MERIDIAN INDUSTRIAL TRUST, INC.
8.75% SERIES D CUMULATIVE REDEEMABLE PREFERRED STOCK
(LIQUIDATION PREFERENCE $25.00 PER SHARE)
(PAR VALUE $.001 PER SHARE)
----------------------
UNDERWRITING AGREEMENT
----------------------
June 24, 1998
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
TO THE REPRESENTATIVES OF THE SEVERAL
UNDERWRITERS NAMED IN THE RESPECTIVE
PRICING AGREEMENTS HEREINAFTER DESCRIBED.
Ladies and Gentlemen:
From time to time Meridian Industrial Trust, Inc., a Maryland
corporation (the "Company"), proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with
such additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, to issue and
sell to the firms named in Schedule I to the applicable Pricing Agreement
(such firms constituting the "Underwriters" with respect to such Pricing
Agreement and the securities specified therein) certain shares of its
Preferred Stock (the "Shares"). The shares of Preferred Stock specified in
such Pricing Agreement are referred to as the "Firm Shares" with respect to
such Pricing Agreement and the shares of Preferred Stock represented by such
Pricing Agreement are referred to as the shares of "Designated Preferred
Stock" with respect to such Pricing Agreement. If specified in such Pricing
Agreement, the Company may grant the Underwriters the right to purchase at
their election an additional number of shares of Preferred Stock, specified
as provided in such Pricing Agreement as provided in Section 3 hereof (the
"Optional Shares"). The Firm Shares and the Optional Shares, if any, which
the Underwriters elect to purchase pursuant to Section 3 hereof are herein
collectively referred to as the "Designated Shares."
The terms and rights of any particular issuance of Designated Shares
shall be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Shares may be made from time to time
to the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The
term "Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to Underwriters who act without any
firm being designated as their representative. This Underwriting Agreement
shall not be construed as an obligation of
the Company to sell any of the Shares or as an obligation of any of the
Underwriters to purchase any of the Shares. The obligation of the Company to
issue and sell any of the Shares and the obligation of any of the
Underwriters to purchase any of the Shares shall be evidenced by the Pricing
Agreement with respect to the Designated Shares specified therein. Each
Pricing Agreement shall specify the aggregate number of the Firm Shares, the
maximum number of Optional Shares, if any, the initial public offering price
of such Firm and Optional Shares or the manner of determining such price, the
terms of the Designated Shares, including the terms on which and terms of the
securities into which the Designated Shares may be convertible or
exchangeable, whether the Designated Shares will be represented by Depositary
Shares, the name of the Depositary, if any, and Date of the Deposit
Agreement, the purchase price to the Underwriters of such Designated Shares,
the names of the Underwriters of such Designated Shares, the names of the
Representatives of such Underwriters, the number of such Designated Shares to
be purchased by each Underwriter and the commission, if any, payable to the
Underwriters with respect thereto and shall set forth the date, time and
manner of delivery of such Firm and Optional Shares, if any, and payment
therefor. The Pricing Agreement shall also specify (to the extent not set
forth in the registration statement and prospectus with respect thereto) the
terms of such Designated Shares. A Pricing Agreement shall be in the form of
an executed writing (which may be in counterparts), and may be evidenced by
an exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted.
The obligations of the Underwriters under this Agreement and each Pricing
Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-24579) (the
Initial Registration Statement") in respect of the Shares has been filed
with the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to the Initial Registration Statement, but
including all documents incorporated by reference in the prospectus
included therein, to the Representatives for each of the other Underwriters
have been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has heretofore been
filed, or transmitted for filing, 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); and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or, to the knowledge of the
Company, threatened by the Commission (any preliminary prospectus included
in the Initial Registration Statement or filed with the Commission pursuant
to Rule 424(a) under the Act, is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement and
the Rule 462(b) Registration Statement, if any, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the Initial Registration Statement at the time such part of
the Initial Registration Statement became
[PAGE ]
effective or such part of the Rule 462(b) Registration Statement, if any,
became or hereafter becomes effective, each as amended at the time such
part of the Initial Registration Statement became effective, are
hereinafter collectively called the "Registration Statement"; the
prospectus relating to the Shares, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, is hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under
the Act, as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be deemed
to refer to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Initial Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Shares in the form
in which it is filed with the Commission pursuant to Rule 424(b) under the
Act in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Shares through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such Shares;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to
[PAGE ]
be stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Shares through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such Shares;
(d) Neither the Company nor any of its subsidiaries ("subsidiaries,"
as used herein, shall include any entities consolidated in the Company's
financial statements has sustained since the date of the latest audited
financial statements) included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the stock or
long-term debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of Maryland, with power and
authority (corporate and other) to own, lease and operate its properties
and conduct its business as described in the Prospectus and to enter into
and perform its obligations under this Agreement; the Company is duly
qualified as a foreign organization to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not reasonably be
expected to have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company;
(f) Each of the subsidiaries of the Company has been duly organized
and is validly existing as a corporation, limited partnership or limited
liability company, as the case may be, in good standing under the laws of
the jurisdiction of its formation, with full power and authority to own,
lease and operate its properties and to conduct its business as described
in the Prospectus; each of the subsidiaries of the Company is duly
qualified as a foreign organization to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not reasonably be
expected to have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries;
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable;
(h) The Shares have been duly and validly authorized, and, when the
Firm Shares are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Shares and, in the case
of any Optional Shares,
[PAGE ]
pursuant to Over-allotment Options (as defined in Section 3 hereof) with
respect to such Shares, such Designated Shares will be duly and validly
issued and fully paid and non-assessable; the Shares conform to the
description thereof contained in the Registration Statement and the
Designated Shares will conform in all material respects to the description
thereof contained in the Prospectus as amended or supplemented with
respect to such Designated Shares; and the applicable Articles
Supplementary will be in full force and effect prior to the Time of
Delivery;
(i) The issue and sale of the Shares and the compliance by the Company
with all of the provisions of this Agreement, any Pricing Agreement and
each Over-allotment Option, if any, and the consummation of the
transactions contemplated herein and therein will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Articles of Incorporation,
By-laws, partnership agreement or limited liability agreement of the
Company or any of its subsidiaries, as the case may be, or, to the
knowledge of the Company, any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company, any of its subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
issue and sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing Agreement or any
Over-allotment Option, except such as have been, or will have been prior to
each Time of Delivery (as defined in Section 4 hereof), obtained under the
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Shares by the
Underwriters;
(j) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject, which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
reasonably be expected to have a material adverse effect on the current or
future consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(k) Neither the Company nor any of its subsidiaries is in violation of
its Articles of Incorporation, By-laws, partnership agreement or limited
liability company agreement, as the case may be, or in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties or assets of the
Company or its subsidiaries may be bound which defaults, individually or in
the aggregate, would reasonably be expected to have a material adverse
effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries;
[PAGE ]
(l) The statements set forth in the Prospectus under the captions
"Description of Stock" and "Description of Series D Preferred Shares",
insofar as they purport to constitute a summary of the terms of the
Preferred Stock, and under the caption "Federal Income Tax Considerations,"
"Certain Federal Income Tax Considerations" and "Plan of Distribution,"
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate in all material respects;
(m) Each of the Company and its subsidiaries is insured (including
with respect to title insurance) by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; and the
Company has no reason to believe that it or any of its subsidiaries will
not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage at a reasonable cost from
similar insurers as may be necessary to continue its businesses;
(n) Except as otherwise described in the Prospectus, each of the
Company and its subsidiaries has good and marketable title in fee simple to
all real property and good title to all personal property owned by it which
is material to the business of the Company and its subsidiaries, considered
as a single enterprise, in each case free and clear of all liens, claims,
encumbrances and defects except such as are described in general in the
Prospectus or such as do not materially affect the value of such property
and do not interfere with the use made and proposed to be made of such
property by the Company or any of its subsidiaries; and any real property
and buildings held under lease by the Company and any of its subsidiaries
are held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company or such
subsidiaries, in each case except as described in or contemplated by the
Prospectus;
(o) The mortgages and deeds of trust encumbering the properties and
assets as owned by the Company described in general in the Prospectus are
not convertible and none of the Company or any of its subsidiaries holds
participating interests therein and such mortgages and deeds of trust are
not cross-defaulted or cross-collateralized to any property not owned by
the Company or any of its subsidiaries;
(p) Each of the partnership agreements and limited liability company
agreements to which any of the Company or its subsidiaries is a party has
been duly authorized, executed and delivered by such party and constitutes
the valid agreement thereof, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the execution, delivery and
performance of any of such agreements did not, at the time of execution and
delivery, and does not constitute a breach of, or default under, the
partnership agreement, charter, bylaws or other governing documents of such
party or any material contract, lease or other instrument to which such
party is a party or by which its properties may be bound or any law,
administrative regulation or administrative or court decree which breach or
default, individually or in the aggregate, would reasonably be expected to
have a material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries; all of the partnership or limited liability
company interests owned by the Company in each subsidiary of the Company
have been duly and validly authorized and issued and are
[PAGE ]
owned directly or indirectly by the Company free and clear of all liens,
encumbrances, equities or claims; all of the issued shares of stock of the
corporate subsidiaries of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and, to the extent
owned by the Company, are owned directly or indirectly by the Company free
and clear of all liens, encumbrances, equities or claims;
(q) Neither the Company nor any of its subsidiaries is or, after
giving effect to the offering and sale of the Designated Shares, will be an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act");
(r) Commencing with the Company's taxable year ending December 31,
1995, the Company has been constituted in conformity with the requirements
for qualification as a real estate investment trust under the Internal
Revenue Code of 1986, as amended (the "Code"), and the Company's historic
and proposed methods of operation have enabled and will enable the Company
to meet the requirements for qualification and taxation as a real estate
investment trust under the Code;
(s) The accountants, who have certified certain financial statements
and supporting schedules included in, or incorporated by reference into,
the Registration Statement and the Prospectus, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(t) The financial statements (including the notes thereto) included
in, or incorporated by reference into, the Registration Statement and the
Prospectus present fairly the financial position of the respective entity
or entities presented therein at the respective dates indicated and the
results of their operations for the respective periods specified; the
combined statements of revenue and certain expenses of certain properties
acquired or to be acquired by the Company included in the Registration
Statement and Prospectus, together with the related notes, present fairly
the combined revenues and expenses of such properties at the dates
indicated; except as otherwise stated in the Registration Statement and the
Prospectus, said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis; the
supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the information
required to be stated therein, and the Company's ratios of earnings to
combined fixed charges and preferred stock dividends (actual and, if any,
pro forma) included in the Prospectus under the captions "Ratio of Earnings
to Combined Fixed Charges and Preferred Stock Dividends" and in Exhibit 12
of the Registration Statement have been calculated in compliance with Item
503(d) of Regulation S-K of the Commission; the financial information and
data included in the Registration Statement and the Prospectus present
fairly the information included therein and have been prepared on a basis
consistent with that of the financial statements included or incorporated
by reference in the Registration Statement and the Prospectus and the books
and records of the respective entities presented therein; pro forma
financial information included in or incorporated by reference in the
Registration Statement and the Prospectus has been prepared in accordance
with the applicable requirements of the Act, rules and regulations of the
Commission under the Act and guidelines of the American Institute of
Certified Public Accountants with respect to pro forma financial
information and includes all adjustments necessary to present fairly in all
material respects the pro forma financial position of the
[PAGE ]
Company at the respective dates indicated (if such financial position is
presented) and the results of operations for the respective periods
specified;
(u) Each of the Company and its subsidiaries has filed all federal,
state, local and foreign income tax returns which have been required to be
filed and each such tax return was filed on or prior to the date on which
such tax return was required to be filed or, in lieu of such timely
filings, each of the Company or the subsidiaries, as the case may be, has
duly and timely filed such applications for extension as may be required to
effect all necessary extensions (such extensions having been obtained and
remaining in full force and effect) and has paid all taxes shown thereon as
due and payable and any other assessment, fine or penalty levied against
it, to the extent that any of the foregoing is due and payable, except, in
all cases, for any such tax assessment, fine or penalty that is being
contested in good faith through appropriate proceedings and as to which
appropriate reserves have been established;
(v) (i) Except as disclosed in the Prospectus, each of the Company
and its subsidiaries has complied and is in compliance in all material
respects with all Environmental Statutes (as hereinafter defined);
(ii) None of the Company or any of its subsidiaries has used or
intends to use the properties or assets described in the Prospectus or any
other real property for the purpose of handling, burying, storing,
retaining, refining, transporting, processing, manufacturing, generating,
producing, spilling, seeping, leaking, escaping, leaching, pumping,
pouring, emitting, emptying, discharging, injecting, dumping, transferring
or otherwise disposing of or dealing with Hazardous Materials, except for
materials utilized in the ordinary course of business of the properties,
provided such use would not, in the ordinary course of business, give rise
to any material liability under any Environmental Statute;
(iii) Except as disclosed in the Prospectus, none of the Company
or any of its subsidiaries knows (after due inquiry) of any release,
seepage, leak, escape, ▇▇▇▇▇, discharge, injection, release, emission,
spill, pumping, pouring, emptying or dumping ("Release") of Hazardous
Materials (a) into waters on, under or adjacent to the properties described
in the Prospectus or (b) on any other real property owned or occupied by
any such party, or (c) onto lands from which Hazardous Materials are likely
to seep, flow or drain into such waters, except for such Releases as would
not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the condition, financial or otherwise, earnings,
business affairs or business prospects of any of such properties;
(iv) Except as disclosed in the Prospectus, none of the Company or
any of its subsidiaries has received any notice of, or has any knowledge
(after due inquiry) of any occurrence or circumstance which, with notice or
passage of time or both, would give rise to a claim under or pursuant to
any Environmental Statue or under common law, pertaining to Hazardous
Materials on or originating from any properties or assets described in the
Prospectus or any other real property owned or occupied by any such party
or arising out of the conduct of any such party, except such occurrence or
circumstance as would not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the condition, financial or
otherwise, earnings, assets, business affairs or business prospects of any
of such properties; and
[PAGE ]
(v) Neither the properties described in the Prospectus nor any
other land owned by the Company or any of its subsidiaries is included or,
to the Company's knowledge (after due inquiry), proposed for inclusion on
the National Priorities List issued pursuant to CERCLA (as hereinafter
defined) by the United States Environmental Protection Agency (the "EPA")
or on the inventory of other potential "Problem" sites issued by the EPA
and has not otherwise been publicly identified by the EPA as a potential
CERCLA site or included or, to the Company's knowledge, except for the
property known as Phoenix Plaza III located at ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
Arizona, proposed for inclusion on any list or inventory issued or
maintained pursuant to any other Environmental Statute or issued or
maintained by any other Governmental Authority (as hereinafter defined).
As used herein, "Hazardous Material" shall include without limitation
any flammable explosives, radioactive materials, hazardous materials,
hazardous wastes, toxic substances, asbestos, medical waste or any hazardous
material as defined by any Environmental Statute. As used herein,
"Environmental Statute" shall include any federal, state or local
environmental law, ordinance, rule or regulation including without limitation
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended, 42 U.S.C. Sections 9601 ET SEQ. ("CERCLA"), the Hazardous
Materials Transportation Act, as amended 49 U.S.C. Sections 1801 ET SEQ.,
the Resource Conservation and Recovery Act, as amended 42 U.S.C. Sections
9601 ET SEQ., the Emergency Planning and Community Right-to-Know Act of 1986,
42 U.S.C. Sections 11001 ET SEQ., the Toxic Substances Control Act, 15
U.S.C. Sections 2601 ET SEQ., the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. Sections 136 ET SEQ., the Clean Air Act, 42 U.S.C.
Sections 7401 ET SEQ., the Clean Water Act (Federal Water Pollution Control
Act), 33 U.S.C. Sections 1251 ET SEQ., the Safe Drinking Water Act, 42
U.S.C. Sections 300f - 300j-11, and the Occupational Safety and Health Act,
29 U.S.C. Sections 651 ET SEQ., as any of the above statutes may be amended
from time to time, and the state analogues to these statutes, and in the
regulations adopted and publications promulgated pursuant to any of the
foregoing or by any federal, state or local governmental authority having
jurisdiction over the properties and assets described in the Prospectus (a
"Governmental Authority").
Any certificate signed by any officer of the Company or of any
subsidiary and delivered to you or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company or such subsidiary to
each Underwriter participating in such offering as to the matters covered
thereby on the date of such certificate.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Shares and authorization by the Representatives of the release of
the Firm Shares, the several Underwriters propose to offer the Firm Shares
for sale upon the terms and conditions set forth in the Prospectus as amended
or supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Shares that the Company thereby grants to the Underwriters the
right (an "Overallotment Option") to purchase at their election up to the
number of Optional Shares set forth in such Pricing Agreement, on the terms
set forth in the paragraph above, for the sole purpose of covering
over-allotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares may be exercised by written notice from the
Representatives to the Company, given within a period specified in the
Pricing Agreement, setting forth the aggregate number of Optional Shares to
be purchased and the date on which such Optional Shares are to be delivered,
as determined by the Representatives but in no event earlier than the First
Time of Delivery (as defined in Section 4 hereof) or, unless the
Representatives and the Company otherwise agree in writing, earlier than or
later than the
[PAGE ]
respective number of business days after the date of such
notice set forth in such Pricing Agreement.
The number of Optional Shares to be added to the number of Firm Shares
to be purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Shares shall be, in each case, the
number of Optional Shares which the Company has been advised by the
Representatives have been attributed to such Underwriter; PROVIDED THAT, if
the Company has not been so advised, the number of Optional Shares to be so
added shall be, in each case, that proportion of Optional Shares which the
number of Firm Shares to be purchased by such Underwriter under such Pricing
Agreement bears to the aggregate number of Firm Shares (rounded as the
Representatives may determine to the nearest 100 shares). The total number
of Designated Shares to be purchased by all the Underwriters pursuant to such
Pricing Agreement shall be the aggregate number of Firm Shares set forth in
Schedule I to such Pricing Agreement plus the aggregate number of Optional
Shares which the Underwriters elect to purchase.
4. Certificates for the Firm Shares and the Optional Shares to be
purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in the form specified in such Pricing Agreement, and in such
authorized denominations and registered in such names as the Representatives
may request upon at least forty-eight hours' prior notice to the Company,
shall be delivered by or on behalf of the Company to the Representatives for
the account of such Underwriter, against payment by such Underwriter or on
its behalf of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company to ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co. at least forty-eight hours in advance as specified in such Pricing
Agreement, (i) with respect to the Firm Shares, all in the manner and at the
place and time and date specified in such Pricing Agreement or at such other
place and time and date as the Representatives and the Company may agree upon
in writing, such time and date being herein called the "First Time of
Delivery" and (ii) with respect to the Optional Shares, if any, in the manner
and at the time and date specified by the Representatives in the written
notice given by the Representatives of the Underwriters' election to purchase
such Optional Shares, or at such other time and date as the Representatives
and the Company may agree upon in writing, such time and date, if not the
First Time of Delivery, herein called the "Second Time of Delivery". Each
such time and date for delivery is herein called a "Time of Delivery".
5. The Company agrees with each of the Underwriters of any Designated
Shares:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Shares in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Shares or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Shares and prior to any Time of Delivery for such Shares which shall
be disapproved by the Representatives for such Shares promptly after
reasonable notice thereof; to advise the Representatives promptly of any
such amendment or supplement after any Time of Delivery for such Shares and
furnish the Representatives with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus
is required in connection with the offering or sale of
[PAGE ]
such Shares, and during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed with
the Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating to
the Shares, of the suspension of the qualification of such Shares for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance
of any such stop order or of any such order preventing or suspending the
use of any prospectus relating to the Shares or suspending any such
qualification, promptly to use its best efforts to obtain the withdrawal
of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Shares for offering
and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Shares,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with copies of the Prospectus in New York City as
amended or supplemented in such quantities as the Representatives may
reasonably request, and, if the delivery of a prospectus is required at any
time in connection with the offering or sale of the Shares and if at such
time any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act
or the Exchange Act, to notify the Representatives and upon their request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Shares and continuing to and including the
later of (i) the termination of trading restrictions for such Designated
Shares, as notified to the Company by the Representatives and (ii) the
[PAGE ]
last Time of Delivery for such Designated Shares, not to offer, sell,
contract to sell or otherwise dispose of, except as provided hereunder,
any securities of the Company that are substantially similar to the
Designated Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Shares or any such substantially similar securities (other than
pursuant to employee stock option plans existing on, or upon the
conversion of convertible or exchangeable securities outstanding as of,
the date of the Pricing Agreement for such Designated Shares) without the
prior written consent of the Representatives;
(f) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act; and
(g) That it will file an application to list the Designated Shares on
the New York Stock Exchange (the "Exchange") promptly after the date hereof
and will use its best efforts to list the Designated Shares on the Exchange
as promptly as practicable thereafter.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this Agreement, any Pricing
Agreement, any Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the fees
and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey(s); (iv) any fees
charged by securities rating services for rating the Shares; (v) any filing
fees incident to, and the fees and disbursements of counsel for the
Underwriters in connection with, any required reviews by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Shares; (vi) any fees and expenses in connection with listing the Shares;
(vii) the cost of preparing certificates for the Shares; (viii) the cost and
charges of any transfer agent or registrar or dividend disbursing agent; and
(ix) all other costs and expenses incident to the performance of its
obligations hereunder and under any Over-allotment Options which are not
otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, and Sections 8 and 11
hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Shares by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters of any Designated Shares under
the Pricing Agreement relating to such Designated Shares shall be subject, in
the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such
Designated Shares are, at and as of each Time of Delivery for such Designated
Shares, true and correct, the
[PAGE ]
condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus as amended or supplemented in relation to such
Designated Shares shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 5(a)
hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the Underwriters, shall have
furnished to the Representatives such written opinion or opinions, dated
each Time of Delivery for such Designated Shares, with respect to the
incorporation of the Company, this Agreement and the Pricing Agreement with
respect to the Designated Shares, the validity of the Designated Shares,
the Registration Statement, the Prospectus and such other related matters
as the Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company or ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ & Ingersoll, LLP, Maryland counsel for the Company with respect to
issues of Maryland law, shall have furnished to the Representatives their
written opinions (a draft of each such opinion is attached as Annex II(b)
hereto), dated each Time of Delivery for such Designated Shares,
respectively, in form and substance satisfactory to the Representatives, to
the effect that:
(i) Each of the Company and its subsidiaries has been duly
incorporated or formed and is validly existing as a corporation,
limited partnership or limited liability company, as the case may be,
in good standing under the laws of the jurisdiction of its
incorporation or formation, with power (corporate or other) to own,
lease and operate its properties and conduct its business
substantially as described in the Prospectus under the caption "The
Company" as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus under the caption "Capitalization" as amended or
supplemented, and all of the issued shares of stock of the Company
(including the Designated Shares being delivered at such Time of
Delivery) have been duly and validly authorized and issued and are
fully paid and non-assessable; the Designated Shares conform in all
material respects to the description contained in the Prospectus under
the caption "Description of Series D Preferred Shares" as amended or
supplemented; and the applicable Articles Supplementary are in full
force and effect;
(iii) Each of the Company and its subsidiaries is authorized to
transact business as a foreign corporation, partnership or limited
liability company, as the case may be, in each jurisdiction where such
entity maintains an office or owns or manages its properties except
where the failure to be so qualified, individually or
[PAGE ]
in the aggregate, would not reasonably be expected to have a material
adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries;
(iv) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would, individually or in the
aggregate, reasonably be expected to have a material adverse effect
on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries; and to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(v) This Agreement and the Pricing Agreement with respect to
the Designated Shares have been duly authorized, executed and
delivered by the Company;
(vi) The issue and sale of the Designated Shares being delivered
at such Time of Delivery and the compliance by the Company with all of
the provisions of this Agreement and the Pricing Agreement with
respect to the Designated Shares and the consummation of the
transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a party or
by which the Company is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will
such action result in any violation of the provisions of the Articles
of Incorporation or By-laws of the Company or any statute or any
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of its properties;
(vii) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Designated Shares being
delivered at such Time of Delivery or the consummation by the Company
of the transactions contemplated by this Agreement or such Pricing
Agreement, except such as have been obtained under the Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Designated Shares
by the Underwriters;
(viii) Neither the Company nor any of its subsidiaries is in
violation of its Articles of Incorporation, By-laws, limited
partnership agreement or limited liability agreement, as the case may
be, or, to the knowledge of such counsel, in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument filed
or incorporated by reference as an exhibit to the Registration
Statement;
[PAGE ]
(ix) The statements set forth in the Prospectus under the
captions "Description of Stock" and "Description of Series D Preferred
Shares," insofar as they purport to constitute a summary of the terms
of the Preferred Stock and the Shares, and under the captions "Federal
Income Tax Considerations," "Certain Federal Income Tax
Considerations" and "Plan of Distribution," insofar as they purport
to describe the provisions of the laws and documents referred to
therein, are correct in all material respects;
(xiii) Neither the Company nor any of its subsidiaries is or,
after giving effect to the offering and sale of the Securities, will
be an "investment company" within the meaning of the Investment
Company Act;
(i) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when they became effective or were so filed, as the case
may be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading;
(xiii) The Registration Statement is effective under the Act and,
to such counsel's knowledge and information, no stop order suspending
the effectiveness of the Registration Statement has been issued under
the Act or proceedings therefor initiated or threatened by the
Commission;
(xiv) Commencing with the Company's taxable year ending December
31, 1995, the Company is organized in conformity with the requirements
for qualification as a real estate investment trust ("REIT"), and its
proposed assets, organization and method of operation will enable it
to meet the requirements for qualification and taxation as a REIT
under the Code;
(i) The Registration Statement and the Prospectus as amended or
supplemented, and any further amendments and supplements thereto made
by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion), comply as to form in all material
respects with the requirements of the Act and the rules and
regulations thereunder; although they do not assume any responsibility
for the accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus, except for those
referred to in the opinion in subsection (ix) of this Section 7(c),
they have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the
Company prior to such Time of Delivery (other than the
[PAGE ]
financial statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that, as of its date, the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading or that, as of such Time of Delivery, either
the Registration Statement or the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contains an untrue statement of a material
fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and they do not know of any amendment to
the Registration Statement required to be filed or any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by reference
into the Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as amended
or supplemented which are not filed or incorporated by reference or
described as required;
(d) On the date of the Pricing Agreement for such Designated Shares,
at a time prior to the execution of the Pricing Agreement with respect to
the Designated Shares and at each Time of Delivery for such Designated
Shares, the independent accountants of the Company who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter, dated the effective date of the
Registration Statement or the date of the most recent report filed with the
Commission containing financial statements and incorporated by reference in
the Registration Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively, to
the effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives (the executed copy of the letter
delivered prior to the execution of this Agreement is attached as Annex
I(a) hereto and a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the Registration
Statement and as of each Time of Delivery is attached as Annex I(b)
hereto);
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated Shares any
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Shares, and (ii) since the
respective dates as of which information is given in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
[PAGE ]
Designated Shares there shall not have been any change in the stock or
long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Shares, the effect of which,
in any such case described in Clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Shares on the terms and in the manner contemplated in the
Prospectus as amended relating to the Designated Shares;
(f) On or after the date of the Pricing Agreement relating to the
Designated Shares (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act, and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities or preferred stock;
(g) On or after the date of the Pricing Agreement relating to the
Designated Shares there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the
Exchange; (ii) a suspension or material limitation in trading in the
Company's securities on the Exchange; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York or
Washington, D.C. State authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such event
specified in this Clause (iv) in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Firm Shares or Optional Shares or both on the terms and in
the manner contemplated in the Prospectus as first amended or supplemented
relating to the Designated Shares;
(h) An application to list the Shares on the Exchange shall have been
filed prior to the Time of Delivery;
(i) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(j) The Company shall have furnished or caused to be furnished to the
Representatives at each Time of Delivery for the Designated Shares
certificates of officers of the Company satisfactory to the Representatives
as to the accuracy of the representations and warranties of the Company
herein at and as of such Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to
such Time of Delivery, as to the matters set forth in subsections (a) and
(e) of this Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section
[PAGE ]
20(a) of the Exchange Act against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Shares, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; PROVIDED, HOWEVER, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Shares, or any such amendment or supplement
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter of Designated Shares through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Shares.
(b) Each Underwriter will 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 Statement and each other person, if any,
who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Shares, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus
as amended or supplemented and any other prospectus relating to the Shares,
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel
[PAGE ]
to the indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include any statement as to, or
an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters of the Designated Shares on the other from the offering of the
Designated Shares to which such loss, claim, damage or liability (or action
in respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters of the Designated Shares on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and such Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from
such offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Underwriters on the other and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined by PRO RATA
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the applicable Designated Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent
[PAGE ]
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Designated Shares in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Shares and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Firm Shares or Optional Shares which it has agreed to purchase under the
Pricing Agreement relating to such Shares, the Representatives may in their
discretion arrange for themselves or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six
hours after such default by any Underwriter the Representatives do not
arrange for the purchase of such Firm Shares or Optional Shares, as the case
may be, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to
the Representatives to purchase such Shares on such terms. In the event
that, within the respective prescribed period, the Representatives notify the
Company that they have so arranged for the purchase of such Shares, or the
Company notifies the Representatives that it has so arranged for the purchase
of such Shares, the Representatives or the Company shall have the right to
postpone a Time of Delivery for such Shares for a period of not more than
seven days, in order to effect whatever changes may thereby be made necessary
in the Registration Statement or the Prospectus as amended or supplemented,
or in any other documents or arrangements, and the Company agrees to file
promptly any amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such person
had originally been a party to the Pricing Agreement with respect to such
Designated Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Shares or Optional Shares, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of
the Firm Shares or Optional Shares, as the case may be, to be purchased at
the respective Time of Delivery, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the number of Firm Shares
or Optional Shares, as the case may be, which such Underwriter agreed to
purchase under the Pricing Agreement relating to such Designated Shares and,
in addition, to require each non-defaulting Underwriter to purchase its pro
rata share (based on the number of Firm Shares or Optional Shares, as the
case may be, which such Underwriter agreed to purchase under such Pricing
Agreement) of the Firm Shares or Optional Shares, as the case may be, of such
defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Firm Shares or Optional Shares, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate number of Firm Shares or
Optional Shares, as the case may be, which remains unpurchased exceeds
[PAGE ]
one-eleventh of the aggregate number of the Firm Shares or Optional Shares,
as the case may be, to be purchased at the respective Time of Delivery, as
referred to in subsection (b) above, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting
Underwriters to purchase Firm Shares or Optional Shares, as the case may be,
of a defaulting Underwriter or Underwriters, then the Pricing Agreement
relating to such Firm Shares or the Over-allotment Option relating to such
Optional Shares, as the case may be, shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be borne by the Company and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set
forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless
of any investigation (or any statement as to the results thereof) made by or
on behalf of any Underwriter or any controlling person of any Underwriter, or
the Company, or any officer or director or controlling person of the Company,
and shall survive delivery of and payment for the Shares.
11. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 9 hereof, the Company shall not then be under
any liability to any Underwriter with respect to the Firm Shares or Optional
Shares with respect to which such Pricing Agreement shall have been
terminated except as provided in Sections 6 and 8 hereof; but, if for any
other reason, Designated Shares are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the Underwriters
through the Representatives for all out-of-pocket expenses approved in
writing by the Representatives, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of such Designated Shares, but the Company shall
then be under no further liability to any Underwriter with respect to such
Designated Shares except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Shares shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by
such Representatives jointly or by such of the Representatives, if any, as
may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Representatives as set forth
in the Pricing Agreement; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth
in the Registration Statement, Attention: Secretary; provided, however, that
any notice to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and each person who controls the
[PAGE ]
Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, the term "business day" shall mean any day when the Commission's
office in Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
[PAGE ]
If the foregoing is in accordance with your understanding, please sign
and return to us nine counterparts hereof.
Very truly yours,
Meridian Industrial Trust, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
ANNEX I
PRICING AGREEMENT
▇▇▇▇▇▇▇, Sachs & Co.,
[NAMES OF CO-REPRESENTATIVES]
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, ▇▇▇▇▇ & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
_________________, 19__.
Ladies and Gentlemen:
Meridian Industrial Trust, Inc., a Maryland corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated ____________, 19__ (the "Underwriting
Agreement"), between the Company on the one hand and ▇▇▇▇▇▇▇, Sachs & Co.,
Prudential Securities Incorporated, ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ Incorporated and PaineWebber Incorporated on the other hand, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Shares specified in Schedule II hereto (the "Designated
Shares" consisting of Firm Shares and any Optional Shares the Underwriters
may elect to purchase). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be deemed to
be a part of this Agreement to the same extent as if such provisions had been
set forth in full herein; and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date of this
Pricing Agreement, except that each representation and warranty which refers
to the Prospectus in Section 2 of the Underwriting Agreement shall be deemed
to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in
relation to the Prospectus as amended or supplemented relating to the
Designated Shares which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer
to you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated
to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Shares pursuant to Section 12 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Shares, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, (a) the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company,
at the time and place and at the purchase price to the Underwriters set forth
in Schedule II hereto, the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule I hereto and, (b) in the event and to the
extent that the Underwriters shall exercise the election to purchase Optional
Shares, as provided below, the Company agrees to issue and sell to
each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company at the purchase price to the
Underwriters set forth in Schedule II hereto that portion of the number of
Optional Shares as to which such election shall have been exercised.
The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Shares set forth
opposite the name of such Underwriter in Schedule I hereto on the terms
referred to in the paragraph above for the sole purpose of covering
over-allotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares may be exercised by written notice from the
Representatives to the Company given within a period of 30 calendar days
after the date of this Pricing Agreement, setting forth the aggregate number
of Optional Shares to be purchased and the date on which such Optional Shares
are to be delivered, as determined by the Representatives, but in no event
earlier than the First Time of Delivery or, unless the Representatives and
the Company otherwise agree in writing, no earlier than two or later than ten
business days after the date of such notice.
If the foregoing is in accordance with your understanding, please sign
and return to us [one for the Company and one for each of the Representatives
plus one for each counsel] counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination, upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
Meridian Industrial Trust, Inc.
By:
-------------------------------------
Name:
Title:
Accepted as of the date hereof:
▇▇▇▇▇▇▇, Sachs & Co.
[CO-REPRESENTATIVES]
By:
----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
[Page ]
SCHEDULE I
MAXIMUM NUMBER
NUMBER OF FIRM OF OPTIONAL SHARES
SHARES TO BE WHICH MAY BE
UNDERWRITER PURCHASED PURCHASED
----------- --------- ---------
▇▇▇▇▇▇▇, Sachs & Co. ...............................
[CO-REPRESENTATIVES AND OTHER UNDERWRITERS] ........
Total ...........................................
[PAGE ]
SCHEDULE II
TITLE OF DESIGNATED SHARES: ___% Series D Cumulative Redeemable Preferred Stock
NUMBER OF DESIGNATED SHARES:
Number of Firm Shares:
Maximum Number of Optional Shares:
INITIAL OFFERING PRICE TO PUBLIC:
$_____ per Share
PURCHASE PRICE BY UNDERWRITERS:
$_____ per Share
COMMISSION PAYABLE TO UNDERWRITERS:
$____ per Share in same day funds
FORM OF DESIGNATED SHARES:
[Definitive form, to be made available for checking [and packaging] at lease
twenty-four hours prior to the Time of Delivery at the offices of [The
Depository Trust Company or its designated custodian] [the Representatives]]
[Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian, to be
made available for checking by the Representatives at least twenty-four hours
prior to the Time of Delivery at the office of DTC.]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same-day) funds
TIME OF DELIVERY:
_____a.m. (New York City time), June __1998
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
OTHER TERMS:
[PAGE ]
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that (a similar
letter shall be provided for the Guarantor in which all references to the
"Company" are changed to the "Guarantor"):
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been separately furnished to the representatives of the
Underwriters (the "Representatives") and are attached hereto;
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus and/or
included in the Company's quarterly reports on Form 10-Q incorporated by
reference into the Prospectus as indicated in their reports thereon copies
of which are attached hereto; and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for such five fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of items 301, 302, 402 and 503(d),
respectively, of Regulation
S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or incorporated
by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and regulations,
or (ii) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus, for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
stock (other than issuances of stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included or
[PAGE ]
incorporated by reference in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its subsidiaries, or
any decreases in consolidated net current assets or stockholders'
equity or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each case
as compared with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred
or may occur or which are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives
or in documents incorporated by reference in the Prospectus specified by
the Representatives, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Shares for purposes
of the letter delivered at the Time of Delivery for such Designated Shares.
[PAGE ]