Exhibit 1.1
$25,000,000 of 7.10% Senior Notes due September 15, 2006
$25,000,000 of 7.20% Senior Notes due September 15, 2008
$25,000,000 of 7.30% Senior Notes due September 15, 2010
UNDERWRITING AGREEMENT
September 22, 1997
PAINEWEBBER INCORPORATED
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
Western Investment Real Estate Trust, a business trust organized under
the laws of the State of California (the "Company), confirms its agreement
with PaineWebber Incorporated, as underwriter (the "Underwriter"), as follows:
1. DESCRIPTION OF SECURITIES. The Company proposes to issue and sell to
you the principal amount of its debt securities identified on Schedule A
hereto (the "Securities") to be issued under an Indenture, dated September 1,
1997, as supplemented by Supplemental Indenture No. 1, Supplemental Indenture
No. 2 and Supplemental Indenture No. 3 (as supplemented, the "Indenture"),
between the Company and the Bank of New York, as trustee (the "Trustee").
2. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to and agrees with you that:
(i) A registration statement on Form S-3 (File No. 333-32721) with
respect to the Securities being offered by the Company, including a
prospectus, has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act") and the
rules and regulations (the "1933 Act Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder, and has
been field with the Commission and has been declared effective. Such
registration statement and prospectus may have been amended or supplemented
prior to the date of this Underwriting Agreement; any such amendment or
supplement was so prepared and filed, and any such amendment filed after the
effective date of such registration statement has been declared effective.
No stop order suspending the effectiveness of the registration statement has
been issued and no proceeding for that purpose has been instituted or
threatened by the Commission. A prospectus supplement (the "Prospectus
Supplement") setting forth the terms of the offering, sale and plan of
distribution of the Securities being offered by the Company and additional
information concerning the Company and its business has been or will be so
prepared and will be filed pursuant to Rule 424(b) of the 1933 Act Rules and
Regulations on or before the second business
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day after the date hereof (or such earlier time as may be required by the
1933 Act Rules and Regulations). Copies of such registration statement and
prospectus, any such amendments or supplements and all documents incorporated
by reference therein that were filed with the Commission on or prior to the
date of this Underwriting Agreement have been delivered or made available to
you and your counsel. Such registration statement, as it may have heretofore
been amended, is referred to herein as the "Registration Statement," and the
final form of prospectus included in the Registration Statement, as
supplemented by the Prospectus Supplement, is referred to herein as the
"Prospectus." Any reference herein to the Registration Statement, the
Prospectus, any preliminary prospectus or any amendment or supplement thereto
shall be deemed to refer to and include the documents incorporated by
reference therein, and any reference herein to the terms "amend, "amendment"
or "supplement" with respect to the Registration Statement, Prospectus or any
preliminary prospectus shall be deemed to refer to and include the filing
after the execution hereof of any document with the Commission deemed to be
incorporated by reference therein. For purposes of this Underwriting
Agreement, all references to the Registration Statement, the Prospectus, any
preliminary prospectus or any amendment or supplement thereto shall be deemed
to include any copy filed with the Commission pursuant to its Electronic Data
Gathering Analysis and Retrieval System (XXXXX), and such copy shall be
identical to any Prospectus delivered to you for use in connection with the
offering of the Securities by the Company.
(ii) Each part of the Registration Statement (excluding any
prospectus supplement with respect to an offering of securities other than
the offering of the Securities contemplated hereby), when such part became
or becomes effective, and the Prospectus and any amendment or supplement to
such Registration Statement or such Prospectus, on the date of filing thereof
with the Commission and at the Closing Date (as hereinafter defined)
conformed or will conform in all material respects with the requirements of
the Act and the 1933 Act Rules and Regulations; the Indenture, on the date of
filing hereof with the Commission and at the Closing Date (as hereinafter
defined) conformed or will conform in all material respects with the
requirements of the Trust Indenture Act of 1939, as amended, and the rules
and regulations of the Commission thereunder (the "TIA"), each part of the
Registration Statement (excluding any prospectus supplement with respect to
an offering of securities other than the offering of the Securities
contemplated hereby), when such part became or becomes effective did not or
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus and any amendment or
supplement thereto, on the date of filing thereof with the Commission and at
the Closing Date did not or 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; except that the foregoing shall not apply to (i) that
part of the Registration Statement which constitutes the Statement of
Eligibility and Qualification under the TIA (the "Form T-1") and (ii)
statements in, or omissions from, any such document in reliance upon, and in
conformity with, written information concerning the Underwriter that was
furnished to the Company by the Underwriter specifically for use in the
preparation thereof.
(iii) The documents incorporated by reference in the
Registration Statements, the Prospectus and any amendment or supplement to
such Registration Statement or such Prospectus, when they became or become
effective under the Act or were or are filed with the Commission under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as the case
may be, conformed or will conform in all material respects with the
requirements of the Act, the
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1933 Act Rules and Regulations, the Exchange Act and the rules and
regulations of the Commission thereunder (the "Exchange Act Rules and
Regulations"), as applicable.
(iv) The consolidated financial statements of the Company, together
with the related schedule, and notes thereto, set forth or included or
incorporated by reference in the Registration Statement and Prospectus fairly
present, in all material respects, the financial condition of the Company and
its consolidated subsidiaries as of the dates indicated and the results of
operations, changes in financial position, stockholder' equity and cash flows
for the periods therein specified, in conformity with generally accepted
accounting principles ("GAAP") consistently applied throughout the periods
involved (except as otherwise stated therein and except for changes in GAAP).
In addition, any pro forma financial statements of the Company, and the
related notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus present fairly, in all material
respects, the information provided therein, have been prepared in accordance
with the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the basis described
therein, and the assumptions used in the preparation thereof are reasonable
and the adjustments made therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(v) KPMG Peat Marwick LLP, whose reports are incorporated by
reference in the Registration Statement, are and, during the periods covered
by their reports, were independent public accountants as required by the Act
and the 1933 Act Rules and Regulations.
(vi) The only subsidiaries (as defined in the 1933 Act Rules and
Regulations) of the Company are the subsidiaries listed on Schedule B hereto
(the "Subsidiaries"). The Company and each of its Subsidiaries has been duly
incorporated or formed, as the case may be, and is an existing corporation,
general or limited partnership or other business entity, as the case may be,
in good standing under the laws of its jurisdiction of incorporation or
formation, as the case may be. The Company and each of its Subsidiaries has
full power and authority (corporate and other) to conduct its business as
described in the Registration Statement and Prospectus, and is duly qualified
or registered to do business in each jurisdiction in which it owns or leases
real property or in which the conduct of its business requires such
qualification or registration, except where the failure to be so qualified or
registered, considering all such cases in the aggregate, would not have a
material adverse affect on the business, properties, financial position or
results of operations of the Company and its Subsidiaries taken as a whole;
and, other than the Subsidiaries, the Company owns no stock or other
beneficial interest in any corporation, partnership, joint venture or other
business entity which is a controlling interest in such entity or which
interests are, individually or collectively, material to the Company and its
Subsidiaries on a consolidated basis.
(vii) All of the issued and outstanding capital stock or
ownership interest of each Subsidiary has been duly authorized and validly
issued, is fully paid and nonassessable and, is wholly owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(viii) The Company's authorized, issued and outstanding debt and
shareholders' equity as set forth under the caption "Capitalization" in the
Prospects Supplement was and will be correct as of the dates of such
information. All of the issued and outstanding shares of capital stock of the
Company have been duly authorized and are validly issued, fully paid and
nonassessable by the Company and conform to the description thereof in the
Prospectus.
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(ix) The Securities will be, as of the Closing Date, duly authorized
by the Company for issuance and sale pursuant to this Underwriting Agreement
and the Indenture, and when duly authenticated and delivered by the Trustee
in accordance with the terms of the Indenture (assuming the due
authorization, execution and delivery of the Indenture by the Trustee), and
delivered to, and paid for by, the Underwriter pursuant to this Underwriting
Agreement, will be valid and legally binding obligations of the Company
entitled to the benefit of the Indenture and will be enforceable against the
Company in accordance with their terms, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, (b) general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or law), and (c)
the discretion of the court before which any proceeding therefor may be
brought (clauses (a), (b) and (c) are collectively referred to as the
"Enforceability Limitations"); the Indenture has been duly qualified under
the TIA and prior to the issuance of the Securities will be duly authorized,
executed and delivered by the Company, and assuming due authorization,
execution and delivery thereof by the Trustee, will constitute a valid and
legally binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject to the Enforceability Limitations; the
Securities and the Indenture will conform in all material respects to the
statements relating thereto contained in the Prospectus; and the Securities
are, in all material respects, in the form contemplated by the Indenture.
(x) Except as contemplated in the Prospectus, subsequent to the
later of (a) the respective dates as of which information is given in the
Registration Statement and the Prospectus, or (b) the date as of which
information is incorporated therein, the Company and its Subsidiaries have
not incurred any liabilities or obligations, direct or contingent, or entered
into any transactions, not in the ordinary course of business, that are
material to the Company and its Subsidiaries on a consolidated basis, there
has not been any material change in the capital stock or structure,
short-term debt or long-term debt of the Company or any material adverse
change in the capital stock or structure, short-term debt or long-term debt
of the Subsidiaries, or any material adverse change or any development that
is reasonably likely to involve a prospective material adverse change, in the
condition (financial or other), business, prospects, net worth or results of
operations of the Company and its Subsidiaries on a consolidated basis and,
except for regular distributions with respect to the Company's common shares
of beneficial interest, no par value (the "Common Stock"), in amounts per
share that are consistent with past practice or the Company's declaration of
trust or by-laws, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(xi) Except as set forth in the Prospectus, there is not pending or,
to the knowledge of the Company, threatened any action, suit or proceeding to
which the Company or any of its Subsidiaries is a party, or that any of its
properties or other assets is the subject of, before or by any court or
governmental agency or body, that is reasonably likely to result in any
material adverse change in the condition (financial or other), business,
prospects, net worth or results of operations of the Company and its
Subsidiaries on a consolidated basis.
(xii) During the period of at least the last 36 calendar months
prior to the date of this Underwriting Agreement, the Company has timely
filed with the Commission all documents and other material required to be
filed pursuant to Sections 13, 14 and 15(d) under the Exchange Act.
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(xiii) There are no contracts or documents of the Company that
are required to be filed as exhibits to the Registration Statement or to any
of the documents incorporated by reference therein by the Act or the Exchange
Act or by the rules and regulations of the Commissions thereunder that have
not been so filed.
(xiv) This Underwriting Agreement and the Indenture have been
duly authorized, executed and delivered by the Company.
(xv) The execution of this Underwriting Agreement and the Indenture
and the consummation of the transactions contemplated herein and therein will
not result in a breach or violation of any of the terms and provisions of, or
constitute a default under, (i) any agreement or instrument to which the
Company or its Subsidiaries is a party or by which they are bound or to which
any of the property or other assets of the Company or its Subsidiaries are
subject, except where such default(s) would not have a material adverse
effect or the Company and its Subsidiaries on a consolidated basis, (ii) the
declaration of trust, by-laws, certificate of general or limited partnership,
partnership agreement or other organizational document, as applicable, of the
Company or its Subsidiaries, or (iii) any statute, order, rule or regulation
of any court of governmental agency or body having jurisdiction over the
Company or its Subsidiaries or any of their properties or other assets; no
consent, approval, authorization or order of, or filing with, any court or
governmental agency or body is required for the consummation of the
transactions contemplated by this Underwriting Agreement and the Indenture in
connection with the issuance or sale of the Securities being offered by the
Company, except such as may be required under the Act, the TIA and applicable
state securities laws (if any); and the Company has full power and authority
to authorize, issue and sell the Securities to be offered by it as
contemplated by this Underwriting Agreement and the Indenture.
(xvi) The Company and its Subsidiaries are not in default under any
indenture, mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement or the evidence of indebtedness, lease,
contract or other agreement or instrument to which they are a party or by
which they or any of their properties or other assets are bound, the
violation of which would individually or in the aggregate have a material
adverse effect on the Company and its Subsidiaries on a consolidated basis,
and no other party under any such agreement or instrument to which the
Company or its Subsidiaries are a party is, to the knowledge of the Company,
in default thereunder where such default would have a material adverse effect
on the Company and its Subsidiaries on a consolidated basis; and the Company
and its Subsidiaries are not in violation of their respective articles of
incorporation, by-laws, certificates of general or limited partnership,
partnership agreements, or other organizational documents, as the case may be.
(xvii) The Company and each of its Subsidiaries have good and
marketable title to all properties and assets described in the Prospectus as
owned by them, free and clear of all liens, charges, encumbrances or
restrictions, except as described in the Prospectus or where such exceptions
do not have a material adverse effect on the Company and its Subsidiaries
taken as a whole, and the Company and its Subsidiaries have valid, subsisting
and enforceable leases for the properties described in the Prospectus as
leased by the Company and its Subsidiaries with such exceptions, individually
and in the aggregate, as do not interfere with the use made and proposed to
be made of such properties by the Company and its Subsidiaries and would not
have a material adverse effect on the Company and its Subsidiaries taken as a
whole; except as set forth in Schedule C, no tenant under any of the leases
pursuant to which the Company or its Subsidiaries lease their
5
properties has an option or right of first refusal to purchase the premises
demised under such lease; the use and occupancy of each of the properties of
the Company and its Subsidiaries complies with all applicable codes and
zoning laws and regulations with such exceptions, individually and in the
aggregate, as would not have a material adverse effect on the Company and its
Subsidiaries taken as a whole; the Company and its Subsidiaries have no
knowledge of any pending or threatened condemnation or zoning change that
will affect the size of, use of, improvement of, construction on, or access
to any of the properties of the Company and its Subsidiaries with such
exceptions, individually and in the aggregate, as would not have a material
adverse effect on the Company and its Subsidiaries taken as a whole; and the
Company and its Subsidiaries have no knowledge of any pending or threatened
proceeding or action that will affect the size of, use of, improvements on,
construction on, or access to any of the properties of the Company or its
Subsidiaries with such exceptions, individually and in the aggregate, as
would not have a material adverse effect on the Company and its Subsidiaries
taken as a whole.
(xviii)The Company or its Subsidiaries have acquired title insurance
with respect to each of the properties described in the Prospectus as being
owned by the Company or its Subsidiaries, except, in each case, where the
failure to maintain such title insurance is not reasonably likely to have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
Subsidiaries taken as a whole.
(xix) Except as described, or incorporated by reference, in the
Registration Statement and the Prospectus (i) there does not exist on any of
the properties described in the Prospectus any hazardous substances,
hazardous materials, toxic substances or waste materials (collectively,
Hazardous Materials") in unlawful quantities which, individually and in the
aggregate, are reasonably likely to have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its Subsidiaries taken as a whole, (ii)
there has not occurred on or, to the Company's knowledge, off such properties
any unlawful spills, releases, discharges or disposal of Hazardous Materials,
which presence or occurrence is reasonably likely to have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its Subsidiaries taken as a
whole, and (iii) the Company and its Subsidiaries have not failed to comply
with all applicable local, state and federal environmental laws, regulations,
ordinances and administrative and judicial orders relating to the generation,
recycling, sale, storage, handling, transport and disposal of any Hazardous
Materials, except for such failures which are not reasonably likely to have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
Subsidiaries taken as a whole.
(xx) Property and casualty insurance in favor of each of the Company
and its Subsidiaries is maintained with respect to each of the properties
owned by each of them in an amount and on such items as is reasonable and
customary for businesses of this type.
(xxi) No holder of outstanding shares of capital stock of the Company
has any rights to the registration of shares of capital stock of the Company
which would or could require such securities to be included in the
Registration Statement.
(xxii) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as described
or incorporated
6
therein, (i) there has not been any material adverse change in the business,
results of operations, prospects or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, and (ii) neither the Company
nor any of its Subsidiaries has sustained any material loss or interference
with its assets, businesses or properties (whether owned or leased) from
fire, explosion, earthquake, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or any court or legislative or other
governmental action, order or decree that materially and adversely affects
the business, prospects, condition (financial or other), net worth or results
of operations of the Company and its Subsidiaries taken as a whole.
(xxiii)The Company has filed all federal, state, local and foreign
income tax returns which have been required to be filed and has paid all
taxes indicated by said returns and all assessments received by it to the
extent that such taxes have become due and payable, and which are not being
contested by the Company in good faith.
(xxiv) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by
the Company of this Underwriting Agreement and the Indenture and the
consummation of the transactions contemplated herein and thereon has been or
will be obtained or made and is or at the Closing Date will be in full force
and effect.
(xxv) The Company and its Subsidiaries hold all material licenses,
certificates and permits from governmental authorities which are necessary to
the conduct of their businesses and are in compliance with the terms and
conditions of such licenses, certificates and permits; and to the best of the
Company's knowledge, the Company and its Subsidiaries have not infringed on
any patents, patent rights, trade names, trademarks or copyrights, which
infringement is reasonably likely to have a material adverse affect upon the
business, prospects, condition (financial or over), net worth or results of
operations of the Company and its Subsidiaries taken as a whole.
(xxvi) To Company's knowledge, the Company and its Subsidiaries are
conducting their respective businesses in compliance with all applicable
laws, orders, rules and regulations of the jurisdictions in which they are
conducting business including, without limitation, the Americans with
Disabilities Act of 1990 and all applicable local, state and federal
employment, truth-in-advertising, franchising and immigration laws and
regulations, except where the failure to be so in compliance would not have a
material adverse effect on the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the Company
and its Subsidiaries taken as a whole.
(xxvii)To the Company's knowledge, no transaction has occurred between
or among the Company and any of its officers or directors or any affiliate or
affiliates of any such officer or director that is required by the Act or the
1933 Act Rules and Regulations to be described in and is not described or
incorporated by reference in the Registration Statement and the Prospectus.
(xxviii)The Company satisfies all conditions and requirements for
filing the Registration Statement on Form S-3 under the Act.
(xxix) Other than in connection with this Underwriting Agreement, the
Company has not taken, nor will it take, directly or indirectly, any action
designed to or which is reasonably expected to cause or result in, or which
has constituted or
7
which is reasonably expected to constitute, the stabilization or manipulation
of the price of the Securities.
(xxx) For all applicable tax years as to which the Company's tax
returns are subject to audit and the Company is subject to assessment for
taxes reportable therein, the Company has continuously been organized and
operating in conformity with the requirements for qualification as the real
estate investment trust under the Internal Revenue Code of 1986, as amended
(the "Code"). The Company's present operations are consistent with the
current requirements for taxation as a real estate investment trust under the
Code. The Company has no intention of changing its operations or engaging in
activities which would adversely affect its ability to qualify as a real
estate investment trust.
(xxx) Neither the Company nor any Subsidiary is an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
3. PURCHASE, SALE AND DELIVERY OF SECURITIES.
On the basis of the representations, warranties and agreements contained
herein, but subject to the terms and conditions set forth herein, the Company
agrees to issue and sell the Securities to the Underwriter as hereinafter
provided, and the Underwriter agrees to purchase from the Company the
Securities at the purchase price set forth on Schedule A hereto plus accrued
interest, if any, from the date specified on Schedule A hereto to the date of
payment and delivery.
The Company understands that the Underwriter intends (i) to make a public
offering of the Securities, and (ii) initially to offer the Securities upon
the terms set forth in the Prospectus.
Payment for the Securities shall be made to the Company or to its order
in immediately available funds in the amount, on the date and at the place
set forth on Schedule hereto (or at such other time and place on the same
date or such other date, not later than the third Business Day thereafter, as
the Underwriter and the Company may agree in writing). Such payment will be
made upon delivery to the Underwriter of the Securities registered in such
names and in such denominations as the Underwriter shall request nor less
than two full Business Days prior to the date of delivery, with transfer
taxes, if any, payable in connection with transfer to the Underwriter duly
paid by the Company. As used herein, the term "Business Day" means any day
other than a day on which banks are permitted or required to be closed in New
York City or San Francisco, California. The time and date of such payment
and delivery with respect to the Securities are referred to herein as the
"Closing Date." The Securities will be delivered through the book entry
facilities of The Depository Trust Company ("DTC") and will be made available
for inspection by the Underwriter by 1:00 P.M. New York City time on the
Business Day prior to the Closing Date at such place in New York City as the
Underwriter, DTC and the Company shall agree.
4. COVENANTS. The Company covenants and agrees with the Underwriter
that:
(i) The Company will cause the Prospectus Supplement to be filed as
required by Section 2(a)(i) hereof (but only if you or your counsel have
not reasonably objected thereto by notice to the Company after having been
furnished a copy a reasonable time prior to filing) and will notify you
promptly of such filing.
8
During the period in which a prospectus relating to the Securities is
required to be delivered under the Act, the Company will (i) notify you
promptly of the time when any subsequent amendment to the Registration
Statement has become effective or any subsequent supplement to the
Prospectus has been filed and of any request by the Commission for any
amendment or supplement to the Registration Statement or Prospectus or for
additional information, (ii) prepare and file with the Commission, promptly
upon your request, any amendments or supplements to the Registration
Statement or Prospectus that, in your opinion, may be necessary or
advisable in connection with your distribution of the Securities, and
(iii) file no amendment or supplement to the Registration Statement or
Prospectus (other than any document required to be filed under the
Exchange Act that upon filing is deemed to be incorporated by reference
therein) to which you or your counsel shall reasonably object by notice to
the Company after having been furnished a copy a reasonable time prior to
the filing.
(ii) The Company will advise you, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement,
of the suspension of the qualification or registration of the Securities
for offering or sale in any jurisdiction, or of the initiation or threat of
any proceeding for any such purpose; and it will promptly use its best
efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such a stop order should be issued.
(iii) The Company will comply with all requirements imposed upon
it by the Act, the 1933 Act Rules and Regulations, the Exchange Act, the
Exchange Act Rules and Regulations and the TIA, as from time to time in
force, so far as necessary to permit the continuance of sales of, or
dealings in, the Securities as contemplated by the provisions hereof and
the Prospectus. If, during such period, any event occurs as a result of
which, in the opinion of your counsel, the Registration Statement contains
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or the Prospectus as then amended or supplemented would
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 then existing, not misleading, or if during such period it is
necessary to amend or supplement the Registration Statement or Prospectus
to comply with the Act, the Company will promptly notify you and will amend
or supplement the Registration Statement or Prospectus (at the expense of
the Company) so as to correct such statement or omission or effect such
compliance.
(iv) The Company will furnish to you copies of the Registration
Statement, the Prospectus (including all documents incorporated by
reference therein), each preliminary prospectus and all amendments and
supplements to the Registration Statement and Prospectus that are filed
with the Commission during the period in which a prospectus relating to the
Securities is required to be delivered under the Act (including all
documents filed with the Commission during such period that are deemed to
be incorporated by reference therein), in each case as soon as available
and in such quantities as you may from time to time reasonably request.
9
(v) During the period of five years commencing on the date upon which
the Prospectus Supplement is filed pursuant to Rule 424(b) under the Act,
the Company will furnish you with copies of filings of the Company under
the Act and Exchange Act and with all other financial statements and
reports it distributes generally to the holders of any class of its capital
stock.
(vi) The Company will make generally available to its security holders
as soon as practicable and in the manner contemplated by Rule 158 of the
1933 Act Rules and Regulations, but in any event not later than 15 months
after the end of the Company's current fiscal quarter, an earnings
statement (which need not be audited) covering a 12-month period beginning
after the date upon which the Prospectus Supplement is filed pursuant to
Rule 424(b) under the Act that shall satisfy the provisions of Section
11(a) of the Act and Rule 158 of the 1933 Act Rules and Regulations and
will advise you in writing when such statement has been made available.
(vii) Whether or not the transactions contemplated by this
Underwriting Agreement are consummated or this Underwriting Agreement is
terminated, the Company will pay, or reimburse if paid by you, all costs
and expenses incident to the performance of the obligations of the Company
under this Underwriting Agreement, including, but not limited to, costs and
expenses of or relating to (A) the preparation, printing and filing of the
Registration Statement and exhibits thereto, the Prospectus, each
preliminary prospectus and any amendment or supplement to the Registration
Statement or the Prospectus, (B) the word processing and reproduction of
this Underwriting Agreement and the Indenture, (C) the costs incurred by
the Company in furnishing (including costs of shipping, mailing and
courier) such copies of the Registration Statement, the Prospectus, each
preliminary prospectus and all amendments and supplements thereto, as may
be requested for use in connection with the offering and sale of the
Securities by you or by dealers to whom Securities may be sold, (D) any
registration or qualification of the Securities for offer and sale under
the securities or blue sky laws of such jurisdictions designated by you,
including the reasonable fees, disbursements and other charges of your
counsel in connection therewith, and the preparation of a blue sky
memoranda, if any, (E) the fees charged by Xxxxx'x Investors Service, Inc.
("Moody's") and Standard at Poor's Rating Services ("S&P" and, together
with Moody's, the "Rating Agencies") for the rating of the Securities at
the request of the Company, (F) the fees and costs of counsel to the
Company, (G) the fees and costs of the transfer agent for the Securities,
(H) the costs and expenses of the Trustee under the Indenture, and I) KPMG
Peat Marwick LLP or any other accountants engaged by the Company in
connection with the offering of the Securities.
(viii) If this Underwriting Agreement shall be terminated pursuant
to any of the provisions hereof or if for any reason the Company shall be
unable to perform its obligations hereunder, the Company will reimburse you
for all out-of-pocket expenses (including the reasonable fees,
disbursements and other charges of your counsel) incurred by you in
connection herewith.
10
(ix) Other than in connection with this Underwriting Agreement, the
Company shall not at any time, directly or indirectly, take any action
designed to, or which might reasonably be expected to cause or result in,
or which has constituted or which might reasonably be expected to
constitute, the stabilization of the price of the Securities.
(x) The Company will take all reasonable action necessary to enable
the Rating Agencies to provide their respective credit ratings of the
Securities.
(xi) The Company will execute the supplemental indentures designating
the Securities as the debt securities to be offered and their terms and
provisions in accordance with the provisions of the Indenture.
(xii) The Company will apply the net proceeds to the Company from
the sale of the Securities by the Company as set forth under the caption
"Use of Proceeds" in the Prospects Supplement.
(xiii) The Company will continue to elect to qualify as a "real
estate investment trust" under the Code, and will use its best efforts to
continue to meet the requirements to qualify as a "real estate investment
trust."
5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. Your obligation to purchase
and pay for the Securities as provided herein shall be subject to the
accuracy, as of the date hereof and the Closing Date (as if made at the
Closing Date), of the representations and warranties of the Company herein,
to the performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) The Prospectus shall have been filed by the Company as required
by Section 2(a)(i) hereof; and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceeding for that
purpose shall have been instituted or, to your knowledge or the knowledge of
the Company, threatened by the Commission, nor, to your knowledge or the
knowledge of the Company, has any state securities authority suspended the
qualification or registration of the Securities for offering or sale in any
jurisdiction, and any request of the Commission for additional information
(to be included in the Registration Statement or the Prospectus or otherwise)
shall have been complied with to the satisfaction of you and your counsel.
(b) You shall not have advised the Company that the Registration
Statement, or any amendment thereto, contains an untrue statement of fact
that in the reasonable opinion of you or your counsel is material or omits to
state a fact that in the opinion of you or your counsel is material and is
required to be stated therein or is necessary to make the statements therein
not misleading, or that the Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact that in the opinion of you and
your counsel is material or is necessary, in the light of the circumstances
under which they were made, to make the statements therein not misleading and
which statement has not been or is not being corrected to your satisfaction.
(c) Subsequent to the execution and delivery of this Underwriting
Agreement and prior to the Closing Date, there shall not have occurred any
downgrading in the rating accorded the Securities or any other debt
securities of the Company by any Rating Agency nor shall
11
any notice have been given to the Company of (i) any intended or potential
downgrading by any Rating Agency in such securities, or (ii) any review or
possible change by any Rating Agency that does not indicate a stable,
positive or improving rating accorded such securities.
(d) Except as contemplated in the Prospectus Supplement, subsequent
to the respective dates as of which information is included or incorporated
in the Registration Statement, the Prospectus, the Prospectus Supplement and
each preliminary prospectus, there shall not have been any change on a
consolidated basis, in the equity capitalization, short-term debt or
long-term debt of the Company, or any adverse change, or any development
involving a prospective adverse change, in the condition (financial or
other), business, prospects, net worth or results of operations of the
Company and its Subsidiaries taken as a whole or any adverse change in the
rating assigned to any securities of the Company, that, in your judgment,
makes it impractical or inadvisable to offer or deliver the Securities on the
terms and in the manner contemplated in the Prospectus.
(e) You shall have received the opinion of Xxxxxxxxx & Xxxxxxxx LLP,
counsel for the Company, dated the Closing Date, in form and substance
reasonably satisfactory to your counsel to the effect that:
(i) The Company has been duly organized, is validly
existing as a business trust and is in good standing under the laws of
its jurisdiction of formation, has full power and authority to conduct
its business as described in the Registration Statement and
Prospectus, and is duly qualified or registered to do business in each
jurisdiction in which the conduct of its business or its ownership or
leasing of its properties requires such qualification or registration,
except where the failure to be so qualified or registered, considering
all such cases in the aggregate, is not reasonably likely to have a
material adverse effect on the business, properties, financial
position or results of operations of the Company and its Subsidiaries
taken as a whole;
(ii) The Company has the authorized, issued and outstanding,
Common Stock as set forth under the caption "Capitalization" in the
Prospectus Supplement and in its Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997; and to the knowledge of such counsel,
none of them was issued in violation of any preemptive or other
similar right arising under contract. The issuance of the Securities
has been duly authorized by the Company and, when duly authenticated
and delivered by the Trustee in accordance with the terms of the
Indenture (assuming the due authorization, execution and delivery of
the Indenture by the Trustee), and delivered to, and paid for by, the
Underwriter in accordance with the terms of this Underwriting
Agreement, such Securities will constitute valid and legally binding
obligations of the Company entitled to the benefits provided for in
the Indenture and will be enforceable against the Company in
accordance with their terms, subject to the Enforceability
Limitations. To the knowledge of such counsel, no holder of any
security of the Company has the right to have any security owned by
such holder included for registration in the Registration Statement or
to demand registration of any security owned by such holder during the
180 days after the date of this Agreement.
12
(iii) The Registration Statement has become effective under
the Act, the Indenture has been qualified under the TIA, the
Prospectus Supplement has been filed as required by Section 2(a)(i)
hereof and, to the best knowledge of such counsel, after due inquiry,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or threatened by the Commission;
(iv) Each part of the Registration Statement, when such part
became effective, and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and at the
Closing Date, complied as to form in all material respects with the
requirements of the Act and the 1933 Act Rules and Regulations, and
nothing has come to the attention of such counsel which would lead
such counsel to believe that either (A) any part of the Registration
Statement (excluding any Prospectus Supplement with respect to an
offering of securities other than the offering contemplated hereby),
when such part became effective or was filed under the Act or the
Exchange Act, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (B) the
Prospectus and any amendment or supplement thereto, on the date of
filing thereof with the Commission or at the Closing Date, included an
untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (C) to
the knowledge of such counsel, the documents incorporated by reference
in the Registration Statement or Prospectus or any amendment or
supplement thereto, when they became effective under the Act or were
filed with the Commission under the Act or the Exchange Act, as the
case may be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder (it being
understood that such counsel need express no opinion as to the
financial statements or other financial data included in any documents
mentioned in this clause), and the Indenture, on the date of filing
thereof with the Commission and at the Closing Date, conformed or will
conform in all material respects with the requirements of the TIA;
(v) This Underwriting Agreement has been duly authorized,
executed and delivered by the Company; the execution, delivery and
performance of this Underwriting Agreement and the consummation of the
transactions contemplated herein will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, the declaration of trust of the Company or any statute
applicable to the Company;
(vi) The Indenture has been duly and validly authorized,
executed and delivered by the Company and assuming due authorization,
execution and delivery thereof by the Trustee, will constitute a valid
and legally binding agreement of the Company, enforceable against the
Company in accordance
13
with its terms, subject to the Enforceability Limitations; the
execution, delivery and performance of the Indenture and the
consummation of the transactions contemplated therein will not
result in a breach or violation of any of the terms and provisions
of, or constitute a default under, the declaration of trust of the
Company or any statute applicable to the Company; and the Indenture
has been duly qualified under the TIA;
(vii) The Indenture and the Securities conform in all
material respects to the descriptions thereof in the Registration
Statement and the Prospectus under the captions "Description of the
Notes" and "Description of Debt Securities;"
(viii) For all applicable tax years as to which the Company's
tax returns are subject to audit and the Company is subject to
assessment for taxes reportable therein, the Company has continuously
been organized and operated in conformity with the requirements for
qualification as a "real estate investment trust" under the Code. The
Company's contemplated method of operation will permit it to continue
to meet the requirements for taxation as a "real estate investment
trust" under the Code;
(ix) The Company satisfies all conditions and requirements
for the use of a Registration Statement on Form S-3 under the Act;
(x) Neither the Company nor any of its Subsidiaries is an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended;
(xi) Each of the Subsidiaries has been duly incorporated or
formed, as the case may be, and is validly existing as a corporation,
general or limited partnership or other legal entity, as the case may
be, and in good standing under the laws of its jurisdiction of
incorporation or formation, as the case may be, has full power
(corporate or other) and authority to conduct its business as
described in the Registration Statement and Prospectus, and is duly
qualified or registered to do business in each jurisdiction in which
the conduct of its business requires such qualification or
registration, except where the failure to be so qualified or
registered, considering all such cases in the aggregate, is not
reasonably likely to have a material adverse effect on the business,
financial position or results of operations of the Company and its
Subsidiaries taken as a whole;
(xii) The statements in the Registration Statement and
Prospectus describing statutes, legal and governmental proceedings,
contracts and other documents, insofar as such statements constitute a
summary of legal matters, documents or proceedings referred to
therein, are accurate and fairly present, in all material respects,
the information required to be shown; and such counsel does not know
of any statutes or legal or governmental proceedings required to be
described in the Prospectus that are not described as required, or of
any contracts or documents of a character required to be described in
the
14
Registration Statement or Prospectus (or required to be filed under
the Exchange Act if upon such filing they would be incorporated by
reference therein) or to be filed as exhibits to the Registration
Statement that are not described and filed as required;
(xiii) The execution, delivery and performance of this
Underwriting Agreement and the Indenture and the consummation of the
transactions contemplated herein and therein will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, (A) to the knowledge of such counsel, any
material fact, any statute, indenture, mortgage, deed of trust, voting
trust agreement, loan agreement, bond, debenture, note agreement or
the evidence of indebtedness, lease, contract or other agreement or
instrument to which the Company or its Subsidiaries are a party or by
which they are bound or to which any of the property or other assets
of the Company or its Subsidiaries is subject, (B) the declaration of
trust, articles of incorporation, by-laws, certificate of general or
limited partnership, partnership agreement or other organizational
document of the Company or any of its Subsidiaries, as applicable, or
(C) any statute, order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
its Subsidiaries or any of their properties or other assets; and no
consent, approval, authorization, notice to, order of, or filing with,
any court or governmental agency or body is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance or sale of the Securities by the Company,
except such as have been obtained under the Act or the TIA, as may be
required under the Securities or Blue Sky laws of the various states
(as to which counsel expresses no opinion) or the absence of which
would not have a material adverse effect upon the business prospects,
condition (financial or other), net worth or results of operations of
the Company and its Subsidiaries taken as a whole;
(xiv) To the knowledge of such counsel, neither the Company
nor any of its Subsidiaries is in violation of any term or provision
of their respective declaration of trust, articles of incorporation,
by-laws, certificate of general or limited partnership, partnership
agreement or other organizational document, as applicable or in
violation of or default under any indenture, mortgage, deed of trust,
voting trust agreement, loan agreement, bond, debenture, note
agreement or evidence of indebtedness, lease, contract, permit,
judgment, decree, order, statute, rule or regulation, except where
such default would not have a material adverse effect on the Company
and its Subsidiaries on a consolidated basis; and
(xv) To the knowledge of such counsel, there is no litigation
or governmental or other proceeding or investigation, before any court
or before or by any public body or board pending or, threatened
against, or involving the assets, properties or businesses of, the
Company or any of its Subsidiaries, involving the Company's or any of
its Subsidiaries' officers or directors or to which any of the
Company's or any of its Subsidiaries' properties or other
15
assets is subject which would have a material adverse effect upon the
assets or properties, business, results of operations, prospects or
condition (financial or otherwise) of the Company and its Subsidiaries
taken as a whole.
(f) You shall have received from O'Melveny & Xxxxx LLP, your counsel,
such opinion or opinions, dated as of the Closing Date, with respect to the
organization of the Company, the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as you
reasonably may request, and such counsel shall have received such papers
and information as they request to enable them to pass upon such matters.
(g) At the time of execution of this Agreement and at the Closing
Date, you shall have received a letter, dated the date of delivery thereof,
from KPMG Peat Marwick LLP, the independent public accountants of the
Company in the form previously agreed to by you.
(h) You shall have received from the Company a certificate, signed by
the Chief Executive Officer and by the principal financial or accounting
officer of the Company, dated the Closing Date, to the effect that, to the
best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Company in this
Underwriting Agreement are true and correct, as if made at and as of
the Closing Date, and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that
purpose has been instituted or is threatened by the Commission and, if
applicable, no state securities authority has suspended the
qualification or registration of the Securities for offering or sale
in any jurisdiction;
(iii) Since the effective date of the Registration Statement,
there has occurred no event required to be set forth in an amendment
or supplement to the Registration Statement or Prospectus that has not
been so set forth, and there has been no document required to be filed
under the Exchange Act and the Exchange Act Rules and Regulations that
upon such filing would be deemed to be incorporated by reference in
the Prospectus that has not been so filed; and
(iv) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, (A) there has not
been and no development has occurred which could reasonably be
expected to result in, a material adverse change in the general
affairs, business, business prospects, properties, management,
condition (financial or overwise) or results of operations of the
Company and its Subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, in each case
16
other than as set forth in or contemplated by the Registration
Statement and the Prospectus, and (B) neither the Company nor any of
its Subsidiaries has sustained any material loss or interference with
its business or properties from fire, explosion, flood or other
casualty, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action order
or decree, which is not set forth in the Registration Statement and
the Prospectus.
Such certificate shall address such other matters as you may reasonably
request.
(i) All such opinions, certificates, letters and other documents will
be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel. The Company
will furnish you with such conformed copies of such opinions, certificates,
letters and other documents as you shall reasonably request.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless you and your
directors, officers, employees, agents and representatives and each person,
if any, who controls you within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
liabilities, expenses and damages (including, but not limited to, any and all
investigative, legal and other expenses reasonably incurred in connection
with and any and all amounts paid in settlement of, any action, suit or
proceeding between any of the identified parties and any indemnifying parties
or between any indemnified party and any third party or otherwise, or any
claim asserted), as and when incurred to which you or any such person, may
become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, clauses, liabilities, expenses or damages arise out of or are based
on (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus or any amendment or
supplement to the Registration Statement or the Prospectus or in any
documents filed under the Exchange Act and deemed to be incorporated by
reference into the Prospectus, or in any application or other document
executed by or on behalf of the Company or based on written information
furnished by or on behalf of the Company filed in any jurisdiction in order
to qualify the Securities under the securities or blue sky laws thereof or
filed with the Commission, (ii) the omission or alleged omission to state in
such document a material fact required to be stated in it or necessary to
make the statements in it not misleading, or (iii) any act or failure to act
or any alleged act or failure to act by you in connection with, or relating
in any manner to, the Securities or the offering contemplated hereby, and
which is included as part of, or referred to in, any loss, claim, damage,
liability or action arising out of or based upon matters covered by clause
(i) or (ii) above (provided that the Company shall not be liable under this
clause (iii) to the extent it is finally determined by the Commission or a
court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act undertaken or
omitted to be taken by you through your gross negligence or willful
misconduct); provided that, the Company will not be liable to the extent that
such loss, claim, liability, expense or damage arises from the sale of the
Securities in the public offering to any person and is based on an untrue
statement or omission or alleged untrue statement or omission made in
reliance on and in conformity with information relating to you furnished in
writing to the Company by you expressly for inclusion in the Registration
Statement or the Prospectus. You confirm to the Company, and the Company
17
acknowledges that only the following information appearing in the Prospectus
with respect to the public offering of the Securities has been finished to
the Company by you for use in the Prospectus: (i) the stabilization legend on
the inside front cover page of the Prospectus Supplement; and (ii) the
information relating to you in the third paragraph under the caption
"Underwriting" in the Prospectus Supplement. This indemnity agreement will be
in addition to any liability that the Company might otherwise have.
(b) You will indemnify and hold harmless the Company, its directors,
officers, employees, agents and representatives, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the
Company to you, but only insofar as losses claims, liabilities, expenses or
damages arise out of or are based on any untrue statement or omission or
alleged untrue statement or omission made in reliance on and in conformity
with information relating to you furnished in writing to the Company by you
expressly for use in the Registration Statement or the Prospectus. This
indemnity will be in addition to any liability that you might otherwise have.
Notwithstanding any other provision of this Section 6(b), in no case shall
you be liable or responsible for any amount in excess of the underwriting
discounts and commissions received by you.
(c) Any party that proposes to assert the right to be indemnified under
this Section 6 will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim is to be made against
an indemnifying party under this Section 6, notify such indemnifying party of
the commencement of such action, enclosing a copy of all papers served, but
the omission to so notify such indemnifying party will not relieve it from
any liability that it may have to any indemnified party under the foregoing
provisions of this Section 6 unless, and only to the extent such omission
results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the extent at
it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly notified, to
assume the defense of the action, with counsel satisfactory to the
indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying
party will not be liable to the indemnified party for any legal or other
expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection
with the defense. The indemnified party will have the right to employ its
own counsel in any such action, but the fees, expenses and other charges of
such counsel will be at the expense of such indemnified party unless (i) the
employment of counsel by he indemnified party has been authorized in writing
by the indemnifying party, (ii) the indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal defenses
available to it or other indemnified parties that are different from or in
addition to those available to the indemnifying party, (iii) a conflict or
potential conflict exists (based on advice of counsel to the indemnified
party between the indemnified party and the indemnifying party (in which case
the indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party, or (iv) the indemnifying party has
not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable
fees, disbursements and other charges of more than one additional firm
admitted to
18
practice in such jurisdiction at any one time for all such indemnified party
or parties. All such fees, disbursements and other charges will be reimbursed
by the indemnifying party promptly as they are incurred. An indemnifying
party will not be liable for any settlement of any action or claim effected
without its written consent (which consent will not be unreasonably
withheld); provided, however, no indemnifying party shall, without the prior
written consent of each indemnified party, settle or compromise or consent to
the entry of any judgment in any pending or threatened claim, action or
proceeding relating to the matters contemplated by this Section 6 (whether or
not any indemnified party is a party thereto), unless such settlements
compromise or consent includes an unconditional full release of each
indemnified party from all liability arising or that may arise out of such
claim, action or proceeding. Notwithstanding any other provision of this
Section 6(c), if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement effected without its written consent if (x) such settlement is
entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (y) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such settlement
being entered into, and (z) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of
such settlement.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but
for any reason is held to be unavailable from the Company or you, the Company
and you will contribute to the total losses, clam, liabilities, expenses and
damages (including any investigative, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claim asserted, but after deducting any
contribution received by the Company from persons other than you who may be
liable for contribution) to which the Company and you may be subject in such
proportion as shall be appropriate to reflect the relative benefits received
by the Company on the one hand and you on the other. The relative benefits
received by the Company on the one hand and you on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
underwriting discount and commissions received by you, in each case as set
forth in the table on the cover page of the Prospects Supplement if, but only
if, the allocation provided by the foregoing sentence is not permitted by
applicable law, the allocation of contribution shall be made in such
proportion as is appropriate to reflect not only the relative benefits
referred to in the foregoing sentence but also the relative fault of the
Company on the one hand and you on the other with respect to the statements
or omissions which resulted in such loss, claim, liability, expense or
damage, or action in respect thereof, as well as any other relevant equitable
considerations with respect to such offering. Such relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or you, the intent of the
parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and you agree
that it would not be just and equitable if contributions pursuant to this
Section 6(d) were to be determined by pro rata allocation or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, liability expense or
damage, or action in respect thereof, referred to above in this Section 6(d)
shall be deemed to include, for purpose of this Section 6(d), any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), you shall not be required to contribute any
19
amount in excess of the underwriting discounts and commissions received by
you and no person found guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) will be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 6(d), any person who controls a party to this
Underwriting Agreement within the meaning of the Act will have the same
rights to contribution as that party, and each officer and director of the
Company who signed the Registration Statement will have the same rights to
contribution as the Company subject in each case to the provisions hereof.
Any party entitled to contribution, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim for
contribution may be made under this Section 6(d), will notify any other party
or parties from whom contribution may be sought, but the omission so to
notify will not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have under this Section 6(d).
Except for a settlement entered into pursuant to the last sentence of Section
6(c) hereof, no party will be liable for contribution with respect to any
action or claim settled without its written consent (which consent will not
be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this Section
6 shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of you, (ii) acceptance of the Securities
and payment therefor, or (iii) any termination of this Underwriting Agreement.
7. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements of the Company contained herein or
in certificates delivered pursuant hereto, and your agreements, contained in
Section 6 hereof, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of you or any
controlling persons or the Company or any of its officers, directors or
controlling persons, and shall survive delivery of and payment for the
Securities hereunder.
8. TERMINATION. You shall have the right by giving notice as
hereinafter specified at any time at or prior to the Closing Date, to
terminate this Underwriting Agreement if (i) the Company shall have failed,
refused or been unable, at or prior to the Closing Date, to perform any
agreement on its part to be performed hereunder, (ii) any other condition of
your obligations hereunder is not fulfilled when due, (iii) trading on the
Amex shall have been wholly suspended, (iv) minimum or maximum prices for
trading shall have been fixed for the Common Stock, or maximum ranges for
prices for the Common Stock shall have been required on the Amex by the Amex
or by order of the Commission or any other governmental authority having
jurisdiction, (v) a banking moratorium shall have been declared by federal or
New York authorities, or (vi) an outbreak of major hostilities in which the
United States is involved, a declaration of war by Congress, any other
substantial national or international calamity or any other event or
occurrence of a similar character shall have occurred since the execution of
this Underwriting Agreement that, in your judgment, makes it impractical or
inadvisable to proceed with the completion of the sale of and payment for the
Securities. Any such termination shall be without liability of any party to
any other party with respect to Securities not purchased by reason of such
termination except that the provisions of Sections 4(a)(vii) and 6 hereof
shall at all times be effective. If you elect to terminate this Underwriting
Agreement as provided in this Section, the Company shall be notified promptly
by you by telephone, telex or telecopy, confirmed by letter.
9. NOTICES. All notices or communications hereunder shall be in
writing and if sent to you shall be mailed, delivered telexed or telecopied
and confirmed to the Underwriter at 1285
20
Avenue of the Americas, New York, New York 10019, Attention: Corporate
Finance Department (with copy to Xxxxx X. Xxxxx, Esq., c/o O'Melveny & Xxxxx
LLP, 000 Xxxxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000), or if
sent to the Company shall be mailed, delivered, telexed or telecopied and
confirmed to the Company at 0000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000, Attention: Mr. Xxxxxx Xxxx, with a copy to Xxxxx X. Xxxxxxxx, Esq.,
c/x Xxxxxxxxx & Xxxxxxxx LLP, 000 Xxxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000. Either party to this Underwriting Agreement may change
such address for notices by sending to the other party to this Underwriting
Agreement written notice of a new address for such purpose.
10. PARTIES. This Agreement shall inure to the benefit of, and be
binding upon the Company and the Underwriter and their respective successors
and the controlling persons, officers, directors, employees and
representatives referred to in Section 6 hereof, and no other person will
have any right or obligation hereunder.
11. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with, the laws of the State of New York.
12. LIMITATION OF LIABILITY. Any liability of the Company under this
Agreement shall be solely the liability of the Company, and no officers or
trustee of the Company shall have any personal liability hereunder.
21
If the foregoing correctly sets forth the understanding between the
Company and the Underwriter, please so indicate in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement
between the Company and the Underwriter.
Very truly yours,
Western Investment Real Estate Trust
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxx
------------------------------------------
Title: Chief Financial Officer
-----------------------------------------
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------------------
Title: President
-----------------------------------------
ACCEPTED as of the date first above written
PAINEWEBBER INCORPORATED
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: /s/ Xxxxxxxxx X. Xxxxx, Xx.
-------------------------------------------
Name: Xxxxxxxxx X. Xxxxx, Xx.
Title: Managing Director
22
SCHEDULE A
Underwriter: PaineWebber Incorporated
Title of Securities: 7.10% Senior Notes due September 15, 2006
7.20% Senior Notes due September 15, 2008
7.30% Senior Notes due September 15, 2010
Aggregate principal amount: $25,000,000 of each class, for an aggregate total
of $75,000,000
Price to Public: 99.859% - 2006 Notes
99.764% - 2008 Notes
99.781% - 2010 Notes
Underwriting Discount: 0.60% - 2006 Notes
0.60% - 2008 Notes
0.60% - 2010 Notes
Purchase Price to be paid
to Company: $74,401,000
Closing Date and Time of
Delivery: September 25, 1997, 10:00 a.m. (New York City time)
Closing Location: O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
SCHEDULE B
SUBSIDIARIES
WIRET Asset Management Services
SCHEDULE C
Tenants with Options or Rights of First Refusal
SCHEDULE D
Principal Amount
of Notes
Underwriter To Be Purchased
----------- ---------------
PaineWebber Incorporated $ 75,000,000
