1
2,800,000 Shares
LEXINGTON CORPORATE PROPERTIES, INC.
(a Maryland corporation)
Common Stock, par value $.0001 per share
PURCHASE AGREEMENT
June 17, 1997
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇▇ & Company Securities, Inc.
UBS Securities LLC
as Representatives of the
several Underwriters
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Lexington Corporate Properties, Inc., a corporation organized
and existing under the laws of Maryland (the "Company"), Lepercq Corporate
Income Fund L.P., a Delaware limited partnership ("LCIF"), Lepercq Corporate
Income Fund II L.P., a Delaware limited partnership ("LCIF II"), LXP I, L.P., a
Delaware limited partnership ("LXP I"), and LXP II, L.P., a Delaware limited
partnership ("LXP II")( LCIF, LCIF II, LXP I and LXP II hereinafter are
collectively referred to as the "Property Partnerships"), each confirms its
agreement with Bear, ▇▇▇▇▇▇▇ & Co. Inc. ("Bear ▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇▇ & Company
Securities, Inc. ("McDonald") and UBS Securities LLC ("UBS") and each of the
other Underwriters named in Schedule I hereto (collectively, the "Underwriters,"
which term shall also include any underwriter substituted as provided in Section
10 hereof), for whom Bear ▇▇▇▇▇▇▇, McDonald and UBS are acting as
representatives (in such capacity, the "Representatives"), with respect to the
sale by the Company and the purchase by the Underwriters, acting severally and
not jointly, of 2,800,000 shares of common stock, par value $.0001 per share
(the "Common Stock"), of the Company, as set forth in Schedule I hereto (except
as may be provided otherwise in the Pricing Agreement, as hereinafter defined),
and with respect to the grant by the Company to the Underwriters of the option
described in Section 2(b) hereof to purchase all or any part of an additional
420,000 shares of Common Stock to cover over-allotments. The aforesaid 2,800,000
shares of Common Stock (the "Initial Shares"), together with all or any part of
the 420,000 shares of Common Stock subject to the option described in Section
2(b) hereof (the "Option Shares"), are collectively hereinafter referred to as
the "Shares." Unless the context otherwise requires, as used herein, "you" and
"your" shall mean Bear,
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▇▇▇▇▇▇▇, McDonald and UBS each of the other Underwriters for whom Bear ▇▇▇▇▇▇▇,
McDonald and UBS are acting as Representatives.
Prior to the purchase and public offering of the Shares by the
several Underwriters, the Company and the Representatives, acting on behalf of
the several Underwriters, shall enter into an agreement substantially in the
form of Exhibit A hereto (the "Pricing Agreement"). The Pricing Agreement may
take the form of an exchange of any standard form of written telecommunication
between the Company and the Representatives and shall specify such applicable
information as is indicated in Exhibit A hereto. The offering of the Shares will
be governed by this Agreement, as supplemented by the Pricing Agreement. From
and after the date of the execution and delivery of the Pricing Agreement, this
Agreement shall be deemed to incorporate the Pricing Agreement.
The term "Subsidiary" as used herein means a corporation or a
partnership a majority of the outstanding equity interests of which is owned or
controlled, directly or indirectly, by the Company or the Property Partnerships,
as the case may be, or by one or more other Subsidiaries of the Company or the
Property Partnerships.
SECTION 1. Representations and Warranties of the Company and
the Property Partnerships.
(a) The Company and each of the Property Partnerships, jointly
and severally, represent and warrant to you, as of the date hereof, and to you
and each other Underwriter named in the Pricing Agreement, as of the date
thereof, as of the Closing Time (as defined below) and, if applicable, as of
each Date of Delivery (as defined below) (in each case, a "Representation
Date"), as follows:
The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (No. 333-3688) for the registration of
the Securities under the Securities Act of 1933, as amended
(the "1933 Act"), and the offering thereof from time to time
in accordance with Rule 430A or Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933
Act Regulations"), and the Company has filed such amendments
thereto as may have been required prior to the execution of
the Pricing Agreement. Such registration statement (as
amended) has been declared effective by the Commission. Such
registration statement and the prospectus constituting a part
thereof (including in each case the information, if any,
deemed to be part thereof pursuant to Rule 430A(b) of the 1933
Act Regulations, and each prospectus supplement relating to
the offering of the Shares pursuant to Rule 430A or Rule 415
of the 1933 Act Regulations (the "Prospectus Supplement")),
including all documents incorporated therein by reference, as
from time to time amended or supplemented pursuant to the 1933
Act, the Securities Exchange Act of 1934, as amended (the
"1934 Act") or otherwise, are collectively referred to herein
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as the "Registration Statement" and the "Prospectus,"
respectively; provided, that if any revised Prospectus shall
be provided to you by the Company for use in connection with
the offering of Shares which differs from the Prospectus on
file at the Commission at the time the Registration Statement
became effective (whether or not such revised prospectus is
required to be filed by the Company pursuant to Rule 424(b) of
the 1933 Act Regulations), the term "Prospectus" shall refer
to each such revised prospectus from and after the time it is
first provided to you for such use; provided, further, that a
Prospectus Supplement shall be deemed to have supplemented the
Prospectus only with respect to the offering of Shares to
which it relates. Any registration statement (including any
supplement thereto or information which is deemed part
thereof) filed by the Company under Rule 462(b) of the 1933
Act Regulations (a "Rule 462(b) Registration Statement") shall
be deemed to be part of the Registration Statement. Any
prospectus (including any amendment or supplement thereto or
information which is deemed part thereof) included in any Rule
462(b) Registration Statement and any term sheet as
contemplated by Rule 434 of the 1933 Act Regulations (a "Term
Sheet") shall be deemed to be part of the Prospectus. All
references in this Agreement to financial statements and
schedules and other information which is "contained,"
"included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be
deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration
Statement or the Prospectus shall be deemed to mean and
include the filing of any document under the 1934 Act which is
or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.
For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus,
preliminary prospectus supplement, Prospectus or Prospectus
Supplement or any Term Sheet or any amendment or supplement to
the foregoing shall be deemed to include the copy filed with
the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("▇▇▇▇▇").
The Company meets the requirements for use of Form
S-3 under the 1933 Act. Each of the Registration Statement,
the Prospectus and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or
any part thereof has been issued under the 1933 Act and no
proceeding for that purpose has been instituted or is pending
or, to the knowledge of the Company, is contemplated or
threatened by the Commission or by the state securities
authority of any jurisdiction, and any request on the part of
the Commission for additional information has been
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complied with. No order preventing or suspending the use of
the Prospectus has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the
Company, threatened by the Commission or by the state
securities authority of any jurisdiction.
The Registration Statement, at the time it became
effective, complied, and the Registration Statement and the
Prospectus at each Representation Date will comply in all
material respects with the provisions of the 1933 Act and the
1933 Act Regulations. The Registration Statement, at the time
the Registration Statement became effective, did not, and as
of each Representation Date, 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. At the date of the
Prospectus, at the Closing Time and at each Representation
Date, the Prospectus and any amendments and supplements
thereto (unless the term "Prospectus" refers to a prospectus
which has been provided to you by the Company for use in
connection with an offering of Shares which differs from the
Prospectus on file at the Commission at the time the
Registration Statement became effective, in which case at the
time it is first provided to you for such use) did not and
will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading. If the Company elects to rely
upon Rule 434 of the 1933 Act Regulations, the Company will
comply with the requirements of Rule 434. Notwithstanding the
foregoing, the representations and warranties in this
subsection shall not apply to statements in or omissions from
the Registration Statement or the Prospectus made in reliance
upon and in conformity with information furnished to the
Company in writing by any Underwriter through you expressly
for use in the Registration Statement or the Prospectus. If a
Rule 462(b) Registration Statement is required in connection
with the offering and sale of the Shares, the Company has
complied or will comply with the requirements of Rule 111 of
the 1933 Act Regulations relating to the payment of filing
fees therefor.
Each preliminary prospectus, preliminary prospectus
supplement and Prospectus Supplement filed as part of the
Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the
1933 Act, complied, when so filed, in all material respects
with the 1933 Act Regulations and, if applicable, each
preliminary prospectus or preliminary prospectus supplement
and the Prospectus and Prospectus Supplement delivered to the
Underwriters for use in connection with the offering of Shares
will, at the time of such delivery, be identical to the
electronically transmitted copies thereof filed
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with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the
time the Registration Statement became effective and as of
each Representation Date or during the period specified in
Section 3(f), did not and will not contain an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
KPMG Peat Marwick LLP, the public accountants who
have certified the financial statements and supporting
schedules and whose reports are included in, or incorporated
by reference into, the Registration Statement and the
Prospectus are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations and were independent
accountants as required by the 1933 Act and the 1933 Act
Regulations during the periods covered by the financial
statements on which they reported; and there have been no
disagreements with any accountants or "reportable events" (as
defined in Item 304 of Regulation S-K promulgated by the
Commission) in either case as required to be disclosed in the
Prospectus or elsewhere pursuant to such Item 304.
The consolidated financial statements of the Company
incorporated by reference into the Registration Statement and
the Prospectus, together with the related schedules and notes,
as well as those financial statements, schedules and notes of
any other entity included therein, present fairly, in all
material respects, the financial position of the Company or
such other entities, as the case may be, at the respective
dates indicated and the statement of operations, stockholders'
equity and cash flows of the Company or such other entities,
as the case may be, for the periods specified. Such financial
statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved, except as
may otherwise be described therein. The supporting schedules,
if any, included in, or incorporated by reference into, the
Registration Statement and the Prospectus present fairly, in
all material respects the information required to be stated
therein. The selected financial data and the summary financial
information included in, or incorporated by reference into,
the Prospectus present fairly, in all material respects, the
information shown
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therein and have been compiled on a basis consistent with that
of the audited financial statements included in, or
incorporated by reference into, the Registration Statement and
the Prospectus. The Company's ratio of earnings to fixed
charges (actual and, if any, pro forma) included in the
Prospectus under the caption "Ratio of Earnings to Fixed
Charges" or other similar caption and in Exhibit 12.1 to the
Registration Statement have been calculated in compliance with
Item 503(d) of Regulation S-K of the Commission. In addition,
any pro forma financial statements included in, or
incorporated by reference into, the Registration Statement or
the Prospectus comply in all material respects with the
applicable requirements of Rule 11-02 of Regulation SX of the
Commission, and the assumptions used in the preparation
thereof are, in the opinion of the Company, reasonable, and
the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein and
have been properly applied to the historical amounts in the
compilation of such statements. Other than the historical
financial statements (and schedules) included therein, no
other historical or pro forma financial statements (or
schedules) are required by the 1933 Act or the 1933 Act
Regulations to be included, or incorporated by reference into,
in the Registration Statement.
Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except
as otherwise described, or incorporated by reference, therein,
(A) there has been no material adverse change in the condition
(financial or otherwise) or in the earnings, assets, business
affairs or business prospects of the Company, the Property
Partnerships and their Subsidiaries, considered as one
enterprise (a "Material Adverse Effect"), whether or not
arising in the ordinary course of business; (B) no casualty
loss or condemnation or other adverse event with respect to
any of the interests held directly or indirectly in any of the
real properties owned, directly or indirectly, by the Company,
the Property Partnerships or their Subsidiaries (the
"Properties") has occurred that is material to the Company,
the Property Partnerships and their Subsidiaries, considered
as one enterprise; (C) there have been no transactions entered
into by the Company, the Property Partnerships or any
Subsidiary, other than those arising in the ordinary course of
business, which are material with respect to the Company, the
Property Partnerships and their Subsidiaries, considered as
one enterprise or that would result, upon consummation, in any
material inaccuracy in the representations contained in
Section 1(a)(7) above; (D) neither the Company, the Property
Partnerships nor any Subsidiary has incurred any material
obligation or liability, direct, contingent or otherwise
required to be disclosed on a balance sheet prepared in
accordance with GAAP or otherwise required to be disclosed
under the 1933 Act, the 1933 Act Regulations or the 1934 Act,
or 1934 Act Regulations; and (E) there has been no material
change
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in the short-term debt or long-term debt of the Company or the
Property Partnerships.
All statements contained in or incorporated by
reference into the Registration Statement which are in the
nature of "forward-looking" statements, and the assumptions
upon which such statements are based, are in the good faith
opinion of the Company, reasonable in light of the
circumstances under which they are, or were, made.
The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of
the State of Maryland with corporate power and authority to
own, lease and operate its properties, to conduct its business
as described in the Prospectus and to enter into and perform
its obligations under this Agreement and the Pricing Agreement
and the other agreements to which it is a party. The Company
is duly qualified or registered as a foreign corporation to
transact business and is in good standing in each jurisdiction
in which such qualification or registration is required,
whether by reason of the ownership, leasing or management of
property or the conduct of its business, except where the
failure to be so qualified would not be reasonably likely to
result in a Material Adverse Effect.
The Property Partnerships have been duly formed and
are validly existing as limited partnerships in good standing
under the laws of the State of Delaware with partnership power
and authority to own, lease and operate their properties, to
conduct the business in which they are engaged and to enter
into and perform their obligations under this Agreement and
the Pricing Agreement and the other agreements to which they
are a party. The Property Partnerships are duly qualified or
registered as foreign partnerships and are in good standing in
each jurisdiction in which such qualification or registration
is required, whether by reason of the ownership, leasing or
management of property or the conduct of their respective
businesses, except where the failure to be so qualified would
not be reasonably likely to result in a Material Adverse
Affect.
Each of the Subsidiaries has been duly formed and is
validly existing and in good standing under the laws of its
jurisdiction of organization with partnership or corporate
power and authority to conduct the business in which it is
engaged and to own, lease and operate its properties as
described in the Prospectus. Each of the Subsidiaries is duly
qualified as a foreign partnership, corporation or other
organization to transact business and is in good standing in
each jurisdiction in which such qualification is required
whether by reason of the ownership or leasing of property, the
management of properties by others or the conduct of its
business, except where the failure to be so qualified would
not be
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reasonably likely to result in a Material Adverse Affect.
The capitalization of the Company is as set forth in
the Prospectus (except for subsequent issuances thereof, if
any, contemplated under this Agreement, pursuant to employee
benefit plans referred to in the Prospectus or pursuant to the
exercise of convertible securities, limited partnership
interests in the Property Partnerships or any Subsidiaries
("Units") or options referred to in the Prospectus). Such
shares of capital stock have been duly authorized and validly
issued by the Company and are fully paid and non-assessable,
and none of such shares of capital stock were issued in
violation of preemptive or other similar rights arising by
operation of law, under the charter and by-laws of the Company
or under any agreement to which the Company, the Property
Partnerships or any of their Subsidiaries is a party, or
otherwise.
All of the issued and outstanding shares of capital
stock and partnership interests, as the case may be, of each
of the Property Partnerships and each Subsidiary have been
validly issued and fully paid and except as disclosed or
incorporated by reference in the Registration Statement are
owned by the Company, the Property Partnerships, another
Subsidiary, and/or certain affiliated entities as described in
the Registration Statement, in each case free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim
or equity. The Property Partnerships own no direct or indirect
equity interest in any entity other than their Subsidiaries.
Except for transactions disclosed or incorporated by
reference in the Registration Statement, Prospectus and
Prospectus Supplement and transactions in connection with
stock options, dividend reinvestment plans and exchanges of
Units, there are no outstanding rights, warrants or options to
acquire or subscribe for, or securities convertible into or
exchangeable for or agreements or understandings with respect
to the sale or issuance of, any capital stock, Units or other
securities of the Company, the Property Partnerships or any of
their Subsidiaries.
Each of the Company and the Property Partnerships has
full corporate or partnership power and authority, as the case
may be, to enter into and perform their obligations under this
Agreement and the Pricing Agreement and this Agreement has
been, and as of each Representation Date, the Pricing
Agreement will have been, duly authorized, executed and
delivered by each of the Company and the Property Partnerships
and, assuming due authorization and delivery by the other
parties thereto, each is a valid and binding agreement of the
Company and the Property Partnerships enforceable against the
Company and the Property Partnerships in accordance with its
terms, except as (A) the enforceability
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thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
creditors' rights generally, (B) the availability of equitable
remedies may be limited by equitable principles of general
applicability, and (C) rights to indemnity and contribution
thereunder may be limited by state or federal securities laws
or the public policy underlying such laws.
The Shares have been, or as of the date of the
Pricing Agreement will have been, duly authorized for issuance
and sale to the Underwriters pursuant to this Agreement and,
when issued and delivered as provided herein and in the
Pricing Agreement, the Shares will be validly issued, fully
paid and non-assessable; and the issuance of the Shares is not
subject to preemptive or similar rights.
The Shares being sold pursuant to the Pricing
Agreement will conform in all material respects to the
statements relating thereto contained in the Prospectus and
will be certificated in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit
to the Registration Statement.
None of the Company, the Property Partnerships or any
of their Subsidiaries is in violation of its charter, by-laws,
certificate of limited partnership, certification of
formation, partnership agreement or LLC agreement, as the case
may be, or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to
which it or any of them is a party or by which any of them may
be bound, or to which any of their property or assets is
subject, except for such defaults that would not result in a
Material Adverse Effect. The execution, delivery and
performance of this Agreement or the Pricing Agreement and the
transactions contemplated herein or therein including the
issuance, sale and delivery of the Shares and the use of the
proceeds from the sale of the Shares as described in the
Prospectus Supplement under the caption "Use of Proceeds," and
compliance by each of the Company and the Property
Partnerships with its obligations hereunder and thereunder do
not and will not (A) whether with or without the giving of
notice or passage of time or both, conflict with or constitute
a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or
operations of the Company, the Property Partnerships or any of
their Subsidiaries pursuant to, any material contract,
indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other material agreement or instrument to which
the Company, the Property Partnerships or any of their
Subsidiaries is a party or by which it or any of them may be
bound, or to
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which any of their properties or assets is subject, nor (B)
result in any violation of the provisions of the (i) charter,
bylaws, LLC agreement or partnership agreement of the Company,
the Property Partnerships or any Subsidiary, as the case may
be, or (ii) any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
agency or court, domestic or foreign, having jurisdiction over
the Company, the Property Partnerships or any Subsidiary or
any of their assets, properties or operations. As used herein,
a "Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment
of all or a portion of such indebtedness by the Company, the
Property Partnerships or any Subsidiary.
No labor dispute with the employees of the Company,
the Property Partnerships or any Subsidiary exists or, to the
knowledge of the Company and the Property Partnerships, is
imminent, which may result in a Material Adverse Effect.
There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign,
now pending, or to the knowledge of the Company or the
Property Partnerships threatened, against or affecting the
Company, the Property Partnerships, any Subsidiary thereof,
any property or any officer or director of the foregoing,
which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated or
incorporated by reference therein), or which might result in a
Material Adverse Effect, or which might materially and
adversely affect the consummation of this Agreement or the
Pricing Agreement or the transactions contemplated herein or
therein.
There are no contracts or documents of the Company or
the Property Partnerships which are required to be described
in the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and/or filed as
required.
No authorization, approval or consent of any court or
governmental authority or agency is necessary or required for
the performance by the Company and the Property Partnerships
of their obligations under this Agreement or the Pricing
Agreement, or in connection with the transactions contemplated
under this Agreement or such Pricing Agreement, except such as
have been already obtained or as may be required under the
1933 Act, the 1933 Act Regulations or state securities or real
estate syndication laws.
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The Company, the Property Partnerships and their
Subsidiaries own or possess trademarks, service marks, trade
names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business
now operated by them, and neither the Company, the Property
Partnerships nor any of their Subsidiaries has received any
notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate
to protect the interest of the Company, the Property
Partnerships or any of their Subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse
Effect.
Each of the Company, the Property Partnerships and
their Subsidiaries has all permits, licenses, approvals,
consents, certificates and other authorizations of and from
(collectively, "Governmental Licenses") and has made all
declarations and filings with, all appropriate federal, state,
local, foreign and other governmental authorities, all
self-regulatory organizations and all courts and other
tribunals required for it to own, lease, license and use its
properties and assets and to conduct its business in the
manner described in the Registration Statement and the
Prospectus, other than such Governmental Licenses the absence
of which, singly or in the aggregate, would not be reasonably
likely to result in a Material Adverse Effect. Neither the
Company, the Property Partnerships nor any of their
Subsidiaries has received any notice of proceedings relating
to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would be
reasonably likely to result in a Material Adverse Effect.
The Company, the Property Partnerships and each of
their Subsidiaries have or will have at the Closing Time and
at each Representation Date good and marketable title in fee
simple to all real property and good title to all personal
property owned by or as contemplated in the Prospectus to be
owned by them at the Closing Time and at each Representation
Date, in each case free and clear of all liens, encumbrances
and defects except such as are disclosed in the Registration
Statement and Prospectus or any documents incorporated by
reference therein or such as do not materially affect the
value of such property and do not materially interfere with
the use made and proposed to be made of such property by the
Company, the Property Partnerships and their Subsidiaries; and
all real property and buildings held under lease by the
Company, the Property Partnerships and their Subsidiaries as
contemplated in the Prospectus to be held under lease by them
at the
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Closing Time and at each Representation Date are held by them
under valid, subsisting and enforceable leases in each case
free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or any documents
incorporated by reference therein or such as do not materially
affect the value of such property and do not materially
interfere with the use made and proposed to be made of such
property by the Company, the Property Partnerships and their
Subsidiaries.
None of the Company or the Property Partnerships is,
and upon the issuance and sale of the Shares as herein
contemplated and the application of the net proceeds therefrom
as described in the Prospectus will be, an "investment
company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
Except as disclosed in, or incorporated by reference
into, the Registration Statement and Prospectus or as
disclosed in any environmental reports delivered to the
Representatives or their counsel, (A) each Property,
including, without limitation, the Environment (as defined
below) at each Property, is free of any Hazardous Substance
(as defined below) in violation of any Environmental Law (as
defined below) applicable to the Properties except for any
Hazardous Substance that would not have any Material Adverse
Effect; (B) none of the Company, the Property Partnerships or
any Subsidiary has caused or suffered to occur any Release (as
defined below) of any Hazardous Substance into the Environment
on, in, under or from any Property in violation of any
Environmental Law applicable to such Property, and no
condition exists on, in or under any Property or, to the
knowledge of the Company or the Property Partnerships, any
other property that could result in the occurrence of material
liabilities under, or any material violations of, any
Environmental Law applicable to such Property, or give rise to
the imposition of any Lien (as defined below) under any
Environmental Law; (C) none of the Company, the Property
Partnerships or any Subsidiary is engaged in or intends to
engage in, and no current or future tenant of any Property
engages in or will engage in, operations at any Property that
involve the use, handling, transportation, storage, treatment
or disposal of any Hazardous Substances, except to the extent
that such operations are conducted in accordance with
Environmental Laws; (D) none of the Company, the Property
Partnerships or any Subsidiary has received any notice of a
claim under or pursuant to any Environmental Law pertaining to
a Property or pertaining to other property at which Hazardous
Substances generated or otherwise managed at any Property have
come to be located, or to which such Hazardous Substances have
been transported for treatment or disposal, other than any
claim which may have been fully remediated or finally and
completely resolved by the Company, the Property Partnerships
and/or the lessee of the Property; (E) none of the
13
Company, the Property Partnerships or any Subsidiary has
received any notice from any Governmental Authority (as
defined below) or any other person claiming any violation of
any Environmental Law that is not fully cured as of the date
hereof; and (F) no Property (1) is included or to the
knowledge of the Company, the Property Partnerships or any
Subsidiary, proposed for inclusion on the National Priorities
List issued pursuant to CERCLA (as defined below) by the
United States Environmental Protection Agency (the "EPA") or
on the Comprehensive Environmental Response, Compensation, and
Liability Information System database maintained by the EPA as
a potential CERCLA removal, remedial or response site or (2)
is included or to the knowledge of the Company, the Property
Partnerships or any Subsidiary, proposed for inclusion on, any
similar list of potentially contaminated sites pursuant to any
other applicable Environmental Law nor has the Company, the
Property Partnerships, or any Subsidiary received any written
notice from the EPA or any other Governmental Authority
proposing the inclusion of any Property on such list.
As used herein, "Hazardous Substance" shall include,
without limitation, any hazardous substance, hazardous waste,
toxic or dangerous substance, pollutant, solid waste or
similarly designated materials, including, without limitation,
oil, petroleum, or any petroleum-derived substance or waste,
friable asbestos or asbestos-containing materials, PCBs,
pesticides, explosives, radioactive materials, dioxins, urea
formaldehyde insulation or any constituent of any such
substance, pollutant or waste, including any such substance,
pollutant or waste identified, listed or regulated under any
Environmental Law (including, without limitation, materials
listed in the United States Department of Transportation
Optional Hazardous Material Table, 49 C.F.R. Section 172.101,
as the same may now or hereafter be amended, or in the EPA's
List of Hazardous Substances and Reportable Quantities, 40
C.F.R. Part 302, as the same may now or hereafter be amended);
"Environment" shall mean any surface water, drinking water,
ground water, land surface, subsurface strata, river sediment,
buildings, structures, and ambient, workplace and indoor air;
"Environmental Law" shall mean, without limitation, the
Comprehensive Environmental Response, Compensation and
Liability Act, as amended (42 U.S.C. Section 9601, et seq.)
("CERCLA"), the Resource Conservation Recovery Act, as amended
(42 U.S.C. Section 6901, et seq.), the Clean Air Act, as
amended (42 U.S.C. Section 7401, et seq.), the Clean Water
Act, as amended (33 U.S.C. Section 1251, et seq.), the
Occupational Safety and Health Act of 1970, as amended (15
U.S.C. Section 2601, et seq.), the Toxic Substances Control
Act, as amended (29 U.S.C. Section 651, et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C.
Section 1801, et seq.), together with all rules, regulations
and orders promulgated thereunder and all other federal, state
and local laws, ordinances, rules,
14
regulations and orders and common law relating to the
protection of the environment or of human health from
environmental effects; "Governmental Authority" shall mean any
federal, state or local governmental office, agency or
authority having the duty or authority to promulgate,
implement or enforce any Environmental Law; "Lien" shall mean,
with respect to any Property, any material mortgage, deed of
trust, pledge, security interest, lien, encumbrance, penalty,
fine, charge, assessment, judgment or other liability in, on
or affecting such Property; and "Release" shall mean any
spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, emanating
or disposing of any Hazardous Substance into the Environment,
including, without limitation, the abandonment or discard of
barrels, containers, tanks (including, without limitation,
underground storage tanks) or other receptacles containing or
previously containing any Hazardous Substance or any release,
emission, discharge or similar term, as those terms are
defined or used in any Environmental Law.
Each of the Company, the Property Partnerships and
their Subsidiaries is insured by insurers of recognized
financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in
which they are engaged.
Each of the Company, the Property Partnerships and
their Subsidiaries has obtained title insurance on all of the
properties owned by each of them covering risks and in amounts
that are commercially reasonable for the assets owned by them
and that are consistent with the types and amounts of
insurance typically maintained by current owners of similar
properties, and in each case such title insurance is in full
force and effect.
The assets of the Company and the Property
Partnerships do not constitute "plan assets" under the
Employee Retirement Income Security Act of 1974, as amended.
The Company was organized and has operated in
conformity with the requirements for qualification and
taxation as a REIT for its taxable years ending December 31,
1993, 1994, 1995 and 1996, and its current organization and
method of operation should enable it to continue to meet the
requirements for qualification and taxation as a REIT.
The Property Partnerships are properly classified as
partnerships, and not as corporations or as associations
taxable as corporations, for Federal income tax purposes
through the date hereof, or, in the case of any Subsidiary
Partnerships that have terminated, through the date of
15
termination of such Subsidiary Partnerships.
Each of the Company, the Property Partnerships and
their Subsidiaries has filed all federal, state, local and
foreign income tax returns which have been required to be
filed (except where the failure to file would not have a
Material Adverse Effect) and has paid all taxes required to be
paid and any other assessment, fine or penalty levied against
it, to the extent that any of the foregoing is due and
payable, except in all cases for any such tax, assessment,
fine or penalty that is being contested in good faith.
The partnership agreements of the Property
Partnerships (the "Operating Partnership Agreements") have
been duly authorized, executed and delivered by the parties
thereto and constitute the valid agreement thereof,
enforceable in accordance with their terms, except as (A) the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and (B) the availability
of equitable remedies may be limited by equitable principles
of general applicability; and the execution, delivery and
performance of the Operating Partnership Agreements did not,
at the time of execution and delivery, and do not constitute a
breach of, or default under any material contract, lease or
other instrument to which the Property Partnerships are a
party or by which their properties may be bound or any law,
administrative regulation or administrative or court decree.
The Shares will be listed on the New York Stock
Exchange on the applicable Representation Date and at the
applicable Closing Time, subject to official notice of
issuance.
The Company and the Property Partnerships have not
taken and will not take, directly or indirectly, any action
prohibited by Regulation M under the ▇▇▇▇ ▇▇▇.
(b) Any certificate signed by any officer of the Company, the
Property Partnerships or any Subsidiary and delivered to you or to counsel for
the Underwriters in connection with the offering of the Shares shall be deemed a
representation and warranty by the Company and the Property Partnerships to each
Underwriter as to the matters covered thereby on the date of such certificate
and, unless subsequently amended or supplemented, at each Representation Date
subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) The several commitments of the Underwriters to purchase
the Shares pursuant to the Pricing Agreement shall be deemed to have been made
on the basis
16
of the representations and warranties herein contained and shall be subject to
the terms and conditions set forth herein or in the Pricing Agreement.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company does hereby grant an option to the Underwriters named in the
Pricing Agreement, severally and not jointly, to purchase up to 420,000 Option
Shares at a price per Option Share equal to the price per Initial Share, less an
amount equal to any dividends or distributions declared by the Company or the
Property Partnerships and paid or payable on the Initial Shares but not payable
on the Option Shares. Such option will expire 30 days after the Representation
Date relating to the Initial Shares, and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Initial Shares upon
notice by you to the Company setting forth the number of Option Shares as to
which the several Underwriters are then exercising the option and the time, date
and place of payment and delivery for such Option Shares. Any such time and date
of payment and delivery (each, a "Date of Delivery") shall be determined by you,
but shall not be later than eight full business days and not be earlier than two
full business days after the exercise of said option, unless otherwise agreed
upon by you and the Company or postponed in accordance with Section 10 hereof.
If the option is exercised as to all or any portion of the Option Shares, each
of the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Shares then being purchased which the
number of Initial Shares each such Underwriter has severally agreed to purchase
as set forth in the Pricing Agreement bears to the total number of Initial
Shares, subject to such adjustments as you in your discretion shall make to
eliminate any sales or purchases of a fractional number of Option Shares.
(c) Payment of the purchase price for, and delivery of, the
Initial Shares to be purchased by the Underwriters shall be made at the offices
of Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at
such other place as shall be agreed upon by you and the Company, at 10:00 a.m.
(Eastern time) on the third business day (or the fourth business day if the
pricing occurs after 4:30 p.m. (New York City time) on any given business day,
or unless postponed in accordance with the provisions of Section 10) following
the date of the Pricing Agreement, or such other time as shall be agreed upon by
you and the Company (each such time and date of payment and delivery being
herein called a "Closing Time"). In addition, in the event that the Underwriters
have exercised their option to purchase any or all of the Option Shares, payment
of the purchase price for, and delivery of such Option Shares, shall be made at
the above-mentioned offices of Bear, ▇▇▇▇▇▇▇ & Co., Inc., or at such other place
as shall be agreed upon by you and the Company, on the relevant Date of Delivery
as specified in the notice from you to the Company.
Payment shall be made to the Company by wire transfer of
immediately available funds payable to the order of the Company against delivery
to you for the respective accounts of the Underwriters of the Shares to be
purchased by them. It is understood that each Underwriter has authorized you,
for its account, to accept delivery
17
of, receipt for, and make payment of the purchase price, for the Shares which it
has severally agreed to purchase. You, individually and not as representatives
of the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Shares to be purchased by any Underwriter whose check has
not been received by the Closing Time or the relevant Date of Delivery, as the
case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) The Shares shall be in such authorized denominations and
registered in such names as you may request in writing at least two full
business days prior to the applicable Closing Time or the relevant Date of
Delivery, as the case may be. The Shares will be made available for examination
and packaging by you on or before the first business day prior to the Closing
Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company and the Property
Partnerships. Each of the Company and the Property Partnerships covenants with
you and with each Underwriter participating in the offering of Shares, as
follows:
(a) In respect of the offering of Shares, the Company
will prepare a Prospectus Supplement setting forth the number
of Shares covered thereby and their terms not otherwise
specified in the Prospectus pursuant to which the Shares are
being issued, the names of the Underwriters participating in
the offering and the number of Shares which each severally has
agreed to purchase, the names of the Underwriters acting as
co-managers in connection with the offering, the price at
which the Shares are to be purchased by the Underwriters from
the Company, the initial public offering price, if any, the
selling concession and reallowance, if any, and such other
information as you and the Company deem appropriate in
connection with the offering of the Shares; and the Company
will promptly transmit copies of the Prospectus Supplement to
the Commission for filing pursuant to Rule 424(b) of the 1933
Act Regulations within the time period required by such Rule
and will furnish to the Underwriters named therein as many
copies of the Prospectus and such Prospectus Supplement as you
shall reasonably request. If, at the time that the
Registration Statement became effective, any information shall
have been omitted therefrom in reliance upon Rule 430A of the
1933 Act Regulations, then immediately following execution of
the Pricing Agreement, the Company will prepare, and file or
transmit for filing with the Commission in accordance with
such Rule 430A and Rule 424(b) of the 1933 Act Regulations,
copies of an amended Prospectus or, if required by such Rule
430A, a post-effective amendment to the Registration Statement
(including an amended Prospectus), including all information
so omitted.
(b) The Company will notify you immediately, and
confirm such notice in writing, of (i) the effectiveness of
any amendment to the
18
Registration Statement, (ii) the transmittal to the Commission
for filing of any Prospectus Supplement or other supplement or
amendment to the Prospectus or any document to be filed
pursuant to the 1934 Act, (iii) the receipt of any comments
from the Commission, (iv) any request by the Commission for
any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information,
and (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or
of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the
qualification of the Shares or offering or sale in any
jurisdiction, or of any proceedings for any of such purposes;
and the Company will make every reasonable effort to prevent
the issuance of any such stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible
moment.
(c) At any time when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection
with sales of the Shares, the Company will give you notice of
its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)
of the 1933 Act Regulations), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or
to the Prospectus, whether pursuant to the 1933 Act, the 1934
Act or otherwise, and will furnish you with copies of any such
documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use
any such document to which you or counsel for the Underwriters
shall reasonably object.
(d) The Company has furnished or will deliver to you
and counsel for the Underwriters, without charge, as many
signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference
therein) and copies of all consents and certificates of
experts, and will also deliver to you without charge, as many
conformed copies of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) as you
may reasonably request. The copies of the Registration
Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant
to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) The Company will deliver to each Underwriter,
without charge, as many copies of each preliminary prospectus
as such Underwriter may reasonably request, and the Company
hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The
19
Company will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus as such Underwriter may reasonably
request. If applicable, the Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
(f) The Company will comply with the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so
as to permit the completion of the distribution of the Shares
as contemplated in this Agreement and the Pricing Agreement
and in the Registration Statement and the Prospectus. If, at
any time when the Prospectus is required by the 1933 Act or
the 1934 Act to be delivered in connection with sales of the
Shares, any event shall occur or condition shall exist as a
result of which it is necessary, in the reasonable opinion of
counsel for the Underwriters or for the Company, to amend or
supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements therein, in light of the circumstances existing at
the time it is delivered to a purchaser, not misleading, or if
it shall be necessary, in the reasonable opinion of either of
such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act
Regulations, then the Company will promptly prepare and file
with the Commission such amendment or supplement in form and
substance reasonably satisfactory to counsel for the
Underwriters, whether by filing documents pursuant to the 1933
Act, the 1934 Act, or otherwise, as may be necessary to
correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and
the Company will furnish to the Underwriters, without charge,
such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(g) The Company will use its reasonable best efforts,
in cooperation with the Underwriters, to qualify the Shares
for offering and sale under the applicable securities laws and
real estate syndication laws of such states and other
jurisdictions (domestic or foreign) as you may designate and
to maintain such qualifications in effect for such period of
time as may be necessary to effect a distribution of such
Shares; provided, however, that the Company shall not be
obligated to file any general consent to service of process or
to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or to subject itself to taxation
in respect to doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the
Shares have been so qualified, the Company will file such
statements and reports as may be required by
20
the laws of such jurisdiction to continue such qualification
in effect for so long as may be required for the distribution
of the Shares.
(h) The Company will make generally available to its
security holders as soon as practicable, but not later than 45
days after the close of the period covered thereby, an earning
statement (in form complying with the provisions of Rule 158
of the 1933 Act Regulations) covering a 12-month period
beginning not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in
such Rule 158) of the Registration Statement.
(i) The Company will use the net proceeds received by
it from the sale of the Shares in the manner specified in the
Prospectus Supplement under "Use of Proceeds."
(j) The Company will file with the New York Stock
Exchange, Inc. all documents and notices required by and has
complied in all material respects and will comply with all
rules and regulations of the New York Stock Exchange, Inc. of
companies that have securities listed on such exchange and the
Company will use its reasonable best efforts to maintain the
listing of its Common Stock on the New York Stock Exchange,
Inc.
(k) The Company and the Property Partnerships will
not, between the date of the Pricing Agreement and the
termination of any trading restrictions or the applicable
Closing Time, whichever is later, with respect to the Shares
covered thereby, without your prior written consent, offer or
sell, grant any option for the sale of, or enter into any
agreement to sell, any securities of the same class or series
or ranking on a parity with such Shares (other than the Shares
which are to be sold pursuant to such Pricing Agreement) or
any security convertible into Common Stock (except for Common
Stock issued pursuant to reservations, agreements, employee
benefit plans, dividend reinvestment plans, or employee and
trustee share options plans), except as may otherwise be
provided in the Pricing Agreement.
(l) The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15 of the
1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
(m) The Company will continue to elect to qualify as
a "real estate investment trust" under the Code, and will use
its best efforts to meet the requirements to continue to
qualify as a "real estate investment trust" under the Code.
21
(n) Except as contemplated by the next sentence,
during the period of 90 days from the date of the Prospectus
Supplement, the Company will not, without your prior written
consent, issue, sell, offer or agree to sell, grant any option
for the sale of, or otherwise dispose of, directly or
indirectly, any Common Stock (or any securities convertible
into, exercisable for or exchangeable for Common Stock), and
the Company will obtain the undertaking of each of its
executive officers and directors and such of its shareholders
as have been heretofore designated by you and listed on
Schedule II attached hereto not to engage in any of the
aforementioned transactions on their own behalf, other than
(i) the Company's sale of Shares hereunder, (ii) the Company's
issuance of Common Stock upon the exercise of presently
outstanding stock options or upon the exchange of Units or the
grant by the Company of options or restricted stock to
employees under any employee benefit or similar plans and the
issuance of Common Stock under the Company's dividend
reinvestment plan, (iii) the issuance of Units in connection
with the acquisition of property so long as such Units do not
represent, in the aggregate, in excess of 10% of the
outstanding equity of the Company and the Property
Partnerships and their Subsidiaries, and (iv) the Company's
issuance of Preferred Stock (or underlying Common Stock) as
contemplated by the Investment Agreement between the Company
and Five Arrows Realty Securities L.L.C. dated as of December
31 1996, notwithstanding the foregoing, the Company may issue
shares of Common Stock in connection with its merger with
Corporate Realty Income Trust I at any time following the 75th
day after the date of the Prospectus Supplement.
(o) Except for the authorization of actions permitted
to be taken by the Underwriters as contemplated herein or in
the Prospectus or for the transactions contemplated by
paragraph (n) above, the Company will not (i) take, directly
or indirectly, any action designed to cause or to result in,
or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares,
(ii) sell, bid for or purchase the Shares or pay any person
any compensation for soliciting purchases of the Shares or
(iii) pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the
Company.
(p) From the date hereof until three years after the
Closing Time, the Company shall furnish to you, promptly upon
their becoming publicly available, copies of any document
filed with the Commission pursuant to Section 13, 14 or 15 of
the 1934 Act or any national securities exchange.
SECTION 4. Payment of Expenses. Whether or not the
transactions contemplated in this Agreement are consummated or this Agreement is
terminated, the
22
Company hereby agrees to pay all costs and expenses incident to the performance
of its obligations under this Agreement or the Pricing Agreement, including (i)
the preparation, printing, duplicating, distributing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the printing, duplicating,
and distributing to the Underwriters of this Agreement, the Pricing Agreement,
any Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale and delivery of the Shares to the
Underwriters, (iii) the preparation, issuance and delivery of the Shares, and
any certificates for the Shares, to the Underwriters, including capital duties,
stamp duties, and stock transfer taxes, if any, (iv) the fees and disbursements
of the Company's counsel, accountants and other advisors or agents (including
transfer agents and registrars), (v) the qualification of the Shares under state
securities laws and real estate syndication laws in accordance with the
provisions of Section 3(g) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation and delivery of the preliminary and final "Blue
Sky Survey" and any amendment thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheet, and the
Prospectus and any amendments or supplements thereto, (vii) the fees and
expenses incurred with respect to the listing of the Shares on any national
securities exchange, and (viii) the filing fees incident to, and the reasonable
fees and disbursements of counsel to the Underwriters in connection with, the
review, if any, by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Shares.
If the Pricing Agreement is terminated by you in accordance
with the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
several obligations of the Underwriters to purchase and pay for the Shares
pursuant to the Pricing Agreement are subject to the accuracy as of the date
hereof and of Closing Time of the representations and warranties of the Company
and the Property Partnerships contained herein, to the accuracy of the
statements of officers of the Company, the Property Partnerships or any
Subsidiary made in any certificate delivered pursuant to the provisions hereof,
to the performance by the Company and the Property Partnerships of all of their
covenants and other obligations hereunder, and to the following further
conditions:
(a) (i) The Registration Statement, including any
Rule 462(b) Registration Statement, shall have become effective under
the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall
have been complied with to the reasonable satisfaction of counsel to
the Underwriters; (ii) a prospectus containing information relating to
the description of the Shares, the specific method of distribution and
similar
23
matters shall have been filed within the prescribed time period, and
prior to the applicable Closing Time with the Commission in accordance
with Rule 424(b) (or any required post-effective amendment providing
such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A), or, if the Company has
elected to rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet
including the Rule 434 information shall have been filed with the
Commission in accordance with Rule 424(b)(7); and (iii) there shall not
have come to your attention any facts that would cause you to believe
that the Prospectus, together with the applicable Prospectus
Supplement, at the time it was required to be delivered to purchasers
of the Shares, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at such
time, not misleading.
(b) At Closing Time, you shall have received the
opinion, dated as of the Closing Time, of Paul, Hastings, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters, to
the effect that:
(i) The Company is a corporation validly existing and
in good standing under the laws of the State of Maryland. The
Company has the corporate power and authority to own and lease
its properties and to conduct its business as described in the
Registration Statement, and is duly qualified as a foreign
corporation in each jurisdiction set forth in a certificate of
an officer of the Company attached as an exhibit to the
opinion (which certificate shall set forth, to the best of
such officer's knowledge, all jurisdictions in which the
Company owns or leases properties or conducts business),
except for those failures to be so qualified or in good
standing which will not in the aggregate have a Material
Adverse Effect.
(ii) Each of the Property Partnerships is validly
existing and in good standing as a limited partnership under
the laws of the State of Delaware. Each of the Property
Partnerships has partnership power and authority to own and
lease its properties and to conduct its business as described
in the Registration Statement and is duly qualified as a
foreign partnership in each jurisdiction set forth in a
certificate of an officer of the general partner of each of
the Property Partnerships attached as an exhibit to the
opinion (which certificate shall set forth, to the best of
such officer's knowledge, all jurisdictions in which each
Property Partnership owns or leases properties or conducts
business), except for those failures to be so qualified or in
good standing which will not in the aggregate have a Material
Adverse Effect.
24
(iii) The authorized shares of capital of the Company
is as set forth under the caption "Capitalization" in the
Prospectus Supplement.
(iv) The Shares have been duly and validly authorized
by all necessary corporate action, and when issued in
accordance with this Agreement against payment of the
consideration set forth in the Pricing Agreement, will be
validly issued, fully paid and non-assessable. The terms of
the Common Stock being sold pursuant to the Pricing Agreement
conform in all material respects to all statements and
description related thereto contained in the Prospectus or
Prospectus Supplement. The issuance of the Shares is not
subject to any preemptive rights or, to counsel's knowledge,
any contractual rights to subscribe for more shares. The form
of certificate used to evidence the Shares complies with all
applicable statutory requirements.
(v) Each of this Agreement and the Pricing Agreement
has been duly and validly authorized, executed and delivered
by the Company and the Property Partnerships, and each of the
Company and the Property Partnerships has the corporate or
partnership power and authority, as the case may be, to
perform its obligations hereunder and thereunder.
(vi) The execution and delivery of this Agreement and
the Pricing Agreement by each of the Company and the Property
Partnerships, and the performance by each of the Company and
the Property Partnerships of its obligations hereunder and
thereunder and the consummation of the transactions
contemplated hereunder and thereunder, do not conflict with or
constitute a breach or violation of, or 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 properties or assets
of the Company, the Property Partnerships or their
Subsidiaries pursuant to the terms of: (1) any material
contract, indenture, mortgage, loan or credit agreement, note,
lease, joint venture or partnership agreement or other
material instrument or agreement to which the Company or
Property Partnerships is a party or by which it or any of its
respective properties or other assets or any Property may be
bound or subject in each case which the Company has
specifically identified as material as set forth in a schedule
to the opinion of counsel for the Company; (2) the
certificates of limited partnership or partnership agreements
of the Property Partnerships; (3) any statute of the State of
New York, the State of Maryland or the United States of
America or the Revised Uniform Limited Partnership Act of the
State of Delaware; or (4) any applicable law, rule, order,
administrative regulation or administrative or court decree
which, in each case, is applicable to the Company, the
Property Partnerships or their Subsidiaries or any of their
properties and of which such counsel has knowledge, except
that no
25
opinion need be expressed under clauses (3) and (4) above as
to this Agreement or the Pricing Agreement with respect to
federal, state or foreign securities laws or real estate
syndicate laws.
(vii) The Registration Statement is effective under
the 1933 Act and, to our knowledge, no stop order suspending
the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings for that purpose
initiated or threatened by the Commission.
(viii) No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or
with any court or any public, governmental or regulatory body
or agency and no consent, approval, or authorization of any
person other than the Company and the Property Partnerships is
legally required for the execution, delivery and performance
by each of the Company and the Property Partnerships of its
obligations under this Agreement, the Pricing Agreement,
except such as may be required under the 1933 Act, by the
National Association of Securities Dealers, and the
securities, Blue Sky or real estate syndication laws of
various states in connection with the offer and sale of the
Shares with no opinion being expressed as to Blue Sky, real
estate syndication laws or NASD regulations.
(ix) To such counsel's knowledge, there is
no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending
or threatened against or affecting the Company, the Property
Partnerships, any Subsidiary or any material property of the
Company that is required to be disclosed in the Registration
Statement (other than as disclosed therein) or that, if
determined adversely to the Company, the Property
Partnerships, any Subsidiary or any property could reasonably
be expected to materially and adversely affect the
consummation of the transactions contemplated by this
Agreement. To such counsel's knowledge, there are no contracts
or documents of the Company, the Property Partnerships or any
Subsidiary which are required by the 1933 Act, or by the 1933
Act Regulations, the 1934 Act, or the 1934 Act Regulations to
be filed as exhibits to the Registration Statement, the
Prospectus or the documents incorporated by reference which
have not been so filed as exhibits or incorporated by
reference as required.
(x) None of the Company, the Property Partnerships
or any Subsidiary is an "investment company" or an entity
"controlled" by an "investment company" as such terms are
defined in the 1940 Act.
(xi) The information (A) in the Prospectus under the
heading "Description of Common Stock," and (B) the discussion
in the
26
Prospectus under the heading "Federal Income Tax
Considerations" and "Restrictions on Transfers of Capital
Stock and Anti-takeover Provisions" to the extent that it
constitutes matters of law or legal conclusions, has been
reviewed by such counsel and constitutes a fair summary of the
information disclosed therein.
(xii) At the time the Registration Statement became
effective and at each Representation Date, (A) the
Registration Statement and Prospectus (except for financial
statements and schedules, pro forma financial information and
other financial and statistical data included therein, as to
which such counsel need not express any opinion), excluding
the documents incorporated by reference therein, complied as
to form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and (B) the Prospectus
and the Pricing Agreement, if any, complied with Rule
434(c)(2).
(xiii) Each document heretofore filed pursuant to the
1934 Act and incorporated or deemed to be incorporated by
reference in the Prospectus (except for financial statements
and schedules, pro forma financial information and other
financial and statistical information included or incorporated
by reference therein, as to which such counsel need not
express any opinion) complied as to form in all material
respects with the requirements of the 1934 Act and the
applicable 1934 Act Regulations in effect at the date of their
respective filings.
(xiv) The Company was organized and has operated in
conformity with the requirements for qualification and
taxation as a REIT for its taxable years ending December 31,
1993, 1994, 1995 and 1996, and its current organization and
method of operation should enable it to continue to meet the
requirements for qualification as a REIT.
(xv) The Property Partnerships and each of the
Subsidiary Partnerships are properly classified as
partnerships, and not as corporations or as associations
taxable as corporations, for Federal income tax purposes
through the date hereof, or, in the case of any Subsidiary
Partnership that has terminated, through the date of
termination of such Subsidiary Partnership.
(xvi) Except as disclosed in or incorporated by
reference into the Registration Statement, to such counsel's
knowledge, there are no outstanding rights, warrants or
options to acquire, or instruments convertible into or
exchangeable for, or agreements or understandings with respect
to the sale or issuance of any shares of Common Stock or
capital stock of or other equity or partnership interest in
the Company, the Property Partnerships or any Subsidiary of
the Company, as the case may be.
27
(c) At Closing Time, you shall have received the
favorable opinion, dated as of the applicable Closing Time, of ▇▇▇▇▇ &
▇▇▇▇▇▇▇ L.L.P., counsel for the Underwriters, with respect to the
matters set forth in (v), (viii), (xii) (solely with respect to the
statements in clause (A) of such paragraph (xii)) and (xiii) of Section
5(b) above.
(d) In rendering their opinions required by Sections
5(b) and (c), respectively, Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and
▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. shall each additionally state (which shall not
constitute an opinion) that such counsel has participated in
conferences with officers and representatives of the Company,
representatives of the independent public accountants for the Company
and the Underwriters at which the contents of 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 the
Registration Statement or any amendment thereto (except for financial
statements and supporting schedules and other financial, pro forma,
statistical and accounting information and data included therein or
omitted therefrom, as to which such counsel need not express any view),
as of the time it became effective under the 1933 Act (or as of the
time of filing of the Company's Annual Report on Form 10-K, if filed
subsequent to the time of effectiveness) or at the date of the Pricing
Agreement, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus or
any amendment or supplement thereto (except as aforesaid) as of the
date of the Pricing Agreement or at the Closing Time, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in 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, pro forma, statistical and
accounting data included or incorporated by reference therein).
In giving their opinions required by Sections 5(b)
and 5(c), such counsel (A) may rely as to all matters of fact, upon
certificates and written statements of officers and employees of and
accountants for the Company; (B) may rely as to the qualification and
good standing of each of the Company, the Property Partnerships or any
of the Subsidiaries to do business in any state or jurisdiction, upon
certificates of appropriate government officials or opinions of counsel
in such jurisdictions, which opinions shall be in form and substance
reasonably satisfactory to counsel for the Underwriters; and (C) as to
matters involving the application of laws other than the laws of the
United States and 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 counsel for the Underwriters) of other
counsel reasonably acceptable to counsel for the Underwriters, familiar
with the applicable laws. In giving their belief required in this
Section 5(d), such
28
counsel may state that their belief is based upon their participation
in the preparation of the Registration Statement and Prospectus and any
amendments and supplements thereto and review and discussion of the
contents thereof.
(e) At Closing Time, you shall have received a
certificate of the President or a Vice President of the Company and the
chief financial officer or chief accounting officer of the Company,
dated as of the Closing Time, to the effect that (i) the condition set
forth in subsection (a) of this Section 5 has been satisfied, (ii) the
representations and warranties in Section 1 are true and correct with
the same force and effect as though expressly made at and as of the
Closing Time, (iii) the Company and the Property Partnerships have
complied with all agreements and satisfied all conditions on their part
to be performed or satisfied at or prior to the Closing Time, and (iv)
subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, the Company, the
Property Partnerships and their 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 Property
Partnerships and their Subsidiaries taken as a whole, except in each
case as described in or contemplated by the Prospectus.
(f) At the time of the execution of the Pricing
Agreement, you shall have received from the accountants who have
certified the financial statements and supporting schedules and whose
reports are included in, or incorporated by reference into the
Registration Statement and the Prospectus a letter dated such date
addressed to you, in form and substance reasonably satisfactory to you
together with signed or reproduced copies of such letter for each of
the other Underwriters, to the effect that: (i) they are independent
certified public accountants with respect to the Company, the Property
Partnerships and their Subsidiaries within the meaning of the 1933 Act
and the 1933 Act Regulations; (ii) it is their opinion that the
consolidated financial statements and supporting schedules included or
incorporated by reference in the Registration Statement and the
Prospectus and covered by their opinions therein comply in form in all
material respects with the applicable accounting requirements of the
1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations; (iii) based upon limited procedures set forth in detail in
such letter (which shall include, without limitation, the procedures
specified by the American Institute of Certified Public Accountants for
a review of interim financial information as described in SAS No. 71,
Interim Financial Information, with respect to the unaudited
consolidated financial statements of the Company and the Property
Partnerships included or incorporated by reference in the Registration
Statement), nothing has come to their attention which causes them to
believe that (A) any material modifications should be made to the
unaudited
29
consolidated financial statements included or incorporated by reference
in the Registration Statement for them to be in conformity with GAAP or
(B) the unaudited consolidated financial statements included or
incorporated by reference in the Registration Statement do not comply
as to form in all material respects with the applicable accounting
requirements of the 1934 Act as it applies to Form 10-Q and the related
published rules and regulations or (C) at a specified date not more
than five days prior to the date of the Pricing Agreement, there has
been any change in the Common Stock of the Company or partnership
interests in the Property Partnerships or in the consolidated long term
debt of the Company, the Property Partnerships and their Subsidiaries
or any decrease in the net assets of the Company, as compared with the
amounts shown in the most recent consolidated balance sheet included or
incorporated by reference in the Registration Statement and the
Prospectus or, during the period from the date of the most recent
consolidated statement of operations included or incorporated by
reference in the Registration Statement and the Prospectus to a
specified date not more than five days prior to the date of the Pricing
Agreement, there were any decreases, as compared with the corresponding
period in the preceding year, in consolidated revenues of the Company
and the Property Partnerships, as applicable, except in all instances
for changes, increases or decreases which the Registration Statement
and the Prospectus disclose have occurred or may occur; and (iv) in
addition to the audit referred to in their opinions and the limited
procedures referred to in clause (iii) above, they have carried out
certain specified procedures with respect to certain amounts,
percentages and financial and statistical information which are
included in the Registration Statement and the Prospectus and which are
specified by you, and have found such amounts, percentages and
financial and statistical information to be in agreement with relevant
accounting, financial and other records of the Company and the Property
Partnerships and their Subsidiaries identified in such letter.
(g) At Closing Time, you shall have received from the
accountants who have certified the financial statements and supporting
schedules and whose reports are included in, or incorporated by
reference into the Registration Statement and the Prospectus a letter,
dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (f) of
this Section 5, except that the specified date referred to shall be a
date not more than three business days prior to the Closing Time and if
the Company has elected to rely on Rule 430A of the 1933 Act
Regulations, to the further effect that they have carried out the
procedures specified in clause (iv) of subsection (f) of this section
with respect to certain amounts, percentages and financial and
statistical information specified by you and deemed to be part of the
Registration Statement pursuant to Rule 430A(b) and have found such
amounts, percentages and financial and statistical information to be in
agreement with the records specified in such clause (iv).
(h) At Closing Time, the Shares shall have been
approved for listing on the NYSE, subject only to official notice of
issuance.
30
(i) If the Registration Statement or an offering of
Shares has been filed with the NASD for review, the NASD shall not have
raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(j) On the date of the Pricing Agreement, you shall
have received, in form and substance reasonably satisfactory to you,
each lock-up agreement required to be delivered by the persons listed
in an exhibit to the Pricing Agreement.
(k) In the event that the Underwriters exercise their
over-allotment option to purchase all or any portion of the Option
Shares, the representations and warranties of the Company and the
Property Partnerships contained herein and the statements in any
certificates furnished by the Company or the Property Partnerships
hereunder shall be true and correct as of each Date of Delivery, and,
at the relevant Date of Delivery, you shall have received:
(1) A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company
and the chief financial officer or chief accounting officer of
the Company, confirming that the certificate delivered at the
Closing Time pursuant to Section 5(d) hereof remains true and
correct as of such Date of Delivery.
(2) The favorable opinion of Paul, Hastings,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, in form and
substance reasonably satisfactory to counsel for the
Underwriters, dated such Date of Delivery relating to the
Option Shares and otherwise to the same effect as the opinion
required by Section 5(b) hereof (including the statement of
belief required by Section 5(d) hereof).
(3) The favorable opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇
L.L.P., counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Shares and otherwise to the
same effect as the opinion required by Section 5(c) hereof
(including the statement of belief required by Section 5(d)
hereof).
(4) A letter from the accountants who have
certified the financial statements and supporting schedules
and whose reports are included in, or incorporated by
reference into the Registration Statement and the Prospectus,
in form and substance reasonably satisfactory to you and dated
such Date of Delivery, substantially in the same form and
substance as the letter furnished to you pursuant to Section
5(f) hereof, except that the "specified date" on the letter
furnished pursuant to this paragraph shall be a date not more
than three business days prior to such Date of Delivery.
31
(l) At Closing Time and at each Date of Delivery, counsel for
the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling
them to pass upon the issuance and sale of the Shares as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
or the Property Partnerships in connection with the issuance and sale
of the Shares as herein contemplated shall be reasonably satisfactory
in form and substance to you and counsel for the Underwriters.
(m) If any condition specified in this Section 5 shall not
have been fulfilled when and as required to be fulfilled, or if any of
the certificates, opinions, written statements or letters furnished to
you or to counsel for the Underwriters pursuant to this Section 5 shall
not be in all material respects reasonably satisfactory in form and
substance to you and to counsel for the Underwriters, the Pricing
Agreement (or, with respect to the Underwriters' exercise of its
over-allotment option for the purchase of Option Shares on a Date of
Delivery after the Closing Time, the obligations of the Underwriters to
purchase the Option Shares on such Date of Delivery) may be terminated
by you by notice to the Company at any time at or prior to the Closing
Time (or such Date of Delivery, as applicable), and such termination
shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6 and 7 shall survive
any such termination and remain in full force and effect. Notice of
such cancellation shall be given to the Company in writing, or by
telephone, telex or telegraph, confirmed in writing.
SECTION 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20(a) of
the 1934 Act, against any and all losses, liabilities, claims, damages
and expenses whatsoever as incurred (including but not limited to
reasonable attorneys' fees and any and all reasonable expenses 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 1933
Act, the 1934 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 or the Prospectus, or in any supplement thereto or amendment
thereof, 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; provided,
however, that the Company will not be liable in any such case to the
extent but only to the extent
32
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 by or on
behalf of any Underwriter through you expressly for use therein; and
provided, further, that this indemnity agreement with respect to any
Prospectus shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, liabilities, claims, damages or
expenses purchased Shares, or any person controlling such Underwriter,
if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any such amendments or supplements
thereto, but excluding documents incorporated or deemed to be
incorporated by reference therein) was not sent or given by or on
behalf of such Underwriter to such person, if such is required by law,
at or prior to the written confirmation of the sale of such Shares to
such person and if the Prospectus (as so amended or supplemented, but
excluding documents incorporated or deemed to be incorporated by
reference therein) would have corrected the defect giving rise to such
loss, liability, claim, damage or expense, it being understood that
this proviso shall have no application if such defect shall have been
corrected in a document which is incorporated or deemed to be
incorporated by reference in the Prospectus. This indemnity agreement
will be in addition to any liability which the Company 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 and
officers of the Company who shall have signed the Registration
Statement, and each other person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20(a) of
the 1934 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), jointly or several, to which
they or any of them may become subject under the 1933 Act, the 1934 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 for the registration of the
Shares, as originally filed or any amendment thereof, or any related
preliminary prospectus 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 by or on
behalf of any Underwriter through you expressly for use
33
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 acknowledges that the statements set forth in the last
paragraph of the outside front cover page and in the first three
paragraphs 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 relating to the Shares as originally filed or in any
amendment thereof, any related preliminary prospectus 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 6 unless it shall be materially prejudiced thereby). 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
reasonably 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 reasonable
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, upon written advice of counsel, 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 reasonable fees and
expenses shall be borne by the indemnifying parties The indemnifying
party or parties under subsection (a) or (b) above, shall only be
liable for the legal expenses of one counsel (in addition to any local
counsel) for all indemnified parties in each jurisdiction in which any
claim or action arising out of the same general allegations or
circumstances is brought which firm shall be designated by Bear ▇▇▇▇▇▇▇
with respect to any claim brought against the Underwriters if, as the
indemnified parties, the Underwriters are
34
entitled to employ their own counsel in accordance with the foregoing
provisions of this subsection; PROVIDED, HOWEVER, that the indemnifying
party shall be liable for separate counsel for any indemnified party in
a jurisdiction, if counsel to the indemnified party or parties shall
have reasonably concluded that there may be defenses available to such
indemnified party that are different from or additional to those
available to one or more of the other indemnified parties and that
separate counsel for such indemnified party is prudent under the
circumstances. 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.
SECTION 7. Contribution. In order to provide for contribution
in circumstances in which the indemnification provided for in Section 6 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 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 reasonable 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 any
contribution received by the Company from persons, other than the Underwriters,
who may also be liable for contribution, including persons who control the
Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the
1934 Act, officers of the Company who signed the Registration Statement and
directors of the Company) as incurred to which the Company 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 and the Property
Partnerships and the Underwriters from the 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 6 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 and the Property Partnerships 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 Property Partnerships and
the Underwriters 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 the Property Partnerships
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 and the Property Partnerships and
of 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 Property Partnerships or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
35
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this Section 7, (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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
Notwithstanding the provisions of this Section 7 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 7, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act shall have the
same rights to contribution as such Underwriter, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20(a) of the 1934 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, subject in each case to clauses (i) and
(ii) of this Section 7. 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.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement or the Pricing Agreement or in certificates of officers of the
Company or the Property Partnerships submitted pursuant hereto or thereto shall
remain operative and in full force and effect, regardless of any termination of
this Agreement or the Pricing Agreement or investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company and the
Property Partnerships, and shall survive delivery of and payment for the Shares.
SECTION 9. Termination of Agreement.
(a) You may terminate this Agreement or the applicable Pricing
Agreement, by notice to the Company, at any time at or prior to the applicable
Closing Time or any relevant Date of Delivery, if (i) there has been, since the
time of execution of such Pricing Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in the
condition (financial or otherwise) or in
36
the earnings, business affairs, assets or business prospects of the Company, the
Property Partnerships and their Subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) there has
occurred any material adverse change in the financial markets in the United
States or any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in your judgment, impracticable or
inadvisable to market the Shares or to enforce contracts for the sale of the
Shares, or (iii) trading in any securities of the Company has been suspended or
limited by the Commission or the New York Stock Exchange, Inc. or if trading
generally on the New York Stock Exchange, Inc. or the American Stock Exchange,
Inc. has been suspended or limited, or, minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by either of
said exchanges or order of the Commission or any other governmental authority,
or (iv) a banking moratorium has been declared by either Federal or New York
authorities. As used in this Section 9(a), the term "Prospectus" means the
Prospectus in the form first used to confirm sales of the Shares.
(b) If this Agreement or the applicable Pricing Agreement is
terminated pursuant to this Section 9, such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof, and provided further that Sections 1, 6 and 7 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at the applicable Closing Time or the
relevant Date of Delivery, as the case may be, to purchase the Shares which it
or they are obligated to purchase under the Pricing Agreement (the "Defaulted
Securities"), then you shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, you shall not have completed such arrangements within such
24-hour period, then:
(a) if the number of Defaulted Securities does not
exceed 10% of the number of Shares to be purchased on such
date pursuant to such Pricing Agreement, the non-defaulting
Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their
respective underwriting obligations under such Terms bear to
the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10%
of the number of Shares to be purchased on such date pursuant
to such Pricing Agreement, such Pricing Agreement (or, with
respect to the Underwriters' exercise of any applicable
over-allotment option for the purchase of Option Shares on a
Date of Delivery after the Closing Time, the obligations of
the Underwriters to purchase, and the Company to sell, such
37
Option Shares on such Date of Delivery) shall terminate
without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i)
a termination of Pricing Agreement or (ii) in the case of a Date of Delivery
after the Closing Time, a termination of the obligations of the Underwriters and
the Company with respect to the Option Shares, as the case may be, either you or
the Company shall have the right to postpone the applicable Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding five
business days in order to effect any required changes in the Registration
Statement or the Prospectus or in any other documents or arrangements and the
Company agrees to file promptly any amendment or supplement to the Registration
Statement or the Prospectus which, in the opinion of counsel for the
Underwriters, may thereby be made necessary or advisable.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to such Underwriters c/o Bear, ▇▇▇▇▇▇▇ & Co.
Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇; and
notices to the Company and the Property Partnerships shall be directed to it at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇. ▇▇▇▇▇▇ Eglin,
President.
SECTION 12. Parties. This Agreement shall inure solely to the
benefit of, and shall be binding upon, the Underwriters and the Company and the
controlling persons, directors, officers, employees and agents referred to in
Sections 6 and 7, 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.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE APPLICABLE
PRICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 14. Counterparts. This Agreement and the applicable
Pricing Agreement may be executed in one or more counterparts, and if executed
in more than one counterpart the executed counterparts shall constitute a single
instrument.
SECTION 15. Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the construction
hereof.
38
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this Agreement, along with all counterparts, will become a binding
agreement between you and the Company in accordance with its terms.
Very truly yours,
LEXINGTON CORPORATE
PROPERTIES, INC.
By:_____________________________________
Name:
Title:
LEPERCQ CORPORATE INCOME FUND
L.P., a Delaware limited partnership
By: Lexington Corporate Properties,
Inc., the sole shareholder of LEX
GP 1, Inc., which is sole
general partner of Lepercq
Corporate Income Fund L.P.
By:_______________________________
Name:
Title:
LEPERCQ CORPORATE INCOME FUND
II L.P., a Delaware limited partnership
By: Lexington Corporate Properties, Inc.,
the sole shareholder of LEX GP 1,
Inc., which is sole general
partner of Lepercq Corporate Income
Fund I L.P.
By:_________________________________
Name:
Title:
LXP I, L.P.
39
By: Lexington Corporate Properties, Inc.,
the sole shareholder of LXP I, Inc.,
which is sole general partner of
LXP I, L.P.
By:_________________________________
Name:
Title:
LXP II,L.P.
By: Lexington Corporate Properties, Inc.,
the sole shareholder of LXP II, Inc.,
which is sole general partner of
LXP II, L.P.
By: Lexington Corporate Properties, Inc.,
the sole shareholder of LEX GP 1,
Inc., which is sole general
partner of Lepercq Corporate Income
Fund L.P.
By:_____________________________________
Name:
Title:
CONFIRMED AND ACCEPTED
as of the date first above written:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By:_____________________________
Name:
Title:
Acting on behalf of themselves and the other
named Underwriters
Exhibit A
