EXHIBIT 1.1
1,000,000 SHARES
COMMON STOCK
($.01 PAR VALUE)
UNDERWRITING AGREEMENT
February 18, 1998
X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
The undersigned, Xxxxxx Realty Corporation, a Maryland corporation (the
"Company"), the sole general partner and a limited partner of Xxxxxx Realty,
L.P., a Delaware limited partnership (the "Operating Partnership"), hereby
confirms its agreement with you (the "Underwriter") as follows:
1. Description of Shares. The Company proposes to issue and sell to you
1,000,000 shares (the "Shares") of its common stock, par value $.01 per share
(the "Common Stock"). The Shares are more fully described in the Prospectus
hereinafter defined.
2. Purchase, Sale and Delivery of Shares. On the basis of the
representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to you,
and you agree to purchase from the Company at a purchase price of $26.1250 per
share, the Shares.
The Company will deliver definitive certificates for the Shares at the
office of X.X. Xxxxxxx & Sons, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
("Xxxxxxx' Office"), or such other place as you and the Company may mutually
agree upon (the "Place of Closing"), for your account against payment to the
Company of the purchase price for the Shares sold to you by wire transfer of
immediately available funds, at 10:00 a.m., St. Louis time, on February 23,
1998, or at such other time and date not later than three full business days
thereafter as you and the Company may agree, such time and date of payment and
delivery being herein called the "Closing Date."
The certificates for the Shares so to be delivered will be made available to
you for inspection at Xxxxxxx' Office (or such other place as you and the
Company may mutually agree upon) at least one full business day prior to the
Closing Date and will be in such names and denominations as you may request at
least one full business day prior to the Closing Date.
3. Representations, Warranties and Agreements of the Company and the
Operating Partnership. The Company and the Operating Partnership, jointly and
severally, represent and warrant to and agree with you that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"); a registration statement
(Registration No. 333-45097) on Form S-3, including a prospectus relating
to the registration of the Shares and such other securities which may be
offered from time to time in accordance with Rule 415 under the Act, and
such amendments to such registration statement as may have been required to
the date of this Agreement, has been prepared by the Company and the
Operating Partnership pursuant to and in conformity with the requirements
of the Act, and the Rules and Regulations (the "Rules and Regulations") of
the Securities and Exchange Commission (the "Commission") thereunder, was
filed with the Commission under the Act and was declared effective on
February 11, 1998. Copies of such registration statement, including any
amendments thereto, each related preliminary prospectus contained therein,
the exhibits, financial statements and schedules have heretofore been
delivered by the Company to you. A prospectus supplement (the "Prospectus
Supplement") setting forth the terms of the offering, sale and plan of
distribution of the Shares and additional information concerning the
Company, the Operating Partnership and their subsidiaries (the
"Subsidiaries") and their business has been or will be so prepared and will
be filed pursuant to Rule 424(b) of the Rules and
Regulations on or before the second business day after the date hereof (or
such earlier time as may be required by the Rules and Regulations). The
term "Registration Statement" as used herein means the registration
statement, and the base prospectus included therein, as amended at the time
it or any amendment thereto became effective under the Act, or at any time
any Annual Report on Form 10-K is filed by the Company with the Commission
(the "Effective Date"), including financial statements and all exhibits and
all documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Act. Any document filed by the Company under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") after the effective
date of the Registration Statement or the date of the Prospectus Supplement
and incorporated by reference in the Prospectus shall be deemed to be
included in the Registration Statement and the Prospectus as of the date of
such filing. The term "Prospectus" as used herein means (i) the base
prospectus included in the Registration Statement at the Effective Date, as
supplemented by the Prospectus Supplement as first filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations, except
that, if such base prospectus is amended or supplemented subsequent to the
Effective Date, the term "Prospectus" shall refer to the base prospectus as
so amended or supplemented and as further supplemented by the Prospectus
Supplement, (ii) if no such filing is required, the form of final
prospectus included in the Registration Statement at the Effective Date or
(iii) if a Term Sheet or Abbreviated Term Sheet (as such terms are defined
in Rule 434(b) and 434(c), respectively, of the Rules and Regulations) is
filed with the Commission pursuant to Rule 424(b)(7) of the Rules and
Regulations, the Term Sheet or Abbreviated Term Sheet and the last
Preliminary Prospectus filed with the Commission prior to the time the
Registration Statement became effective, taken together (including, in each
case, the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Act). The term "Preliminary Prospectus" as used
herein shall mean a preliminary prospectus included at any time in the
Registration Statement.
(b) The Commission has not issued, and is not to the knowledge of the
Company or the Operating Partnership threatening to issue, an order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus nor instituted proceedings for that purpose. Each Preliminary
Prospectus at its date of issue, the Registration Statement at the
Effective Date, and the Prospectus at its date of issue and any amendments
or supplements thereto contained, as the case may be, all statements which
are required to be stated therein by, and in all material respects conform
or will conformed to the requirements of, the Act and the Rules and
Regulations. Neither the Registration Statement nor any amendment thereto,
as of the applicable effective date, and neither the Prospectus nor any
supplement thereto, as of its applicable issue date or the Closing Date,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company and the Operating
Partnership make no representation or warranty as to information contained
in or omitted from the Registration Statement or the Prospectus, or any
such amendment or supplement, in reliance upon, and in conforming with,
written information furnished to the Company by you specifically for use in
the preparation thereof.
(c) The documents incorporated by reference in the Prospectus pursuant to
Item 12(a) of Form S-3 under the Act, at the time they were filed with the
Commission, complied in all material respects with the requirements of the
Exchange Act, and the rules and regulations adopted by the Commission
thereunder (the "1934 Act Rules and Regulations"), and, when read together
and with the other information in the Prospectus, at the time the
Registration Statement became effective did 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.
(d) The filing of the Registration Statement and the execution and
delivery of this Agreement by the Company and the Operating Partnership
have been duly authorized by the Board of Directors of the Company; this
Agreement constitutes a valid and legally binding obligation of the Company
and the Operating Partnership enforceable in accordance with its terms
(except to the extent the enforceability of the indemnification and
contribution provisions of Section 6 hereof may be limited by public policy
considerations as expressed in the Act as construed by courts of competent
jurisdiction, and except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws
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affecting creditors' rights generally and by general principles of equity);
the issue and sale of the Shares by the Company and the performance of this
Agreement and the consummation of the transactions herein contemplated will
not result in a violation of the Company's articles of incorporation or
bylaws or the Operating Partnership's Second Amended and Restated Agreement
of Limited Partnership, each as amended, or result in a breach or violation
of any of the terms and provisions of, or 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 Operating Partnership or
the Subsidiaries under, any statute, or under any indenture, mortgage, deed
of trust, note, loan agreement, sale and leaseback arrangement or other
agreement or instrument to which any of the Company, the Operating
Partnership or the Subsidiaries is a party or by which they are bound or to
which any of the properties or assets of the Company, the Operating
Partnership or the Subsidiaries is subject, or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company, the Operating Partnership or the Subsidiaries or their
properties, except in each case for such violations and breaches which
would not reasonably be expected to, individually or in the aggregate,
materially adversely affect the condition (financial or other), net worth,
business, affairs, management or results of operations of the Company, the
Operating Partnership and the Subsidiaries taken as a whole; no consent,
approval, authorization, order, registration or qualification of or with
any court or governmental agency or body is required for the consummation
of the transactions herein contemplated, except such as may be required by
the National Association of Securities Dealers, Inc. (the "NASD") or under
the Act or Rules and Regulations or any state securities laws.
(e) None of the Company, the Operating Partnership or any of the
Subsidiaries has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree. Except as
described in or as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, the Company, the Operating Partnership and
the Subsidiaries taken as a whole have not incurred any material
liabilities or material obligations, direct or contingent, other than in
the ordinary course of business, or entered into any material transactions
not in the ordinary course of business, and there has not been any material
change in the capital stock or long-term debt of the Company and the units
of partnership interest (the "Units") or long-term debt of the Operating
Partnership and the Subsidiaries taken as a whole or any material adverse
change in the condition (financial or other), net worth, business, affairs,
management, or results of operations of the Company, the Operating
Partnership and the Subsidiaries taken as a whole. The Company, the
Operating Partnership and the Subsidiaries have filed all required federal,
state and foreign income and franchise tax returns and paid all taxes shown
as due thereon except in any case in which the failure so to file would not
reasonably be excepted to, individually or in the aggregate, materially
adversely affect the condition (financial or other), net worth, business,
affairs, management or results of operations of the Company, the Operating
Partnership and the Subsidiaries, taken as a whole; all tax liabilities are
adequately provided for on the books of the Company, the Operating
Partnership and the Subsidiaries except to such extent as would not
reasonably be expected to materially adversely affect the condition
(financial or other), net worth, business, affairs, management or results
of operations of the Company, the Operating Partnership and the
Subsidiaries taken as a whole; the Company, the Operating Partnership and
the Subsidiaries have made all required payroll tax payments except for any
such payment that is currently being contested in good faith or the
nonpayment of which would otherwise not reasonably be excepted to,
individually or in the aggregate, materially adversely affect the condition
(financial or other), net worth, business, affairs, management or results
of operations of the Company, the Operating Partnership and the
Subsidiaries, taken as a whole as of the date of this Agreement; and the
Company, the Operating Partnership and the Subsidiaries have no knowledge
of any tax proceeding or action pending or threatened against the Company,
the Operating Partnership or the Subsidiaries which would not reasonably be
excepted to, individually or in the aggregate, materially adversely affect
the condition (financial or other), net worth, business, affairs,
management or results of operations of the Company, the Operating
Partnership and the Subsidiaries, taken as a whole.
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(f) Except as described in the Prospectus, there is not now pending or,
to the knowledge of the Company or the Operating Partnership, threatened or
contemplated, any action, suit or proceeding to which any of the Company,
the Operating Partnership or the Subsidiaries is a party before or by any
court or public, regulatory or governmental agency or body which would
reasonably be excepted to, individually or in the aggregate, materially
adversely affect the condition (financial or other), net worth, business,
affairs, management or results of operations of the Company, the Operating
Partnership and the Subsidiaries, taken as a whole, and there are no
contracts or documents of the Company, the Operating Partnership and the
Subsidiaries which would be required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations which
have not been filed as exhibits to the Registration Statement or
incorporated by reference therein.
(g) The Company has duly and validly authorized capital stock as
described in the Prospectus; all outstanding shares of capital stock of the
Company conform, and the Shares when issued will conform, to the
description thereof in the Prospectus and have been, or, when issued and
paid for will be, duly authorized, validly issued, fully paid and
nonassessable; and the issuance of the Shares to be purchased from the
Company hereunder is not subject to preemptive rights.
(h) Each of the Company, the Operating Partnership and the Subsidiaries
have been duly incorporated or formed, as the case may be, and is a validly
existing corporation or limited partnership, as the case may be, in good
standing under the laws of the state or other jurisdiction in which it is
incorporated or formed, as the case may be. The Company, the Operating
Partnership and the Subsidiaries have full power and authority (corporate
and other) to own, lease and operate their properties and conduct their
businesses as described in the Prospectus; each of the Company, the
Operating Partnership and the Subsidiaries is duly qualified or registered
to do business and is in good standing in each state or other jurisdiction
in which its ownership or leasing of property or conduct of business
legally requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the ability of the
Company and the Operating Partnership to conduct its or their business as
described in the Prospectus; and the outstanding shares of capital stock or
ownership interests of the Subsidiaries have been duly authorized and
validly issued, are, in the case of shares of capital stock, fully paid and
nonassessable and are owned by the Company or Operating Partnership, as the
case may be, free and clear of any mortgage, pledge, lien, encumbrance,
charge or adverse claim.
(i) Deloitte & Touche LLP, the accounting firm which has certified the
financial statements filed with or incorporated by reference in and as a
part of the Registration Statement, is an independent public accounting
firm within the meaning of the Act and the Rules and Regulations.
(j) The consolidated financial statements of the Company together with
the related schedules and notes thereto, set forth or included or
incorporated by reference in the Registration Statement and Prospectus
fairly present the consolidated financial condition of the Company as of
the dates indicated and the consolidated results of operations,
shareholders' equity and cash flows for the periods therein specified, in
conformity with generally accepted accounting principles consistently
applied throughout the periods involved (except as otherwise stated
therein). The summary and selected financial and statistical data included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly the information shown therein and, to the extent
based upon or derived from the financial statements, have been compiled on
a basis consistent with the financial statements presented therein. In
addition, the pro forma financial statements of the Company, and the
related notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the information
shown therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements and have been
compiled on the basis described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred
to therein. Furthermore, all financial statements required by Rule 3-14 of
Regulation S-X ("Rule 3-14") have been included or incorporated by
reference in the Registration Statement and the Prospectus and any such
financial statements are in conformity with the requirements of Rule 3-14.
No other financial statements are required to be set forth or to be
incorporated by reference in the Registration Statement or the Prospectus
under the Act or the Rules and Regulations thereunder.
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(k) None of the Company, the Operating Partnership or any of the
Subsidiaries is in default with respect to any contract or agreement to
which it is a party except for such defaults which would not reasonably be
excepted to, individually or in the aggregate, materially adversely affect
the condition (financial or other), net worth, business, affairs,
management or results of operations of the Company, the Operating
Partnership and the Subsidiaries, taken as a whole.
(l) None of the Company, the Operating Partnership or the Subsidiaries is
in violation of any other laws, ordinances or governmental rules or
regulations to which it is subject, including, without limitation, Section
13 of the Exchange Act, and none of the Company, the Operating Partnership
or any of the Subsidiaries has failed to obtain any license, permit,
franchise, easement, consent, or other governmental authorization necessary
to the ownership, leasing and operation of its properties or to the conduct
of its business, which violation or failure would reasonably be excepted to
materially adversely affect the condition (financial or other), net worth,
business, affairs, management or results of operations of the Company, the
Operating Partnership and the Subsidiaries taken as a whole. None of the
Company, the Operating Partnership or the Subsidiaries has, at any time
since their respective date of organization, (A) made any unlawful
contributions to any candidate for any political office, or failed fully to
disclose any contribution in violation of law, or (B) made any payment to
any state, federal or foreign government official, or other person charged
with similar public or quasi-public duty (other than payment required or
permitted by applicable law).
(m) There are no holders of securities of the Company having rights to
registration thereof or preemptive rights to purchase Common Stock except
as disclosed in the Prospectus.
(n) The Company, the Operating Partnership and each of the Subsidiaries
has good and marketable title to all properties and assets described in the
Prospectus as owned by it, free and clear of all liens, charges,
encumbrances or restrictions, except (i) with respect to land held pursuant
to ground lease or subject to an air space lease, (ii) as otherwise
described in the Prospectus and (iii) such as are not material to the
business of the Company, the Operating Partnership and the Subsidiaries,
taken as a whole. The Company, the Operating Partnership and each of the
Subsidiaries has valid, subsisting and enforceable leases for the
properties described in the Prospectus as leased by it, with such
exceptions as are not material and do not materially interfere with the use
made and proposed to be made of such properties by the Company, the
Operating Partnership and such Subsidiaries; no tenant under any of the
leases pursuant to which the Company or the Operating Partnership leases
its properties has an option or right of first refusal to purchase the
premises demised under such lease except for an such agreements which, if
exercised, would not reasonably be excepted to, individually or in the
aggregate, materially adversely affect the condition (financial or other),
net worth, business, affairs, management or results of operations of the
Company, the Operating Partnership and the Subsidiaries, taken as a whole;
the use and occupancy of each of the properties of the Company and the
Operating Partnership complies in all material respects with all applicable
codes and zoning laws and regulations; each of the Company and the
Operating Partnership has no knowledge of any pending or threatened
condemnation or zoning change that will in any material respect affect the
size of, use of, improvements of, construction on, or access to any of the
properties of the Company and the Operating Partnership and no knowledge of
any pending or threatened proceeding or action that will in any manner
affect the size of, use of, improvements on, construction on, or access to
any of the properties of the Company and the Operating Partnership.
(o) Title insurance in favor of the Company or the Operating Partnership
(or the subsidiary which holds title to such property) is maintained with
respect to each of the properties owned by the Company or the Operating
Partnership in an amount at least equal to the greater of (i) the cost of
acquisition of such property or (ii) the cost of construction by the
Company or the Operating Partnership of the improvements located on such
property (measured at the time of such construction), except, in each case,
where the failure to maintain such title insurance would not reasonably be
expected to, individually or in the aggregate, materially adversely affect
the condition (financial or other), net worth, business, affairs,
management or results of operations of the Company and the Operating
Partnership taken as a whole. Title insurance in favor of the mortgagee is
maintained in an amount equal to the maximum commitment of the related
loan.
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(p) (i) Except as disclosed in the Prospectus, each of the Company and
the Operating Partnership has no knowledge of (A) the presence of any
Hazardous Materials (as defined below) on any of its properties, except
that which is in compliance with all Environmental Laws (as hereinafter
defined) or (B) any spills, releases, discharges or disposals of Hazardous
Materials that have occurred or are presently occurring on or from its
properties, which presence or occurrence would reasonably be expected to,
individually or in the aggregate materially adversely affect the condition
(financial or other), net worth, business, affairs, management or results
of operations of the Company, the Operating Partnership and the
Subsidiaries taken as a whole.
(ii) Except as disclosed in the Prospectus, each of the Company, the
Operating Partnership and the Subsidiaries and their properties (A) are in
compliance with any and all Environmental Laws, (B) have received all
permits, licenses or other approvals required under applicable
Environmental Laws to conduct its business and (C) are in compliance with
all terms and conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not
reasonably be expected to, individually or in the aggregate materially
adversely affect the condition (financial or other), net worth, business,
affairs, management or results of operations of the Company, the Operating
Partnership and the Subsidiaries taken as a whole.
(iii) The Operating Partnership or the Company engages environmental
consultants to perform Phase I environmental site assessments in general
accordance with the ASTM Standard to identify any environmental conditions
prior to the purchase of properties by the Operating Partnership or the
Company. On the basis of such Phase I environmental site assessments, or
such additional investigations as may have been performed based on the
findings of a Phase I assessment, and, except as described in the
Prospectus, the Company and the Operating Partnership have reasonably
concluded that no such environmental conditions exist which would
reasonably be expected to, individually or in the aggregate, materially
adversely affect the condition (financial or other), net worth, business,
affairs, management or results of operations of the Company, the Operating
Partnership and the Subsidiaries taken as a whole.
(iv) As used herein, "Hazardous Material" shall include, without
limitation any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances, or related
materials, asbestos, polychlorinated biphenyls, petroleum products and by-
products and substances defined or listed as "hazardous substances," "toxic
substances," "hazardous waste," or "hazardous materials" in any Federal.
(v) As used herein, "Environmental Law" shall mean all laws, regulations
or ordinances of any federal, state or local governmental authority having
or claiming jurisdiction over any of their properties that are designed to
protect public health and the environment or regulate the handling of
Hazardous Materials, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended
(42 U.S.C. Section 9601 et seq.) ("CERCLA"), the Hazardous Material
Transportation Act, as amended (49 U.S.C. Section 1801 et seq.), the
Resource Conservation and Recovery Act, as amended (42 U.S.C. Section 6901
et seq.), the Federal Water Pollution Control Act, as amended (33 U.S.C.
Section 1251 et seq.), and the Clean Air Act, as amended (42 U.S.C. Section
7401 et seq.), and any and all analogous federal, state or local laws.
(q) The Company has not taken and will not take, directly or indirectly,
any action designed to or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of the Common Stock,
and the Company is not aware of any such action taken or to be taken by
affiliates of the Company.
(r) Neither the Company nor the Operating Partnership is an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(s) The mortgages and deeds of trust encumbering the properties and
assets described in the Prospectus are not convertible nor does the Company
or the Operating Partnership hold a participating interest therein except
as described in the Prospectus.
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(t) Property and casualty insurance in favor of the Company or the
Operating Partnership is maintained with respect to each of the properties
owned by it in an amount and on such terms as is reasonable and customary
based on industry standards.
(u) The Company has been organized and operated in conformity with the
requirements for qualification as a real estate investment trust under the
Internal Revenue Code of 1986, as amended (the "Code") for all taxable
years commencing with its taxable year ended December 31, 1997. The Company
will elect to be taxed as a real estate investment trust for such taxable
year and all subsequent taxable years. The Company's proposed method of
operation will permit it to continue to meet the requirements for taxation
as a real estate investment trust under the Code. The Company intends to
continue to operate in a manner which would permit it to qualify as a real
estate investment trust under the Code beginning with the tax year ended
December 31, 1997.
(v) Except as disclosed in the Prospectus, each entity identified in the
Prospectus as a tenant of any property, or a subtenant thereof, has entered
into a lease or a sublease, if applicable, for the possession of such
property and, except as disclosed in the Prospectus, each such lease is in
full force and effect, except for such leases which would not reasonably be
expected to, individually or in the aggregate, materially adversely affect
the condition (financial or other), net worth, business, affairs,
management or results of operations of the Company, the Operating
Partnership and the Subsidiaries, taken as a whole. Neither the Company nor
the Operating Partnership has notice of any defense to the obligations of
the tenant thereunder or any claim asserted or threatened by any person or
entity, which claim, if sustained, would reasonably be expected to,
individually or in the aggregate, materially adversely affect the condition
(financial or other), net worth, business, affairs, management or results
of operations of the Company, the Operating Partnership and the
Subsidiaries taken as a whole; and except as disclosed in the Prospectus,
the lessor under each lease has complied with its obligations under such
lease in all material respects and neither the Company nor the Operating
Partnership has notice of any default by the tenant under such lease which,
individually or in the aggregate with other such defaults, would materially
adversely effect the business, operations, affairs, properties, prospects,
profits or condition (financial or other) of the Company, the Operating
Partnership and the Subsidiaries taken as a whole.
(w) Any certificate signed by officers of the Company or by the Company
as General Partner of the Operating Partnership and delivered to you or to
your counsel shall be deemed a representation and warranty by the Company
or the Operating Partnership, as the case may be, to you as to the matters
covered thereby.
The Shares have been listed on the New York Stock Exchange, subject to
notice of issuance or sale of the Shares, as the case may be.
4. Additional Covenants. The Company covenants and agrees with you that:
(a) The Company will (i) prepare a Prospectus Supplement relating to the
Shares, setting forth their terms not otherwise specified in the
Prospectus, the name of the Underwriter, the price at which the Shares are
to be purchased by the Underwriter from the Company and such other
information as the Underwriter and the Company deem appropriate in
connection with the offering of the Shares, and file the Prospectus in a
form approved by you pursuant to Rule 424(b) under the Act no later than
the Commission's close of business on the second business day following the
date of the determination of the offering price of the Shares; (ii) not
file (and the Operating Partnership will not so file) any amendment to the
Registration Statement or supplement to the Prospectus of which you shall
not previously have been advised and furnished with a copy or to which you
shall have reasonably objected in writing or which is not in compliance
with the Rules and Regulations; and (iii) promptly notify you after it
shall have received notice thereof of the time when any amendment to the
Registration Statement becomes effective or when any supplement to the
Prospectus has been filed.
(b) The Company or the Operating Partnership, as the case may be, will
advise you promptly, after it shall receive notice or obtain knowledge
thereof, of any request of the Commission for amendment of the Registration
Statement or for supplement to the Prospectus or for any additional
information, or of the
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issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the use of the Prospectus or of the
institution or threatening of any proceedings for that purpose, and the
Company and the Operating Partnership will use their best efforts to
prevent the issuance of any such stop order preventing or suspending the
use of the Prospectus and to obtain as soon as possible the lifting
thereof, if issued.
(c) The Company will cooperate with you and your counsel in endeavoring
to qualify the Shares for sale under the securities laws of such
jurisdictions as you may have designated and will make such applications,
file such documents, and furnish such information as may be necessary for
that purpose, provided the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in
any jurisdiction where it is not now so qualified or required to file such
a consent or to subject itself to taxation as doing business in any
jurisdiction where it is not now so taxed. The Company will, from time to
time, file such statements, reports, and other documents, as are or may be
required to continue such qualifications in effect for so long a period as
you may reasonably request.
(d) The Company will deliver to you, without charge as many copies of the
Prospectus (including all documents incorporated by reference therein), or
as it thereafter may be amended or supplemented, as you may from time to
time reasonably request. The Company consents to the use of such Prospectus
by you, both in connection with the offering or sale of the Shares and for
such other purposes and for such period of time thereafter as the
Prospectus is required by law to be delivered in connection with the
offering or sale of the Shares. The Company will deliver to you at or
before the Closing Date two conformed copies of the Registration Statement
and all amendments thereto including all exhibits filed therewith or
incorporated by reference therein and all documents incorporated by
reference in the Prospectus and will deliver to you such number of copies
of the Registration Statement, without exhibits, and of all amendments
thereto, as you may reasonably request.
(e) If, during the period in which a prospectus is required by law to be
delivered by an underwriter or dealer, any event shall occur as a result of
which, in the judgment of the Company or in your judgment or in the opinion
of your counsel, it becomes necessary to amend or supplement the Prospectus
in order to make the statements therein, in light of the circumstances
existing at the time the Prospectus is delivered to a purchaser, not
misleading, or, if it is necessary at any time to amend or supplement the
Prospectus to comply with any applicable law, the Company promptly will
prepare and file with the Commission an appropriate amendment to the
Registration Statement or supplement to the Prospectus so that the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so that the
Prospectus will comply with such law.
(f) The Company will make generally available to its shareholders and
will file as an exhibit in a report pursuant to the Exchange Act, as soon
as it is practicable to do so, but in any event not later than 15 months
after the effective date of the Registration Statement, an earnings
statement in reasonable detail, covering a period of at least 12
consecutive months beginning after the effective date of the Registration
Statement, which earnings statement shall satisfy the requirements of
Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will
advise you in writing when such statement has been so made available.
(g) The Company will apply the proceeds from the sale of the Shares as
set forth in the description under "Use of Proceeds" in the Prospectus,
which description complies in all respects with the requirements of Item
504 of Regulation S-K.
(h) The Company will supply you with copies of all correspondence to and
from, and all documents issued to and by, the Commission in connection with
the registration of the Shares under the Act.
(i) Prior to the Closing Date, the Company will furnish to you, as soon
as they have been prepared, copies of any unaudited interim consolidated
financial statements of the Company and its subsidiaries for any periods
subsequent to the periods covered by the financial statements appearing in
the Registration Statement and the Prospectus.
-8-
(j) Prior to the Closing Date, the Company will notify you in advance of
any press conferences, releases or other communications, to be held or
issued by the Company, with respect to the Company or any of its
subsidiaries, the financial condition, results of operations, business,
properties, assets or liabilities of the Company or any of its
subsidiaries, or the offering of the Shares.
(k) The Company will use its best efforts to obtain approval for, and
maintain the listing of the Shares on, the New York Stock Exchange.
(l) The Company and the Operating Partnership will maintain and keep
accurate books and records reflecting their assets and maintain internal
accounting controls which provide reasonable assurance that
(1) transactions are executed in accordance with management's
authorization, (2) transactions are recorded as necessary to permit the
preparation of the Company's consolidated financial statements and to
maintain accountability for the assets of the Company, the Operating
Partnership and the Subsidiaries, (3) access to the assets of the Company,
the Operating Partnership and the Subsidiaries is permitted only in
accordance with management's authorization, and (4) the recorded accounts
of the assets of the Company, the Operating Partnership and the
Subsidiaries are compared with existing assets at reasonable intervals.
(m) During any period in which a prospectus is required by law to be
delivered by an Underwriter or dealer, the Company will promptly file all
documents required to be filed with the Commission pursuant to Sections 13,
14 or 15(d) of the Exchange Act.
(n) The Company will continue to elect to qualify as a "real estate
investment trust" under the Code, and will use its best efforts to continue
to meet the requirements to qualify as a "real estate investment trust."
5. Conditions of Underwriter's Obligations. Your obligations, as Underwriter
to purchase and pay for the Shares, as provided herein, shall be subject to
the accuracy in all material respects, as of the date hereof and as of the
Closing Date, of the representations and warranties of the Company and the
Operating Partnership contained herein, to the performance in all material
respects by the Company and the Operating Partnership of their covenants and
obligations hereunder, and to the following additional conditions:
(a) All filings required by Rule 424 of the Rules and Regulations shall
have been made. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceeding for that purpose shall have been initiated or, to
your knowledge or the knowledge of the Company or the Operating
Partnership, threatened or contemplated by the Commission, and any request
of the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been
complied with to your reasonable satisfaction.
(b) You shall not have disclosed in writing to the Company on or prior to
the Closing Date, that the Registration Statement or Prospectus or any
amendment or supplement thereto contains an untrue statement of fact which,
in the opinion of your counsel, is material, or omits to state a fact
which, in the opinion of such counsel, is material and is required to be
stated therein or is necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(c) On the Closing Date, you shall have received (i) the opinion of
Xxxxxx & Xxxxxxx, counsel for the Company, addressed to you and dated the
Closing Date, as to the matters set forth in Schedule I attached hereto and
(ii) the opinion of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, counsel for the
Company, addressed to you and dated the Closing Date, as to the matters set
forth in Schedule II attached hereto.
(d) You shall have received on the Closing Date, from Xxxxxxx and Xxxxxx,
your counsel, such opinion or opinions, dated the Closing Date with respect
to the incorporation of the Company, the validity of the Shares, the
Registration Statement, the Prospectus and other related matters as you may
reasonably require; the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to
pass on such matters.
(e) You shall have received at or prior to the Closing Date from Xxxxxxx
and Xxxxxx a memorandum or memoranda, in form and substance satisfactory to
you, with respect to the qualification for offering and
-9-
sale by you of the Shares under state securities or Blue Sky laws of such
jurisdictions as you may have designated to the Company.
(f) On the date of this Agreement and on the Closing Date, you shall have
received from Deloitte & Touche LLP, a letter or letters, dated the date of
this Agreement and the Closing Date, respectively, in form and substance
satisfactory to you, confirming that they are independent public
accountants with respect to the Company within the meaning of the Act and
the published Rules and Regulations, and stating to the effect set forth in
Schedule III hereto.
(g) Except as contemplated in the Prospectus, (i) none of the Company,
the Operating Partnership nor any of the Subsidiaries shall have sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree; and (ii) subsequent to the respective dates as of
which information is given in the Registration Statement and the
Prospectus, none of the Company, the Operating Partnership nor any of the
Subsidiaries shall have incurred any liability or obligation, direct or
contingent, or entered into transactions, and there shall not have been any
change in the capital stock, the Units or long-term debt of the Company,
the Operating Partnership and the Subsidiaries or any change in the
condition (financial or other), net worth, business, affairs, management
taken as a whole, or results of operations of the Company, the Operating
Partnership and the Subsidiaries, the effect of which, in any such case
described in clause (i) or (ii), is in your judgment so material or adverse
as to make it impracticable or inadvisable to proceed with the offering or
the delivery of the Shares being delivered on the Closing Date on the terms
and in the manner contemplated in the Prospectus.
(h) There shall not have occurred any of the following: (i) a suspension
or material limitation in trading in securities generally on the New York
Stock Exchange or the American Stock Exchange or the establishing on such
exchanges by the Commission or by such exchanges of minimum or maximum
prices which are not in force and effect on the date hereof; (ii) a general
moratorium on commercial banking activities declared by either federal or
state authorities; (iii) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in
this clause (iii) in your judgment makes it impracticable or inadvisable to
proceed with the offering or the delivery of the Shares in the manner
contemplated in the Prospectus; (iv) any calamity or crisis, change in
national, international or world affairs, act of God, change in the
international or domestic markets, or change in the existing financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in this clause (iv) makes it
impracticable or inadvisable to proceed with the offering or the delivery
of the Shares in the manner contemplated in the Prospectus; or (v) the
enactment, publication, decree, or other promulgation of any federal or
state statute, regulation, rule, or order of any court or other
governmental authority, or the taking of any action by any federal, state
or local government or agency in respect of fiscal or monetary affairs, if
the effect of any such event specified in this clause (v) in your judgment
makes it impracticable or inadvisable to proceed with the offering or the
delivery of the Shares in the manner contemplated in the Prospectus.
(i) You shall have received a certificate, dated the Closing Date and
signed by the President and the Chief Financial Officer of the Company
stating that (i) they have carefully examined the Registration Statement
and the Prospectus as amended or supplemented and all documents
incorporated by reference therein and nothing has come to their attention
that would lead them to believe that either the Registration Statement or
the Prospectus, or any amendment or supplement thereto or any documents
incorporated by reference therein as of their respective effective, issue
or filing dates, contained, and the Prospectus as amended or supplemented
and all documents incorporated by reference therein and when read together
with the documents incorporated by reference therein, at the Closing Date,
contains any untrue statement of a material fact, or omits to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and, that (ii) all representations and warranties
made herein by the Company and the Operating Partnership are true and
correct in all material respects at the Closing Date, with the same effect
as if made on and as of the
-10-
Closing Date, and all agreements herein to be performed by the Company on
or prior to the Closing Date have been duly performed in all material
respects.
(j) The Company and the Operating Partnership shall not have failed,
refused, or been unable, at or prior to the Closing Date to have performed
in all material respects any agreement on their part to be performed or any
of the conditions herein contained and required to be performed or
satisfied by them at or prior to the Closing Date.
(k) The Company and the Operating Partnership shall have furnished to you
at the Closing Date such other certificates as you may have reasonably
requested as to the accuracy, on and as of the Closing Date, of the
representations and warranties of the Company and the Operating Partnership
herein and as to the performance by the Company and the Operating
Partnership of their obligations hereunder.
(l) The Shares shall have been approved for trading upon official notice
of issuance on the New York Stock Exchange.
All such opinions, certificates, letters and documents will be in compliance
with the provisions hereof only if they are reasonably satisfactory to you and
to Xxxxxxx and Xxxxxx, your counsel. The Company and the Operating Partnership
will furnish you with such conformed copies of such opinions, certificates,
letters and documents as you may request.
If any of the conditions specified above in this Section 5 shall not have
been satisfied as of the Closing Date or waived by you in writing, this
Agreement may be terminated by you on written notice to the Company.
6. Indemnification. (a) The Company and the Operating Partnership will
indemnify and hold you harmless and each person, if any, who controls you
within the meaning of the Act, against any losses, claims, damages or
liabilities, joint or several, to which you or such controlling person may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, or in any blue sky
application or other document executed by the Company or the Operating
Partnership or based on any information furnished in writing by the Company or
the Operating Partnership, filed in any jurisdiction in order to qualify any
or all of the Shares under the securities laws thereof ("Blue Sky
Application"), 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, in light of the circumstances under
which they were made, not misleading; and will reimburse you and each such
controlling person for any legal or other expenses reasonably incurred by you
or such controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company and the Operating Partnership shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, such Preliminary
Prospectus or the Prospectus, or such amendment or supplement, or any Blue Sky
Application in reliance upon and in conformity with written information
furnished to the Company by you, specifically for use in the preparation
thereof; and provided, further, that if any Preliminary Prospectus or the
Prospectus contained any alleged untrue statement or allegedly omitted to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading and such statement or omission
shall have been corrected in a revised Preliminary Prospectus or in the
Prospectus or in an amended or supplemented Prospectus, the Company and the
Operating Partnership shall not be liable to you or controlling persons under
this subsection (a) with respect to such alleged untrue statement or alleged
omission to the extent that any such loss, claim, damage or liability of such
person results from the fact that you sold Shares to a person to whom there
was not sent or given, at or prior to the written confirmation of such sale,
such revised Preliminary Prospectus or Prospectus or amended or supplemented
Prospectus. In addition to its other obligations under this Section 6(a), the
Company and the Operating Partnership agree that, as an interim measure during
the pendency of any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any statement or omission, or any alleged
statement or omission, described in this Section 6(a), it will reimburse you
on a monthly
-11-
basis for all reasonable legal and other expenses incurred pursuant to Section
6(c) hereof in connection with investigating or defending any such claim,
action, investigation, inquiry or other proceeding, notwithstanding the
absence of a judicial determination as to the propriety and enforceability of
the obligation of the Company and the Operating Partnership to reimburse you
for such expenses and the possibility that such payments might later be held
to have been improper by a court of competent jurisdiction. This indemnity
agreement shall be in addition to any liabilities which the Company and the
Operating Partnership may otherwise have.
(b) You will indemnify and hold harmless the Company and the Operating
Partnership, each of its directors, each of its officers who have signed the
Registration Statement and each person, if any, who controls the Company or
the Operating Partnership within the meaning of the Act, against any losses,
claims, damages or liabilities, joint or several, to which the Company, the
Operating Partnership or any such director, officer or controlling person may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus, any amendment or supplement thereto, or any Blue Sky Application
or arise out of or are based upon the omission or the alleged omission to
state therein 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, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, such Preliminary Prospectus
or the Prospectus, such amendment or supplement, or any Blue Sky Application
in reliance upon and in conformity with written information furnished to the
Company by you specifically for use in the preparation thereof; and will
reimburse any legal or other expenses reasonably incurred by the Company, the
Operating Partnership or any such director, officer or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action. In addition to your other obligations under this Section
6(b), you agree that, as an interim measure during the pendency of any claim,
action, investigation, inquiry or other proceeding arising out of or based
upon any statement or omission, or any alleged statement or omission,
described in this Section 6(b), you will reimburse the Company and the
Operating Partnership on a monthly basis for all reasonable legal and other
expenses incurred pursuant to Section 6(c) hereof in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as
to the propriety and enforceability of your obligation to reimburse the
Company and the Operating Partnership for such expenses and the possibility
that such payments might later be held to have been improper by a court of
competent jurisdiction. This indemnity agreement shall be in addition to any
liabilities which you may otherwise have.
(c) Any party which proposes to assert the right to be indemnified under
this Section 6 shall, within ten days after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a
claim is to be made against an indemnifying party under this Section 6, notify
each such indemnifying party of the commencement of such action, suit or
proceeding, enclosing a copy of all papers served, but the omission so to
notify such indemnifying party of any such action, suit or proceeding shall
not relieve such indemnifying party from any liability which it may have to
any indemnified party otherwise than under this Section 6. In case any such
action, suit or proceeding shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory
to such indemnified party, and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its own counsel in any such
action, but the fees and expenses of such counsel shall be at the expense of
such indemnified party (it being understood, however, that in connection with
such action the indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to local counsel) in any one
action or separate but substantially similar actions in the same jurisdiction
arising our of the same general allegations or circumstances) unless (i) the
employment of counsel by such indemnified
-12-
party at the expense of the indemnifying party has been authorized by the
indemnifying party, (ii) the indemnified party shall have been advised by such
counsel in a written opinion that there may be a conflict of interest between
the indemnifying party and the indemnified party in the conduct of the
defense, or certain aspects of the defense, of such action (in which case the
indemnifying party shall not have the right to direct the defense of such
action with respect to those matters or aspects of the defense on which a
conflict exists or may exist on behalf of the indemnified party) or (iii) the
indemnifying party shall not in fact have promptly employed counsel to assume
the defense of such action, in any of which events such fees and expenses to
the extent applicable shall be borne by the indemnifying party. An
indemnifying party shall not be liable for any settlement of any action or
claim effected without its consent. Each indemnified party, as a condition of
such indemnity, shall cooperate in good faith with the indemnifying party in
the defense of any such action or claim.
(d) If the indemnification provided for in this Section 6 is for any reason,
other than pursuant to the terms thereof, judicially determined (by the entry
of a final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right to appeal) to be
unavailable to an indemnified party under subsections (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Operating Partnership and you from the offering of the Shares. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault, as applicable, of the Company and the Operating Partnership and you in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
other relevant equitable considerations. The relative benefits received by, as
applicable, the Company and the Operating Partnership taken together and you
shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by you equal to the
difference between the last reported sales price per share on the New York
Stock Exchange on the date of this Agreement and the purchase price per share
paid by you pursuant to Section 2 hereof, and as set forth on the cover of the
Prospectus, multiplied by the number of shares of Common Stock purchased by
you pursuant to Section 1 hereof. The relative fault shall be determined by
reference to, among other things, whether the untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Operating Partnership or you and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company, the Operating
Partnership and you agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), you shall not be required to contribute any
amount in excess of the underwriting discounts and commissions applicable to
the Shares purchased by you. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
7. Representations and Agreements to Survive Delivery. All representations,
warranties, and agreements of the Company and the Operating Partnership
contained herein or in certificates delivered pursuant hereto, and your
agreements contained in Section 6 hereof, shall remain operative and in full
force and effect regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of you or any controlling
person, the Company and the Operating Partnership or any of their officers,
directors or any controlling persons, and shall survive delivery of the Shares
to you hereunder.
-13-
8. Effective Date and Termination. (a) This Agreement shall become effective
upon execution.
(b) This Agreement may be terminated by you at any time at or prior to the
Closing Date by notice to the Company if any condition specified in Section 5
hereof shall not have been satisfied as of the Closing Date. Any such
termination shall be without liability of any party to any other party except
as provided in Sections 6 and 9 hereof.
If you terminate this Agreement as provided in Sections 8(b), you shall
notify the Company by telephone or telegram, confirmed by letter.
9. Cost and Expenses. The Company will bear and pay the costs and expenses
incident to the registration of the Shares and public offering thereof,
including, without limitation, (a) the fees and expenses of the Company's
accountants and the fees and expenses of counsel for the Company, (b) the
preparation, printing, filing, delivery and shipping of the Registration
Statement, each Preliminary Prospectus, the Prospectus, and any amendments or
supplements thereto (c) the furnishing of copies of such documents to you, (d)
the registration or qualification of the Shares for offering and sale under
the securities laws of the various states, including the reasonable fees and
disbursements of your counsel relating to such registration or qualification,
(e) the fees payable to the NASD (if any) and the Commission in connection
with their review of the proposed offering of the Shares, (f) all printing and
engraving costs related to preparation of the certificates for the Shares,
including transfer agent and registrar fees, (g) all initial transfer taxes,
if any, (h) all fees and expenses relating to the authorization of the Shares
for trading on the New York Stock Exchange, (i) all travel expenses, including
air fare and accommodation expenses, of representatives of the Company in
connection with the offering of the Shares and (j) all of the other costs and
expenses incident to the performance by the Company of the registration and
offering of the Shares; provided, however, that you will bear and pay the fees
and expenses of your counsel (other than fees and disbursements relating to
the registration or qualification of the Shares for offering and sale under
the securities laws of the various states), your out-of-pocket expenses, and
any advertising costs and expenses incurred by you incident to the public
offering of the Shares.
If this Agreement is terminated by you in accordance with the provisions of
Section 8(c), the Company shall reimburse you for all of your out-of-pocket
expenses, including the reasonable fees and disbursements of your counsel.
10. Notices. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to you shall
be mailed, delivered, sent by facsimile transmission, or telegraphed and
confirmed c/o X.X. Xxxxxxx & Sons, Inc. at Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xx.
Xxxxx, Xxxxxxxx 00000, Attention: Syndicate, facsimile number (000) 000-0000,
or if sent to the Company shall be mailed, delivered, sent by facsimile
transmission, or telegraphed and confirmed to the Company at 0000 X. Xxxxxxxx
Xxxxxxx, Xx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Chief Financial Officer,
facsimile number (000) 000-0000.
11. Parties. This Agreement shall inure to the benefit of and be binding
upon you and the Company and the Operating Partnership and each of your and
their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person,
corporation or other entity, other than the parties hereto and their
respective successors and assigns and the controlling persons, officers and
directors referred to in Section 6, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained;
this Agreement and all conditions and provisions hereof being intended to be
and being for the sole and exclusive benefit of the parties hereto and their
respective successors and assigns and said controlling persons and said
officers and directors, and for the benefit of no other person, corporation or
other entity. No purchaser of any of the Shares from you shall be construed a
successor or assign by reason merely of such purchase.
12. Counterparts. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and
the same instrument.
-14-
13. Pronouns. Whenever a pronoun of any gender or number is used herein, it
shall, where appropriate, be deemed to include any other gender and number.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York.
If the foregoing is in accordance with your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement between the Company, the Operating
Partnership and you.
XXXXXX REALTY CORPORATION
By: /s/ Xxxxx X. Xxxx
_________________________________
Xxxxx X. Xxxx
Senior Vice President and
Treasurer
XXXXXX REALTY, L.P.
By: Xxxxxx Realty Corporation, as
General Partner
By: /s/ Xxxxx X. Xxxx
_________________________________
Xxxxx X. Xxxx
Senior Vice President and
Treasurer
Accepted in St. Louis,
Missouri as of the date
first above written.
X.X. XXXXXXX & SONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
_________________________________
Xxxxxxx X. Xxxxxxxxxx
Managing Director
-15-
SCHEDULE I
[OMITTED]
SCHEDULE II
[OMITTED]
SCHEDULE III
[OMITTED]
-16-
