Exhibit 1(a)
MAIN PLACE REAL ESTATE INVESTMENT TRUST
UNDERWRITING AGREEMENT
New York, New York
March 12, 1997
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Main Place Real Estate Investment Trust, a Maryland business trust (the
"Company"), proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its securities identified in
Schedule I hereto (the "Securities"), to be issued under an indenture (the
"Indenture") dated as of March 18, 1997 between the Company and First Trust
National Association, as trustee (the "Trustee"). If the firm or firms listed
in Schedule II hereto include only the firm or firms listed in Schedule I
hereto, then the terms "Underwriters" and "Representatives", as used herein,
each shall be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (the file number of which is set forth in Schedule I
hereto), which has become effective, for the registration under the Act of
the Securities. Such registration statement, as amended to the date of
this Agreement, meets the requirements set forth in Rule 415(a)(1) under
the Act and complies in all other material respects with said Rule. The
Company proposes to file with the Commission pursuant to Rule 424 under the
Act a supplement to the form of prospectus included in such registration
statement relating to the Securities and the plan of distribution thereof
and has previously advised the Representatives of all further information
(financial and other) with respect to the Company to be set forth therein.
Such registration statement, including the exhibits thereto, as amended to
the date of this Agreement, is hereinafter called the "Registration
Statement"; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic Prospectus"; and
such supplemented form of prospectus, in the form in which it shall be
filed with the Commission pursuant to Rule 424 (including the Basic
Prospectus as so supplemented) is hereinafter called the "Final
Prospectus." Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 hereinafter is called the
"Preliminary Final Prospectus." Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the date of this Agreement, or the issue date
of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date of this Agreement, or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, and deemed to be incorporated therein
by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 under the Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by reference
in the Registration Statement), when any supplement to the Final Prospectus
is filed with the Commission and at the Closing Date (as hereinafter
defined), (i) the Registration Statement, as amended as of any such time,
and the Final Prospectus, as amended or supplemented as of any such time,
and the Indenture will comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and the Exchange Act and the respective rules
thereunder, (ii) the Registration Statement, as amended as of any such
time, will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading, and (iii) the Final
Prospectus, as amended or supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to (A) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification of the Trustee (Form T-1) under the Trust Indenture Act of
the Trustee, (B) the information contained in or omitted from the
Registration Statement or the Final Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for use in connection with the
preparation of the Registration Statement and the Final Prospectus or (C)
the Current Report (as defined in Section 5(b) below), or in any amendment
thereof or supplement thereto, incorporated by reference in the
Registration Statement or the Final Prospectus (or any amendment thereof or
supplement thereto).
(c) The Company has been duly organized and is validly existing as a
business trust under the laws of the State of Maryland and has trust and
other power and authority to own its properties and conduct its business,
as now conducted by it, and to enter into and perform its obligations under
this Agreement and the Indenture.
(d) The Company is not aware of (i) any request by the Commission for
any further amendment of the Registration Statement or the Basic Prospectus
or for any additional information or (ii) the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement.
(e) This Agreement has been duly authorized, executed and delivered
by the Company, and the Indenture, when delivered by the Company, will have
been duly authorized, executed and delivered by the Company, and will
constitute a legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, subject, as to the
enforcement of remedies, to applicable bankruptcy, insolvency,
reorganization, moratorium, receivership and similar laws affecting
creditors' rights generally and to general principles of equity (regardless
of whether the enforcement of such remedies is considered in a proceeding
in equity or at law).
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made at the office, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof in the manner set forth in Schedule I hereto. If Schedule I
indicates that the Securities are to be issued in book-entry form, delivery of
the Securities shall be made through the facilities of the depository or
depositories set forth on Schedule I. Alternatively, certificates for the
Securities shall be registered in such names and in such denominations as the
Representatives may request not less than three full business days in advance of
the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 1:00 p.m., New York City time, on the business day prior to the Closing
Date.
4. Representations and Warranties of the Underwriters. Each Underwriter
represents and agrees that (i) it has not offered or sold and will not offer or
sell any Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995 or the Financial Services ▇▇▇ ▇▇▇▇ (the
"Services Act") and (ii) it has only issued or passed on, and will only issue or
pass on, in the United Kingdom any document received by it in connection with
the issue of the Securities, other than any document which consists of or any
part of listing particulars, supplementary listing particulars or any other
document required or permitted to be published by listing rules under Part IV of
the Services Act, to a person who is of a kind described in Article 11(3) of the
Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1995
or is a person to whom the document may otherwise lawfully be issued or passed
on. Each Underwriters further represents and agrees that each purchaser will be
required to agree that it will not offer or sell any Securities, directly or
indirectly, in Japan or to, or for the benefit of, any resident of Japan (which
term as used herein means any person resident in Japan, including any
corporation or other entity organized under the laws of Japan) except pursuant
to an exemption from the registration requirements of, and otherwise in
compliance with, the Securities and Exchange Law of Japan and any relevant laws
or regulations of Japan.
5. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus unless
the Company has furnished the Representatives a copy for their review prior
to filing and will not file any such proposed amendment or supplement to
which the Representatives reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be mailed to the
Commission for filing pursuant to Rule 424 by first class certified or
registered mail and will cause the Final Prospectus to be filed with the
Commission pursuant to said Rule. The Company will advise the
Representatives promptly (i) when the Final Prospectus shall have been
mailed to the Commission for filing pursuant to Rule 424, (ii) when any
amendment to the Registration Statement relating to the Securities shall
have become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or amendment of or supplement to
the Final Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) The Company will cause any Computational Materials (as defined in
Section 10 below) with respect to the Securities which are delivered by the
Underwriters to the Company pursuant to Section 10 to be filed with the
Commission on a Current Report on Form 8-K (the "Current Report") pursuant
to Rule 13a-11 under the Exchange Act not later than the business day
immediately following the earlier of (i) the day on which such
Computational Materials are delivered to counsel for the Company by the
Underwriters prior to 10:30 a.m., New York City time, and (ii) the date
hereof, and will promptly advise the Underwriters when such Current Report
has been so filed. Such Current Report shall be incorporated by reference
in the Final Prospectus and the Registration Statement. Notwithstanding
the two preceding sentences, the Company shall have no obligation to file
materials provided by the Underwriters pursuant to Section 10 which, in the
reasonable determination of the Company after making reasonable efforts to
consult with the Underwriters, are not required to be filed pursuant to the
▇▇▇▇▇▇ Letters (as defined in Section 10 below), or which contain erroneous
information or contain any untrue statement of a material fact or, which,
when read in conjunction with the Final Prospectus, omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; it being understood, however, that the
Company shall have no obligation to review or pass upon the accuracy or
adequacy of, or to correct, any Computational Materials provided by the
Underwriters to the Company pursuant to Section 10 hereof.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or if it shall be necessary to
amend or supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the first sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance and will use its best efforts to cause any required post-
effective amendment to the Registration Statement containing such amendment
to be made effective as soon as possible; provided, however, that the
Company will not be required to file any such amendment or supplement with
respect to any Computational Materials incorporated by reference in the
Final Prospectus other than any amendments or supplements of such
Computational Materials that are furnished to the Company pursuant to
Section 10(d) hereof which the Company determines to file in accordance
therewith.
(d) The Company will make generally available to its security holders
and to the Representatives as soon as practicable, but not later than 60
days after the close of the period covered thereby, an earnings statement
(in form complying with the provisions of Rule 158 of the regulations under
the Act) covering a twelve month period beginning not later than the first
day of the Company's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Registration Statement.
(e) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, executed copies of the Registration
Statement (including exhibits thereto) and each amendment thereto which
shall become effective on or prior to the Closing Date and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by the
Act, as many copies of any Preliminary Final Prospectus and the Final
Prospectus and any amendments thereof and supplements thereto (other than
exhibits to the related Current Report) as the Representatives may
reasonably request. The Company will pay the expenses of printing all
documents relating to the initial offering, provided that any additional
expenses incurred in connection with the requirement of delivery of a
market-making prospectus will be borne by NationsBanc Capital Markets, Inc.
(f) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives may
reasonably designate, will maintain such qualifications in effect so long
as required for the distribution of the Securities and will arrange for the
determination of the legality of the Securities for purchase by
institutional investors; provided, however, that the Company shall not be
required to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so
subject.
(g) The Company agrees to cooperate with the Representatives with
respect to the application for the Securities to be listed on the stock
exchange, if any, set forth on Schedule I hereto and to use its best
efforts to obtain all necessary government approvals and follow all
governmental regulations in connection therewith. The Company further
agrees, subject to the following sentence, to use its best efforts to
maintain such listing as is obtained for as long as the Securities are
outstanding and to pay all fees and supply all further documents,
information and undertakings as may be necessary or advisable to maintain
such listing. However, if listing becomes unduly burdensome or impossible,
in either case in the view of the Company, the Company will no longer be
obligated to maintain such listing. The Company agrees to consult with the
Representatives at such time as to an alternative listing for the
Securities but shall have no obligation to list the Securities on an
alternative exchange.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
as of the date hereof, as of the date of the effectiveness of any amendment to
the Registration Statement filed prior to the Closing Date (including the filing
of any document incorporated by reference therein) and as of the Closing Date,
to the accuracy of the statements of the Company made in any certificates
delivered pursuant to the provisions hereof, to the performance by the Company
of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and
the Final Prospectus shall have been filed or mailed for filing with the
Commission within the time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives the
opinion of Stroock & Stroock & ▇▇▇▇▇ LLP, counsel for the Company and the
Underwriters, dated the Closing Date, to the effect of paragraphs (iii),
(iv), (vi), (vii), (ix) and (x) below, and the opinion of ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, counsel to the Company, dated the Closing Date, to the effect of
paragraphs (i), (ii), (v) and (viii) below (or to the extent covered by
Maryland law, by an opinion of Miles & Stockbridge, dated the Closing
Date):
(i) the Company is a duly organized and validly existing
business trust in good standing under the laws of the State of
Maryland, has the trust power and authority to own its properties and
conduct its business as described in the Final Prospectus;
(ii) the Company has no subsidiaries and is not required to
be qualified or licensed to do business as a foreign corporation in
any jurisdiction;
(iii) the Securities conform in all material respects to the
description thereof contained in the Final Prospectus;
(iv) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws affecting the
rights of creditors now or hereafter in effect, and to equitable
principles that may limit the right to specific enforcement of
remedies, and further subject to 12 U.S.C. 1818(b)(6)(D) and similar
bank regulatory powers and to the application of principles of public
policy) and provided that no opinion is expressed herein with respect
to consolidation of the Company with NationsBank, N.A. ("NationsBank,
N.A."), its indirect parent, in the event that NationsBank, N.A. is
placed into a conservatorship or receivership pursuant to the Federal
Deposit Insurance Act, as amended, or the consequences flowing
therefrom; and the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters pursuant
to this Agreement will constitute legal, valid and binding obligations
of the Company entitled to the benefits of the Indenture (subject, as
to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other similar laws
affecting the rights of creditors now or hereafter in effect, and to
equitable principles that may limit the right to specific enforcement
of remedies, and further subject to 12 U.S.C. 1818(b)(6)(D) and
similar bank regulatory powers and to the application of principles of
public policy) and provided that no opinion is expressed with respect
to consolidation of the Company with NationsBank, N.A., its indirect
parent, in the event that NationsBank, N.A. is placed into a
conservatorship or receivership pursuant to the Federal Deposit
Insurance Act, as amended, or the consequences flowing therefrom;
(v) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final Prospectus,
and there is no franchise, contract or other document of a character
required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit, which is not described or
filed as required;
(vi) the Registration Statement has become effective under
the Act; to the best knowledge of such counsel no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Final Prospectus and each
amendment thereof or supplement thereto (other than the financial
statements and other financial and statistical information contained
therein or incorporated by reference therein, as to which such counsel
need express no opinion) comply as to form in all material respects
with the applicable requirements of the Act and the Exchange Act and
the respective rules thereunder; and such counsel has no reason to
believe that the Registration Statement or any amendment thereof at
the time it became effective contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus, as amended or supplemented,
contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights of creditors now
or hereafter in effect, and to equitable principles that may limit the
right to specific enforcement of remedies, and except insofar as the
enforceability of the indemnity and contribution provisions contained
in this Agreement may be limited by federal and state securities laws,
and further subject to 12 U.S.C. 1818(b)(6)(D) and similar bank
regulatory powers and to the application of principles of public
policy) and provided that no opinion is expressed with respect to
consolidation of the Company with NationsBank, N.A., its indirect
parent, in the event that NationsBank, N.A. is placed into a
conservatorship or receivership pursuant to the Federal Deposit
Insurance Act, as amended, or the consequences flowing therefrom;
(viii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
of the transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other
approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach of, or constitute a default under the declaration of trust or
by-laws of the Company or, to the best knowledge of such counsel, the
terms of any indenture or other agreement or instrument known to such
counsel and to which the Company is a party or bound, or any order or
regulation known to such counsel to be applicable to the Company of
any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Company; and
(x) the statements in the Final Prospectus under the
heading "United States Federal Income Tax Consequences," to the extent
that they constitute matters of law or legal conclusions, have been
prepared or reviewed by such counsel and provide a fair summary of
such law or conclusions.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York or the United States, to the extent deemed proper and specified
in such opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel for the
Underwriters; and (B) as to matters of fact, to the extent deemed proper,
on certificates of responsible officers of the Company or NationsBank, N.A.
and public officials.
(c) The Representatives shall have received copies, addressed to them
or on which they are entitled to rely, of opinions of counsel furnished to
the Trustee under the Indenture or to the rating agencies rating the
Securities as set forth on Schedule I hereto addressing (i) the pledge by
the Company to the Trustee of its right, title and interest in and to the
initial collateral for the Securities or alternatively, an opinion with
respect to such matters may be included in the opinion provided under
Section 6(b), and (ii) the non-consolidation of the Company and
NationsBank, N.A. in the event of a conservatorship or receivership of
NationsBank, N.A..
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or
President and Chief Executive Officer or an Executive Vice President or
Treasurer and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement (excluding any Current
Reports and any other documents incorporated by reference therein), the
Final Prospectus and this Agreement and that to the best of their
knowledge:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing
Date and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no proceedings
for that purpose have been instituted or threatened; and
(iii) since the respective dates as of which information is
given in the Final Prospectus, there has been no material adverse
change in the condition (financial or other), earnings, business or
properties of the Company, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(e)(i) On the date hereof, Price Waterhouse LLP and/or any other firm
of certified independent public accountants acceptable to the
Representatives shall have furnished to the Representatives a letter, dated
the date hereof, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the
Act and the Exchange Act and the respective applicable published rules and
regulations thereunder, and stating in effect that using the assumptions
and methodology used by the Company, all of which shall be described in
such letter, they have recalculated such numbers and percentages set forth
in the Final Prospectus as the Representatives may reasonably request and
as are agreed to by Price Waterhouse LLP, compared the results of their
calculations to the corresponding items in the Final Prospectus, and found
each such number and percentage set forth in the Final Prospectus to be in
agreement with the results of such calculations. To the extent historical
financial information with respect to the Company and/or historical
financial, delinquency or related information with respect to one or more
servicers is included in the Final Prospectus, such letter or letters shall
also relate to such information.
(e)(ii) On the Closing Date, Price Waterhouse LLP and/or any other
firm of certified independent public accountants acceptable to the
Representatives shall have furnished to the Representatives a letter, in
form and substance satisfactory to the Representatives and as are agreed to
by Price Waterhouse LLP, relating, to the extent such information is not
covered in the letter or letters provided pursuant to clause (e)(i), to a
portion of the information set forth on the Mortgage Note Schedule attached
to the Indenture and to the calculation of the Discounted Value of the
Initial Collateral (as defined in the Indenture) or if a letter relating to
the same information is provided to the Trustee, indicating that the
Underwriters are entitled to rely upon their letter to the Trustee.
(f) The Securities shall have received the rating or ratings from the
rating agency or rating agencies set forth in Schedule I hereto.
(g) The stock exchange, if any, set forth on Schedule I hereto shall
have agreed in principle on or prior to the Closing Date to list the
Securities.
(h) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission (in the case of any Computational Materials in
respect of which the Company agrees to indemnify any Underwriter, as set forth
below, when such are read in conjunction with the Final Prospectus) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) the Company will 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 any such untrue statement or alleged untrue statement or
omission or alleged omission made therein (A) in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for use in connection with
the preparation thereof or (B) in any Current Report or any amendment or
supplement thereof, except to the extent that any untrue statement or alleged
untrue statement therein results (or is alleged to have resulted) directly from
an error (an "Initial Collateral Error") in the information concerning the
Eligible Mortgage Notes constituting the Initial Collateral furnished by the
Company to any Underwriter in writing or by electronic transmission that was
used in the preparation of either (x) any Computational Materials (or amendments
or supplements thereof) included in such Current Report (or amendment or
supplement thereof) or (y) any written or electronic materials furnished to
prospective investors on which the Computational Materials (or amendments or
supplements) were based, (ii) such indemnity with respect to the Basic
Prospectus or any Preliminary Final Prospectus shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities which are the subject thereof if such person did not receive a copy
of the Final Prospectus (or the Final Prospectus as amended or supplemented)
excluding documents incorporated therein by reference at or prior to the
confirmation of the sale of such Securities to such person in any case where
such delivery is required by the Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented), and (iii) such indemnity with respect to any Initial
Collateral Error shall not inure to the benefit of any Underwriter (or any
person controlling any Underwriter) from whom the person asserting any loss,
claim, damage or liability received any Computational Materials (or any written
or electronic materials on which the Computational Materials are based) that
were prepared on the basis of such Initial Collateral Error, if, prior to the
time of confirmation of the sale of the Securities to such person, the Company
notified such Underwriter in writing of the Initial Collateral Error or provided
in written or electronic form information superseding or correcting such Initial
Collateral Error (in any such case, a "Corrected Initial Collateral Error"), and
such Underwriter failed to notify such person thereof or to deliver such person
corrected Computational Materials (or underlying written or electronic
materials). This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to (A) written
information relating to such Underwriter furnished to the Company by or on
behalf of such Underwriter through the Representatives specifically for use in
the preparation of the documents referred to in the foregoing indemnity, or (B)
any Computational Materials (or amendments or supplements thereof) furnished to
the Company by any Underwriter pursuant to Section 10 and incorporated by
reference in the Registration Statement or the Final Prospectus (except that no
such indemnity shall be available for any losses, claims, damages or
liabilities, or actions in respect thereof resulting from any Initial Collateral
Error, other than a Corrected Initial Collateral Error). This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the statements set forth in the
last paragraph of the cover page, the legend regarding the Underwriter's
stabilization activities and under the heading "Underwriting" or "Plan of
Distribution" in any Preliminary Final Prospectus or the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the documents referred to in the foregoing
indemnity (other than any Computational Materials (or amendments or supplements
thereof) furnished to the Company by any Underwriter), and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of subparagraph
(a), representing the indemnified parties under subparagraph (a) who are parties
to such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that if clause (i) or
(iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraph (a) or (b) of this Section 8
is due in accordance with its terms but is for any reason held by a court to be
unavailable from the Company or the Underwriters on the grounds of policy or
otherwise, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to which
the Company and one or more of the Underwriters may be subject, as follows:
(i) in the case of any losses, claims, damages and liabilities (or
actions in respect thereof) which do not arise out of or are not based upon
any untrue statement or omission of a material fact in any Computational
Materials (or any amendments or supplements thereof), in such proportion so
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of such discount
and the purchase price of the Securities specified in Schedule I hereto and
the Company is responsible for the balance; provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be
responsible under this subparagraph (i) for any amount in excess of the
underwriting discount applicable to the Securities purchased by such
Underwriter hereunder; and
(ii) in the case of any losses, claims, damages and liabilities (or
actions in respect thereof) which arise out of or are based upon any untrue
statement or omission of a material fact in any Computational Materials (or
any amendments or supplements thereof), in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand
and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof) as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
in such Computational Materials (or any amendments or supplements thereof)
results from information prepared by the Company on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission.
Notwithstanding anything to the contrary in this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
shall have the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the preceding sentence of
this paragraph (d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this paragraph (d), notify such party or parties from
whom contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bear to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Computational Materials. (a) Not later than 10:30 a.m., New York City
time, on the date hereof, the Underwriters shall deliver to the Company five
complete copies of all materials provided by the Underwriters to prospective
investors in the Securities which constitute "Computational Materials" within
the meaning of the no-action letter dated May 20, 1994 issued by the Division of
Corporation Finance of the Commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation
I, ▇▇▇▇▇▇, Peabody & Co. Incorporated, and ▇▇▇▇▇▇ Structured Asset Corporation
and the no-action letter dated May 27, 1994 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association
(together, the "▇▇▇▇▇▇ Letters") and the filing of such material is a condition
of the relief granted in such letter (such materials being the "Computational
Materials"). Each delivery of Computational Materials to the Company pursuant
to this paragraph (a) shall be effected by delivering four copies of such
materials to counsel for the Company on behalf of the Company at the address
specified in Section 13 hereof and one copy of such materials to the Company.
(b) The Underwriters represent and warrant to and agree with the
Company, as of the date hereof and as of the Closing Date, that:
(i) the Computational Materials furnished to the Company
pursuant to Section 10(a) constitute (either in original, aggregated
or consolidated form) all of the materials furnished to prospective
investors by the Underwriters prior to the time of delivery thereof to
the Company with respect to the Securities in accordance with the
▇▇▇▇▇▇ Letters, and such Computational Materials comply with the
requirements of the ▇▇▇▇▇▇ Letters;
(ii) on the date any such Computational Materials with respect to
the Securities (or any written or electronic materials furnished to
prospective investors on which the Computational Materials are based)
were last furnished to each prospective investor and on the date of
delivery thereof to the Company pursuant to Section 10(a) and on the
Closing Date, such Computational Materials (or materials) did not and
will not include any untrue statement of a material fact, or, when
read in conjunction with the Final Prospectus, omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(iii) at the time any Computational Materials (or any written
or electronic materials furnished to prospective investors on which
the Computational Materials are based) with respect to the Securities
were furnished to a prospective investor and on the date hereof, the
Underwriters possessed, and on the date of delivery of such materials
to the Company pursuant to this Section 10 and on the Closing Date,
the Underwriters will possess, the capability, knowledge, expertise,
resources and systems of internal control necessary to ensure that
such Computational Materials conform to the representations and
warranties of the Underwriters contained in subparagraphs (i) and (ii)
above of this paragraph (b); and
(iv) all Computational Materials (or underlying materials
distributed to prospective investors on which the Computational
Materials were based) contained and will contain a legend, prominently
displayed on the first page thereof, to the effect that the Company
has not prepared, reviewed or participated in the preparation of such
Computational Materials, is not responsible for the accuracy thereof
and has not authorized the dissemination thereof.
Notwithstanding the foregoing, the Underwriters make no representation or
warranty as to whether any Computational Materials (or any written or electronic
materials on which the Computational Materials are based) included or will
include any untrue statement resulting directly from any Initial Collateral
Error (except any Corrected Initial Collateral Error, with respect to materials
prepared after the receipt by the Underwriters from the Company of notice of
such Corrected Initial Collateral Error or materials superseding or correcting
such Corrected Initial Collateral Error).
(c) The Underwriters acknowledge and agree that the Company has not
authorized and will not authorize the distribution of any Computational
Materials to any prospective investor, and agree that any Computational
Materials with respect to the Securities furnished to prospective investors
shall include a disclaimer in the form set forth in paragraph (b)(iv) above.
The Underwriters agree that they will not represent to investors that any
Computational Materials were prepared or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, it shall be necessary to amend or
supplement the Final Prospectus as a result of an untrue statement of a material
fact contained in any Computational Materials provided by the Underwriters
pursuant to this Section 10 or the omission to state therein a material fact
required, when considered in conjunction with the Final Prospectus, to be stated
therein or necessary to make the statements therein, when read in conjunction
with the Final Prospectus, not misleading, or if it shall be necessary to amend
or supplement any Current Report to comply with the Act or the rules thereunder,
the Underwriters, at their expense, promptly will prepare and furnish to the
Company for filing with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. The Underwriters represent and warrant to the Company, as of the
date of delivery of such amendment or supplement to the Company, that such
amendment or supplement will not include any untrue statement of a material fact
or, when read in conjunction with the Final Prospectus, omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. The Company shall have no obligation to file such amendment or
supplement if the Company determines that (i) such amendment or supplement
contains any untrue statement of a material fact or, when read in conjunction
with the Final Prospectus, omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; it being
understood, however, that the Company shall have no obligation to review or pass
upon the accuracy or adequacy of, or to correct, any such amendment or
supplement provided by the Underwriters to the Company pursuant to this
paragraph (d) or (ii) such filing is not required under the Act.
(e) The Underwriters (at their own expense) further agree to provide
to the Company any accountants' letters obtained relating to the Computational
Materials, which accountants' letters shall be addressed to the Company or shall
state that the Company may rely thereon; provided that the Underwriters shall
have no obligation to procure such letter.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by Federal or New York
State authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representatives, impracticable to market the Securities.
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Section 7 and 8 hereof and this Section 12 shall survive the termination or
cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule I hereto, with a copy to: Stroock & Stroock & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.; or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn:
President, with a copy to: Stroock & Stroock & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
15. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
MAIN PLACE REAL ESTATE INVESTMENT TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
NATIONSBANC CAPITAL MARKETS, INC.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇ BROTHERS INC.
UBS SECURITIES LLC
By: NATIONSBANC CAPITAL MARKETS, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated March 12, 1997
Registration Statement No. 33-82040
Representatives: NationsBanc Capital Markets, Inc.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇ Brothers Inc.
UBS Securities LLC
Title, Purchase Price and Description of Securities:
Title: Mortgage-Backed Bonds, Series 1997-1 due 2000
Principal amount: $1,000,000,000
Interest Rate: Three-month LIBOR plus 0.05% per annum
Purchase price (include type of funds and accrued interest or amortization,
if applicable): 99.775% Federal (same day) funds.
Bond Ratings: "AAA" by Fitch Investors Service, L.P., and "Aaa" by ▇▇▇▇▇'▇
Investors Service, Inc.
Form of Securities: Book-entry
Depository: The Depository Trust Company
Stock Exchange listing: Luxembourg Stock Exchange
Other provisions: None.
Closing Date, Time and Location: March 18, 1997, 9:30 a.m., New York City time,
office of Stroock & Stroock & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
NationsBanc Capital Markets, Inc. $250,000,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc. 250,000,000
▇▇▇▇▇▇ Brothers Inc. 250,000,000
UBS Securities LLC 250,000,000
Total $1,000,000,000