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EXHIBIT 1.1
3,500,000 Shares of Common Stock
GLENBOROUGH REALTY TRUST INCORPORATED
UNDERWRITING AGREEMENT
March 17, 1997
BEAR, XXXXXXX & CO. INC.
XXXXXXXXX, XXXXXXXX & COMPANY LLC
XXXXXXXXX & COMPANY, INC.
as Representatives of the
several Underwriters named in
Schedule I attached hereto
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Ladies and Gentlemen:
Glenborough Realty Trust Incorporated, a corporation organized and
existing under the laws of Maryland (the "Company") and the sole general partner
of Glenborough Properties, L.P. (the "Operating Partnership"), proposes, subject
to the terms and conditions stated herein, to issue and sell to the several
underwriters named in Schedule I attached hereto (the "Underwriters") an
aggregate of 3,500,000 shares (the "Firm Shares") of its common stock, par value
$0.001 per share (the "Common Stock") and, for the sole purpose of covering
over-allotments in connection with the sale of the Firm Shares, at the option of
the Underwriters, up to an additional 525,000 shares (the "Additional Shares")
of Common Stock. The Firm Shares and any Additional Shares purchased by the
Underwriters are referred to herein as the "Shares". Bear, Xxxxxxx & Co. Inc.,
Xxxxxxxxx, Xxxxxxxx & Company LLC and Xxxxxxxxx & Company, Inc. have agreed to
act as representatives of the several Underwriters (in such capacity, the
"Representatives") in connection with the purchase of the Shares. The Shares are
more fully described in the Registration Statement referred to below.
1. Representations and Warranties of the Company and the Operating
Partnership. The Company and the Operating Partnership, jointly and severally,
represent and warrant to, and agree with, the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-19279), and any amendments thereto, and a related preliminary prospectus for
the registration under the Securities
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Act of 1933, as amended (the "Securities Act") of preferred stock, common stock
(including the Shares) and warrants to purchase shares of preferred stock or
common stock, which registration statement, as so amended, has been declared
effective by the Commission and copies of which have heretofore been delivered
to you. Such registration statement, in the form in which it was declared
effective, as amended, including all documents incorporated or deemed to be
incorporated by reference therein through the date hereof, is hereinafter
referred to as the "Initial Registration Statement." Other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement") filed pursuant to Rule 462(b) under the Securities Act,
which became effective upon filing, no other document with respect to the
Initial Registration Statement or document incorporated by reference therein has
heretofore been filed with the Commission (other than prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the Commission under the
Act, each in the form heretofore delivered to the Representatives). No stop
order suspending the effectiveness of the Registration Statement and the Rule
462(b) Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or, to the Company's knowledge, threatened by
the Commission. The various parts of such registration statement, including all
exhibits thereto and the documents incorporated by reference in the prospectus
contained in the registration statement at the time such part of the
registration statement became effective, each as amended at the time such part
of the registration statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are
hereafter collectively called the "Registration Statement." The Company proposes
to file with the Commission pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Securities Act (the "Securities Act Regulations")
the Prospectus Supplement (as defined in Section 4(j) hereof) and the prospectus
dated February 25, 1997 (the "Base Prospectus"), and has previously advised you
of all further information (financial and other) with respect to the Company set
forth therein. The Base Prospectus together with the Prospectus Supplement, in
their respective forms on the date hereof (being the forms in which they are to
be filed with the Commission pursuant to Rule 424(b) of the Securities Act
Regulations), including all documents incorporated or deemed to be incorporated
by reference therein through the date hereof, are hereinafter referred to as the
"Prospectus," except that if any revised prospectus or prospectus supplement
shall be provided to the Underwriters by the Company for use in connection with
the offering and sale of the Shares which differs from the Prospectus (whether
or not such revised prospectus or prospectus supplement is required to be filed
by the Company pursuant to Rule 424(b) of the Securities Act Regulations), the
term "Prospectus" shall refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first provided to
the Underwriters for such use. As used herein, the term "date of the Prospectus"
shall be deemed to refer to the date of the applicable Prospectus Supplement.
Any preliminary prospectus or prospectus subject to completion included in the
Registration Statement or filed with the Commission pursuant to Rule 424 under
the Securities Act, is hereafter called a "Preliminary Prospectus." Unless the
context otherwise requires, all references in this Agreement to documents,
financial statements and schedules and other information which is "contained",
"included", "stated", "described in" or "referred to" in the Registration
Statement or the Prospectus (and all other references of like import) shall be
deemed to mean and include all such documents, financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be,
and all references in this
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Agreement to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 (the "Exchange Act") after the date of this
Agreement which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be. Additionally, all
references in this Agreement to the Registration Statement, the Rule 462(b)
Registration Statement, a Preliminary Prospectus, the Base Prospectus, the
Prospectus Supplement and the Prospectus, or any amendments or supplements to
any of the foregoing, shall be deemed to include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System ("XXXXX").
(b) The Registration Statement and the Base Prospectus, at the
time the Registration Statement became effective and as of the date hereof,
complied and comply in all material respects with the requirements of the
Securities Act and the Securities Act Regulations (including Rule 415(a) of the
Securities Act Regulations), and did not and as of the date hereof do not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Prospectus, as of the date hereof (unless the term "Prospectus"
refers to a prospectus which has been provided to the Underwriters by the
Company for use in connection with the offering of the Shares which differs from
the Prospectus filed with the Commission pursuant to Rule 424(b) of the
Securities Act Regulations, in which case at the time it is first provided to
the Underwriters for such use) and on the Closing Date referred to in Section 2
hereof, does not and will not include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection (a) shall
not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by any Representative
expressly for use in the Registration Statement or the Prospectus. Each
Preliminary Prospectus and Prospectus filed as part of the Registration
Statement, as part of any amendment thereto or pursuant to Rule 424 under the
Securities Act Regulations, if filed by electronic transmission pursuant to
XXXXX (except as may be permitted by Regulations S-T under the Securities Act)
was identical to the copy thereof delivered to the Underwriters for use in
connection with the offer and sales of the Shares. There are no contracts or
other documents required to be described in the Prospectus or to be filed as
exhibits to the Registration Statement under the Securities Act that have not
been described, filed or incorporated by reference therein as required.
(c) Xxxxxx Xxxxxxxx LLP, whose reports are incorporated by
reference into the Registration Statement, are independent public accountants
with respect to the Company and with respect to the Company's subsidiaries, in
each case as required by the Securities Act and the Securities Act Regulations.
(d) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as set forth
in the Registration Statement and the Prospectus, there has been no material
adverse change in the business, business prospects, properties, operations,
condition (financial or other) or results of operations of the
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Company or the Operating Partnership and their respective subsidiaries, taken as
a whole, whether or not arising from transactions in the ordinary course of
business (any such change with respect to any entity being referred to herein as
a "Material Adverse Change"), and since the date of the latest balance sheet
included or incorporated by reference in the Registration Statement and the
Prospectus, neither the Company, the Operating Partnership nor any of their
respective subsidiaries has incurred or undertaken any liabilities or
obligations, direct or contingent, which are material to the Company, the
Operating Partnership and their respective subsidiaries taken as a whole, except
for liabilities or obligations which are set forth in or contemplated by the
Registration Statement and the Prospectus.
(e) This Agreement and the transactions contemplated herein
have been duly and validly authorized by the Company and the Operating
Partnership and this Agreement has been duly and validly executed and delivered
by the Company and the Operating Partnership.
(f) The execution, delivery, and performance of this Agreement
and the consummation of the transactions contemplated hereby do not and will not
(i) conflict with or result in a breach of any of the terms and provisions of,
or constitute a default (or an event which with notice or lapse of time, or
both, would constitute a default) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company,
the Operating Partnership or any of their respective subsidiaries pursuant to,
any agreement, instrument, franchise, license or permit to which the Company,
the Operating Partnership or any of their respective subsidiaries is a party or
by which any of such entities or their respective properties or assets may be
bound or (ii) violate or conflict with any provision of the partnership
agreement of the Operating Partnership, the certificate of incorporation or
by-laws of the Company or any of the subsidiaries of the Company or Operating
Partnership or any judgment, decree, order, statute, rule or regulation of any
court or any public, governmental or regulatory agency or body having
jurisdiction over the Company, the Operating Partnership or any of their
subsidiaries or any of their respective properties or assets, except for those
violations or conflicts that would not have a material adverse effect on the
Company, the Operating Partnership and their respective subsidiaries, taken as a
whole. No consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company,
the Operating Partnership or any of their respective subsidiaries or any of
their respective properties or assets is required for the execution, delivery
and performance of this Agreement or the consummation of the transactions
contemplated hereby, including the issuance, sale and delivery of the Shares to
be issued, sold and delivered by the Company hereunder, except the registration
under the Securities Act of the Shares and such consents, approvals,
authorizations, orders, registrations, filings, qualifications, licenses and
permits as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the Underwriters.
(g) All of the outstanding shares of Common Stock are duly and
validly authorized and issued, fully paid and nonassessable and were not issued
and are not now in violation of or subject to any preemptive rights. The Shares,
when issued, delivered and sold in accordance with this Agreement, were or will
be, as the case may be, duly and validly issued
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and outstanding, fully paid and nonassessable, and will not have been issued in
violation of or be subject to any preemptive rights. The authorized, issued and
outstanding capital stock of the Company is as set forth in the Prospectus
Supplement under the caption "Capitalization" and in the descriptions thereof
incorporated by reference in the Prospectus. The Common Stock, including the
Shares, conform to the description thereof contained in the Registration
Statement and the Prospectus. The Company is the sole general partner of the
Operating Partnership; the partnership agreement of the Operating Partnership
has been duly authorized, executed and delivered by each partner thereto and is
valid, legally binding and enforceable in accordance with its terms; all of the
partnership interests in the Operating Partnership have been duly and validly
authorized and issued and (except as described in the Prospectus) are owned
directly or indirectly by the Company free and clear of all liens, encumbrances,
equities or claims. All issued and outstanding securities of the Operating
Partnership have been duly and validly authorized and issued in compliance with
the federal and state securities laws. The units of the Operating Partnership
issued or to be issued in connection with the acquisitions described in the
Prospectus Supplement under the caption "Recent Activities" will be duly and
validly issued in compliance with the federal and state securities laws when
issued in the manner described in the Prospectus.
(h) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Maryland. The Operating Partnership has been duly organized and is validly
existing as a limited partnership in good standing under the laws of the State
of California. The Company is duly qualified and in good standing as a foreign
corporation, and the Operating Partnership has been duly qualified and is in
good standing as a foreign limited partnership, in each jurisdiction in which
the character or location of its respective properties (owned, leased or
licensed) or the nature or conduct of its respective business makes such
qualification necessary, except for those failures to be so qualified or in good
standing which will not in the aggregate have a material adverse effect on the
Company, the Operating Partnership and their respective subsidiaries, taken as a
whole. Each of the Company and the Operating Partnership has all requisite power
and authority, and all necessary consents, approvals, authorizations, orders,
registrations, qualifications, licenses and permits of and from all public,
regulatory or governmental agencies and bodies, to own, lease and operate its
properties and conduct its business as now being conducted and as described in
the Registration Statement and the Prospectus, except for the absence of which
individually or in the aggregate would not have a material adverse effect on the
Company, the Operating Partnership and their respective subsidiaries taken as a
whole, and no such consent, approval, authorization, order, registration,
qualification, license or permit contains a materially burdensome restriction
not adequately disclosed in the Registration Statement and the Prospectus.
(i) Each subsidiary of the Company or the Operating
Partnership has been duly organized and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation. Each
subsidiary of the Company or the Operating Partnership is duly qualified and in
good standing as a foreign corporation in each jurisdiction in which the
character or location of its properties (owned, leased or licensed) or the
nature or conduct of its business makes such qualification necessary, except for
those failures to be so qualified or in good standing which will not in the
aggregate have a material adverse effect on the Company, the Operating
Partnership and their respective subsidiaries, taken as a whole.
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Each subsidiary of the Company and the Operating Partnership has all requisite
power and authority, and all necessary consents, approvals, authorizations,
orders, registrations, qualifications, licenses and permits of and from all
public, regulatory or governmental agencies and bodies, to own, lease and
operate its properties and conduct its business as now being conducted and as
described in the Registration Statement and the Prospectus, except for the
absence of which individually or in the aggregate would not have a material
adverse effect on the Company, the Operating Partnership and their respective
subsidiaries taken as a whole, and no such consent, approval, authorization,
order, registration, qualification, license or permit contains a materially
burdensome restriction not adequately disclosed in the Registration Statement
and the Prospectus. All of the capital stock in each subsidiary of the Company
or the Operating Partnership has been duly and validly authorized and issued and
(except as described in the Prospectus) is owned directly or indirectly by the
Company or the Operating Partnership, as the case may be, free and clear of all
liens, encumbrances, equities or claims.
(j) Except as described in the Prospectus, there is no
litigation or governmental proceeding to which the Company, the Operating
Partnership or any of their respective subsidiaries is a party or to which any
property of the Company, the Operating Partnership or any of their respective
subsidiaries is subject or which is pending or, to the knowledge of the Company
and the Operating Partnership, contemplated against the Company, the Operating
Partnership or any of their respective subsidiaries which might result in any
material adverse change in the business, business prospects, properties,
operations, condition (financial or other) or, results of operations of the
Company, the Operating Partnership and their respective subsidiaries taken as a
whole, which might materially and adversely affect the transactions contemplated
by this Agreement or which is required to be disclosed in the Registration
Statement or the Prospectus or in any documents incorporated therein by
reference. The descriptions of litigation matters in the Base Prospectus under
the captions "Risk Factors -- Litigation Related to Consolidation" and "Risk
Factors -- Chapter 11 Reorganization of Partnership Consolidation by Senior
Management" and the descriptions of such matters incorporated by reference in
the Prospectus are complete and accurate in all material respects.
(k) Neither the Company nor the Operating Partnership has
taken or will take, directly or indirectly, any action designed to cause or
result in, or which constitutes or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the shares of
Common Stock to facilitate the sale or resale of the Shares.
(l) The financial statements, including the notes thereto, and
supporting schedules included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the consolidated financial position
of the Company, its subsidiaries and their predecessors in interests of the
dates indicated and the results of their operations for the periods specified;
except as otherwise stated in the Registration Statement, said financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis; the supporting schedules included in
the Registration Statement present fairly the information required to be stated
therein; and no other financial statements or supporting schedules are required
to be included in the Registration Statement. The Company's ratios of earnings
to fixed charges and ratios of earnings to combined fixed charges and preferred
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stock dividends included in the Base Prospectus under the caption "Ratio of
Earnings to Fixed Charges" and in Exhibit 12.1 to the Registration Statement
have been calculated in compliance with Item 503(d) of Regulation S-K of the
Securities Act Regulations. The financial data incorporated by reference in the
Prospectus and set forth in the Prospectus Supplement under the captions
"Selected Historical and Pro Forma Financial and Other Data" and
"Capitalization" fairly present the information set forth therein on a basis
consistent with that of the audited financial statements contained or
incorporated by reference in the Registration Statement; and the pro forma
condensed consolidated financial statements of the Company and the related notes
thereto incorporated by reference in the Prospectus and included under the
caption "Selected Historical and Pro Forma Financial and Other Data" and
elsewhere in the Prospectus and in the Registration Statement present fairly the
information contained therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial statements
and have been properly presented on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(m) Except as described in the Prospectus, no holder of
securities of the Company or the Operating Partnership has any rights to the
registration of securities of the Company or securities of the Operating
Partnership that are convertible, exchangeable or exercisable for securities of
the Company because of the filing of the Registration Statement or otherwise in
connection with the sale of the Shares contemplated hereby.
(n) Except as described in the Prospectus, the Company, the
Operating Partnership and their respective subsidiaries have good and marketable
title to all the properties and assets reflected as owned in the financial
statements referred to in Section 1(l) above or elsewhere in the Prospectus, in
each case free and clear of any security interests, mortgages, liens,
encumbrances, equities, claims and other defects, except such as are described
in the Prospectus and such as do not materially and adversely affect the value
of such property and do not materially interfere with the use made or proposed
to be made of such property by the Company, the Operating Partnership or any of
their respective subsidiaries. The real property, improvements, equipment and
personal property held under lease by the Company, the Operating Partnership or
their respective subsidiaries are held under valid, subsisting and enforceable
leases, with such exceptions as are not material and do not materially interfere
with the use made or proposed to be made of such real property, improvements,
equipment or personal property by the Company, the Operating Partnership or any
of their respective subsidiaries.
(o) The Company, the Operating Partnership and their
respective subsidiaries have filed all necessary federal, state and foreign
income and franchise tax returns and have paid all taxes required to be paid by
any of them and, if due and payable, any related or similar assessment, fine or
penalty levied against any of them, except insofar as the failure to file such
returns would not have a material adverse effect on the Company, the Operating
Partnership and their respective subsidiaries, taken as a whole. The Company,
the Operating Partnership and their respective subsidiaries have made adequate
charges, accruals and reserves in their respective financial statements in
respect of all federal, state and foreign income and franchise taxes for all
periods as to which the tax liability of the Company, the Operating Partnership
or any of their
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respective subsidiaries has not been finally determined, except to the extent of
any inadequacy that would not have a material adverse effect on the Company, the
Operating Partnership and their respective subsidiaries, taken as a whole.
(p) Except as described in the Prospectus, the Company, the
Operating Partnership and each of their respective subsidiaries are insured by
recognized financially sound and reputable institutions with policies in such
amounts and with such deductibles and covering such risks that the Company
believes are adequate to insure against potential losses, with such policies
including, but not limited to, policies covering real and personal property
owned or leased by the Company, the Operating Partnership or any of their
respective subsidiaries against theft, damage, destruction, acts of vandalism
and such other risks. Neither the Company nor the Operating Partnership has any
reason to believe that they or any of their respective subsidiaries will not be
able (i) to renew their existing insurance coverage as and when such policies
expire or (ii) to obtain comparable coverage from similar institutions as may be
necessary or appropriate to conduct their business as now conducted and at a
cost that would not result in a Material Adverse Change in the Company, the
Operating Partnership or any of their respective subsidiaries. Neither the
Company, the Operating Partnership nor any of their respective subsidiaries has
been denied any insurance coverage for which it has sought or applied.
(q) Except as otherwise disclosed in the Prospectus or as
would not, individually or in the aggregate, result in a Material Adverse Change
in the Company, the Operating Partnership and their respective subsidiaries,
taken as a whole, (i) neither the Company, the Operating Partnership nor any of
their respective subsidiaries is in violation of any federal, state, local or
foreign laws and regulations relating to pollution or protection of human health
or the environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including without
limitation, laws and regulations relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum and petroleum products
(collectively, "Materials of Environmental Concern"), or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environmental Concern (collectively,
"Environmental Laws"), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations required for
the operation of the business of the Company, the Operating Partnership or
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any of their respective subsidiaries under applicable Environmental Laws, or
noncompliance with the terms and conditions thereof, nor has the Company, the
Operating Partnership or any of their respective subsidiaries received any
written communication, whether from a governmental authority, citizens group,
employee or otherwise, that alleges that the Company, the Operating Partnership
or any of their respective subsidiaries is in any such violation; (ii) there is
no claim, action or cause of action filed with a court or governmental
authority, no investigation with respect to which the Company, the Operating
Partnership or any of their respective subsidiaries has received written notice,
and no written notice by any person or entity alleging potential liability for
investigatory costs, cleanup costs, governmental responses costs, natural
resources damages, property damages, personal injuries, attorneys' fees or
penalties arising out of, based on or resulting from the presence, or release
into the environment, or any Material of Environmental Concern at any location
owned, leased or operated by the Company, the Operating Partnership or any of
their respective subsidiaries, now or in the past (collectively, "Environmental
Claims"), pending or, to the best knowledge of the Company and the Operating
Partnership, threatened against the Company, the Operating Partnership or any of
their respective subsidiaries or, to the best knowledge of the Company or the
Operating Partnership, against any person or entity whose liability for any
Environmental Claim the Company, the Operating Partnership or any of their
respective subsidiaries has retained or assumed either contractually or by
operation of law; and (iii) to the best of knowledge of the Company and the
Operating Partnership, there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without limitation,
the release, emission, discharge, presence or disposal of any Material of
Environmental Concern, that reasonably could result in a violation of any
Environmental Law or form the basis of a potential Environmental Claim against
the Company, the Operating Partnership or any of their respective subsidiaries
or against any person or entity whose liability for any Environmental Claim the
Company, the Operating Partnership or any of their respective subsidiaries has
retained or assumed either contractually or by operation of law.
(r) In the ordinary course of their business, the Company and
the Operating Partnership conduct periodic reviews of the effect of
Environmental Laws on the business, operations and properties of the Company,
the Operating Partnership and their respective subsidiaries, in the course of
which they identify and evaluate associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review and the
amount of their established reserves, the Company and the Operating Partnership
have reasonably concluded that such associated costs and liabilities would not,
individually or in the aggregate, result in a Material Adverse Change in the
Company, the Operating Partnership and their respective subsidiaries, taken as a
whole.
(s) Except as otherwise described in the Prospectus, there are
no business relationships or related-party transactions of the type described in
Item 404 of Regulation S-K of the Commission involving the Company, the
Operating Partnership or any of their respective subsidiaries, except for such
transactions that would be considered immaterial under such Item 404. The
descriptions in the Prospectus Supplement under the caption "Certain
Relationships and Related Transactions" and the descriptions of such matters
incorporated by reference in the Prospectus are complete and accurate in all
material respects.
(t) The Company will elect to be taxed as a "real estate
investment trust" ("REIT") under the Internal Revenue Code of 1986, as amended
(the "Code"), effective beginning in its taxable year 1996. The Company has at
all times beginning on January 1, 1996 qualified for taxation as a REIT under
the Code and intends to continue to operate in such manner.
(u) The Common Stock (including the Shares) is registered
pursuant to Section 12(g) of the Exchange Act and is listed on the New York
Stock Exchange (the "NYSE"), and the Company has taken no action designed to, or
likely to have the effect of, terminating the registration of the Common Stock
under the Exchange Act or delisting the Common Stock from
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the NYSE, nor has the Company received any notification that the Commission or
the NYSE is contemplating terminating such registration or listing.
(v) Neither the Company, the Operating Partnership nor any of
their respective subsidiaries is, or, after giving effect to the issue and sale
of the Shares by the Company will be, an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940.
(w) The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied.
(x) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were filed with the Commission,
complied in all material respects with the requirements of the Exchange Act and
the rules and regulations of the Commission under the Exchange Act, and, when
read together with the other information in the Prospectus, at the respective
times the Registration Statement and any amendments thereto became effective, at
the date hereof and at the Closing Date, did not and do not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Any certificate signed by an officer of the Company or the
Operating Partnership and delivered to the Representatives or their counsel
shall be deemed to be a representation and warranty by the Company or the
Operating Partnership, as the case may be, as to the matters covered thereby.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants
and agreements herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to sell to the Underwriters and the Underwriters,
severally and not jointly, agree to purchase from the Company, at a purchase
price per share of $19.130175, the number of Firm Shares set forth opposite the
respective names of the Underwriters in Schedule I hereto plus any additional
number of Shares which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 9 hereof.
(b) Payment of the purchase price for, and delivery of
certificates for, the Shares shall be made at the office of Bear, Xxxxxxx & Co.
Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, or at such other place as shall be
agreed upon by you and the Company, at 10:00 A.M. on the third or fourth
business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless
postponed in accordance with the provisions of Section 9 hereof) following the
date of the effectiveness of the Registration Statement (or, if the Company has
elected to rely upon Rule 430A of the Regulations, the third or fourth business
day (as permitted under Rule 15c6-1 under the Exchange Act) after the
determination of the public offering price of the Shares), or such other time
not later than ten business days after such date as shall be agreed upon by you
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and the Company (such time and date of payment and delivery being herein called
the "Closing Date"). Payment shall be made to the Company by wire transfer in
same day funds, against delivery to you for the respective accounts of the
Underwriters of certificates for the Shares to be purchased by them.
Certificates for the Shares shall be registered in such name or names and in
such authorized denominations as you may request in writing at least 48 hours
prior to the Closing Date. The Company will permit you to examine and package
such certificates for delivery at least 24 hours prior to the Closing Date.
(c) In addition, the Company hereby grants to the Underwriters
the option to purchase up to 525,000 Additional Shares at the same purchase
price per share to be paid by the Underwriters to the Company for the Firm
Shares as set forth in this Section 2, for the sole purpose of covering
over-allotments in the sale of Firm Shares by the Underwriters. This option may
be exercised at any time, in whole or in part, on or before the thirtieth day
following the date of the Prospectus, by written notice by you to the Company.
Such notice shall set forth the aggregate number of Additional Shares as to
which the option is being exercised and the date and time, as reasonably
determined by you, when the Additional Shares are to be delivered (such date and
time being herein sometimes referred to as the "Additional Closing Date");
provided, however, that the Additional Closing Date shall not be earlier than
the Closing Date or earlier than the second full business day after the date on
which the option shall have been exercised nor later than the eighth full
business day after the date on which the option shall have been exercised
(unless such time and date are postponed in accordance with the provisions of
Section 9 hereof). Certificates for the Additional Shares shall be registered in
such name or names and in such authorized denominations as you may request in
writing at least 48 hours prior to the Additional Closing Date. The Company will
permit you to examine and package such certificates for delivery at least 24
hours prior to the Additional Closing Date.
(d) The number of Additional Shares to be sold to each
Underwriter shall be the number which bears the same ratio to the aggregate
number of Additional Shares being purchased as the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto (or such number
increased as set forth in Section 9 hereof) bears to the total number of Firm
Shares being purchased from the Company, subject, however, to such adjustments
to eliminate any fractional shares as you in your sole discretion shall make.
(e) Payment for the Additional Shares shall be made by wire
transfer in same day funds at the office Bear, Xxxxxxx & Co. Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, or such other location as may be mutually
acceptable, upon delivery of the certificates for the Additional Shares to you
for the respective accounts of the Underwriters.
3. Offering. Upon your authorization of the release of the Firm
Shares, the Underwriters propose to offer the Shares for sale to the public upon
the terms set forth in the Prospectus.
4. Covenants of the Company and the Operating Partnership. The
Company and the Operating Partnership jointly and severally covenant and agree
with the Underwriters that:
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(a) The Company will notify you immediately (and, if requested
by you, will confirm such notice in writing) (i) when any post-effective
amendment to the Registration Statement becomes effective, (ii) of any request
by the Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for any additional information, (iii) of the
mailing or the delivery to the Commission for filing of the Prospectus or any
amendment of or supplement to the Registration Statement or the Prospectus or
any document to be filed pursuant to the Exchange Act during any period when the
Prospectus is required to be delivered under the Securities Act, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto or of the
initiation, or the threatening, of any proceedings therefor, (v) of the receipt
of any comments or inquiries from the Commission, and (vi) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Shares for sale in any jurisdiction or the initiation or threatening of
any proceeding for that purpose. If the Commission shall propose or enter a stop
order at any time, the Company will make every reasonable effort to prevent the
issuance of any such stop order and, if issued, to obtain the lifting of such
order as soon as possible. The Company will not file any post-effective
amendment to the Registration Statement or any amendment of or supplement to the
Prospectus (including any revised prospectus which the Company proposes for use
by the Underwriters in connection with the offering of the Shares which differs
from the prospectus filed with the Commission pursuant to Rule 424(b) of the
Securities Act Regulations, whether or not such revised prospectus is required
to be filed pursuant to Rule 424(b) of the Securities Act Regulations) to which
the Representatives or Underwriters' Counsel (as hereinafter defined) shall
reasonably object, will furnish the Representatives with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which the Representatives or counsel
for the Underwriters shall reasonably object.
(b) If any event shall occur as a result of which the
Prospectus would, in the judgment of the Underwriters or the Company include an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if it shall
be necessary at any time to amend or supplement the Prospectus or Registration
Statement to comply with the Securities Act or the Securities Act Regulations,
or to file under the Exchange Act so as to comply therewith any document
incorporated by reference in the Registration Statement or the Prospectus or in
any amendment thereof or supplement thereto, the Company will notify you
promptly and prepare and file with the Commission an appropriate amendment or
supplement (in form and substance satisfactory to you) which will correct such
statement or omission or which will effect such compliance.
(c) The Company has delivered to you four signed copies of the
Registration Statement as originally filed, including exhibits and all documents
incorporated or deemed to be incorporated by reference therein and all
amendments thereto, and the Company will promptly deliver to each of the
Underwriters, from time to time during the period that the Prospectus is
required to be delivered under the Securities Act or the Exchange Act, such
number
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of copies of the Prospectus and the Registration Statement, and all amendments
of and supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation
with you, to qualify the Shares for offering and sale under the securities laws
relating to the offering or sale of the Shares of such jurisdictions as you may
designate and to maintain such qualification in effect for so long as required
for the distribution thereof; except that in no event shall the Company be
obligated in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process.
(e) The Company will make generally available (within the
meaning of Section 11(a) of the Securities Act) to its security holders and to
you as soon as practicable, but not later than 45 days after the end of its
fiscal quarter in which the first anniversary date of the effective date of the
Registration Statement occurs (or if such fiscal quarter is the Company's fourth
fiscal quarter, not later than 90 days after the end of such quarter), an
earnings statement (in form complying with the provisions of Rule 158 of the
Regulations) covering a period of at least twelve consecutive months beginning
after the effective date of the Registration Statement (as defined in Rule
158(c) under the Securities Act).
(f) During the period of 90 days from the date of the
Prospectus, the Company and the Operating Partnership will not, directly or
indirectly without your prior written consent, issue, sell, offer or agree to
sell, grant any option to purchase, or otherwise dispose (or announce any offer,
sale, grant of an option to purchase or other disposition) of, any shares of
Common Stock (or any securities convertible into, exchangeable or exercisable
for shares of Common Stock), other than (i) the Company's sale of Shares
hereunder and the Company's issuance of Common Stock upon the exercise of
presently outstanding stock options, (ii) the exchange of outstanding units in
the Operating Partnership for Common Stock, (iii) the issuance, in connection
with bona fide acquisitions of real property or interests therein, of shares of
Common Stock or units in the Operating Partnership such that the aggregate
number of shares of Common Stock issued, or which may be issued upon conversion
or exchange of such units, will not exceed 3,500,000 (the "Permitted
Securities"), provided, however, that as a precondition to any such issuance,
the Company or the Operating Partnership, as the case may be, shall obtain the
undertaking of each such holder that it will not engage in any of the
aforementioned transactions during the period of 90 days from the date of the
Prospectus and place on the face of any such Permitted Security a legend to that
effect.
(g) The Company will obtain the undertaking of each of its
officers and directors and such of its stockholders as have been heretofore
designated by you and listed on Schedule II attached hereto that, during the
period of 180 days from the date of the Prospectus, each of them will not,
directly or indirectly, without your prior written consent, issue, sell, offer
or agree to sell, grant any option to purchase, or otherwise dispose (or
announce any offer, sale, grant of an option to purchase or other disposition)
of, any shares of Common Stock (or any securities convertible into, exercisable
for or exchangeable for shares of Common Stock).
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(h) During a period of three years from the date of the
Prospectus, the Company will furnish to you copies of (i) all reports to its
stockholders; and (ii) all reports, financial statements and proxy or
information statements filed by the Company with the Commission or any national
securities exchange.
(i) The Company will apply the proceeds from the sale of the
Shares as set forth under "Use of Proceeds" in the Base Prospectus and the
Prospectus Supplement.
(j) Immediately following the execution of this Agreement, the
Company will prepare a prospectus supplement, dated the date hereof (the
"Prospectus Supplement"), containing the plan of distribution of the Shares and
such other information as may be required by the Securities Act or the
Securities Act Regulations or as the Representatives and the Company deem
appropriate, and will file or transmit for filing with the Commission in
accordance with Rule 424(b) of the Securities Act Regulations copies of the
Prospectus (including such Prospectus Supplement).
(k) If the Company elects to rely upon Rule 462(b), the
Company shall file the 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement, and the Company shall at the time of filing, either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Securities Act.
(l) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act or the Exchange Act, will file
all documents required to be filed with the Commission pursuant to Section 13,
14 or 15 of the Exchange Act within the time periods required by the Exchange
Act and the rules and regulations thereunder.
5. Payment of Expenses. Whether or not the transactions contemplated
in this Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of the
obligations of the Company hereunder, including those in connection with (i)
preparing, printing, duplicating, filing and distributing the Registration
Statement, as originally filed and all amendments thereof (including all
exhibits thereto), any Preliminary Prospectus, the Prospectus and any amendments
or supplements thereto (including, without limitation, fees and expenses of the
Company's accountants and counsel), the underwriting documents (including this
Agreement, the Agreement Among Underwriters and the Selling Agreement) and all
other documents related to the public offering of the Shares (including those
supplied to the Underwriters in quantities as hereinabove stated), (ii) the
issuance, transfer and delivery of the Shares to the Underwriters, including any
transfer or other taxes payable thereon, (iii) the qualification of the Shares
under state or foreign securities or Blue Sky laws, including the costs of
printing and mailing a preliminary and final "Blue Sky Memorandum" and the fees
of counsel in connection therewith and such counsel's disbursements in relation
thereto, (iv) listing the Shares on the NYSE, (v) filing fees of the Commission
and the National Association of Securities Dealers, Inc.(the "NASD"), (vi) the
cost
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of printing certificates representing the Shares and (vii) the cost and charges
of any transfer agent or registrar; provided, however, except as provided for in
Section 11, that the Company shall have no obligation to reimburse the
Underwriters or the Representatives for (a) fees, disbursements and
out-of-pocket expenses of counsel for the Underwriters or the Representatives
other than pursuant to clause (iii) above or (b) expenses in connection with the
offering that are customarily borne by the representatives in public offerings
of securities of real estate investment trusts.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject to the accuracy of the representations and
warranties of the Company and the Operating Partnership herein contained, as of
the date hereof and as of the Closing Date (for purposes of this Section 6
"Closing Date" shall refer to the Closing Date for the Firm Shares and any
Additional Closing Date, if different, for the Additional Shares), to the
absence from any certificates, opinions, written statements or letters furnished
to you or to Xxxxxx & Xxxxxxx ("Underwriters' Counsel") pursuant to this Section
6 of any misstatement or omission, to the performance by the Company and the
Operating Partnership of their respective obligations hereunder, and to the
following additional conditions:
(a) On the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
Securities Act or proceedings therefor initiated or threatened by the
Commission. The Prospectus (including the Prospectus Supplement referred to in
Section 4(j) hereof) shall have been filed or transmitted for filing with the
Commission pursuant to Rule 424(b) of the Securities Act Regulations within the
prescribed time period, and prior to Closing Date the Company shall have
provided evidence satisfactory to the Underwriters of such timely filing or
transmittal.
(b) On the Closing Date you shall have received the opinion of
Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company and the Operating Partnership,
dated the Closing Date addressed to the Underwriters and in form and substance
satisfactory to Underwriters' Counsel, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
State of Maryland.
(ii) The Company is duly qualified and in good standing
as a foreign corporation in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or
conduct of its business makes such qualification necessary, except for
those failures to be so qualified or in good standing which will not in
the aggregate have a material adverse effect on the Company, the Operating
Partnership and their respective subsidiaries, taken as a whole.
(iii) The Company has all requisite corporate power and
authority to own, lease and operate its properties and conduct its
business as now being conducted and as described in the Registration
Statement and the Prospectus.
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(iv) The Operating Partnership has been duly formed
under the laws of the State of California, with a stated term beyond the
term of the documents being executed in connection with the transactions
contemplated hereby; the partnership agreement of the Operating
Partnership has been duly authorized, executed and delivered by each
partner thereto and is valid, legally binding and enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and by the effect of general principles of equity; and
all of the partnership interests in the Operating Partnership have been
duly and validly authorized and issued and (except as described in the
Prospectus) are owned directly or indirectly by the Company free and clear
of all liens, encumbrances, equities or claims. All issued and outstanding
securities of the Operating Partnership have been duly and validly
authorized and issued in compliance with the federal and state securities
laws. The units of the Operating Partnership to be issued in connection
with the acquisitions described in the Prospectus Supplement under the
caption "Recent Activities" will be duly and validly issued in compliance
with the federal and state securities laws when issued in the manner
described in the Prospectus.
(v) The Operating Partnership has been duly qualified as
a foreign limited partnership and is in good standing in each jurisdiction
in which the character or location of its properties (owned, leased or
licensed) or the nature or conduct of its business makes such
qualification necessary, except for those failures to be so qualified or
in good standing which will not in the aggregate have a material adverse
effect on the Company, the Operating Partnership and their respective
subsidiaries, taken as a whole.
(vi) The Operating Partnership has all requisite power
and authority to own, lease and operate its properties and conduct its
business as now being conducted and as described in the Registration
Statement and the Prospectus.
(vii) Each subsidiary of the Company or the Operating
Partnership that is a "significant subsidiary" (as such term is defined in
Rule 1-02 of Regulation S-X of the Commission) (collectively, the
"Material Subsidiaries") has been duly organized and is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation.
(viii) Each Material Subsidiary is duly qualified and in
good standing as a foreign corporation in each jurisdiction in which the
character or location of its properties (owned, leased or licensed) or the
nature or conduct of its business makes such qualification necessary,
except for those failures to be so qualified or in good standing which
will not in the aggregate have a material adverse effect on the Company,
the Operating Partnership and their respective subsidiaries taken as a
whole.
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(ix) Each Material Subsidiary has all requisite power
and authority to own, lease and operate its properties and conduct its
business as now being conducted and as described in the Registration
Statement and the Prospectus.
(x) All of the capital stock or partnership units in
each Material Subsidiary has been duly and validly authorized and issued
and (except as described in the Prospectus) is owned directly or
indirectly by the Company or the Operating Partnership, as the case may
be, free and clear of all liens, encumbrances, equities or claims.
(xi) The Company has an authorized capital stock as set
forth in the Registration Statement and the Prospectus. All of the
outstanding shares of Common Stock are duly and validly authorized and
issued, are fully paid and nonassessable. The Shares to be delivered on
the Closing Date have been duly and validly authorized and, when delivered
by the Company in accordance with this Agreement, will be duly and validly
issued, fully paid and nonassessable and will not have been issued in
violation of or subject to any preemptive rights. The Common Stock, the
Firm Shares and the Additional Shares conform to the descriptions thereof
contained in the Registration Statement and the Prospectus.
(xii) The Common Stock currently outstanding is listed,
and the Shares to be sold under this Agreement to the Underwriters are
duly authorized for listing, on the NYSE.
(xiii) This Agreement and the transactions contemplated
herein have been duly and validly authorized by the Company and the
Operating Partnership and this Agreement has been duly and validly
executed and delivered by the Company and the Operating Partnership.
(xiv) To the best knowledge of such counsel and except
as described in the Prospectus, there is no litigation or governmental
proceeding to which the Company, the Operating Partnership or any of the
Material Subsidiaries is a party or to which any property of the Company,
the Operating Partnership or any of the Material Subsidiaries is subject
or which is pending or contemplated against the Company, the Operating
Partnership or any of the Material Subsidiaries which might result in any
material adverse change or any development involving a material adverse
change in the business, business prospects, properties, operations,
condition (financial or other) or results of operations of the Company,
the Operating Partnership and their respective subsidiaries taken as a
whole, which might materially and adversely affect the transactions
contemplated by this Agreement or which is required to be disclosed in the
Registration Statement and the Prospectus. The descriptions of litigation
matters in the Base Prospectus under the captions "Risk Factors --
Litigation Related to Consolidation" and "Risk Factors -- Chapter 11
Reorganization of Partnership Consolidation by Senior Management" are
complete and accurate in all material respects.
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(xv) The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby do
not and will not (A) conflict with or result in a breach of any of the
terms and provisions of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a default) under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company, the Operating Partnership or
any of the Material Subsidiaries pursuant to any agreement, instrument,
franchise, license or permit known to such counsel to which the Company,
the Operating Partnership or any of the Material Subsidiaries is a party
or by which any of such entities or their respective properties or assets
may be bound that is material to the Company, the Operating Partnership
and their subsidiaries, taken as a whole (collectively, the "Material
Contracts") or (B) violate or conflict with any provision of the
partnership agreement of the Operating Partnership, the certificate of
incorporation or by-laws of the Company or any of the Material
Subsidiaries, or, to the best knowledge of such counsel, any judgment,
decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over the
Company, the Operating Partnership or any of the Material Subsidiaries or
any of their respective properties or assets, except for those violations
or conflicts that would not have a material adverse effect on the Company,
the Operating Partnership and their subsidiaries, taken as a whole. To
such counsel's knowledge, no consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any
court or any public, governmental or regulatory agency or body having
jurisdiction over the Company, the Operating Partnership or any of the
Material Subsidiaries or any of their respective properties or assets is
required for the execution, delivery and performance of this Agreement or
the consummation of the transactions contemplated hereby, except for (A)
such as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters (as to which such counsel need express no opinion) and (B)
such as have been made or obtained under the Securities Act or the rules
of the NYSE.
(xvi) At the time the Registration Statement became
effective and on the date hereof, the Registration Statement and the
Prospectus as amended or supplemented (other than the financial statements
and schedules and other financial data included or incorporated by
reference therein, as to which no opinion need be rendered) complied and
comply as to form in all material respects with the requirements of the
Securities Act and the Securities Act Regulations.
(xvii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus (other than the financial
statements and schedules and other financial data included or incorporated
by reference therein, as to which no opinion need be rendered), at the
time they were filed with the Commission, complied as to form in all
material respects with the requirements of the Securities Act and the
Securities Act Regulations.
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(xviii) The Registration Statement, including any Rule
462(b) Registration Statement, is effective under the Securities Act, and,
to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any post-effective
amendment thereof or the Rule 462(b) Registration Statement has been
issued and no proceedings therefor have been initiated or threatened by
the Commission. Any required filing of the Prospectus and any supplement
thereto pursuant to Rule 424(b) under the Regulations has been made in the
manner and within the time period required by such Rule 424(b).
(xix) To the best knowledge of such counsel and except
as described in the Prospectus, no holder of securities of the Company or
the Operating Partnership has any rights to the registration of securities
of the Company or securities of the Operating Partnership that are
convertible, exchangeable or exercisable for securities of the Company
because of the filing of the Registration Statement or otherwise in
connection with the sale of the Shares contemplated hereby.
(xx) To the best knowledge of such counsel, there are no
business relationships or related party transactions of the nature
described in Item 404 of Regulation S-K of the Commission involving the
Company or the Operating Partnership, except as disclosed in the
Prospectus or except for such transactions that would be considered
immaterial under such Item. To the best knowledge of such counsel, the
descriptions in the Prospectus Supplement under the caption "Certain
Relationships and Related Transactions" (except for the financial or
numerical data included therein, as to which counsel need not render an
opinion) are accurate in all material respects.
(xxi) Commencing with its fiscal year ending December
31, 1996, the Company has been organized in conformity with the
requirements for qualification as a REIT and its method of operation
enables it to continue to meet the requirements for qualification and
taxation as a REIT under the Code, and the conversion rights of the
limited partners of the Operating Partnership or of other holders of
securities of the Operating Partnership will not cause the Company to fail
to satisfy the diversity test of Section 856(a)(6) of the Code.
(xxii) The Operating Partnership is properly treated (A)
as a partnership for federal income tax purposes and (B) not as an
association or publicly traded partnership taxable as a corporation.
(xxiii) Neither the Company, the Operating Partnership
nor any Material Subsidiary is, or, after giving effect to the issue and
sale of the Shares by the Company will be, an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940.
(xxiv) The statements in the Base Prospectus under the
captions "Risk Factors -- Certain Tax Risks", "Certain Provisions of the
Company's Charter and Bylaws" and "Federal Income Tax Consequences" and
(ii) in Item 15 of the Registration Statement, insofar as such statements
constitute matters of law, summaries of legal
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matters, the Company's charter or by-law provisions, legal documents or
legal proceedings, or legal conclusions, has been reviewed by such counsel
and, as of the date of the Prospectus Supplement and as of the date
hereof, fairly present and summarize, in all material respects, the
matters referred to therein.
(xxv) In addition, such opinion shall also contain a
statement that such counsel has participated in conferences with officers
and representatives of the Company and the Operating Partnership,
representatives of the independent public accountants for the Company and
the Operating Partnership and the Underwriters at which the contents of
the Registration Statement and the Prospectus and related matters were
discussed and, although they are not passing upon, and do not assume any
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus or
incorporated therein by reference, and they have not made any independent
check or verification thereof, on the basis of the foregoing, no facts
have come to the attention of such counsel which would lead such counsel
to believe that either the Registration Statement at the time it became
effective (including the information incorporated therein by reference or
deemed to be part of the Registration Statement, as amended (except for
financial statements and schedules and other financial statistical data
included therein, as to which such counsel need make no statement) or any
subsequent amendment thereof made prior to the Closing Date as of the date
of such amendment, contained an untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, including the documents incorporated or deemed to be
incorporate therein, (except for financial statements and schedules and
other financial or statistical data included or incorporated by reference
therein, as to which counsel need make no statement) as of its date (or
any subsequent amendment thereof or subsequent supplement thereto made
prior to the Closing Date as of the date of such amendment or supplement)
and as of the Closing Date contained or contains an untrue statement of a
material fact or omitted or omits to state any material fact required to
be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters involving
the application of laws other than the laws of the United States,
California and any other jurisdictions in which they are admitted, to the
extent such counsel deems proper and to the extent specified in such
opinion, if at all, upon an opinion or opinions (in form and substance
reasonably satisfactory to Underwriters' Counsel) of other counsel
reasonably acceptable to Underwriters' Counsel, familiar with the
applicable laws; provided, that such opinion shall expressly state that
the Underwriters may rely on such opinion as if it were addressed to them.
In rendering such opinion, such counsel may rely as to matters of fact, to
the extent they deem proper, on certificates of responsible officers of
the Company and the Operating Partnership and certificates or other
written statements of officers of departments of various jurisdictions
having custody of documents respecting the existence or good standing of
the Company, the Operating Partnership and their respective subsidiaries,
provided that copies of any such statements or certificates shall be
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delivered to Underwriters' Counsel and such opinion shall state that such
counsel and the Underwriters are justified in so relying upon any such
certificate. The opinion of such counsel for the Company shall state that
the opinion of any such other counsel is in form satisfactory to such
counsel and, in their opinion, you and they are justified in relying
thereon.
(c) All proceedings taken in connection with the sale of the
Firm Shares and the Additional Shares as herein contemplated shall be
satisfactory in form and substance to you and to Underwriters' Counsel, and the
Underwriters shall have received from said Underwriters' Counsel a favorable
opinion, dated as of the Closing Date with respect to the issuance and sale of
the Shares, the Registration Statement and the Prospectus and such other related
matters as you may reasonably require, and the Company shall have furnished to
Underwriters' Counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(d) At the Closing Date you shall have received a certificate
of the Chief Executive Officer and Chief Financial Officer of the Company on
behalf of the Company and as the sole general partner of the Operating
Partnership, dated the Closing Date to the effect that (i) the condition set
forth in subsection (a) of this Section 6 has been satisfied, (ii) as of the
date hereof and as of the Closing Date the representations and warranties of the
Company and the Operating Partnership set forth in Section 1 hereof are
accurate, (iii) as of the Closing Date the obligations of the Company and the
Operating Partnership to be performed hereunder on or prior thereto have been
duly performed and (iv) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, the
Company, the Operating Partnership and their respective subsidiaries have not
sustained any material loss or interference with their respective businesses or
properties from fire, flood, hurricane, accident or other calamity, whether or
not covered by insurance, or from any labor dispute or any legal or governmental
proceeding, and there has not been any material adverse change, or any
development involving a material adverse change, in the business prospects,
properties, operations, condition (financial or otherwise), or results of
operations of the Company, the Operating Partnership and their respective
subsidiaries taken as a whole, except in each case as described in or
contemplated by the Prospectus.
(e) At the time this Agreement is executed and at the Closing
Date, you shall have received a letter, from Xxxxxx Xxxxxxxx LLP, independent
public accountants for the Company, dated, respectively, as of the date of this
Agreement and as of the Closing Date addressed to the Underwriters and in form
and substance satisfactory to you, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to financial statements and certain information of the Company and its
subsidiaries contained or incorporated by reference in the Registration
Statement and the Prospectus.
(f) Prior to the Closing Date the Company and the Operating
Partnership shall have furnished to you such further information, certificates
and documents as you may reasonably request.
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(g) You shall have received from each person who is a director
or officer of the Company or such stockholder as have been heretofore designated
by you and listed on Schedule II hereto an agreement to the effect that such
person will not, directly or indirectly, without your prior written consent,
issue, sell, offer or agree to sell, grant any option to purchase, or otherwise
dispose (or announce any offer, sale, grant of an option to purchase or other
disposition) of, any shares of Common Stock (or any securities convertible into,
exchangeable or exercisable for shares of Common Stock) for a period of 180 days
after the date of the Prospectus.
(h) At the Closing Date, the Shares shall have been approved
for listing on the NYSE.
(i) At the Closing Date, you shall have received the opinion
of Xxxxx X. Xxxxxx, General Counsel of the Company, dated the Closing Date
addressed to the Underwriters and in form and substance satisfactory to
Underwriters' Counsel, to the effect that:
(i) The statements in the Base Prospectus under the
captions "Risk Factors -- Risks Associated with Acquisitions -- Assumption
of General Partner Liabilities", "Risk Factors -- Risks Relating to Real
Estate -- Management, Leasing and Brokerage Risks; Lack of Control of
Associated Companies", "Risk Factors -- Risks Relating to Real Estate --
Environmental Matters", "Risk Factors -- Risks Relating to Real Estate --
Potential Liability Under the Americans with Disabilities Act", "Risk
Factors -- Limitation on Ownership of Common Stock May Preclude
Acquisition of Control", "Risk Factors -- Additional Capital
Requirements", "Description of Preferred Stock", "Description of Common
Stock", "Description of Warrants" and "Plan of Distribution" and the
statements in the Prospectus Supplement under the captions "The Company,"
"Recent Activities", "Price Range of Common Stock and Distribution
History", "Management's Discussion and Analysis of Financial Condition and
Results of Operations," "Recent Activities," "Management," "Certain
Relationships and Related Transactions" and "Underwriting", insofar as
such statements constitute matters of law, summaries of legal matters, the
Company's charter or by-law provisions, legal documents or legal
proceedings, or legal conclusions, has been reviewed by such counsel and
fairly present and summarize, in all material respects, the matters
referred to therein.
(ii) In addition, such opinion shall also contain a
statement that such counsel has participated in conferences with officers
and representatives of the Company and the Operating Partnership,
representatives of the independent public accountants for the Company and
the Operating Partnership and the Underwriters at which the contents of
the Registration Statement and the Prospectus and related matters were
discussed and, no facts have come to the attention of such counsel which
would lead such counsel to believe that either the Registration Statement
at the time it became effective (including the information incorporated
therein by reference or deemed to be part of the Registration Statement,
as amended (except for financial statements and schedules and other
financial statistical data included or incorporated by reference
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therein, as to which such counsel need make no statement), or any
subsequent amendment thereof made prior to the Closing Date as of the date
of such amendment, contained an untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, including the information incorporated or deemed to be
incorporated therein, (except for financial statements and schedules and
other financial or statistical data included therein, as to which counsel
need make no statement) as of its date (or any subsequent amendment
thereof or subsequent supplement thereto made prior to the Closing Date as
of the date of such amendment or supplement) and as of the Closing Date
contained or contains an untrue statement of a material fact or omitted or
omits to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no belief or opinion with
respect to the financial statements and schedules and other financial data
included therein).
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 6 shall not be in all material
respects reasonably satisfactory in form and substance to you and to
Underwriters' Counsel, all obligations of the Underwriters hereunder may be
canceled by you at, or at any time prior to, the Closing Date and the
obligations of the Underwriters to purchase the Additional Shares may be
canceled by you at, or at any time prior to, the Additional Closing Date. Notice
of such cancellation shall be given to the Company in writing, or by telephone,
telex or telegraph, confirmed in writing.
7. Indemnification.
(a) The Company and the Operating Partnership, jointly and
severally, agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act against any and all
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, as originally filed or any amendment thereof, or any
related Preliminary Prospectus, preliminary prospectus supplement or the
Prospectus, or in any supplement thereto or amendment thereof, or arise out of
or are based upon the omission or alleged
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omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
neither the Company nor the Operating Partnership will be liable in any such
case (i) to the extent but only to the extent that any such loss, liability,
claim, damage or expense arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company or the Operating Partnership by or on behalf of any Underwriter
through you expressly for use therein and (ii) with respect to any Preliminary
Prospectus or preliminary prospectus supplement to the extent that any such
loss, claim, damage or liability results from the fact that an Underwriter sold
Shares to a person as to whom there was not sent or given, at or prior to
written confirmation of such sale, a copy of the Prospectus or Prospectus
Supplement as then amended or supplemented in any case where such delivery is
required by the Securities Act if the Company has previously furnished copies
thereof to such Underwriter and the loss, claim, damage or liability of the
Underwriters results from an untrue statement or omission of a material fact
contained in the Preliminary Prospectus or preliminary prospectus supplement
which was corrected in the Prospectus or Prospectus Supplement as then amended.
This indemnity agreement will be in addition to any liability which the Company
and the Operating Partnership may otherwise have including under this Agreement.
(b) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the Company,
each of the officers of the Company who shall have signed the Registration
Statement, the Operating Partnership and each other person, if any, who controls
the Company or the Operating Partnership within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, against any losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, as
originally filed or any amendment thereof, or any related Preliminary
Prospectus, preliminary prospectus supplement or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company or the Operating Partnership by or on behalf of any Underwriter
through you expressly for use therein; provided, however, that in no case shall
any Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder. This indemnity will be in addition to any liability which any
Underwriter may otherwise have including under this Agreement. The Company and
the Operating Partnership acknowledge that the statements set forth in the last
paragraph of the outside front cover, the stabilization language on the inside
front cover and the statements set forth in the second paragraph under the
caption "Underwriting" in the Prospectus Supplement constitute the only
information furnished in writing by or on behalf of any Underwriter expressly
for use in the Registration Statement, as originally filed or in any amendment
thereof, any related Preliminary Prospectus or preliminary
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prospectus supplement or the Prospectus or in any amendment thereof or
supplement thereto, as the case may be.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7, except to the extent that it
has been prejudiced in any material respect by such failure or from any
liability that it may have otherwise). In case any such action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties. Anything in
this subsection to the contrary notwithstanding, an indemnifying party shall not
be liable for any settlement of any claim or action effected without its written
consent; provided, however, that such consent was not unreasonably withheld.
8. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 7 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company, the
Operating Partnership and the Underwriters shall contribute to the aggregate
losses, claims, damages, liabilities and expenses of the nature contemplated by
such indemnification provision (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claims asserted, but after deducting in the
case of losses, claims, damages, liabilities and expenses suffered by the
Company or the Operating Partnership any contribution received by the Company or
the Operating Partnership from persons, other than the Underwriters, who may
also be liable for contribution, including persons who control the Company or
the Operating Partnership within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act, officers of the Company who signed the
Registration Statement and directors of the Company) as incurred to which the
Company, the Operating Partnership and one or more of the Underwriters may be
subject, in such proportions as is appropriate to reflect the relative benefits
received by the Company, the Operating Partnership and the Underwriters from the
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offering of the Shares or, if such allocation is not permitted by applicable law
or indemnification is not available as a result of the indemnifying party not
having received notice as provided in Section 7 hereof, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company, the Operating Partnership and the
Underwriters in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, 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 shall be deemed to be in the same proportion as (x) the total proceeds from
the offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and (y) the underwriting discounts and
commissions received by the Underwriters, respectively, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault of
the Company, the Operating Partnership, and the Underwriters shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, the Operating
Partnership, or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Operating Partnership and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above. Notwithstanding
the provisions of this Section 8, (i) in no case shall any Underwriter be liable
or responsible for any amount in excess of the underwriting discount applicable
to the Shares purchased by such Underwriter hereunder, and (ii) 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. Notwithstanding the provisions of
this Section 8 and the preceding sentence, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. For purposes of this Section 8, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act shall have the same rights
to contribution as such Underwriter, and each person, if any, who controls the
Company or the Operating Partnership within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company or the
Operating Partnership, as the case may be, subject in each case to clauses (i)
and (ii) of this Section 8. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 8 or otherwise. No party
shall be liable for contribution with respect to any action or claim settled
without its consent; provided, however, that such consent was not unreasonably
withheld.
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9. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or
their obligation to purchase Firm Shares or Additional Shares hereunder, and if
the Firm Shares or Additional Shares with respect to which such default relates
do not (after giving effect to arrangements, if any, made by you pursuant to
subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares
or Additional Shares, the Firm Shares or Additional Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase shall be
purchased by the non-defaulting Underwriters in proportion to the respective
proportions which the numbers of Firm Shares set forth opposite their respective
names in Schedule I hereto bear to the aggregate number of Firm Shares set forth
opposite the names of the non-defaulting Underwriters.
(b) In the event that such default relates to more than 10% of
the Firm Shares or Additional Shares, as the case may be, you may in your
discretion arrange for yourself or for another party or parties (including any
non-defaulting Underwriter or Underwriters who so agree) to purchase such Firm
Shares or Additional Shares, as the case may be, to which such default relates
on the terms contained herein. In the event that within 5 calendar days after
such a default you do not arrange for the purchase of the Firm Shares or
Additional Shares, as the case may be, to which such default relates as provided
in this Section 9, this Agreement, or in the case of a default with respect to
the Additional Shares, the obligations of the Underwriters to purchase and of
the Company to sell the Additional Shares, shall thereupon terminate, without
liability on the part of the Company with respect thereto (except in each case
as provided in Section 5, 7(a) and 8 hereof) or the Underwriters, but nothing in
this Agreement shall relieve a defaulting Underwriter or Underwriters of its or
their liability, if any, to the other Underwriters and the Company for damages
occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Additional Shares to
which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
you or the Company shall have the right to postpone the Closing Date or
Additional Closing Date, as the case may be for a period, not exceeding five
business days, in order to effect whatever changes may thereby be made necessary
in the Registration Statement or the Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment or
supplement to the Registration Statement or the Prospectus which, in the opinion
of Underwriters' Counsel, may thereby be made necessary or advisable. The term
"Underwriter" as used in this Agreement shall include any party substituted
under this Section 9 with like effect as if it had originally been a party to
this Agreement with respect to such Firm Shares or Additional Shares.
10. Survival of Representations and Agreements. All representations
and warranties, covenants and agreements of the Underwriters, the Company and
the Operating Partnership contained in this Agreement, including the agreements
contained in Section 5, the indemnity agreements contained in Section 7 and the
contribution agreements contained in Section 8, shall remain operative and in
full force and effect regardless of any investigation made
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by or on behalf of any Underwriter or any controlling person thereof or by or on
behalf of the Company, any of its officers and directors, the Operating
Partnership or any controlling person of the Company or the Operating
Partnership, and shall survive delivery of and payment for the Shares to and by
the Underwriters. The representations contained in Section 1 and the agreements
contained in Sections 5, 7, 8 and 11(d) hereof shall survive the termination of
this Agreement, including termination pursuant to Section 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the execution
of this Agreement.
(b) You shall have the right to terminate this Agreement at
any time prior to the Closing Date or the obligations of the Underwriters to
purchase the Additional Shares at any time prior to the Additional Closing Date,
as the case may be, if (A) any domestic or international event or act or
occurrence has materially disrupted, or in your opinion will in the immediate
future materially disrupt, the market for the Company's securities or securities
in general; or (B) if trading on the NYSE or the American Stock Exchange shall
have been suspended, or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been required, on
the NYSE or the American Stock Exchange by such exchanges or by order of the
Commission or any other governmental authority having jurisdiction; or (C) if a
banking moratorium has been declared by a state or federal authority or if any
new restriction materially adversely affecting the distribution of the Firm
Shares or the Additional Shares, as the case may be, shall have become
effective; or (D) there shall have occurred any Material Adverse Change with
respect to the Company, the Operating Partnership and their respective
subsidiaries taken as a whole; or (E) (i) if the United States becomes engaged
in hostilities or there is an escalation of hostilities involving the United
States or there is a declaration of a national emergency or war by the United
States or (ii) if there shall have been such change in political, financial or
economic conditions if the effect of any such event in (i) or (ii) as in your
judgment makes it impracticable or inadvisable to proceed with the offering,
sale and delivery of the Firm Shares or the Additional Shares, as the case may
be, on the terms contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 11
shall be by telephone, telex, or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any of
the provisions hereof (otherwise than pursuant to Section 9(b) or 11(b) hereof),
or if the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof, the
Company will, subject to demand by you, reimburse the Underwriters for all
out-of-pocket expenses (including the fees and expenses of their counsel),
incurred by the Underwriters in connection herewith.
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12. Notices. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing and , if sent to
any Underwriter, shall be mailed, delivered, or telexed or telegraphed and
confirmed in writing, to such Underwriter c/o Bear, Xxxxxxx & Co. Inc., 000
Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000, Attention: Xxxxx Xxxxxx; if sent to the
Company, shall be mailed, delivered, or telegraphed and confirmed in writing
to the Company, 000 Xxxxx Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX
00000-0000, Attention: Xxxxx Xxxxxx.
13. Parties. This Agreement shall inure solely to the benefit of,
and shall be binding upon, the Underwriters, the Company, the Operating
Partnership and the controlling persons, directors, officers, employees and
agents referred to in Section 7 and 8, and their respective successors and
assigns, and no other person shall have or be construed to have any legal or
equitable right, remedy or claim under or in respect of or by virtue of this
Agreement or any provision herein contained. The term "successors and assigns"
shall not include a purchaser, in its capacity as such, of Shares from any of
the Underwriters.
14. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, but without regard to
principles of conflicts of law.
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If the foregoing correctly sets forth the understanding among you,
the Company and the Operating Partnership, please so indicate in the space
provided below for that purpose, whereupon this letter shall constitute a
binding agreement among us.
Very truly yours,
GLENBOROUGH REALTY TRUST INCORPORATED
By________________________________
Name_____________________________
Title____________________________
GLENBOROUGH PROPERTIES, L.P.
By Glenborough Realty Trust Incorporated
Its General Partner
By________________________________
Name_____________________________
Title____________________________
Accepted as of the date first above written
BEAR, XXXXXXX & CO. INC.
XXXXXXXXX, XXXXXXXX & COMPANY LLC
XXXXXXXXX & COMPANY, INC.
On behalf of themselves and the other Underwriters named
in Schedule I hereto.
BEAR, XXXXXXX & CO. INC.
By ________________________________
Name_____________________________
Title____________________________
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SCHEDULE I
Number of Firm
Name of Underwriter Shares to be Purchased
--------------------------------------------------------------------------------
Bear, Xxxxxxx & Co. Inc. . . . . . . . . . . . . . . . . . . 1,200,000
Xxxxxxxxx, Xxxxxxxx & Company LLC . . . . . . . . . . . . . . 1,200,000
Xxxxxxxxx & Company, Inc. . . . . . . . . . . . . . . . . . . 600,000
X.X. Xxxxxxx & Sons, Inc. . . . . . . . . . . . . . . . . . . 100,000
X.X. Xxxxxx Securities Inc. . . . . . . . . . . . . . . . . . 100,000
PaineWebber Incorporated . . . . . . . . . . . . . . . . . . 100,000
Xxxxxxx and X. Xxxxxxxxxxxx, Inc. . . . . . . . . . . . . . . 50,000
Crutenden Xxxx Incorporated . . . . . . . . . . . . . . . . . 50,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated. . . . . . . . . . . . . 50,000
The Shemano Group, Inc. . . . . . . . . . . . . . . . . . . . 50,000
---------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,500,000
=========
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SCHEDULE II
GPA, Ltd.
