nonassessable and were not
issued and are not now in violation of or subject to any preemptive rights. No
shares of Preferred Stock are currently outstanding. The Shares, when issued,
delivered and sold in accordance with this Agreement, were or will be, as the
case may be, duly and validly issued and outstanding, fully paid and
nonassessable, and will not have been issued in violation of or be subject to
any preemptive rights. The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus Supplement under the caption
"Capitalization" and in the descriptions thereof incorporated by reference in
the Prospectus. The Preferred Stock and the Common Stock conform to the
descriptions thereof contained in the Second Registration Statement and the
Prospectus. The Shares conform to the description thereof contained in the
Prospectus and such description conforms to the rights set forth in the
instruments defining the same. Upon issuance and delivery of the Shares in
accordance with this Agreement, the Shares will be convertible at the option of
the holder thereof for the Common Shares in accordance with the terms of the
Shares; the Common Shares issuable upon conversion of the Shares have been duly
and validly authorized and reserved for issuance and delivery upon such
conversion by all necessary corporate action and the Common Shares, when issued
upon such conversion, will be validly issued, fully paid and nonassessable, and
will not have been issued in violation of or be subject to any preemptive
rights. The Company is the sole general partner of the Operating Partnership;
the partnership agreement of the Operating Partnership has been duly authorized,
executed and delivered by each partner thereto and is valid, legally binding and
enforceable in accordance with its terms; all of the partnership interests in
the Operating Partnership have been duly and validly authorized and issued and
(except as described in the Prospectus) the partnership interests owned directly
or indirectly by the Company in the Operating Partnership are free and clear of
all liens, encumbrances, equities or claims. All issued and outstanding
securities of the Operating Partnership have been duly and validly authorized
and issued in compliance with the federal and state securities laws. The units
of the Operating Partnership issued or to be issued in connection with the
acquisitions described in the Prospectus Supplement under the caption "Recent
Activities" were or will be duly and validly issued in compliance with the
federal and state securities laws.
(h) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Maryland. The Operating Partnership has been duly organized and is validly
existing as a limited partnership in good standing under the laws of the State
of California. The Company is duly qualified and in good standing as a foreign
corporation, and the Operating Partnership has been duly qualified and is in
good standing as a foreign limited partnership, in each jurisdiction in which
the character or location of its respective properties (owned, leased or
licensed) or the nature or conduct of its respective business makes such
qualification necessary, except for those failures to be so qualified or in good
standing which will not in the aggregate have a material adverse effect on the
Company,
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the Operating Partnership and their respective subsidiaries, taken as a whole.
Each of the Company and the Operating Partnership has all requisite power and
authority, and all necessary consents, approvals, authorizations, orders,
registrations, qualifications, licenses and permits of and from all public,
regulatory or governmental agencies and bodies, to own, lease and operate its
properties and conduct its business as now being conducted and as described in
the Second Registration Statement and the Prospectus, except for the absence of
which individually or in the aggregate would not have a material adverse effect
on the Company, the Operating Partnership and their respective subsidiaries
taken as a whole, and no such consent, approval, authorization, order,
registration, qualification, license or permit contains a materially burdensome
restriction not adequately disclosed in the Second Registration Statement and
the Prospectus.
(i) Each subsidiary of the Company and the Operating
Partnership has been duly organized and is validly existing as a corporation or
partnership in good standing under the laws of the jurisdiction of its
organization. Each subsidiary of the Company and the Operating Partnership is
duly qualified and in good standing as a foreign corporation or partnership in
each jurisdiction in which the character or location of its properties (owned,
leased or licensed) or the nature or conduct of its business makes such
qualification necessary, except for those failures to be so qualified or in good
standing which will not in the aggregate have a material adverse effect on the
Company, the Operating Partnership and their respective subsidiaries, taken as a
whole. Each subsidiary of the Company and the Operating Partnership has all
requisite power and authority, and all necessary consents, approvals,
authorizations, orders, registrations, qualifications, licenses and permits of
and from all public, regulatory or governmental agencies and bodies, to own,
lease and operate its properties and conduct its business as now being conducted
and as described in the Second Registration Statement and the Prospectus, except
for the absence of which individually or in the aggregate would not have a
material adverse effect on the Company, the Operating Partnership and their
respective subsidiaries taken as a whole, and no such consent, approval,
authorization, order, registration, qualification, license or permit contains a
materially burdensome restriction not adequately disclosed in the Second
Registration Statement and the Prospectus. All of the capital stock or
partnership units in each subsidiary of the Company and the Operating
Partnership has been duly and validly authorized and issued and (except as
described in the Prospectus) the capital stock or partnership units in each such
subsidiary owned directly or indirectly by the Company or the Operating
Partnership, as the case may be, is free and clear of all liens, encumbrances,
equities or claims.
(j) Except as described or incorporated by reference in the
Prospectus, there is no litigation or governmental proceeding to which the
Company, the Operating Partnership or any of their respective subsidiaries is a
party or to which any property of the Company, the Operating Partnership or any
of their respective subsidiaries is subject or which is pending or, to the
knowledge of the Company and the Operating Partnership, contemplated against the
Company, the Operating Partnership or any of their respective subsidiaries which
might result in any material adverse change in the business, business prospects,
properties, operations, condition (financial or other) or, results of operations
of the Company, the Operating Partnership and their respective subsidiaries
taken as a whole, which might materially and adversely affect the transactions
contemplated by this Agreement or which is required to be
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disclosed in the Second Registration Statement or the Prospectus or in any
documents incorporated by reference therein. The descriptions of litigation
matters in the Base Prospectus under the captions "Risk Factors -- Litigation
Related to Consolidation" and "Risk Factors -- Chapter 11 Reorganization of
Partnership Consolidation by Senior Management" and the descriptions of such
matters incorporated by reference in the Prospectus are complete and accurate in
all material respects.
(k) Neither the Company nor the Operating Partnership has
taken or will take, directly or indirectly, any action designed to cause or
result in, or which constitutes or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of shares of Common
Stock or Preferred Stock to facilitate the sale or resale of the Shares.
(l) The financial statements, including the notes thereto,
and supporting schedules included or incorporated by reference in the Second
Registration Statement and the Prospectus present fairly the consolidated
financial position of the Company, its subsidiaries and their predecessors in
interests of the dates indicated and the results of their operations for the
periods specified; except as otherwise stated in the Second Registration
Statement, said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis; the
supporting schedules included in the Second Registration Statement present
fairly the information required to be stated therein; and no other financial
statements or supporting schedules are required to be included in the Second
Registration Statement. The Company's ratios of earnings to fixed charges and
ratios of earnings to combined fixed charges and preferred stock dividends
included in the Base Prospectus under the caption "Ratio of Earnings to Fixed
Charges" and in Exhibit 12.1 to the Second Registration Statement have been
calculated in compliance with Item 503(d) of Regulation S-K of the Securities
Act Regulations. The financial data incorporated by reference in the Prospectus
and set forth in the Prospectus Supplement under the captions "Selected
Historical and Pro Forma Financial and Other Data", and "Capitalization" and
elsewhere in the Prospectus and in the Second Registration Statement fairly
present the information set forth therein on a basis consistent with that of the
audited financial statements contained or incorporated by reference in the
Second Registration Statement; and the pro forma condensed consolidated
financial statements of the Company and the related notes thereto incorporated
by reference in the Prospectus and included under the caption "Selected
Historical and Pro Forma Financial and Other Data" and elsewhere in the
Prospectus and in the Second Registration Statement present fairly the
information contained therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial statements
and have been properly presented on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(m) Except as described or incorporated by reference in the
Prospectus, no holder of securities of the Company or the Operating Partnership
has any rights to the registration of securities of the Company or securities of
the Operating Partnership that are convertible, exchangeable or exercisable for
securities of the Company because of the filing of
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either Registration Statement or otherwise in connection with the sale of the
Shares contemplated hereby.
(n) Except as described in the Prospectus, the Company, the
Operating Partnership and their respective subsidiaries have good and marketable
title to all the properties and assets reflected as owned in the financial
statements referred to in Section 1(l) above or elsewhere in the Prospectus, in
each case free and clear of any security interests, mortgages, liens,
encumbrances, equities, claims and other defects, except such as are described
in the Prospectus and such as do not materially and adversely affect the value
of such property and do not materially interfere with the use made or proposed
to be made of such property by the Company, the Operating Partnership or any of
their respective subsidiaries. The real property, improvements, equipment and
personal property held under lease by the Company, the Operating Partnership or
their respective subsidiaries are held under valid, subsisting and enforceable
leases, with such exceptions as are not material and do not materially interfere
with the use made or proposed to be made of such real property, improvements,
equipment or personal property by the Company, the Operating Partnership or any
of their respective subsidiaries.
(o) The Company, the Operating Partnership and their
respective subsidiaries have filed all necessary federal, state and foreign
income and franchise tax returns and have paid all taxes required to be paid by
any of them and, if due and payable, any related or similar assessment, fine or
penalty levied against any of them, except insofar as the failure to file such
returns would not have a material adverse effect on the Company, the Operating
Partnership and their respective subsidiaries, taken as a whole. The Company,
the Operating Partnership and their respective subsidiaries have made adequate
charges, accruals and reserves in their respective financial statements in
respect of all federal, state and foreign income and franchise taxes for all
periods as to which the tax liability of the Company, the Operating Partnership
or any of their respective subsidiaries has not been finally determined, except
to the extent of any inadequacy that would not have a material adverse effect on
the Company, the Operating Partnership and their respective subsidiaries, taken
as a whole.
(p) Except as described in the Prospectus, the Company, the
Operating Partnership and each of their respective subsidiaries are insured by
recognized financially sound and reputable institutions with policies in such
amounts and with such deductibles and covering such risks that the Company
believes are adequate to insure against potential losses, with such policies
including, but not limited to, policies covering real and personal property
owned or leased by the Company, the Operating Partnership or any of their
respective subsidiaries against theft, damage, destruction, acts of vandalism
and such other risks. Neither the Company nor the Operating Partnership has any
reason to believe that they or any of their respective subsidiaries will not be
able (i) to renew their existing insurance coverage as and when such policies
expire or (ii) to obtain comparable coverage from similar institutions as may be
necessary or appropriate to conduct their business as now conducted and at a
cost that would not result in a Material Adverse Change in the Company, the
Operating Partnership or any of their respective subsidiaries. Neither the
Company, the Operating Partnership nor any of their respective subsidiaries has
been denied any insurance coverage for which it has sought or applied.
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(q) Except as otherwise disclosed in the Prospectus or as
would not, individually or in the aggregate, result in a Material Adverse Change
in the Company, the Operating Partnership and their respective subsidiaries,
taken as a whole, (i) neither the Company, the Operating Partnership nor any of
their respective subsidiaries is in violation of any federal, state, local or
foreign laws and regulations relating to pollution or protection of human health
or the environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including without
limitation, laws and regulations relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum and petroleum products
(collectively, "Materials of Environmental Concern"), or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environmental Concern (collectively,
"Environmental Laws"), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations required for
the operation of the business of the Company, the Operating Partnership or any
of their respective subsidiaries under applicable Environmental Laws, or
noncompliance with the terms and conditions thereof, nor has the Company, the
Operating Partnership or any of their respective subsidiaries received any
written communication, whether from a governmental authority, citizens group,
employee or otherwise, that alleges that the Company, the Operating Partnership
or any of their respective subsidiaries is in any such violation; (ii) there is
no claim, action or cause of action filed with a court or governmental
authority, no investigation with respect to which the Company, the Operating
Partnership or any of their respective subsidiaries has received written notice,
and no written notice by any person or entity alleging potential liability for
investigatory costs, cleanup costs, governmental responses costs, natural
resources damages, property damages, personal injuries, attorneys' fees or
penalties arising out of, based on or resulting from the presence, or release
into the environment, or any Material of Environmental Concern at any location
owned, leased or operated by the Company, the Operating Partnership or any of
their respective subsidiaries, now or in the past (collectively, "Environmental
Claims"), pending or, to the best knowledge of the Company and the Operating
Partnership, threatened against the Company, the Operating Partnership or any of
their respective subsidiaries or, to the best knowledge of the Company and the
Operating Partnership, against any person or entity whose liability for any
Environmental Claim the Company, the Operating Partnership or any of their
respective subsidiaries has retained or assumed either contractually or by
operation of law; and (iii) to the best of knowledge of the Company and the
Operating Partnership, there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without limitation,
the release, emission, discharge, presence or disposal of any Material of
Environmental Concern, that reasonably could result in a violation of any
Environmental Law or form the basis of a potential Environmental Claim against
the Company, the Operating Partnership or any of their respective subsidiaries
or against any person or entity whose liability for any Environmental Claim the
Company, the Operating Partnership or any of their respective subsidiaries has
retained or assumed either contractually or by operation of law.
(r) In the ordinary course of their business, the Company
and the Operating Partnership conduct periodic reviews of the effect of
Environmental Laws on the business, operations and properties of the Company,
the Operating Partnership and their respective subsidiaries, in the course of
which they identify and evaluate associated costs and
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liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties). On the
basis of such review and the amount of their established reserves, the Company
and the Operating Partnership have reasonably concluded that such associated
costs and liabilities would not, individually or in the aggregate, result in a
Material Adverse Change in the Company, the Operating Partnership and their
respective subsidiaries, taken as a whole.
(s) Reserved.
(t) The Company has elected to be taxed as a "real estate
investment trust" ("REIT") under the Internal Revenue Code of 1986, as amended
(the "Code"), effective beginning in its taxable year 1996. The Company has at
all times beginning on January 1, 1996 qualified for taxation as a REIT under
the Code and intends to continue to operate in such manner.
(u) The Common Stock is registered pursuant to Section 12(g)
of the Exchange Act and is listed on the New York Stock Exchange (the "NYSE"),
and the Company has taken no action designed to, or likely to have the effect
of, terminating the registration of the Common Stock under the Exchange Act or
delisting the Common Stock from the NYSE, nor has the Company received any
notification that the Commission or the NYSE is contemplating terminating such
registration or listing. The Preferred Stock has been approved for listing on
the NYSE, subject to official notice of issuance.
(v) Neither the Company, the Operating Partnership nor any
of their respective subsidiaries is, or, after giving effect to the issue and
sale of the Shares by the Company will be, an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940.
(w) The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied.
(x) The documents incorporated or deemed to be incorporated
by reference in the Prospectus, at the time they were filed with the Commission,
complied in all material respects with the requirements of the Exchange Act and
the rules and regulations of the Commission under the Exchange Act, and, when
read together with the other information in the Prospectus, at the respective
times the Second Registration Statement and any amendments thereto became
effective, at the date hereof and at the Closing Date (and any Additional
Closing Date), did not and do not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
Any certificate signed by an officer of the Company or the
Operating Partnership and delivered to the Representatives or Underwriters'
Counsel (as hereinafter defined) shall be deemed to be a representation and
warranty by the Company or the Operating Partnership, as the case may be, as to
the matters covered thereby.
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2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to sell to the Underwriters and
the Underwriters, severally and not jointly, agree to purchase from the Company,
at a purchase price per share of $24.00, the number of Firm Shares set forth
opposite the respective names of the Underwriters in Schedule I hereto plus any
additional number of Shares which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 9 hereof.
(b) Payment of the purchase price for, and delivery of
certificates for, the Shares shall be made at the office of Bear, ▇▇▇▇▇▇▇ & Co.
Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or at such other place as shall be
agreed upon by the Underwriters and the Company, at 10:00 A.M. on the third or
fourth business day (as permitted under Rule 15c6-1 under the Exchange Act)
(unless postponed in accordance with the provisions of Section 9 hereof) after
the determination of the public offering price of the Shares, or such other time
not later than ten business days after such date as shall be agreed upon by the
Underwriters and the Company (such time and date of payment and delivery being
herein called the "Closing Date"). Payment shall be made to the Company by wire
transfer in same day funds, against delivery to the Underwriters of certificates
for the Shares to be purchased by them. Certificates for the Shares shall be
registered in such name or names and in such authorized denominations as the
Underwriters may request in writing at least 48 hours prior to the Closing Date.
The Company will permit the Underwriters to examine and package such
certificates for delivery at least 24 hours prior to the Closing Date.
(c) In addition, the Company hereby grants to the
Underwriters the option to purchase up to 1,200,000 Additional Shares at the
same purchase price per share to be paid by the Underwriters to the Company for
the Firm Shares as set forth in this Section 2, for the sole purpose of covering
over-allotments in the sale of Firm Shares by the Underwriters. This option may
be exercised at any time, in whole or in part from time to time, on or before
the thirtieth day following the date of the Prospectus, by written notice by the
Underwriters to the Company. Such notice shall set forth the aggregate number of
Additional Shares as to which the option is being exercised and the date and
time, as reasonably determined by the Underwriters, when the Additional Shares
are to be delivered (any such date and time being herein sometimes referred to
as an "Additional Closing Date"); provided, however, that an Additional Closing
Date shall not be earlier than the Closing Date or earlier than the second full
business day after the date on which the option shall have been exercised nor
later than the eighth full business day after the date on which the option shall
have been exercised (unless such time and date are postponed in accordance with
the provisions of Section 9 hereof). Certificates for the Additional Shares
shall be registered in such name or names and in such authorized denominations
as the Underwriters may request in writing at least 48 hours prior to the
Additional Closing Date. The Company will permit the Underwriters to examine and
package such certificates for delivery at least 24 hours prior to an Additional
Closing Date.
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(d) The number of Additional Shares to be sold to each
Underwriter shall be the number which bears the same ratio to the aggregate
number of Additional Shares being purchased as the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto (or such number
increased as set forth in Section 9 hereof) bears to the total number of Firm
Shares being purchased from the Company, subject, however, to such adjustments
to eliminate any fractional shares as the Underwriters in their sole discretion
shall make.
(e) Payment for the Additional Shares shall be made by wire
transfer in same day funds at the office Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or such other location as may be mutually
acceptable, upon delivery of the certificates for the Additional Shares to the
Underwriters.
3. Offering. Upon the Underwriters' authorization of the release
of the Firm Shares, the Underwriters propose to offer the Shares for sale to the
public upon the terms set forth in the Prospectus.
4. Covenants of the Company and the Operating Partnership. The
Company and the Operating Partnership jointly and severally covenant and agree
with the Underwriters that:
(a) The Company will notify the Underwriters immediately
(and, if requested by the Underwriters, will confirm such notice in writing) (i)
when any post-effective amendment to the Registration Statements becomes
effective, (ii) of any request by the Commission for any amendment of or
supplement to the Registration Statements or the Prospectus or for any
additional information, (iii) of the mailing or the delivery to the Commission
for filing of the Prospectus or any amendment of or supplement to the
Registration Statements or the Prospectus or any document to be filed pursuant
to the Exchange Act during any period when the Prospectus is required to be
delivered under the Securities Act, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of either Registration Statement or
any post-effective amendment thereto or of the initiation, or the threatening,
of any proceedings therefor, (v) of the receipt of any comments or inquiries
from the Commission, and (vi) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Shares for sale in
any jurisdiction or the initiation or threatening of any proceeding for that
purpose. If the Commission shall propose or enter a stop order at any time, the
Company will make every reasonable effort to prevent the issuance of any such
stop order and, if issued, to obtain the lifting of such order as soon as
possible. The Company will not file any post-effective amendment to the
Registration Statements or any amendment of or supplement to the Prospectus
(including any revised prospectus which the Company proposes for use by the
Underwriters in connection with the offering of the Shares which differs from
the prospectus filed with the Commission pursuant to Rule 424(b) of the
Securities Act Regulations, whether or not such revised prospectus is required
to be filed pursuant to Rule 424(b) of the Securities Act Regulations) to which
the Representatives or Underwriters' Counsel shall reasonably object, will
furnish the Representatives with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing or use, as the case may
be,
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and will not file any such amendment or supplement or use any such prospectus to
which the Representatives or Underwriters' counsel shall reasonably object.
(b) If any event shall occur as a result of which the
Prospectus would, in the judgment of the Underwriters or the Company include an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if it shall
be necessary at any time to amend or supplement the Prospectus or either
Registration Statement to comply with the Securities Act or the Securities Act
Regulations, or to file under the Exchange Act so as to comply therewith any
document incorporated by reference in the Registration Statements or the
Prospectus or in any amendment thereof or supplement thereto, the Company will
notify the Underwriters promptly and prepare and file with the Commission an
appropriate amendment or supplement (in form and substance satisfactory to the
Underwriters) which will correct such statement or omission or which will effect
such compliance.
(c) The Company has delivered to the Underwriters four
signed copies of the Second Registration Statement as originally filed,
including exhibits and all documents incorporated or deemed to be incorporated
by reference therein and all amendments thereto, and the Company will promptly
deliver to each of the Underwriters, from time to time during the period that
the Prospectus is required to be delivered under the Securities Act or the
Exchange Act, such number of copies of the Prospectus and the Registration
Statements, and all amendments of and supplements to such documents, if any, as
the Underwriters may reasonably request.
(d) The Company will endeavor in good faith, in cooperation
with the Underwriters, to qualify the Shares and the Common Shares for offering
and sale under the securities laws relating to the offering or sale of the
Shares and the Common Shares of such jurisdictions as the Underwriters may
designate and to maintain such qualification in effect for so long as required
for the distribution thereof; except that in no event shall the Company be
obligated in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process.
(e) The Company will make generally available (within the
meaning of Section 11(a) of the Securities Act) to its security holders and to
the Underwriters as soon as practicable, but not later than 45 days after the
end of its fiscal quarter in which the first anniversary date of the effective
date of the Second Registration Statement occurs (or if such fiscal quarter is
the Company's fourth fiscal quarter, not later than 90 days after the end of
such quarter), an earnings statement (in form complying with the provisions of
Rule 158 of the Regulations) covering a period of at least twelve consecutive
months beginning after the effective date of the Second Registration Statement
(as defined in Rule 158(c) under the Securities Act).
(f) During the period of 60 days from the date of the
Prospectus, the Company and the Operating Partnership will not, directly or
indirectly without the prior written
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consent of Bear, ▇▇▇▇▇▇▇ & Co. Inc., issue, sell, offer or agree to sell, grant
any option to purchase, or otherwise dispose (or announce any offer, sale, grant
of an option to purchase or other disposition) of, any shares of Common Stock
(or any securities convertible into, exchangeable or exercisable for shares of
Common Stock), other than (i) the Company's sale of Shares hereunder and the
Company's issuance of Common Stock upon the exercise of stock options
outstanding at the date of the Prospectus, (ii) the exchange of outstanding
units in the Operating Partnership for Common Stock, (iii) the issuance, in
connection with bona fide acquisitions of real property or interests therein, to
the sellers of such property, of shares of Common Stock or units in the
Operating Partnership such that the aggregate number of shares of Common Stock
issued, or which may be issued upon conversion or exchange of such units, will
not exceed 3,500,000 (the "Permitted Securities"); provided, however, that as a
precondition to any such issuance, the Company or the Operating Partnership, as
the case may be, shall obtain the undertaking of each such holder that it will
not engage in any of the aforementioned transactions during the period of 60
days from the date of the Prospectus and place on the face of any such Permitted
Security a legend to that effect.
(g) Reserved.
(h) During a period of three years from the date of the
Prospectus, the Company will furnish to the Underwriters copies of (i) all
reports to its stockholders; and (ii) all reports, financial statements and
proxy or information statements filed by the Company with the Commission or any
national securities exchange.
(i) The Company will apply the proceeds from the sale of the
Shares as set forth under "Use of Proceeds" in the Base Prospectus and the
Prospectus Supplement.
(j) Immediately following the execution of this Agreement,
the Company will prepare a prospectus supplement, dated the date hereof (the
"Prospectus Supplement"), containing the plan of distribution of the Shares and
such other information as may be required by the Securities Act or the
Securities Act Regulations or as the Representatives and the Company deem
appropriate, and will file or transmit for filing with the Commission in
accordance with Rule 424(b) of the Securities Act Regulations copies of the
Prospectus (including such Prospectus Supplement).
(k) If the Company elects to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement, no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission, and all requests for additional information on the
part of the Commission shall have been complied with to the Underwriters'
reasonable satisfaction.
(l) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act or the Exchange Act, will file
all documents required to
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be filed with the Commission pursuant to Sections 13, 14 or 15 of the Exchange
Act within the time periods required by the Exchange Act and the rules and
regulations thereunder.
5. Payment of Expenses. Whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
the Company hereby agrees to pay all costs and expenses incident to the
performance of the obligations of the Company hereunder, including those in
connection with (i) preparing, printing, duplicating, filing and distributing
the Registration Statements, as originally filed and all amendments thereof
(including all exhibits thereto), any Preliminary Prospectus, the Prospectus and
any amendments or supplements thereto (including, without limitation, fees and
expenses of the Company's accountants and counsel), the underwriting documents
(including this Agreement, the Agreement Among Underwriters and the Selling
Agreement) and all other documents related to the public offering of the Shares
and the issuance and delivery of the Common Shares (including those supplied to
the Underwriters in quantities as hereinabove stated), (ii) the issuance,
transfer and delivery of the Shares and the Common Shares, including any
transfer or other taxes payable thereon, (iii) the qualification of the Shares
and the Common Shares under state or foreign securities or Blue Sky laws,
including the costs of printing and mailing a preliminary and final "Blue Sky
Memorandum" and the fees of counsel in connection therewith and such counsel's
disbursements in relation thereto, (iv) listing the Shares and the Common Shares
on the NYSE, (v) filing fees of the Commission and the National Association of
Securities Dealers, Inc. (the "NASD"), (vi) the cost of printing certificates
representing the Shares and the Common Shares and (vii) the cost and charges of
any transfer agent or registrar; provided, however, except as provided for in
Section 11, that the Company shall have no obligation to reimburse the
Underwriters or the Representatives for (a) fees, disbursements and
out-of-pocket expenses of counsel for the Underwriters other than pursuant to
clause (iii) above or (b) expenses in connection with the offering that are
customarily borne by the underwriters in public offerings of securities of real
estate investment trusts.
6. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Firm Shares and the Additional
Shares, as provided herein, shall be subject to the accuracy of the
representations and warranties of the Company and the Operating Partnership
herein contained, as of the date hereof and as of the Closing Date (for purposes
of this Section 6, "Closing Date" shall refer to the Closing Date for the Firm
Shares and any Additional Closing Date, if different, for the Additional
Shares), to the absence from any certificates, opinions, written statements or
letters furnished to the Underwriters or to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ("Underwriters'
Counsel") pursuant to this Section 6 of any misstatement or omission, to the
performance by the Company and the Operating Partnership of their respective
obligations hereunder, and to the following additional conditions:
(a) On the Closing Date, no stop order suspending the
effectiveness of either Registration Statement shall have been issued under the
Securities Act or proceedings therefor initiated or threatened by the
Commission. The Prospectus (including the Prospectus Supplement referred to in
Section 4(j) hereof) shall have been filed or transmitted for filing with the
Commission pursuant to Rule 424(b) of the Securities Act Regulations within the
prescribed
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time period, and prior to Closing Date the Company shall have provided evidence
satisfactory to the Underwriters of such timely filing or transmittal.
(b) On the Closing Date the Underwriters shall have received
the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company and the
Operating Partnership, dated the Closing Date addressed to the Underwriters and
in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Maryland.
(ii) The Company is duly qualified and in good standing
as a foreign corporation in each jurisdiction in which the
character or location of its properties (owned, leased or
licensed) or the nature or conduct of its business makes such
qualification necessary, except for those failures to be so
qualified or in good standing which will not in the aggregate
have a material adverse effect on the Company, the Operating
Partnership and their respective subsidiaries, taken as a whole.
(iii) The Company has all requisite corporate power and
authority to own, lease and operate its properties and conduct
its business as now being conducted and as described in the
Second Registration Statement and in the Prospectus.
(iv) The Operating Partnership has been duly formed
under the laws of the State of California, with a stated term
beyond the term of the documents being executed in connection
with the transactions contemplated hereby; the partnership
agreement of the Operating Partnership has been duly authorized,
executed and delivered by each partner thereto and is valid,
legally binding and enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and by the effect of general principles of
equity; and all of the partnership interests in the Operating
Partnership have been duly and validly authorized and issued and
(except as described in the Prospectus) the partnership
interests owned directly or indirectly by the Company are free
and clear of all liens, encumbrances, equities or claims. All
issued and outstanding securities of the Operating Partnership
have been duly and validly authorized and issued in compliance
with the federal and state securities laws. The units of the
Operating Partnership issued in connection with the acquisitions
described in the Prospectus Supplement under the caption "Recent
Activities" were duly and validly issued in compliance with the
federal and state securities laws.
(v) The Operating Partnership has been duly qualified
as a foreign limited partnership and is in good standing in each
jurisdiction in which the character or location of its
properties (owned, leased or licensed) or the nature or conduct
of its business makes such qualification necessary, except for
those failures to be so qualified or in good standing which will
not in the aggregate have a material adverse
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effect on the Company, the Operating Partnership and their
respective subsidiaries, taken as a whole.
(vi) The Operating Partnership has all requisite power
and authority to own, lease and operate its properties and
conduct its business as now being conducted and as described in
the Second Registration Statement and the Prospectus.
(vii) Each subsidiary of the Company or the Operating
Partnership that is a "significant subsidiary" (as such term is
defined in Rule 1-02 of Regulation S-X of the Commission)
(collectively, the "Material Subsidiaries") has been duly
organized and is validly existing as a corporation or
partnership in good standing under the laws of the jurisdiction
of its organization.
(viii) Each Material Subsidiary is duly qualified and in
good standing as a foreign corporation or partnership in each
jurisdiction in which the character or location of its
properties (owned, leased or licensed) or the nature or conduct
of its business makes such qualification necessary, except for
those failures to be so qualified or in good standing which will
not in the aggregate have a material adverse effect on the
Company, the Operating Partnership and their respective
subsidiaries taken as a whole.
(ix) Each Material Subsidiary has all requisite power
and authority to own, lease and operate its properties and
conduct its business as now being conducted and as described in
the Second Registration Statement and the Prospectus.
(x) All of the capital stock or partnership units in
each Material Subsidiary (including the Operating Partnership)
has been duly and validly authorized and issued and (except as
described in the Prospectus) such capital stock or partnership
units owned directly or indirectly by the Company or the
Operating Partnership, as the case may be, are free and clear of
all liens, encumbrances, equities or claims.
(xi) The Company has an authorized capital stock as set
forth in the Second Registration Statement and the Prospectus.
All of the outstanding shares of Common Stock are duly and
validly authorized and issued, are fully paid and nonassessable.
The Shares to be delivered on the Closing Date have been duly
and validly authorized and, when delivered by the Company in
accordance with this Agreement, will be duly and validly issued,
fully paid and nonassessable and will not have been issued in
violation of or subject to any preemptive rights.
(xii) The Common Shares issuable upon conversion of the
Shares have been duly and validly authorized and reserved for
issuance and delivery upon such conversion by all necessary
corporate action and such shares, when issued and delivered by
the Company upon conversion of the Shares and in accordance with
the provisions of the Articles Supplementary relating to the
Preferred Stock, will be validly issued, fully paid and
nonassessable and will not have been issued in violation of or
be subject to any preemptive rights.
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(xiii) The Common Stock, the Preferred Stock, the Shares,
the Common Shares and the Articles Supplementary relating to the
Preferred Stock conform to the respective descriptions thereof
contained in the Prospectus.
(xiv) The forms of certificates used to evidence the
Shares and the Common Shares are in due and proper form and
comply with all applicable statutory requirements.
(xv) The Common Stock currently outstanding is listed on
the NYSE, and the Shares to be sold under this Agreement to the
Underwriters are duly authorized for listing, on the NYSE.
(xvi) This Agreement and the transactions contemplated
herein have been duly and validly authorized by the Company and
the Operating Partnership and this Agreement has been duly and
validly executed and delivered by the Company and the Operating
Partnership.
(xvii) To the best knowledge of such counsel and except
as described in the Prospectus, there is no litigation or
governmental proceeding to which the Company, the Operating
Partnership or any of the Material Subsidiaries is a party or to
which any property of the Company, the Operating Partnership or
any of the Material Subsidiaries is subject or which is pending
or contemplated against the Company, the Operating Partnership
or any of the Material Subsidiaries which might result in any
material adverse change or any development involving a material
adverse change in the business, business prospects, properties,
operations, condition (financial or other) or results of
operations of the Company, the Operating Partnership and their
respective subsidiaries taken as a whole, which might materially
and adversely affect the transactions contemplated by this
Agreement or which is required to be disclosed in the Second
Registration Statement and the Prospectus. The descriptions of
litigation matters in the Base Prospectus under the captions
"Risk Factors -- Litigation Related to Consolidation" and "Risk
Factors -- Chapter 11 Reorganization of Partnership
Consolidation by Senior Management" are complete and accurate in
all material respects.
(xviii) The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated
hereby (including the issuance and sale of the Shares and the
issuance of the Common Shares upon conversion of the Shares) do
not and will not (A) conflict with or result in a breach of any
of the terms and provisions of, or constitute a default (or an
event which with notice or lapse of time, or both, would
constitute a default) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property
or assets of the Company, the Operating Partnership or any of
the Material Subsidiaries pursuant to any agreement, instrument,
franchise, license or permit known to such counsel to which the
Company, the Operating Partnership or any of the Material
Subsidiaries is a party or by which any of such entities or
their respective properties or assets may be bound that is
material to the Company, the Operating Partnership and their
subsidiaries, taken as a whole (collectively,
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the "Material Contracts"), except for those conflicts, breaches
or defaults that would not have a material adverse effect on the
Company, the Operating Partnership and their subsidiaries taken
as a whole, or (B) violate or conflict with any provision of the
partnership agreement of the Operating Partnership, the
certificate of incorporation or by-laws of the Company or the
organizational documents of any of the Material Subsidiaries,
or, to the best knowledge of such counsel, any judgment, decree,
order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction
over the Company, the Operating Partnership or any of the
Material Subsidiaries or any of their respective properties or
assets, except for those violations or conflicts that would not
have a material adverse effect on the Company, the Operating
Partnership and their subsidiaries, taken as a whole. To such
counsel's knowledge, no consent, approval, authorization, order,
registration, filing, qualification, license or permit of or
with any court or any public, governmental or regulatory agency
or body having jurisdiction over the Company, the Operating
Partnership or any of the Material Subsidiaries or any of their
respective properties or assets is required for the execution,
delivery and performance of this Agreement or the consummation
of the transactions contemplated hereby, except for (A) such as
may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares and
the issuance of the Common Shares upon conversion of the Shares
(as to which such counsel need express no opinion) and (B) such
as have been made or obtained under the Securities Act or the
rules of the NYSE.
(xix) At the time the Second Registration Statement
became effective and on the date hereof, the Second Registration
Statement and the Prospectus as amended or supplemented (other
than the financial statements and schedules and other financial
data included or incorporated by reference therein, as to which
no opinion need be rendered) complied and comply as to form in
all material respects with the requirements of the Securities
Act and the Securities Act Regulations.
(xx) The documents incorporated or deemed to be
incorporated by reference in the Prospectus (other than the
financial statements and schedules and other financial data
included or incorporated by reference therein, as to which no
opinion need be rendered), at the time they were filed with the
Commission, complied as to form in all material respects with
the requirements of the Securities Act and the Securities Act
Regulations.
(xxi) Each of the Registration Statements, including any
Rule 462(b) Registration Statement, is effective under the
Securities Act, and, to the best knowledge of such counsel, no
stop order suspending the effectiveness of either Registration
Statement or any post-effective amendment thereof or the Rule
462(b) Registration Statement has been issued and no proceedings
therefor have been initiated or threatened by the Commission.
Any required filing of the Prospectus and any supplement thereto
pursuant to Rule 424(b) under the Regulations has been made in
the manner and within the time period required by such Rule
424(b).
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(xxii) To the best knowledge of such counsel and except
as described or incorporated by reference in the Prospectus, no
holder of securities of the Company or the Operating Partnership
has any rights to the registration of securities of the Company
or securities of the Operating Partnership that are convertible,
exchangeable or exercisable for securities of the Company
because of the filing of either Registration Statement or
otherwise in connection with the sale of the Shares contemplated
hereby.
(xxiii) Commencing with its fiscal year ending December
31, 1996, the Company has been organized in conformity with the
requirements for qualification as a REIT and its method of
operation enables it to continue to meet the requirements for
qualification and taxation as a REIT under the Code, and the
conversion rights of the limited partners of the Operating
Partnership or of other holders of securities of the Operating
Partnership will not cause the Company to fail to be "closely
held" within the meaning of Section 856(a)(6) of the Code.
(xxiv) The Operating Partnership is properly treated (A)
as a partnership for federal income tax purposes and (B) not as
an association or publicly traded partnership taxable as a
corporation.
(xxv) Neither the Company, the Operating Partnership nor
any Material Subsidiary is, or, after giving effect to the issue
and sale of the Shares by the Company will be, an "investment
company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940.
(xxvi) The statements in (i) the Base Prospectus under
the captions "Description of Preferred Stock", "Description of
Common Stock", "Description of Warrants", "Risk Factors --
Certain Tax Risks", "Certain Provisions of the Company's Charter
and Bylaws" and "Federal Income Tax Consequences", (ii) the
Prospectus Supplement under the captions "Description of Series
A Preferred Stock" and "Certain Federal Income Tax
Considerations" and (iii) in Item 15 of the Second Registration
Statement, insofar as such statements constitute matters of law,
summaries of legal matters, the Company's charter or by-law
provisions, legal documents or legal proceedings, or legal
conclusions, have been reviewed by such counsel and, as of the
date of the Prospectus Supplement and as of the Closing Date
hereof, fairly present and summarize, in all material respects,
the matters referred to therein.
(xxvii) In addition, such opinion shall also contain a
statement that such counsel has participated in conferences with
officers and representatives of the Company and the Operating
Partnership, representatives of the independent public
accountants for the Company and the Operating Partnership and
the Underwriters at which the contents of the Second
Registration Statement and the Prospectus and related matters
were discussed and, although they are not passing upon, and do
not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Second Registration
Statement or Prospectus or incorporated by reference therein,
and they have not made any independent check or verification
thereof, on the basis of the
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foregoing, no facts have come to the attention of such counsel
which would lead such counsel to believe that either the Second
Registration Statement at the time it became effective
(including the information incorporated by reference therein or
deemed to be part of the Second Registration Statement, as
amended (except for financial statements and schedules and other
financial or statistical data included or incorporated by
reference therein, as to which such counsel need make no
statement) or any subsequent amendment thereof made prior to the
Closing Date as of the date of such amendment, contained an
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus,
including the documents incorporated or deemed to be
incorporated by reference therein (except for financial
statements and schedules and other financial or statistical data
included or incorporated by reference therein, as to which
counsel need make no statement), as of the date it was first
provided by the Company to the Underwriters for use in
connection with the offer and sale of the Shares and as of the
Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state any material fact
required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
(xxviii) In rendering such opinion, such counsel may rely
as to matters involving the application of laws other than the
laws of the United States, California and any other
jurisdictions in which they are admitted, to the extent such
counsel deems proper and to the extent specified in such
opinion, if at all, upon an opinion or opinions (in form and
substance reasonably satisfactory to Underwriters' Counsel) of
other counsel familiar with the applicable laws and reasonably
acceptable to Underwriters' Counsel; provided, that such opinion
shall expressly state that the Underwriters may rely on such
opinion as if it were addressed to them. In rendering such
opinion, such counsel may rely as to matters of fact, to the
extent they deem proper, on certificates of responsible officers
of the Company and the Operating Partnership and certificates or
other written statements of officers of departments of various
jurisdictions having custody of documents respecting the
existence or good standing of the Company, the Operating
Partnership and their respective subsidiaries, provided that
such opinion shall state that such counsel and the Underwriters
are justified in so relying upon any such certificate. The
opinion of such counsel for the Company shall state that the
opinion of any such other counsel is in form satisfactory to
such counsel and, in their opinion, the Underwriters and they
are justified in relying thereon.
(c) All proceedings taken in connection with the sale of the
Firm Shares and the Additional Shares as herein contemplated shall be
satisfactory in form and substance to the Underwriters and to Underwriters'
Counsel, and the Underwriters shall have received from Underwriters' Counsel a
favorable opinion, dated as of the Closing Date with respect to the issuance and
sale of the Shares, the Second Registration Statement and the Prospectus and
such other related matters as the Underwriters may reasonably require, and the
Company shall have furnished to Underwriters' Counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
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(d) At the Closing Date the Underwriters shall have received
a certificate of the Chief Executive Officer and Chief Financial Officer of the
Company on behalf of the Company and as the sole general partner of the
Operating Partnership, dated the Closing Date to the effect that (i) the
condition set forth in subsection (a) of this Section 6 has been satisfied, (ii)
as of the date hereof and as of the Closing Date the representations and
warranties of the Company and the Operating Partnership set forth in Section 1
hereof are accurate, (iii) as of the Closing Date the obligations of the Company
and the Operating Partnership to be performed hereunder on or prior thereto have
been duly performed and (iv) subsequent to the respective dates as of which
information is given in the Second Registration Statement and the Prospectus,
the Company, the Operating Partnership and their respective subsidiaries have
not sustained any material loss or interference with their respective businesses
or properties from fire, flood, hurricane, accident or other calamity, whether
or not covered by insurance, or from any labor dispute or any legal or
governmental proceeding, and there has not been any material adverse change in
the business, business prospects, properties, operations, condition (financial
or other), or results of operations of the Company or the Operating Partnership
and their respective subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except in each case as
described in or contemplated by the Prospectus in the form first provided by the
Company to the Underwriters for use in connection with the offer and sale of the
Shares.
(e) At the time this Agreement is executed and at the
Closing Date, the Underwriters shall have received a letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP, independent public accountants for the Company, dated, respectively, as of
the date of this Agreement and as of the Closing Date addressed to the
Underwriters and in form and substance satisfactory to the Underwriters,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to financial
statements and certain information of the Company and its subsidiaries contained
or incorporated by reference in the Registration Statements and the Prospectus.
(f) Prior to the Closing Date the Company and the Operating
Partnership shall have furnished to the Underwriters such further information,
certificates and documents as they may reasonably request.
(g) Reserved.
(h) At the Closing Date, the Shares and the Common Shares
shall have been approved for listing on the NYSE and registered pursuant to
Section 12(g) of the Exchange Act, and the Company shall have taken no action
designed to, or likely to have the effect of, terminating such registration.
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to the
Underwriters or to Underwriters' Counsel pursuant to this Section 6 shall not be
in all material respects reasonably satisfactory in form and substance to the
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Underwriters and to Underwriters' Counsel, all obligations of the Underwriters
hereunder may be canceled by the Underwriters at, or at any time prior to, the
Closing Date and the obligations of the Underwriters to purchase the Additional
Shares may be canceled by the Underwriters at, or at any time prior to, the
Additional Closing Date. Notice of such cancellation shall be given to the
Company in writing, or by telephone, telex or telegraph, confirmed in writing.
7. Indemnification.
(a) The Company and the Operating Partnership, jointly and
severally, agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act against any and all
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
either Registration Statement, as originally filed or any amendment thereof, or
any related preliminary prospectus, preliminary prospectus supplement or the
prospectus, or in any supplement thereto or amendment thereof, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that neither the Company nor the Operating
Partnership will be liable in any such case (i) to the extent but only to the
extent that any such loss, liability, claim, damage or expense arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company or the Operating Partnership by or on
behalf of any Underwriter expressly for use therein and (ii) with respect to any
preliminary prospectus or preliminary prospectus supplement to the extent that
any such loss, claim, damage or liability results from the fact that an
Underwriter sold Shares to a person as to whom there was not sent or given, at
or prior to written confirmation of such sale, a copy of the prospectus or
prospectus supplement as then amended or supplemented in any case where such
delivery is required by the Securities Act if the Company has previously
furnished copies thereof to such Underwriter and the loss, claim, damage or
liability of the Underwriters results from an untrue statement or omission of a
material fact contained in the preliminary prospectus or preliminary prospectus
supplement which was corrected in the prospectus or prospectus supplement as
then amended. This indemnity agreement will be in addition to any liability
which the Company and the Operating Partnership may otherwise have including
under this Agreement.
(b) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the Company,
each of the officers of the Company who shall have signed the Registration
Statements, the Operating Partnership and each other person, if any, who
controls the Company or the Operating Partnership within the meaning of Section
15 of the Securities Act or Section 20(a) of the Exchange Act, against any
losses,
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liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in either Registration Statement, as
originally filed or any amendment thereof, or any related preliminary
prospectus, preliminary prospectus supplement or prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company or the
Operating Partnership by or on behalf of any Underwriter expressly for use
therein; provided, however, that in no case shall any Underwriter be liable or
responsible for any amount in excess of the underwriting discount applicable to
the Shares purchased by such Underwriter hereunder. This indemnity will be in
addition to any liability which any Underwriter may otherwise have including
under this Agreement. The Company and the Operating Partnership acknowledge that
the statements set forth in (i) the last paragraph of the outside front cover of
the Prospectus Supplement, concerning the delivery of the shares of Common Stock
to the Underwriters and the offering of such shares by the Underwriters; (ii)
the paragraph on the inside front cover of the Prospectus Supplement, concerning
transactions that stabilize, maintain, or otherwise affect the price of the
Common Stock or the Preferred Stock; (iii) the second paragraph under the
caption "Underwriting" in the Prospectus Supplement, concerning the proposed
public offering price, discount and concession; and (iv) the last paragraph
under the caption "Plan of Distribution" in the Base Prospectus and the sixth
paragraph under the caption "Underwriting" in the Prospectus Supplement,
concerning transactions that stabilize, maintain, or otherwise affect the price
of the Common Stock or the Preferred Stock, constitute the only information
furnished in writing by or on behalf of any Underwriter expressly for use in the
Second Registration Statement, as originally filed or in any amendment thereof,
any related Preliminary Prospectus or preliminary prospectus supplement or the
Prospectus or in any amendment thereof or supplement thereto, as the case may
be.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7, except to the extent that it
has been prejudiced in any material respect by such failure or from any
liability that it may have otherwise). In case any such action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel
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satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action, or
(iii) such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those available to one or all of the indemnifying parties (in
which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by the indemnifying parties.
Anything in this subsection to the contrary notwithstanding, an indemnifying
party shall not be liable for any settlement of any claim or action effected
without its written consent; provided, however, that such consent was not
unreasonably withheld.
8. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 7 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company, the
Operating Partnership and the Underwriters shall contribute to the aggregate
losses, claims, damages, liabilities and expenses of the nature contemplated by
such indemnification provision (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claims asserted, but after deducting in the
case of losses, claims, damages, liabilities and expenses suffered by the
Company or the Operating Partnership any contribution received by the Company or
the Operating Partnership from persons, other than the Underwriters, who may
also be liable for contribution, including persons who control the Company or
the Operating Partnership within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act, officers of the Company who signed the
Registration Statements and directors of the Company) as incurred to which the
Company, the Operating Partnership and one or more of the Underwriters may be
subject, in such proportions as is appropriate to reflect the relative benefits
received by the Company, the Operating Partnership and the Underwriters from the
offering of the Shares or, if such allocation is not permitted by applicable law
or indemnification is not available as a result of the indemnifying party not
having received notice as provided in Section 7 hereof, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company, the Operating Partnership and the
Underwriters in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Operating Partnership on the one hand and the Underwriters on the other
hand shall be deemed to be in the same proportion as (x) the total proceeds from
the offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and (y) the underwriting discounts and
commissions received by the Underwriters, respectively, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault of
the Company, the Operating Partnership, and the Underwriters shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
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26
material fact relates to information supplied by the Company, the Operating
Partnership, or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Operating Partnership and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above. Notwithstanding
the provisions of this Section 8, (i) in no case shall any Underwriter be liable
or responsible for any amount in excess of the underwriting discount applicable
to the Shares purchased by such Underwriter hereunder, and (ii) no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Notwithstanding the provisions of
this Section 8 and the preceding sentence, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. For purposes of this Section 8, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act shall have the same rights
to contribution as such Underwriter, and each person, if any, who controls the
Company or the Operating Partnership within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, each officer of the Company
who shall have signed the Registration Statements and each director of the
Company shall have the same rights to contribution as the Company or the
Operating Partnership, as the case may be, subject in each case to clauses (i)
and (ii) of this Section 8. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 8 or otherwise. No party
shall be liable for contribution with respect to any action or claim settled
without its consent; provided, however, that such consent was not unreasonably
withheld.
9. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its
or their obligation to purchase Firm Shares or Additional Shares hereunder, and
if the Firm Shares or Additional Shares with respect to which such default
relates do not (after giving effect to arrangements, if any, made by the
Underwriters pursuant to subsection (b) below) exceed in the aggregate 10% of
the number of Firm Shares or Additional Shares, the Firm Shares or Additional
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase shall be purchased by the non-defaulting Underwriters in
proportion to the respective proportions which the numbers of Firm Shares set
forth opposite their respective names in Schedule I hereto bear to the aggregate
number of Firm Shares set forth opposite the names of the non-defaulting
Underwriters.
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(b) In the event that such default relates to more than 10%
of the Firm Shares or Additional Shares, as the case may be, the Underwriters
may in their discretion arrange for themselves or for another party or parties
(including any non-defaulting Underwriter or Underwriters who so agree) to
purchase such Firm Shares or Additional Shares, as the case may be, to which
such default relates on the terms contained herein. In the event that within 5
calendar days after such a default the Underwriters do not arrange for the
purchase of the Firm Shares or Additional Shares, as the case may be, to which
such default relates as provided in this Section 9, this Agreement, or in the
case of a default with respect to the Additional Shares, the obligations of the
Underwriters to purchase and of the Company to sell the Additional Shares, shall
thereupon terminate, without liability on the part of the Company with respect
thereto (except in each case as provided in Section 5, 7(a) and 8 hereof) or the
Underwriters, but nothing in this Agreement shall relieve a defaulting
Underwriter or Underwriters of its or their liability, if any, to the other
Underwriters and the Company for damages occasioned by its or their default
hereunder.
(c) In the event that the Firm Shares or Additional Shares
to which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
the Underwriters or the Company shall have the right to postpone the Closing
Date or Additional Closing Date, as the case may be for a period, not exceeding
five business days, in order to effect whatever changes may thereby be made
necessary in the Registration Statements or the Prospectus or in any other
documents and arrangements, and the Company agrees to file promptly any
amendment or supplement to the Registration Statements or the Prospectus which,
in the opinion of Underwriters' Counsel, may thereby be made necessary or
advisable. The term "Underwriter" as used in this Agreement shall include any
party substituted under this Section 9 with like effect as if it had originally
been a party to this Agreement with respect to such Firm Shares or Additional
Shares.
10. Survival of Representations and Agreements. All
representations and warranties, covenants and agreements of the Underwriters,
the Company and the Operating Partnership contained in this Agreement, including
the agreements contained in Section 5, the indemnity agreements contained in
Section 7 and the contribution agreements contained in Section 8, shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of any Underwriter or any controlling person thereof or by or on
behalf of the Company, any of its officers and directors, the Operating
Partnership or any controlling person of the Company or the Operating
Partnership, and shall survive delivery of and payment for the Shares to and by
the Underwriters. The representations contained in Section 1 and the agreements
contained in Sections 5, 7, 8 and 11(d) hereof shall survive the termination of
this Agreement, including termination pursuant to Section 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the execution
of this Agreement.
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(b) The Underwriters shall have the right to terminate this
Agreement at any time prior to the Closing Date or the obligations of the
Underwriters to purchase the Additional Shares at any time prior to the
Additional Closing Date, as the case may be, if (A) any domestic or
international event or act or occurrence has materially disrupted, or in the
Underwriters' opinion will in the immediate future materially disrupt, the
market for the Company's securities or securities in general; or (B) if trading
on the NYSE or the American Stock Exchange shall have been suspended, or minimum
or maximum prices for trading shall have been fixed, or maximum ranges for
prices for securities shall have been required, on the NYSE or the American
Stock Exchange by such exchanges or by order of the Commission or any other
governmental authority having jurisdiction; or (C) if a banking moratorium has
been declared by a state or federal authority or if any new restriction
materially adversely affecting the distribution of the Firm Shares or the
Additional Shares, as the case may be, shall have become effective; or (D) there
shall have occurred any Material Adverse Change with respect to the Company, the
Operating Partnership and their respective subsidiaries taken as a whole; or (E)
(i) if the United States becomes engaged in hostilities or there is an
escalation of hostilities involving the United States or there is a declaration
of a national emergency or war by the United States or (ii) if there shall have
been such change in political, financial or economic conditions if the effect of
any such event in (i) or (ii) as in the Underwriters' judgment makes it
impracticable or inadvisable to proceed with the offering, sale and delivery of
the Firm Shares or the Additional Shares, as the case may be, on the terms
contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 11
shall be by telephone, telex, or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any of
the provisions hereof (otherwise than pursuant to Section 9(b) or 11(b) hereof),
or if the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof, the
Company will, subject to demand by the Underwriters, reimburse the Underwriters
for all out-of-pocket expenses (including the fees and expenses of their
counsel), incurred by the Underwriters in connection herewith.
12. Notices. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing and, if sent to any
Underwriter, shall be mailed, delivered, or telexed or telegraphed and confirmed
in writing, to such Underwriter c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ (with a copy, which shall not
constitute notice, to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇); if sent to the Company or the
Operating Partnership, shall be mailed, delivered, or telegraphed and confirmed
in writing to the Company at ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇.
13. Parties. This Agreement shall inure solely to the benefit
of, and shall be binding upon, the Underwriters, the Company, the Operating
Partnership and the controlling
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persons, directors, officers, employees and agents referred to in Section 7 and
8, and their respective successors and assigns, and no other person shall have
or be construed to have any legal or equitable right, remedy or claim under or
in respect of or by virtue of this Agreement or any provision herein contained.
The term "successors and assigns" shall not include a purchaser, in its capacity
as such, of Shares from any of the Underwriters.
14. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in such State, without regard to principles
of conflicts of law.
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If the foregoing correctly sets forth the understanding among
the Underwriters, the Company and the Operating Partnership, please so indicate
in the space provided below for that purpose, whereupon this letter shall
constitute a binding agreement among us.
Very truly yours,
GLENBOROUGH REALTY TRUST INCORPORATED
By_______________________________________
Name_____________________________________
Title____________________________________
GLENBOROUGH PROPERTIES, L.P.
By Glenborough Realty Trust Incorporated
Its General Partner
By_______________________________________
Name_____________________________________
Title____________________________________
Accepted as of the date first above written
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇. ▇▇▇▇▇ INCORPORATED
On behalf of themselves and the other Underwriters named in Schedule I hereto.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By_______________________________________
Name_____________________________________
Title____________________________________
31
SCHEDULE I
NUMBER OF FIRM
NAME OF UNDERWRITER SHARES TO BE PURCHASED
Bear, ▇▇▇▇▇▇▇ & Co. Inc. .................................................... 3,440,000
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ........................................................... 2,580,000
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ .............................................. 1,290,000
BT Alex. ▇▇▇▇▇ Incorporated ................................................. 1,290,000
▇▇▇▇▇▇ and S. Bleichroeder, Inc. .............................................. 200,000
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. ........................................................ 200,000
Cruttenden ▇▇▇▇ Incorporated .................................................. 200,000
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. .........................................200,000
▇▇▇▇▇▇▇▇▇ & Company, Inc. ..................................................... 200,000
▇▇▇▇▇▇▇▇ & Company Securities, Inc. ........................................... 200,000
The Shemano Group, Inc. ....................................................... 200,000
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Total ...................................................................... 10,000,000
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