<PAGE> 1
As filed with the Securities and Exchange Commission on December 16, 1996.
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): DECEMBER 12, 1996
EXCEL REALTY TRUST, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MARYLAND 1-12244 33-0160389
(State or Other Jurisdiction of (Commission File Number) (I.R.S. Employer
Incorporation) Identification No.)
16955 VIA DEL CAMPO, SUITE 110 92127
SAN DIEGO, CALIFORNIA (Zip Code)
(Address of Principal Executive Offices)
(619) 485-9400
(Registrant's telephone number, including area code)
NOT APPLICABLE
(Former Name or Former Address, if Changed Since Last Report)
================================================================================
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This Current Report on Form 8-K is filed by Excel Realty Trust, Inc., a
Maryland corporation, in connection with the matters described herein.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
The exhibits listed in the following index relate to the Registration
Statement (No. 33-59195) on Form S-3, as amended, of the Registrant and are
filed herewith for incorporation by reference in such Registration Statement.
(c) Exhibits.
1.01 Underwriting Agreement dated December 12, 1996 between Excel
Realty Trust, Inc. and Prudential Securities Incorporated
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: December 13, 1996 EXCEL REALTY TRUST, INC.
By: /s/ Gary B. Sabin
------------------------------
Gary B. Sabin
Chairman, President and
Chief Executive Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. PAGE
- ----------- ----
<S> <C> <C>
1.01 Underwriting Agreement dated December 12, 1996 between Excel
Realty Trust, Inc. and Prudential Securities Incorporated 5
</TABLE>
<PAGE> 1
EXHIBIT 1.01
Excel Realty Trust, Inc.
2,600,000 Shares1
Common Stock
UNDERWRITING AGREEMENT
December 12, 1996
PRUDENTIAL SECURITIES INCORPORATED
One New York Plaza
New York, New York 10292
Ladies and Gentlemen:
Excel Realty Trust, Inc., a Maryland corporation (the "Company"),
hereby confirms its agreement with you (the "Underwriter").
1. Securities. Subject to the terms and conditions herein contained,
the Company proposes to issue and sell to the Underwriter an aggregate of
2,600,000 shares (the "Firm Securities") of the Company's Common Stock, par
value $.01 per share (the "Common Stock"). The Company also proposes to issue
and sell to the Underwriter not more than 390,000 additional shares of Common
Stock if requested by the Underwriter as provided in Section 3 of this
Agreement. Any and all shares of Common Stock to be purchased by the Underwriter
pursuant to such option are referred to herein as the "Option Securities," and
the Firm Securities and any Option Securities are collectively referred to
herein as the "Securities."
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriter 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 on such
Form (File No. 33- 59195) with respect to the Securities, including a prospectus
subject to completion, has been filed by the Company with the Securities and
Exchange Commission (the "Commission") under the Act, and one or more amendments
to such registration statement may have been so filed. After the execution of
this Agreement, the Company will file with the Commission either (i) if such
registration statement, as it may have been amended, has been declared by the
Commission to be effective under the Act, either (A) if the Company relies on
Rule 434
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1 Plus an option to purchase from Excel Realty Trust, Inc. up to 390,000
additional shares to cover over-allotments.
<PAGE> 2
under the Act, a Term Sheet (as hereinafter defined) relating to the Securities
that shall identify the Preliminary Prospectus (as hereinafter defined) that it
supplements and, if required to be filed pursuant to Rules 434(c)(2) and 424(b),
an Integrated Prospectus (as hereinafter defined), in either case, containing
such information as is required or permitted by Rule 434, 430A and 424(b) under
the Act or (B) if the Company does not rely on Rule 434 under the Act, a
prospectus in the form most recently included in an amendment to such
registration statement (or, if no such amendment shall have been filed, in such
registration statement), with such changes or insertions as are required by Rule
430A under the Act or permitted by Rule 424(b) under the Act, and in the case of
clause (i)(A) or (i)(B) of this sentence as have been provided to and approved
by the Underwriter prior to the execution of this Agreement, or (ii) if such
registration statement, as it may have been amended, has not been declared by
the Commission to be effective under the Act, an amendment to such registration
statement including a form of prospectus, a copy of which amendment has been
furnished to and approved by the Underwriter prior to the execution of this
Agreement. The Company may also file a related registration statement with the
Commission pursuant to Rule 462(b) under the Act for the purpose of registering
certain additional Securities, which registration shall be effective upon filing
with the Commission. As used in this Agreement, the term "Original Registration
Statement" means the registration statement initially filed relating to the
Securities, as amended at the time when it was or is declared effective,
including (A) all financial schedules and exhibits thereto, (B) all documents
incorporated by reference therein filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act") and (C) any information omitted therefrom
pursuant to Rule 430A under the Act and included in the Prospectus (as
hereinafter defined) or, if required to be filed pursuant to Rule 434(c)(2) and
424(b), in the Integrated Prospectus; the term "Rule 462(b) Registration
Statement" means any registration statement filed with the Commission pursuant
to Rule 462(b) under the Act (including the Registration Statement and any
Preliminary Prospectus or Prospectus incorporated therein at the time such
Registration Statement becomes effective); the term "Registration Statement"
includes both the Original Registration Statement and any Rule 462(b)
Registration Statement; the term "Preliminary Prospectus" means each prospectus
subject to completion filed with such registration statement or any amendment
thereto (including the prospectus subject to completion, if any, included in the
Registration Statement or any amendment thereto at the time it was or is
declared effective), including all documents incorporated by reference therein
filed under the Exchange Act; the term "Prospectus" means:
(A) if the Company relies on Rule 434 under the Act, the Term
Sheet relating to the Securities that is first filed pursuant
to Rule 424(b)(7) under the Act, together with the preliminary
Prospectus identified therein that such Term Sheet
supplements;
(B) if the Company does not rely on Rule 434 under the Act, the
prospectus relating to the Securities first filed with the
Commission pursuant to Rule 424(b) under the Act; or
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(C) if the Company does not rely on Rule 434 under the Act and if
no prospectus is required to be filed pursuant to Rule 424(b)
under the Act, the prospectus included in the Registration
Statement, including, in the case of clauses (A), (B) or (C)
of this sentence, all documents incorporated by reference
therein filed under the Exchange Act; the term "Integrated
Prospectus" means a prospectus first filed with the Commission
pursuant to Rules 434(c)(2) and 424(b) under the Act; and the
term "Term Sheet" means any abbreviated term sheet that
satisfies the requirements of Rule 434 under the Act. Any
reference in this Agreement to an "amendment or supplement" to
any Preliminary Prospectus, the Prospectus or any Integrated
Prospectus or an "amendment" to any registration statement
(including the Registration Statement) shall be deemed to
include any document incorporated by reference therein that is
filed with the Commission under the Exchange Act after the
date of such Preliminary Prospectus, Prospectus, Integrated
Prospectus or registration statement, as the case may be; any
reference herein to the "date" of a Prospectus that includes a
Term Sheet shall mean the date of such Term Sheet. For
purposes of the preceding sentence, any reference to the
"effective date" of an amendment to a registration statement
shall, if such amendment is effected by means of the filing
with the Commission under the Exchange Act of a document
incorporated by reference in such registration statement, be
deemed to refer to the date on which such document was so
filed with the Commission.
(b) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus. When any Preliminary Prospectus and any
amendment or supplement thereto was filed with the Commission, it (i) contained
all statements required to be stated therein in accordance with, and complied in
all material respects with the requirements of, the Act, the Exchange Act and
the respective rules and regulations of the Commission thereunder, and (ii) did
not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. When the
Registration Statement or any amendment thereto was or is declared effective, it
(i) contained or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects with the
requirements of, the Act, the Exchange Act and the respective rules and
regulations of the Commission thereunder and (ii) did not or will not include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading. When the Prospectus or
any Term Sheet that is a part thereof or any Integrated Prospectus or any
amendment or supplement to the Prospectus is filed with the Commission pursuant
to Rule 424(b) (or, if the Prospectus or part thereof or such amendment or
supplement is not required to be so filed, when the Registration Statement or
the amendment thereto containing such amendment or supplement to the Prospectus
was or is declared effective), on the date when the Prospectus is otherwise
amended or supplemented and on the Firm Closing Date and any Option Closing Date
(both as hereinafter defined), each of the Prospectus, and, if required to be
filed pursuant to Rules
3
<PAGE> 4
434(c)(2) and 424(b) under the Act, the Integrated Prospectus as amended or
supplemented at any such time, (i) contained or will contain all statements
required to be stated therein in accordance with, and complied or will comply in
all material respects with the requirements of, the Act, the Exchange Act and
the respective rules and regulations of the Commission thereunder and (ii) did
not or will not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
foregoing provisions of this paragraph (b) do not apply to statements or
omissions made in any Preliminary Prospectus or any amendment or supplement
thereto, the Registration Statement or any amendment thereto, the Prospectus or,
if required to be filed pursuant to Rules 434(c)(2) and 424(b) under the Act,
the Integrated Prospectus or any amendment or supplement thereto, in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter specifically for use therein.
(c) If the Company has elected to rely on Rule 462(b), (i) the Company
has filed a Rule 462(b) Registration Statement in compliance with and that is
effective upon filing pursuant to Rule 462(b) and has received confirmation of
its receipt and (ii) the Company has given irrevocable instructions for
transmission of the applicable filing fee in connection with the filing of the
Rule 462(b) Registration Statement, in compliance with Rule 111 promulgated
under the Act or the Commission has received payment of such filing fee.
(d) The Company has been duly incorporated 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 and to
conduct its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement and the Terms Agreement; the
Company is duly qualified as a foreign corporation 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 or the conduct of
business, except where the failure to so qualify or to be in good standing would
not have a material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(e) Each subsidiary (which term, as used in this Agreement, includes
corporations, limited and general partnerships, joint ventures and other
entities) of the Company has been duly organized and is validly existing and in
good standing under the laws of the jurisdiction of its organization, has power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and any Integrated Prospectus (or, if
the Prospectus and any required Integrated Prospectus are not in existence, the
most recent Preliminary Prospectus) and is duly qualified 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 or the
conduct of business, except where the failure to so qualify or to be in good
standing would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; except as otherwise
stated in the Prospectus and
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<PAGE> 5
any Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus), all of
the issued and outstanding capital stock of or other ownership interests in each
such subsidiary have been duly authorized and validly issued, are fully paid and
non-assessable and are owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity, except for security interests granted in respect of
indebtedness of the Company or any of its subsidiaries and described in the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospects) and except that all of the partnership interests in EH Properties,
L.P. owned by the Company have been pledged as security for borrowings under the
Secured Revolving Credit Facility from The First National Bank of Boston
described in the Prospectus and any Integrated Prospectus (or, if the Prospectus
and any required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(f) Each of the partnership and joint venture agreements to which the
Company or any of its subsidiaries is a party, and which relates to real
property described in the Prospectus, has been duly authorized, executed and
delivered by such applicable party and constitutes the valid agreement thereof,
enforceable in accordance with its terms, except as limited by (a) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights or remedies of creditors
or (b) the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law, and the discretion of the court
before which any proceeding therefor may be brought; and the execution, delivery
and performance of any of such agreements by the Company or its subsidiaries, as
applicable, did not, at the time of execution and delivery, and does not
constitute a breach of, or default under, the charter or by-laws (or other
organizational documents) of such party or any material contract, lease or other
instrument to which such party is a party or by which its properties may be
bound or any law, administrative regulation or administrative or court decree.
(g) The Company has an authorized, issued and outstanding
capitalization as set forth in the Registration Statement and each of the
Prospectus and any Integrated Prospectus or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus. All of the issued shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and nonassessable. The
Firm Securities and the Option Securities have been duly authorized and at the
Firm Closing Date or the related Option Closing Date (as the case may be), after
payment therefor in accordance herewith, will be validly issued, fully paid and
nonassessable. No holders of outstanding shares of capital stock of the Company
are entitled as such to any preemptive or other rights to subscribe for any of
the Securities, and no holder of securities of the Company has any right which
has not been fully exercised or waived to require the Company to register the
offer or sale of any securities owned by such holder under the Act in the public
offering contemplated by this Agreement.
5
<PAGE> 6
(h) The capital stock of the Company conforms to the description
thereof contained in the Registration Statement and each of the Prospectus and
any Integrated Prospectus or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus.
(i) Except as disclosed in the Registration Statement and each of the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus), there are not outstanding (i) securities, partnership interests or
obligations of the Company or any of its subsidiaries convertible into or
exchangeable for any capital stock of the Company or ownership interest in the
subsidiaries, (ii) warrants, rights or options to subscribe for or purchase from
the Company or any of its subsidiaries any such capital stock or ownership
interest or any such convertible or exchangeable securities, partnership
interests or obligations, or (iii) obligations of the Company or any of its
subsidiaries to issue any shares of capital stock or ownership interest, any
such convertible or exchangeable securities, partnership interests or
obligations, or any such warrants, rights or options.
(j) The consolidated financial statements and schedules of the Company
and its subsidiaries included in the Registration Statement and each of the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus) fairly present the financial position of the Company and the
consolidated subsidiaries and the results of operations and changes in financial
condition as of the dates and periods therein specified. Such financial
statements and schedules have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved (except as otherwise noted therein). The selected financial data set
forth under the caption "Selected Financial Information" in the Registration
Statement and each of the Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus) fairly present, on the basis stated in the
Registration Statement and each of the Prospectus and any Integrated Prospectus
(or such Preliminary Prospectus), the information included therein.
(k) Coopers & Lybrand LLP, who have certified certain financial
statements of the Company and the consolidated subsidiaries and delivered their
report with respect to the audited consolidated financial statements and
schedules included in the Registration Statement and each of the Prospectus and
any Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus), are
independent public accountants as required by the Act, the Exchange Act and the
related published rules and regulations thereunder.
(l) The execution and delivery of this Agreement have been duly
authorized by the Company and this Agreement has been duly executed and
delivered by the Company and is the valid and binding agreement of the Company.
6
<PAGE> 7
(m) No legal or governmental proceedings are pending to which the
Company or or any of its subsidiaries is a party or to which the property of the
Company or any of its subsidiaries is subject that are required to be described
in the Registration Statement or each of the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus), and, to the knowledge of
the Company, no such proceedings have been threatened against the Company or any
of its subsidiaries or with respect to any of their respective properties; and
no contract or other document is required to be described in the Registration
Statement or the Prospectus or any Integrated Prospectus (or, if the Prospectus
and any required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus) or to be filed as an exhibit to the Registration
Statement that is not described therein or filed as required.
(n) The issuance, offering and sale of the Securities to the
Underwriter by the Company pursuant to this Agreement, the compliance by the
Company with the other provisions of this Agreement and the consummation of the
other transactions herein contemplated do not (i) require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, except such as have been obtained, such as may be required under
state securities or blue sky laws or real estate syndication laws and, if the
registration statement filed with respect to the Securities (as amended) is not
effective under the Act as of the time of execution hereof, such as may be
required (and shall be obtained as provided in this Agreement) under the Act, or
(ii) conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries or
any of their respective properties are bound, or the charter documents (or other
formation documents) or by-laws of the Company or any of its subsidiaries, or
any statute or any judgment, decree, order, rule or regulation of any court or
other governmental authority or any arbitrator applicable to the Company or any
of its subsidiaries.
(o) Subsequent to the respective dates as of which information is given
in the Registration Statement and each of the Prospectus or any Integrated
Prospectus or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus, neither the Company nor
any of its subsidiaries, considered as one enterprise, has 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, to the Company's
knowledge, any development involving a prospective material adverse change, in
the condition (financial or otherwise), management, business prospects, net
worth, or results of operations of the Company or any of its subsidiaries,
considered as one enterprise, except in each case as described in or
contemplated by the Registration Statement and each of the Prospectus and any
Integrated Prospectus or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus.
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<PAGE> 8
(p) The Company has not, directly or indirectly, (i) taken any action
designed to cause or to result in, or that has constituted or which 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
Securities or (ii) since the filing of the Registration Statement (A) sold, bid
for, purchased, or paid anyone any compensation for soliciting purchases of, the
Securities or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(q) The Company has not distributed and, prior to the later of (i) the
Firm Closing Date and (ii) the completion of the distribution of the Securities,
will not distribute any offering material in connection with the offering and
sale of the Securities other than the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, or other materials, if any permitted by the Act.
(r) Subsequent to the respective dates as of which information is given
in the Registration Statement and each of the Prospectus or any Integrated
Prospectus (or, if the Prospectus or any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus), (i) the Company and its
subsidiaries, considered as one enterprise, have not incurred any material
liability or obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (ii) the Company has not
purchased any of its outstanding capital stock, nor declared, paid or otherwise
made any dividend or distribution of any kind on its capital stock; and (iii)
there has not been any material change in the capital stock, ownership interest,
short-term debt or long-term debt of the Company and the consolidated
subsidiaries, considered as one enterprise, except in each case as described in
or contemplated by the Registration Statement and each of the Prospectus or any
Integrated Prospectus (or, if the Prospectus or any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus).
(s) The Company and its subsidiaries have good and marketable title in
fee simple to all items of real property and marketable title to all personal
property owned by each of them, in each case free and clear of any security
interests, liens, encumbrances, equities, claims and other defects, except such
as do not materially and adversely affect the value of such property and do not
interfere with the use made or proposed to be made of such property by the
Company or its subsidiaries, and any real property and buildings held under
lease by the Company or its subsidiaries are held under valid, subsisting and
enforceable leases, with such exceptions as are not material and do not
interfere with the use made or proposed to be made of such property and
buildings by the Company or its subsidiaries, in each case except as described
in or contemplated by the Registration Statement and each of the Prospectus or
any Integrated Prospectus (or, if the Prospectus or any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus).
(t) The Company and its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and
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<PAGE> 9
customary in the businesses in which they are engaged; and neither the Company
nor its subsidiaries has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not materially and adversely affect the condition
(financial or otherwise), business prospects, net worth or results of operations
of the Company and its subsidiaries considered as one enterprise, except as
described in or contemplated by the Registration Statement and each of the
Prospectus or any Integrated Prospectus (or, if the Prospectus or any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus).
(u) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective businesses
described in the Prospectus or any Integrated Prospectus (or, if the Prospectus
or any required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus), other than those the failure to possess or own would
not have a material adverse effect on the condition (financial or otherwise),
business prospects, net worth or results of operations of the Company and its
subsidiaries considered as one enterprise, and neither the Company nor its
subsidiaries have received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a material adverse change in the condition (financial
or otherwise), business prospects, net worth or results of operations of the
Company and its subsidiaries considered as one enterprise, except as described
in or contemplated by the Registration Statement and each of the Prospectus or
any Integrated Prospectus (or, if the Prospectus or any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus).
(v) Except as otherwise disclosed in the Prospectus or any Integrated
Prospectus (or, if the Prospectus or any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus), the Company has no
knowledge of: (a) the unlawful presence of any hazardous substances, hazardous
materials, toxic substances or waste materials (collectively, "Hazardous
Materials") on any of the properties owned by the Company or any of its
subsidiaries, or (b) any unlawful spills, releases, discharges or disposal of
Hazardous Materials that have occurred or are presently occurring on or from any
such properties as a result of any construction on or operation and use of such
properties, which presence or occurrence would have a material adverse effect on
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise; and in connection with the construction on or operation and use of
the properties owned by the Company or its subsidiaries, the Company has no
knowledge of any material failure to comply with all applicable local, state and
federal environmental laws, regulations, ordinances and administrative and
judicial orders relating to the generation, recycling, reuse, sale, storage,
handling, transport and disposal of any Hazardous Materials that could have a
material
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<PAGE> 10
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(w) The Company is not an investment company under the Investment
Company Act of 1940, as amended (the "Investment Company Act"), and this
transaction will not cause the Company to become an investment company subject
to registration under the Investment Company Act.
(x) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a material
adverse effect on the Company and its subsidiaries considered as one enterprise)
and has paid all taxes required to be paid by it and any other assessment, fine
or penalty levied against it, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is currently being
contested in good faith or as described in or contemplated by the Registration
Statement and each of the Prospectus or any Integrated Prospectus (or, if the
Prospectus or any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus).
(y) The Company and its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(z) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for which the
Company would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing has
occurred, whether any action or by failure to act, which would cause the loss of
such qualification.
(aa) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-198,
an Act Relating to Disclosure of doing Business with Cuba, and the Company
further agrees that if it commences engaging in business with the government of
Cuba or with any person or affiliate located in Cuba after
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<PAGE> 11
the date the Registration Statement becomes or has become effective with the
Commission or with the Florida Department of Banking and Finance (the
"Department"), whichever date is later, or if the information reported or
incorporated by reference in the Prospectus, if any, concerning the Company's
business with Cuba or with any person or affiliate located in Cuba changes in
any material way, the Company will provide the Department notice of such
business or change, as appropriate, in a form acceptable to the Department.
(ab) Commencing with the Company's taxable year beginning January 1,
1993, the Company has been organized in conformity with the requirements for
qualification as a real estate investment trust (a "REIT") under Sections 856
through 860 of the Code and the rules and regulations thereunder and the
Company's method of operation enables it to meet the requirements for taxation
as a real estate investment trust under the Code for the taxable year in which
sales of the Securities are to occur.
(ac) The Securities have been approved for listing upon official notice
of issuance on the New York Stock Exchange.
3. Purchase, Sale and Delivery of the Securities.
(a) On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein set
forth, the Company agrees to issue and sell to the Underwriter, and the
Underwriter agrees to purchase from the Company, at a purchase price of $21.955
per share, the number of Firm Securities set forth in Section 1 hereto. One or
more certificates in definitive form for the Firm Securities that the
Underwriter has agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Underwriter requests
upon notice to the Company at least 48 hours prior to the Firm Closing Date,
shall be delivered by or on behalf of the Company to the Underwriter, against
payment by or on behalf of the Underwriter of the purchase price therefor by
wire transfer in same-day funds (the "Wired Funds") to the account of the
Company. Such delivery of and payment for the Firm Securities shall be made at
the offices of Brown & Wood LLP, One World Trade Center, New York, New York
10048, at 9:30 A.M., New York time, on December 18, 1996, or at such other
place, time or date as the Underwriter and the Company may agree upon, such time
and date of delivery against payment being herein referred to as the "Firm
Closing Date." The Company will make such certificate or certificates for the
Firm Securities available for checking and packaging by the Underwriter at the
offices in New York, New York of the Company's transfer agent or registrar or of
Prudential Securities Incorporated at least 24 hours prior to the Firm Closing
Date.
(b) For the purpose of covering any over-allotments in connection with
the distribution and sale of the Firm Securities as contemplated by the
Prospectus, the Company hereby grants to the Underwriter an option to purchase
the Option Securities. The purchase price to be paid for any Option Securities
shall be the same price per share as the price per share for the Firm Securities
set forth above in paragraph (a) of this Section 3, plus if the
11
<PAGE> 12
purchase and sale of any Option Securities takes place after the Firm Closing
Date and after the Firm Securities are trading "ex-dividend" an amount equal to
the dividend payable on such Option Securities. The option granted hereby may be
exercised as to all or any part of the Option Securities from time to time
within thirty days after the date of the Prospectus (or, if such 30th day shall
be a Saturday or Sunday or a holiday, on the next business day thereafter when
the New York Stock Exchange is open for trading). The Underwriter shall not be
under any obligation to purchase any of the Option Securities prior to the
exercise of such option. The Underwriter may from time to time exercise the
option granted hereby by giving notice in writing or by telephone (confirmed in
writing) to the Company setting forth the aggregate principal amount of Option
Securities as to which the Underwriter is then exercising the option and the
date and time for delivery of and payment for such Option Securities. Any such
date of delivery shall be determined by the Underwriter but shall not be earlier
than two business days or later than five business days after such exercise of
the option and, in any event, shall not be earlier than the Firm Closing Date.
The time and date set forth in such notice, or such other time on such other
date as the Underwriter and the Company may agree upon, is herein called the
"Option Closing Date" with respect to such Option Securities. Upon exercise of
the option as provided herein, the Company shall become obligated to sell to the
Underwriter, and, subject to the terms and conditions herein set forth, the
Underwriter shall become obligated to purchase from the Company, the total
number of the Option Securities as to which the Underwriter is then exercising
the option. If the option is exercised as to all or any portion of the Option
Securities, one or more certificates in definitive form for such Option
Securities, and payment therefor, shall be delivered on the related Option
Closing Date in the manner, and upon the terms and conditions, set forth in
paragraph (a) of this Section 3, except that reference therein to the Firm
Securities and the Firm Closing Date shall be deemed, for purposes of this
paragraph (b), to refer to such Option Securities and Option Closing Date,
respectively.
(c) The Company hereby acknowledges that the wire transfer by or on
behalf of the Underwriter of the purchase price for any Securities does not
constitute closing of a purchase and sale of the Securities. Only execution and
delivery of a receipt for Securities by the Underwriter indicates completion of
the closing of a purchase of the Securities from the Company. Furthermore, in
the event that the Underwriter wires funds to the Company prior to the
completion of the closing of a purchase of Securities, the Company hereby
acknowledges that until the Underwriter executes and delivers a receipt for the
Securities, by facsimile or otherwise, the Company will not be entitled to the
wired funds and shall return the wired funds to the Underwriter as soon as
practicable (by wire transfer of same-day funds) upon demand. In the event that
the closing of a purchase of Securities is not completed and the wired funds are
not returned by the Company to the Underwriter on the same day the wired funds
were received by the Company, the Company agrees to pay to the Underwriter in
respect of each day the wired funds are not returned by it, in same-day funds,
interest on the amount of such wired funds in an amount representing the
Underwriter's cost of financing as reasonably determined by the Underwriter.
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<PAGE> 13
4. Offering by the Underwriter. Upon the authorization of the
release of the Firm Securities, the Underwriter proposes to offer the Firm
Securities for sale to the public upon the terms set forth in the Prospectus.
5. Covenants of the Company. The Company covenants and agrees
with the Underwriter that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this Agreement, and any
amendments thereto to become effective as promptly as possible. If required, the
Company will file the Prospectus or any Term Sheet that constitutes a part
thereof and any amendment or supplement thereto with the Commission in the
manner and within the time period required by Rule 434 and 424(b) under the Act.
During any time when a prospectus relating to the Securities is required to be
delivered under the Act, the Company (i) will comply with all requirements
imposed upon it by the Act and the Exchange Act and the respective rules and
regulations of the Commission thereunder to the extent necessary to permit the
continuance of sales of or dealings in the Securities in accordance with the
provisions hereof and of the Prospectus and any Integrated Prospectus, as then
amended or supplemented, and (ii) will not file with the Commission the
prospectus or the amendment referred to in the third sentence of Section 2(a)
hereof, any amendment or supplement to such prospectus or any amendment to the
Registration Statement relating to the sale of the Securities or any Rule 462(b)
Registration Statement of which the Underwriter shall not previously have been
advised and furnished with a copy for a reasonable period of time prior to the
proposed filing and as to which filing the Underwriter shall not have given its
consent. The Company will prepare and file with the Commission, in accordance
with the rules and regulations of the Commission, promptly upon the reasonable
request by the Underwriter or counsel for the Underwriter, any amendments to the
Registration Statement or amendments or supplements to the Prospectus and any
Integrated Prospectus that may be necessary or advisable in connection with the
distribution of the Securities by the Underwriter, and will use its best efforts
to cause any such amendment to the Registration Statement to be declared
effective by the Commission as promptly as possible. The Company will advise the
Underwriter, promptly after receiving notice thereof, of the time when the
Registration Statement or any amendment thereto relating to the sale of the
Securities has been filed or declared effective or the Prospectus and any
Integrated Prospectus or any amendment or supplement thereto has been filed and
will provide evidence satisfactory to the Underwriter of each such filing or
effectiveness.
(b) The Company will advise the Underwriter, promptly after receiving
notice or obtaining knowledge thereof, of (i) the issuance by the Commission of
any stop order suspending the effectiveness of the Original Registration
Statement or any Rule 462(b) Registration Statement relating to the sale of the
Securities or any post-effective amendment thereto or any order directed at any
document incorporated by reference in the Registration Statement or any order
preventing or suspending the use of any Preliminary Prospectus, the Prospectus
and any Integrated Prospectus or any amendment or supplement thereto, (ii) the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, (iii)
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<PAGE> 14
the institution, threatening or contemplation of any proceeding for any such
purpose or (iv) any request made by the Commission for amending the Original
Registration Statement or any Rule 462(b) Registration Statement, for amending
or supplementing any Preliminary Prospectus or the Prospectus and any Integrated
Prospectus or for additional information. The Company will use its best efforts
to prevent the issuance of any such stop order and, if any such stop order is
issued, to obtain the withdrawal thereof as promptly as possible.
(c) The Company will arrange for the qualification of the Securities
for offering and sale under the securities, blue sky or real estate syndication
laws of such jurisdictions as the Underwriter may designate and will continue
such qualifications in effect for as long as may be necessary to complete the
distribution of the Securities, provided, however, that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction.
(d) If, at any time prior to the later of (i) the final date when a
prospectus relating to the Securities is required to be delivered under the Act
or (ii) the Option Closing Date, any event occurs as a result of which the
Prospectus, as then amended or supplemented, would include any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or if for any other reason it is necessary at any time to
amend or supplement the Prospectus to comply with the Act, the Exchange Act or
the respective rules or regulations of the Commission thereunder, the Company
will promptly notify the Underwriter thereof and, subject to Section 5(a)
hereof, will prepare and file with the Commission, at the Company's expense an
amendment to the Registration Statement or an amendment or supplement to the
Prospectus or any Integrated Prospectus that corrects such statement or omission
or effects such compliance.
(e) The Company will, without charge, provide (i) to the Underwriter
and to counsel for the Underwriter two copies of the signed copy of the
registration statement originally filed with respect to the Securities or any
Rule 462(b) Registration Statement and each amendment thereto (in each case
including exhibits thereto) and (ii) so long as a prospectus relating to the
Securities is required to be delivered under the Act, as many copies of each
Preliminary Prospectus, the Prospectus or any Integrated Prospectus or any
amendment or supplement thereto as the Underwriter may reasonably request;
without limiting the application of clause (iii) of this sentence, the Company,
not later than (A) 6:00 PM, New York City time, on the date of determination of
the public offering price, if such determination occurred at or prior to 10:00
AM, New York City time on such date or (B) 2:00 PM, New York City time, on the
business day following the date of determination of the public offering price,
if such determination occurred after 10:00 AM, New York City time, on such date,
will deliver to the Underwriter, without charge, as many copies of the
Prospectus and any amendment or supplement thereto as the Underwriter may
reasonably request for purposes of confirming orders that are expected to settle
on the Firm Closing Date.
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<PAGE> 15
(f) The Company, as soon as practicable, will make generally available
to its securityholders and to the Underwriter a consolidated earnings statement
of the Company and its subsidiaries that satisfies the provisions of Section
11(a) of the Act and Rule 158 thereunder.
(g) The Company will apply the net proceeds from the sale of the
Securities as set forth under "Use of Proceeds" in the Prospectus or any
Integrated Prospectus.
(h) The Company will not, directly or indirectly, without the prior
written consent of Prudential Securities Incorporated, offer, sell, offer to
sell, contract to sell, pledge, grant any option to purchase or otherwise sell
or dispose (or announce any offer, sale, offer of sale, contract of sale,
pledge, grant of any option to purchase or other sale or disposition) of any
shares of Common Stock or any securities convertible into, or exchangeable or
exercisable for, shares of Common Stock for a period of 45 days after the date
hereof, except pursuant to this Agreement and except for issuances pursuant to
the exercise of stock options granted pursuant to the Company's employee and
director stock option plans, or issuances pursuant to the Company's dividend
reinvestment plan or pursuant to the Company's employee benefit plans, or
issuances pursuant to the exchange of limited partnership units in Excel Realty
Partners, L.P.
(i) The Company will not, directly or indirectly, (i) take any action
designed to cause or to result in, or that has constituted or which 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
Securities or (ii) (A) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Securities or (B) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company.
(j) The Company will obtain the agreements described in Section 7(i)
hereof prior to the Firm Closing Date.
(k) If the Company elects to rely on Rule 462(b), the Company shall
both file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) and pay the applicable fees in accordance with Rule 111
promulgated under the Act by the earlier of (i) 10:00 P.M. Eastern time on the
date of this Agreement and (ii) the time confirmations are sent or given, as
specified by Rule 462(b)(2).
(l) The Company will use its best efforts to cause the Securities to be
duly authorized for listing by the New York Stock Exchange prior to the Firm
Closing Date.
6. Expenses. The Company will pay all costs and expenses incident to
the performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 11 hereof, including all costs and expenses incident to (i)
the printing or other production of
15
<PAGE> 16
documents with respect to the transactions, including any costs of printing the
registration statement originally filed with respect to the Securities and any
amendment thereto, any Rule 462(b) Registration Statement, any Preliminary
Prospectus, the Prospectus and any Integrated Prospectus and any amendment or
supplement thereto, this Agreement and any blue sky memoranda, (ii) all
arrangements relating to the delivery to the Underwriter of copies of the
foregoing documents, (iii) the fees and disbursements of the counsel,
accountants and any other experts or advisors retained by the Company, (iv)
preparation, issuance and delivery to the Underwriter of any certificates
evidencing the Securities, including transfer agent's and registrar's fees, (v)
the qualification of the Securities under state securities and blue sky laws,
including filing fees and fees and disbursements of counsel for the Underwriter
relating thereto, (vi) the filing fees of the Commission (and the National
Association of Securities Dealers, Inc.) relating to the Securities, (vii) the
listing of the Securities on the New York Stock Exchange, and (viii) meetings
with prospective investors in the Securities (other than shall have been
specifically approved by the Underwriter). If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriter set forth in Section 7 hereof is not satisfied, because this
Agreement is terminated pursuant to Section 11 hereof or because of any failure,
refusal or inability on the part of the Company to perform all obligations and
satisfy all conditions on its part to be performed or satisfied hereunder other
than by reason of a default by the Underwriter, the Company will reimburse the
Underwriter upon demand for all out-of-pocket expenses (including fees and
disbursements of counsel) that shall have been incurred by it in connection with
the proposed purchase and sale of the Securities. The Company shall not in any
event be liable to the Underwriter for the loss of anticipated profits from the
transactions covered by this Agreement.
7. Conditions of the Underwriter's Obligations. The obligations of the
Underwriter to purchase and pay for the Firm Securities shall be subject, in the
Underwriter's sole discretion, to the accuracy of the representations and
warranties of the Company contained herein as of the date hereof and as of the
Firm Closing Date, as if made on and as of the Firm Closing Date, to the
accuracy of the statements of the Company's officers made pursuant to the
provisions hereof, to the performance by the Company of its covenants and
agreements hereunder and to the following additional conditions:
(a) If the Original Registration Statement or any amendment thereto
filed prior to the Firm Closing Date has not been declared effective as of the
time of execution hereof, Original Registration Statement or such amendment and,
if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have been declared effective not later than the
earlier of (i) 11:00 A.M., New York time, on the date on which the amendment to
the registration statement originally filed with respect to the Securities or to
the Registration Statement, as the case may be, containing information regarding
the initial public offering price of the Securities has been filed with the
Commission and (ii) the time confirmations are sent or given as specified by
Rule 462(b)(2), or with respect to the Original Registration Statement, or such
later time and date as shall have been consented to by the Underwriter; if
required, the Prospectus or any Term Sheet that constitutes a part
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<PAGE> 17
thereof and any Integrated Prospectus and any amendment or supplement thereto
shall have been filed with the Commission in the manner and within the time
period required by Rule 434 and 424(b) under the Act; no stop order suspending
the effectiveness of the Registration Statement or any post-effective amendment
thereto and no order directed at any document incorporated by reference in the
Registration Statement, the Prospectus or any Integrated Prospectus or any
amendment or supplement thereto shall have been issued and no proceedings for
that purpose shall have been instituted or threatened or, to the knowledge of
the Company or the Underwriter, shall be contemplated by the Commission; and the
Company shall have complied with any request of the Commission for additional
information (to be included in the Registration Statement, the Prospectus or any
Integrated Prospectus or otherwise).
(b) The Underwriter shall have received an opinion, dated the Firm
Closing Date, of Latham & Watkins, counsel for the Company, to the effect that:
(i) This Agreement has been duly executed and delivered
by the Company.
(ii) The Registration Statement is effective under the Act
and, to the best of their knowledge and information,
no stop order suspending the effectiveness of the
Registration Statement has been issued under the Act
or proceedings therefor initiated or threatened by
the Commission.
(iii) The Registration Statement originally filed with
respect to the Securities and each amendment thereto
and any Rule 462(b) Registration Statement and the
Prospectus and any Integrated Prospectus, excluding
the documents incorporated by reference therein, as
of their respective effective or issue dates, comply
as to form in all material respects with the
requirements for registration statements on Form S-3
under the Act and the regulations thereunder; if
applicable, the Rule 434 Prospectus conforms to the
requirements of Rule 434 under the Act; it being
understood, however, that no opinion need be rendered
with respect to the financial statements, schedules
and other financial and statistical data included or
incorporated by reference in the Registration
Statement, any Rule 462(b) Registration Statement,
the Prospectus or any Integrated Prospectus; and it
being understood, further, that in passing upon the
compliance as to form of the Registration Statement,
any Rule 462(b) Registration Statement, the
Prospectus and any Integrated Prospectus or Rule 434
Prospectus, as applicable, such counsel may assume
that the statements made therein are correct and
complete.
(iv) Each document filed pursuant to the Exchange Act
(other than the financial statements, schedules and
other financial and statistical data included
therein, as to which no opinion need be rendered) and
17
<PAGE> 18
incorporated or deemed to be incorporated by
reference in the Prospectus or any Integrated
Prospectus complied when so filed as to form in all
material respects with the Exchange Act and the
regulations thereunder. In passing upon compliance as
to form of such documents, such counsel may assume
that the statements made therein are correct and
complete.
(v) No authorization, approval, permit or consent of any
court or governmental authority or agency is required
that has not been obtained in connection with the
consummation by the Company of the transactions
contemplated by this Agreement, except such as may be
required under the Act and state securities laws or
real estate syndication laws.
(vi) Neither the Company nor any of its subsidiaries is
required to be registered under the Investment
Company Act.
(vii) Each of the partnership agreements to which the
Company or any of its subsidiaries is a party, and
which relates to real property described in the
Prospectus or any Integrated Prospectus, has been
duly executed and delivered by such applicable party
and constitutes the valid agreement thereof,
enforceable against such party in accordance with its
terms.
(viii) Each subsidiary (which term, as used in such opinion,
shall be defined to include corporations, material
limited and general partnerships relating to real
property described in the Prospectus or any
Integrated Prospectus and other entities) of the
Company has been duly organized and is validly
existing and in good standing under the laws of the
jurisdiction of its organization, has power and
authority to own, lease and operate its properties
and to conduct its business as described in the
Prospectus or any Integrated Prospectus; except as
otherwise stated in the Prospectus or any Integrated
Prospectus, all of the issued and outstanding capital
stock of or limited partnership interests in each
such subsidiary which is a corporation or a limited
partnership have been duly authorized and validly
issued and are fully paid and non- assessable.
(ix) Commencing with the Company's taxable year beginning
January 1, 1993, the Company has been organized in
conformity with the requirements for qualification as
a "real estate investment trust", and its method of
operation enables it to meet the requirements for
qualification and taxation as a "real estate
investment trust" under the Code, provided that such
counsel's opinion as to this matter may be
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<PAGE> 19
conditioned upon certain representations as to
factual matters made by the Company to such counsel
as described therein.
(x) The statements set forth (a) in the Prospectus under
the caption "Certain Federal Income Tax
Considerations to the Company of its REIT Election"
and (b) in the Prospectus Supplement under the
caption "Certain Federal Income Tax Considerations to
Holders of Common Stock", to the extent such
statements constitute matters of law, summaries of
legal matters, or legal conclusions, have been
reviewed by them and are correct in all material
respects.
Such counsel shall also state that no facts have come to their attention which
would cause them to believe that the Registration Statement, as of its effective
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 not misleading or that the Prospectus and any Integrated Prospectus, as
of its date or the date of such opinion, included or includes any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being understood
that such counsel need express no belief with respect to the financial
statements, schedules and other financial and statistical data included in the
Registration Statement or the Prospectus or incorporated therein.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials.
References to the Registration Statement and the Prospectus and any
Integrated Prospectus in this paragraph (b) shall include any amendment or
supplement thereto at the date of such opinion.
(c) The Underwriter shall have received an opinion, dated the Firm
Closing Date, of Ballard Spahr Andrews & Ingersoll, special Maryland counsel for
the Company, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the
laws of the State of Maryland.
(ii) The Company has corporate power to own, lease and
operate its current properties, to conduct its
current business substantially as described in the
Prospectus and to enter into and perform its
obligations under this Agreement.
(iii) The authorized, issued and outstanding capital stock
of the Company is in all material respects as set
forth in the Prospectus or any Integrated
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<PAGE> 20
Prospectus (as of the date set forth therein) under
"Capitalization" (except for subsequent issuances, if
any, pursuant to reservations, agreements, employee
benefit plans, dividend reinvestment plans, employee
and director stock option plans, or upon the exercise
of options, warrants or convertible debt securities
referred to in the Prospectus or any Integrated
Prospectus) and such shares of stock have been duly
authorized and validly issued and are fully paid and
non-assessable.
(iv) The Securities have been duly and validly authorized
by all necessary corporate action on the part of the
Company and have been duly authorized for issuance
and sale pursuant to this Agreement; and the
Securities, when issued and delivered by the Company
pursuant to this Agreement against payment of the
consideration set forth herein, will be validly
issued, fully paid and non-assessable, and the
issuance of such Securities will not be subject to
preemptive or other similar rights arising under the
Charter or Bylaws of the Company, or under the
Maryland General Corporation Law ("MGCL").
(v) The execution and delivery on behalf of the Company
of this Agreement has been duly authorized by the
Company, and the person(s) executing this Agreement
on behalf of the Company have been duly authorized to
do so.
(vi) The Securities conform in all material respects to
the descriptions thereof contained in the Prospectus,
insofar as such descriptions relate to the Charter or
Bylaws of the Company or issues arising under the
MGCL, and the form of certificate used to evidence
the Securities is in due and proper form and complies
in all material respects with all applicable
statutory requirements under the MGCL.
(vii) The execution and delivery by the Company of each of
the partnership agreements entered into by the
Maryland corporation subsequent to the organization
of the Company in the State of Maryland in May 1993
to which the Company or any of its subsidiaries
organized under the laws of the State of Maryland is
a party, and which relates to real property described
in the Prospectus, has been duly authorized by such
applicable party, and the person(s) executing each
such agreement on behalf of such applicable party
have been authorized to do so.
(d) The Underwriter shall have received an opinion, dated the Firm
Closing Date, of S. Eric Ottesen, Esq., counsel for the Company, to the effect
that:
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<PAGE> 21
(i) To the best of his knowledge and information, the
Company is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which the Company owns or leases real
property, except where the failure to so qualify or
to be in good standing would not have a material
adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or
business prospects of the Company and its
subsidiaries considered as one enterprise.
(ii) To the best of his knowledge and information, there
are no legal or governmental proceedings pending or
threatened against the Company or any of its
subsidiaries which are required to be disclosed in
the Prospectus, other than those disclosed therein,
and all pending legal or governmental proceedings to
which the Company or any of its subsidiaries is a
party or of which any of the property or assets of
the Company or its subsidiaries is the subject which
are not described in the Prospectus or any Integrated
Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the
aggregate, not material.
(iii) To the best of his knowledge and information, there
are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments
required to be described or referred to in the
Registration Statement or the Prospectus or to be
filed as exhibits thereto other than those described
or referred to therein or filed as exhibits thereto,
the descriptions thereof or references thereto are
correct in all material respects, and, to the best of
his knowledge and information, no default exists in
the due performance or observance of any material
obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument so
described, referred to or filed which would have a
material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or
business prospects of the Company and its
subsidiaries considered as one enterprise.
(iv) To the best of his knowledge and information, there
are no persons with registration or other similar
rights to have any securities registered pursuant to
the Registration Statement.
(v) To the best of his knowledge and information, the
execution and delivery of this Agreement and the
consummation of the transactions contemplated herein
and compliance by the Company with its obligations
hereunder will not conflict with or constitute a
breach of, or default under, or result in the
creation or imposition of any lien, charge
21
<PAGE> 22
or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to any
contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any
of its subsidiaries is a party or by which it or any
of them may be bound or to which any of the property
or assets of the Company or any of its subsidiaries
is subject, nor will such action result in violation
of the provisions of the charter or by-laws of the
Company or any applicable law, administrative
regulation or administrative or court order or
decree.
(vi) To the best of his knowledge and information, except
as otherwise stated in the Prospectus or any
Integrated Prospectus and except as would not have a
material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or
business prospects of the Company and its
subsidiaries considered as one enterprise: (a) all of
the issued and outstanding capital stock of each
corporate subsidiary of the Company are owned by the
Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity and (b) all of the
Company's ownership interests in each partnership
subsidiary of the Company are owned by the Company,
directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, except that all of the
partnership interests in EH Properties, L.P. owned by
the Company have been pledged as security for
borrowings under the Secured Revolving Credit
Facility from The First National Bank of Boston
described in the Prospectus.
(vii) The execution, delivery and performance of any of the
partnership agreements to which the Company or any of
its subsidiaries is a party, and which relates to
real property described in the Prospectus, did not,
at the time of execution and delivery, and does not
constitute a breach of, or default under, the charter
or by-laws of the Company or any of its subsidiaries,
as applicable, or any material contract, lease or
other instrument to which such party is a party or by
which its properties may be bound or any law,
administrative regulation or administrative or court
decree.
(viii) The Company and/or its respective subsidiaries hold
title to the properties and assets described in the
Prospectus or any Integrated Prospectus, subject only
to the liens and encumbrances securing indebtedness
reflected in the Prospectus or any Integrated
Prospectus and such other liens, encumbrances and
matters of record which do not materially and
adversely affect the value of such properties and
assets considered in the aggregate.
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<PAGE> 23
(ix) To the best of his knowledge and information, each
subsidiary (which term, as used in such opinion,
shall be defined to include corporations, material
limited and general partnerships and other entities)
is duly qualified 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 or the conduct of
business, except where the failure to so qualify
would not have a material adverse effect on the
condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise.
Such counsel shall also state that no facts have come to his attention which
would cause him to believe that the Registration Statement, as of its effective
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 not misleading or that the Prospectus and any Integrated Prospectus, as
of its date or the date of such opinion, included or includes any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being understood
that such counsel need express no belief with respect to the financial
statements, schedules and other financial and statistical data included in the
Registration Statement or the Prospectus or incorporated therein.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials.
References to the Registration Statement and the Prospectus and any
Integrated Prospectus in this paragraph (d) shall include any amendment or
supplement thereto at the date of such opinion.
(e) The Underwriter shall have received an opinion, dated the Firm
Closing Date, of Brown & Wood LLP, counsel for the Underwriter, with respect to
the issuance and sale of the Firm Securities, the Registration Statement, the
Prospectus or any Integrated Prospectus, and such other related matters as the
Underwriter may reasonably require, and the Company shall have furnished to such
counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters. In rendering such opinion, such counsel
may rely as to all matters governed by the laws of the State of Maryland on
Ballard Spahr Andrews & Ingersoll.
(f) The Underwriter shall have received letters on and as of the date
hereof as well as on and as of the Closing Date (in the latter case constituting
an affirmation of the statements set forth in the former, based on limited
procedures), in form and substance satisfactory to you, from Coopers & Lybrand
LLP, independent public accountants, to the effect that (i) they are independent
public accountants with respect to the Company and its
23
<PAGE> 24
subsidiaries within the meaning of the Act, the Exchange Act and the applicable
rules and regulations thereunder; (ii) it is their opinion that the consolidated
financial statements and financial statement schedules of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement, the Prospectus and any Integrated Prospectus and audited by them and
covered by their opinions therein comply as to form in all material respects
with the applicable accounting requirements of the Act, the Exchange Act and the
applicable rules and regulations thereunder; (iii) they have performed limited
procedures, not constituting an audit, including a reading of the latest
available unaudited interim consolidated financial statements of the Company, a
reading of the minute books of the Company, inquiries of certain officials of
the Company who have responsibility for financial and accounting matters and
such other inquiries and procedures as may be specified in such letter, and on
the basis of such limited review and procedures, nothing has come to their
attention which causes them to believe (A) that any material modifications
should be made to the unaudited condensed financial statements of the Company
and its subsidiaries included or incorporated by reference in the Registration
Statement for them to be in conformity with generally accepted accounting
principles or that such unaudited financial statements do not comply as to form
in all material respects with the applicable accounting requirements of the
Exchange Act and the regulations thereunder, (B) the unaudited financial data of
the Company in the Registration Statement and the Prospectus or any Integrated
Prospectus under the caption "Selected Financial Data" was not determined on a
basis substantially consistent with that used in determining the corresponding
amounts in the audited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus or any Integrated
Prospectus, or (C) at a specified date not more than three days prior to the
date of this Agreement, there has been any change in the capital stock of the
Company or in the consolidated mortgages payable or notes payable of the Company
and its subsidiaries or any decrease in consolidated net current assets or 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 any Integrated 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 or any Integrated Prospectus to a specified date not more
than three days prior to the date of this Agreement, there were any decreases,
as compared with the corresponding period in the preceding year, in consolidated
revenues, operating income, funds from operations, net income or net income per
share of the Company and its subsidiaries, except in all instances for changes,
increases or decreases which the Registration Statement and the Prospectus or
any Integrated Prospectus disclose have occurred or may occur; and (iv) in
addition to the examination referred to in their opinion and the limited
procedures referred to in clause (iii) above, they have carried out certain
specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included or
incorporated by reference in the Registration Statement and Prospectus or any
Integrated Prospectus and which are specified by you, and have found such
amounts, percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company and its
subsidiaries identified in such letter.
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<PAGE> 25
In the event that the letters referred to above set forth any
such changes decreases or increases, it shall be a further condition to the
obligations of the Underwriter that (A) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Underwriter deem such explanation unnecessary, and (B) such changes, decreases
or increases do not, in the sole judgment of the Underwriter, make it
impractical or inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended as of the
date hereof.
References to the Registration Statement and the Prospectus
and any Integrated Prospectus in this paragraph (f) with respect to either
letter referred to above shall include any amendment or supplement thereto at
the date of such letter.
(g) The Underwriter shall have received a certificate, dated the Firm
Closing Date, of the Chief Executive Officer and the Chief Financial Officer of
the Company to the effect that:
(i) the representations and warranties of the Company in
this Agreement are true and correct as if made on and
as of the Firm Closing Date; the Registration
Statement as amended as of the Firm Closing Date,
does not include any untrue statement of a material
fact or omit to state any material fact necessary to
make the statements therein not misleading; the
Prospectus and any Integrated Prospectus, as amended
or supplemented as of the Firm Closing Date, does not
include any untrue statement of a material fact or
omit to state any material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading; and the Company has performed all
covenants and agreements and satisfied all conditions
on its part to be performed or satisfied at or prior
to the Firm Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any post-effective
amendment thereto and no order directed at any
document incorporated by reference in the
Registration Statement or the Prospectus or any
amendment or supplement thereto has been issued, and
no proceedings for that purpose have been instituted
or threatened or, to the best of the Company's
knowledge, are contemplated by the Commission;
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement,
the Prospectus and any Integrated Prospectus, neither
the Company nor its subsidiaries considered as one
enterprise has 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
25
<PAGE> 26
labor dispute or any legal or governmental
proceeding, and there has not been any material
adverse change, or any development involving a
prospective material adverse change, in the condition
(financial or otherwise), management, business
prospects, net worth or results of operations of the
Company or its subsidiaries considered as one
enterprise, except in each case as described in or
contemplated by the Prospectus and any Integrated
Prospectus; and
(iv) all filings required to have been made pursuant to
Rules 424 or 430A under the Act have been made.
(h) The Underwriter shall have received from each person who is an
officer of the Company an agreement to the effect that such person will not,
directly or indirectly, without the prior written consent of Prudential
Securities Incorporated, offer, sell, offer to sell, contract to sell, pledge,
grant any option to purchase or otherwise sell or dispose (or announce any
offer, sale, offer of sale, contract of sale, pledge, grant of an option to
purchase or other sale or disposition) of any shares of Common Stock or any
securities convertible into, or exchangeable or exercisable for, shares of
Common Stock for a period of 30 days after the date of this Agreement.
(i) On or before the Firm Closing Date, the Underwriter and counsel for
the Underwriter shall have received such further certificates, documents or
other information as they may have reasonably requested from the Company.
(j) Prior to the commencement of the offering of the Securities, the
Securities shall have been approved for listing on the New York Stock Exchange,
subject to official notice of issuance.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Underwriter and counsel
for the Underwriter. The Company shall furnish to the Underwriter such conformed
copies of such opinions, certificates, letters and documents in such quantities
as the Underwriter and counsel for the Underwriter shall reasonably request.
The obligation of the Underwriter to purchase and pay for any Option
Securities shall be subject, in its discretion, to each of the foregoing
conditions to purchase the Firm Securities, except that all references to the
Firm Securities and the Firm Closing Date shall be deemed to refer to such
Option Securities and the related Option Closing Date, respectively.
8. Indemnification and Contribution.
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<PAGE> 27
(a) The Company agrees to indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act against any losses,
claims, damages or liabilities, joint or several to which the Underwriter or
such controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made
by the Company in Section 2 of this Agreement;
(ii) any untrue statement or alleged untrue statement of
any material fact contained in (A) the Registration
Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus and any Integrated
Prospectus or any amendment or supplement thereto or
(B) any application or other document, or any
amendment or supplement thereto, executed by the
Company or based upon written information furnished
by or on behalf of the Company filed in any
jurisdiction in order to qualify the Securities under
the securities or blue sky laws thereof or filed with
the Commission or any securities association or
securities exchange (each an "Application"); or
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus and any
Integrated Prospectus or any amendment or supplement
thereto, or any Application a material fact required
to be stated therein or necessary to make the
statements therein not misleading
and will reimburse the Underwriter and each such controlling person for
any legal or other expenses reasonably incurred by the Underwriter or such
controlling person in connection with investigating, defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Company will 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 any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement or
any amendment thereto, any Preliminary Prospectus, the Prospectus and any
Integrated Prospectus or any amendment or supplement thereto, or any Application
in reliance upon and in conformity with written information furnished to the
Company by the Underwriter specifically for use therein; and provided further,
that with respect to any Preliminary Prospectus, such indemnity shall not inure
to the benefit of the Underwriter (or the benefit of any person controlling the
Underwriter) if the person asserting any such losses, claims, damages or
liabilities purchased the Securities which are the subject thereof from the
Underwriter and if such person was not sent or given a copy of the Prospectus at
or prior to confirmation of the sale of such Securities to such person in any
case where such sending or giving is required by the Act and the untrue
statement or omission of a material fact contained in such Preliminary
Prospectus
27
<PAGE> 28
was corrected in the Prospectus and the Prospectus was delivered to the
Underwriter a reasonable amount of time prior to the date of delivery of such
confirmation. This indemnity agreement will be in addition to any liability
which the Company may otherwise have. The Company will not, without the prior
written consent of the Underwriter, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action, suit or proceeding
in respect of which indemnification may be sought hereunder (whether or not the
Underwriter or any person who controls the Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act is a party to such
claim, action, suit or proceeding), unless such settlement, compromise or
consent includes an unconditional release of the Underwriter and such
controlling persons from all liability arising out of such claim, action, suit
or proceeding.
(b) The Underwriter will indemnity and hold harmless the Company, each
of its directors, each of its officers who signed the Registration Statement and
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act against any losses, claims, damages
or liabilities to which the Company or any such director, officer or controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any Integrated
Prospectus or any amendment or supplement thereto, or any Application or (ii)
the omission or the alleged omission to state therein a material fact required
to be stated in the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or any Application, or necessary to make the statements therein 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 reliance
upon and in conformity with written information furnished to the Company by the
Underwriter specifically for use therein; and, subject to the limitation set
forth immediately preceding this clause, will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or any action in respect thereof. This indemnity
agreement will be in addition to any liability which the Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 8. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants
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<PAGE> 29
in any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be one
or more legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the indemnifying party,
the indemnifying party shall not have the right to direct the defense of such
action on behalf of such indemnified party or parties and such indemnified party
or parties shall have the right to select separate counsel to defend such action
on behalf of such indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by such indemnified party of counsel appointed to
defend such action, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (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 out of the same general allegations or circumstances,
designated by the Underwriter in the case of paragraph (a) of this Section 8,
representing the indemnified parties under such paragraph (a) who are parties to
such action or actions) or (ii) the indemnifying party does not promptly retain
counsel satisfactory to the indemnified party or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. After such notice from the indemnifying party
to such indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 8 is unavailable or insufficient, for
any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall 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 (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriter on the other shall be deemed to be in the same proportion as
the total proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriter. The relative fault of the parties shall be determined by reference
to, among other things, whether
29
<PAGE> 30
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 or the Underwriter, the parties' relative intents, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
and any other equitable considerations appropriate in the circumstances. The
Company and the Underwriter agree that it would not be equitable if the amount
of such contribution were determined by pro rata or per capita allocation or by
any other method of allocation that does not take into account the equitable
considerations referred to above in this paragraph (d). Notwithstanding any
other provision of this paragraph (d), the Underwriter shall not be obligated to
make contributions hereunder that in the aggregate exceed the total public
offering price of the Securities purchased by the Underwriter under this
Agreement, less the aggregate amount of any damages that the Underwriter has
otherwise been required to pay in respect of the same or any substantially
similar claim, and 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. For purposes of
this paragraph (d), each person, if any, who controls the Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement and
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company.
9. Survival. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company, its officers and the
Underwriter set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement shall remain in full force and effect,
regardless of (i) any investigation made by or on behalf of the Company, any of
its officers or directors, the Underwriter or any controlling person referred to
in Section 8 hereof and (ii) delivery of and payment for the Securities. The
respective agreements, covenants, indemnities and other statements set forth in
Sections 6 and 8 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
10. Termination. (a) This Agreement may be terminated with respect to
the Firm Securities or any Option Securities in the sole discretion of the
Underwriter by notice to the Company given prior to the Firm Closing Date or the
related Option Closing Date, respectively, in the event that the Company shall
have failed, refused or been unable to perform all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Firm Closing Date or such Option Closing Date,
respectively,
(i) the Company or any of its subsidiaries considered as
one enterprise shall have, in the sole judgment of
the Underwriter, sustained any material loss or
interference with their respective businesses or
properties from fire, flood, hurricane, accident or
other calamity,
30
<PAGE> 31
whether or not covered by insurance, or from any
labor dispute or any legal or governmental proceeding
or there shall have been any material adverse change,
or any development involving a prospective material
adverse change (including without limitation a change
in management or control of the Company), in the
condition (financial or otherwise), business
prospects, net worth or results of operations of the
Company and its subsidiaries considered as one
enterprise, except in each case as described in or
contemplated by the Prospectus (exclusive of any
amendment or supplement thereto);
(ii) trading in the Common Stock shall have been suspended
by the Commission or the New York Stock Exchange or
trading in securities generally on the New York or
American Stock Exchange shall have been suspended or
minimum or maximum prices shall have been established
on either exchange;
(iii) a banking moratorium shall have been declared by New
York or United States authorities; or
(iv) there shall have been (A) an outbreak or escalation
of hostilities between the United States and any
foreign power, (B) an outbreak or escalation of any
other insurrection or armed conflict involving the
United States or (C) any other calamity or crisis or
material adverse change in general economic,
political or financial conditions having an effect on
the U.S. financial markets that, in the sole judgment
of the Underwriter, makes it impractical or
inadvisable to proceed with the public offering or
the delivery of the Securities as contemplated by the
Registration Statement, as amended as of the date
hereof.
(b) Termination of this Agreement pursuant to this Section 10 shall be
without liability of any party to any other party except as provided in Section
9 hereof.
11. Information Supplied by the Underwriter. The statements set forth
in the last paragraph on the front cover page and under the heading
"Underwriting" in any Preliminary Prospectus, the Prospectus or any Integrated
Prospectus (to the extent such statements relate to the Underwriter) constitute
the only information furnished by the Underwriter to the Company for the
purposes of Sections 2(b) and 8 hereof. The Underwriter confirms that such
statements (to such extent) are correct.
12. Notices. All communications hereunder shall be in writing and, if
sent to the Underwriter, shall be delivered or sent by mail, telex or facsimile
transmission and confirmed in writing to Prudential Securities Incorporated, One
New York Plaza, New York, New York 10292, Attention: Equity Transactions Group;
and if sent to the Company, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to the
31
<PAGE> 32
Company at 16955 Via Del Campo, Suite 110, San Diego, California 92127,
Attention: Gary Sabin, President.
13. Successors. This Agreement shall inure to the benefit of and shall
be binding upon the Underwriter, the Company and their respective successors and
legal representatives, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (i) the indemnities of the
Company contained in Section 8 of this Agreement shall also be for the benefit
of any person or persons who control the Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act and (ii) the indemnities
of the Underwriter contained in Section 8 of this Agreement shall also be for
the benefit of the directors of the Company, the officers of the Company who
have signed the Registration Statement and any person or persons who control the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act. No purchaser of Securities from the Underwriter shall be deemed a
successor because of such purchase.
14. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, EXCLUDING
(TO THE GREATEST EXTENT PERMISSIBLE BY LAW) ANY RULE OF LAW THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
32
<PAGE> 33
15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Company and the
Underwriter.
Very truly yours,
EXCEL REALTY TRUST, INC.
By: /s/ Gary Sabin
________________________________
Name: Gary Sabin
Title: President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Jean-Claude Canfin
__________________________
Jean-Claude Canfin
Director
33
