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EXHIBIT 1.1
IAC CAPITAL TRUST
(a Delaware statutory business trust)
6,000,000 __ % Series A REIT Trust Originated Preferred Securities
FORM OF PURCHASE AGREEMENT
Dated: _______________, 199_
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TABLE OF CONTENTS
PURCHASE AGREEMENT............................................................1
SECTION 1. Representations and Warranties....................................4
(a) Representations and Warranties by the Trust,
the Operating Partnership and the Company.........................4
(b) Officer's Certificates...........................................12
SECTION 2. Sale and Delivery to Underwriters; Closing.......................12
(a) Initial Securities...............................................12
(b) Option Securities................................................12
(c) Commission.......................................................13
(d) Payment..........................................................13
(e) Denominations; Registration......................................13
SECTION 3. Covenants of the Trust and the Operating Partnership.............13
(a) Compliance with Securities Regulations and Commission Requests...13
(b) Filing of Amendments.............................................14
(c) Delivery of Registration Statements..............................14
(d) Delivery of Prospectuses.........................................14
(e) Continued Compliance with Securities Laws........................15
(f) Blue Sky Qualifications..........................................15
(g) Rule 158.........................................................15
(h) Use of Proceeds..................................................16
(i) Listing..........................................................16
(j) Restriction on Sale of Securities................................16
(k) REIT Requirements................................................16
(l) Reporting Requirements...........................................16
(m) Compliance with NASD Rules.......................................16
SECTION 4. Payment of Expenses..............................................17
(a) Expenses.........................................................17
(b) Termination of Agreement.........................................17
SECTION 5. Conditions of Underwriters' Obligations..........................17
(a) Effectiveness of Registration Statement..........................17
(b) Amendment of Agreements..........................................18
(c) Amendment of OP Partnership Agreement............................18
(d) Opinion of Special Counsel for Trust, the Operating Partnership
and the Company.................................................18
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(e) Opinion of Maryland Counsel for the Company......................18
(f) Opinion of Counsel for the Bank of New York......................18
(g) Opinion of Counsel for Underwriters.............................18
(h) Officers' Certificate............................................19
(i) Accountant's Comfort Letter......................................19
(j) Bring-down Comfort Letter........................................19
(k) Maintenance of Rating............................................20
(l) Approval of Listing..............................................20
(m) No Objection.....................................................20
(n) Conditions to Purchase of Option Securities......................20
(o) Additional Documents.............................................21
(p) Termination of Agreement.........................................21
SECTION 6. Indemnification...................................................22
(a) Indemnification of Underwriter...................................22
(b) Indemnification of Trust, the Operating Partnership,
the Company, Trustees, Directors and Officers....................22
(c) Actions against Parties; Notification............................23
(d) Indemnification for Reserved Securities..........................24
SECTION 7. Contribution......................................................24
SECTION 8. Representations, Warranties and Agreements to Survive Delivery....25
SECTION 9. Termination of Agreement..........................................25
(a) Termination; General.............................................25
(b) Liabilities......................................................26
SECTION 10. Default by One or More of the Underwriters.......................26
SECTION 11. Notice...........................................................26
SECTION 12. Parties..........................................................27
SECTION 13. GOVERNING LAW AND TIME...........................................27
SECTION 14. Effect of Headings...............................................27
SCHEDULE A...............................................................Sch A-1
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IAC CAPITAL TRUST
(a Delaware statutory business trust)
6,000,000 __ % Series A REIT Trust Originated Preferred Securities
FORM OF PURCHASE AGREEMENT
__________, 199_
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇, SACHS & CO.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
SALOMON BROTHERS
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
IAC Capital Trust, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), Irvine Apartment Communities, L.P., a
Delaware limited partnership (the "Operating Partnership"), and Irvine Apartment
Communities, Inc., a Maryland corporation (the "Company"), confirm their
agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom ▇▇▇▇▇▇▇ Lynch, Goldman, Sachs & Co., ▇.▇. ▇▇▇▇▇▇ Securities
Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and Salomon Brothers are acting as
representatives (in such capacity, the "Representatives"), with respect to the
issue and sale by the Trust and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of the Trust's __ % Series
A REIT Trust Originated Preferred Securities (the "Series A Preferred
Securities") representing undivided beneficial interests, subject to the
priority and payment terms of the securities of the Trust, in the Trust whose
initial assets will consist principally of Series A Preferred L.P. Units (as
defined herein) set forth in said Schedule A, and with respect to the grant by
the Trust to the Underwriters, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of 900,000
additional Series A Preferred Securities
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to cover over-allotments, if any. The aforesaid 6,000,000 Series A Preferred
Securities (the "Initial Securities") to be purchased by the Underwriters and
all or any part of the 900,000 Series A Preferred Securities subject to the
option described in Section 2(b) hereof (the "Option Securities") are
hereinafter called, collectively, the "Securities." The proceeds of the sale of
the Securities by the Trust are to be invested in Series A Preferred Limited
Partner Interests (the "Series A Preferred L.P. Units") of the Operating
Partnership which initially will constitute the principal assets of the Trust.
The Company and certain members of management of the Company will acquire all of
the common securities (the "Common Securities") representing undivided
beneficial interests, subject to the priority and payment terms of the
securities of the Trust, in the Trust for an aggregate consideration of $5,000.
The Trust, the Operating Partnership and the Company understand that the
Underwriters propose to make a public offering of the Securities as soon as the
Representatives deem advisable after this Agreement has been executed and
delivered.
The Trust, the Operating Partnership, the Company and the Underwriters
agree that up to _________ of the Securities to be purchased by the Underwriters
(the "Reserved Securities") shall be reserved for sale by the Underwriters to
certain eligible employees and persons having business relationships with the
Company, as part of the distribution of the Securities by the Underwriters,
subject to the terms of this Agreement, the applicable rules, regulations and
interpretations of the National Association of Securities Dealers, Inc. (the
"NASD") and all other applicable laws, rules and regulations. To the extent that
such Reserved Securities are not orally confirmed for purchase by such eligible
employees and persons having business relationships with the Company by the end
of the first business day after the date of this Agreement, such Reserved
Securities may be offered to the public as part of the public offering
contemplated hereby.
The Trust and the Operating Partnership have filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form S-11
(No. 333-39405) covering the registration of the Securities under the Securities
Act of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Trust and the Operating Partnership will either (i) prepare and
file a prospectus in accordance with the provisions of Rule 430A ("Rule 430A")
of the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act
Regulations or (ii) if the Trust and the Operating Partnership have elected to
rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file a
term sheet (a "Term Sheet") in accordance with the provisions of Rule 434 and
Rule 424(b). The information included in such prospectus or in such Term Sheet,
as the case may be, that was omitted from such registration statement at the
time it became effective but that is deemed to be part of such registration
statement at the time it became effective (a) pursuant to paragraph (b) of Rule
430A is referred to as "Rule 430A Information" or (b) pursuant to paragraph (d)
of Rule 434 is referred to as "Rule 434 Information." Each prospectus used
before such registration statement became effective, and any prospectus that
omitted, as applicable, the Rule 430A Information or the Rule 434 Information,
that was used after such effectiveness and prior to the execution and delivery
of this Agreement, is herein
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called a "preliminary prospectus." Such registration statement, including the
exhibits thereto and schedules thereto at the time it became effective and
including the Rule 430A Information and the Rule 434 Information, as applicable,
is herein called the "Registration Statement." Any registration statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as the
"Rule 462(b) Registration Statement," and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
The final prospectus in the form first furnished to the Underwriters for use in
connection with the offering of the Securities is herein called the
"Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to the
preliminary prospectus dated December ___, 1997 together with the Term Sheet and
all references in this Agreement to the date of the Prospectus shall mean the
date of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any Term
Sheet 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 ("▇▇▇▇▇").
The Company owns a general partnership interest in the Operating
Partnership and is its sole managing general partner. The Operating Partnership
owns and operates the Properties (as defined in the Prospectus). The Operating
Partnership holds general and limited partnership interests in a partnership
(the "Property Partnership") which owns one of the Properties. The Trust, the
Company, the Operating Partnership and the Property Partnership are herein
collectively referred to as the "REIT Entities" and all references to properties
and assets of the REIT Entities include, without limitation, the Properties,
unless otherwise noted. For purposes of this Agreement, (i) the Operating
Partnership and each other subsidiary (as defined in Rule 1-02 of Regulation S-X
promulgated by the Commission) of the Company is deemed a "Subsidiary" of the
Company and (ii) the Property Partnership and each other subsidiary (as defined
in Rule 1-02 of Regulation S-X promulgated by the Commission) of the Operating
Partnership is deemed a "Subsidiary" of the Operating Partnership.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is included in
the Registration Statement whether by incorporation or otherwise, any
preliminary prospectus or the Prospectus, as the case may be; and all references
in this Agreement to amendments or supplements to the Registration Statement,
any preliminary prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934 (the "1934
Act") which is included in the Registration Statement whether by incorporation
or otherwise, such preliminary prospectus or the Prospectus, as the case may be.
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SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Trust, the Operating
Partnership and the Company. Each of the Trust, the Operating Partnership and
the Company, jointly and severally, represents and warrants to each Underwriter
as of the date hereof, as of the Closing Time referred to in Section 2(c)
hereof, and as of each Date of Delivery (if any) referred to in Section 2(b)
hereof, and agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
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 Trust, the Operating Partnership or the Company,
are threatened by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), the Registration Statement, the
Rule 462(b) Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading. Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or any
such amendment or supplement was issued and at the Closing Time (and, if
any Option Securities are purchased, at the Date of Delivery), included
or will include an untrue statement of a material fact or omitted or
will 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. If Rule 434 is used, the Trust, the Operating
Partnership and the Company will comply with the requirements of Rule
434 and the Prospectus shall not be "materially different", as such term
is used in Rule 434, from the prospectus included in the Registration
Statement at the time it became effective. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to the Trust, the
Operating Partnership or the Company in writing by any Underwriter
through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration Statement or
Prospectus.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus delivered
to the Underwriters for use in connection with this offering was
identical to the electronically
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transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(ii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statements. The historical financial statements
of the Operating Partnership, and the related notes thereto, included in
the Registration Statement and the Prospectus present fairly the
consolidated financial position of the Operating Partnership and its
Subsidiaries taken as a whole as of the dates indicated and the results
of operations and the changes in their consolidated cash flows for the
periods specified; the historical financial statements of the Trust, and
the related notes thereto, included in the Registration Statement and
the Prospectus present fairly the financial position of the Trust as of
the dates indicated; except as otherwise stated in the Registration
Statement and the Prospectus, said financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis and comply with the applicable accounting
requirements of the 1933 Act (including, without limitation, Rule 3-14
and Rule 3-15 of Regulation S-X promulgated by the Commission), and all
adjustments necessary for a fair presentation of the results for such
periods have been made; the supporting schedules included in the
Registration Statement and the Prospectus present fairly the information
required to be stated therein; the financial information and data
included in the Registration Statement and the Prospectus present fairly
the information included therein and have been prepared on a basis
consistent with that of the financial statements included in the
Registration Statement and the Prospectus. Except as reflected or
disclosed in the financial statements included in the Registration
Statement or otherwise set forth in the Prospectus, each of the Trust
and the Operating Partnership is not subject to any material
indebtedness, obligation or liability, contingent or otherwise.
(iv) Summaries of Revenue. The historical summaries of revenue
and certain operating expenses included in the Registration Statement
and the Prospectus present fairly the revenue and those operating
expenses included in such summaries of the properties related thereto
for the periods specified in conformity with generally accepted
accounting principles; the pro forma consolidated financial statements
included by incorporation or otherwise in the Registration Statement and
the Prospectus present fairly the pro forma financial position of the
Company and its Subsidiaries taken as a whole as of the dates indicated
and the results of operations for the periods specified; and such pro
forma financial statements have been prepared in accordance with
generally accepted accounting principles applied on a basis consistent
with the audited financial statements of the Operating Partnership and
its Subsidiaries included by incorporation or otherwise in the
Registration Statement and the Prospectus, the assumptions on which such
pro forma financial statements have been prepared were, when such pro
forma financial statements were prepared, reasonable and are summarized
in the notes thereto, and any such pro forma financial statements have
been
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prepared, and the pro forma adjustments set forth therein have been
applied, in accordance with the applicable accounting requirements of
the 1933 Act (including, without limitation, Regulation S-X promulgated
by the Commission), and any such pro forma adjustments have been
properly applied to the historical amounts in the compilation of such
statements.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, there has not been any material adverse change in the
equity or long-term debt of the Trust or of the Operating Partnership
and its consolidated subsidiaries, or 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 REIT Entities, taken as a whole, otherwise than as set
forth or contemplated in the Prospectus; and except as set forth or
contemplated in the Prospectus none of the REIT Entities nor any of
their Subsidiaries has entered into any transaction or agreement
(whether or not in the ordinary course of business) material to the REIT
Entities and their Subsidiaries taken as a whole.
(vi) Good Standing of the Trust. The Trust has been duly created,
is validly existing as a statutory business trust in good standing under
the Business Trust Act of the State of Delaware (the "Delaware Business
Trust Act") and has the power and authority to own its property and to
conduct its business as described in the Prospectus; the Trust has
conducted under Subchapter M of the Internal Revenue Code of 1986, as
amended (the "Code"), no business to date, and it will conduct no
business in the future that would be inconsistent with the description
of the Trust set forth in the Prospectus; for United States Federal
income tax purposes, the Trust has been and is currently classified as a
real estate investment trust; the Trust is not a party to or bound by
any agreement or instrument other than this Agreement, the Amended and
Restated Declaration of Trust of IAC Capital Trust among the trustees
named therein (the "Declaration") and the agreements and instruments
contemplated by the Declaration; the Trust has no liabilities or
obligations other than those arising out of the transactions
contemplated by this Agreement and the Declaration and described in the
Prospectus; and the Trust is not a party to or subject to any action,
suit or proceeding of any nature.
(vii) Good Standing of the Operating Partnership and the Property
Partnership. Each of the Operating Partnership and the Property
Partnership has been duly formed, is validly existing as a limited
partnership in good standing under the laws of the jurisdiction of its
formation, has the power and authority to own its property and to
conduct its business as described in the Prospectus and is duly
qualified to transact its business and is in good standing in
California, which is the only other jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified
or be in good standing would not have a material adverse effect on the
REIT Entities taken as a whole. For United States Federal income tax
purposes, each of the Operating Partnership and the Property Partnership
has been and is taxable as a partnership and not as a corporation.
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(viii) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, has the corporate
power and authority to own its property and to conduct its business as
described in the Prospectus, and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified
or in good standing would not have a material adverse effect on the REIT
Entities, taken as a whole; other than the Operating Partnership, the
Company has no "significant subsidiaries" as defined in Rule 1-02 of
Regulation S-X promulgated by the Commission (the "Significant
Subsidiaries"); the Operating Partnership has no Significant
Subsidiaries.
(ix) Capitalization. The authorized, issued and outstanding
partnership interests of the Operating Partnership (the "OP Units") is
as set forth in the Prospectus in the column entitled "Actual" under the
caption "Capitalization of Irvine Apartment Communities, L.P."
(x) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by each of the Trust, the Operating
Partnership and the Company.
(xi) Authorization of Declaration. The Declaration has been duly
and validly authorized, by each of the Operating Partnership, the
Company and the trustees of the Trust (the "Trust Trustees"), and at the
Closing Time, will have been executed and delivered by each of the
Operating Partnership, the Company and the Trust Trustees and will be a
valid and binding agreement of each of the Operating Partnership, the
Company and the Trust Trustees, enforceable against each of the
Operating Partnership, the Company and the Trust Trustees in accordance
with its terms, except as enforceability thereof may be limited by
bankruptcy, insolvency, or similar laws affecting creditor's rights
generally and by the availability of equitable principles of general
applicability.
(xii) Authorization and Description of Common Securities. The
Common Securities have been authorized for issuance and sale to the
Company and certain members of management of the Company and, when
issued and delivered to the Company and certain members of management of
the Company against payment therefor as described in the Declaration,
will be validly issued and fully paid and non-assessable; the Common
Securities conform in all material respects to the description thereof
contained in the Prospectus; and the issuance of the Common Securities
is not subject to preemptive or other similar rights of any
securityholder of the Trust.
(xiii) Authorization and Description of Securities. The
Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered
by the Trust pursuant to this Agreement against payment of the
consideration therefor as set forth herein, will be validly issued and
fully paid and non-assessable; the Securities conform in all material
respects to the description thereof contained in the Prospectus; no
holder of the Securities will be subject to personal liability by
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reason of being such a holder; the issuance of the Securities is not
subject to the preemptive or other similar rights of any securityholder
of the Trust or the Operating Partnership; and the Securities will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware.
(xiv) Authorization and Description of the Series A Preferred
L.P. Units. The Series A Preferred L.P. Units have been duly authorized
for issuance and sale to the Trust and, when issued and delivered by the
Operating Partnership against payment of the consideration therefor as
described in the Prospectus, will be validly issued in accordance with
the Second Amended and Restated Agreement of Limited Partnership of
Irvine Apartment Communities, L.P. to be dated as of the Closing Date
(the "OP Partnership Agreement"); the Series A Preferred L.P. Units
conform in all material respects to the description thereof contained in
the Prospectus; no holder of the Series A Preferred L.P. Units, as a
limited partner of the Operating Partnership, will be liable to third
parties for the obligations of the Operating Partnership; and the
issuance of the Series A Preferred L.P. Units is not subject to any
preemptive or other similar rights of any securityholder of the
Operating Partnership.
(xv) Authorization of Amended Agreements. Each of Amendment No. 5
to the Land Rights Agreement (the "LRA Amendment") and Amendment No. 2
to the Miscellaneous Rights Agreement (collectively, the "Amended
Agreements") has been duly and validly authorized by each of the Company
and the Operating Partnership, and at the Closing Time will have been
executed and delivered by the Company and the Operating Partnership and,
assuming due authorization, execution and delivery thereof by The Irvine
Company, and in the case of the LRA Amendment, ▇▇▇▇▇▇ ▇▇▇▇, each of the
Amended Agreements will be a valid and legally binding agreement of the
Company and the Operating Partnership enforceable against the Company
and the Operating Partnership in accordance with its terms, except as
enforceability thereof may be limited by bankruptcy, insolvency, or
similar laws affecting creditor's rights generally and by the
availability of equitable principles of general applicability. The
execution, delivery and performance of each of the Amended Agreements
will not contravene any provision of applicable law or the Articles of
Incorporation or bylaws of the Company, the certificates of limited
partnership of the Operating Partnership and the Property Partnership,
the OP Partnership Agreement, the partnership agreement of the Property
Partnership (the "Property Partnership Agreement") or any agreement or
other instrument binding upon the REIT Entities that is material to the
REIT Entities, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over any of the
REIT Entities and no consent, approval, authorization or order of or
qualification with any governmental body or agency will be required for
the performance by the Company or the Operating Partnership of their
obligations under each of the Amended Agreements.
(xvi) Authorization of Amendment to OP Partnership Agreement. The
OP Partnership Agreement has been duly and validly authorized by the
Company, and at the
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Closing Time, will have been executed and delivered by the Company and,
assuming due authorization, execution and delivery thereof by the other
partners of the Operating Partnership, the OP Partnership Agreement, as
so amended, will be a valid and legally binding agreement of the
Operating Partnership enforceable against its partners in accordance
with its terms, except as enforceability thereof may be limited by
bankruptcy, insolvency, or similar laws affecting creditor's rights
generally and by the availability of equitable principles of general
applicability. The execution, delivery and performance of the OP
Partnership Agreement will not contravene any provision of applicable
law or the Articles of Incorporation or bylaws of the Company, the
certificates of limited partnership of the Operating Partnership and the
Property Partnership, the Property Partnership Agreement or any
agreement or other instrument binding upon the REIT Entities that is
material to the REIT Entities, taken as a whole, or any judgment, order
or decree of any governmental body, agency or court having jurisdiction
over any of the REIT Entities and no consent, approval, authorization or
order of or qualification with any governmental body or agency will be
required for the performance by the Operating Partnership of its
obligations under the OP Partnership Agreement, as so amended.
(xvii) Absence of Defaults and Conflicts. Neither the Trust,
Company, the Operating Partnership nor any of their Subsidiaries is, or
with the giving of notice or lapse of time or both would be, in
violation of or in default under, the Declaration, the Articles of
Incorporation or by-laws of the Company, the certificates of limited
partnership of the Operating Partnership and the Property Partnership,
or the OP Partnership Agreement, or the Property Partnership Agreement,
or any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which any of the REIT Entities is a party or
by which any of them or any of their respective properties is bound,
except for violations and defaults which individually and in the
aggregate are not material to the REIT Entities taken as a whole; the
issue and sale of the Securities, the Common Securities and the Series A
Preferred L.P. Units and the performance by each of the Trust and the
Operating Partnership of all its respective obligations under the
Securities, the Common Securities and the Series A Preferred L.P. Units
and the performance by each of the Trust, the Operating Partnership and
the Company of all their respective obligations under this Agreement and
the consummation of the transactions herein contemplated (A) do not and
will not contravene (1) any provision of applicable law or statute, the
Declaration, the Articles of Incorporation or by-laws of the Company,
the certificates of limited partnership of the Operating Partnership and
the Property Partnership, or the OP Partnership Agreement or the
Property Partnership Agreement, or (2) any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which any of
the Company or its Subsidiaries is a party or by which any of them or
their respective properties is bound that is material to the Company and
its Subsidiaries, taken as a whole, or (3) any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Trust is a party, or (4) any order, rule or regulation of any court or
governmental agency or body having jurisdiction over (a) the Company or
any of its Subsidiaries or (b) the Trust, except, for a contravention
which would not have a material adverse effect on the condition,
financial or otherwise, or the earnings or business affairs of, (x) with
respect to
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clause (A)(2) and (A)(4)(a), the Company and its Subsidiaries, taken as
a whole and (y) with respect to clause (A)(3) and (A)(4)(b), the Trust,
and (B) and no consent, approval, authorization, order, license,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities, the
Common Securities and the Series A Preferred L.P. Units by the Trust or
the Operating Partnership or the consummation of the transactions
contemplated by this Agreement by the Trust, the Operating Partnership
and the Company, except such consents, approvals, authorizations,
orders, licenses, registrations or qualifications as have been obtained
under the 1933 Act and as may be required under state securities or Blue
Sky Laws in connection with the purchase and distribution of the
Securities by the Underwriters.
(xviii) Absence of Proceedings. There are no legal or
governmental proceedings pending or threatened to which any of the REIT
Entities is a party or to which any of the Properties is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or incorporated
by reference as exhibits to the Registration Statement that are not
described, filed or incorporated as required.
(xix) Title to Property. The Operating Partnership has (whether
directly or indirectly through the ownership of the Property
Partnership) good title in fee simple to the Properties and good title
to all personal property owned as is material to the business of the
REIT Entities, taken as a whole, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or in title policies held by the Operating Partnership or
such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the REIT Entities; any real property held under lease by any REIT Entity
is held by it under valid, subsisting, enforceable leases, and no
default by any REIT Entity has occurred and is continuing thereunder,
with such exceptions as are not material and do not interfere in any
material respect with the use made and proposed to be made of such
property by any REIT Entity; the operation of the buildings, fixtures
and other improvements located on the Properties as presently conducted
is not in violation of any applicable building code, zoning ordinance or
other law or regulation, except where such violation of any applicable
building code, zoning ordinance or other law or regulation would not,
singly or in the aggregate, have a material adverse effect on the REIT
Entities, taken as a whole; neither the Company nor the Operating
Partnership has received notice of any proposed special assessment or
any proposed material change in any property tax, zoning or land use
laws or availability of water for irrigation affecting all or any
portion of the Properties; there do not exist any material violations of
any declaration of covenants, conditions and restrictions with respect
to any of the Properties, nor is there any existing state of facts or
circumstances or condition or event which could, with the giving of
notice or passage of time, or both, constitute such a violation; and the
improvements comprising any portion of the Properties (the
"Improvements") are free of any and all material physical, mechanical,
structural, design and construction defects and the Improvements
(including, without limitation, all water, electric, sewer, plumbing,
heating, ventilation, gas and air conditioning
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servicing the Improvements) are in good condition and proper working
order and are free of material defects.
(xx) Insurance. The REIT Entities have and will maintain
liability, property, casualty and other insurance policies, with respect
to each of the Properties, insuring them against the risks of loss
(other than with respect to loss from earthquakes) arising out of or
related to their businesses, in an amount and on such terms as is
adequate and appropriate for such businesses.
(xxi) Investment Company Act. None of the Trust, the Operating
Partnership nor the Company is, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will be, an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
(xxii) Environmental Laws. The Properties are, to the best
knowledge of the REIT Entities, in compliance with any and all
applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), and the REIT Entities (i) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (ii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the REIT Entities, taken as a whole.
(xxiii) Environmental Liabilities. To the best knowledge of the
Company and the Operating Partnership, there are no costs and
liabilities associated with Environmental Laws except as disclosed in
the Registration Statement, which would, singly or in the aggregate,
have a material adverse effect on the REIT Entities, taken as a whole.
(xxiv) REIT Status. Each of the Trust and the Company are
organized in conformity with the requirements for qualification as a
real estate investment trust under the Code, and its method of operation
enables it to meet the requirements for taxation as a real estate
investment trust under the Code.
(xxv) Partnership Status. Each of the Operating Partnership and
the Property Partnership is organized in conformity with the
requirements for qualification as a partnership under the Code, and its
method of operation enables it to meet the requirements for taxation as
a partnership under the Code. Neither the Operating Partnership nor the
Property Partnership are subject to taxation as a corporation.
(xxvi) Operating Partnership. All of the OP Units outstanding
prior to issuance of the Series A Preferred L.P. Units have been validly
issued and are validly owned, directly or indirectly,
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in the percentage amounts set forth in the Prospectus by the Company and
The Irvine Company and affiliates of The Irvine Company; the OP Units
owned, directly or indirectly, by the Company are owned free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity (each of the foregoing a "Lien"). The Company is the sole general
partner of the Operating Partnership.
(xxvii) Property Partnership. All of the partnership interests of
the Property Partnership have been validly issued and are owned of
record by the Operating Partnership and a third party; the partnership
interests of the Property Partnership owned of record by the Operating
Partnership are owned free and clear of all Liens.
(b) Officer's Certificates. Any certificate signed by any Trustee of the
Trust, any partner of the Operating Partnership, any officer of the Company or
any of their subsidiaries delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Trust, the
Operating Partnership or the Company, respectively, to each Underwriter as to
the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust, the Operating Partnership and the Company agree that the Trust
shall sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Trust, at the price per
security set forth in Schedule B, the number of Initial Securities set forth in
Schedule A opposite the name of such Underwriter, plus any additional number of
Initial Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Trust hereby grants an option to the Underwriters, severally and
not jointly, to purchase up to an additional 780,000 Securities at the price per
security set forth in Schedule B. The option hereby granted will expire 30 days
after the date hereof and may be exercised in whole or in part from time to time
only for the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Initial Securities upon notice by the
Representatives to the Trust setting forth the number of Option Securities as to
which the several Underwriters are then exercising the option and the time and
date of payment and delivery for such Option Securities. Any such time and date
of delivery (a "Date of Delivery") shall be determined by the Representatives,
but shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter defined. If
the option is exercised as to all or any portion of the Option Securities, each
of the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Securities then being purchased which
the number of Initial Securities set forth in Schedule A opposite the name of
such Underwriter bears to the total number of Initial Securities, subject in
each case to such adjustments as the Representatives in their discretion shall
make to eliminate any sales or purchases of fractional units.
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(c) Commission. The Operating Partnership agrees to pay to the
Representatives, for the accounts of the several Underwriters, a commission set
forth in Schedule B as compensation to the Underwriters for their commitments
under this Agreement.
(d) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon by the
Representatives and the Trust, at 9:30 A.M. (Eastern time) on the third (fourth,
if the pricing occurs after 4:30 P.M. (Eastern time) on any given day) business
day after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by the Representatives and the Trust (such time and date
of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Trust, on each Date of Delivery as specified in the notice from the
Representatives to the Trust. Payment shall be made to the Trust by wire
transfer of immediately available funds to a bank account designated by the
Trust, against delivery to the Representatives for the respective accounts of
the Underwriters of certificates for the Securities to be purchased by them. It
is understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial Securities and the Option Securities, if any, which it
has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as representative of
the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Initial Securities or the Option Securities, if any, to
be purchased by any Underwriter whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such Underwriter from its obligations hereunder.
(e) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Time or the relevant Date of Delivery, as the
case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. Covenants of the Trust and the Operating Partnership. The
Trust and the Operating Partnership covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Trust and the Operating Partnership, subject to Section
3(b), will comply with the requirements of Rule 430A or Rule 434, as
applicable, and will notify the Representatives immediately, and confirm
the
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notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information,
and (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of
the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Trust and the Operating
Partnership will promptly effect the filings necessary pursuant to Rule
424(b) and will take such steps as they deem necessary to ascertain
promptly whether the form of prospectus transmitted for filing under
Rule 424(b) was received for filing by the Commission and, in the event
that it was not, they will promptly file such prospectus. The Trust and
the Operating Partnership will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Trust and the Operating Partnership
will give the Representatives notice of their intention to file or
prepare any amendment to the Registration Statement (including any
filing under Rule 462(b)), any Term Sheet or any amendment, supplement
or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus, will
furnish the Representatives with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the
case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Trust and the
Operating Partnership have furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge, signed
copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of
each amendment thereto (without exhibits) for each of the Underwriters.
The copies of the Registration Statement and each amendment 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.
(d) Delivery of Prospectuses. The Trust and the Operating
Partnership have delivered to each Underwriter, without charge, as many
copies of each preliminary prospectus as such Underwriter reasonably
requested, and the Trust and the Operating Partnership hereby consent to
the use of such copies for purposes permitted by the 1933 Act. The Trust
and the Operating Partnership will furnish to each Underwriter, without
charge, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of
the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request.
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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) Continued Compliance with Securities Laws. The Trust and the
Operating Partnership will comply with the 1933 Act and the 1933 Act
Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Prospectus. If
at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in
the opinion of counsel for the Underwriters or for the Trust and the
Operating Partnership, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include
any untrue statements of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in
the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel,
at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Trust and the Operating
Partnership will promptly prepare and file with the Commission, subject
to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement
or the Prospectus comply with such requirements, and the Trust and the
Operating Partnership will furnish to the Underwriters such number of
copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) Blue Sky Qualifications. The Trust and the Operating
Partnership will use their respective best efforts, in cooperation with
the Underwriters, to qualify the Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions as
the Representatives may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Trust or the
Operating Partnership shall not be obligated to file any general consent
to service of process or to qualify as a foreign trust or partnership,
as the case may be, or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in respect
of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Securities have been so
qualified, the Trust and the Operating Partnership will file such
statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of
not less than one year from the effective date of the Registration
Statement and any Rule 462(b) Registration Statement.
(g) Rule 158. The Trust and the Operating Partnership will timely
file such reports pursuant to the 1934 Act as are necessary in order to
make generally available to their securityholders as soon as practicable
an earnings statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
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(h) Use of Proceeds. The Trust will use the net proceeds received
by it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(i) Listing. The Trust and the Operating Partnership will their
respective best efforts to effect the listing of the Securities on the
New York Stock Exchange.
(j) Restriction on Sale of Securities. During a period of 90 days
from the date of this Agreement, the Trust, the Operating Partnership
and the Company will not, without the prior written consent of ▇▇▇▇▇▇▇
▇▇▇▇▇, (i) directly or indirectly, offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of (x) any securities of the Trust, (y)
any preferred limited partnership interests or any other security of the
Operating Partnership that is substantially similar to the Series A
Preferred L.P. Units, or any securities convertible into or exercisable
or exchangeable for any of the foregoing or file any registration
statement under the 1933 Act with respect to any of the foregoing or
(ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic
consequences of ownership of securities of the Trust or preferred
limited partnership interests, whether any such swap or transaction
described in clause (i) and (ii) above is to be settled by delivery of
securities of the Trust, preferred limited partnership interests or such
other securities, in cash or otherwise. The foregoing sentence shall not
apply to the Securities to be sold hereunder, the issuance and sale of
the Common Securities described herein and the issuance and sale of the
Series A Preferred L.P. Units described herein.
(k) REIT Requirements. The Trust will continue to use its best
efforts to continue to meet the requirements to qualify as a REIT under
the Code, except as otherwise set forth in the Declaration.
(l) Reporting Requirements. The Trust and the Operating
Partnership, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to the 1934 Act within
the time periods required by the 1934 Act and the rules and regulations
of the Commission thereunder.
(m) Compliance with NASD Rules. The Company hereby agrees that it
will use its best efforts to ensure that the Reserved Securities will be
restricted as required by the NASD or the NASD rules from sale,
transfer, assignment, pledge or hypothecation for a period of three
months following the date of this Agreement. The Underwriters will
notify the Company as to which persons will need to be so restricted. At
the request of the Underwriters, the Company will direct the transfer
agent to place a stop transfer restriction upon such securities for such
period of time. Should the Company release, or seek to release, from
such restrictions any of the Reserved Securities, the Company agrees to
reimburse the Underwriters for any reasonable expenses (including,
without limitation, legal expenses) they incur in connection with such
release.
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SECTION 4. Payment of Expenses. (a) Expenses. The Operating Partnership
will pay all expenses incident to the performance of the obligations of the REIT
Entities under this Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, including any stock or other transfer taxes
and any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters, (iv) the preparation, issuance and delivery of
the certificates for the Common Securities and the Series A Preferred L.P.
Units, including any stock or other transfer taxes and any stamp or other duties
payable upon the sale, issuance or delivery of the Common Securities and the
Series A Preferred L.P. Units, (v) the fees and disbursements of the REIT
Entities' counsel, accountants and other advisors, (vi) the qualification of the
Securities, the Common Securities and the Series A Preferred L.P. Units under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vii) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheets and of the Prospectus and any amendments or supplements thereto, (viii)
the preparation, printing and delivery to the Underwriters of copies of the Blue
Sky Survey and any supplement thereto, (ix) the fees and expenses of any
transfer agent or registrar for the Securities, the Common Securities and the
Series A Preferred L.P. Units, (x) any fees charged by securities rating
services for rating the Securities and (xi) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the NASD of the terms of the sale of the Securities, (xii)
the fees and expenses incurred in connection with the listing of the Securities
on the New York Stock Exchange and (xii) costs and expenses of the Underwriters,
including the fees and disbursements of counsel for the Underwriters, in
connection with matters related to the Reserved Securities which are designated
by the Company for sale to employees and others having a business relationship
with the Company to the extent that such costs and expenses do not exceed
$5,000..
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Operating Partnership shall reimburse the Underwriters for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Trust, the Operating Partnership and the
Company contained in Section 1 hereof or in certificates of any officer of the
Trust, the Operating Partnership or the Company delivered pursuant to the
provisions hereof, to the performance by the Trust, the Operating Partnership
and the Company of their covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order
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suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the
Commission in accordance with Rule 424(b) (or a post-effective amendment
providing such information shall have been filed and declared effective
in accordance with the requirements of Rule 430A) or, if the Trust has
elected to rely upon Rule 434, a Term Sheet shall have been filed with
the Commission in accordance with Rule 424(b).
(b) Amendment of Agreements. Each of the Amended Agreements shall
have been duly authorized, executed and delivered by the Company in its
individual capacity and its capacity as general partner of the Operating
Partnership.
(c) Amendment of OP Partnership Agreement. The OP Partnership
Agreement shall have been duly authorized, executed and delivered by the
Company.
(d) Opinion of Special Counsel for Trust, the Operating
Partnership and the Company. At Closing Time, the Representatives shall
have received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇,
Polk & ▇▇▇▇▇▇▇▇, special counsel for the Trust, the Operating
Partnership and the Company, in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies
of such letter for each of the other Underwriters to the effect set
forth in Exhibit A hereto and to such further effect as counsel to the
Underwriters may reasonably request. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York and the federal law of the United
States, upon the opinions of counsel satisfactory to the
Representatives.
(e) Opinion of Maryland Counsel for the Company. At Closing Time,
the Representatives shall have received the favorable opinion, dated as
of Closing Time, of Piper & Marbury L.L.P., Maryland counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters to the effect set forth in Exhibit B
hereto and to such further effect as counsel to the Underwriters may
reasonably request. In giving such opinion such counsel may state that
their opinion relates only to the laws of the State of Maryland.
(f) Opinion of Counsel for The Bank of New York. At the Closing
Time, the Representatives shall have received the favorable opinion,
dated as of the Closing Time, of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel
to The Bank of New York, as property trustee of the Trust (the "Property
Trustee"), under the Declaration, in form and substance reasonably
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters with
respect to the matters set forth in Exhibit C and to such further effect
as counsel to the Underwriters may reasonably request. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law
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of the State of New York and the federal law of the United States, upon
the opinions of counsel satisfactory to the Representatives.
(g) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special
counsel for the Underwriters, together with signed or reproduced copies
of such letter for each of the other Underwriters with respect to the
matters set forth in clauses (i), (ii), (vi), (vii), (viii), (xi)
(solely as to the Trust), (xiv), (xv), (xvii), (xix) (solely as to the
"Description of the Series A Preferred Securities", "Description of the
Series A Preferred L.P. Units", "Relationship between the Preferred
Securities and the Preferred L.P. Units"), (xxii), (xxiv), (xxv) and the
penultimate paragraph of Exhibit A hereto. In giving such opinion such
counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the
federal law of the United States, the Revised Uniform Limited
Partnership Act of the State of Delaware, and the Business Trust Act of
the State of Delaware, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Trust or the
Partnership and their subsidiaries and certificates of public officials.
(h) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the REIT Entities considered as one
enterprise, whether or not arising in the ordinary course of business,
and the Representatives shall have received a certificate of an
executive officer of the Company, in its individual capacity and in its
capacity as a general partner of the Operating Partnership, with
specific knowledge about the Operating Partnership's and the Company's
financial matters, and a certificate of a Regular Trustee of the Trust,
dated as of Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect
as though expressly made at and as of Closing Time, and (iii) the Trust,
the Operating Partnership and the Company have complied with all
agreements and satisfied all conditions on their parts to be performed
or satisfied at or prior to Closing Time.
(i) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Representatives shall have received from Ernst &
Young LLP a letter dated such date, in form and substance satisfactory
to the Representatives, together with signed or reproduced copies of
such letter for each of the other 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.
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(j) Bring-down Comfort Letter. At Closing Time, the
Representatives shall have received from Ernst & Young LLP a letter,
dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of
this Section, except that the specified date referred to shall be a date
not more than three business days prior to Closing Time.
(k) Maintenance of Rating. At Closing Time, the Securities shall
be rated at least Ba1 by ▇▇▇▇▇'▇ Investors Service and BBB- by Standard
& Poor's Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc., and the Trust
shall have delivered to the Representatives a letter dated the Closing
Time, from each such rating agency, or other evidence satisfactory to
the Representatives, confirming that the Securities have such ratings;
and since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Securities or any of the
Trust's, the Operating Partnership's or the Company's other securities
by any "nationally recognized statistical rating agency," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
1933 Act, and no such organization shall have publicly announced that it
has under surveillance or review its rating of the Securities or any of
the Trust's, the Operating Partnership's or the Company's other
securities.
(l) Approval of Listing. At Closing Time, the Securities shall
have been approved for listing on the New York Stock Exchange, subject
only to official notice of issuance.
(m) No Objection. The NASD shall have confirmed that it has not
raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(n) Conditions to Purchase of Option Securities. In the event
that the Underwriters exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the Option Securities, the
representations and warranties of the Trust contained herein and the
statements in any certificates furnished by the Trust or any subsidiary
of the Trust hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Representatives
shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of an executive officer of the Company, in its
individual capacity and in its capacity as a general partner of
the Operating Partnership, with specific knowledge about the
Operating Partnership and the Company's financial matters, and a
certificate of a Regular Trustee of the Trust, confirming that
the certificate delivered at the Closing Time pursuant to Section
5(h) hereof remains true and correct as of such Date of Delivery.
(ii) Opinion of Counsel for Trust, the Operating Partnership and
the Company. The favorable opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
special counsel for the Trust, the Operating Partnership and the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be
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purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(d) hereof.
(iii) Opinion of Maryland Counsel for the Company. The favorable
opinion of Piper & Marbury L.L.P., Maryland counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise
to the same effect as the opinion required by Section 5(e)
hereof.
(iv) Opinion of Counsel for The Bank of New York. The favorable
opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel for the
Property Trustee, in form and substance satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating to
the Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by
Section 5(f) hereof.
(v) Opinion of Counsel for Underwriters. The favorable opinion of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise
to the same effect as the opinion required by Section 5(g)
hereof.
(vi) Bring-down Comfort Letter. A letter from Ernst & Young LLP
in form and substance satisfactory to the Representatives and
dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the Representatives pursuant
to Section 5(i) hereof, except that the "specified date" in the
letter furnished pursuant to this paragraph shall be a date not
more than five days prior to such Date of Delivery.
(vii) No Downgrading. Subsequent to the date of this Agreement,
no downgrading shall have occurred in the rating accorded the
Securities or of any of the Trust's, the Operating Partnership's
or Company's securities by any "nationally recognized statistical
rating organization", as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the 1933 Act, and no such
organization shall have publicly announced that it has under
surveillance or review its ratings of any of the Trust's, the
Operating Partnership's or Company's securities.
(o) Additional Documents. At Closing Time and at each Date of
Delivery counsel for the Underwriters shall have been furnished with
such documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Trust in
connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
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(p) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of Option Securities on a Date of Delivery which is after the
Closing Time, the obligations of the several Underwriters to purchase
the relevant Option Securities, may be terminated by the Representatives
by notice to the Trust and the Operating Partnership at any time at or
prior to Closing Time or such Date of Delivery, as the case may be, and
such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 1, 6, 7
and 8 shall survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Operating Partnership
and the Company, jointly and severally, hereby agree 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 the legal fees and
other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if
the Trust shall have furnished any amendments or supplements thereto) or
any preliminary prospectus, 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
untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Trust, the Operating Partnership and/or the
Company in writing by such Underwriter through the Representatives
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 (as
then amended or supplemented if the Trust shall have furnished any
amendments or supplements thereto) 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 (as so amended or
supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities, unless such failure is the result of
noncompliance by the Trust with Sections 3(c) and (d) hereof.
(b) Indemnification of Trust, the Operating Partnership, the
Company, Trustees, Directors and Officers. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Trust, the
Operating Partnership, the Company and the Trustees, directors, each of
the officers of the Company who signs the Registration Statement and
each person who controls the Trust, the Operating Partnership or the
Company within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act, to the same extent as the foregoing indemnity from the
Trust, the Operating Partnership and the Company to each Underwriter,
but only with reference to
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information relating to such Underwriter furnished to the Trust, the
Operating Partnership or the Company in writing by such Underwriter
through the Representatives expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus. For purposes of this Section 6 and Section 4(a),
the only written information furnished by the Underwriters to the Trust,
the Operating Partnership and the Company expressly for use in the
Registration Statement and the Prospectus is (a) the information in the
last paragraph on the cover page of the Prospectus, (b) the information
regarding stabilization on the inside front cover page of the Prospectus
and (c) the information in the [third and sixth paragraphs and the
second sentence of the fourth paragraph] under the caption
"Underwriting" in the Prospectus.
(c) Actions against Parties; Notification. If any suit, action,
proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any person in
respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall
promptly notify the person against whom such indemnity may be sought
(the "Indemnifying Person") in writing, and the Indemnifying Person,
upon request of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified
Person and any others the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related
to such proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless
(i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed
within a reasonable time to retain counsel reasonably satisfactory to
the Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person
and the Indemnified Person 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 Person
shall not, in connection with any proceeding or related proceeding in
the same jurisdiction, be liable for the fees and expenses of more than
one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they
are incurred. Any such separate firm for the Underwriters and such
control persons of Underwriters shall be designated in writing by
▇▇▇▇▇▇▇ ▇▇▇▇▇ and any such separate firm for the Trust, the Operating
Partnership or the Company, the Trustees, directors, officers of the
Company who sign the Registration Statement and such control persons of
the Trust, the Operating Partnership or the Company shall be designated
in writing by the Company. The Indemnifying Person 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 Person agrees to indemnify
any Indemnified Person from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by the second and third sentences of
this paragraph, the Indemnifying Person 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
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such Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have
been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are
the subject matter of such proceeding.
(d) Indemnification for Reserved Securities. In connection with
the offer and sale of the Reserved Securities, the Company agrees,
promptly upon a request in writing, to indemnify and hold harmless the
Underwriters from and against any and all losses, liabilities, claims,
damages and expenses incurred by them as a result of the failure of
eligible employees and persons having business relationships with the
Company to pay for and accept delivery of Reserved Securities which, by
the end of the first business day following the date of this Agreement,
were subject to a properly confirmed agreement to purchase.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is unavailable to an Indemnified Person or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person 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 Trust, the Operating Partnership and the Company on the
one hand and the Underwriters 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 Trust, the Operating Partnership and the Company on the one hand
and the Underwriters on the other hand in connection with the statements or
omissions as well as any other relevant equitable considerations. The relative
benefits received by the Trust, the Operating Partnership and the Company on the
one hand and the Underwriters on the other hand shall be deemed to be in the
same respective proportions as the proceeds from the offering of the Securities
after deducting the underwriting discount (before deducting expenses) received
by the Trust and the total underwriting discounts received by the Underwriters
bear to the aggregate initial public offering price of the Securities. The
relative fault of the Trust, the Operating Partnership and 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 Trust, the Operating Partnership or 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 Trust, the Operating Partnership, the Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and
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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 Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter 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 Underwriters' obligations to contribute pursuant to this
Section 7 are several in proportion to the respective number of the Securities
set forth opposite their names in Schedule A hereto, and not joint.
The remedies provided for in this Section 7 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.
The indemnity and contribution agreements herein and the representations
and warranties of the Trust, the Operating Partnership and the Company set forth
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 by or on
behalf of the Trust, the Operating Partnership, the Company, its officers or
directors or any other person controlling the Company and (iii) acceptance of
and payment for any of the Securities.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Trust, the Operating Partnership
or the Company submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Trust, the
Operating Partnership or the Company, and shall survive delivery of the
Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Trust and the Operating Partnership, at any time at
or prior to Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
REIT Entities considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representatives, impracticable to
market the Securities or to enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Operating Partnership or the Company
have been suspended or materially limited by the Commission or the New York
Stock Exchange, or if trading
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generally on the American Stock Exchange or the New York Stock Exchange or in
the Nasdaq National Market has been suspended or materially limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority, or (iv) if a banking
moratorium has been declared by either Federal, New York or California
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Securities to be purchased on such date, this Agreement or,
with respect to any Date of Delivery which occurs after the Closing
Time, the obligation of the Underwriters to purchase and of the Trust to
sell the Option Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Trust to sell the relevant Option Securities,
as the case may be, either the Representatives or the Trust shall have the right
to postpone Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
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SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of _________; and
notices to the Trust, the Operating Partnership or the Company shall be directed
to them at c/o Irvine Apartment Communities, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇. ▇▇▇▇.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters and the Trust, the Operating Partnership
and the Company and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Trust, the Operating Partnership
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Trust, the Operating Partnership and
the Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Trust, the Operating Partnership and
the Company a counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the Underwriters, the Trust,
the Operating Partnership and the Company in accordance with its terms.
Very truly yours,
IAC CAPITAL TRUST
By
------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, not in his individual capacity
but solely as Regular Trustee
IRVINE APARTMENT COMMUNITIES, L.P.,
a Delaware limited partnership
By: IRVINE APARTMENT
COMMUNITIES, INC.,
a Maryland corporation, its sole
general partner
By
------------------------------------------------
Title:
IRVINE APARTMENT COMMUNITIES, INC.
a Maryland corporation
By
------------------------------------------------
Title:
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CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇, SACHS & CO.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
SALOMON BROTHERS
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By
----------------------------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
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33
SCHEDULE A
Number of
Initial
Number of Underwriter Securities
--------------------- ----------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.......................
▇▇▇▇▇▇▇, Sachs & Co............................
▇.▇. ▇▇▇▇▇▇ Securities Inc. ...................
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated..............
Salomon Brothers...............................
---------
Total ......................................... 6,000,000
=========
Sch A-1
34
SCHEDULE B
IAC CAPITAL TRUST
(a Delaware statutory business trust)
6,000,000 __ % Series A REIT Trust Originated Preferred Securities
1. The initial public offering price per security for the Securities,
determined as provided in said Section 2, shall be $______.
2. The purchase price per security for the Firm Securities to be paid by
the several Underwriters shall be $______ , by an amount equal to the initial
public offering price set forth above. The purchase price per security for the
Option Securities to be paid by the several Underwriters shall be $______, by an
amount equal to the initial offering price set forth above plus any accrued
distributions declared through the Date of Delivery.
3. The commission to be paid by the Operating Partnership to the
Underwriters for their commitments hereunder shall be $_______ per security.
4. The dividend rate on the Securities will be ___% per annum.
Sch B-1
35
Exhibit A
FORM OF OPINION OF TRUST'S, OPERATING PARTNERSHIP'S
AND THE COMPANY'S SPECIAL COUNSEL TO BE
DELIVERED PURSUANT TO SECTION 5(b)
(i) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of the
State of Delaware.
(ii) The Trust has the power and authority to own, lease and operate its
property and to conduct its business as described in the Prospectus.
(iii) The Operating Partnership has been duly formed and is validly
existing as a limited partnership in good standing under the laws of the State
of Delaware. Based solely on certificates of public officials, such counsel
confirms that the Operating Partnership is qualified to do business in the State
of California.
(iv) The Operating Partnership has the power and authority to own, lease
and operate its property and to conduct its business as described in the
Prospectus.
(v) To the best of such counsel's knowledge, based solely on
certificates of public officials, such counsel confirms that the Company is
qualified to do business in the State of California. Based on a certificate of
an officer of the Company and to the best of such counsel's knowledge, other
than the Operating Partnership, the Company has no Significant Subsidiaries.
(vi) The Securities have been duly authorized for issuance and sale to
the Underwriters pursuant to the Purchase Agreement and, when issued and
delivered by the Trust pursuant to the Purchase Agreement against payment of the
consideration set forth in the Purchase Agreement, will be validly issued and
fully paid and non-assessable; no holder of the Securities is or will be subject
to personal liability by reason of being such a holder; the Securities conform
in all material respects to the description thereof contained in the Prospectus;
and the relative rights, preferences, interests and powers of the Securities are
as set forth in the Declaration relating thereto, and all such provisions are
valid under the Delaware Business Trust Act.
(vii) The Common Securities have been duly authorized for issuance and
sale to the Company and certain members of management of the Company and, when
issued and delivered by the Trust to the Company and certain members of
management of the Company against payment of the consideration thereof as set
forth in the Declaration, will be validly issued and fully paid and
non-assessable; the Common Securities conform to the provisions of the
Declaration; and the relative rights, preferences, interests and powers of the
Common Securities are as set forth in the Declaration relating thereto, and all
such provisions are valid under the Delaware Business Trust Act.
(viii) The Series A Preferred L.P. Units have been duly authorized for
issuance and sale to the Trust and, when issued and delivered by the Operating
Partnership pursuant to the OP Partnership
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Agreement against payment of the consideration as described in the Prospectus,
will be validly issued in accordance with the OP Partnership Agreement; no
holder of the Series A Preferred L.P. Units, as a limited partner of the
Operating Partnership, is or will be liable to third parties for the obligations
of the Operating Partnership; the Series A Preferred L.P. Units conform in all
material respects to the description thereof contained in the Prospectus; and
the relative rights, preferences, interests and powers of the Series A Preferred
L.P. Units are as set forth in the OP Partnership Agreement relating thereto,
and all such provisions are valid under the Revised Uniform Limited Partnership
Act of the State of Delaware.
(ix) The issuance of the Securities is not subject to any preemptive or
other similar rights of any securityholder of the Trust.
(x) Assuming due authorization, execution and delivery of this Agreement
by the Company in its capacity as general partner of the Partnership, the
Purchase Agreement has been duly authorized, executed and delivered by the
Operating Partnership.
(xi) The Purchase Agreement has been duly authorized, executed and
delivered by each of the Company and the Trust.
(xii) Each of the Operating Partnership and the Property Partnership is
currently organized in conformity with the requirements for qualification as a
partnership under the Code and has been so organized since its formation, and
its method of operation has satisfied the requirements for taxation as a
partnership under the Code, and its proposed method of operation will enable it
to continue to do so and neither of the Operating Partnership nor the Property
Partnership has been or is taxable as a corporation.
(xiii) The Trust is currently organized in conformity with the
requirements for qualification as a real estate investment trust under the Code
and has been so organized since its formation, and its method of operation has
satisfied the requirements for taxation as a real estate investment trust under
the Code, and its proposed method of operation will enable it to continue to do
so.
(xiv) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); and, to the best of our knowledge, no
stop order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
(xv) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectus and each amendment or supplement to the Registration
Statement and Prospectus as of their respective effective or issue dates (other
than the financial statements and supporting schedules included therein or
omitted therefrom, as to which such counsel need express no opinion) complied as
to form in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations.
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(xvi) If Rule 434 has been relied upon, the Prospectus was not
"materially different," as such term is used in Rule 434, from the prospectus
included in the Registration Statement at the time it became effective.
(xvii) The form of certificate used to evidence the Securities complies
in all material respects with all applicable statutory requirements, with any
applicable requirements of the Declaration of the Trust and the requirements of
the New York Stock Exchange.
(xviii)Such counsel does not know of any legal or governmental
proceedings pending or threatened to which any of the REIT Entities or any of
the Properties is subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or of any statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(xix) The information in the Prospectus under "Description of the Series
A Preferred Securities", "Description of the Series A Preferred L.P. Units",
"Relationship between the Preferred Securities and the Preferred L.P. Units,"
"Operating Partnership Agreement," "Business and Properties of the Operating
Partnership -- Legal Proceedings," "Certain Federal Income Tax Considerations"
and in the Registration Statement under Item 14, to the extent that it
constitutes matters of law, summaries of legal matters, the Declaration, the OP
Partnership Agreement or legal proceedings, or legal conclusions, has been
reviewed by us and is correct in all material respects.
(xx) To the best of our knowledge, there are no persons with
registration rights or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the Trust or
the Operating Partnership under the 1933 Act.
(xxi) Neither the Trust nor the Operating Partnership is an "investment
company" or an entity "controlled" by an "investment company," as such terms are
defined in the ▇▇▇▇ ▇▇▇.
(xxii) The Declaration has been duly authorized, executed and delivered
by the Company, the Operating Partnership and the Regular Trustee. Assuming due
authorization, execution and delivery of the Declaration by the Delaware Trustee
and the Property Trustee, the Declaration is a valid and legally binding
agreement of the Company and the Operating Partnership and enforceable against
the Company and the Operating Partnership in accordance with its terms, except
as enforceability thereof may be limited by bankruptcy, insolvency, or similar
laws affecting creditors' rights generally and by the availability of equitable
principles of general applicability. The execution, delivery and performance of
the Declaration and the consummation of the transactions set forth therein and
compliance by the Company and the Operating Partnership, to the extent a party
thereto, do not and will not contravene any provision of applicable law or the
certificate of limited partnership of the Operating Partnership, the OP
Partnership Agreement or any agreement or other instrument binding upon any of
the REIT Entities that is material to the REIT Entities, taken as a whole, or,
to the best knowledge of such counsel, any judgment or decree of any
governmental body, agency or court having jurisdiction over any of the REIT
Entities (it being
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understood that such counsel expresses no opinion as to any judgment or decree
of the United States Department of Housing and Urban Development ("HUD")) and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency (it being understood that such counsel expresses no
opinion as to any consent, approval, authorization or order of, or qualification
with, HUD) is required for the execution and delivery by the Company and the
Operating Partnership of their respective obligations under the Declaration.
(xxiii) Assuming due authorization, execution and delivery of each of
the Amended Agreements by the Company in its capacity as general partner of the
Operating Partnership, each of the Amended Agreements has been duly authorized,
executed and delivered by the Operating Partnership. Assuming due authorization,
execution and delivery of each of the Amended Agreements by the Company in its
individual capacity and its capacity as general partner of the Operating
Partnership, the execution and delivery of each of the Amended Agreements by the
Company and the Operating Partnership, to the extent a party thereto, do not and
will not contravene any provision of applicable law or the certificate of
limited partnership of the Operating Partnership, the OP Partnership Agreement
or any agreement or other instrument binding upon any of the REIT Entities that
is material to the REIT Entities, taken as a whole, or, to the best knowledge of
such counsel, any judgment or decree of any governmental body, agency or court
having jurisdiction over any of the REIT Entities (it being understood that such
counsel expresses no opinion as to any judgment or decree of the United States
Department of Housing and Urban Development ("HUD")) and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency (it being understood that such counsel expresses no opinion as to any
consent, approval, authorization or order of, or qualification with, HUD) is
required for the execution and delivery by the Company and the Operating
Partnership of their respective obligations under each of the Amended
Agreements.
(xxiv) Assuming due authorization, execution and delivery of OP
Partnership Agreement by the Company in its capacity as general partner of the
Operating Partnership and the other partners of the Operating Partnership, the
Operating Partnership Agreement is a valid and legally binding agreement of the
Company and enforceable against the Company in accordance with its terms, except
as enforceability thereof may be limited by bankruptcy, insolvency, or similar
laws affecting creditors' rights generally and by the availability of equitable
principles of general applicability. Assuming due authorization, execution and
delivery of the OP Partnership Agreement by the Company in its capacity as
general partner of the Operating Partnership, the execution, delivery and
performance of the OP Partnership Agreement by the Company do not and will not
contravene any provision of applicable law or the certificate of limited
partnership of the Operating Partnership or any agreement or other instrument
binding upon any of the REIT Entities that is material to the REIT Entities,
taken as a whole, or, to the best knowledge of such counsel, any judgment or
decree of any governmental body, agency or court having jurisdiction over any of
the REIT Entities (it being understood that such counsel expresses no opinion as
to any judgment or decree of the United States Department of Housing and Urban
Development ("HUD")) and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency (it being understood that
such counsel expresses no opinion as to any consent, approval, authorization or
order of, or qualification with, HUD) is required for the performance by the
Company of its obligations under the
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OP Partnership Agreement, except such as may be required by the securities, Blue
Sky or real estate syndication laws of the various states and the federal
securities laws.
(xxv) Assuming due authorization, execution and delivery by the Company
in its individual capacity and its capacity as general partner of the Operating
Partnership, the execution and delivery by the Trust, the Operating Partnership
and the Company of, and the performance by the Trust, the Operating Partnership
and the Company of their respective obligations under, as the case may be, this
Agreement, the Securities, the Common Securities, the Series A Preferred L.P.
Units will not contravene (l) any provision of New York or federal law or the
Delaware Revised Uniform Limited Partnership Act or the Delaware Business Trust
Act or the Declaration, the Articles of Incorporation or by-laws of the Company,
the certificates of limited partnership of the Operating Partnership and the
Property Partnership, or the OP Partnership Agreement or the Property
Partnership Agreement, or (2) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which any of the Company or its
Subsidiaries is a party or by which any of them or their respective properties
is bound that is material to the Company and its Subsidiaries, taken as a whole,
or (3) any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Trust is a party, or (4) any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
(a) the Company or any of its Subsidiaries or (b) the Trust (it being understood
that such counsel expresses no opinion as to any order, rule or regulation of
HUD), except, for a contravention which would not have a material adverse effect
on the condition, financial or otherwise, or the earnings or business affairs
of, (x) with respect to clause (A)(2) and (A)(4)(a), the Company and its
Subsidiaries, taken as a whole and (y) with respect to clause (A)(3) and
(A)(4)(b), the Trust, and (B) and no consent, approval, authorization or order
of, or qualification with, any New York or federal governmental body or agency
(it being understood that such counsel expresses no opinion as to any consent,
approval, authorization or order of or qualification with, HUD) is required for
the performance by the Trust, the Operating Partnership and the Company of its
obligations under this Agreement, the Securities, the Common Securities or the
Series A Preferred L.P. Units, except such as may be required by the securities,
Blue Sky or real estate syndication laws of the various states in connection
with the offer and sale of the Securities, the Common Securities or the Series A
Preferred L.P.
Units.
Nothing has come to our attention that would lead us to believe that the
Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable), (except for financial
statements and schedules and other financial data included therein or omitted
therefrom, as to which we need make no statement), at the time such Registration
Statement or any such amendment became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial data included therein or omitted
therefrom, as to which we need make no statement), at the time the Prospectus
was issued, at the time any such amended or supplemented prospectus was issued
or at the Closing Time, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
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In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Trust, the Operating Partnership or
the Company and public officials. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
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Exhibit B
FORM OF OPINION OF THE COMPANY'S AND OPERATING PARTNERSHIP'S
MARYLAND COUNSEL TO BE DELIVERED PURSUANT TO SECTION 5(b)
(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 its
property and to conduct its business as described in the Prospectus.
(iii) This Agreement has been duly authorized and delivered by the
Company in its individual capacity and in its capacity as general partner of the
Operating Partnership.
(iv) The Series A Preferred L.P. Units have been duly authorized by the
Company in its capacity as general partner of the Operating Partnership.
(v) The Declaration has been duly authorized, executed and delivered by
the Company in its individual capacity and its capacity as general partner of
the Operating Partnership. The Declaration is a valid and legally binding
agreement of the Company and enforceable against the Company in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency, or
similar laws affecting creditors' rights generally and by the availability of
equitable principles of general applicability. The execution, delivery and
performance of the Declaration by the Company do not and will not contravene any
provision of applicable Maryland law.
(vi) The execution and delivery by the Company, in its individual
capacity and in its capacity as general partner of the Operating Partnership, of
this Agreement and the Series A Preferred L.P. Units, and the performance by the
Company of its obligations under this Agreement, will not contravene any
provision of applicable Maryland law or the charter or by-laws of the Company,
and no consent, approval, authorization or order of, or qualification with, any
governmental body or agency of the State of Maryland is required for the
performance by the Company of its obligations under this Agreement (excluding
the securities or Blue Sky laws of the State of Maryland, as to which such
counsel need not express any opinion).
(vii) The OP Partnership Agreement has been duly authorized, executed
and delivered by the Company in its capacity as general partner of the Operating
Partnership. The Operating Partnership Agreement is a valid and legally binding
agreement of the Company and enforceable against the Company in accordance with
its terms, except as enforceability thereof may be limited by bankruptcy,
insolvency, or similar laws affecting creditors' rights generally and by the
availability of equitable principles of general applicability. The execution,
delivery and performance of the OP Partnership Agreement by the Company do not
and will not contravene any provision of applicable Maryland law.
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(viii) Each of the Amended Agreements has been duly authorized, executed
and delivered by the Company in its individual capacity and its capacity as
general partner of the Operating Partnership. The execution, delivery and
performance of each of the Amended Agreements and the consummation of the
transactions set forth therein and compliance by the Company with its
obligations thereunder, will not contravene any provision of applicable Maryland
law or the charter or by-laws of the Company, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency of the State of Maryland is required for the performance by the Company
of its obligations under any of the Amended Agreements (excluding the securities
or Blue Sky laws of the State of Maryland, as to which such counsel need not
express any opinion).
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
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Exhibit C
FORM OF OPINION OF THE PROPERTY TRUSTEE'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(f)
(i) The Property Trustee is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the laws of the
State of its incorporation, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, the
Declaration.
(ii) The execution, delivery and performance by the Property Trustee of
the Declaration has been duly authorized by all necessary corporate action on
the part of the Property Trustee. The Declaration has been duly executed and
delivered by the Property Trustee, and constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against it in accordance with
its terms, except as enforceability thereof may be limited by bankruptcy,
insolvency, or similar laws affecting creditors' rights generally and by the
availability of equitable principles of general applicability.
(iii) The execution, delivery and performance of the Declaration by the
Property Trustee does not conflict with or constitute a breach of the Charter or
By-laws of the Property Trustee.
(iv) No consent, approval or authorization of, or registration with or
notice to, any banking authority which supervises or regulates the Property
Trustee is required for the execution, delivery or performance by the Property
Trustee, of the Declaration.
(v) The Property Trustee satisfies the qualifications set forth in
Section 4.1(c) of the Declaration.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
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