EXHIBIT 1.2
$_________
BRE PROPERTIES, INC.
___% Notes due _____________
UNDERWRITING AGREEMENT
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________________, 1998
______________________
______________________
______________________
______________________
As Representatives of the several Underwriters
c/o ______________
Dear Sirs and Mesdames:
1. Introductory. BRE Properties, Inc., a corporation organized under the
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laws of the State of Maryland (the "Company"), proposes to issue and sell,
pursuant to the terms of this Agreement, to the several Underwriters named in
Schedule A hereto (the "Underwriters" which term also shall include any
underwriter substituted as hereinafter provided in Section 10), $_____ aggregate
principal amount of its _____% Notes due _____ (the "Securities") to be issued
pursuant to an Indenture dated as of June 23, 1997 (the "Indenture") between the
Company and Chase Manhattan Bank and Trust Company, National Association, as
successor trustee (the "Trustee").
_____, _____, _____ and _____ are acting as representatives of the several
underwriters and in such capacity are hereinafter referred to as the
"Representatives".
2. (a) Representations and Warranties of the Company. The Company
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represents and warrants to the several Underwriters, as of the date hereof and
as of the Closing Date (as defined in Section 3), and agrees with the several
Underwriters, as follows:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
_____) for the registration under the Securities Act of 1933, as amended
(the "1933 Act"), of the Securities and certain other securities and has
filed such amendments thereto, if any, as may have been required to the
date hereof. Such registration statement (including all exhibits thereto,
and all documents incorporated or deemed to be incorporated by reference
therein and the information, if any, deemed to be a part thereof pursuant
to Rule 430A(b) of the rules and regulations of the Commission under the
1933 Act (the "Rules and Regulations")), as amended (if applicable) at the
time such registration became effective, and as from time to time amended
or supplemented pursuant to the 1933 Act, the Securities Exchange Act of
1934, as amended (the "1934 Act"), or otherwise, is hereinafter referred to
as the "Registration Statement." The Company proposes to file with the
Commission pursuant to Rule 424(b) ("Rule 424(b)") of the Rules and
Regulations the Prospectus Supplement (as defined in Section 4(i) hereof)
and, if required pursuant to Rule 424(b), the related prospectus dated
_____ (the "Base Prospectus"), and has previously advised you of all
information (financial and other) set forth therein. The Base Prospectus
and the Prospectus Supplement, each in the form first provided to the
Underwriters by the Company for use in connection with the offering of the
Securities (being the forms in which they are to be filed with the
Commission pursuant to Rule 424(b) or, solely in the case of the Base
Prospectus, if the Base Prospectus is not required to be re-filed with the
Commission pursuant to Rule 424(b), being the form in which the Base
Prospectus was most recently filed with the Commission pursuant to Rule
424(b)), including all documents incorporated or deemed to be incorporated
by reference therein, are hereinafter referred to, collectively, as the
"Prospectus", except that if any revised prospectus or prospectus
supplement shall be provided to the Underwriters by the Company for use in
connection with the offering and sale of the Securities which differs from
the Prospectus first provided to the Underwriters for such purpose (whether
or not such revised prospectus or prospectus supplement is required to be
filed by the Company with the Commission pursuant to Rule 424(b) of the
Rules and Regulations), the term "Prospectus" shall refer to such revised
prospectus or prospectus supplement, as the case may be, from and after the
time it is first provided to the Underwriters for such use. Unless the
context otherwise requires, all references in this Agreement to documents,
financial statements and schedules and other information which is
"contained", "included", "stated", "described in" or "referred to" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such documents, financial
statements and schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed
to mean and include the filing of any document under the 1934 Act after the
date of this Agreement which is or is deemed to be incorporated by
reference in the
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Registration Statement or the Prospectus, as the case may be. For purposes
of this Agreement, all references to the Registration Statement, any
preliminary prospectus supplement, any preliminary prospectus, the
Prospectus Supplement, the Prospectus or any amendment or supplement to any
of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
(ii) The Registration Statement has become effective under the 1933
Act, and no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part
of the Commission for additional information has been complied with. The
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"), and the predecessor trustee under the Indenture
duly filed with the Commission a Statement of Eligibility on Form T-1 (a
"Form T-1") as part of the Registration Statement and no Form T-1 is
required to be filed by the Trustee, as successor trustee under the
Indenture, in connection with the Securities.
At the respective times the Registration Statement and any post-
effective amendments thereto became or become effective, as the case may
be, and at the Closing Date, the Registration Statement complied and will
comply in all material respects with the requirements of the 1933 Act and
the Rules and Regulations and with the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"), and did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus does not and will not include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the foregoing
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representations, warranties and agreements shall not apply to information
contained in or omitted from the Registration Statement or the Prospectus
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 the preparation thereof.
Any preliminary prospectus supplement, any preliminary prospectus
and the Prospectus and any amendment or supplement thereto delivered to the
Underwriters for use in connection with the offering of the Securities was
identical to the respective electronically transmitted copies thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(iii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, when they were
filed with the Commission, complied in all material respects to the
requirements of the 1934 Act and the published 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
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material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and incorporated
or deemed to be incorporated by reference, when they are filed with the
Commission, will comply in all material respects to the requirements of the
1934 Act and the published 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, in the light of the circumstances under which
they were made, not misleading.
(iv) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement). Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), except as otherwise stated
therein or contemplated thereby, (A) there has been no change in the
consolidated capital stock or the consolidated long-term debt of the
Company, (B) there have been no transactions entered into by the Company or
any of its subsidiaries which are material to the Company and its
subsidiaries considered as one enterprise, other than those entered into in
the ordinary course of its business, and (C) except for regular quarterly
dividends, there has been no dividend or distribution of any kind declared,
paid or made by the Company on its shares of capital stock.
(v) The financial statements of the Company, of Promontory Point
Apartments ("PPA"), of Red Hawk Ranch ("RHR"), of ▇▇▇▇▇▇'▇ Landing
Apartments ("FLA"), of Lakeshore Landing Apartments ("LLA"), and of certain
▇▇▇▇▇▇▇▇ ▇▇▇▇ Residential multifamily properties (collectively, "TCRW")
included in the Registration Statement and the Prospectus, in each case,
together with the related notes and supporting schedules (if any), present
fairly the financial position of the Company, of PPA, of RHR, of FLA, of
LLA, and of TCRW, respectively, at the dates indicated and the financial
condition, results of operations, cash flows and shareholders' equity of
the Company and its subsidiaries, the gross income and direct operating
expenses of PPA, of RHR, of FLA and of LLA, and combined gross income and
direct operating expenses of TCRW, respectively, as at the respective dates
and for the respective periods therein indicated, and such financial
statements and related notes and supporting schedules have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis throughout the periods involved, except as may be set
forth therein or in the Prospectus. The selected financial data, if
applicable, and the summary financial information included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the Company's audited financial
statements included in the Registration Statement.
(vi) The accountants who have certified the financial statements and
supporting schedules included in the Registration Statement and the
Prospectus are
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independent public accountants as required by the 1933 Act and the Rules
and Regulations.
(vii) The pro forma condensed financial statements, together with
the related notes and any supporting schedules, included in the
Registration Statement and the Prospectus present fairly the information
shown therein, have been prepared on a basis substantially consistent with
the audited financial statements of the Company set forth therein, the
assumptions on which such pro forma financial statements have been prepared
are reasonable and are set forth in the notes thereto, and such pro forma
condensed financial statements have been prepared, and the pro forma
adjustments set forth therein have been applied, in accordance with the
applicable accounting requirements of the 1933 Act and the Rules and
Regulations (including, without limitation, Regulation S-X promulgated by
the Commission), and such pro forma adjustments have been properly applied
to the historical amounts in the compilation of such statements.
(viii) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Maryland;
the Company has power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement and the Prospectus; the Company is duly qualified as a foreign
corporation to transact business and is in good standing in the State of
Arizona, the State of California, the State of Colorado, the State of
Nevada, the State of New Mexico, the State of Oregon, the State of Utah and
the State of Washington; the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, except where the
failure to be so qualified or in good standing would not have a material
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(ix) Attached hereto as Schedule C is a true and complete list of
all subsidiaries of the Company and all other corporations, partnerships,
joint ventures, limited liability companies and other entities in which the
Company directly or indirectly owns capital stock or any other equity or
ownership interest. Schedule C accurately sets forth the jurisdiction of
organization of, and the Company's approximate percentage ownership
interest in, each such subsidiary and other entity. The Company does not
have any subsidiaries other than those listed on Schedule C and, except as
set forth in Schedule C, the Company does not directly or indirectly own
any capital stock or other equity or other ownership interests in any
corporation, partnership, joint venture, limited liability company or other
entity. Schedule C also correctly indicates whether each such subsidiary
and other entity listed thereon is a corporation, partnership, limited
liability company or other type of entity.
(x) Each subsidiary of the Company has been duly organized and is
validly existing and in good standing under the laws of the jurisdiction of
its organization, has power and authority to own, lease and operate its
property and conduct its business as
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described in the Registration Statement and the Prospectus, and is duly
qualified to transact business and is in good standing in each jurisdiction
in which such qualification is required, except where the failure to be so
qualified or in good standing would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise; and (A) all of the issued and outstanding shares of capital
stock of each such subsidiary that is a corporation have been duly
authorized and validly issued, are fully paid and non-assessable and,
except as set forth on Schedule C, are and, at all times since the date on
which such subsidiary was organized, have been owned by the Company,
directly or through wholly-owned subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity,
(B) all of the issued and outstanding limited liability company interests
of each such subsidiary that is a limited liability company have been duly
authorized and validly issued (under applicable law and the limited
liability company agreement of such subsidiary), are fully paid and non-
assessable and, except as set forth on Schedule C, are owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity, and (C) all
of the issued and outstanding limited and general partnership interests of
each such subsidiary that is a partnership have been duly authorized (if
applicable) and validly issued and, except as set forth on Schedule C, are
owned by the Company, directly or through subsidiaries free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(xi) The Company and its subsidiaries own or possess or have
obtained all material governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to lease or own, as the case
may be, and to operate their respective properties and to carry on their
respective businesses as contemplated in the Prospectus.
(xii) The Company is not required to be registered under the
Investment Company Act of 1940, as amended.
(xiii) The authorized, issued and outstanding shares of capital
stock of the Company are as set forth in the Prospectus under the caption
"Capitalization" (except for subsequent issuances, if any, of the Company's
common stock, par value $.01 per share (the "Common Stock"), pursuant to
employee benefit, employee and director stock option and dividend
reinvestment plans or upon conversion of convertible securities or upon
exchange of exchangeable securities referred to in the Prospectus or other
subsequent issuances of Common Stock referred to in the Prospectus). The
shares of issued and outstanding Common Stock have been duly authorized and
validly issued, are fully paid and non-assessable; and none of the
outstanding shares of Common Stock was issued in violation of any
preemptive or other similar rights arising by operation of law, under the
charter or by-laws of the Company, under any agreement or instrument to
which the Company or any of its subsidiaries is a party or otherwise.
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(xiv) Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws, certificate of limited partnership,
limited partnership agreement, certificate of formation of a limited
liability company, limited liability company agreement or other similar
organizational certificates, instruments, agreements or documents
(collectively, "Organizational Documents"), as the case may be; neither the
Company nor any of its subsidiaries is in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or any of its property or
assets may be bound, except for such defaults which would not, individually
or in the aggregate, have a material adverse effect on the condition
(financial or otherwise) or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise;
and the execution, delivery and performance of this Agreement, the
Indenture and the Securities, the consummation of the transactions
contemplated herein and therein (including, without limitation, the
incurrence of the indebtedness evidenced by the Securities), and compliance
by the Company with its obligations hereunder and thereunder, have been
duly authorized by all necessary corporate action and will not conflict
with or constitute a breach of, or default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any Subject
Agreement (as defined below) or any other material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which 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 Organizational Documents
of the Company or its subsidiaries or any applicable law, administrative
regulation or administrative or court decree; and no consent, approval,
authorization or order of any court or governmental authority or agency is
required for the consummation by the Company of the transactions
contemplated by this Agreement, the Indenture or the Securities, except
such as may be required under state securities or Blue Sky laws of any
jurisdiction or real estate syndication laws in connection with the
purchase and distribution of the Securities by the Underwriters. "Subject
Agreements" means (i) the Loan Agreement dated as of January 31, 1994
between The Prudential Insurance Company of America and the Company (as
successor by merger to Real Estate Investment Trust of California), as
amended by the First Amendment to Loan Agreement dated as of July 7, 1995,
the Second Amendment to Loan Agreement dated as of April 30, 1996, the
Third Amendment to Loan Agreement dated as of November 20, 1996, the
Fourth Amendment to Loan Agreement dated as of February 25, 1997 and the
Fifth Amendment to Loan Agreement dated as of June 30, 1997, (ii) the Loan
Agreement dated as of July 7, 1995 between The Prudential Insurance Company
of America and the Company (as successor by merger to Real Estate
Investment Trust of California), as amended by the First Agreement to Loan
Agreement dated as of April 30, 1996, the Second Agreement to Loan
Agreement dated as of November 20, 1996, the Third Amendment to Loan
Agreement dated as of February 25, 1997 and the Fourth Amendment to Loan
Agreement dated as of June 30, 1997, (iii) the Unsecured Line of Credit
Loan Agreement dated as of November 17, 1997 (the "Credit Agreement")
between Bank of America
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National Trust and Savings Association ("Bank of America") and the Company,
as amended by the Modification Agreement to Syndicate Loan dated as of
January 20, 1998 between the Company and Bank of America, as agent for the
several financial institutions a party thereto, together with all
guarantees entered into by any subsidiaries of the Company in connection
therewith, (iv) the Amended and Restated Credit Agreement between the
Company and Sanwa Bank California dated as of December 31, 1997 (the "Sanwa
Credit Agreement"), together with all guarantees entered into by any
subsidiaries of the Company in connection therewith, (v) the Contribution
Agreement dated as of September 29, 1997, as amended (the "Contribution
Agreement"), between the TCR signatories named on Schedule A thereto, the
Company and BRE Property Investors LLC, a Delaware limited liability
company (the "Operating Company"), together with the guarantee entered into
by the Company pursuant to the Contribution Agreement, as amended by
Amendment No. 1 to the Contribution Agreement dated November 18, 1997, (vi)
the Amended and Restated Limited Liability Company Agreement of the
Operating Company, and (vii) the Amended and Restated Limited Liability
Company Agreement of Blue Ravine Investors, LLC, a Delaware limited
liability company ("Blue Ravine"); "Prudential Agreements" means the Loan
Agreements, as amended, referred to in clauses (i) and (ii) of this
sentence; and "LLC Agreements" means the Amended and Restated Limited
Liability Company Agreements referred to in clauses (vi) and (vii) of this
sentence. All amendments, supplements and restatements of the Subject
Agreements are listed in clauses (i) through (vii) of the preceding
sentence. Except as otherwise described in the Prospectus, no subsidiary
of the Company is a guarantor of, or is a party to or bound by any
instrument or agreement pursuant to which it has guaranteed or may be
required to guarantee or cause another subsidiary of the Company to
guarantee, any borrowings or other indebtedness of the Company. Except as
otherwise described in the Prospectus, the Company is not a party to or
bound by any instrument or agreement pursuant to which it is or may be
required to cause any of its subsidiaries to guarantee any borrowings or
other indebtedness of the Company.
(xv) The Company was and is organized to qualify as a "real estate
investment trust" under the Internal Revenue Code of 1986, as amended (the
"Code"); the Company at all times since its organization has elected to be
taxed as a "real estate investment trust"; the Company has qualified as a
"real estate investment trust" under the Code for its taxable years ended
July 31, 1995, its short taxable year ended December 31, 1995, its taxable
year ended December 31, 1996 and its taxable year ended December 31, 1997,
and will continue to qualify as a "real estate investment trust" under the
Code after consummation of the transactions contemplated by the Prospectus;
and the Company's present and contemplated operations, assets and income
will enable the Company to meet the requirements for qualification as a
"real estate investment trust" under the Code. United States Federal
income tax returns of the Company have been closed through the fiscal year
of the Company ended July 31, 1994. As used in this paragraph (xv), the
term "Company" includes BankAmerica Realty Investors, a California business
trust, and BRE Properties, Inc., a Delaware corporation, which are both
predecessors to BRE Properties, Inc., a Maryland corporation.
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(xvi) Each entity listed on Schedule C either qualifies as a
partnership for federal, state and local income tax purposes or as a
"qualified REIT subsidiary" within the meaning of Section 856(i) of the
Code or qualifies to be disregarded as an entity separate from the Company
or one of its subsidiaries for federal, state and local income tax
purposes.
(xvii) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened against or affecting the
Company or any of its subsidiaries, which is required to be disclosed in
the Registration Statement or the Prospectus (other than as disclosed
therein) or which might result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, or which might materially and adversely affect the properties
or assets of the Company or any of its subsidiaries; and there are no
contracts or documents of the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement or any
document incorporated or deemed to be incorporated therein by the 1933 Act,
the Rules and Regulations, the 1934 Act or the rules and regulations of the
Commission thereunder which have not been so filed.
(xviii) The Company is eligible to use a Form S-3 registration
statement under the 1933 Act. The Company is also eligible to use Form S-3
pursuant to the standards for that Form in effect immediately prior to
October 21, 1992.
(xix) Neither the Company nor any of its subsidiaries nor any of
their respective officers or directors has taken nor will any of them take,
directly or indirectly, any action resulting in a violation of Regulation M
under the 1934 Act, or designed to cause or result in, or which has
constituted or which reasonably might be expected to constitute, the
stabilization or manipulation of the price of the Securities or
facilitation of the sale or resale of the Securities.
(xx) Neither the Company nor any of its subsidiaries is required to
own or possess any trademarks, service marks, trade names or copyrights in
order to conduct the business now operated by it.
(xxi) The Company has full right, power and authority to enter into
this Agreement, the Indenture and the Securities; this Agreement has been
duly authorized, executed and delivered by the Company.
(xxii) Except as otherwise disclosed in the Prospectus: (A) the
Company and its subsidiaries have good and marketable title in fee simple
to all real property and improvements described in the Prospectus as being
owned by the Company (none of which is leased by the Company or any of its
subsidiaries, as lessee); (B) all liens, charges, encumbrances, claims or
restrictions on or affecting the real property and improvements of the
Company or any of its subsidiaries which are required to be disclosed in
the Prospectus are disclosed therein; (C) neither the Company nor any of
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its subsidiaries nor any lessee of any portion of the real property or
improvements of the Company or any of its subsidiaries is in default under
any of the leases pursuant to which the Company or any of its subsidiaries
leases (as lessor) its real property or improvements and the Company knows
of no event which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases, except such
defaults that would not, individually or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, or on earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; (D) no tenant under any of the leases
pursuant to which the Company or any of its subsidiaries leases any of its
real property or improvements has an option or right of first refusal to
purchase the premises demised under such lease; (E) all of the real
property and improvements of the Company and its subsidiaries comply with
all applicable codes and zoning laws and regulations, except for such
failures to comply which would not, individually or in the aggregate, have
a material adverse effect on the condition, financial or otherwise, or on
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and (F) the Company has no
knowledge of any pending or threatened condemnation, zoning change or other
proceeding or action that would in any manner affect the size of, use of,
improvements on, construction on, or access to any of the real property of
the Company or any of its subsidiaries, except such proceedings or actions
that would not, individually or in the aggregate, have a material adverse
effect on the condition, financial or otherwise, or earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(xxiii) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (A) transactions
are executed in accordance with management's general or specific
authorizations; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (C) access
to assets is permitted only in accordance with management's general or
specific authorizations; and (D) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. Neither the Company nor
any of its subsidiaries nor any of their respective employees or agents has
made any payment of funds of the Company or any of its subsidiaries or
received or retained any funds in violation of any law, rule or regulation
which payment, receipt or retention of funds is of a character required to
be disclosed in the Prospectus.
(xxiv) Except as otherwise set forth in the Registration Statement,
(A) to the best knowledge and information of the Company, neither the
Company nor any of its subsidiaries has at any time, and no other party has
at any time, handled, buried, stored, retained, refined, transported,
processed, manufactured, generated, produced, spilled, allowed to seep,
leak, escape or ▇▇▇▇▇, or pumped, poured, emitted, emptied, discharged,
injected, dumped, transferred or otherwise disposed of or dealt with
Hazardous Materials (hereinafter defined) on, to or from real property
owned, leased or otherwise utilized by the Company or any of its
subsidiaries or in which the
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Company or any of its subsidiaries has any ownership interest, including
without limitation any subsurface soils and ground water (the "Premises"),
except for such cases as (u) are not required to be disclosed in the
Registration Statement and (v) would not, individually or in the aggregate,
have a material adverse effect on the condition (financial or otherwise) or
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, (B) to the best knowledge and
information of the Company, no seepage, leak, escape, ▇▇▇▇▇, discharge,
injection, release, emission, spill, pumping, pouring, emptying or dumping
of Hazardous Materials from or to the Premises has occurred, except for
such cases as (w) are not required to be disclosed in the Registration
Statement and (x) would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise) or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, (C) neither the Company nor any
of its subsidiaries has received notice of any claim, or has knowledge 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 Statute
(as hereinafter defined), except for such claims as (y) are not required to
be disclosed in the Registration Statement and (z) would not, individually
or in the aggregate, have a material adverse effect on the condition
(financial or otherwise) or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
and (D) to the best of Company's knowledge and information, no part of the
Premises is included or proposed for inclusion on the National Priorities
List issued pursuant to CERCLA (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
identified by the EPA as a potential CERCLA site or included or proposed
for inclusion on any list or inventory issued pursuant to any other
Environmental Statute or issued by any other Governmental Authority
(hereinafter defined). As used herein "Hazardous Material" shall include
without limitation, any flammable explosives, radioactive materials,
hazardous materials, hazardous wastes, hazardous or toxic substances, or
related materials, asbestos or any material containing asbestos, or any
other substance or material as defined by 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 6901 et seq.) and in the regulations adopted
-- ---
and publications promulgated pursuant to each of the foregoing
(individually, an "Environmental Statute") or by any Federal, state or
local governmental authority having or claiming jurisdiction over the
Premises (a "Governmental Authority").
(xxv) The issuance, sale and public offering of the Securities to
be issued and sold by the Company have been approved by a majority of all
of the "Continuing Directors" and do not constitute a "Business
Combination" (as such terms are defined in Article IX of the Company's
charter).
11
(xxvi) To the extent applicable, the Company has complied and will
comply with the provisions of that certain Florida act relating to
disclosure of doing business with Cuba, codified as Section 517.075 of the
Florida statutes, and the rules and regulations thereunder (collectively,
the "Cuba Act") or is exempt therefrom.
(xxvii) The Indenture has been duly authorized by the Company and,
at the Closing Date, will have been duly executed and delivered by the
Company and will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditor's rights generally or by general equitable principles.
(xxviii) The Securities have been duly authorized and, at the
Closing Date, will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor specified in this Agreement,
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles, and will be
entitled to the benefits of the Indenture.
(xxix) The Securities and the Indenture will conform in all
material respects to the respective statements relating thereto contained
in the Prospectus and will be in substantially the respective forms filed
or incorporated by reference, as the case may be, as exhibits to the
Registration Statement.
(xxx) The Securities rank and will rank on a parity with all
unsecured indebtedness of the Company (other than subordinated indebtedness
of the Company) that is outstanding on the date hereof or that may be
incurred hereafter, and senior to all subordinated indebtedness of the
Company that is outstanding on the date hereof or that may be incurred
hereafter.
(xxxi) The Company has notified the Lender (as defined in the
Prudential Agreements) of the terms and conditions of the Securities and
the offering made hereby and the Company has obtained a written consent
from the Lender to the issuance of the Securities (the "Written Consent"),
which Written Consent is in full force and effect.
(xxxii) The Securities and the indebtedness evidenced thereby do
not and will not constitute "Funding Debt" (within the meaning of the LLC
Agreements) and no portion of the proceeds from the issuance of the
Securities will be applied to make any Managing Member Loan (within the
meaning of the LLC Agreements).
(xxxiii) Immediately prior to the issuance of the Securities on the
Closing Date, securities with an aggregate initial public offering price of
$162.7 million will have been issued under the Registration Statement.
12
(b) Any certificate signed by any officer of the Company and delivered to
the Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
3. Purchase by and Sale and Delivery to, the Underwriters; Closing Date.
--------------------------------------------------------------------
On the basis of the representations, warranties, covenants and agreements herein
contained, and subject to the terms and conditions herein set forth, the Company
hereby agrees to sell to the Underwriters and the Underwriters agree, severally
and not jointly, to purchase from the Company at the price set forth in Schedule
B hereto, the aggregate principal amount of Securities set forth opposite their
respective names in Schedule A, subject to adjustment in accordance with Section
10 hereof.
The Company will deliver the Securities to the Representatives, for the
respective accounts of the several Underwriters (in the form of definitive
certificates, issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company given not later
than one full business day prior to the Closing Date or, if no such direction is
received, in the name of Cede & Co.), against payment of the purchase price
therefor by wire transfer of immediately available funds, at the offices of
▇▇▇▇▇ & ▇▇▇▇ llp, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The
time and date of delivery and closing shall be at 10:00 A.M., New York time, on
the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any
given day), business day after the date hereof; provided, however, that such
--------
date and time may be accelerated or extended by agreement between the Company
and the Representatives or postponed pursuant to the provisions of Section 10
hereof. The time and date of such payment and delivery are herein referred to
as the "Closing Date". The Company shall make the certificates for the
Securities available to the Representatives for examination on behalf of the
Underwriters not later than 10:00 A.M., New York time, on the business day
preceding the Closing Date in New York, New York.
It is understood that _____ and _____, _____ or _____ individually may (but
shall not be obligated to) make payment to the Company on behalf of any
Underwriter or Underwriters for the Securities to be purchased by such
Underwriter or Underwriters. Any such payment by _____, _____, _____ or _____
shall not relieve such Underwriter or Underwriters from any of its or their
other obligations hereunder.
After the execution and delivery of this Agreement, the several
Underwriters propose to make an initial public offering of the Securities at the
initial public offering price set forth in Schedule B hereto.
4. Covenants and Agreements of the Company. The Company covenants and
---------------------------------------
agrees with the several Underwriters that:
(a) The Company will advise the Representatives promptly of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the institution of any proceedings for that
purpose, and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible the lifting thereof, if issued. The
Company will advise the Representatives promptly of any request by the
Commission for
13
any amendment of or supplement to the Registration Statement or the Prospectus
or for additional information, and will not at any time file any amendment to
the Registration Statement or supplement to the Prospectus which shall not
previously have been submitted to the Representatives a reasonable time prior to
the proposed filing or use thereof or to which the Representatives shall
reasonably object in writing or which is not in compliance with the 1933 Act and
the Rules and Regulations. The Company will advise the Representatives promptly
when the Prospectus has been filed pursuant to Rule 424(b) of the Rules and
Regulations.
(b) The Company will prepare and file with the Commission, promptly upon
the request of the Representatives, any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may be necessary to enable the several Underwriters to continue
the distribution of the Securities and, in the case of any such amendments to
the Registration Statement, will use its best efforts to cause the same to
become effective as promptly as possible. The Company will promptly file all
reports and any definitive proxy or information statements required to be filed
with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act for so
long as the delivery of a prospectus is required in connection with the offering
or sale of the Securities.
(c) If at any time when a prospectus relating to the Securities is required
to be delivered under the 1933 Act any event occurs as a result of which the
Prospectus would include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
at any time to amend the Prospectus to comply with the 1933 Act or the Rules and
Regulations, the Company will promptly notify the Representatives thereof and
will prepare an amended or supplemented Prospectus (in form and substance
reasonably satisfactory to counsel to the Underwriters) or, with the consent of
counsel to the Underwriters, make an appropriate filing pursuant to Section 13
or 14 of the 1934 Act which will correct such statement or omission; and, in
case any Underwriter is required to deliver a prospectus relating to the
Securities nine months or more after the date of this Agreement, the Company
upon the request of the Representatives and at the expense of such Underwriters
will prepare promptly such prospectus or prospectuses as may be necessary to
permit compliance with the requirements of Section 10(a)(3) of the 1933 Act.
(d) The Company will deliver to the Representatives, at or before the
Closing Date, signed copies of the Registration Statement and all amendments
thereto (including all financial statements and exhibits thereto and all
documents incorporated or deemed to be incorporated by reference therein) and
will deliver to the Representatives such number of copies of the Registration
Statement, including such financial statements and all documents incorporated or
deemed to be incorporated by reference therein but without exhibits, and of all
amendments thereto, as the Representatives may reasonably request. The Company
will deliver or mail to or upon the order of the Representatives on the date of
the initial public offering, and thereafter from time to time during the period
when delivery of a prospectus relating to the Securities is required under the
1933 Act, as many copies of the Prospectus, in final form or as thereafter
amended or supplemented, as the Representatives may reasonably request;
provided, however, that the expense of the preparation and delivery of any
-------- -------
prospectus required for use nine months or more after the date of this
Agreement, shall be borne by the Underwriters
14
required to deliver such prospectus. The copies of the Registration Statement
and each amendment thereto and the copies of any preliminary prospectus and any
preliminary prospectus supplement and the Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) The Company will make generally available to its security holders as
soon as practicable, but in any event 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 under the ▇▇▇▇ ▇▇▇) which will be in reasonable detail
(but which need not be audited) and which will comply with Section 11(a) of the
1933 Act, covering a period of at least twelve months 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.
(f) The Company will cooperate with the Representatives to enable the
Securities to be qualified for sale under the securities laws and real estate
syndication laws of such states and other jurisdictions as the Representatives
may reasonably designate and at the request of the Representatives will make
such applications and furnish such information as may reasonably be required of
it as the issuer of the Securities for that purpose; provided, however, that the
-------- -------
Company shall not be required to qualify to do business or to file a general
consent to service of process in any such jurisdiction. The Company will, from
time to time, prepare and file such statements and reports as are or may be
required of it as the issuer of the Securities to continue such qualifications
in effect for so long a period as the Representatives may reasonably request for
the distribution of the Securities.
(g) The Company will furnish to its shareholders annual reports containing
financial statements certified by independent public accountants and with
quarterly summary financial information, in reasonable detail which may be
unaudited. During the period of five years from the date hereof, the Company
will deliver to the Representatives and, upon request, to each of the other
Underwriters, copies of each annual report of the Company and each other report
furnished by the Company to its shareholders; and will deliver to the
Representatives, as soon as they are available, copies of any other reports
(financial or other) which the Company shall publish or otherwise make available
to any of its security holders as such and, as soon as they are available,
copies of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange.
(h) The Company will use the net proceeds received by it from the sale of
the Securities sold by it in the manner specified in the Prospectus Supplement
under "Use of Proceeds".
(i) Immediately following the execution of this Agreement, the Company will
prepare a prospectus supplement, dated the date hereof (the "Prospectus
Supplement"), containing the public offering price of the Securities, the
underwriting discounts and commissions, the plan of distribution of the
Securities and such other information as may be required by the 1933 Act or the
Rules and Regulations or as the Representatives and the Company deem
appropriate, and will file or transmit for filing with the Commission in
15
accordance with Rule 424(b) of the Rules and Regulations copies of such
Prospectus Supplement and, if required by Rule 424(b), the Base Prospectus.
(j) During the period beginning on the date hereof and continuing through
and including the Closing Date, the Company will not offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company or any of its
subsidiaries which are substantially similar to the Securities (other than the
Securities) or any securities convertible into or exchangeable or exercisable
for any debt securities of the Company or any of its subsidiaries which are
substantially similar to the Securities or any rights, warrants or options to
purchase any debt securities of the Company or any of its subsidiaries which are
substantially similar to the Securities, without your prior written consent.
(k) The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the Code.
(l) In accordance with the provisions of the Cuba Act, if applicable, and
without limitation to the provisions of Section 6 hereof, the Company will
indemnify each Underwriter against any and all losses, claims, damages,
liabilities and expenses (including attorneys' fees) arising out of or based
upon any violation by the Company of the Cuba Act.
5. Payment of Expenses. The Company will pay (directly or by
-------------------
reimbursement) all expenses incident to the performance of its obligations under
this Agreement, including but not limited to all expenses and taxes incident to
delivery of the Securities to the Representatives, all expenses incident to the
registration of the Securities under the 1933 Act and the printing of copies of
the Registration Statement, any preliminary prospectus, any preliminary
prospectus supplement, the Prospectus, any amendments or supplements thereto,
all expenses incident to the preparation, word processing, printing and delivery
of all "Blue Sky" memoranda, this Agreement, the Securities and the Indenture
and furnishing the same to the Underwriters and dealers except as otherwise
provided in Sections 4(c) and 4(d), the fees and disbursements of the Company's
counsel and accountants, all filing and printing fees and expenses (including
reasonable legal fees and disbursements of counsel for the Underwriters)
incurred in connection with qualification or exemption of the Securities for
sale under securities laws and real estate syndication laws of such
jurisdictions as the Representatives may designate, all fees and expenses paid
or incurred in connection with any filings made with the National Association of
Securities Dealers, Inc., the fees and expenses of the Trustee, including, if
required, the fees and disbursements of counsel for the Trustee in connection
with the Indenture and the Securities, any fees payable in connection with the
rating of the Securities, the fees and expenses of any depositary in connection
with holding the Securities in book-entry form, the costs of preparing
certificates evidencing the Securities, and all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section.
6. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the 1933 Act
or Section 20 of the 1934 Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any
16
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus, any preliminary
prospectus supplement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein; provided, however,
-------- -------
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities, or any person controlling such Underwriter, if a copy of the
Prospectus (excluding documents incorporated by reference therein) was not sent
or given by or on behalf of such Underwriter to such person, if required by law
so to have been delivered, at or prior to the written confirmation of the sale
of the Securities to such person, and if the Prospectus (excluding documents
incorporated by reference therein) would have cured the defect giving rise to
such losses, claims, damages or liabilities.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, each of the Company's directors, each of the
Company's officers who signed the Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus, any preliminary prospectus
supplement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but only
with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, any preliminary prospectus
supplement, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to paragraph (a) or (b) of this Section 6, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of
17
such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (i) the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
Underwriters and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act and
(ii) the fees and expenses of more than one separate firm (in addition to any
local counsel) for the Company, its directors, its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of either such Section. In the case of any such separate firm for
the Underwriters and such control persons of any Underwriters, such firm shall
be designated in writing by _____. In the case of any such separate firm for the
Company, and such directors, officers and control persons of the Company, such
firm shall be designated in writing by the Company. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b)
of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims,
18
damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Securities (before deducting expenses) received by the
Company and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price (as defined in Schedule
B hereto) (excluding accrued interest) of the Securities. The relative fault of
the Company on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether 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 or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this Section 6
are several in proportion to the respective aggregate principal amount of
Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 6 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 that does not take account of the
equitable considerations referred to in paragraph (d) of this Section 6. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇
▇▇▇) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The remedies provided for in this Section 6
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6,
and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
the Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Securities.
7. Conditions of Underwriters' Obligations. The respective obligations
---------------------------------------
of the several Underwriters hereunder shall be subject to the accuracy, at and
(except as otherwise stated herein) as of the date of this Agreement and the
Closing Date, of the representations and warranties made herein by the Company
and of the statements of the Company's officers
19
or directors in any certificates furnished pursuant to the provisions hereof, to
compliance at and as of the Closing Date by the Company with the covenants and
agreements herein contained and other provisions hereof to be satisfied at or
prior to the Closing Date and to the following additional conditions:
(a) The Registration Statement shall be effective and, at the Closing
Date (i) no stop order suspending the effectiveness thereof shall have been
issued and no proceedings for that purpose shall have been initiated or, to
the knowledge of the Company or the Representatives, threatened by the
Commission, and any request for additional information on the part of the
Commission (to be included in the Registration Statement or the Prospectus
or otherwise) shall have been complied with to the reasonable satisfaction
of the Representatives, and (ii) there shall not have come to the attention
of the Representatives any facts that would cause them to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of
the Securities, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If the Company has elected to rely upon Rule 430A of
the Rules and Regulations, the price of the Securities and any price
related information previously omitted from the Registration Statement
pursuant to Rule 430A shall have been transmitted to the Commission for
filing pursuant to Rule 424(b) of the Rules and Regulations within the
prescribed time period, and before the Closing Date the Company shall have
provided evidence satisfactory to the Representatives of such timely
filing, or a post-effective amendment providing such information shall have
been promptly filed and declared effective in accordance with the
requirements of Rule 430A of the Rules and Regulations.
(b) At the date of this Agreement, the Representatives shall have
received from Ernst & Young LLP a letter, dated the date of this Agreement,
in form and substance previously approved by the Representatives, together
with signed or reproduced copies of such letter for each of the
Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in the
Registration Statement and the Prospectus (including, without limitation,
as to any pro forma financial statements and as to all historical financial
statements of the Company, PPA, RHR, FLA, LLA and TCRW).
(c) The Representatives shall have received from Ernst & Young LLP a
letter dated the Closing Date to the effect that they reaffirm the
statements made in the letter furnished pursuant to Section 7(b) above,
except that the specified date referred to therein shall be a date not more
than three business days prior to the Closing Date.
(d) The Representatives shall have received from Paul, Hastings,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, a favorable opinion dated
the Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
20
(i) To the best of such counsel's knowledge and information, the
Company and its subsidiaries are operating in compliance with all
material franchises, grants, authorizations, licenses, permits,
easements, consents, certificates and orders required for the conduct
of their respective businesses, all of which are valid and in full
force and effect.
(ii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in the State of Arizona, the
State of California, the State of Colorado, the State of Nevada, the
State of New Mexico, the State of Oregon, the State of Utah and the
State of Washington; the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, except where the
failure to be so qualified or in good standing would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise.
(iii) Each Covered Subsidiary (as hereinafter defined) has been
duly organized and is validly existing and in good standing under the
laws of the jurisdiction of its organization and has power and
authority as a corporation, limited partnership or limited liability
company, as the case may be, to own, lease and operate its properties
and to conduct its business as described in the Registration Statement
and the Prospectus; each Covered Subsidiary of the Company is duly
qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, except where the
failure to be so qualified or in good standing would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise; and (A) all of the
issued and outstanding shares of capital stock of each Covered
Subsidiary that is a corporation have been duly authorized and validly
issued, are fully paid and non-assessable and, to the best knowledge
of such counsel and except as otherwise set forth on Schedule C, are
and, at all times since the date on which such subsidiary was
organized, have been owned by the Company, directly or through wholly-
owned subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, and (B) all of the issued
and outstanding limited liability company interests of each Covered
Subsidiary that is a limited liability company have been duly
authorized and validly issued (under applicable law and the limited
liability company agreement of such Covered Subsidiary), are fully
paid and non-assessable and, to the best knowledge of such counsel and
except as set forth on Schedule C, are owned by the Company, directly
or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, and (C) all of
the issued and outstanding partnership interests of each Covered
Subsidiary that is a partnership have been duly authorized (if
applicable) and validly issued and, to the best knowledge of such
counsel and except as set forth on Schedule C, are owned by the
Company, directly or
21
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity. As used herein,
the term "Covered Subsidiary" means each corporation, limited
partnership, limited liability company and other entity listed under
Item A of Schedule C, other than those entities designated on Schedule
C as an "Excluded Subsidiary."
(iv) The authorized, issued and outstanding shares of capital
stock of the Company at _____ are as set forth in the Prospectus under
"Capitalization".
(v) The execution, delivery and performance of this Agreement,
the Indenture and the Securities, the consummation of the transactions
herein and therein contemplated (including, without limitation, the
incurrence of the indebtedness evidenced by the Securities), and
compliance by the Company with its obligations hereunder and
thereunder, will not result in a breach or violation of any of the
terms or provisions of or constitute a default under (A) any Subject
Agreement, (B) any other material contract, indenture, mortgage, deed
of trust, note, loan agreement or other agreement or instrument known
to such counsel to which the Company or any subsidiary is a party or
by which the Company or any subsidiary is bound or to which any of
their respective properties or assets are subject, (C) the
Organizational Documents of the Company or any of the Covered
Subsidiaries, or (D) to the best of such counsel's knowledge and
information, any law, order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their respective properties
(provided that such counsel need express no opinion as to state
securities or real estate syndication laws of the various
jurisdictions where the Securities are to be offered).
(vi) Assuming that the net proceeds from the issuance of the
Securities are used solely to repay indebtedness under the Credit
Agreement, neither the Securities nor any proceeds therefrom will
constitute Funding Debt or a Managing Member Loan.
(vii) The Registration Statement is effective under the 1933
Act and, to the best of such counsel's knowledge and information, no
stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act or proceedings therefor initiated
or threatened by the Commission.
(viii) At the time the Registration Statement became effective
and at the date of this Agreement, the Registration Statement (other
than the financial statements and supporting schedules and other
financial and statistical data included or incorporated by reference
therein or omitted therefrom and any trustee's Statement of
Eligibility on Form T-1 (a "Form T-1"), as to which no opinion need be
rendered) complied as to form in all material respects with the
requirements of the 1933 Act and the Rules and Regulations; and
nothing has come to such counsel's attention that would lead them to
believe that the Registration Statement, at the time it became
effective, contained an untrue
22
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the date of the
Prospectus Supplement or at the date of such opinion, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading (except that no statement need be made as to financial
statements or supporting schedules or other financial or statistical
data included or incorporated by reference in or omitted from the
Registration Statement or the Prospectus or any Form T-1).
(ix) The documents incorporated or deemed to be incorporated by
reference in the Prospectus (other than the financial statements and
supporting schedules and other financial and statistical data included
or incorporated by reference therein or omitted therefrom, as to which
no opinion need be rendered), as of the dates they were filed with the
Commission (or, if such incorporated documents were amended, when such
amendment was filed), complied as to form in all material respects
with the requirements of the 1934 Act and the published rules and
regulations thereunder.
(x) No filing with, or consent, approval, authorization,
license, registration, qualification, decree or order of, any court or
governmental authority or agency is required in connection with the
execution, delivery or performance of this Agreement, the Indenture or
the Securities by the Company, or in connection with the issuance or
sale of the Securities to be issued and sold by the Company to the
Underwriters, except such as has been obtained under the 1933 Act, the
Rules and Regulations, the 1939 Act or the 1939 Act Regulations or
such as may be required under state securities laws or real estate
syndication laws (provided that such counsel need express no opinion
as to filings with, or consents, approvals, authorizations, licenses,
registrations, qualifications, decrees or orders of, any foreign court
or foreign governmental authority or agency).
(xi) The Company is not required to be registered under the
Investment Company Act of 1940, as amended.
(xii) The Company is eligible to use a Form S-3 registration
statement under the 1933 Act and is also eligible to use a Form S-3
registration statement pursuant to the standards for that Form as in
effect immediately prior to October 21, 1992.
(xiii) The Company has all legal right, power and authority
necessary to qualify as a "real estate investment trust" under the
Code; the Company was reorganized in Delaware in 1987 and
reincorporated in Maryland in 1996; the Company has elected to be
treated as a "real estate investment trust" since its original
organization; the Company has qualified as a "real estate investment
23
trust" for its fiscal year ended July 31, 1995, its short taxable year
ended December 31, 1995 and its taxable year ended December 31, 1996
(the years, to the best knowledge of counsel, that are still subject
to audit by the Internal Revenue Service); it is anticipated that the
Company will qualify to be taxed as a "real estate investment trust"
under the Code for its taxable year ended December 31, 1997; and the
Company was and is organized and was operated and is operating in a
manner that enabled and will enable it to qualify to be taxed as a
"real estate investment trust" under the Code for its taxable year
ended December 31, 1997 and its taxable years ending December 31, 1998
and thereafter provided the Company met (in the case of its taxable
year ended December 31, 1997) and continues to meet (in the case of
its taxable years ending December 31, 1998 and thereafter), through
actual annual operating results, distribution levels and diversity of
stock ownership, the various qualification tests imposed by the Code
necessary for the Company to qualify as a "real estate investment
trust". As used in this paragraph (xiii) and paragraph (xiv) below,
the term "Company" includes BankAmerica Realty Investors, a California
business trust and BRE Properties, Inc., a Delaware corporation, which
are both predecessors to BRE Properties, Inc., a Maryland corporation.
(xiv) Each entity listed on Schedule C either qualifies as a
partnership for federal income tax purposes and for California or
Delaware, as the case may be, income tax purposes or as a "qualified
REIT subsidiary" within the meaning of Section 856(i) of the Code or
qualifies to be disregarded as an entity separate from the Company or
one of its subsidiaries for federal income tax purposes and for
California or Delaware, as the case may be, income tax purposes.
(xv) The information in the Prospectus under the captions "The
Operating Company", "Description of Notes", "Risk Factors--Real Estate
Investment Risks--Restrictions in the Operations of the Operating
Company", "Risk Factors--Real Estate Investment Risks--Limited
Indemnification" (only with respect to the first, second and third
paragraphs under such caption), "Description of Debt Securities" and
"Federal Income Tax Considerations", and the information in the
Company's 1996 Annual Report on Form 10-K under the caption "Legal
Proceedings", to the extent that it constitutes matters of law or
legal conclusions, or summaries of provisions of the Company's charter
or by-laws, the Subject Agreements, the Indenture, the Securities or
of other documents, agreements or instruments, has been reviewed by
such counsel and is correct in all material respects; and the opinion
of such counsel in the Prospectus under the caption "Federal Income
Tax Considerations" is confirmed.
(xvi) There are no legal or governmental proceedings pending
or, to the best of such counsel's knowledge and information,
threatened against the Company or any of its subsidiaries which are
required to be disclosed in the
24
Registration Statement, other than those disclosed therein, and all
pending legal or governmental proceedings to which the Company or any
of its subsidiaries is a party or of which any of the property of the
Company or any of its subsidiaries is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business, are, considered in the
aggregate, not material.
(xvii) To the best of such counsel's knowledge and information,
there are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in
the Registration Statement or in the documents incorporated by
reference therein or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by reference
as exhibits thereto, the descriptions thereof and references thereto
are correct in all material respects, and, to the best of such
counsel's knowledge and information, no default exists in the due
performance or observance of any obligation, agreement, covenant or
condition contained in any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument so described, referred
to or filed.
(xviii) The Indenture has been qualified under the 1939 Act.
Such opinion shall be rendered to the Underwriters at the request of the
Company and shall so state therein. In giving their opinion, Paul, Hastings,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ llp (A) shall state that insofar as such opinion concerns the
Indenture, the Securities or any other instrument, agreement or other document
which by its terms is not governed by the laws of the State of California, the
General Corporation Law of the State of Delaware or the Limited Liability
Company Act of the State of Delaware, such counsel has assumed that the
Indenture, the Securities and such other instruments, agreements and other
documents are governed by the laws of the State of California and (B) may rely
(i) as to the qualification of the Company and its subsidiaries to do business
in any state or jurisdiction, upon certificates of appropriate government
officials and (ii) as to matters of fact, upon certificates and written
statements of officers of and accountants for the Company and (C) shall state
that such counsel has relied, as to matters arising under the laws of the State
of Maryland and the State of New York, upon the opinion of _____ delivered
pursuant to Section 7(e) hereof.
(e) The Representatives have received from _____, Maryland and New
York counsel for the Company, a favorable opinion dated the Closing Date,
in form and substance satisfactory to the Representatives, to the effect
that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Maryland.
(ii) The Company has the corporate power and authority to own,
lease and operate its properties and conduct its business as described
in the Registration Statement and the Prospectus.
25
(iii) The authorized, issued and outstanding shares of capital
stock of the Company are as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any, of Common
Stock pursuant to the employee benefit, employee and director stock
option and dividend reinvestment plans referred to in the Prospectus);
and the shares of issued and outstanding Common Stock have been duly
authorized and validly issued, are fully-paid and non-assessable, and
are not subject to any preemptive or other similar rights arising by
operation of law, under the charter or by-laws of the Company, under
any resolution adopted by the board of directors of the Company or any
committee thereof or, to the best of such counsel's knowledge,
otherwise.
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization,
execution and delivery thereof by the Trustee) constitutes a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or
by general equitable principles.
(v) The Securities have been duly authorized and executed by the
Company and, when duly authenticated by the Trustee in the manner
provided in the Indenture (assuming the due authorization, execution
and delivery of the Indenture by the Trustee) and delivered against
payment of the purchase price therefor pursuant to this Agreement,
will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditor's rights generally or by general equitable
principles, and will be entitled to the benefits of the Indenture.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company; and the execution, delivery and performance
of this Agreement, the Indenture and the Securities, the consummation
of the transactions herein and therein contemplated, and compliance by
the Company with its obligations hereunder and thereunder, will not
result in a breach or violation of any of the terms or provisions of
or constitute a default under the Company's charter or by-laws or, to
the best of such counsel's knowledge, any law, order, rule or
regulation of any Maryland or New York court, governmental agency or
body having jurisdiction over the Company or any of its subsidiaries
or any of their respective properties.
(vii) No filing with, or consent, approval, authorization or
order of, any Maryland or New York court, governmental authority or
agency is required in connection with the execution, delivery or
performance of this Agreement, the Indenture or the Securities by the
Company, or in connection with the issuance
26
or sale of the Securities to the Underwriters, except such as may be
required under Maryland or New York securities laws or real estate
syndication laws.
(viii) The information in the Prospectus under the captions
"Description of Notes", "Description of Debt Securities" and "Risk
Factors--Provisions Which Could Limit a Change in Control or Deter a
Takeover", and the information in the Company's 1996 Annual Report on
Form 10-K under the caption "Risk Factors--Provisions Which Could
Limit a Change in Control or Deter a Takeover", to the extent that it
constitutes matters of Maryland or New York law or legal conclusions
under Maryland or New York law, or summaries of provisions of the
Company's charter or by-laws, the Indenture, the Securities or of any
other documents specifically referred to therein (excluding two loan
agreements specifically referred to under the caption "Description of
Notes" in the Prospectus) is correct in all material respects.
(ix) The issuance, sale and public offering of the Securities
have been approved by the "Continuing Directors" and do not constitute
a "Business Combination" (as such terms are defined in Article VIII of
the Company's charter).
Such opinion shall be rendered to the Underwriters at the request of
the Company and shall so state therein. In giving their opinion, _____
(i) may rely as to matters of fact, to the extent not independently
verified by such counsel, upon certificates and written statements of
officers and accountants for the Company, (ii) shall state that such
opinion is limited to matters arising under the laws of the State of
Maryland, the State of New York and the General Corporation Law of the
State of Delaware and that, insofar as such opinion concerns any
instrument, agreement or other document which by its terms is not governed
by the laws of the State of Maryland, the State of New York or the General
Corporation Law of the State of Delaware, such counsel has assumed that
such instruments, agreements and other documents are governed by the laws
of the State of Maryland and (iii) shall expressly state that Paul,
Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ llp and ▇▇▇▇▇ & Wood llp, in rendering their
opinions pursuant to Sections 7(d) and 7(f) of this Agreement, may rely on
such opinion as to all matters arising under the laws of the State of
Maryland and, solely with respect to Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ llp,
the State of New York, as if such opinion were addressed to them.
(f) The Representatives shall have received from ▇▇▇▇▇ & Wood LLP,
counsel for the Underwriters, their favorable opinion or opinions dated the
Closing Date with respect to the organization of the Company, the validity
of the Securities to be sold by the Company, this Agreement, the Indenture,
the Registration Statement, the Prospectus and such other related matters
as the Representatives may require, and the Company shall have furnished to
such counsel such documents as they may request for the purpose of enabling
them to pass upon such matters.
27
(g) At the date of this Agreement and at the Closing Date, the
Securities shall be rated at least Baa2 by Moody's Investor's Service Inc.,
BBB by Standard & Poor's Corporation, and the Company shall have delivered
to the Representatives a letter, dated the Closing Date, from each such
rating agency, or other evidence satisfactory to the Representatives,
confirming that the Securities have such ratings.
(h) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date (1) there shall not have occurred any
downgrading, nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded the
Securities or any of the Company's other securities by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the 1933 Act; and (2) there shall not have
occurred any change, or any development involving a prospective change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in your judgment,
is material and adverse and that makes it, in your judgment, impracticable
to market the Securities on the terms and in the manner contemplated in the
Prospectus. At the Closing Date (i) the Registration Statement and the
Prospectus shall contain all statements which are required to be stated
therein in accordance with the 1933 Act and the Rules and Regulations and
in all material respects shall conform to the requirements of the 1933 Act
and the Rules and Regulations, and neither the Registration Statement nor
the Prospectus shall contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and no action, suit or
proceeding at law or in equity shall be pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries which
would be required to be set forth in the Registration Statement or the
Prospectus other than as set forth therein, (ii) no proceeding shall be
pending or, to the knowledge of the Company, threatened against the Company
or any of its subsidiaries before or by any Federal, state or other court,
commission, board or administrative agency wherein an unfavorable
decision, ruling or finding would materially and adversely affect the
business, property, financial condition or income of the Company and its
subsidiaries considered as one enterprise other than as set forth in the
Registration Statement and the Prospectus, (iii) neither the Company nor
any of its subsidiaries shall be in default in the performance or
observance of any contract to which it is a party, except such defaults
that would not have a material adverse effect on the condition, financial
or otherwise, of the Company and its subsidiaries considered as one
enterprise or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, (iv) no stop
order suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act and no proceeding therefor shall have been
instituted or threatened by the Commission and (v) the Representatives
shall have received, at the Closing Date, a certificate of the President
and the Chief Financial Officer of the Company, dated as of the Closing
Date, evidencing compliance with the appropriate provisions of this
subsection (h).
28
(i) The Representatives shall have received a certificate, dated the
Closing Date, of the President and the Chief Financial Officer of the
Company to the effect that the representations and warranties of the
Company contained in Section 2(a) are true and correct with the same force
and effect as though expressly made at and as of the Closing Date.
(j) The Company shall have furnished to the Representatives, prior to
the date of this Agreement, a copy of the Written Consent and the Written
Consent shall be in full force and effect on the Closing Date with the same
force and effect as though expressly given by the Lender at and as of the
Closing Date.
(k) The Company shall have furnished to the Representatives such
additional certificates as the Representatives may have reasonably
requested as to the accuracy, at and as of the Closing Date, of the
representations and warranties made herein by the Company, as to compliance
at and as of the Closing Date by the Company with its covenants and
agreements herein contained and other provisions hereof to be satisfied at
or prior to the Closing Date and as to other conditions to the obligations
of the Underwriters hereunder.
If any of the conditions hereinabove provided for in this Section shall not
have been satisfied when and as required by this Agreement, this Agreement may
be terminated by the Representatives by notifying the Company of such
termination in writing or by telegram or telecopy at or prior to the Closing
Date.
8. Termination. This Agreement may be terminated by the Representatives
-----------
by notice to the Company at or prior to the Closing Date if (a) after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activates in New York or California shall have
been declared by either Federal, New York State or California State authorities
or (iv) there shall have occurred any outbreak or escalation of hostilities or
any change in financial markets or any calamity or crisis that, in your
judgment, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event, singly or together with
any other such event, makes it, in your judgment, impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus.
9. Reimbursement of Underwriters. Notwithstanding any other provisions
-----------------------------
hereof, if this Agreement shall be terminated by the Underwriters or shall
otherwise terminate under Section 7, Section 8 or Section 11, the Company will
bear and pay the expenses specified in Section 5 hereof and, in addition to its
obligations pursuant to Section 6 hereof, the Company will reimburse the
reasonable out-of-pocket expenses of the several Underwriters (including
reasonable fees and disbursements of counsel for the Underwriters) incurred in
connection
29
with this Agreement and the proposed purchase and offers of the Securities, and
promptly upon demand the Company will pay such amounts to you, as
Representatives of the Underwriters. In addition, the provisions of Section 6
hereof will survive any termination of this Agreement.
10. Default by Underwriters. If any Underwriter or Underwriters shall
-----------------------
default in its or their obligations to purchase any of the Securities which it
or they are obligated to purchase under this Agreement on the Closing Date, and
the aggregate principal amount of Securities which such defaulting Underwriter
or Underwriters agreed but failed to purchase does not exceed 10% of the
aggregate principal amount of all of the Securities which the Underwriters are
obligated to purchase on the Closing Date, the other Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the Securities which such defaulting Underwriter or Underwriters agreed
but failed to purchase. If any Underwriter or Underwriters shall so default and
the aggregate principal amount of Securities with respect to which such default
or defaults occur is more than 10% of the aggregate principal amount of all of
the Securities which the Underwriters are obligated to purchase on the Closing
Date and arrangements satisfactory to the Representatives and the Company for
the purchase of such Securities by other persons are not made within 48 hours
after such default, this Agreement shall terminate.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or part of the Securities of a defaulting
Underwriter or Underwriters as provided, in this Section 10, (i) the Company
shall have the right to postpone the Closing Date for a period of not more than
five full business days, in order that the Company may effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus,
or in any other documents or arrangements, and the Company agrees promptly to
file any amendments to the Registration Statement or supplements to the
Prospectus which may thereby be made necessary, and (ii) the respective
principal amounts of Securities to be purchased by the remaining Underwriters or
substituted underwriters shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein contained shall
relieve any defaulting Underwriter of its liability to the Company or the
Underwriters for damages occasioned by its default hereunder. Any termination
of this Agreement pursuant to this Section 10 shall be without liability on the
part of any non-defaulting Underwriter or the Company, except for expenses to be
paid or reimbursed pursuant to Section 5 and except for the provisions of
Section 6.
11. Default by the Company. If the Company shall fail at the Closing Date
----------------------
to sell and deliver the total principal amount of Securities which it is
obligated to sell hereunder, then this Agreement shall terminate without any
liability on the part of any non-defaulting party. No action taken pursuant to
this Section shall relieve the Company from liability in respect of such
default.
12. Notices. All communications hereunder shall be in writing and, if
-------
sent to the Underwriters shall be mailed, delivered or telecopied and confirmed
to you, as their Representatives c/o _____ at _____, attention: _____, except
that notices given to an Underwriter pursuant to Section 6 hereof shall be sent
to such Underwriter at the address furnished by the
30
Representatives or, if sent to the Company shall be mailed, delivered or
telecopied and confirmed at BRE Properties, Inc., ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
13. Successors. This Agreement shall inure to the benefit of and be
----------
binding upon the several Underwriters, the Company and their respective
successors and legal representatives. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person other than the
persons mentioned in the preceding sentence any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; except that the representations, warranties,
covenants, agreements and indemnities of the Company contained in this Agreement
shall also be for the benefit of the person or persons, if any, who control any
Underwriter or Underwriters within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, and the indemnities of the several Underwriters
shall also be for the benefit of each director of the Company, each of the
Company's officers who has signed the Registration Statement and the person or
persons, if any, who control the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act.
14. Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of New York applicable to agreements made
and to be performed in said state. Unless otherwise expressly stated, specified
times of day refer to New York City time.
31
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding agreement between us.
Very truly yours,
BRE PROPERTIES, INC.
By:
-----------------------------------
Name:
Title:
Accepted and delivered, as of the date first above written:
______________________
______________________
______________________
______________________
Acting on their own behalf and as Representatives of the several Underwriters
referred to in the foregoing Agreement.
BY: ____________________
By:
-------------------------------------
Name:
Title:
32
SCHEDULE A
Aggregate
Principal
Amount of
Securities
to be
Purchased
----------
_____ ............... ______
_____ ............... ______
_____ ............... ______
_____ ............... ______
_____ ............... ______
-----------
Total..... $______
===========
Sch. A-1
SCHEDULE B
1. The initial public offering price for the Securities shall be ___% of
the principal amount thereof (the "Public Offering Price"), plus accrued
interest from February 15, 1998.
2. The purchase price for the Securities to be purchased by the several
Underwriters shall be ___% of the principal amount thereof, plus accrued
interest from February 15, 1998.
Sch. B-1
SCHEDULE C
A. Subsidiaries of the Company Company's
Percentage
Ownership
Interest
-----------
1. Corporate Subsidiaries of the Corporation
BRE Camino Seco, Inc., a Delaware corporation 100%
BRE Colonia Del Rio, Inc., a Delaware corporation 100%
BRE Fountain Plaza, Inc., a Delaware corporation 100%
BRE Hacienda Del Rio, Inc., a Delaware corporation 100%
BRE Oracle Village, Inc., a Delaware corporation 100%
BRE Springhill, Inc., a Delaware corporation 100%
Alliance Property Management Company, a Delaware corporation 100%
BRE Builders, Inc., a Delaware corporation 100%
2. Partnerships Subsidiaries of the Company:
Vallejo Highlands Associates, a California limited partnership 100%
Vallejo Somerset Limited Partnership, a Texas limited partnership/*/ 100%
ITCR Villa Verde Limited Partnership, a Texas limited partnership/*/ 100%
3. Limited Liability Company Subsidiaries of the Company:
BRE Property Investors LLC, a Delaware limited liability company 73.75%
Blue Ravine Investors LLC, a Delaware limited liability company 88.45%
Palm Shadows LLC, a California limited liability company 100%
Riverview LLC, a California limited liability company 100%
Woodlake Holdings LLC, an Arizona limited liability company/*/ 100%
B. Non-Subsidiary Entities in Which the Company Owns an Interest
Westbar Limited Partnership, an Arizona limited partnership 25%
Metro Village Limited Partnership, an Arizona limited partnership 37.5%
/*/ Excluded Subsidiary
Sch. C-1