10,000,000 SHARES
ARDEN REALTY, INC.
(A MARYLAND CORPORATION)
COMMON STOCK, $.01 PAR VALUE PER SHARE
UNDERWRITING AGREEMENT
July ___, 1997
XXXXXX BROTHERS INC.
ALEX. XXXXX & SONS INCORPORATED
X.X. XXXXXXX & SONS, INC.
XXXXXX XXXXXXX XXXX XXXXXX
XXXXX XXXXXX INC.
EVEREN SECURITIES, INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
As Representatives of the several
Underwriters named in Schedule 1,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Arden Realty, Inc., a Maryland corporation (the "Company"), proposes to
sell 10,000,000 shares (the "Firm Stock") of the Company's Common Stock (the
"Common Stock") par value $.01 per share. In addition, the Company proposes to
grant to the Underwriters named in Schedule 1 hereto (the "Underwriters") an
option to purchase up to an additional 1,500,000 shares of the Common Stock on
the terms and for the purposes set forth in Section 2 (the "Option Stock"). The
Firm Stock and the Option Stock, if purchased, are hereinafter collectively
called the "Stock." This is to confirm the agreement concerning the purchase of
the Stock from the Company by the Underwriters.
As used in this Agreement, "Operating Partnership" shall mean Arden Realty
Limited Partnership, a Maryland limited partnership; "Effective Time" shall mean
the date and the time as of which the registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Securities and Exchange Commission (the "Commission"); "Effective Date" shall
mean the date of the Effective Time; "Preliminary Prospectus" shall mean each
prospectus included in such registration statement, or amendments thereof,
before it became effective under the Securities Act of 1933, as amended (the
"Securities Act"), and any prospectus filed with the Commission by the Company
with the consent of the representatives ("Representatives") pursuant to Rule
424(a) of the rules and regulations of the Commission thereunder (the "Rules and
Regulations");
"Registration Statement" shall mean such registration statement, as amended at
the Effective Time, including all information contained in the final prospectus
filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations
in accordance with Section 6(a) hereof and deemed to be a part of the
registration statement as of the Effective Time pursuant to paragraph (b) of
Rule 430A of the Rules and Regulations; and "Prospectus" shall mean such final
prospectus, as first filed with the Commission pursuant to paragraph (1) or (4)
of Rule 424(b) of the Rules and Regulations. Any registration statement
(including any amendment or supplement thereto or information which is deemed
part thereof) filed by the Company to register additional shares of Common
Stock of the Company under rule 462(b) of the Rules and Regulations ("Rule
462(b) Registration Statement") shall be deemed a part of the Registration
Statement. Any prospectus (including any amendment or supplement thereto or
information which is deemed to be a part thereof) included in a Rule 462(b)
Registration Statement and any term sheet as contemplated by Rule 434 of the
Rules and Regulations (a "Term Sheet") shall be deemed to be part of the
Prospectus.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND THE
OPERATING PARTNERSHIP. The Company and the Operating Partnership, jointly and
severally, represent, warrant and agree as follows:
(a) A registration statement on Form S-11 (File No. 333-30059)
and certain amendments thereto, with respect to the Stock has (i) been
prepared by the Company in conformity with the requirements of the
Securities Act and the Rules and Regulations of the Commission, (ii)
been filed with the Commission under the Securities Act and (iii)
become effective under the Securities Act. Copies of such
registration statement and each amendment thereto have been delivered
by the Company to you as the Representatives of the Underwriters. The
Commission has not issued any order preventing or suspending the use
of any Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all material respects to
the requirements of the Securities Act and the Rules and Regulations
and do not and will not, as of the applicable effective date (as to
the Registration Statement and any amendment thereto) 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, and as of the applicable filing date (as to
the Prospectus and any amendment or supplement thereto) contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
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misleading; PROVIDED that no representation or warranty is made as to
information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or
on behalf of any Underwriter concerning such Underwriter specifically
for inclusion therein.
(c) The Company is a corporation duly incorporated and existing
under and by virtue of the laws of the State of Maryland and is in
good standing with the State Department of Assessments and Taxation of
Maryland (the "SDAT") with corporate power to own, lease and operate
its properties, to conduct the business in which it is engaged or
proposes to engage as described in the Prospectus and to enter into
and perform its obligations under this Agreement to which it is a
party. The Company is duly qualified or registered as a foreign
corporation and is in good standing in California and is in good
standing in each other jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or be registered or to be in good standing in
such other jurisdiction would not result in a material adverse effect
on the consolidated financial position, results of operations,
business or prospects of the Company, the Operating Partnership and
their subsidiaries taken as a whole (a "Material Adverse Effect").
(d) The Operating Partnership is a limited partnership duly
formed and existing under and by virtue of the laws of the State of
Maryland and is in good standing with the SDAT with partnership power
to own, lease and operate its properties, to conduct the business in
which it is engaged or proposes to engage as described in the
Prospectus and to enter into and perform its obligations under this
Agreement. The Operating Partnership is duly qualified or registered
as a foreign partnership and is in good standing in California and is
in good standing in each other jurisdiction in which such
qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or be registered or to be in good
standing in such other jurisdiction would not result in a Material
Adverse Effect. The Company is the sole general partner of the
Operating Partnership and, immediately after the First Delivery Date
will be the sole general partner of the Operating Partnership and will
own approximately 91.43% of all outstanding partnership interests in
the Operating Partnership.
(e) Each of the subsidiaries (as defined in Section 15) of the
Company and/or the Operating Partnership has been duly organized
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and is a validly existing corporation or limited partnership, as the
case may be, in good standing in California and is in good standing in
each other jurisdiction in which qualification or registration is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or be
registered or to be in good standing in such other jurisdiction would
not result in a Material Adverse Effect; each subsidiary has all power
and authority necessary to own or hold its respective properties and
to conduct the businesses in which it is engaged; and none of the
subsidiaries (other than the Operating Partnership and Arden Realty
Finance, L.P.) is a "significant subsidiary," as such term is defined
in Rule 405 of the Rules and Regulations.
(f) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform in all material respects to the description
thereof contained in the Prospectus; all of the issued partnership
interests of the Operating Partnership (the "Partnership Interests")
have been duly and validly authorized and issued and are fully paid
and, with respect to the Partnership Interests owned by the Company
are owned directly by the Company, free and clear of all liens,
encumbrances, equities or claims; and all of the issued shares of
capital stock or partnership interests, as the case may be, of each
subsidiary of the Company or the Operating Partnership have been duly
and validly authorized and issued and are fully paid and non-assessable
(solely with respect to corporate subsidiaries) and are owned directly
or indirectly by the Company or the Operating Partnership, free and
clear of all liens, encumbrances equities or claims.
(g) The shares of the Stock to be issued and sold by the Company
to the Underwriters hereunder have been duly and validly authorized
and, when issued and delivered against payment therefor as provided
herein will be duly and validly issued, fully paid and non-assessable;
and the Stock will conform in all material respects to the description
thereof contained in the Prospectus.
(h) The limited Partnership Interests in the Operating
Partnership (the "Units") to be issued to the Company have been duly
authorized for issuance by the Operating Partnership and at each
Delivery Date will be validly issued and fully paid. Immediately
after the First Delivery Date, 2,971,756 Units will be issued and
outstanding. All outstanding Units have been offered and sold in
compliance with all applicable laws (including, without limitation,
federal and state securities laws).
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(i) None of the Company, the Operating Partnership or any of
their subsidiaries is in violation of its charter, by-laws, certificate
of limited partnership, articles of organization, operating agreement
or partnership agreement, as the case may be, and none of the Company,
the Operating Partnership or any of their subsidiaries is in default
in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which such entity
is a party or by which such entity may be bound, or to which any of
the property or assets of such entity is subject, except for such
defaults that would not have a Material Adverse Effect.
(j) This Agreement has been duly authorized, executed and
delivered by the Company and the Operating Partnership.
(k) The execution, delivery and performance of this Agreement by
the Company and the Operating Partnership and the consummation of the
transactions contemplated hereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company,
the Operating Partnership or any of their subsidiaries is a party or
by which the Company, the Operating Partnership or any of their
subsidiaries is bound or to which any of the property or assets of the
Company, the Operating Partnership or any of their subsidiaries is
subject (except for such conflicts, breaches, violations or defaults
that, individually or in the aggregate, would not have a Material
Adverse Effect); nor will such actions result in any violation of the
provisions of the charter, by-laws or partnership agreement of the
Company, the Operating Partnership or any of their subsidiaries or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, the Operating
Partnership or any of their subsidiaries or any of the properties,
assets or businesses owned by them; and except for (a) the
registration of the Stock under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and applicable state and foreign securities laws in
connection with the purchase and distribution of the Stock by the
Underwriters, (b) consents, approvals, authorizations, orders, filings
or registrations that will be completed on or prior to the Closing
Date and (c) such consents, approvals, authorizations, orders, filings
or registrations, the absence of which, individually or in the
aggregate would not have a Material Adverse Effect, no consent,
approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body or any other person is
required for the
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execution, delivery and performance of this Agreement by the Company
and the Operating Partnership and the consummation of the transactions
contemplated hereby.
(l) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Securities Act.
(m) Except as set forth in the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any unissued shares of the
Stock to be issued and sold by the Company to the Underwriters
hereunder pursuant to the Company's charter or by-laws or any
agreement or other instrument.
(n) Except as described in the Prospectus, the Company has not
sold or issued any shares of Common Stock during the six-month period
preceding the date of the Prospectus, including any sales pursuant to
Rule 144A under, or Regulations D or S of, the Securities Act, other
than shares issued pursuant to employee benefit plans, qualified stock
option plans or other employee compensation plans or pursuant to
outstanding options, warrants or rights.
(o) Since the date of the latest audited financial statements
included in the Prospectus and except as disclosed in the Prospectus,
(i) there has been no material adverse change in the financial
condition, results of operation or business of the Company, the
Operating Partnership or any of their subsidiaries, whether or not
arising in the ordinary course of business, (ii) no material casualty
loss or material condemnation or other adverse event with respect to
any business or property of the Company, the Operating Partnership or
any of their subsidiaries has occurred, (iii) there have been no
transactions or acquisitions entered into by the Company, the
Operating Partnership or any of their subsidiaries other than those in
the ordinary course of business, which are material with respect to
such entity and its subsidiaries taken as a whole, (iv) there have
been no material liabilities or obligations, direct or contingent,
incurred by the Company, the Operating Partnership or any of their
subsidiaries, other than liabilities and obligations which were
incurred in the ordinary course of business, (v) there has been no
dividend or
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distribution of any kind declared, paid or made by the Company on any
class of its stock or by the Operating Partnership with respect to its
Partnership Interests, (vi) there has been no material change in the
stock of the Company or the Partnership Interests of the Operating
Partnership, or any increase in the indebtedness of the Company, the
Operating Partnership or any of their subsidiaries and (vii) there
have been no securities issued or granted by the Company, the Operating
Partnership or any of their subsidiaries.
(p) The financial statements and pro forma financial information
(including all necessary pro forma adjustments and including the
related notes and supporting schedules) filed as part of the
Registration Statement or included in the Prospectus present fairly
the financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved and all adjustments necessary for a
fair presentation of results for such periods have been made. The
financial information set forth in the Prospectus presents fairly the
information shown therein and has been prepared on an accounting basis
consistent with such financial statements and the books and records of
the respective entities presented therein. The pro forma financial
statements and other information included in the Prospectus have been
prepared in accordance with the applicable requirements of Rules 11-01
and 11-02 of Regulation S-X under the Securities Act, and the
necessary pro forma adjustments have been properly applied to the
historical amounts in the compilation of such information. Other than
the historical and pro forma financial statements (and schedules)
included therein, no other historical or pro forma financial
statements (or schedules) are required by the Securities Act or the
Rules and Regulations to be included in the Registration Statement.
(q) Ernst & Young LLP, who have certified certain financial
statements included in the Registration Statement, whose report
appears in the Prospectus and who have delivered the initial letter
referred to in Section 7(f) hereof, are independent public accountants
as required by the Securities Act and the Rules and Regulations during
the periods covered by the financial statements on which they reported
contained in the Prospectus.
(r) (i) The Company, the Operating Partnership and their
subsidiaries have good and marketable title in fee simple to all real
property and own all personal property purported to be owned by them,
in each case free and clear of all liens, encumbrances and defects
except such as are described in the Prospectus or such as would not
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materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property
by the Company, the Operating Partnership and their subsidiaries
(except for such real property, buildings and personal property as are
described in subparagraph (ii) below); and (ii) all real property,
buildings and personal property held under lease by the Company, the
Operating Partnership and their subsidiaries are held by them under
valid, existing and enforceable leases in each case free and clear of
all liens, encumbrances and defects except such as are described in
the Prospectus, and such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such
property and buildings by the Company, the Operating Partnership and
their subsidiaries.
(s) Except as described in the Prospectus, the Company, the
Operating Partnership and their subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their
respective properties and as is customary for companies engaged in
similar businesses in similar industries.
(t) The Company, the Operating Partnership and their
subsidiaries own, possess or can acquire on reasonable terms, adequate
rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service xxxx
registrations, copyrights and licenses necessary for the conduct of
their respective businesses and have no reason to believe that the
conduct of their respective businesses will conflict with, and have
not received any notice of any claim of conflict with, any such rights
of others, which conflict (if the subject of any unfavorable decision,
ruling or finding) would result in a Material Adverse Effect.
(u) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which the Company, the Operating
Partnership or any of their subsidiaries is a party or of which any
property or assets of the Company, the Operating Partnership or any of
their subsidiaries is the subject which, if determined adversely to
the Company, the Operating Partnership or any of their subsidiaries,
would have a Material Adverse Effect; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(v) The Company is organized in conformity with the requirements
for qualification as a real estate investment trust under the Internal
Revenue Code of 1986, as amended (the "Code"), and its
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proposed method of operation will enable it to meet the requirements
for taxation as a real estate investment trust under the Code for its
taxable periods beginning or otherwise including the period after the
Effective Date. All statements in the Prospectus regarding the
Company's qualification as a REIT are true, complete and correct in all
material respects.
(w) There are no contracts or other documents which are required
to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed
as exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations.
(x) No relationship, direct or indirect, exists between or among
the Company, the Operating Partnership or any of their subsidiaries on
the one hand, and the directors, officers, stockholders, limited
partners, customers or suppliers of any of such entities on the other
hand, which is required to be described in the Prospectus which is not
so described.
(y) There is (i) no material unfair labor practice complaint
pending against the Company, the Operating Partnership or any of their
subsidiaries nor, to the best knowledge of the Company, threatened
against any of them before the National Labor Relations Board or any
state or local labor relations board, and no significant grievance or
significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Company, the
Operating Partnership or any of their subsidiaries or, to the best
knowledge of the Company, threatened against any of them, and (ii) no
material strike, labor dispute, slowdown or stoppage pending against
the Company, the Operating Partnership or any of their subsidiaries
nor, to the best knowledge of the Company, threatened against the
Company, the Operating Partnership or any of their subsidiaries which
in any case would have a Material Adverse Effect.
(z) The Company, the Operating Partnership and their
subsidiaries are in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company, the Operating Partnership
or any of their subsidiaries would have any liability; the Company,
the Operating Partnership or any of their subsidiaries has
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not incurred and does not expect to incur liability under (i) Title IV
of ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (ii) Sections 412 or 4971 of the Code including the
regulations and published interpretations thereunder; and each
"pension plan" for which the Company, the Operating Partnership or any
of their subsidiaries would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification,
except for such noncompliance, reportable events, liabilities, or
failures to qualify that would not result in a Material Adverse Effect.
(aa) The Company, the Operating Partnership and their
subsidiaries have filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof and
have paid all taxes due thereon, and no tax deficiency has been
determined adversely to the Company, the Operating Partnership or any
of their subsidiaries which has had (nor does the Company have any
knowledge of any tax deficiency which, individually or in the
aggregate, if determined adversely to the Company, the Operating
Partnership or any of their subsidiaries would have) a Material
Adverse Effect.
(ab) The Company, the Operating Partnership and their
subsidiaries (i) make and keep books and records which are accurate in
all material respects and (ii) maintain internal accounting controls
which provide reasonable assurance that (A) transactions are executed
in accordance with management's authorization, (B) transactions are
recorded as necessary to permit preparation of their financial
statements and to maintain accountability for their assets, (C) access
to their assets is permitted only in accordance with management's
authorization and (D) the reported accountability for their assets is
compared with existing assets at reasonable intervals.
(ac) None of the Company, the Operating Partnership or any of
their subsidiaries is in violation in any respect of any law,
ordinance, governmental rule, permit, license, regulation or court
decree to which it or its property or assets may be subject or has
failed to obtain any license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its
property or to the conduct of its business except for such violations
and failures to obtain that, individually or in the aggregate, would
not have a Material Adverse Effect.
(ad) None of the Company, the Operating Partnership or any of
their subsidiaries, nor any director, officer, agent, employee or
other
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person associated with or acting on behalf of the Company, the
Operating Partnership or any of their subsidiaries, has used any
corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; made any direct
or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; violated or is in violation
of any provision of the Foreign Corrupt Practices Act of 1977; or made
any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
(ae) Except as disclosed in the Prospectus (i) there has been no
storage, disposal, generation, manufacture, refinement,
transportation, handling or treatment of toxic wastes, medical wastes,
hazardous wastes or hazardous substances by the Company, the Operating
Partnership or any of their subsidiaries (or, to the knowledge of the
Company, any of their predecessors in interest or any other person)
at, upon or from any of the property now or previously owned or leased
by the Company, the Operating Partnership or any of their subsidiaries
in violation of any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit or which would require any removal,
remedial or other response action under any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit, except for any
violation or response action which would not have, singularly or in
the aggregate with all such violations and response actions, a
Material Adverse Effect; (ii) there has been no storage, disposal,
generation, manufacture, refinement, transportation, handling or
treatment of toxic wastes, medical wastes, hazardous wastes or
hazardous substances by the Company, the Operating Partnership or any
of their subsidiaries (or, to the knowledge of the Company, any of
their predecessors in interest) at or upon any property owned by
anyone else in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require
any removal, remedial or other response action under any applicable
law, ordinance, rule, regulation, order, judgment, decree or permit,
except for any violation or response action which would not have,
singularly or in the aggregate with all such violations and response
actions, a Material Adverse Effect; (iii) there has been no material
spill, discharge, leak, emission, injection, escape, placement,
dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due to
or caused by the Company, the Operating Partnership or any of their
subsidiaries or with respect to which the Company, the Operating
Partnership or any of their subsidiaries have knowledge, except for
any such spill, discharge, leak, emission, injection, escape,
placement, dumping or release which would not have, singularly or in
the aggregate with all such spills, discharges,
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leaks, emissions, injections, escapes, placements, dumpings and
releases, a Material Adverse Effect. The terms "hazardous wastes,"
"toxic wastes," "hazardous substances" and "medical wastes" shall have
the meanings specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental protection.
There are no underground storage tanks located on or in any of the
properties owned or leased by the Company, the Operating Partnership
or any of their subsidiaries except such tanks, individually or in the
aggregate, the existence of which would not have a Material Adverse
Effect.
(af) None of the Company, the Operating Partnership or any of
their subsidiaries is an "investment company" within the meaning of
such term under the Investment Company Act of 1940, as amended, and
the rules and regulations of the Commission thereunder.
(ag) The Stock has been approved for listing on the New York
Stock Exchange subject to official notice of issuance.
(ah) None of the Company, the Operating Partnership or any of
their subsidiaries, or any of their directors, officers or controlling
persons, has taken or will take, directly or indirectly, any action
resulting in a violation of Regulation M under the Exchange Act, or
designed to cause or result in, or that has constituted or that
reasonably might be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Stock.
(ai) Except as described in the Prospectus, the Operating
Partnership is not currently prohibited, directly or indirectly, from
paying any dividends or distributions to the Company to the extent
permitted by applicable law, from making any other distribution on the
Operating Partnership's partnership interests, from repaying to the
Company any loans or advances to the Operating Partnership from the
Company or from transferring any of the Operating Partnership's
property or assets to the Company.
(aj) The Company, the Operating Partnership and their
subsidiaries are currently in substantial compliance with all
presently applicable provisions of the Americans with Disabilities Act
and no failure of the Company, the Operating Partnership or any of
their subsidiaries to comply with all presently applicable provisions
of the Americans with Disabilities Act, individually or in the
aggregate, would result in a Material Adverse Effect.
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2. PURCHASE OF THE STOCK BY THE UNDERWRITERS. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 10,000,000 shares of
the Firm Stock to the several Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase the number of shares of the Firm
Stock set forth opposite that Underwriter's name in Schedule 1 hereto. The
respective purchase obligations of the Underwriters with respect to the Firm
Stock shall be rounded among the Underwriters to avoid fractional shares, as the
Representatives may determine.
In addition, the Company grants to the Underwriters an option to
purchase up to 1,500,000 shares of Option Stock. Such option is granted solely
for the purpose of covering over-allotments in the sale of Firm Stock and is
exercisable as provided in Section 4 hereof. Shares of Option Stock shall be
purchased severally for the account of the Underwriters in proportion to the
number of shares of Firm Stock set forth opposite the name of such Underwriters
in Schedule 1 hereto. The respective purchase obligations of each Underwriter
with respect to the Option Stock shall be adjusted by the Representatives so
that no Underwriter shall be obligated to purchase Option Stock other than in
100 share amounts. The price of both the Firm Stock and any Option Stock shall
be $_____ per share.
The Company shall not be obligated to deliver any of the Stock to be
delivered on the First Delivery Date or the Second Delivery Date (as hereinafter
defined), as the case may be, except upon payment for all the Stock to be
purchased on such Delivery Date as provided herein.
3. OFFERING OF STOCK BY THE UNDERWRITERS. Upon authorization by the
Representatives of the release of the Firm Stock, the several Underwriters
propose to offer the Firm Stock for sale upon the terms and conditions set forth
in the Prospectus.
4. DELIVERY OF AND PAYMENT FOR THE STOCK. Delivery of and payment
for the Firm Stock shall be made at the office of Xxxxxx Brothers Inc., Three
World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New York City
time, on the fourth full business day following the date of this Agreement or
at such other date or place as shall be determined by agreement between the
Representatives and the Company. This date and time are sometimes referred to
as the "First Delivery Date." On the First Delivery Date, the Company shall
deliver or cause to be delivered certificates representing the Firm Stock to
the Representatives for the account of each Underwriter against payment to or
upon the order of the Company of the purchase price by wire transfer of federal
same-day funds to an account or accounts previously designated in writing to
Xxxxxx Brothers Inc. by the Company. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter hereunder. Upon
delivery, the Firm Stock shall be registered in such names and in such
denominations as the Representatives shall request in writing
-13-
not less than two full business days prior to the First Delivery Date. For the
purpose of expediting the checking and packaging of the certificates for the
Firm Stock, the Company shall make the certificates representing the Firm Stock
available for inspection by the Representatives in New York, New York, not
later than 2:00 P.M., New York City time, on the business day prior to the
First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement, the option granted in Section 2 may be exercised by written notice
being given to the Company by the Representatives. Such notice shall set forth
the aggregate number of shares of Option Stock as to which the option is being
exercised, the names in which the shares of Option Stock are to be registered,
the denominations in which the shares of Option Stock are to be issued and the
date and time, as determined by the Representatives, when the shares of Option
Stock are to be delivered; PROVIDED, HOWEVER, that this date and time shall not
be earlier than the First Delivery Date nor earlier than the second business day
after the date on which the option shall have been exercised nor later than the
fourth business day after the date on which the option shall have been
exercised. The date and time the shares of Option Stock are delivered are
sometimes referred to as the "Second Delivery Date" and the First Delivery Date
and the Second Delivery Date are sometimes each referred to as a "Delivery
Date."
Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 4
(or at such other place as shall be determined by agreement between the
Representatives and the Company) at 10:00 A.M., New York City time, on the
Second Delivery Date. On the Second Delivery Date, the Company shall deliver
or cause to be delivered the certificates representing the Option Stock to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by wire transfer of federal
same-day funds to an account or accounts previously designated to Xxxxxx
Brothers Inc. in writing by the Company. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter hereunder. Upon
delivery, the Option Stock shall be registered in such names and in such
denominations as the Representatives shall request in the aforesaid written
notice. For the purpose of expediting the checking and packaging of the
certificates for the Option Stock, the Company shall make the certificates
representing the Option Stock available for inspection by the Representatives
in New York, New York, not later than 2:00 P.M., New York City time, on the
business day prior to the Second Delivery Date.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the Commission's close of
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business on the second business day following the execution and
delivery of this Agreement or, if applicable, such earlier time as may
be required by Rule 430A(a)(3) under the Securities Act; to make no
further amendment or any supplement to the Registration Statement or
to the Prospectus except as permitted herein; to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Representatives
with copies thereof; to advise the Representatives, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal.
(b) To furnish promptly to each of the Representatives and to
counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith.
(c) To deliver promptly to the Representatives such number of
the following documents as the Representatives shall reasonably
request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits other than this Agreement) and (ii) each
of the Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus; and, if the delivery of a prospectus is
required at any time after the Effective Time in connection with the
offering or sale of the Stock or any other securities relating thereto
and if at such time any events shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply
with the Securities Act, to notify the Representatives and, upon their
request, to prepare and furnish without charge to each Underwriter
-15-
and to any dealer in securities as many copies as the Representatives
may from time to time reasonably request of an amended or supplemented
Prospectus which will correct such statement or omission or effect
such compliance, and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Stock at any time
nine months or more after the Effective Time, upon request of the
Representatives but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many copies as the Representatives may
reasonably request of an amended or supplemented prospectus complying
with Section 10(a)(3) of the Securities Act.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the reasonable judgment of the Company or the
Representatives, be required by the Securities Act or requested by the
Commission.
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Representatives and counsel for the
Underwriters and obtain the consent of the Representatives to the
filing.
(f) As soon as practicable after the Effective Date but in any
event not later than 45 days after the end of the Company's fiscal
quarter in which the first anniversary date of the Effective Date
occurs, to make generally available to the Company's security holders
and to deliver to the Representatives an earning statement of the
Company and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Company, Rule 158).
(g) For a period of five years following the Effective Date, to
furnish to the Representatives copies of all materials furnished by
the Company to its security holders and all public reports and all
reports and financial statements furnished by the Company to the
principal national securities exchange upon which the Common Stock may
be listed pursuant to requirements of or agreements with such exchange
or to the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder.
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Stock for
offering and sale under the securities laws of such jurisdictions as
the
-16-
Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Stock; PROVIDED, that in connection therewith the
Company shall not be required to take any action that would subject it
to income taxation in such jurisdictions, qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
(i) For a period of 180 days from the date of the Prospectus,
not to, directly or indirectly, offer for sale, sell or otherwise
dispose of (or enter into any transaction or device which is designed
to, or could be expected to, result in the disposition by any person
at any time in the future of) any shares of Common Stock (other than
the Stock offered hereby and shares issued pursuant to the Stock
Incentive Plan existing on the date hereof), or sell or grant options,
rights or warrants with respect to any shares of Common Stock (other
than the grant of options pursuant to the Stock Incentive Plan
existing on the date hereof), without the prior written consent of
Xxxxxx Brothers Inc.
(j) Prior to the Effective Date, to apply for the listing of the
Stock on the New York Stock Exchange, and to use its best efforts to
complete that listing, subject only to official notice of issuance,
prior to the First Delivery Date.
(k) To apply the net proceeds from the sale of the Stock being
sold by the Company as set forth in the Prospectus.
(l) To take such steps as shall be necessary to ensure that
neither the Company, the Operating Partnership nor any subsidiary
shall become an "investment company" within the meaning of such term
under the Investment Company Act of 1940, as amended, and the rules
and regulations of the Commission thereunder.
6. EXPENSES. The Company agrees to pay (a) the costs incident to
the authorization, issuance, sale and delivery of the Stock and any taxes
payable in that connection; (b) the costs incident to the preparation, printing
and filing under the Securities Act of the Registration Statement and any
amendments and exhibits thereto; (c) the costs of distributing the Registration
Statement as originally filed and each amendment thereto and any post-effective
amendments thereof (including, in each case, exhibits), any Preliminary
Prospectus, the Prospectus and any amendment or supplement to the Prospectus,
all as provided in this Agreement; (d) the costs of printing, photocopying and
distributing this Agreement and any other related documents in connection with
the offering, purchase, sale and delivery of the Stock; (e) the fees and
expenses (including reasonable attorneys' fees) incident to securing any
required review by the National Association of Securities Dealers,
-17-
Inc. of the terms of sale of the Stock; (f) any applicable listing or other
fees; (g) the fees and expenses of qualifying the Stock under the securities
laws of the several jurisdictions as provided in Section 5(h) and of preparing,
printing and distributing a Blue Sky Memorandum (including related fees and
expenses of counsel to the Underwriters); and (h) all other costs and expenses
incident to the performance of the obligations of the Company under this
Agreement; PROVIDED that, except as provided in this Section 6 and in Section
11 the Underwriters shall pay their own costs and expenses, including the costs
and expenses of their counsel, any transfer taxes on the Stock which they may
sell and the expenses of advertising any offering of the Stock made by the
Underwriters.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
and the Operating Partnership contained herein, to the performance by the
Company of its obligations hereunder, and to each of the following additional
terms and conditions:
(a) The Registration Statement shall have become effective and
the Representatives shall have received notice thereof, not later than
the first full business day next following the date of this Agreement
or such later date as shall be consented to in writing by the
Representatives. The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a); no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied
with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to such Delivery Date that the Registration
Statement or any amendment thereto contains an untrue statement of a
fact which, in the opinion of Xxxxx & Xxxxxxx L.L.P., counsel for the
Underwriters, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading
or that the Prospectus and any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion of Xxxxx
& Xxxxxxx L.L.P., counsel for the Underwriters, is material or omits
to state a fact which, in the opinion of such counsel, is material and
is required to be stated therein or is necessary to make the
statements, in light of the circumstances under which they were made,
not misleading.
-18-
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Stock,
the Registration Statement and the Prospectus, and all other legal
matters and agreements relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all material
respects to counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Xxxxxx & Xxxxxxx shall have furnished to the Representatives
its written opinion, as counsel to the Company, addressed to the
Underwriters and dated such Delivery Date, in form and substance
reasonably satisfactory to the Representatives, to the effect that:
(i) Arden Realty Finance Partnership, L.P. ("Arden Realty
LP") is a limited partnership duly formed and existing under and
by virtue of the laws of the State of California and is in good
standing with the Secretary of State of California. Arden Realty
LP has full power as a limited partnership to conduct its
business as described in the Prospectus. Arden Realty Finance,
Inc. ("Arden Realty Inc.") is a corporation duly incorporated and
existing under and by virtue of the laws of the State of
California and is in good standing with the Secretary of State of
California. Arden Realty Inc. has full corporate power to
conduct its business as described in the Prospectus.
(ii) All of the issued stock or partnership interests of
the Operating Partnership and of each of the subsidiaries are, to
the knowledge of such counsel based solely on an officer's
certificate, owned by the Company free and clear of all liens,
encumbrances, equities or claims;
(iii) Except as set forth in the Prospectus, there are
no preemptive or other rights to subscribe for or to purchase,
nor any restriction upon the voting or transfer of, any shares of
the Stock pursuant to any agreement or other instrument to which
the Company is a party known to such counsel;
(iv) Except as set forth in the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase, nor
any restriction upon the voting or transfer of, any Units
pursuant to any agreement or other instrument to which the
Operating Partnership is a party known to such counsel;
-19-
(v) To such counsel's knowledge based solely on an
officer's certificate and review of attorney letters furnished to
the Company's independent public accountants in connection with
their audit of financial statements, and other than as set forth
in the Prospectus, there are no legal or governmental proceedings
pending to which the Company, the Operating Partnership or any of
their subsidiaries is a party or of which any property or assets
of the Company, the Operating Partnership or any of their
subsidiaries is the subject which, if determined adversely to the
Company, the Operating Partnership or any of their subsidiaries,
would have a Material Adverse Effect; and, to such counsel's
knowledge, based solely on an officer's certificate, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(vi) The Registration Statement was declared effective
under the Securities Act as of the date and time specified in such
opinion, the Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) of the Rules and Regulations
specified in such opinion on the date specified therein and no
stop order suspending the effectiveness of the Registration
Statement has been issued and, to the knowledge of such counsel,
no proceeding for that purpose is pending or threatened by the
Commission;
(vii) The Registration Statement at the date it became
effective and at the date of any amendment thereto made by the
Company prior to such Delivery Date (other than the financial
statements and related schedules and other financial and
statistical information and data (collectively, "Financial Data")
included therein, as to which such counsel need express no
opinion) complied, and the Prospectus as of its date and at the
date of any supplement thereto made by the Company prior to such
Delivery Date (other than the Financial Data, as to which counsel
need express no opinion) complied as to form in all material
respects with the requirements of the Securities Act and the
Rules and Regulations;
(viii) The statements contained in the Prospectus under
the caption "FEDERAL INCOME TAX CONSEQUENCES" AND "RISK
FACTORS -- ADVERSE CONSEQUENCES OF FAILURE TO QUALIFY AS A REIT;
OTHER TAX LIABILITIES," insofar as they describe federal statutes,
rules and regulations, constitute a fair summary thereof and the
opinion of such counsel filed as Exhibit 8.1 to the Registration
Statement is confirmed and the Underwriters may rely upon
-20-
such opinion as if it were addressed to them; and the information
in the Prospectus under the caption "SHARES AVAILABLE FOR FUTURE
SALE," to the extent that it constitutes matters of law or legal
conclusions, has been reviewed by such counsel and is correct in
all material respects.
(ix) To such counsel's knowledge, there are no contracts
or other documents which are required to be described in the
Prospectus or filed as exhibits to the Registration Statement by
the Securities Act or by the Rules and Regulations which have not
been described or filed as exhibits to the Registration
Statement;
(x) The issuance and sale of the shares of Stock being
delivered on such Delivery Date by the Company and the compliance
by the Company and the Operating Partnership with all of the
provisions of this Agreement by the Company and the Operating
Partnership will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument filed as an exhibit to
the Registration Statement except for such conflicts, breaches,
violations or defaults that, individually or in the aggregate,
would not have a Material Adverse Effect, nor will such actions
result in any violation of the provisions of the charter or
by-laws of Arden Realty Inc. or the Agreement of Limited
Partnership of the Arden Realty LP or any statute or any order,
rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over these
subsidiaries or any of their properties or assets;
(xi) To such counsel's knowledge based solely on a
certificate from a officer of the Company, other than as
disclosed in the Prospectus, there are no contracts, agreements
or understandings between the Company and any person granting
such person the right to require the Company to file a
registration statement under the Securities Act with respect to
any securities of the Company owned or to be owned by such person
or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or
in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities
Act;
(xii) Neither the Company, the Operating Partnership nor
any of their subsidiaries is an "investment company" as such
-21-
term is defined in the Investment Company Act of 1940, as amended;
and
(xiii) The issuances of securities described in Items 32
and 33 of the Registration Statement were not at the time of
issue, and are not as of the Delivery Date, required to be
registered under the Securities Act.
In rendering such opinion, such counsel may state that its opinion, as
applicable, is limited to matters governed by the federal securities
and tax laws of the United States of America, and the corporate and
partnership laws of the State of California. Such counsel shall also
have furnished to the Representatives a written statement, addressed
to the Underwriters and dated such Delivery Date, in form and
substance satisfactory to the Representatives, to the effect that (x)
such counsel has acted as counsel to the Company in connection with
the preparation of the Registration Statement and participated in
conferences with certain officers and representatives of the Company
and the Operating Partnership, representatives of Ernst & Young LLP
and representatives of the Underwriters at which the Registration
Statement and the Prospectus and related matters were discussed and
(y) during the course of such counsel's participation (relying as to
factual matters as to materiality to a large extent upon the
statements of officers and other representatives of the Company), no
facts have come to the attention of such counsel which led it to
believe that (i) the Registration Statement (other than the Financial
Data as to which such counsel need make no statement), as of the
Effective Date, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or
(ii) the Prospectus as of the Delivery Date (other than the Financial
Data as to which such counsel need make no statement) contains any
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. The foregoing opinion and statement may be
qualified by a statement to the effect that such counsel does not
assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the
Prospectus and has not made any independent judgment, check or
verification thereof except to the extent set forth in paragraph (iv)
above.
(e) Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx shall have furnished to the
Representatives its written opinion, as Maryland counsel to the Company and the
Operating Partnership, addressed to the Underwriters and dated such Delivery
-22-
Date, in form and substance reasonably satisfactory to the Representatives, to
the effect that:
(i) The Company is a corporation duly incorporated and existing
under and by virtue of the laws of the State of Maryland and is in good
standing with the SDAT. The Company has full corporate power to conduct its
business as described in the Prospectus. Based solely on certificates from
public officials, the Company is duly qualified as a foreign corporation to
transact business and is in good standing in the State of California;
(ii) The Operating Partnership is a limited partnership duly formed
and existing under and by virtue of the laws of the State of Maryland and
is in good standing with the SDAT. The Operating Partnership has full
power as a limited partnership to conduct its business as described in the
Prospectus. Based solely on certificates from public officials, the
Operating Partnership is duly qualified as a foreign limited partnership to
transact business and is in good standing in the State of California;
(iii) The Company has an authorized capitalization as set forth in
the line items "Preferred Stock" and "Common Stock" under the caption
"Capitalization" in the Prospectus, and all of the issued shares of stock
of the Company (including the shares of Stock being delivered on such
Delivery Date) have been duly and validly authorized and, assuming receipt
of consideration therefor as provided in the resolutions authorizing
issuance thereof of the board of directors of the Company, are validly
issued, and fully paid and non-assessable and conform in all material
respects to the description thereof contained in the Prospectus under the
caption "Capital Stock"; and all of the issued stock or partnership
interests of the Operating Partnership and of each of the subsidiaries have
been duly and validly authorized, assuming receipt of consideration
therefor as provided in the resolutions authorizing issuance thereof of the
board of directors of the Company, as general partner of the Operating
Partnership, or by the board of directors of such subsidiary or of the
general partner of such subsidiary, are fully paid and (except as set forth
in the Prospectus) are owned of record by the Company;
(iv) Except as set forth in the Prospectus, there are no preemptive
or other rights to subscribe for or to purchase, nor any restriction upon
the voting or transfer of, any shares of the Stock pursuant to the Company's
charter or by-laws;
(v) Except as set forth in the Prospectus, there are no preemptive
or other rights to subscribe for or to purchase, nor any restriction upon
the voting or transfer of, any Units pursuant to the Operating Partnership
Agreement;
-23-
(vi) The information in the Prospectus under the caption "CAPITAL
STOCK," to the extent that it constitutes matters of law or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects; and the statements contained in the Prospectus under the
heading "CERTAIN PROVISIONS OF MARYLAND LAW AND THE COMPANY'S CHARTER AND
BYLAWS," insofar as they describe Maryland statutory law are correct in all
material respects;
(vii) This Agreement has been duly authorized, executed and
delivered by the Company and the Operating Partnership;
(viii) The issuance and sale of the shares of Stock being delivered
on such Delivery Date by the Company and the compliance by the Company and
the Operating Partnership with all of the provisions of this Agreement by
the Company and the Operating Partnership will not result in any violation
of the provisions of the charter or by-laws of the Company or the Agreement
of Limited Partnership of the Operating Partnership or any statute or any
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or the
Operating Partnership or any of their properties or assets; and, except for
(a) the registration of the Stock under the Securities Act, such consents,
approvals, authorizations, registrations or qualifications as may be
required under applicable state and foreign securities laws in connection
with the purchase and distribution of the Stock by the Underwriters, (b)
consents, approvals, authorizations, orders, filings or registrations that
will be completed on or prior to the Closing Date and (c) such consents,
approvals, authorizations, orders, filing or registrations, the absence of
which, individually or in the aggregate would not have a Material Adverse
Effect, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body or any
other person is required for the execution, delivery and performance of
this Agreement by the Company and the Operating Partnership; and
(ix) The terms of the Units conform in all material respects to all
statements and descriptions related thereto contained in the Prospectus.
In rendering such opinion, such counsel may state that its opinion, as
applicable, is limited to matters governed by the federal securities and tax
laws of the United States of America and the corporate and partnership laws of
the State of Maryland.
(f) The Representatives shall have received from Xxxxx &
Xxxxxxx L.L.P., counsel for the Underwriters, such opinion or opinions,
dated such Delivery Date, with respect to the issuance and sale of the
Stock, the Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably require, and the
-24-
Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(g) At the time of execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP a letter,
in form and substance satisfactory to the Representatives, addressed
to the Underwriters and dated the date hereof (i) confirming that they
are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission and (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information
is given in the Prospectus, as of a date not more than five days prior
to the date hereof), the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily
covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings.
(h) With respect to the letter of Ernst & Young LLP referred
to in the preceding paragraph and delivered to the Representatives
concurrently with the execution of this Agreement (the "initial
letter"), the Company shall have furnished to the Representatives a
letter (the "bring-down letter") of such accountants, addressed to the
Underwriters and dated such Delivery Date (i) confirming that they are
independent public accountants within the meaning of the Securities
Act and are in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission, (ii) stating, as of the date of the bring-down letter
(or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than five days prior to
the date of the bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other matters
covered by the initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in the initial letter.
(i) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, of its Chairman of the Board,
its President or a Vice President and its chief financial officer
stating on behalf of the Company that:
(i) The representations, warranties and agreements of
the Company and the Operating Partnership in Section 1 are
-25-
true and correct as of such Delivery Date; the Company has
complied with all its agreements contained herein; and the
conditions set forth in Sections 7(a) and 7(j) have been
fulfilled; and
(ii) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (A) as of the
Effective Date, the Registration Statement did not include any
untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, (B) the Prospectus as of
the Delivery Date did not include any untrue statement of a
material fact and did not omit to state a material fact required
to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading and (C) since the Effective Date no event has occurred
which should have been set forth in a supplement or amendment to
the Registration Statement or the Prospectus.
(j) (i) Neither the Company, the Operating Partnership nor any
of their subsidiaries shall have sustained since the date of the
latest audited financial statements included in the Prospectus any
loss or interference with their business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus or (ii)
since such date there shall not have been any change in the stock,
partnership interests or long-term debt of the Company, the Operating
Partnership or any of their subsidiaries or any change, or any
development involving a prospective change in, or affecting the
general affairs, management, financial position, stockholders' equity,
partners' equity or results of operations of the Company, the
Operating Partnership and their subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is,
in the judgment of the Representatives, so material and adverse as to
make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Stock being delivered on such Delivery
Date on the terms and in the manner contemplated in the Prospectus.
(k) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, Inc. or the
American Stock Exchange, Inc. or on the Nasdaq Stock Market, Inc., or
trading in any securities of the Company on any exchange or on the
Nasdaq Stock Market, Inc., shall have been suspended or
-26-
minimum prices shall have been established on any such exchange or such
market by the Commission, by such exchange or by any other regulatory
body or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by federal, New York or California
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a declaration of
a national emergency or war by the United States or (iv) there shall
have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such)
as to make it, in the judgment of a majority in interest of the several
Underwriters, impracticable or inadvisable to proceed with the public
offering or delivery of the Stock being delivered on such Delivery Date
on the terms and in the manner contemplated in the Prospectus.
(l) The New York Stock Exchange, Inc. shall have approved the
Stock for listing, subject only to official notice of issuance.
(m) The Company shall have delivered to the Underwriters under
separate cover at or prior to the Delivery Date any and all officers'
and other certificates delivered by the Company, the Operating
Partnership, their subsidiaries or its affiliates to Xxxxxx & Xxxxxxx,
Xxxxxxx Xxxxx Xxxxxxx & Ingersoll and Ernst & Young LLP on which such
firms relied in rendering opinions.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Operating Partnership, jointly and
severally, shall indemnify and hold harmless each Underwriter, its officers and
employees and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Stock), to which
that Underwriter, officer, employee or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (B) in any blue sky application or other document prepared
or executed by the Company (or based upon
-27-
any written information furnished by the Company) specifically for the purpose
of qualifying any or all of the Stock under the securities laws of any state or
other jurisdiction (any such application, document or information being
hereinafter called a "Blue Sky Application"), (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to
make the statements therein not misleading or (iii) any act or failure to act
or any alleged act or failure to act by any Underwriter in connection with, or
relating in any manner to, the Stock or the offering contemplated hereby, and
which is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered by clause (i)
or (ii) above (PROVIDED that the Company and the Operating Partnership shall
not be liable under this clause (iii) to the extent that is determined in a
final judgment by a court of competent jurisdiction that such loss, claim,
damage, liability or action resulted directly from any such acts or failures to
act undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct) and shall reimburse each Underwriter and each
such officer, employee or controlling person promptly upon demand for any legal
or other expenses reasonably incurred by that Underwriter, officer, employee or
controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred; PROVIDED, HOWEVER, that the Company and the Operating
Partnership shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any such amendment or supplement, or in any Blue Sky
Application, in reliance upon and in conformity with written information
specified in Section 8(e) furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein; PROVIDED
FURTHER, that the foregoing indemnity with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such loss, claim, damage or liability purchased the Stock
which is the subject thereof if such person did not receive a copy of the
Prospectus (or the Prospectus as supplemented) at or prior to the confirmation
of the sale of such Stock to such person in any case where such delivery is
required by the Securities Act and the untrue statement or omission of a
material fact contained in such Preliminary Prospectus was corrected in the
Prospectus (or the Prospectus as supplemented). The foregoing indemnity
agreement is in addition to any liability which the Company or the Operating
Partnership may otherwise have to any Underwriter or to any officer, employee
or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, the Operating Partnership, each of
their respective officers and employees, each of the Company's directors
(including any person who, with his or her consent, is named in the
Registration Statement as
-28-
about to become a director of the Company), and each person, if any, who
controls the Company within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company or any such director, officer, employee or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, the Registration Statement or
the Prospectus or in any amendment or supplement thereto, or (B) in any Blue Sky
Application or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information specified in Section 8(e) furnished to the
Company through the Representatives by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the Company and any such
director, officer, employee or controlling person for any legal or other
expenses reasonably incurred by the Company or any such director, officer,
employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred. The foregoing indemnity agreement is in addition to
any liability which any Underwriter may otherwise have to the Company or any
such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, PROVIDED FURTHER, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that
the Representatives shall have the right to employ a single counsel to represent
jointly the Representatives and those other Underwriters and their respective
officers,
-29-
employees and controlling persons who may be subject to liability arising out
of any claim in respect of which indemnity may be sought by the Underwriters
against the Company or the Operating Partnership under this Section 8 if, in
the reasonable judgment of the Representatives, it is advisable for the
Representatives and those Underwriters, officers, employees and controlling
persons to be jointly represented by separate counsel, and in that event the
fees and expenses of such separate counsel shall be paid by the Company or the
Operating Partnership. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld or delayed), settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit
or proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld or delayed), but if settled with the
consent of the indemnifying party or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) in respect of any loss, claim, damage or liability, or
any action in respect thereof, referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the Company
and the Operating Partnership on the one hand and the Underwriters on the other
hand from the offering of the Stock 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 Company and the Operating Partnership
on the one hand and the Underwriters on the other hand with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Operating
Partnership on the one hand and the Underwriters on the other hand with respect
to such offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Stock purchased under this Agreement (before
deducting expenses) received by the Company and the Operating Partnership, on
the one hand, and the total underwriting discounts and commissions received by
the Underwriters with respect to the shares of the Stock purchased under this
Agreement and any financial advisory fees received by any Underwriter, on the
other hand, bear to the total gross proceeds from the offering of
-30-
the shares of the Stock under this Agreement, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company and the Operating Partnership or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
For purposes of the preceding two sentences, the net proceeds deemed to be
received by the Company shall be deemed to be also for the benefit of the
Operating Partnership and information supplied by the Company shall also be
deemed to have been supplied by the Operating Partnership. The Company, the
Operating Partnership and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 8(d)
shall be deemed to include, for purposes of this Section 8(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Stock
underwritten by it and distributed to the public was offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any 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 Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 8(d) are several in proportion to their respective underwriting
obligations and not joint.
(e) The Underwriters severally confirm and the Company and the
Operating Partnership acknowledge that the statements with respect to the public
offering of the Stock by the Underwriters set forth on the cover page of, the
legend concerning stabilization on the inside front cover page of, under the
caption "Underwriting" (excluding the last two paragraphs under such caption) in
and concerning the affiliation of Xxxxxx Brothers Holdings, Inc. with Xxxxxx
Brothers Inc. in the Prospectus are correct and constitute the only information
concerning such Underwriters furnished in writing to the Company and the
Operating Partnership by or on behalf of the Underwriters specifically for
inclusion in the Registration Statement and the Prospectus.
9. DEFAULTING UNDERWRITERS.
If, on either Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting
-31-
Underwriters shall be obligated to purchase the Stock which the defaulting
Underwriter agreed but failed to purchase on such Delivery Date in the
respective proportions which the number of shares of the Firm Stock set forth
opposite the name of each remaining non-defaulting Underwriter in Schedule 1
hereto bears to the total number of shares of the Firm Stock set forth opposite
the names of all the remaining non-defaulting Underwriters in Schedule 1
hereto; PROVIDED, HOWEVER, that the remaining non-defaulting Underwriters shall
not be obligated to purchase any of the Stock on such Delivery Date if the
total number of shares of the Stock which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the
total number of shares of the Stock to be purchased on such Delivery Date, and
any remaining non-defaulting Underwriter shall not be obligated to purchase
more than 110% of the number of shares of the Stock which it agreed to purchase
on such Delivery Date pursuant to the terms of Section 2. If the foregoing
maximums are exceeded, the remaining non-defaulting Underwriters, or those
other underwriters satisfactory to the Representatives who so agree, shall have
the right, but shall not be obligated, to purchase, in such proportion as may
be agreed upon among them, all the Stock to be purchased on such Delivery Date.
If the remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such Delivery
Date, this Agreement (or, with respect to the Second Delivery Date, the
obligation of the Underwriters to purchase, and of the Company to sell, the
Option Stock) shall terminate without liability on the part of any
non-defaulting Underwriter or the Company, except that the Company will
continue to be liable for the payment of expenses to the extent set forth in
Sections 6 and 11. As used in this Agreement, the term "Underwriter" includes,
for all purposes of this Agreement unless the context requires otherwise, any
party not listed in Schedule 1 hereto who, pursuant to this Section 9,
purchases Firm Stock which a defaulting Underwriter agreed but failed to
purchase.
Nothing contained herein shall relieve a defaulting Underwriter
of any liability it may have to the Company for damages caused by its default.
If other underwriters are obligated or agree to purchase the Stock of a
defaulting or withdrawing Underwriter, either the Representatives or the Company
may postpone the Delivery Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for
the Underwriters may be necessary in the Registration Statement, the Prospectus
or in any other document or arrangement.
10. TERMINATION. The obligations of the Underwriters hereunder may
be terminated by the Representatives by notice given to and received by the
Company prior to delivery of and payment for the Firm Stock if, prior to that
time, any of the events described in Sections 7(j) or 7(k), shall have occurred
or if the Underwriters shall decline to purchase the Stock for any reason
permitted under this Agreement.
-32-
11. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Company shall
fail to tender the Stock for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company or the Operating
Partnership to perform any agreement on its part to be performed, or because any
other condition of the Underwriters' obligations hereunder required to be
fulfilled by the Company or the Operating Partnership is not fulfilled (other
than the conditions set forth in Section 7(k)), the Company and the Operating
Partnership will reimburse the Underwriters for all reasonable out-of-pocket
expenses (including fees and disbursements of counsel) incurred by the
Underwriters in connection with this Agreement and the proposed purchase of the
Stock, and upon demand the Company and the Operating Partnership shall pay the
full amount thereof to the Representatives. If this Agreement is terminated
pursuant to Section 9 by reason of the default of one or more Underwriters,
neither the Company nor the Operating Partnership shall be obligated to
reimburse any defaulting Underwriter on account of those expenses.
12. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to Xxxxxx Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate
Department (Fax: 000-000-0000), with a copy, in the case of any notice
pursuant to Section 8(d), to the Director of Litigation, Office of the
General Counsel, Xxxxxx Brothers Inc., Three World Financial Xxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000;
(b) if to the Company or to the Operating Partnership, shall be
delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement,
Attention: Xxxxxxx X. Xxxxx (Fax: (000) 000-0000);
PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to Section 8(d)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and
the Operating Partnership shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Underwriters by
Xxxxxx Brothers Inc. on behalf of the Representatives.
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company and
the Operating Partnership. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company and the
Operating
-33-
Partnership contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control any Underwriter or the
Independent Underwriter within the meaning of Section 15 of the Securities Act
and (B) the indemnity agreement of the Underwriters contained in Section 8(b)
of this Agreement shall be deemed to be for the benefit of officers, employees
and directors of the Company and the Operating Partnership, (including persons
named in the Registration Statement with their consent as about to become a
director of the Company) and any person controlling the Company within the
meaning of Section 13 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 13, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
14. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company, the Operating Partnership and the
Underwriters contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Stock and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
15. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY." For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations and, when used in
reference to subsidiaries of the Company or the Operating Partnership, includes
the entities listed on Schedule 2.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement among the Company,
the Operating Partnership and the Underwriters, please indicate your acceptance
in the space provided for that purpose below.
Very truly yours,
ARDEN REALTY, INC.
By:___________________________________
Name:
Title:
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ARDEN REALTY LIMITED PARTNERSHIP, the
Operating Partnership
By: Arden Realty, Inc., its General Partner
By:___________________________________
Name:
Title:
Accepted:
XXXXXX BROTHERS INC.
ALEX. XXXXX & SONS INCORPORATED
X.X. XXXXXXX & SONS, INC.
XXXXXX XXXXXXX XXXX XXXXXX
XXXXX XXXXXX INC.
EVEREN SECURITIES INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By:____________________________________
XXXXXX BROTHERS INC.
By:____________________________________
AUTHORIZED REPRESENTATIVE
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SCHEDULE 1
Number of
Underwriters Shares
------------ ---------
Xxxxxx Brothers Inc. ................................
Alex. Xxxxx & Sons Incorporated .....................
X.X. Xxxxxxx & Sons, Inc. ...........................
Xxxxx Xxxxxx Inc. ...................................
Xxxxxx Xxxxxxx & Co. Incorporated ...................
EVEREN Securities, Inc. .............................
Xxxxxxx Xxxxx & Associates, Inc. ....................
Total 10,000,000
----------
----------
SCHEDULE 2
SUBSIDIARIES
Arden Realty Finance Partnership, L.P., a California limited partnership
Arden Realty Finance, Inc., a California corporation
